Guarantee a minimum level of protection for women victims of violence in the European Union. This is the subject of a European directive that has been at the heart of a bitter debate between member states for more than a year. Alongside Hungary and Poland, France opposes Spain, Belgium and Sweden.

One article of the text proposed on 8 March 2022 is particularly divisive among European leaders: Article 5, which wants to harmonise the definition of rape at the European level and base it on the absence of consent.

The draft presented by the European Commission states that "lack of consent should be a central and constitutive element of the definition of rape, given that rape is frequently perpetrated without physical violence or the use of force". The text goes even further. "Initial consent should be able to be withdrawn at any time during the act, while respecting the sexual autonomy of the victim, and should not automatically mean consent to future acts," the directive reads.

The European Parliament voted in favour of the directive in July. Since then, several rounds of negotiations have failed between MEPs, the Commission and the European Council, where the Heads of State or Government sit. Further talks are expected to resume in January.

Among the opponents of Article 5 is France, which thus finds itself in the camp of Hungary, Poland and the Czech Republic, all three of which are opposed to the text.

Parliamentarians call on France to "review its position"

This position has aroused the anger of some forty French deputies and senators, including Sandrine Rousseau and Yannick Jadot. "While in France, 0.6% of rape complaints result in a conviction, the introduction of the notion of consent in the definition of rape would make a real difference for victims of violence and help fill the gaps in the penal code," they wrote in a letter to Emmanuel Macron in November, asking him to "review France's position."

"France cannot continue to go against the direction of history and defend the abandonment of Article 5 in the Council of the European Union, alongside Poland and Hungary," the authors of this letter add.

The France, like Poland and Hungary, is opposed to the inclusion of #viol in the #violencesfaitesauxfemmes Directive 🇪🇺.

As the 1st trilogue on the directive opens tomorrow, we parliamentarians call on the government to reconsider its position ⤵️ pic.twitter.com/qJ46LqDYVw

— Francesca Pasquini - Member of Parliament (@FMPasquini) November 13, 2023

Several MEPs, including France's Raphaël Glucksmann, also expressed outrage at Paris' position, saying the French definition of rape was "outdated". "While more than 100,000 rapes are recorded in the European Union every year, our country, France, refuses the European Council a major step forward to protect European women," denounced the leader of the Place Publique movement through a petition that has so far collected nearly 190,000 signatures.

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A post shared by Raphaël Glucksmann (@raphaelglucksmann)

An "archaic and dusty" French model

What does French law say about rape? Currently, article 222-23 of the French penal code defines rape as "any act of sexual penetration, of any nature whatsoever, or any oral-genital act committed on the person of another or on the person of the perpetrator by violence, coercion, threat or surprise".

"The rule in French law is that there is a presumption of consent to the sexual act. In such a way that all sexual acts are deemed to be consensual unless there is violence, coercion, threat or surprise," said Anne Bouillon, a lawyer specialising in women's rights.

However, she believes that the idea of a presumption of consent to the sexual act is "largely backward-looking". "It's an idea that carries the germ of the notion that women's bodies are 'accessible' at all times unless there is violence, coercion, threat or surprise." For this lawyer, "there is urgent legislative work to be done, because our model is archaic and dusty. It comes from a patriarchal view of things."

Read alsoFrance: the legal process strewn with pitfalls for women victims of rape

However, it argues for an "intermediate position" that would introduce the notion of consent desired by the European Commission, without omitting to add the notion of coercion – which is found in the French definition.

The risk of relying on a definition of rape based on the absence of consent, the lawyer explains, is to "put the burden on the victim of the characterization of the offence. There is a risk that the victim will be asked to justify how he or she consented or not. However, we know that in rape situations, there are states of shock where the victims are no longer able to express themselves [at the time of the rape]."

Is rape a "Eurocrime"?

To justify their refusal, France and the other Member States opposed to the European article on rape first raise a legal problem, arguing that the issue of rape falls within the competence of the States, not that of the EU, which the legal services of the Parliament and the Commission refute.

The debate includes whether rape can be considered a "Eurocrime", which could fall under European competence. Eurocrimes are considered to be "offences which, by definition, deserve to be dealt with at EU level because of their particularly serious nature and cross-border nature," explains the specialist website EURACTIV. This category includes, but is not limited to, crimes related to corruption, terrorism or sexual exploitation.

Another argument put forward by France: Paris is worried to see the entire European directive on violence against women sacrificed by the controversy over Article 5.

While there is currently no legal instrument to deal with this issue at European level, this directive also includes a section on forced marriages, genital mutilation among intersex people, gender-based cyberbullying and forced sterilisation, which are not condemned in some European countries.

Read alsoOne in three European women victims of violence: the 27 divided on the protection of women

Paris fears that conservative states such as Hungary will use the legal feverishness of the rape article to reject the entire text before the Court of Justice of the EU, on the grounds that the EU does not have jurisdiction.

But time is running out. The Spanish presidency of the Council of the EU, which is part of the negotiations on this directive, ends on 31 December. Belgium will then take over until June 2024, followed by Hungary. The upcoming European elections in June – with fears that far-right European parties will win seats in the Parliament – could also shake up debates on the fragile gains made in the fight against violence against women.

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