To: Laurence Boone, Secretary of State for European Affairs
Bérangère Couillard, Minister Delegate for Equality between Women and Men and the Fight against Discrimination
Eric Dupond-Moretti, Minister of Justice
Re: European Union Directive on Violence against Women
Dear Minister of Justice
Dear Minister Delegate for Equality between Women and Men and the Fight against Discrimination
Dear Secretary of State for European Affairs
We are reaching out to your office to urge you to ensure a strong and comprehensive European Union Directive on combating violence against women and domestic violence, including by retaining rape as a criminal offence using a consent-based definition.
Human Rights Watch is an international nongovernmental human rights advocacy organization. In the European Union and worldwide we work on a wide range of issues, including protecting the rights and improving the lives of women and girls.
As you are aware, trialogues are currently underway regarding the EU Directive on combating violence against women and domestic violence. We note France’s leadership role within the EU, as well as on the rights of women and girls, notably through its Feminist Diplomacy and plans to enshrine the right to abortion in its constitution.
We are deeply concerned that the Council of the EU, in its position on the Directive’s draft text, has removed Article 5, which requires members states to criminalize rape using a consent-based definition rather than one based on the use or threat of force. It is crucial that EU member states take the groundbreaking opportunity of this directive to address rape as a grave form of sexual violence that can have long-term physical, mental health, and socioeconomic impacts, and to enshrine a consent-based definition of rape in line with international legal norms. Eliminating this would undermine the core of this landmark directive and its efficacy in affording protection for victims and survivors of rape for years to come. We believe this serves as an important opportunity for the Ministry of Justice, the Ministry of Europe and Foreign Affairs and the Ministry for Equality between Women and Men and the Fight against Discrimination to take immediate action in guiding the EU to adopt the most robust and valuable directive possible.
United Nations independent experts have noted that rape remains one of the least reported and prosecuted crimes globally, in part due to criminal justice systems’ persistent use of definitions based on the use of force. They have unequivocally called for absence of consent as the “global standard” for defining rape. In using violence or the threat of violence by perpetrators or demonstration of resistance to the use of force by victims as criteria for determining an act of rape, criminal justice systems ignore other well-documented methods of coercion as well as widely varied behavioral response to rape. Such legislation perpetuates harmful myths about what constitutes rape, how a victim “should” respond, and what acts of sexual violence merit accountability.
The European Court of Human Rights has found that states should “[require] the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.” Based in part on such jurisprudence, the Council of Europe convention on preventing and combating violence against women and domestic violence (Istanbul Convention), to which France is a party, mandates that state parties enact criminal legislation for acts of sexual violence, including rape, based on voluntary consent. The CEDAW Committee has also called on states to remove legal requirements for use of force or violence and “place the lack of consent at its centre” with regards to legislation on rape. Moreover, the European Institute for Gender Equality notes that the lack of a common definition of rape across member states inhibits data collection, which in turn hinders appropriate national and EU-wide responses and resource allocation.
Access to critical post-rape services and justice should not depend on where victims and survivors reside within the EU, yet such access is too often hampered by failure to recognize sexual violence committed without use of force as rape. While 13 EU member states use consent-based definitions to criminalize rape, 14 have not yet aligned their definitions with international legal norms in this regard. This includes France, despite having ratified the Istanbul Convention in 2014 and championing women’s rights in other areas. While we recognize that France aims to protect women’s rights and combat violence against women and girls, at present it regrettably remains in the company of member states including Poland and Hungary and lags behind member states such as Spain, Belgium, Germany, Ireland, Sweden, Denmark and Greece in amending its criminal law. This is an opportunity for France to not only take the necessary steps toward meeting its own international human rights obligations, but to lead the entire EU forward in its fight to combat violence against women and girls. Unifying EU member states’ criminalization of rape using a consent-based definition is critical to ensuring access to essential post-rape services and support and access to justice for victims across the EU.
While the Council has stated that there is insufficient legal basis for the Directive to include criminalization of rape and to mandate a consent-based definition, the opinion issued by its own legal service states that “the Council could choose to take a different approach and endorse a more extensive reading of the legal basis” existing in the Treaty of the Functioning of the EU with regards to sexual exploitation of women and children. Such a position has already been justified by the European Commission. Moreover, as Commissioner for Equality Helena Dalli has pointed out, the same legal basis has been used to criminalize non-consensual sexual acts with children. Only a lack of political will stands in the way of using it again to take forward the criminalization of all non-consensual sexual violence at this critical moment.
Too many survivors of rape across the EU face lack of access to crucial support and impunity for perpetrators. Negotiations on the EU directive on violence against women present a historic opportunity to take steps toward changing this, and it is an opportunity we – and survivors of sexual violence – cannot afford to lose. We urge you, without delay, to serve as a leader in ensuring that the directive requires all EU member states to criminalize rape using a consent-based definition.
We are grateful for your attention to this matter. We stand ready to provide additional comments or information to the Ministry if need be.
Director, France Office