The fight over how rape is defined threatens the first major European law on sexual violence

The European Union may be about to agree on its first specific law to fight against sexual violence, a scourge that costs the lives of at least 50 women every week in European territory (the figures are still unreliable). However, it is a project that might end in complete failure due to the titanic struggle that the states and the European Parliament have been engaged in for weeks on a key issue of the proposed directive: consent as the base of sexual crimes; that is, the assumption, at the European level, of the principle of what is known in Spain as “only yes is yes,” meaning that a sexual act without explicit consent is considered rape.

The fourth trialogue — the negotiations between the states and the European Parliament, with the European Commission, to agree on a final common text of the law — will take place this Wednesday with each side blaming the other. And against the background of the steadfast refusal of several states, notably France and Germany — without which there is no qualified majority to enact the law — to allow the definition of rape to be based on consent in the regulations. For their part, several negotiators from the European Parliament have threatened to strike down the entire law if the states do not give in and accept, at a minimum, the definition of rape contained in the Istanbul Convention.

It is not just any other law, since the entire regulation, which among other things also seeks to criminalize acts such as female genital mutilation and cyberstalking, is at stake. With the European elections in June shortening the calendar, sources from the negotiations explain that if this key point is not signed off now, it will be practically impossible to agree on a text and ratify it before the last plenary session of the European Parliament in April. And given the forecasts of a shift to the right and even to the extreme right in the European elections, enacting a law of this type in the next legislature — violence against women is anathema to ultra parties — will be practically impossible, they warn.

In the midst of the struggle between deputies and states, Spain, which holds the rotating presidency of the EU has remained relatively silent. The country is accused of not having been sufficiently involved in these negotiations. It comes as a double disappointment because, according to various sources, Spain has always been considered a pioneer and a model in terms of women’s rights and the fight against sexual violence. Nor is it understood why the country has not fought for this directive as other Spanish ministers have done for equally difficult European proposals in recent months, such as the Nature Restoration Law.

“There is a certain disappointment due to the lack of Spanish leadership in this directive,” say sources involved in the negotiations. “They have been more involved in other proceedings, but not here,” other voices from different political orientations agree. Diplomatic sources consider this perception unfair. “The technical work is there, but France and Germany absolutely refuse to include rape [based on consent] in article 5 of the proposed law,” they explain. Therefore, they add, “there is no room” to negotiate.

Legal competencies as an argument

Paris and Berlin’s legal arguments are based on the fact that the EU does not have legal powers in this matter; it belongs to the criminal law of each country. And they say they fear that, lacking a legal basis, any country that opposes the regulations could go to the Court of Justice of the EU (CJEU), and it could end up annulling the entire directive, which seeks broader protection for women beyond rape. The original sin, however, is in the states themselves, which previously rejected the European Parliament’s proposal to convert rape into a Eurocrime with a common definition, which would have clarified the legal situation. As things stand, diplomatic sources from the countries opposed to accepting rape in the directive allege, it is not recognized as a cross-border crime, so the EU has no powers in this regard.

However, the legal services of the Commission and the European Parliament have made a broader interpretation, using the legal basis of sexual exploitation. This is an extreme that the Council’s jurists do not share, so for the moment, the dispute is in a stalemate, waiting to see if France or Germany give in and change the voting strengths, or if the European Parliament backs down and does not fulfill its threat to strike down all regulations over this issue. Until this Tuesday, Paris had no intention of changing its mind, according to diplomatic sources, who rejected the reproaches, asserting that France is one of the countries that punishes rape the most severely.

Aware of the brewing battle, those responsible for the European Parliament’s directive on the fight against violence against women sent a letter last week to Félix Bolaños, now head of the Justice portfolio, in addition to the Presidency and Relations with Courts in the Spanish government, and Justice chief during the Spanish presidency of the Council in the EU, to express their “deep disappointment, and [...] indignation, on behalf of European citizens at the Council’s lack of will to include the crime of rape due to lack of consent in the directive.”

For the rapporteurs from across the whole political spectrum — Nathalie Colin-Oesterlé, Pina Picierno, Lucia Ďuriš Nicholsonová, María Soraya Rodríguez Ramos, Sylwia Spurek, Diana Riba i Giner, Assita Kanko, Malin Björk, and Eugenia Rodríguez Palop — it is an “unacceptable position.” “We cannot have a situation where different minimum standards of justice are applied to women across the Union if we are to truly achieve one of our founding principles: equality between women and men. To quote the president of the European Commission, Ursula von der Leyen, ‘there cannot be true equality without freedom from violence,’ ” they added in the letter sent on December 7. The group signed off by asking Bolaños to “ensure” that in this new “historical” norm the crime of rape be included under the principle of “only yes means yes.”

There has been no response from the Ministry of Justice, unofficially, at least, although the ministry points out that the “political and legal” problem for which several countries have said no to that proposal will be addressed this Wednesday in the trialogue. “There is a blocking minority of countries that are against, based on a Council report. They are opposed to including rape in the directive.” That is not Spain’s position, which “is in favor” and this Wednesday, they say, “the Spanish delegation will talk about it.” The discussions are, to say the least, long and hard. There is a lot at stake, at least all parties agree on that.

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