What Covid-19 taught us about online spaces

On September 18th, 2020 GenPol launched a survey on the impacts of Covid-19 on Women and Non-Binary internet-users navigating digital spaces in Covid-19, to carry out data analysis from users in Italy and the UK.

The survey was shared through GenPol’s social media (Facebook, Instagram, Twitter, and LinkedIn) and further promoted via the social media accounts of GenPol staff and followers.

The results give a valuable insight into the lessons that Covid-19 taught us about online spaces. You can read the full report here.

‘Naming it, Fighting it’: Multi-Level Solutions to #StopGBV

We are so grateful to the Foundation of European Progressive Studies (FEPS) and Fondation Jean Jaurès for inviting us to be part of their #StopGBV series.

In a collaborative article commissioned for the series, Chiara and Lilia consider the far-reaching impact of #DigitalGenderBasedViolence and its systemic roots. They explain how and why very different manifestations of online misogynistic behaviours are connected and what their implications are for #policy and social action within the #EU. Drawing on this they also propose a set of multi-level recommendations.

You can check the publication in EN: https://lnkd.in/dgdJm_K
or in FR: https://bit.ly/3upbksO

Other interesting articles from the series can be found here: https://lnkd.in/d3GvGPY

Confinement during COVID: the devastating effects of the pandemic on women’s incarceration in the U.S.

Melissa Ann Horn died from the coronavirus on 14 April 2020. She is one of the over 210,000 people making up the United States’ COVID-19 death count. Like many, she suffered from pre-existing health complications. Unlike many others who have tragically died from the virus, though, Melissa did not die a free citizen: she was in prison.

Incarcerated women are a high risk and much neglected population during the pandemic. Though activists have worked hard to make known the nefarious gender dynamics of the pandemic and its disproportionate impact on women, very few people have included incarcerated women in this analysis. Women in prison are rendered invisible by society at the best of times; during the pandemic, they have suffered the effects of the coronavirus with no recourse to help and few voices on the outside to amplify their struggles.

There are over 200,000 incarcerated women in the United States.[1] These women are disproportionately women of colour, disproportionately poor, and have predominantly been convicted of non-violent offenses.[2] Moreover, many of these women have struggled with substance abuse issues, mental illness, and histories of sexual and physical violence.[3] Recent surges in discourse on mass incarceration in the U.S. have tended to focus on men—who are incarcerated at greater rates than women—thus neglecting the specific issues that women in prison face. The discourse on the pandemic is no different.

No matter who we are and no matter what we have done, we all deserve to live in conditions that do not put us at risk of death. International human rights law outlines every person’s right to live in dignity,[4] whether or not their freedom is curtailed, and each country is responsible for upholding that obligation with respect to its citizens. It is clear that in the U.S., however, women in prison are living in catastrophic conditions that increase their risk of contracting COVID-19 and adding to the U.S.’s shameful death toll.

During the pandemic, women in prison continue to live in overcrowded, unsanitary conditions with little protection against the virus’s spread and with little support for their deteriorating mental health. In the largest women’s prison in the world, situated in California, women are attempting to keep their surroundings virus-free by cleaning surfaces with unused sanitary pads.[5] The guards responsible for keeping these women safe do not wear masks.[6] In Indiana, women have been kept in quarantine in their cells for most of the day, even though the cells do not contain toilets, running water, or air ventilation systems.[7] One positive case in such conditions can spread rapidly among the prison population. Where prisons are taking COVID precautions, these compound many women’s mental health complications. For example, prisons across the U.S. have shut down visitation systems and legal visits, further isolating women who are cut off from society.[8]

The effects of the pandemic on women in prison are all the more important for the racial dynamic involved. The United States locks up women of colour, especially Black women, at rates which are disproportionate to their white counterparts. In 2019, Black women made up 26% of the female prison population when Black people of all genders made up 13.4% of the U.S. population.[9] Many scholars describe incarceration as a continuation of slavery.[10] Police brutality against African Americans, the prison industrial complex, Jim Crow, and the enslavement of Black people in the U.S. are all linked. When the state neglects to create safe prison conditions during the pandemic it continues to perpetuate the control of Black bodies by controlling women’s very access to healthy conditions and healthcare.

Incarceration is killing women. So what can be done? The pandemic sheds light on an issue that has long existed: overcrowding in prisons and poor conditions of confinement. To start with, all states in the U.S. must seek to decongest their prisons and jails. Far too many women are incarcerated for minor offenses, such as shoplifting, that attracted overly severe sentences. These women need not remain incarcerated. With fewer women in prison, the state can seek to create human living conditions in the inhuman structure of the prison by ensuring sanitary living conditions, safe social distances, and access to protective equipment for prisoners.

Finally, and most importantly, the state must invest in communities to prevent the conditions that lead to incarceration in the first place. Women are locked up because they are poor, because they were denied opportunity in their lives, and because of racist policing and criminal justice practices. When the state invests in women’s communities to address those factors, fewer women will come into contact with the carceral state. The recent call to “defund the police” extends to defunding the carceral system, too.

With the pandemic showing no signs of abating in the US, we can expect more women like Melissa Ann Horn to die. These women need our advocacy, too. We must fight for the living conditions and the lives of women on the inside as we seek to shape governments’ responses to Covid.

Nathalie Greenfield


[1] ACLU, Women In Prison (last visited 19 October 2020) available at https://www.aclu.org/issues/prisoners-rights/women-prison.

[2] Prison Policy Initiative, Women’s Mass Incarceration: The Whole Pie (2019) available at https://www.prisonpolicy.org/reports/pie2019women.html.

[3] ACLU, Women In Prison (last visited 19 October 2020) available at https://www.aclu.org/issues/prisoners-rights/women-prison.

[4] U.N. International Covenant on Civil and Political Rights (1966) available at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[5] PBS News Hour, Inside the Largest COVID Unit at the World’s Largest Women’s Prison (2020) available at https://www.pbs.org/newshour/health/inside-the-covid-unit-at-the-worlds-largest-womens-prison.

[6] Ibid.

[7] PBS, Indiana Women’s Prison Locked Down Following New Covid Cases (2020) available at https://www.wfyi.org/news/articles/indiana-womens-prison-locked-down-following-new-covid-19-cases.

[8] AP, Covid Outbreak Reported at South Dakota Women’s Prison (2020) available at https://apnews.com/article/virus-outbreak-south-dakota-pierre-prisons-1a2e68cfd642f923c79ec5d9c680f464.

[9] Prison Policy Initiative, Women’s Mass Incarceration: The Whole Pie (2019) available at https://www.prisonpolicy.org/reports/pie2019women.html; US Census data, available at: https://www.census.gov/quickfacts/fact/table/US/PST045219.

[10] Lakshita Handa, Racism, Police Violence, and Mass Incarceration (2020) available at https://blogs.lse.ac.uk/humanrights/2020/08/12/racism-police-violence-and-mass-incarceration-the-legacies-of-slavery-and-segregation-in-the-united-states/.

GenPol’s contributions to the 2020-2024 EU Gender Strategy

Tackling gender-based violence, it has been anticipated, will be a key priority of the 2020-2024 EU Gender Equality Strategy.

At GenPol we think it is vital that abuse against women is understood and addressed comprehensively. This means, first of all, taking into account intersections between forms of violence based on gender and other oppressive dynamics motivated by race, class, religion, and various forms of economic and social vulnerability. It is also important to pay attention to new and pernicious manifestations of violence.

This is why we welcome the efforts that European institutions have been recently devoting to tackling violent acts that result not only in physical and sexual harm, but in psychological and economic suffering to women. We also applaud any attempt to raise awareness around gender-based discrimination and harassment at all levels.

In order for the new Strategy to be success, it is crucial that digital gender-based violence is openly recognised as one the latest manifestation of patriarchal abuse. It must become a key area of work within the forthcoming EU Gender Equality Strategy.

Even though online vitriol can be directed against people of all genders, existing research clearly indicates that the attacks that women (especially BAME, LGBTQAI+ and disabled ones) face on the Internet are disproportionately more intense, and extremely sexualised. We also know that online and offline violence have a remarkably similar impact on the target, and that they constantly intersect, as digital technologies are increasingly used by both organised misogynistic groups, as well as by perpetrators of domestic violence.

Building on these considerations (which we outline extensively in our policy paper), we suggest that interventions in this area can be usefully incorporated in the forthcoming EU Gender Equality Strategy in at least four ways.

  1. The new Gender Equality Strategy should integrate inter-State data and information sharing, legal and technical skill exchange, and EU-level training of national legal personnel on digital violence. In order to do this, legislative intervention that falls outside the legislative remit of the EU may be needed to address legal loopholes (in many European states this is the case, for example, with image-based abuse). However, several existing provisions at national, international and EU-levels can be effectively used to respond to digital attacks. In other words, it is crucial that legal personnel and other stakeholders across the continent are trained to recognise the gendered nature of digital abuse, and to apply existing legislation accordingly.
  1. EU institutions can effectively build on existing EU-level legislation (for example, the Equal Treatment Directive, the Code of Best Practices for Women in ICT, GDPR) to push tech companies to adopt more effective reporting mechanisms, as well as take down and moderation procedures. There is also a need for more transparent data policies and internal gender equality commitments. This last point is particularly important, as gender inequalities in tech companies can translate into a dismissive attitude towards digital harm. Online abuse concerns should thus be incorporated not only in the section of the Gender Equality Strategy that addresses violence against women, but also in those that consider how to advance women’s rights in the context of digital innovation.
  2. The new Strategy should explicitly cite digital violence survivors (and the groups that work with them) as beneficiaries of specific forms of support. Not only do women’s rights organisations tend to be painfully underfunded, but tackling online harm also adds another layer of difficulty. Domestic and sexual violence charities (together with employers) need specialised training and resources to best withstand digital attacks. In particular, there is evidence that female politicians, journalists and human rights advocates are amongst the principal targets of online assaults. Whilst this leads some to quit their job, it also dissuades younger women from engaging in public life. Awareness raising, training and capacity building initiatives are thus urgently needed for organisations that employ, or work with, professionals in public facing roles. Crucially, this should be a part of EU-sponsored measures to address gender-based violence, as well as of those sections of the new Strategy dealing with gender equality at work and in decision-making.
  1. Educational interventions, and especially comprehensive sexuality education designed to eradicate the stereotypes and social norms that inform violence are the single most effective, long-term strategy to challenge online violence – and indeed any type of abuse. Coordination of best practices and capacity building in this area are key.

Whilst the 2020-2024 EU Gender Strategy could mark a significant stride towards the eventual eradication of gender-based violence, this intervention must incorporate multi-level solutions targeting digital attacks and online abuse. An awareness of the pernicious nature of digital violence- and its tangible real-world impacts- will help to inform a truly transformational strategy for the new decade.

 

The GenPol Team

Minimum Marriageable Age Laws and Teenage Pregnancy: A Case Study on Mexico

The issue of child marriage in Mexico is particularly grave. Across the country, about one in four girls are married before the age of 18. On a global scale, Mexico ranks seventh in the absolute number of child brides. Consequently, in the hope of eliminating child marriage, Mexico introduced the General Law on the Rights of Children and Adolescents (‘Ley General de los Derechos de Niñas, Niños y Adolescentes’) in 2014, in line with target 5.3 of the UN’s Sustainable Development Goals (SDGs). In particular, the law raised the minimum marriageable age to 18 without exceptions and was implemented in the majority of Mexican states by 2017.

One of the main reasons why child marriage is detrimental to adolescent girls’ welfare, among other factors, is because it has been linked to teenage pregnancy. Whereas most OECD countries have experienced increases in the mean childbearing age, Mexico has seen an opposite trend where the average age of childbirth has decreased by about 3.6 years since 1970.

In the second chapter of my PhD dissertation, I examine the effectiveness of Mexico’s minimum marriageable age laws in mitigating child marriage rates and teenage birth rates between 2014 and 2017. I do so specifically by exploiting the differential timing in the law implementation across Mexican states. This approach allows me to estimate the difference in child marriage and teenage birth rates between states that had enacted the law and those that had not. The results from my analysis show that while child marriage rates decreased, teenage birth rates increased. Given the positive relationship between child marriage and teenage pregnancy, this finding is surprising as one would expect the latter to decrease along with the former. Upon further investigation, I find that the rise in total teenage birth rates partially stemmed from the increase in teenage birth rates among girls in consensual unions (girls who were cohabitating with their partners without being formally married). Additional results show that the law was effective in increasing the probability of girls’ school attendance.

There are three possible channels that could have led to the unexpected increase in teenage birth rates among girls in consensual unions. Firstly, the prohibition of marriage could have encouraged girls to enter informal consensual unions (before pregnancy), which would have effectively re-allocated births from married girls to girls in consensual unions. Secondly, it could be that teenage girls chose to get pregnant to make up for the loss of marriage as a commitment device, which in turn could have resulted in a consensual union thereafter. Thirdly, girls who were pregnant during the time of the legal reforms could have also been coerced into entering a consensual union post-pregnancy as marriage was no longer an option.

In order to differentiate between the three potential mechanisms at play, I draw from a Child Labor Module (MTI) survey which contains nationally representative information on the marital statuses of girls below 18. Specifically, I analyze if the law had an effect on the probability of a girl being in a consensual union. The results suggest that the law decreased the probability of a girl being in a consensual union, indicating that the first channel is unlikely. This is because if the law had pushed girls into consensual unions, one should see an increase in the probability of a girl being in one, which is not what is observed. More importantly, this implies that the latter two channels are possibly responsible for the rise in teenage birth rates.

Altogether, the findings imply that while minimum marriageable age laws are useful in curbing child marriage practices and increasing girls’ school attendance, they could have unintended consequences for adolescent fertility. If indeed the latter two channels are true, where girls are encouraged to have children earlier or are forced to enter consensual unions post pregnancy, girls would be left even less protected than before in cases related to domestic violence for example. Over the last decade, states across Mexico began to allow domestic violence as grounds for divorce and introduced unilateral and no-fault divorce where proof for cause and mutual agreement was no longer required. Therefore, because minimum marriageable age laws obstruct girls’ access to such marriage-related rights that could enhance their well-being, they may be subject to even greater susceptibility in certain situations.

Lastly, my results also confirm that the rise in teenage birth rates was driven by girls from lower socio-economic classes (those who are lowly educated, in domestic work, have 1 or more existing children, or are unemployed). The intuition behind this finding is that poorer girls are more likely to choose the pregnancy path to gain commitment and financial support from their partners, given their low income earning potential. Altogether, this further suggests that marriage age law reforms may disproportionately affect vulnerable and economically disadvantaged girls by perpetuating the cycle of poverty and leaving them less protected from domestic violence, among other things.

It should be noted that the aim of this study is not to disregard the benefits of minimum marriageable age laws in enhancing girls’ welfare. My results show that Mexico’s marriage age law reforms were effective in mitigating child marriage rates, increasing the probability of girls attending school and also decreasing the likelihood of girls entering both formal and informal unions at a young age. Altogether, these outcomes have long-run positive effects on girls’ human capital accumulation, health and nutrition, among other factors.

Audrey Au Yong Lyn
 Ludwig-Maximilian University of Munich (Economics)

 

Gender And Mental Health

TW: references to sexual violence and abuse and gender binary.

Women are about twice as likely as men to develop depression (Kuehner C 2003), which is a very disabling disease. But, how can we explain the gender gap in depression?

Would it be because of a difference between “female” and “male” brain? By exploring cutting-edge neuroscience, the neuroscientist Gina Rippon claimed the need to move beyond this binary view of brains , suggesting that we need to see them as highly individualised and profoundly adaptable (Rippon G. 2019). Human brain development is not just a biological matter: other factors influence it, including “gender”. Epigenetic studies have highlighted that genes predisposed to mental health disorders could be modulated by environmental factors and phenotypically express as ‘internalising or externalising disorders, according to gender’ (Kuehner C. 2017).

Sexual hormones are believed to contribute to the gender gap in depression. Recent evidence suggests that a variation in the levels of ovarian hormones, especially the reduction of estrogens, may contribute to the prevalence of depression and anxiety in women (Albert P.R. 2015). However, other factors seem to interact with hormones. For example, female adolescents’ high susceptibility to depression could be mainly linked to the interaction of sex hormones with intrapersonal and interpersonal factors, such as a negative self-perception due to body changes, stress related to puberty, even sexual abuse (Kuehner C. 2003, Graber J.A. 2013). Could it be possible that, in a (Western) society where the “dominant observing eye” is male, the physical change that occurs during puberty would expose girls to distress and embarrassment, as well as to the sense of a loss of control on their own bodies which are sexualised and objectified? Then, to what extent do feelings of judgement and pressure  increase the risk of body dissatisfaction and discomfort in interpersonal relationships?

Another factor to be considered is ‘neuroticism’, a personality trait defined as a tendency towards negative feelings following frustrations and stress. Neuroticism is a recognised risk factor for depression (Klein D.N. 2011), and females score higher in neuroticism than males (Costa P.T. Jr 2001). May this have something to do with the gendered education of children? During childhood, for instance, girls show a conspicuous tendency to self-control and impulse inhibition compared to boys (Else-Quest N.M. 2006) and low self-esteem and insecurity (Bian L. 2017).

A fundamental determinant for women’s health is gender violence, which is recognised not only as a human’s rights violation but also as a global health problem (UN General Assembly 1979, Council of Europe 2011). Women who are victims of violence are twice as likely to experience depression (WHO 2013). Interesting evidence is that psychological domestic violence can be as damaging for mental health as physical violence (Pico-Alfonso M.A. 2006). International guidelines (WHO, NICE) recommend that mental health professionals are adequately trained about this issue and facilitate the disclosure of domestic violence, offer support and safety, avoid pathologising and medicalising suffering, provide treatment for physical and mental disorders resulting from violence (WHO 2013, NICE 2014). Some studies (Humphreys C. 2003, Trevillion K. 2014) have found that, in the context of violence, psychiatric symptoms could be better interpreted as understandable chronic anxiety of further abuses, even if they satisfy the criteria for a mental health disorder diagnosis.

Social determinants of health must therefore  be considered in contributing to the gender gap in depression. The levels of gender equity in a society, which are measured as political participation, economic autonomy and reproductive rights, have an effect on the gender gap in depression. In the USA, women living in states with lower gender equity showed higher depressive symptoms than women living in states with better gender equity (Chen Y.Y. 2005). Same results were found in Europe (Van de Velde S. 2013). Social determinants don’t act as independent factors but interact with each other to affect health; therefore, intersectionality (Crenshaw K. 1989) must be always practised. In general, poverty is a social determinant influencing negatively mental health. Moreover, many factors are responsible for the feminization of poverty: fthe gender pay gap, reduced number of women at the leadership job positions, unpaid care work, and women’s employment discontinuity (Freixas A. 2012). Being employed generally represents a protective factor for mental health. However, a study on a sample of Dutch adults (Plaisier I. 2008) showed that paid work was a protective factor for the development of depression among all men and among women but without children. Although the increased number of women working, the sharing of housework remained often unchanged. Performing multiple social roles, which is characteristic of the so-called ‘ female condition’, causes stress and responsibility overload that negatively affect women’s mental health (Bambra C. 2009). A study on a sample of Canadian women (Glynn K. 2009) highlighted a negative correlation between role overload and mental well-being, more significant than that of other social determinants. With regards to paid job, a report in the UK carried out over a 3 year period (2014-2017) showed that the prevalence of job-related stress, depression and anxiety, was statistically superior among women than among men (Health and Safety Executive 2017). It is not surprising due to the striking discrepancy between women and men in the workplace (World Economic Forum 2017).

Alongside this, women experience a higher percentage of episodes of everyday sexism than men, being everywhere victims of comments and behaviours that reflect and strengthen gender stereotypes, degrading and humiliating comments and behaviours, sexist language, sexual objectification (Swin J.K. 2001). Everyday sexism negatively affects women’s psychological well being, causing feelings of anger, discomfort, sadness, anxiety, low self-esteem (Swim J.K. 2001) and increasing stress, anxiety and depression (Foster M.D. 2000, Borrell C. 2011). In addition, a moderately strong relationship between the experience of everyday sexism and post-traumatic stress disorder in women was reported (Berg S.H. 2006). The perceptions of gender discrimination partially explained the gap between working men’s and women’s mental health in the United States (Harnois C.E. 2018). Everyday sexism produces a chronic perception of being discriminated and constantly judged, therefore undermines self-esteem, causes social anxiety, determines chronic stress with a further weakening of mental health. In addition, since everyday sexism is widespread and repeatedly perpetrated, can be interiorised and affect women’s sense of agency. Benevolent sexism, which is often unnoticed, must be tackled too.

It must be said that a psychiatric gender-sensitive evaluation may increase the diagnosis of depression among men (Cavanagh A. 2017). It is recognised that depressed males are more likely to report externalised symptoms, such as alcohol abuse, substance abuse, reduced impulse control, risky behaviours. Social expectations, different for women and men, play a role in the perception and expression of depressive symptoms; for instance, depressed men may consider alcohol or substance abuse as a more gender-appropriate way to express suffering than cry or being sad (Ridge D. 2011). Furthermore, it is known a general scarce men’s tendency to seek professional help at mental health service (Pederson E.L. 2007, Gouwy A. 2008). Among men, levels of stigma for seeking professional mental health help is high in terms of both social and personal stigma (Nam S.K. 2013, Vogel D.L., 2011). This could be related to traditional gender norms which would encourage men to repress mental health problems, reduce emotional expression, considering asking for help as a feminine activity and a sign of weakness and lack of virility (Johnson J.L. 2012). Even women “perform” gender norms giving different advice depending on sex. Moreover, it seems that the patient’s gender would influence the diagnosis and treatment proposed by (female and male) doctors (Loring M. 1988).

The “gender gap” in depression should be interpreted according to a multifactorial perspective, in which social determinants, psychological factors and socialisation process play an important role. The gender factor itself, which is prescriptive and normative, affects mental health. An interesting theory (Bem S.L. 1974) showed that people who were able to move from “masculine” to “feminine” behaviours depending to contexts, called “androgyny”, were psychologically more adaptive than people who strictly align to stereotypes of masculinity and femininity. A study (Juster R.P. 2016) found that androgyny people reported higher self-esteem and well-being as well as less depressive symptoms, regardless of sex. The question, then, is whether the deconstruction of gender stereotypes, coupled with  education against gender discrimination, can play a role in improving people’s mental health?

The answer, undoubtedly, is yes.

Bibliography

Ilaria Galizia 

Ilaria Galizia completed a degree in Medicine and Surgery and specialised in General Adult Psychiatry. She also obtained a Master’s degree in Gender Studies and Politics, writing a dissertation about the impact of gender as a risk factor for depression. She has worked as a visiting researcher at the Psychological Medicine Department of King’s College London, collaborating with Cochrane Collaboration. As a clinician, she gained experience working at Mental Health Services in Italy. During her clinical activity, she has always maintained a gender and intersectional approach. Ilaria has a very keen interest in investigating the impact of gender on mental health. She is a member of the Global Health 50/50 where she is currently working on the GH5050 journal review.

Legislative approaches to rape in the EU: Conclusions

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which was made fully available on our website (along with a complete bibliography of works cited) on June 17th 2019.

The EU comprises 27 EU Member States, 21 of which have ratified the Istanbul Convention and all of which are contracting member states of the ECHR. Few have national rape legislation that complies with the international standards outlined in comprehensive and important legal instruments, despite their obligations under both the Istanbul Convention and the ECtHR’s binding interpretations of the ECHR.

One of the most important sticking points is the definition of rape. As outlined in Part One, comprehensive international guidelines and treaties call for consent-based standards in rape and sexual assault legislation, yet only seven EU Member States have legislation that defines rape based on consent. International instruments also outline the need for tailored victim support services, yet not all Member States have adequate provision for victims. Specifically, the Istanbul Convention requires rape to be defined as a violation of bodily autonomy, yet the language of morality and decency persists in some countries’ definitions of the crime. Europe has work to do.

Importantly, there are some examples of good practice among Member States. Sweden’s new approach is one to watch; victim-centred and responsive to civil society advocacy, Sweden’s model will show in the years to come how a consent-based approach can be implemented in a civil law jurisdiction. As regards common law jurisdictions, the UK provides a good legal standard, despite not having ratified the Istanbul Convention.

Having an affirmative consent-based standard for rape is critical. This standard provides a threshold for rape that responds to trends in contemporary moral thinking on sexual violence. Introducing elements of force, violence, threat, or power into the definition of rape creates room for courts to misinterpret these elements, and compels victims to show resistance to such force or threats in order to carry the burden of her case. Force, violence, threat, and abuse of power can be evidence of non-consent, but should not be per se elements of rape. Indeed, the ECtHR has noted that “there is a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse [and] the evolution of societies towards effective equality and respect for each individual’s sexual autonomy”[1] – let us embrace this trend. Consent is at the heart of what constitutes rape; consent should be the baseline definition for rape.

To achieve this, countries must bring their national legislation in line with the instruments that bind them: treaties such as the Istanbul Convention, and international tribunals such as the ECtHR. Another path to achieving this goal is through a legally binding instrument at EU level. The EU has recognised its current lack of authority in this domain, which suggests the need for corrective action:

“At the moment, the EU policy against violence against women at large is based on Council conclusions, resolutions of the Parliament, and Commission strategies. However, none of these documents are legal instruments which bind the Member States to make a change for women.”[2]

It must not be forgotten that legislation is but a step in effectively tackling violence against women. There is gap between what the law requires, and how police and prosecutors choose to go forward. The road from first reporting a rape to seeing a conviction is long and complex in all countries, with many stages at which a case can be abandoned or fall apart. With respect to legal definitions, the law might not need a showing of force or resistance on the part of the victim but prosecutors typically won’t choose to go forward in the absence of these elements. Legislation is important, but a multifaceted approach to criminal justice in this field is essential to tackling the endemic levels of rape and violence against women in Europe.

[1] M.C. v. Bulgaria, ¶163

[2] European Parliament DG IPOL, p.41

Legislative Approaches To Rape In The EU: Outlining Case Study Examples

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

 

You can read the introduction to this case study here

The third section of this report will comprise five case studies that explore existing rape legislation in five Member States: the UK, Sweden, France, Italy, and Poland. All five of these countries are signatories to the Istanbul Convention; only the UK has not ratified the Convention.

 

3.1: The UK

Three common law jurisdictions make up the UK: England and Wales, Scotland, and Northern Ireland. All three jurisdictions have clear legislation on sexual offences, and have passed legislation on consent that is clearly in line with an affirmative consent model. Three major Acts of Parliament outline the relevant legislation of each jurisdiction: the Sexual Offences Act 2003 for England and Wales,[1] the Sexual Offences (Scotland) Act 2009 for Scotland,[2] and the Sexual Offences (Northern Ireland) Order 2008 for Northern Ireland.[3]

Legislation on rape across the UK’s jurisdictions is compliant with international standards: rape is criminalised, it is framed as a depravation of bodily autonomy, and the definition of rape is grounded in consent. Consent must be affirmative.

 

3.1.1: England and Wales

Rape legislation

The Sexual Offences Act 2003 (SOA) is the primary legislation regarding VAW in England and Wales. Rape carries a maximum sentence of life imprisonment and is defined thus:

A person commits rape if “he intentionally penetrates the vagina, anus, or mouth of another person with his penis” and the victim “does not consent to the penetration” nor is there any reasonable belief of consent.[4]

This presents a change from previous law which was only concerned with vaginal penetration; now, both women and men may experience rape under the SOA. Notably, a person who commits the offence of rape must be male, as rape is defined with respect to penal penetration.

If penetration is by something other than a penis then the offence is an assault by penetration. A person commits assault by penetration when he “intentionally penetrates the vagina or anus of another person with a part of his body or anything else, the penetration is sexual, [the victim] does not consent to the penetration” and there is no reasonable belief of consent.[5] This offence is just as serious as rape as it still carries a maximum sentence of life imprisonment.[6]

Sexual assault is a separate offence, committed when a person “intentionally touches another person, the touching is sexual” and there is no consent or reasonable belief of consent.[7]

Consent

Consent is crucial to all three of these offences and is defined in the SOA. A person consents to an act “if he agrees by choice, and has the freedom and capacity to make that choice.”[8] The SOA lists situations in which consent is presumed to not be present, including if the complainant is asleep or unconscious, if the complainant is unable to communicate consent because of a physical disability, if the defendant has incapacitated the complainant through a substance, and if the defendant uses force or threats.[9] Further, caselaw in England and Wales has now established that consent can be rescinded at any time.[10]

Other criminalised sexual offences under the SOA include:

  • Sexual activity with a child or in the presence of a child – §§ 9-10
  • Abuses of positions of trust in connection with sexual activity – §§ 16-19 and 30-33
  • Taking indecent photographs of children – § 45
  • Trafficking – §§ 57-59
  • Incest – § 64-65
  • Exposure – § 66
  • Voyeurism – § 67

Impact

Not only is affirmative consent defined in law in England and Wales, but new guidance for prosecutors was introduced in 2015 which stressed the importance of requiring defendants to explain how they obtained consent.[11] This guidance requires defendants to explain to police and prosecutors how they knew that the complainant was consenting, and that the consent was freely given in circumstances in which she was able to consent.

Despite the absence of a requirement of force, threat, or violence in the SOA’s definition of rape, the reality is that prosecution is unlikely to proceed in the absence of these elements.[12] This raises questions regarding implementation; defining progressive legal standards and enforcing them are separate inquiries, and point to the necessity of proper police and prosecutor training on sexual offences standards.[13]

With regards to victim support structures in England and Wales, several charitable organisations provide services for victims that meet the requirements of the Istanbul Convention. One of the main victim support organisations is the Rape Crisis network. Rape Crisis Centres across England and Wales provide services to victims, such as mental health care and legal support, and promote the needs of women and girls who have experienced sexual violence. Rape Crisis is supported by the government: it receives both government funds and private charitable donations.[14]

It must be noted that in spite of comparatively strong legislative grounding, many British women do not feel adequately supported by rape laws in England and Wales, or that the English legal system and its actors are equipped to manage sexual offences.[15] Rates of reporting, conviction, and attrition are discouraging, and legal protections tend to overlook and leave behind the most vulnerable women, such as immigrant women. As such, in March 2019 the UK government announced a full review into how rape and sexual violence cases are handled across the criminal justice system. The changes that this review will bring remain to be seen.[16]

 

3.1.2: Scotland

Rape legislation

The major piece of Scottish legislation regarding rape is the Sexual Offences (Scotland) 2009 Act, which defines rape thus:

A person commits rape if, with his penis, he “penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth” of another without their consent and without reasonable belief of consent.[17]

Section 1 goes on to define penetration as “a continuing act from entry until withdrawal of the penis”, and specifies that both “penis” and “vagina” include surgically constructed anatomy. Again, rape must be committed by a male, but legally victims of rape can be both men and women. Rape carries a maximum sentence of life imprisonment.

Just as in England and Wales, penetration by an object constitutes the separate offence of sexual assault by penetration, and it still carries a maximum sentence of life imprisonment. Sexual assault by penetration is committed when a person “penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus” of another with “any part of [their] body or anything else,” without consent or a reasonable belief of consent.[18]

The offence of sexual assault makes it a crime for a person to do any of the following without consent or a reasonable belief of consent:

  • Sexually penetrate the vagina, anus, or mouth.
  • Sexually touch the victim.
  • Engage in any other form of sexual activity which results in physical contact with the victim directly, though clothing, with a part of the body or an object.
  • Ejaculate semen onto the victim or urinate on the victim sexually.[19]

The Sexual Offences (Scotland) Act also criminalises the following acts:

  • Sexual coercion – § 4
  • Communicating indecently – § 7
  • Sexual abuse of trust involving children or mentally disabled persons[20]
  • Administering a substance for sexual purposes – § 11
  • Incest[21]
  • Sexual exposure – § 8
  • Voyeurism – § 9

Consent

Consent is defined as “free agreement.”[22] The Act explicitly provides that consent can be withdrawn at any time, that consent to conduct does not of itself imply consent to any other conduct,[23] and it lists circumstances where consent is presumed to be absent.[24] These include when a person is intoxicated to the point of being unable to consent, when a person is asleep, when violence or threats have been used, and when the only expression of consent is from a person other than the complainant.

Impact

Of the Act, the European Women’s Lobby says that it represents a positive change in how rape is defined in Scotland compared to previous legislation pre-2009, not least by including male rape for the first time.[25] However, only 24% of reported rapes reach court in Scotland, which the European Women’s Lobby argues is partly due to the major barrier of corroboration. Scottish law requires corroboration for all crimes, and the nature of rape makes it difficult to meet this requirement.[26]

Similarly to England and Wales, Rape Crisis is one of the primary networks for rape victims in seeking support in Scotland. Partly government-funded and partly supported by charitable donations, Rape Crisis Scotland provides essential services and support to victims of sexual assault.[27]

 

3.1.3: Northern Ireland

Rape legislation

In Northern Ireland, sexual offences are defined in the Sexual Offences (Northern Ireland) Order 2008. Rape carries a maximum sentence of life imprisonment. Just as in England and Wales, rape is defined thus:

A person commits the offence of rape if “he intentionally penetrates the vagina, anus, or mouth of another person with his penis” without the victim’s consent to penetration or a reasonable belief of consent.[28]

The offences of assault by penetration and sexual assault are also defined identically to how they appear in the SOA.[29] Northern Ireland takes an identical approach to consent to England and Wales.

The European Women’s Lobby argues that in spite of legislative protections, prosecution rates for rape in Northern Ireland “remain disgracefully low,”[30] illustrating the importance of going beyond legislation to address educational, social, and cultural factors in tackling VAW.

 

3.2: Sweden

Rape legislation

Moving on to civil law jurisdictions, Sweden’s penal code defines rape with respect to voluntary participation.

As of July 2018, a person commits rape under Swedish law when he “carries out sexual intercourse or some other sexual act that in view of the seriousness of the violation is comparable to sexual intercourse with a person who is not participating voluntarily[31] (emphasis added). Rape carries a mandatory minimum sentence of two years, and a maximum of six years’ imprisonment.[32]

This definition of rape is incredibly current, and is one of the few consent-based definitions to be found in European civil law rape legislation.[33] Prior to July 2018, Chapter 6, § 1 of the Swedish penal code defined rape by the presence of violence or threat: “A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse […] shall be sentenced for rape.”[34] In removing the requirement of violence or threat by the perpetrator, Sweden proposed – in the words of the government – “the introduction of sexual consent legislation that is based on the obvious; sex must be voluntary.”[35]

Importantly, this new legislation also introduced the offences of ‘negligent rape’ and ‘negligent sexual abuse.’[36] These offences concern the intent of a person accused of rape, and occur when the perpetrator reasonably should be aware of the risk that the victim is not voluntarily participating but nevertheless engages in sexual activity. Negligent rape is punishable by a maximum of four years in prison. The introduction of this offence represents a welcome recognition of different situations in which consent is silent but not given; the test for negligent rape is whether a person could and did take all reasonable steps to determine whether consent was actually given. Adapting legislation to recognise liability for negligent is a new departure in rape law going beyond current international standards, responds to current debates about standards of proof for establishing consent, and sets a new high bar for other countries to follow.

Sweden’s penal code defines sexual assault other than rape thus: “A person who carries out a sexual act not referred to in Section 1 with a person who is not participating voluntarily is guilty of sexual abuse and is sentenced to imprisonment for at most two years.”[37]

Consent

Sweden’s new definition of rape is entirely consent based. Its language closely mirrors that of the Istanbul Convention and other international standards. The Swedish government summarises the core idea of the legislation thus: “Sex must be voluntary – if it is not, then it is illegal.”[38]

In assessing whether sexual participation is voluntary or not under the revised Swedish penal code, “particular consideration shall be given to whether the voluntariness was expressed through words or deed or in some other way.”[39] The penal code provides some examples of what is not considered voluntary participation. Notably, a person is never considered to be participating voluntarily if their participation is in response to violence or threats, the person is unconscious, asleep, bodily injured, in grave fear, intoxicated, or under the influence of drugs, or if the perpetrator “seriously abusing the person’s position of dependency on the perpetrator.”[40]

Certain attendant circumstances can reduce or augment the seriousness of a rape offence, which has an impact on the maximum sentence that can be served. For example, if the offence is considered gross (considering circumstances such as whether the perpetrator was physically violent, if there was more than one perpetrator, or if the victim was young), the perpetrator can be imprisoned for up to ten years. Consequently, the language of violence and threats has been retained in the revised penal code, but is now an attendant circumstance that can aggravate the crime of rape and not a required element.

Impact

In introducing a consent-based standard, the Swedish legislature responded to long-standing campaigns in Swedish civil society. According to the Swedish National Council for Crime Prevention, the first decade of the new millennium saw an increase in the number of reported sexual offences, which has been attributed to an increase in crime and a rising trend of reporting.[41] Accordingly, activist movements sought to pursue legislative change that could tackle the prevalence of rape in Sweden. The EWL already noted in 2013 that there was an active movement across lawyers, women’s organisations, and civil society to amend Swedish rape law according to the consent standard described in the Istanbul Convention.[42] In discussing the legislative change, the Swedish government sought to design its legislative modification to respond to the increasing incidence of sexual violence in Sweden and this civil society movement.[43]

To this end, as part of the 2018 legislation, the legislature tasked the Swedish Crime Victim Compensation and Support Authority with running information and education campaigns on sexual offences. These campaigns, which primarily target young people, seek to make all victims aware of their rights and to encourage them to report.[44] The Compensation and Support Authority was also tasked with producing an online training course and a teachers’ guide. Its activities are running for three years and are government funded. Engaging schools, producing information campaigns, and publicising rights under the new laws represent excellent practice. Not only do Sweden’s new laws recognise every person’s right to bodily autonomy and sexual freedom, but Sweden’s approach beyond the legislation itself respects and enforces the Istanbul Convention’s guidance on civil society engagement and victim support. Given how new the legislation is, it remains to be seen how it will be enforced.

 

3.3: France

Rape legislation

The primary legislation on rape in France is the French penal code. The rape of an adult is a crime, punishable by 15 years’ imprisonment. Rape is defined as “Any act of sexual penetration, of whatever nature, committed by violence, constraint, threat or surprise.”[45] This means that any one of violence, constraint, threat, or surprise must be present for a person to legally be raped. French law makes clear that it includes rape by a husband or civil partner in its definition.[46]

French penal law outlines attendant circumstances under which a sentence greater than 15 years’ imprisonment can be imposed. For example, rape committed on a vulnerable person is considered an aggravating circumstance to the crime, as is marital rape, gang rape, or incest, and all are punishable by 20 years’ imprisonment.[47]

Sexual assault is a secondary crime in France, and is defined as “any sexual infringement committed with violence, constraint, threat or surprise”[48] and is punishable by a 5 year sentence.[49]

Consent

There is a notable absence of consent in France’s definition of rape. Legally defining rape based on the presence of violence, as opposed to the absence of affirmative consent, is not conform with the international standard outlined in Part One. This is especially noteworthy as France has ratified the Istanbul Convention, which outlines an affirmative consent model.

Impact

France’s definition of rape has resulted in some holdings that have shocked French and international communities, and which seem out of place in the post-#metoo era.

In 2017, the cour d’assises of Seine-et-Marne acquitted a 22-year-old man accused of raping a girl aged 11 because he did not meet the legal definition of rape. The girl’s family only learned of the rape when they discovered that she was pregnant. The man has since been convicted by the Paris cour d’assises and sentenced to a prison term of seven years.[50] Similarly, a court in the Val d’Oise reduced the charge of man accused of raping an 11 year-old-girl from rape to sexual assault, because the legal requirements for rape could not be met.[51]

These cases, which caused outrage and drew international media attention, raised many questions about the definition of rape in France and the lack of consent as the baseline standard where minors are concerned. France did not, and does not, have a minimum age of consent to sexual intercourse. Consequently, no matter the age of the victim, the requirements of penetration by violence, constraint, threat or surprise must be met. This is especially concerning when the government’s own Gender Equality Office notes that young women and children are the population most at risk from sexual assault and rape in France.[52]

Many civil society actors thus drew on these cases to advocate for the establishment of statutory rape with a minimum age of consent. President Emmanuel Macron’s minister for gender equality, Marlène Schiappa, proposed tackling this by explicitly removing the requirements of violence, constraint, threat or surprise for the penetration of a person under 15. After much controversy in summer 2018, the loi Schiappa, which would have established statutory ‘sexual assault with penetration’ in France, was not passed. Thus, although France retains the age of 15 as the threshold for statutory sexual assault (without penetration),[53] there is no statutory rape under the French penal code.[54] There has been no movement in the legislature to progress to a consent-based standard for the rape of an adult.

The European Women’s Lobby notes that many rape cases in France are not fully prosecuted because of prevalent stereotypes and ‘rape myths’ in the French judiciary.[55] Many rape cases are dismissed (sans suite) and others are sent to non-criminal courts where there are not judged as crimes but rather as sexual offences; consequently, many victims do not receive adequate compensation or have proper recourse to justice through the French legal system. Indeed, the number of rape convictions has dropped by 40% in the ten-year period from 2006 to 2017.[56]

With respect to social services and support, resources are scarce in France. Victims of rape and sexual assault rely on NGOs to provide services such as confidential telephone lines to give information and guidance to victims.[57] There is no national rape crisis service or support beyond NGOs, and legal support is limited. The European Women’s Lobby also argues that social services do not have the means to effectively help victims in France.[58]

 

3.4: Italy

Rape legislation

Italy is unusual in its legislative approach to rape in that it doesn’t define this crime separately from other forms of sexual assault. Article 609bis of the Italian Criminal Code states:

“Whoever, by force or by threat or abuse of authority, forces another person to commit or suffer sexual acts shall be punished with imprisonment from five to ten years.”[59]

Italy uses the term “sexual acts” to cover various forms of sexual violence. Further clarity on the elements of force, threat, or abuse of authority is provided in the legislation: Article 609bis condemns those who induce another person to commit or suffer sexual acts by abusing the conditions of physical or mental inferiority of the victim at the time of the act, or misleading the victim through hiding their identity.[60]

Outlined in Article 609ter, attendant circumstances to rape include:

  • Using weapons or substances dangerous to a victim’s health (including alcohol),
  • Deceiving a victim by feigning to be a public official exercising official duties, and
  • Taking advantage of a victim’s physical or mental infirmity.[61]

Italy explicitly recognises statutory rape. Article 609 defines two forms of “violenza presunta”, where there is no requirement to show the elements of threat, force, or abuse of authority. Firstly, Italy recognises statutory rape when the victim is under the age of 14. Secondly, Italy finds statutory rape when a victim is under the age of 16 if the offender is the victim’s ascendant, parent (including adoptive parents), guardian, or any other person into whose care the victim has been entrusted.[62]

Italy also explicitly recognises the crime of ‘group sexual assault’. When more than one person participates in acts of sexual violence as defined under Article 609bis, each perpetrator is to be sentenced to six to twelve years’ imprisonment.[63]

Notably, in February 1996, sexual violence ceased to be a “crime against public morality and decency” and was fully recognised as a “crime against the person”.[64] Feminist movements in Italy had been campaigning for such a change for over 20 years.[65] The move away from a crime of public morality towards one of bodily autonomy, as per the Istanbul Convention, represents an important step forward for Italian legislation.

Consent

The Italian definition of rape is not consent based, but requires a showing of force, threat, or abuse of authority. This does not conform with international standards on consent, much less with the Istanbul Convention’s guidance of affirmative consent.

With respect to statutory rape, Italy does make one consent-based exception to this strict liability provision: it has adopted a close-in-age exemption. This type of exemption, otherwise known as a ‘Romeo and Juliet law’, prevents the prosecution of underage couples who engage in consensual sex when both parties are close in age to each other, and one or both are below the age of consent.[66] This is designed to prevent the prosecution of underage consensual sex as statutory rape.

Impact

The lack of a legal definition specifically for rape in Italy is highly concerning. As noted in Part One of this paper, it is difficult to begin to address the prevalence of rape if the act itself cannot be defined separately to other related acts. A crime that is undefined cannot be prosecuted; notice of legality is one of the founding principles of criminal law.

Italy has seen many high-profile and controversial rape cases, and activists on this subject remain very vocal. One such case, which highlights the country’s complex and problematic relationship with sexual assault as a subject matter, concerns a court ruling which suggested that a woman cannot be raped if she is wearing tight jeans; the court reasoned that tight jeans could not be removed without the help of the wearer, thus suggesting a lack of force or threat.[67] Though much discussed in the public arena, Italy’s rape laws are yet to be modernised.

As regards victim protection, Italy’s 1996 reform to rape legislation included provisions to protect the privacy of a victim pursuing prosecution. Within these provisions, Italy criminalized the divulgence of personal details or images of a rape victim, making this offence punishable by three to six months’ imprisonment.[68] Further, the Italian Code of Criminal Procedure provides that victims may request their sexual assault trial be partially or completely closed to the public, though – with the exception of minors – there is no guarantee that such a request will be granted.[69]

In conformity with international standards, the prosecution is not permitted to question a victim on her sexuality or sexual history unless the prosecution can show that it is necessary for the reconstruction of the facts of the case.[70]

 

3.5: Poland

Rape legislation

Rape is an offence against public decency and sexual freedom in Poland and is punishable by a term of imprisonment between two and twelve years.[71] Poland’s definition of rape is similar to Italy’s in the standard it sets and the language used. Under Article 197 of the Polish Criminal Code, a person commits rape when “by force, illegal threat or deceit, [he] subjects another person to sexual intercourse.”[72]

Within this same Article, the Polish legislature notes some special circumstances which have a bearing on the sentences available for the court to impose:

  • If the perpetrator makes another person submit to a sexual act or perform such an act, he can be imprisoned for a term between six months and eight years.
  • In cases of group rape, rape of a minor (under 15 years of age), or incest or parental abuse, a perpetrator can be imprisoned for a minimum term of three years.
  • If the perpetrator acts with particular cruelty, he can be imprisoned for a minimum term of five years.[73]

Poland thus provides for statutory rape, and the aggravating circumstances of gang rape, abuse of authority, and particular cruelty, though naturally the latter necessitates a moral judgment in the place of a legal rule.

Importantly, rape is not classed as a crime of deprivation of bodily autonomy in Poland. Rather, it is included in Chapter XXV of the Penal Code Offences against Sexual Liberty and Decency, and appears alongside such crimes as forced prostitution and adultery.[74]

Consent

Poland’s definition is another example of rape legislation that does not take consent as its basic standard. Poland requires a showing of force, illegal threat, or deceit to convict a person for rape. Further, EWL notes that often, Polish legislation is interpreted to raise expectations that a woman should use active resistance against a person attempting to rape her in order to make her a credible victim.[75]

Impact

Poland has a low number of reported rapes for its large population size. For example, in 2011 1,748 cases of rape were reported for a population of 38 million.[76] This is unlikely to suggest that rape rates in Poland are uncommonly low; according to the EU Fundamental Rights Agency (FRA), 10-19% of Polish women have experienced sexual and/or physical violence since the age of 15.[77] This low reporting level thus is more likely to point to issues inherent in the prosecution of rape and the perception of sexual violence in Poland. Exceedingly burdensome procedures, an inadequate system of compensation for victims, and the stigma associated with sexual assault could be alternative explanations for such low reporting figures.[78]

On the subject of victim compensation and protection, the EWL notes that in spite of its obligations under the Istanbul Convention, Poland has few victim support structures in place and no basic standards of training for police and prosecution in working with sexual assault cases.[79] In 2013, the Sejm (the Polish Parliament) passed provisions that were designed to protect victims from retraumatisation: a victim could henceforth be interrogated only once, in the presence of a psychologist, and the interview would be recorded.[80] Though centring the needs of the victim is an important step, Poland remains far from the standards outlined in the Istanbul Convention.

Poland includes rape in the chapter of its Criminal Code dealing with sexual liberty and decency, not the chapter on “Offences Against Life and Health.” The EWL posits that this may suggest rape is a violation of social and cultural norms in Poland, and not seen as a threat to women’s life and health.[81] Although Poland’s legislation links rape to “decency”, the relevant chapter also treats sexual liberty. The issue would seem to be more that Poland treats sexual liberty and decency as part of the same legislative family, and less that rape is included in this chapter. As made clear in the international instruments discussed in Part One supra, sexual liberty and autonomy should be disassociated from societal moral judgments. This is especially pertinent in Poland, where societal values remain heavily influenced by religious conservatism.[82]

[1] England and Wales, Sexual Offences Act 2003, <www.legislation.gov.uk/ukpga/2003/42/contents>

[2] Scotland, Sexual Offences (Scotland) Act 2009, <www.legislation.gov.uk/asp/2009/9/contents>

[3] Northern Ireland, Sexual Offences (Northern Ireland) Order 2008, <www.legislation.gov.uk/nisi/2008/1769/contents>

[4] Sexual Offences Act 2003, § 1(1)

[5] Ibid., § 2(1)

[6] Ibid., § 2(4)

[7] Ibid., § 3(1)

[8] Ibid., § 74

[9] Ibid., § 75(2)

[10] R v. DPP and “A” [2013] EWHC 945 (Admin) <https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/f-v-dpp-judgment.pdf>

[11] See Crown Prosecution Service, ‘What is consent?’ available at <www.cps.gov.uk/publications/equality/vaw/what_is_consent_v2.pdf>; Crown Prosecution Service, ‘Rape and Sexual Offences Legal Guidance’, available at <www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/>

[12] MC v. Bulgaria, ¶141

[13] For an example of good practice in this domain, see Case Study 3.2: Sweden, infra.

[14] See Rape Crisis England and Wales <https://rapecrisis.org.uk/>

[15] See, for example, Lizzie Dearden, ‘Justice system in ‘crisis’ as only 8% of crimes prosecuted in England and Wales’, The Independent, (25 January 2019), available at <https://www.independent.co.uk/news/uk/crime/crime-statistics-uk-justice-prosecution-rates-rape-victims-disclosure-police-funding-a8747191.html?fbclid=IwAR2tkPLgNmIKG35Be4IlBVtPNvrHFA6llCkVoeTmPUZKYMzT_CyaNV20Pu4>; Alexandra Topping, ‘Rape prosecutions plummet despite rise in police reports’, The Guardian, (26 September 2018) <https://www.theguardian.com/law/2018/sep/26/rape-prosecutions-plummet-crown-prosecution-service-police>; and Loulla-Mae Eleftheriou-Smith, ‘Rape victims facing ‘humiliating questions about clothing and sexual history during trials, MP reveals’, The Independent, available at <https://www.independent.co.uk/news/uk/crime/rape-sexual-history-assault-cross-examine-trial-court-voices4victims-plaid-cymru-mp-liz-savile-a7570286.html> [accessed 05/03/2019]

[16] UK Home Office, ‘Government sets out key measures to tackle violence against women and girls’, (6 March 2019), available at <https://www.gov.uk/government/news/government-sets-out-key-measures-to-tackle-violence-against-women-and-girls>

[17] Sexual Offences (Scotland) Act, § 1

[18] Ibid., § 2

[19] Ibid., § 3

[20] Scottish Government, ‘Information and help after sexual assault’, (2016) <https://www.gov.scot/publications/information-help-rape-sexual-assault/pages/7/>

[21] Ibid.

[22] Sexual Offences (Scotland) Act, § 12

[23] Ibid., § 15

[24] See Ibid., §§ 13-14

[25] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: UK, (Brussels: EWL, 2013), p.1

[26] Ibid.

[27] See Rape Crisis Scotland <https://www.rapecrisisscotland.org.uk/>

[28] Sexual Offences (Northern Ireland) Order, § 5

[29] See Ibid., § 6 and § 7 respectively.

[30] EWL, Barometer on Rape: UK, p.1

[31] Regeringskansliet, Ministry of Justice Sweden, Swedish Penal Code, Chapter 6 § 1, (unofficial translation), <https://www.government.se/4a95e7/contentassets/602a1b5a8d65426496402d99e19325d5/chapter-6-of-the-swedish-penal-code-unoffical-translation-20181005>

[32] Ibid.

[33] Other civil law countries with consent-based definitions include: Belgium, Cyprus, Germany, and Iceland.

[34] Regeringskansliet, Ministry of Justice Sweden, Swedish Penal Code, Chapter 6, § 1, (translated by Norman Bishop), <https://www.government.se/contentassets/5315d27076c942019828d6c36521696e/swedish-penal-code.pdf>, p.24

[35] Government Offices of Sweden, ‘Consent – the basic requirement of new sexual offence legislation’, (April 2018), available at <https://www.government.se/press-releases/2018/04/consent–the-basic-requirement-of-new-sexual-offence-legislation/>

[36] Swedish Penal Code, Chapter 6, § 1(a)

[37] Ibid. § 2

[38] Ibid.

[39] Ibid., § 1

[40] Ibid.

[41] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Sweden, (Brussels: EWL, 2013), p.1

[42] Ibid.

[43] Government Offices of Sweden

[44] Ibid.

[45] France, Code pénal, Art. 222-23, <https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006417678&cidTexte=LEGITEXT000006070719> (translated by author).

[46] Service-public.fr, ‘Viol d’une personne majeure’, (19 décembre 2018), available at <https://www.service-public.fr/particuliers/vosdroits/F1526>

[47] France, Code pénal, Art. 222-24

[48] Code penal, Articles 222-22 and 222-27 (translated by author).

[49] France has three levels of unlawful activity which increase in severity and punishment: the least severe is a contravention, then a délit, then a crime. Rape is a crime and sexual assault is a délit.

[50] Martine Bréson, ‘Viol d’une enfant de 11 ans : l’homme d’abord acquitté aux assises condamné à sept ans de prison en appel’, France Bleu, (28 November 2018), available at <https://www.francebleu.fr/infos/faits-divers-justice/viol-d-une-enfant-de-11-ans-en-appel-sept-ans-de-prison-infliges-a-l-homme-qui-avait-d-abord-ete-1543389369>

[51] Marjorie Lenhardt, ‘Val d’Oise : un homme de 28 ans jugé pour une relation sexuelle avec une fillette de 11 ans’, Le Parisen, (12 February 2018), available at <http://www.leparisien.fr/val-d-oise-95/montmagny-relation-sexuelle-a-11-ans-le-consentement-au-coeur-du-proces-12-02-2018-7555485.php>

[52] Secrétaire d’Etat chargé de l’égalité entre les femmes et les hommes et de la lutte contre les discriminations, ‘Enquête virage : viols et agressions sexuelles en France – premiers résultats’, (November 2016), available at < https://www.egalite-femmes-hommes.gouv.fr/publications/droits-des-femmes/lutte-contre-les-violences/premiers-resultats-de-lenquete-virage-violences-et-rapports-de-genre/>

[53] Code pénal, Art. 227-26

[54] Critically, a lot of the controversy around this law surrounded the fact that the statutory ‘sexual assault with penetration’ of a person under 15 years of age was classified as a délit and not as a crime, thus undermining the severity of the act.

[55] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: France, (Brussels: EWL, 2013), p.1

[56] Ministère de la Justice, ‘Bulletin d’information statistique, no 164’, (September 2018), available at <http://www.justice.gouv.fr/art_pix/stat_Infostat_164.pdf>

[57] See Collectif féministe contre le viol <https://cfcv.asso.fr/>

[58] EWL Barometer on Rape: France, p.1

[59] EIGE, ‘Legal Definitions in the EU’

[60] Ibid.

[61] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Italy, (Brussels: EWL, 2013), p.1

[62] Ibid.

[63] Ibid.

[64] Ibid.; EIGE ‘Legal Definitions in the EU’

[65] EWL, Barometer on Rape: Italy, p.1

[66] ‘Age of Consent in Italy’, available at <https://www.ageofconsent.net/world/italy>

[67] Alessandra Stanley, ‘Ruling on Tight Jeans and Rape Sets Off Anger in Italy’, New York Times, (16 February 1999), available at <https://www.nytimes.com/1999/02/16/world/ruling-on-tight-jeans-and-rape-sets-off-anger-in-italy.html> replace with IT language piece and/or ruling itself if possible?

[68] EWL, Barometer on Rape: Italy, p.1

[69] Ibid.

[70] Ibid.

[71] Poland, Criminal Code (Poland) 1997, Kodeks karny, Dz.U. 1997 Nr 88 poz. 553, Chapter XXV, <https://www.legislationline.org/documents/section/criminal-codes/country/10>

[72] EIGE

[73] EIGE, ‘Legal Definitions in the EU’

[74] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Poland, (Brussels: EWL, 2013), p.1

[75] Ibid.

[76] Ibid., p.2

[77] FRA, p.18. The FRA notes that this figure is likely to be a conservative estimate.

[78] For more on these issues, see EWL, Barometer on Rape: Poland, p.2 and GenPol, Can Education Stop Abuse? Comprehensive Sexuality Education Against Gender-Based Violence, (Cambridge: GenPol, 2018)

[79] EWL, Barometer on Rape: Poland, p.2

[80] Ibid.

[81] Ibid., p.1

[82] For more on this, see GenPol, Chapter 1.

Legislative Approaches To Rape In The EU: Overview of EU Members States

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

You can read the introduction to this case study here

Despite comprehensive international guidelines and binding legal instruments as outlined in Part One, many EU Member States’ legislation on VAW is lacking. Most Members States recognise the issue of VAW, and have national action plans against VAW, but what is classified as VAW is not always consistent with the international standards outlined supra. These differences result in different approaches to criminalising behaviour associated with VAW; what is a crime in one Member State is not necessarily so in another. For example, in 2015 marital rape had still not been criminalised in Bulgaria, Hungary, Latvia, Lithuania, Poland, and Slovakia.[1]

Broadly speaking, domestic physical violence and sexual violence (including rape) are the main forms of VAW punishable by law in Member States. Domestic psychological violence, sexual harassment, and FGM are generally punishable in different ways depending on the Member State.[2]

Not all EU Member States have ratified the Istanbul Convention. Of those that have, most have more to do to be entirely compliant with the Istanbul Convention’s rape provisions, as will be seen infra. The power of the Convention has not yet transformed into a strong, uniform legislative standard on rape across the European Union.

Figure 1: EU Member States that have ratified the Istanbul Convention

 

2.1: Rape legislation

Most Member States do not define rape based on a lack of consent, in spite of international agreement on a consent-based standard.[3] A detailed and comprehensive 2018 report from Amnesty International notes that the vast majority of EU countries have legal definitions of rape based on the exitance of certain circumstances – force, duress, and coercion.[4] Commonly, the use of force and coercion is used to distinguish between rape and lesser offences such as sexual assault or sexual intercourse without consent, meaning that an element of force is necessary in order for a crime to be prosecuted as a rape, as opposed to the defining element of rape being the absence of consent.

As will be seen in Part Three, many EU countries have laws which require the physical resistance of a victim in order to prove rape, a stance from which Germany, for example, has just removed itself: prior to November 2016, German legislation required a victim to have physically resisted in order to prove rape.[5] Attendant circumstances such as the victim’s age, disability, or the perpetrator’s relationship to the victim can also be factors in defining rape across Europe. To illustrate, in Finland, if a victim is aged between 16 and 18 and the perpetrator is in a position of authority over the victim (for example, as a schoolteacher) then Finnish law classes this situation as sexual abuse, and not as the harsher offence of rape. As a result, perpetrators in such situations get lesser sentences than perpetrators of rape.[6]

There are movements in some countries, especially in the wake of the #MeToo movement, to adopt consent-based definitions of rape. For example, recent high-profile rape cases in Spain involving multiple perpetrators are paving the way for Spanish legislation to recognise sex without consent as rape.[7]

Although the Istanbul Convention, ECtHR caselaw, and other international legal instruments require that rape and assault be defined as crimes against a person’s body and privacy, the sexual violence laws of several Member States are still framed in the language of honour and morality. In Malta, sexual offences fall under the chapter of “Crimes affecting the good order of families”; in Belgium and Luxembourg, rape is a “crime against the order of families and public morals”; in the Netherlands, rape is an offence against “public morals.”[8] Such language is worrying; framing rape in this way perpetuates harmful stereotypes about women’s bodily autonomy and sexuality.

 

2.2: Consent

In all but seven of the 33 countries that have ratified the Istanbul Convention, the legal definition of rape is not in line with the Convention’s consent-based definition. Only Belgium, Cyprus, Germany, Iceland, Ireland, Luxembourg and Sweden define rape based on a lack of consent.[9] The role of activists and civil society will be instrumental in pressuring legislators to amend rape laws and definitions according to the Convention, as seen in Sweden: the legal definition of rape was changed to be consent-based in May 2018, after years of activism from women’s rights groups.[10] The three common law jurisdictions under the Convention (England and Wales, Scotland, and Northern Ireland) all have consent-based definitions of rape, but the UK is yet to ratify the Convention.

With respect to defining consent itself, Europe has a lot of work to do. Although international standards in the Convention and other bodies outline an affirmative consent model, Member States generally use other markers to establish a lack of consent.[11] Notably, the negative consent (‘no means no’) model is still predominant.

The difference between affirmative consent and the ‘no means no’ model is critical in establishing consent and thus defining the scope of crimes for which consent is required. The Istanbul Convention’s implementation mechanism, GREVIO, noted as much in their assessment of Austrian rape legislation: “there is […] a difference between sexual acts committed against the will of the victim (Austrian legislation), and non-consensual sexual acts (the Convention).”[12] One relies on negative consent, the other requires affirmative consent.

In outlining a negative consent model, many Member States still rely on the presence of force to establish a lack of consent, which necessitates victim resistance to show that force was used. This is incredibly harmful. As Amnesty International notes, “there should be no assumption in law or in practice that a victim gives her consent because she has not physically resisted the unwanted sexual conduct regardless of whether or not the perpetrator threatened to use or used physical violence.”[13]

Interestingly, the ECtHR suggests that even those countries that do not have a consent-based legal definition tend to give deference to the consent standard: “it is significant […] that in case-law and legal theory lack of consent, not force, is seen as the constituent element of the offence.”[14] This begs the question: why not adopt a uniform consent-based legal standard?

Figure 2: EU Member States that have a consent-based definition of rape

 

2.3: Victim support

Most Member States have some form of protective measures in place for victims of sexual violence and rape. Further, many Member States have specialist services and structures for victims, such as rape crisis centres, shelters, or refuges.[15] Such structures tend to be partly state-funded, and party dependent on donations.[16] In Northern Ireland, for example, victims can opt to be accompanied to the police station or to court by staff or volunteers of the country’s partially state-funded rape crisis centres, and staff often prepare complainants for court proceedings. The Nordic countries go even further: in Denmark, Finland, and Sweden, complainants have access to free counsel.[17]

Deterrents to reporting still need to be removed in many Member States. The UN’s CEDAW Committee notes that legal barriers to reporting crimes of sexual violence are an important factor in discouraging women from reporting, and lists examples of the various laws that act as deterrents to prevent women from seeking justice:

“All laws that prevent or deter women from reporting gender-based violence, such as guardianship laws that deprive women of legal capacity or restrict the ability of women with disabilities to testify in court, the practice of so-called “protective custody”, restrictive immigration laws that discourage women, including migrant domestic workers, from reporting such violence, and laws allowing for dual arrests in cases of domestic violence or for the prosecution of women when the perpetrator is acquitted […]”[18]

An example of good practice in removing such barriers can be found in Scotland: in April 2017, a Scottish legislative amendment introduced a duty on judges to provide the jury with instructions on rape myths and preconceptions in cases where there was a delay in reporting and when there was no physical resistance or force.[19]

 

Sources Cited

[1] European Parliament, ‘Parliamentary questions – rape within marriage’, (online question session, 2015) <http://www.europarl.europa.eu/doceo/document/P-8-2015-004211_EN.html?redirect> [accessed 08/01/2019]

[2] European Parliament DG EPRS, p.7

[3] See Part One supra; Amnesty International, pp.10-12

[4] Ibid., p.12

[5] Amnesty International, p.10

[6] Ibid., p.12

[7] Notably, the so-called La Manada case in Pamplona caused many protests because the perpetrators were found guilty of the lesser offence of sexual abuse, and not the more serious offence of ‘sexual aggression’, because they did not meet the legal standard for sexual aggression. In Spanish law, sexual aggression requires violence or intimidation, which the court did not find was present in this case.

[8] Amnesty International, p.14

[9] Ibid., p.9

[10] See Part Three, § 3.2 infra.

[11] Amnesty International, p.10

[12] Group of Experts on Action against Violence Against Women and Domestic Violence (GREVIO), Baseline Evaluation Report Austria, (Strasbourg, Council of Europe, 2017) available at <http://www.rm.coe.int/grevio-report-austria-1st-evaluation/1680759619> ¶141

[13] Amnesty International, p.6

[14] M.C. v. Bulgaria, ¶159

[15] European Parliament DG IPOL, p.40

[16] Amnesty International, p.18

[17] Ibid., p.16

[18] CEDAW, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, CEDAW/G/GC/35, ¶29(b)(iii)

[19] Amnesty International, p.16

International Overview Of Legislative Approaches To Rape In The EU

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

You can read the introduction to this case study here

1.1: Overview of legal instruments

The EU has no binding legal instrument specifically designed to tackle the unacceptable levels of rape in the region. While the EU and its member states have shared competencies in tackling some forms of VAW (such as human trafficking), member states have sole competence in fighting VAW, including rape.[1] Consequently, there is an array of different legislative definitions of rape in the EU, discrepancies in the criminalisation of rape, and varying protections afforded to victims of this crime. Indeed, the European Institute for Gender Equality (EIGE) starkly exposes such variation in its online database which lists the different definitions of various forms of VAW in member states.[2] Member States recognise the problem of VAW in general, but have adopted non-uniform approaches to the solution, resulting in non-uniform protections afforded to European women.

There are, however, a number of different statutory frameworks and bodies that protect women and girls from rape and sexual assault in Europe, both binding and non-binding. Relevant sources of law include:

  1. The European Convention on Human Rights (ECHR).
  2. Caselaw from the European Court of Human Rights (ECtHR).
  3. Guidelines from structures such as the UN and the International Criminal Court (ICC).
  4. EU treaties and directives.
  5. The Council of Europe Convention on preventing and combatting violence against women and domestic violence (Istanbul Convention).

International human right standards with respect to rape are largely clear and consistent between these different bodies.[3] This report will map the legal definitions and standards provided with respect to rape, measures regarding victim protection, and requirements for prosecution of rape as a crime.

1.2: The European Convention on Human Rights

The European Convention on Human Rights (ECHR) contains four articles that protect a woman’s right to be free from gender-based violence:

  1. Article 2 protects the right to life.
  2. Article 3 prohibits the degrading treatment of another.
  3. Article 8 protects the right to private and family life.
  4. Article 14 prohibits discrimination on the grounds of sex.[4]

Parties to the ECHR must uphold these rights and where they have been violated, citizens of Party states can pursue legal action up to the European Court of Human Rights. Importantly, articles 2 and 8 are affirmative rights, endowing these protections in all citizens. The ECHR provides human rights standards recognised by Parties to be common to all citizens, of which rape and its improper prosecution is a clear violation.

1.3: The European Court of Human Rights

Caselaw from the European Court of Human Rights (ECtHR) demonstrates how the ECHR is applied with respect to rape. Decisions from the ECtHR govern diverse legal systems and cultures, as they govern the 47 contracting member states to the ECHR.

With respect to defining rape, the ECtHR has established a clear consent-based standard. In its landmark decision, M.C. v. Bulgaria (2003), the Court found that rape is penetration without consent, and that consent must be given voluntarily and by free will. Further, it established that a lack of violence, force, or resistance from a victim cannot be used to establish consent.[5] Although criminal law is the mandate of individual nations, this instrumental decision sent out a clear message from the Court than non-consensual activity, and not force or victim resistance, is the grounding for finding sexual assault.

Importantly, the Court ruled that the Bulgarian prosecutors had violated Articles 3, 8, and 13 of the ECHR when they dropped this case without a full investigation because of insufficient findings of the use of force in the incident that the applicant described. The Court held that parties to the ECHR who used an element of force in defining rape in national criminal law must extend their definitions of force to encompass coercive circumstances. Further, this ruling held that the ECHR must be interpreted to require the prosecution of any non-consensual act, irrespective of the presence of force or threats.[6]

The Court has also established standards regarding victim protection. In Y v. Slovenia (2015), the Court found that the seven-year gap between the applicant’s sexual assault complaint being filed and the pronouncement of the first-instance judgment constituted a violation of Slovenia’s procedural obligations under Article 3.[7] Article 3’s prohibition of inhuman or degrading treatment incorporates a requirement of promptness; parties to the ECHR cannot impermissibly delay proceedings. The Court also held that improper cross examination of victims in rape cases violates Article 8 of the ECHR. Here, the accused had cross examined the applicant himself, intimidating and humiliating her, which the Court found violated the applicant’s personal integrity during proceedings given the sensitivity of the subject matter.[8]

1.4: The EU

The EU does not have a specific binding instrument designed to prevent rape or to protect women from violence. Crime prevention being a Member State competence, the EU has established legal instruments in different areas in which women can be victims of violence and where there is a cross-border element, because this is where the EU has the strongest competence for crime-related action.[9]

Some of the EU instruments that incorporate space for tackling various forms of VAW include:

  1. Article 2 of the Treaty on European Union mandates respect for gender equality in Member States.[10]
  2. Article 4 of the Treaty on the Functioning of the European Union provides possibilities for the EU to develop measures to combat VAW with the Member States.[11]
  3. The Charter of Fundamental Rights of the European Union is legally binding when implementing EU law.[12]
    1. Article 3 prohibits discrimination based on gender.
    2. Article 4 prohibits inhumane and degrading treatment of another.
  4. With respect to victim protection, two EU directives impose standards on Members States that victims of VAW can benefit from. EU directives are binding in the sense that they specify the results that all Member States must achieve, but they do not specify how members states must achieve these results. Member States are left to transpose Directives into national law, which gives them substantial leeway on what they choose to adopt from Directives and thus endows Directives with less force than the aforementioned legal instruments.
    1. The Victims’ Directive – Directive 2012/29/EU – obliges Member States to support victims of crime and their family members. It also gives victims of all crimes the right to remain informed throughout the prosecution process. Article 9 of the Directive specifically incudes protection and support for victims of sexual and gender-based violence, obliging Member States to provide “targeted and integrated support for victims with specific needs, such as victims of sexual violence, victims of gender-based violence and victims of violence in close relationships, including trauma support and counselling.”[13]
    2. The European Protection Order can also be beneficial to victims of VAW as it expands national protection orders across member state borders.[14]

The EU has a number of monitoring mechanisms in place to track adherence to these measures, notably through the EU Fundamental Rights Agency and the European Institute for Gender Equality. On the whole, though, the EU has little legislative power in this area. Monitoring mechanisms and the exchange of best practices cannot be compared to the legal obligations under binding European instruments such as its treaties. To be truly effective in this field, the EU needs to recognise VAW as a discrete issue that requires a binding instrument specifically dedicated to its elimination.[15]

1.5: International Tribunals and UN Guidelines

The ICC works with a comprehensive definition of rape, which includes “all non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object.”[16] With respect to consent, the ICC specifies that rape includes the bodily invasion of a person incapable of giving genuine consent.[17] These definitions centre the absence of consent in rape, and serve as important guidance for the international community on the elements of this crime. Relatedly, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) urges countries to define rape based on the absence of consent. We will see this emerge as a theme across international standards on rape, and one to which few EU Member States abide.

The International Criminal Tribunal for the former Yugoslavia has also outlined a consent-based standard for rape. In Prosecutor v. Kunarac (2001), the Chamber observed that “sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it.”[18]

As regards victim protection, the UN Handbook for Legislation on VAW contains some important recommendations. These include free legal aid for victims (especially in criminal proceedings), specialist in-court support for victims, and provisions to ensure that victims of VAW are protected when testifying, such as not having to meet defendants when appearing in court, in camera proceedings, and testifying via videolink.[19] The Handbook also recommends that evidence of survivors’ past sexual history never be introduced into criminal or civil proceedings.[20]

1.6: The Istanbul Convention

The Council of Europe Convention on preventing and combatting violence against women and domestic violence (Istanbul Convention) is by many measures the most important legislative instrument in the European region with respect to tackling VAW. Comprehensive and legally binding, it is the first treaty to outline minimum standards on criminalising VAW, consent, and victim protection. All Parties to the convention are bound to take appropriate legislative steps to comply with it.

1.6.1: Criminalisation

The Istanbul Convention outlines the scope of violence against women and is an excellent point of reference for the current international standard to which most EU Member States, if they have ratified the Convention, are bound.[21] Articles 33-42 specifically recognise 8 different forms of VAW and give specific information on the measures that Parties must take to tackle them. The Convention is premised on the understanding that these forms of violence are committed against women because they are women. States having ratified the Convention are obliged to fully implement it, which requires taking measures to prevent VAW, to protect its victims, and to prosecute its perpetrators. National legislation that is not in line with the Istanbul Convention must, therefore, be changed.

Article 36 of the Istanbul Convention concerns rape. It requires the criminalisation of:

  1. The “non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object”;
  2. “Other non-consensual acts of a sexual nature with a person”;
  3. The “causing [of] another person to engage in non-consensual acts of a sexual nature with a third person.”

Article 36 then goes on to specify that it also applies to acts committed against former or current spouses or partners, and Article 43 further specifies that Article 36 applies irrespective of the nature of the relationship between the perpetrator and the victim. This is a comprehensive and progressive definition of rape.

Importantly, the Istanbul Convention requires that rape and sexual assault be defined as crimes against a person’s body, autonomy, and privacy. This conception is in line with ECtHR decisions anchoring rape as a violation of the ECHR, and not as crimes against morality, social order, or honour.[22] In approaching rape as a crime of bodily violence, the Convention centres women, their experiences, and the unacceptable violation of their bodies in the criminalisation of rape. The primary harm caused by rape is to a person, usually a woman, and this should be recognised in all national legal definitions of the crime.

1.6.2: Consent

Article 36 of the Istanbul Convention defines rape by a lack of consent. Consequently, the Convention’s conceptualisation of consent is important; Article 36(2) states that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.”

The Explanatory Report to the Convention expands on this definition, stating that a case by case assessment to determine consent is required. Further, it mandates that interpretations of rape legislation not be influenced by stereotypes and myths about male and female sexuality.[23]

Notably, the Convention does not provide a definition of consent that Parties must adhere to, opting instead to provide guidelines on a context-sensitive assessment of consent. Indeed, the Explanatory Report notes that it is “left to the Parties to decide on the specific wording of the legislation and the factors that they consider precluding freely given consent. Paragraph 2 [of Article 36 of the Convention] only specifies that consent must be given voluntarily as the result of the person’s free will, as assessed in the context of the surrounding circumstances.”[24]

The most important thing to note here, then, is the use of an affirmative consent model to guide Parties. Parties are encouraged to look for whether consent was freely given and expressed, as opposed to presuming consent in the absence of contrary information from the victim. This is the same standard used at the International Criminal Court.[25]

1.6.3: Victim protection

The Istanbul Convention also provides minimum standards with respect to victim protection that Parties must adhere to. Responding to ECtHR caselaw, Article 50 of the Convention requires that law enforcement respond “promptly” to cases and offer immediate protection to victims.[26] Importantly, investigations and judicial proceedings must be “carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.”[27] In line with the UN Handbook for Legislation on VAW, evidence related to the sexual history and conduct of the victim is not permitted, unless it is relevant and necessary.[28]

Under Article 20, Parties are also required to facilitate victim recovery. Parties must take necessary measures to ensure that victims have access to services including legal and psychological counselling, financial assistance, housing, education, training, and assistance in finding employment. Under this same article, parties must also take necessary measures to ensure that victims have access to health care and social services. The Council of Europe task force on combatting VAW recommends one rape crisis centre per 200,000 women and one counselling centre per 50,000 women.[29]

 Sources Cited:

[1] European Parliament DG IPOL, The Issue of Violence Against Women in the European Union, (Brussels: European Parliament, 2016), p.39

[2] EIGE, ‘Legal Definitions in the EU Member States’ <https://eige.europa.eu/gender-based-violence/regulatory-and-legal-framework/legal-definitions-in-the-eu>

[3] Collectively, the largely cohesive standard common to these international bodies will be referred to in Sections 2 and 3 as the ‘International Standard.’

[4] European Court of Human Rights and Council of Europe, European Convention on Human Rights, <https://www.echr.coe.int/Documents/Convention_ENG.pdf>

[5] M.C. v. Bulgaria [2003] 39272/98 <https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp>

[6] Ibid.

[7] Y v. Slovenia [2015] 41107/10 <http://hudoc.echr.coe.int/eng-press?i=003-5091847-6273156>

[8] Ibid.

[9] European Parliament DG EPRS, Violence Against Women in the EU: State of Play, (Brussels: European Parliament, 2018), p.6

[10] European Union, Treaty on European Union, Art. 2, <https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_on_european_union_en.pdf>

[11] European Union, Treaty on the Functioning of the European Union, Art. 4, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN>

[12] European Union, Charter of Fundamental Rights of the European Union, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN>

[13] European Union, Directive 2012/29/EU, Art. 9 § 3b <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012L0029&from=en>

[14] European Parliament DG IPOL, p.33

[15] The European Parliament has acknowledged as much, see European Parliament DG EPRS.

[16] Amnesty International, Right to be Free From Rape, (London: Amnesty International, 2018) p.6

[17] International Criminal Court, Elements of Crimes, PCNICC/2000/1/Add.2 (2000), Art. 7(1)-(g)1(1) <http://hrlibrary.umn.edu/instree/iccelementsofcrimes.html>

[18] Prosecutor v. Kunarac [2001] IT-96-23-T <http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf>

[19] United Nations Department of Economic and Social Affairs, Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, (United Nations: New York, 2010), pp.40-43

[20] Ibid.

[21] All EU Member States are signatories to the Istanbul Convention; seven are yet to ratify it. See the full list on the Council of Europe website <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures>

[22] See also UN Women, Handbook for Legislation of Violence Against Women, (UN Women: New York, 2012), p.12

[23] Council of Europe, Explanatory Report to the Council of Europe Convention on preventing and combatting violence against women and domestic violence, (Istanbul: Council of Europe, 2011), ¶192

[24] Ibid. ¶193

[25] International Criminal Court, Rules of Procedure and Evidence, UN Doc ICC-ASP/1/3 (2002), Rule 70(a)-(c) <https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf>

[26] Istanbul Convention, Art. 50

[27] Ibid., Art. 49

[28] Ibid., Art. 54

[29] Council of Europe Task Force to Combat Violence Against Women, including Domestic Violence (EG-TFV), Final Activity Report, (Strasbourg: Gender Equality and Anti-Trafficking Division, 2008), available online at <https://www.coe.int/t/dg2/equality/domesticviolencecampaign/Source/Final_Activity_Report.pdf> p.84

GenPol Newsletter

Sign up to receive updates on our research and advocacy work (Read our privacy policy here)

Contact

If you would like to find out more about our research, advocacy and consultancy work, we warmly invite you to get in touch. We are not advertising for vacancies at the moment. Please note that we may not able to respond to unsolicited applications.

Contact Info

Gender & Policy Insights (10783588)
Registered address: 11 Peterhouse Mews
High Street Chesterton
CB4 1UW Cambridge
United Kingdom

GenPol is also a registered Italian charity (1269/3)
GenPol e' un'associazione culturale registrata
Registered address: via Schipa 91
80122 Naples
Italy