The no-consent rape tug of war between EU institutions

While Malta and a majority of other EU Member States are expressing their opposition to the inclusion of rape in the proposed European Directive on Combating Violence against Women and Domestic Violence, both European Commissioner for Equality Helena Dalli and Maltese MEP and human rights activist Cyrus Engerer are advocating strongly for it.

It was an unusual occurance to see, behind the podiums of the European Parliament’s press conference hall in Strasbourg on margins of the plenary session, not just the customary one or two MEPs negotiating a specific file on behalf of the institution but also a gathering of many of the shadow rapporteurs and key MEPs from across the various political groups.

It was EP co-rapporteurs Frances Fitzgerald (EPP, Ireland) and Evin Incir (S&D, Sweden) who addressed the Press conference last week, during which an update on the inter-institutional negotiations (‘trilogues’ between the European Commission, the Council of the EU, and the European Parliament) on the Directive on Combating Violence against Women and Domestic Violence was delivered. Yet, the supporting presence of their colleagues from across the political spectrum marked a remarkable display of unity, leaving no room for doubt about the unwavering consensus that exists among the political spectrum at the EP on the crucial role of this legislation.

What does the Directive entail?

On 8th March 2022, the European Commission proposed a new legislative framework aimed at addressing the persistent gaps in protection and access to justice for women across the EU. This proposal aims to harmonise EU law with international standards, particularly the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, better known as the Istanbul Convention, and provides for the criminalisation of rape based on the absence of consent. This proposed law would mark a groundbreaking step for the EU, constituting its first dedicated legislation specifically addressing the pervasive issue of sexual violence, a scourge that claims the lives of at least 50 women every week within European borders.

Those pushing for this law see it as a pivotal step towards creating a safer and more equitable society for all women, ensuring that their fundamental rights and freedoms are upheld troughout all EU territory. However, the prospects of this landmark legislation are now clouded by a fierce debate over a crucial aspect of the proposed directive: the definition of consent as the foundation of sexual offences. This fundamental concept would require explicit and unambiguous affirmation from all parties involved in any sexual encounter.

So far, from the Council’s side, ten EU Member states are in agreement with the European Commission and the European Parliament on incorporating a consent-based definition of rape into the Directive. Four countries remain undecided while the others, including France, Germany, Hungary, and Malta, have expressed staunch opposition. Their refusal to compromise on this critical aspect threatens a lack of a qualified majority in the Council, that is necessary for the law to be enacted.

At last week’s press conference, the two EP negotiators were passionate, blaming the Member States that want to “water down” this Directive and those that are still undecided for condoning a situation where women are denied the same level of protection all across the EU.

“While women and girls around Europe are being deprived of their lives, security, and freedom to violence against women, Member States find excuses not to act. This is an unacceptable position that the women of Europe will and should not accept. If we want to achieve gender equality in Europe we cannot continue to have different minimum standards of justice applying to women across the European Union,” said MEP Evin Incir.

Why is Malta opposing the standardisation of no-consent rape across the EU?

At the heart of this debate lies the question of whether issues such as the definition of rape should be considered matters of national sovereignty or subject to EU competence. The EU Treaty already lists a number of serious “euro crimes” with a cross-border dimension – should no-consent rape be added to that list?

The European Parliament has made its conviction abundantly clear that women are not adequately protected against rape while traveling within Europe due to the inconsistent legal protections afforded to them in different Member States. Therefore, it advocates for a comprehensive European law to address this issue uniformly across the bloc.

On their part, the EU Member States that are expressing reservations to the inclusion of rape within this European directive have their own reasons for doing so, some of them quoting the Council’s own legal services’ advice.

Malta’s Minister for Justice Jonathan Attard told The Journal that, when it comes to the substance of the matter, Maltese law has already ratified in full the principles of the Istanbul Convention with the introduction, in 2018, of no-consent rape. He added that Malta’s domestic law even goes beyond the minimum standards proposed by the European Commission regarding rape. Noting that Maltese law is already in line with what is being proposed in the European Directive, he argued that Malta does not think that the EU should be granted this competence on aspects of national law by casting a wider obligation on other Member States. If this would be the case, then Malta could one day end up having its own hand forced by the European Union on other aspects of criminal law.

Malta’s Minister for Justice, Jonathan Attard

Labour MEP begs to differ

Within the European Parliament’s corridors, though, Malta’s position is not being taken well. Even MEP and human rights activist Cyrus Engerer (S&D), who hails from the ruling party in Malta, is calling on the Maltese government to reconsider its position and join the ten Council members that have already agreed with the inclusion of rape in the proposed Directive.

“Unless Council agrees, it would be throwing women under the bus. We will keep on working to push for the Council to join the EP and the Commission to see that rape and consent are also included in the Directive,” he told a recent S&D Group event in Brussels on gender-based violence. “If Member States can’t agree that ‘yes’ means ‘yes’ and ‘no’ means ‘no’, then we are already destined for failure right from the start. It angers me a lot because we have already failed so many women in our different Member States and globally. After each and every femicide, after a rape, we see politicians sending condolences, saying they will act, speaking out loudly, but when we have an actual Directive – words put on paper that will become law – we’re finding a number of Member States, including mine, that are holding back from agreeing that a consent-based rape definition should be included in this Directive.”

MEP Cyrus Engerer addressing the S&D Group event in Brussels on gender-based violence

Commissioner Dalli’s position

European Commissioner for Equality, Helena Dalli, is heading the Commission’s negotiations at the trilogues with the Council and the EP. It was during her tenure as Minister for Equality in Malta that no-consent rape was included in Maltese law in 2018. She firmly believes that Malta, along with the other Member States that are opposing the inclusion of a definition of rape in the directive, should reconsider their position.

“One key sticking point in the negotiations is the criminalisation of rape based on a lack of consent. A majority of Member States still require the use of force or threats for an act to be qualified as rape,” Commissioner Dalli told the same S&D Group event in Brussels. “Such outdated definitions can no longer remain acceptable in the EU. I am urging Member States to show more flexibility on this point and to make use of the existing legal basis that has already been used to criminalise sexual abuse of children.”

She went on to remind that one in three women in the EU have experienced physical or sexual violence since the age of 15. “Nowhere is safe for women and girls in our European societies, as such violence happens in all sorts of settings,” she warned.

European Commissioner Helena Dalli at the first trilogue on violence against women on 13th August (Photo: EP/Mathieu Cugnot)

What about Roberta Metsola?

During Wednesday’s press conference, the name of another high-profile Maltese in the EU was brought up: that of EP President and Nationalist Party MEP, Roberta Metsola. A member of the Press asked: “You just mentioned that Malta is against. My question to you is why Mme President Metsola hasn’t joined this very important press conference, because when she was elected she promised that she would stand firm for women’s rights. It was part of her engagement with the European citizens.”

To this, MEP Evin Incir replied: “This is a question that would better be addressed to Roberta Metsola, as the President. We, as co-rapporteurs, of course, are doing our jobs and we have demanded from the highest level here, both in the European Parliament as well as in the Commission, to do their job: to contact the relevant countries and their Heads of State to do their job. We are doing everything we can, and we have demanded the same from them.”

The Journal reached out to the EP’s President’s office seeking clarity on this matter, and a spokesperson replied that she “does not participate in all Press Conferences and, as President, she represents the position of the European Parliament.”

EP President Roberta Metsola (Photo: EP/Alain Rolland)

Main photo: EP / Alain ROLLAND

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