No ifs or buts: Consent-based rape legislation must apply across EU

Despite most EU countries having signed and ratified the Istanbul Convention on violence against women, there is still a large disparity between Member States in the interpretation of what is deemed consensual, writes the EESC’s Madi Sharma.
Photo credit: Press Association

By Madi Sharma

09 Jan 2019

Last spring, Sweden took a big step in recognising non-consensual intercourse as rape. It was not the first country to do so – in fact, one quarter of EU Member States have consent-based laws defining what rape is.

This is, to some extent, good news. However, as Amnesty International has highlighted, it also means that the vast majority of women in Europe – in three quarters of EU countries – are being put at risk by laws that partially or fully fail to recognise non-consensual sexual acts as rape.

It seems simple – but this is not the case. In several European countries, rape legislation is lacking, outdated, and built on archaic power structures.


This is despite most EU countries having signed and ratified the Istanbul Convention, the most comprehensive international treaty on fighting violence against women and supporting female victims of violence.

The treaty was signed by the EU in 2017, but there are still 11 Member States that have not ratified it.

Last spring, Spain was shaken by the ruling in the “la manada” (wolf pack) case.

During the bull-running festival in Pamplona in 2016, five men allegedly gang-raped an 18-year-old woman. The assault was videotaped, and the woman’s silence and perceived passivity on tape were used by judges as reasons to drop charges of rape.

“Verdicts in both cases boiled down to the fact that Spanish rape laws require violence and intimidation to have taken place in order for the crime to be considered rape”

Instead, the five men were charged for the crime of sexual assault, a significantly lesser charge. Moreover, as late as November this year, a court in north-eastern Spain cleared two men of rape charges as they were deemed to not have used violence against their victim.

Verdicts in both cases boiled down to the fact that Spanish rape laws require violence and intimidation to have taken place in order for the crime to be considered rape.

At the same time, Spain is one of the EU countries that has ratified the Istanbul Convention. Article 36 of this Convention clearly states that parties shall take the necessary measures to ensure that engaging in non-consensual sex or acts of a sexual nature becomes a criminal act.

Thus far, we have seen nothing of the sort in Spain – although it is positive to see that measures similar to Swedish consent-based legislation have gained ground in the country.

Drafted laws have been proposed by the Podemos party, taking both verbal communication and body language into account when understanding consent.

At the core of the Istanbul Convention is an aim and appeal to support female victims of violence and prevent further violence being perpetrated. Dishearteningly, this seems too grand of a step for several EU Member States to take. The reasons for this are rooted in patriarchal power structures and archaic definitions of sexual assault and violence.

The men at the centre of the Pamplona case are currently out on bail – among them are a soldier and a member of the civil guard who have both returned to duty.

Consent needs to be at the core of rape legislation. Without a consent-based approach, crimes of a sexual nature will not be accurately defined in judicial processes – and perpetrators will escape appropriate punishment.

Women’s lives, health and safety must be held higher. There is no reason why all EU member countries should not ratify the Istanbul Convention.

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