Sunday

14th Apr 2024

Opinion

Sex without consent is rape. European laws must reflect that

  • Frequently, laws place the burden on those who have been raped to prove that they – most often women – are victims. This must change, and there is a clear route to achieve this (Photo: Iga Lubczanska)

According to Amnesty International, some 9,000,000 women in the EU have been raped since the age of 15.

This already alarming number is even higher across the 47 Council of Europe member states.

Read and decide

Join EUobserver today

Get the EU news that really matters

Instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

  • Legal definitions often require evidence that the perpetrator used coercion or that the victim failed to fight back. This is clearly wrong (Photo: Kayla Sawyer)

Equally worrying is that too few of our members treat this crime as seriously as they should, because their legal definitions of rape are not based on lack of consent.

As we mark International Women's Day on Sunday (8 March), it remains the case that enduring sexism too often determines distorted definitions and implementation of rape-related laws.

Frequently, these place the burden on those who have been raped to prove that they – most often women – are victims. This must change, and there is a clear route to achieve this.

Through its monitoring, our Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) has found that many criminal justice systems in Europe maintain force-based definitions of rape.

These legal definitions often require evidence that the perpetrator used coercion or that the victim failed to fight back. This is clearly wrong.

Take for example drug-facilitated sexual assault, where the rapist intentionally targets the victim with a date rape drug so that they are incapacitated, or cases where the victim is unable to give consent as a result of intoxication, or simply because the victim is asleep or has a medical condition.

The reality is that many women and girls who experience sexual violence do not fight back but freeze, flee or befriend.

We must stop insisting that the victim prove that she resisted physically. Where she cannot or does not want to fight back the perpetrator may walk free while she is left stigmatised.

The need for a legal definition of rape based on the absence of consent is a recognised international human rights standard in Article 36 of the Council of Europe's Convention on preventing and combating violence against women and domestic violence.

Known commonly as the Istanbul Convention, this obliges parties to the treaty to criminalise all non-consensual acts of a sexual nature.

The good news is that 34 member states have now ratified the treaty. The bad news is that many have yet to amend their legal definitions of rape in line with Article 36.

Sweden led way

Of those that have been evaluated by GREVIO, only Austria, Montenegro, Portugal and Sweden have amended their criminal codes to define rape as lack of consent. Discussions are under way in many other countries, which is a good sign.

Some member states have led the way. In 2018, for example, Swedish laws were rewritten to remove a previous requirement for the definition of rape that a victim be overcome by force.

The new law criminalises intercourse or any other sexual act with a person "who is not participating voluntarily". Where no reasonable measures are taken to establish the victim's consent and sexual acts carried out nonetheless, this now amounts to criminal liability through negligence.

The #MeToo movement has given women's rights great prominence, but activism alone cannot compel change. Freedom from rape as based on consent is a most basic human right, which deserves absolute legal clarity to adequately protect and support victims.

States must take full responsibility and change their laws to conform with the Istanbul Convention. The time to act is now.

Author bio

Marija Pejčinović Burić is secretary general of the Council of Europe in Strasbourg.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

Denmark falls behind in gender-equality ranking

Iceland remains the most gender-equal country in the world, followed by Norway, Finland and Sweden. But one Nordic country sticks out from its neighbours with few female lawmakers, senior officials and managers.

MEPs mark Violence Against Women day with urgent call

According to liberal MEP Anna Júlia Donáth, "violence against women and girls is one of the most widespread, persistent and devastating human rights violations existing today and remains largely unreported due to the impunity, silence, and shame surrounding it."

Let's put women in charge of peace talks

We need a more meaningful representation of women in EU institutions and on EU's negotiation tables abroad. The most successful EU deal in the last years, the Iran deal, was brokered by women – Frederica Mogherini and Helga Schmid.

Lost in Brexit chaos - abortion rights in Northern Ireland

Labour MP Diana Johnson has brought a private members bill to Westminster that proposes to decriminalise abortion in the whole of the UK, which means that, if successfully passed, current provisions for Northern Ireland will also be repealed.

Calling time on Amazon's monopolism and exploitation

As Amazon's founder Jeff Bezos just reclaimed the title of the richest person on Earth, its workers cannot even take a bathroom break under the pressure of meeting inhumane performance targets.

The problem of corruption in Ukraine — and a solution

Sunlight is the best disinfectant— so in a way, it is encouraging to see corruption scandals coming to the fore, as this may deter potential future graft, a key prerequisite for Kyiv's eventual EU accession.

This 'deregulation' lobbying now threatens EU economy

Next week's EU summit (17-18 April) will discuss the strategic agenda for the next five years. The current "competitiveness agenda" is to a large extent driven by a big lobbying campaign — so far, not well covered by the media.

Latest News

  1. UK-EU deal on Gibraltar only 'weeks away'
  2. Belgium declares war on MEPs who took Russian 'cash'
  3. Brussels Dispatches: Foreign interference in the spotlight
  4. Calling time on Amazon's monopolism and exploitation
  5. Resist backlash on deforestation law, green groups tell EU
  6. China's high-quality development brings opportunities to the world
  7. Ukraine tops aid list again, but EU spending slumps
  8. Who did Russia pay? MEPs urge spies to give names

Stakeholders' Highlights

  1. Nordic Council of MinistersJoin the Nordic Food Systems Takeover at COP28
  2. Nordic Council of MinistersHow women and men are affected differently by climate policy
  3. Nordic Council of MinistersArtist Jessie Kleemann at Nordic pavilion during UN climate summit COP28
  4. Nordic Council of MinistersCOP28: Gathering Nordic and global experts to put food and health on the agenda
  5. Friedrich Naumann FoundationPoems of Liberty – Call for Submission “Human Rights in Inhume War”: 250€ honorary fee for selected poems
  6. World BankWorld Bank report: How to create a future where the rewards of technology benefit all levels of society?

Stakeholders' Highlights

  1. Georgia Ministry of Foreign AffairsThis autumn Europalia arts festival is all about GEORGIA!
  2. UNOPSFostering health system resilience in fragile and conflict-affected countries
  3. European Citizen's InitiativeThe European Commission launches the ‘ImagineEU’ competition for secondary school students in the EU.
  4. Nordic Council of MinistersThe Nordic Region is stepping up its efforts to reduce food waste
  5. UNOPSUNOPS begins works under EU-funded project to repair schools in Ukraine
  6. Georgia Ministry of Foreign AffairsGeorgia effectively prevents sanctions evasion against Russia – confirm EU, UK, USA

Join EUobserver

EU news that matters

Join us