Tackling violence against women: the elusive concept of consent

On 6 February 2024, the European Union’s Parliament and Council reached an agreement on the Directive on violence against women which had been tabled in March 2022. This text will harmonise national legislation on sexual harassment, female genital mutilation, sterilisation, forced marriage and “revenge porn” (the leaking of sexual images with the aim of harming someone).

Article 5, which proposed a Europe-wide definition of rape based on the absence of consent, was dropped in the final draft due to a lack of agreement. This episode has nevertheless succeeded in opening up and broadening the debate on rape legislation and the notion of sexual consent in Europe.

Since the #MeToo movement in 2018, which saw a wave of denunciations of aggressors via social networks, the term “consent” has been on everyone’s lips. Originating in the legal sphere, its precise meaning in sexual and emotional terms is the subject of much debate.

The Article 5 debate

Voting for Article 5 would have meant changing the law in all EU countries that do not have a legal definition of rape based on consent. These include France, Portugal, Italy and Poland. Others, including Spain, Sweden, Finland, Slovenia, Denmark and the Netherlands, have already moved towards legislation enshrining the rule of “only yes means yes”.

The decision not to include Article 5 came down to very little. A change of position by France or Germany would have been enough to get it adopted. The justification used for the omission? Rape is not a “Eurocrime” as defined in Article 83 of the Treaty on the Functioning of the EU.

The European Union has ratified the Istanbul Convention, which establishes a consent-based definition of rape along the lines of Article 5. France and Germany are both signatories to that text in their own right, but Bulgaria, Hungary, Latvia, Lithuania, Slovakia and Czechia are not.

According to the EU’s Fundamental Rights Agency, more than half (55%) of women in the European Union have been sexually harassed since they were 15, and one in three (33%) have endured physical and/or sexual violence.

Between 2021 and 2023, more than 68,000 reports of rape were recorded in Europe, according to data gathered by the Mediterranean Institute for Investigative Reporting (MIIR), as part of a survey by the European Data Journalism Network (in which Voxeurop participates). Rape and sexual assault are still the offences least often reported to the authorities. Ireland is a particularly notable case in that only 5% of sexual assaults there are reported, according to the country’s Central Statistics Office.

Victims are now speaking out more. But for many, our systems still fail at supporting and looking after them, particularly at the level of the courts.

Why should the notion of “consent” be enshrined in law?

Frédérique Pollet-Rouye, a lawyer and campaigner specialising in sexist and sexual violence, co-authored a December 2023 article published in Le Monde and signed by a group of female lawyers, authors and judges. Its notably explicit title: “Sexual violence: ‘There is an urgent need to redefine rape in criminal law, since the definition of rape in France presupposes implicit consent'”. She explains: “Under current law, a sexual act where it is established that there was no consent is not considered to be rape unless it can be shown that the accused used physical violence against the victim, or surprised, threatened or coerced her”.

A change in the law should make it possible for the courts to deal with rapes that are not currently treated as such. Another aim is to make it more difficult for convicted rapists to slip through the net.

The notion of consent therefore remains at the heart of the debate, even in courtrooms where the law focuses on duress. The challenge lies in interpreting the term “consent”, and shaping it in such a way that it does no harm to the victims. Therein lies common ground.

A debate among feminists too

On 29 January 2024 in Germany, an open letter signed by over 100 women from the worlds of culture, business and politics, was sent to the German federal justice minister Marco Buschmann. In it, the signatories pleaded for the EU directive to be adopted in its original form.

However, in an article published in Le Monde in December 2023, feminist philosopher and essayist Manon Garcia disagreed, warning against a shift in French rape law towards a version based on non-consent: “It is a mistake – and a sexist one at that! – to define rape in terms of non-consent”, she wrote.

In Spain, a country that has already passed an “only yes means yes” law, it was feminist thinker Clara Serra who, in the pages of El Diario, challenged the merits of such an implicit definition of rape. In her view, if we consider that a woman cannot express her disagreement because of the dynamics of domination, then we should apply the same reasoning to a woman who explicitly says “yes”. After all, this consent could just as well be the product of these same power dynamics.

Jana Kujundžić, a researcher specialising in gender-based violence, assesses the situation succinctly: “I believe that a positive change in the law on rape must highlight a contemporary and evidence-based understanding of rape and sexual violence as a social problem.”

The MEP and rapporteur of the text Ervin Incir (of the Socialists and Democrats, and re-elected at the last EU Parliament election) is optimistic, saying that the directive “could generate the necessary pressure for national governments to update their legal definitions to bring them in line with international human rights standards, such as those set out in the Istanbul Convention. In the future, we expect the European Commission to propose new legislation specifically on rape, building on this progress.”

The second rapporteur, the Irish MEP Frances Fitzgerald (European People’s Party, not re-elected), is similarly hopeful: “When it comes to sexual relations, consent must be at the heart of the conversation. […] I believe that this directive can bring about a fundamental change in the way we think about society – creating an impact beyond criminal law alone”.

🤝  This article is published within the Come Together collaborative project.