Original article (in Croatian) was published on 8/3/2024; Author: Ivan Nekić
Croatia is among the member states that apply the ‘only yes means yes’ approach. Accordingly, the Croatian MEPs advocated for the adoption of a directive that would include this approach.
On International Women’s Day, March 8, 2022, the European Commission unveiled a proposal for a directive aimed at combating violence against women and domestic violence. This proposal, based on the Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence), seeks to unify the approach to these issues across the European Union, with the ultimate goal of harmonizing the national legislations of member states.
However, the negotiations for the directive’s adoption encountered challenges, as anticipated. Unexpectedly, France and Germany — countries traditionally known for their commitment to gender equality — expressed opposition.
The European Institute for International Law and International Relations highlighted in a December 2023 report that discussions on the directive aimed at combating violence against women were halted during the November 14, 2022, meeting due to resistance from several countries. In addition to the already mentioned France and Germany, Hungary and Poland also opposed to defining rape strictly as any non-consensual act. Rape is one of the most widespread and brutal forms of violence against women and girls that leaves lasting consequences, and reporting this crime is extremely traumatic for the victims, so they often choose to remain silent and withdraw. The German and French blocking of the directive, as well as other countries that opposed it, is especially tragic in the circumstances in which violence against women and girls and femicide are on the greatest increase globally in the last two decades.
UN data released in November 2023 indicates that each year, 245 million women and girls aged 15 and older are subjected to psychological and/or sexual violence by their partners. This issue is not foreign to Europe or the European Union; a 2018 Eurostat report found that over 600 women in 14 EU member states were killed by their partners or family members, with 35 percent of these homicides occurring within the victims’ homes.
The situation is no better in Croatia either. A survey published in September 2023 shows that 27 percent of women stated that they were victims of psychological violence by a current or former partner. Data for Croatia show that in relation to physical violence, eight percent of them stated that they had experienced physical violence from a current or former partner, including threats. The most common group according to age is 18 to 29 years old (37 percent), while 24 percent are in the age group 65 to 74 years old.
Proposal of the Definition
In its 2022 proposal for a directive on combating violence against women, the European Commission defined rape in Article 5:
“1. Member States shall ensure that the following intentional conduct is punishable as a criminal offence:
(a) participation in the act of vaginal, anal or oral penetration of a sexual nature, with any part of the body or object, with a woman without her consent;
(b) inducing a woman to participate without consent in an act of vaginal, anal or oral penetration of a sexual nature, with any part of the body or object, with another person.
2. Member States shall ensure that an act without consent is considered to be an act performed without the woman’s voluntary consent or in cases where the woman cannot express her free will due to her physical or mental condition, thereby exploiting her incapacity to form a free will, such as the condition lack of consciousness, intoxication, sleep, illness, physical injury or disability.
3. Consent can be withdrawn at any time during the duration of the act. Absence of consent cannot be disproved solely by the woman’s silence, lack of verbal or physical opposition, or her past sexual behavior”.
“Only yes means yes”
According to an October 2023 analysis by the European Women’s Lobby, the umbrella organization of women’s NGOs in the EU, the “only yes means yes” approach is applied in 14 member states, including Sweden, Spain, Croatia and Greece.
It should be noted that sexual violence is never the victim’s fault, regardless of the way they dress or go out at night. Nobody wants to be raped. Responsibility and guilt always rest with the perpetrator. The absence of visible injuries is often perceived as a lack of clear defence and thus consent. At the same time, threats and fear are forgotten, which often block the victim from reporting violence. In addition, some victims knowingly indulge in order to reduce the risk of injury and death. This does not mean that they gave consent to the perpetrator. Every person who experienced rape did the best they could and knew in order to survive, emphasizes the UNICEF manual that talks about prejudices about gender-based violence.
In Germany and Austria, the principle “no means no” still applies. This requires rape victims to prove that they verbally refused to engage in the sexual act.
Disagreements Over the Definition of Rape in the European Parliament
In the position of the member states, adopted in June 2023, the countries repealed Article 5 of the European Commission’s proposal, which states that a sexual act without consent is a criminal offense. In the following months, the European Parliament determined its position in accordance with the Commission’s proposal regarding the inclusion of a definition of rape in the directive, and the co-rapporteurs made it clear that the Parliament would not be satisfied with a directive that excludes rape.
“One of the biggest challenges we face is getting most member states to understand that we need a consent-based rape paragraph. Not only the paragraph on rape, but also the paragraph on rape based on consent in which “only yes means yes”, pointed out Swedish MEP Evin Incir from S&D, co-rapporteur of the Committee on Civil Liberties, during a press conference on October 26, and reported by Euractiv.
And why did France and Germany oppose a directive that would contain a paragraph on rape based on consent?
A source from France told Euractiv that they are not against the idea, but believe that there is no legal basis for it. “Criminal law is the responsibility of the member states, not the European Union, except in the case of Euro-crimes”, revealed the source. France also fears that if rape is incorporated into European law, countries like Hungary (where democratic principles and the protection of minority and vulnerable groups are visibly declining) will use this to have the entire directive overturned by the Court of Justice of the European Union (CJEU), on the grounds that The EU has no jurisdiction over it.
In France, rape is defined as a sexual act committed against a person under threat, coercion, surprise or violence. However, including the concept of consent in the final text would be “less meaningful” and “less protective” for victims, argued Bérangère Couillard, the French Minister for Gender Equality and the Fight against Discrimination, at a meeting on October 17 with members from civil society organizations and institutions as part of the discussion on violence against women.
Germany opposes the adoption of the directive in this form for the same reason. “The legal service of the Council of the EU and many other member states have concluded that there is no sufficient legal basis for this provision in European primary law”, German Justice Minister Marco Buschmann said at an informal meeting in Brussels, Deutsche Welle reports.
According to the interpretations offered by France and Germany, the European Union does not have the authority to initiate legal standardization in this field. This opinion was joined by the Netherlands, Hungary, the Czech Republic, Poland, Malta, Estonia, Bulgaria and Slovakia.
The negative response of the member states led to fierce criticism from women and activists for women’s rights throughout the European Union. In Germany, more than 100 prominent women publicly called on the justice minister to change his position on the directive.
Directive Agreement Reached Without Unified Rape Definition
On February 6, the European Commission, European Parliament, member states and legislative bodies managed to reach an agreement on the directive.
“It is a clear message to the entire Union that we take violence against women seriously”, EPP MEP Frances Fitzgerald told reporters in Strasbourg after the announcement.
“It is a directive that women and girls across the European Union have been looking for for more than 30 years”, said S&D MEP from Sweden Evin Incir.
The directive aims to protect women from gender-based violence, forced marriage, genital mutilation, and criminalizes cyber stalking, cyber harassment and cyber incitement to hatred or violence throughout the European Union. However, an agreement on the definition of consensual rape, more specifically the “only yes means yes” approach, has not been reached.
“We could not agree on the definition of rape based on consent in this directive. It’s a big disappointment”, said Fitzgerald. The European Parliament, on the other hand, emphasized that although no agreement was reached on the definition of rape, “member states will try to raise awareness that sex without consent is considered a criminal offence”.
Croatian Representatives Advocate for Definition
As far as Croatia is concerned, we belong to the category of one of the 14 member states of the European Union in which, when talking about the definition of rape, the “yes means yes” approach is applied. Accordingly, the Croatian MEPs advocated for the adoption of a directive that would include this approach.
SDP MEP Predrag Fred Matic assessed that the adoption of the directive is a big deal for Europe and that there is finally legislation that will contribute to the reduction of violence and better protection of victims.
“The directive will further strengthen measures in the fight against violence, and we are also introducing new, much-needed legal provisions, for example in the area of online violence”, he points out. He noted that the negotiations were not easy and also mentioned that France and Germany strongly opposed standardization and a common definition of rape. “It is incomprehensible to me and we missed the opportunity for a legal breakthrough in this area”, said the EU representative.
Suncana Glavak, the EU representative from HDZ, also welcomed the adoption of the directive, adding that Croatia can be an example in the legislative protection of women from violence, given that the criminal act of aggravated murder of a woman, or femicide, is being introduced into the Criminal Code.
“Economic empowerment and the eradication of gender-based discrimination in and outside the workplace is also at the top of the agenda”, Glavak said in a press release, not referring to the fact that the directive does not include a common definition of rape.
Representative Zeljana Zovko said that the directive was reduced to a partial solution due to the restrictive definition of rape, for which the European People’s Party called out the member states that opposed its inclusion.
“While at the same time celebrating the progress achieved, it should be recognized that the law does not meet the comprehensive measures regarding the inclusion of rape, which was also assessed as disappointing in the EPP”, says Zovko.
Matic, however, adds that the directive is crucial “precisely for countries like Croatia where the implementation of the Istanbul Convention is non-existent and the system is dysfunctional”. “Too often we witness all kinds of loopholes in the law and situations in which victims are repeatedly victimized – both by the perpetrators and by the system. The directive tries to put an end to that”, concluded the EU representative from SDP.
Although the text of the directive has already been agreed, the next step is formal confirmation by the European Parliament and the Council, which is expected in April. One of the reasons why the directive needs to be formally confirmed as soon as possible is the fact that on July 1, the presidency of the Council of the European Union will be taken over by Hungary, which could remove such a directive from the agenda.