Should the definition of rape be harmonized at European level? The proposal once again constituted a blocking point, Wednesday December 13, in discussions on a directive against violence against women. The draft provides, in its article 5, a definition of rape based on the absence of consent. But this notion, like a harmonization of the countries of the European Union on the issue, is debated.
In France, a country opposed to rape no longer falling under the jurisdiction of States, many voices are being raised to demand a change in national law on this subject. Franceinfo returns to the subject by answering four questions.
What does this European project consist of?
This European directive aims to bring together the legislation and criminal response of the 27 member countries on violence against women and domestic violence. LRape, genital mutilation, the disclosure of intimate videos and even online harassment are among the main subjects at the center of the debates.
Regarding rape, the European Commission judges, in the text presented on March 8, 2022, that “lack of consent should be a central and constitutive element of the definition of rape, given that rape is frequently perpetrated without physical violence or use of force”. “Initial consent should can be removed at any time during the act, while respecting sexual autonomy of the victim, and should not automatically signify consent to future actions”the text continues.
As recalled the Commission, “d“many member states still require the use of force, threats or coercion to constitute the crime of rape.” “Other member states rely only on the condition that the victim has not consented to the sexual act”. “Only this last approach allows the complete protection of the sexual integrity of victims”estimates the Brussels-based institution.
Where are the discussions?
In June, member states decided to exclude from negotiations Article 5 of the Commission’s draft, concerning “rape offenses against women”. If thehe European Parliament and more than a dozen countries (including Spain, Belgium, Greece, Sweden and Italy), are on the same line, a dozen others, notably France and Germany , are opposed to rape being included in the legislation.
At the end of a fourth session of negotiations between representatives of Parliament and EU countries on Wednesday, the eleven MEPs involved in this issue, from various political sides, expressed their “deep disappointment and indignation” in front of the “untenable position” of the European Council (i.e. the leaders of the member states).
Swedish MEP Evin Incir (Socialists & Democrats group), co-rapporteur of the text, accused these countries during a press conference of “find excuses not to act”insisting on “impunity” from which the perpetrators of rape benefit. For example, Germany changed its definition of rape in 2016, which is based on the principle of “no is no”. “But not being able to say no doesn’t mean you said yes.”objects Evin Incir.
On the side of the PPE group (right), French MEP Nathalie Colin-Oesterlé expressed her “Fed up” after the failure of the discussions. “Since the start of these negotiations last July, 33,000 women have already been victims of rape in Europe, she lamented. We will not accept a cheap law.” Talks are due to resume in January 2024.
What are the arguments of the detractors of the text?
For countries opposed to the text, rape does not have the cross-border dimension necessary to be considered a “Eurocrime” likely to give rise to harmonization of legislation at European level. Currently, only the offenses mentioned in Article 83 of the Treaty on the Functioning of the EU are concerned: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, trafficking illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime. Paris and Berlin also believe that there is a risk that the text will be challenged in the event of an appeal to European justice.
Furthermore, some consider that including the notion of consent in the definition of rape would be counterproductive. In France, where the Penal Code defines rape as acts committed by “violence, coercion, threat, or surprise”, the philosopher Marion Garcia believes that “this notion is crossed by heterosexist representations” : “We think that consent is a matter for women, who must choose to accept or refuse sexual assaults from men”she writes in a column published Tuesday by The world. “SIf we legally define rape by non-consent, we consider that it is the behavior of the victim which causes the rape and not that of the rapist.she continues.
What do supporters of changing the law say?
In another column published the same day by The worlda collective bringing together lawyers, authors and magistrates argue that it is “the current definition” rape, presupposing “implied consent to any sexual act”, Who “conveys tenacious stereotypes. The text [de loi] tells us in fact that only acts committed by ‘violence, coercion, threat, or surprise’ are rape.”
“However, in the majority of situations, the attacker is known to the victim, write the signatories. To attack, he will more often rely on the astonishment of the victim, on his vulnerability, on his precariousness, on relationships of domination or on moral constraint… But our law does not require magistrates to draw legal consequences from these elements which attest to the impossibility of a free will of the victim“. For the collective, there is no “no legal, moral, historical reason to” what France opposes for rape to be covered in this directive European: “We demand that this obstruction stop.”
Personalities continue to question Emmanuel Macron on this subject. French MEP Raphaël Glucksmann (left) is outraged that “14 member states, including France, Poland and Austria, still use outdated definitions based on physical violence, threat or coercion”. The calls now come from within the presidential majority itself: the 23 French parliamentarians who are members of the Renew Europe group believe, also in a column published Tuesday by The worldthat “the Byzantine legal arguments put forward by the Member States give a feeling of total disconnection with the suffering experienced by the victims”.
Thus, the explanation from Paris and Berlin, according to which rape is not part of “Eurocrimes”, is not convincing. LThe Parliament and the Commission consider, for their part, that rape can fall within the framework of “sexual exploitation of women”.