As more European capitals are adopting consent-based legislation for rape, the case is building for the European Union to follow suit.
The issue is back in focus as a delegation of the Council of Europe visits Brussels until June 25 to monitor compliance with the Istanbul Convention, the landmark treaty on combating violence against women. Ratified by 22 member states since 2013 and by the EU itself in 2023, the convention already defines rape on the basis of the absence of consent — the so-called "only yes means yes" standard.
But the debate remains contentious at EU level. In 2024, member states blocked efforts to include a consent-based definition or rape in its directive on combating violence against women, arguing that criminal law should remain a national competence.
Yet a series of high-profile cases involving sexual intercourse with unconscious women have amplified calls for explicit consent standards. They include the Pelicot trial in France, where a man was convicted for repeatedly drugging and raping his wife alongside 50 other men over the course of a decade, and CNN’s investigation earlier this year into an online network promoting sexual acts with unconscious women. One site featuring so-called “sleep content” recorded 62 million visits in a single month.
Despite earlier setbacks, proponents of a consent-based standard are gaining ground, with several capitals having adopted such legislation in recent years and the European Parliament pressing the Commission to amend the 2024 directive.
‘Only yes means yes’
Rape legislation varies significantly across the EU. Member states generally follow one of three legal models: A ‘force-based’ approach, which requires evidence of force, threat or coercion; a ‘no means no’ approach, under which rape is defined by the victim’s explicit refusal, and an ‘only yes means yes’ model which defines rape by the absence of stated consent.
According to the European Institute for Gender Equality, 18 member states have adopted a consent-based legal definition of rape between 2011 and 2025.
While Eurostat reported an increase in women reporting rape over the last 10 years — potentially reflecting greater awareness — EIGE estimates that only 12.2% of the women raped by a non-partner report the crime to the police. The figure drops to 3.5% when the perpetrator is a current partner.
Since most of the member states that adopted a consent-based rape law did so in the last five years, it’s too early to assess its impact on reporting rates. Supporters nevertheless argue that, when properly enforced, the consent-based model can make the reporting process less intimidating by shifting focus to the actions of the accused.
“It’s still very much up to the victim to prove that she didn’t look for it,” said Mary Collins, secretary general at the European Women’s Lobby, an organization of women’s associations in the EU.
Collins links low reporting rates to the “secondary victimization” that some women experience when turning to authorities, fearing they won’t be believed.
In other criminal cases, like robbery or theft, the focus is on who committed the crime, rather than the behavior of the victim, said Eliana Jimeno, senior advocacy advisor at Women Against Violence Europe, a network of NGOs. “The question for any other crime is not on what the victim did or did not do, it’s what the perpetrator did.”
Elena Biaggioni, a lawyer and vice-president of D.I.RE, an Italian association helping victims of sexual and domestic violence, said that rape allegations must still be subject to thorough investigation. But she warned that without proper training, authorities risk asking questions that shift responsibility onto the victim.
Advocates of consent-based legislation have pointed to recent cases that laid bare the flaws of legislation that require proof of explicit refusal. Both the Pelicot trial in France and the online ring of men promoting sexual acts with sleeping unconscious women highlighted situations where no such actions were possible.
Jimeno also said that psychological factors can prevent victims from resisting. Simply freezing, or attempting to appease the attacker can’t be considered consensual, she said “Those are normal psychological and physical responses when there is a threat.”
Who gets to write criminal law?
In 2024, the EU green-lit a directive on combating violence against women that included a consent-based definition of rape, in line with the Istanbul convention. However, Germany, France, Poland, Hungary and the Czech Republic all objected to include a consent-based article in the directive, viewing it as EU overreach.
More recently, during a Parliament debate in April on amending the directive, MEP Sebastian Tynkkynen (ECR, FI) argued that consent-based legislation "does not belong to the EU level, as criminal law is fundamentally a national issue," adding that such legislation is already enacted in Finland. France also adopted a consent-based law in 2025.
“Having a directive on combating violence against women and domestic violence, where there is no definition of rape in those terms may of course appear a bit incomplete,” said Marta Dell’Aquila, researcher at the Centre for European Policy Studies. Yet, Dell’Aquila still considers the directive to be “very strong,” adding that lawmakers feared that including the article on consent-based model would block the entire directive.
Still, both Collins and Dell’Aquila claim the sovereignty argument was a form of resistance to the article itself. “Using this kind of arguments to not defend human rights is unacceptable,” said Dell’Aquila.
To supporters a bloc-wide ‘only yes means yes’ approach would standardize victims’ treatment and protection regardless of where they live.
And that view now appears to be gaining political support.
In late April, the Parliament adopted a report calling on the Commission to revisit the issue and amend the 2024 directive. A Commission spokesperson told The Parliament in an e-mail that while they can’t share a specific deadline yet, the Commission welcomes the European Parliament’s initiative.
The spokesperson also said that while disagreements in the Council prevented the inclusion of a consent-based definition of rape in the directive, the principle of consent remains central to the Roadmap for Women’s rights — a non-binding document that outlines the Commission's long-term vision — and the Gender Equality Strategy presented in March, which builds on the roadmap and includes more concrete actions.
For now, however, the legal path remains limited. Under the directive’s review clause, the legislation can only be revised five years after implementation, meaning any amendment would likely have to wait until 2032.
But pressure is also coming from other directions. Since June 16, a delegation from the Council of Europe's Group of Experts on Action against Violence against Women and Domestic Violence have conducted an evaluation visit to the European Union to asses implementation of the Istanbul convention. The evaluation will conclude on June 25 with a full report in fall 2027.
Collins sees the review as an opportunity to reopen the debate on EU’s role in tackling gender-based violence.
Consent, culture and power
Supporters of consent-based legislation acknowledge that changing the law alone is unlikely to have a dramatic effect, especially in the shorter term.
The change concerns “a whole societal system,” Jimeno said, adding that that the wider culture and the stereotypes also need to change, while law enforcement and the judiciary need specialized training.
But not everyone is convinced that the only-yes-means-yes model would live up to its advertised hope. During April’s Parliament debate, MEP Marieke Ehlers (PfE, NL) argued that while consent must be central, the proposed legislation could become an artificial, forced imposition on human relationships: "Reducing it [consent] to a constant contract-like requirement drives every human interaction into legal territory that would unsettle even the most seasoned law professor," she said, while calling for a proposal "grounded in real life" and that doesn't "ignore the realities of human interactions."
Jimeno rejects that criticism, arguing instead that similar dynamics already happen in other human interactions, where context plays a crucial role.
Biaggioni echoed that view, saying that “only talking about consent and not about the context in which consent is evaluated, carries the risk of moving the discussion to a form on misunderstanding, which it [rape] isn’t. It’s an act of power.”
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