EU is divided over legal definition of rape

• Proposed legislation stalls as countries fail to agree on legal definition of rape
• The law would give EU countries a unified definition of rape 
• The draft law is part of new legislation that would tackle different forms of sexual abuse, including forced marriage

The European Union is failing to agree on a unified legal definition of rape. Specifically, the European Commission, the Council and Parliament haven’t been able to reach an agreement as definitions vary between European countries.

While Parliament and the Commission have proposed defining rape as sexual intercourse without consent with support from Spain, Italy and Belgium among others, the Council has rejected this proposal, backed by ten countries including Poland, Hungary, Ireland, France and Germany.

The lack of consensus has hindered progress on a directive that proposes a standard definition of rape across the EU, as well as addressing forced marriages, female genital mutilation, cyber harassment and forced sterilisation. The European Commission first presented the proposal on International Women’s Day on March 8 2022, hoping it would be adopted by the end of 2023. However this did not happen due to disagreement between the countries; it is now hoped it will be finalised by the end of January 2024. 

European countries have different definitions of rape 

In Italy, rape is defined as a sexual act imposed with force, authority or threat. In March 2023, Switzerland changed its law on sexual violence to legally recognise that all sex without consent is rape. In December 2023 the Czech Republic became the most recent country to introduce a “no means no” principle, proposing that the offence of rape is based on non-consensual rather than forced sexual intercourse. 

Spain took things a step further by introducing the ‘yes means yes’ law in 2022, which says that consent cannot be assumed by default or silence. Unfortunately, while this was intended to toughen penalties for perpetrators of rape, a loophole meant that the charge of sexual abuse – considered less serious than rape under the new law – was dropped. As a result some offenders had their sentences reduced after their lawyers exploited this loophole on appeal.

EU courts vs individual state courts 

France and Germany say that criminal law is a matter for individual member states, citing a lack of legal basis for EU intervention. Without a clear legal foundation, they claim, opposing countries could challenge the directive in the Court of Justice of the EU, potentially nullifying the entire regulation. According to the French government, rape does not fall within the scope of sexual exploitation by law – however a number of French ministers have rejected this.

The wrangling has caused an outcry – particularly in France given President Emmanuel Macron’s public commitment to gender equality. French MEPs, including those from Macron’s Renaissance party, have expressed dismay at the government’s stance, emphasising the need for an updated definition of rape that also covers issues like cyber stalking. 

While European states continue to argue over what constitutes rape and the meaning of consent, the entire proposed law, which ultimately aims to criminalise all forms of sexual violence against women, is at risk.

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