EU countries reject making non-consensual sex a criminal offense across the bloc

Brussels’ plan to class all non-consensual sex as rape across the EU was rejected by national governments.

In March 2022, the European Commission presented a draft law aimed at protecting women from violence ranging from female genital mutilation to cyberstalking. It also sought to make all EU countries classify non-consensual sex as rape punishable with a maximum penalty of at least eight years in prison. 

But after over a year of divisive talks, EU governments on Friday rejected the rape proposal. More specifically, while they backed the law as a whole, they removed the provision about rape.

Sweden, which holds the rotating presidency of the Council, had managed to clinch agreement among countries a week ago that moves the EU closer to ratifying the 2011 Istanbul Convention — an international treaty meant to reduce violence against women across Europe. Those negotiations exposed a cultural war between Eastern European countries such as Poland, Hungary and Bulgaria, and Western European countries.

But this time around, while a few countries — including Poland and Hungary — slammed the planned legislation to protect women, a majority of EU countries, including Sweden and Germany, said Brussels simply overstepped its remit by pushing to set common EU rules to punish rape.

“The position of the Council cannot be interpreted as questioning the seriousness of the criminal offense as such or as a lack of ambition,” Sweden’s Justice Minister Gunnar Strömmer said during a meeting of justice ministers in Luxembourg. “The fact that this offense is not included in the text is exclusively linked to reasons related to the legal basis.”

Six years after the #MeToo campaign exposed the previously hidden scale of sexual violence against women, the rejection was received with disappointment and skepticism by the Commission’s biggest champion of the plan, Commissioner for Equality Helena Dalli, as well as women’s groups and a handful of countries, including Belgium.

The removal of rape from the draft EU law “is based on a restrictive interpretation of the legal basis, sexual exploitation of women and children,” said Dalli. “However, the same legal basis has already been used for the criminalization of sexual abuse of children in the child sexual abuse directive.”

Divisive talks

While a growing number of EU countries, including Spain and Belgium, have passed “only yes means yes” sexual consent laws in recent years, the European Commission put forward its plan to criminalize rape in the bloc in 2022 as part of a broader directive setting minimum standards governing abuse against women. The plan also aimed to accelerate a growing trend in Western countries to make it easier for victims of sexual violence to seek justice.

The bloc is currently divided almost in half, with 14 countries — including France and Poland — requiring victims to prove the use of force or threat in the case of rape, and 13 others —including Spain, Belgium, Luxembourg, Sweden, and Greece — basing their criminal definition of rape on consent.

Many countries found that the Commission’s plan was not legally sound and could also set a precedent, enabling Brussels to expand its legislative power. A handful, including Belgium, Luxembourg, Greece and Italy, backed the proposal as a whole but lamented a lack of political ambition.

“That consensus comes within the Council with a price, the sacrifice of the offense of rape, a choice that we deeply regret,” said Willem van de Voorde, Belgium’s permanent representative to the EU, during a discussion on the text. “If there is no consent, there is rape. At the EU level, we also need a strong criminalization of this offense if we want a serious decrease in this type of crime.”

In 2014, one in 20 European women reported having been raped, according to a survey by the EU Agency for Fundamental Rights, although few EU-wide statistics about the prevalence of rape across the EU are available. Surveys also tend to substantially underestimate the true extent of the crime.

“Sexual violence continues to ravage the continent and the world,” said Berber Biala-Hettinga, an advocate for human rights with Amnesty International.

Some groups also questioned EU countries’ choice to agree as part of the EU to ratify the Istanbul Convention, which defines rape as nonconsensual sex, one week and scrap the same definition in a draft EU law a few days later. “It’s a bit hypocritical,” said Laura Kaun, campaigns director for European Women’s Lobby. “Everything is really bad at the moment for victims anyway so to have an EU legislation in place would have been an improvement.”

“It is inexcusable that the Council has today failed to find the political will to take effective action against rape,” said Camille Butin, advocacy adviser for the European network of the International Planned Parenthood Federation.

EU countries will now have to negotiate on the plan with the European Parliament once it settles on its own position. A vote in the Parliament is planned for July, according to a Parliament spokesperson.