Why the EU's gender justice bill leaves the most vulnerable behind

Disagreements over rape and immigration rights mean ambitious new legislation will likely change little for victims, NGOs warn.
Protest against inequality in Switzerland | Alamy

By Gabriela Galindo

Gabriela is an agriculture and EU affairs reporter currently based in Brussels.

04 Mar 2024

The European Union is set to adopt an ambitious new law to combat gender and domestic violence, but advocacy groups warn it fails to protect the most vulnerable. 

In almost half of EU countries rape continues to be defined as an act characterised by the use of physical force, threats or coercion – a legal definition experts say paints an inadequate picture of what rape is and how it is perpetrated. 

“The problem [with] these types of laws is that the burden of proof relies on the victim – how much they resisted; how much they said no,” Irene Rosales, the Brussels-based policy and campaigns officer at the European Women’s Lobby (EWL) tells The Parliament. She adds that such definitions also drastically restrict the type of evidence that can be used in a court of law, for instance, when a victim freezes or turns unresponsive. 

The European Commission, Parliament and Council reached an informal, provisional agreement on the directive in early February, and it is expected to enter into force later this year, after which member states will have three years to transpose the law into their national rulebooks. 

 The new law will criminalise a raft of offences, from female genital mutilation to forced marriage. And, for the first time, sexual cyber harassment and other types of online abuses will also become a crime under EU law. The new law also aims to tackle rampant impunity for what authorities agree is among the EU’s most pervasive and insidious crimes – rape. 

The problem [with] these types of laws is that the burden of proof relies on the victim.

According to the most recent EU-wide survey on the issue, one in every two women in the bloc has been sexually harassed, while one in two has been physically or sexually assaulted, most often by an intimate partner. 

Swedish MEP Evin Incir (S&D), who co-led the Parliament’s negotiations on the file, says in a phone interview that the law will at long last beef up the fight against “heinous types of gender violations”. 

But when it comes to rape, Incir and pressure groups like the European Women’s Lobby say the new law falls short. 

As a result of France and Germany’s opposition, a Commission proposal to make sex without consent an EU-wide crime was abandoned – a decision which critics say will hit the hardest in countries with lax or inadequate gender violence laws. 

“Unfortunately, in 2024, not all EU countries recognise rape as sexual relations without consent, even within a marriage,” says Incir. “Many women are left behind,” as legislation in several EU countries is still based on “medieval” views and sexist stereotypes regarding sexual and romantic relationships, she adds. 

Germany’s delegation to the EU did not respond to a request for comment, but Berlin recently tweaked its rape laws to align with a “no means no” approach. Gender violence experts like Rosales say this is not good enough since such an approach “takes consent as a given” and continues to put the burden of proof on victims, rather than perpetrators. 

A press officer for France’s EU delegation says France rejected the proposal because legislation on rape crimes is a national, not an EU competence. She adds that with a minimum prison sentence of 15 years, France already has one of the most stringent penalties for rape in the EU. “The use of violence, threat, coercion or surprise is interpreted by the French courts in a very, very wide way so that the absence of consent is very easy to determine,” she says. 

But Rosales and Incir disagree, stressing that EU countries rejected legal analyses by both the Parliament and the Commission, which concluded that existing EU laws against sexual exploitation provided plenty of cover to act on rape. 

“It’s a matter of interpretation. Forced marriage and female genital mutilation have [just] been criminalised throughout the EU on this basis, but surprisingly, rape was left out,” Rosales says. 

There is also widespread consensus among experts that sexual and gender crimes are plagued by underreporting and impunity – including in France, where rape convictions have reportedly been in a freefall since the height of the #MeToo movement and where the government is currently embroiled in a string of sex abuse scandals

The consent-based approach, Rosales says, “allows for new types of cases to reach the courts, provides an opportunity to overcome sexist biases coded into the law and protect[s] the sexual autonomy of victims – it’s the best instrument we have.” 

Both France and Germany will in any case have to adopt consent-based rape legislation since they have signed the Istanbul Convention, an international treaty aimed at combatting violence against women which requires signatories to adopt a consent-based approach in their national laws. 

Migration control over rights 

In a bid to ensure wider accountability for perpetrators, the incoming law will also require police to adhere to more stringent evidence-gathering procedures in rape cases and will make it easier for victims to safely report a crime and access help – from medical attention and shelter, to legal counselling. 

But undocumented victims, already particularly vulnerable to abuse and exploitation, will not benefit from these protections after EU countries pushed to nix a rule that would have banned police from sharing victims’ data with immigration authorities. 

We know there is a fear of going to the police if they are facing abuse because of the fear of loss of status and deportation.

Louise Bonneau, a Brussels-based advocacy officer for PICUM, an EU platform for undocumented migrants’ rights, says this approach will make it difficult for victims to exit situations involving an abusive employer or spouse, who are often their sole source of livelihood. 

“If you have children or if you're sending some money back to your family as best you can, you weigh your options and well, maybe you stay in a situation of abuse,” she says. “We know there is a fear of going to the police if they are facing abuse because of the fear of loss of status and deportation.” 

Bonneau says that it was difficult to have clarity on which member states pushed to delete this protection, but that the move was unsurprising given “the current climate” around migration policy. “I think countries’ priorities are quite clear – there's less interest in human rights, in ensuring all victims get the support and protection that they need, than in protecting borders,” she says. “And that remains a concern for us.” 

Incir says undocumented victims were “one of the priority groups” the Parliament wanted covered by the law, in line with the Commission’s original proposal. She stresses that MEPs managed to secure a revision of the law five years after it enters into force, which will provide a new opportunity to address its current gaps. 

But for Rosales, it is “disgraceful” that the protection did not go through. “Because we know victims that have a difficult resident status in the EU have a higher burden to go and report and ask for protection, which should never be the case,” she says. 

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