Today’s European Parliament’s adoption of its mandate for negotiations with the Council sends a strong message to Member States ahead of tomorrow’s first round of talks with the Council: the inclusion of Article 5 – consent-based definition of rape- is a red line for the Parliament.
The adoption of the EP’s mandate, without objections, was announced today by the main co-rapporteurs Frances Fitzgerald (EPP) and Evin Incir (S&D) at a press conference. The decision further strengthens the proposal by the European Commission and follows the strong MEPs’ endorsement on 28th of June 2023 at the joint session of the women’s rights and gender equality (FEMM) and civil liberties, justice and home affairs (LIBE) committees where the proposal was supported by a resounding majority with 71 votes in favour, 5 against and 7 abstentions. The approved text includes provisions the original proposal did not sufficiently tackle such as specialised support for women victims of VAWG, protection of children in the context of intimate partner violence, effective prevention, and early intervention, and coordinated implementation. WAVE welcomes this ambitious text and its active recognition of the crucial role that feminist civil society organisations and women specialist services have in the implementation of this Directive.
A Comprehensive Framework to Tackle VAWG and DV
The Parliament is proposing a comprehensive EU framework to effectively combat VAWG and DV that gives equal weight to provisions for prevention, protection, support, and access to justice. In doing so it revendicates that as a human rights violation and a structural form of discrimination against women, the measures needed to combat VAWG and DV must adopt a holistic approach. Therefore, the MEP’s proposal includes measures for effective prevention and early intervention, tackling gender stereotypes, and promoting age-appropriate comprehensive sexuality and relationship education and measures to empower women in all their diversity. In the area of protection, it recognises the gendered dynamics of VAWG and DV, including the secondary victimisation of children, and it introduces an expanded list of aggravating circumstances such as the victim’s pregnancy, residence status, and different forms of institutionalisation. Equally, it reduces obstacles in access to justice and guarantees victims access to free legal aid in a language they understand, emphasising the need for judges and prosecutors to avoid re-victimization.
The Gendered Understanding of Violence Against Women
The proposal caters to the specific needs of women and girls, given that they are disproportionately affected by the forms of violence covered under the Directive. Its recognition of the gendered impacts of VAWG and DV stems from the scope and definitions in the bill which allow the effective prosecution of rape, female genital mutilation, forced sterilisation, forced marriage, sexual harassment at work, sexual assault, and computer crime. Importantly, the Parliament’s text proposes a consent-based criminal definition of rape, therefore, amending outdated definitions of rape that exist in the national legislation of Member States and which centre on the use of force or threat of force by the perpetrator as opposed to the absence of consent by the victim.
In the area of victim support, the Directive’s clear distinction between generic and specialised support services, and the recognition that specialised service provision is best ensured by feminist organisations, in particular by Women’s Specialist Services (WSS), affirms the importance of a gendered approach to VAWG and DV. By making this differentiation, the proposal aligns with the Victim’s Rights Directive (2012/29/EU as well as with the recently acceded Istanbul Convention which also differentiates between general support services and specialist support services, underlining their complementarity.
Women’s Specialist Services Recognized as Key as Implementing Partners
WAVE welcomes the MEP’s political will to recognize the key role WSS plays in preventing and tackling VAWG and DV. WSS have for decades been agents of social, cultural, and political change promoting women’s equality and challenging the patriarchal system which is the root cause of VAWG. Not only do WSS provide vital services to women and their children, but they also serve as a laboratory for continuous innovation and development of practices and are the first to identify gaps in the access to justice and provision of services that impact survivors of VAW, as well as the first in identifying areas for improvement.
With the active inclusion of WSS in different provisions in this Directive, particularly in Articles 18, 20, 27, 31, 44 and 44a , the European Parliament is recognizing WSS as specialized service providers that empower and support women victims of VAW and DV, through a feminist and victim-centred lens, at all stages of the process, as well as vital partners to national governments, policymakers, and other stakeholders working to end violence against women.
Recognizing the Continuum of Violence and its Impact on Child Custody Proceedings
Importantly, the proposed Directive takes steps towards an integrated approach to VAWG in the context of intimate partner violence by recognizing the complex dynamics of abusive relationships in which violence against women extends to violence against children and upholds the need to protect children’s rights, including acting in the cases of secondary victimisation and children witnessing intimate partner violence (Recitals 26,27, 29, 31 and Article 33). Likewise, in the context of child custody proceedings, the Directive recognises that the best interests of the child should take precedence over the parental rights of an offender or suspected offender and that Member States shall ensure the safety of non-abusive holders of parental responsibility during the proceedings. Keeping these provisions in the text will ensure that children’s and women’s rights are protected and that adequate legislative measures are taken nationally so that justice is served and the tendency of inappropriate child custody proceedings in cases of DV ends.
The Council’s Position
The position on the proposed Directive adopted on June 9 by the Member States in the Council is far less progressive than that of the European Parliament. The rejection by national governments to include in the text a consent-based definition of rape (Art.5) is the most visible and disturbing of the differences between the Council and the Parliament versions, although it is not the only one. The Council also removed from the text the criminalisation of forced sterilisation and forced marriage, as well offences concerning sexual harassment in the world of work, unless it is already a criminal offence under national law. Regarding the assessment of victims’ need for protection, Member States reduced the instances in which protection and support measures can be granted and limited all prevention measures to the bare minimum.
Worryingly, the Council also weakened the role of specialist services as partners in the provision of support to victims of VAW and DV and it scrapped all mention of Women Specialist Services. Furthermore, the provision of specialist support for victims by civil society organisations is not contemplated in the Council’s text, therefore contravening Article 9 of the Istanbul Convention, and instead, it proposes that such services may be assumed to already be a part of the Member States’ healthcare system (see Article 28). This could lead to the dismantling and further defunding of rape crisis centres, and sexual violence referral centres, among other WSS.
Another area of disagreement is the measures concerning domestic violence. As MEP Incir stated at today’s press conference “Unfortunately in some member states, domestic violence is seen as a family matter. [However], violence is violence regardless of how well a woman or a child knows the perpetrator. In such cases, there is not such a thing as a family matter”. Nonetheless, Member States are failing to adequately uphold and protect the rights of children and women victims of VAW and DV by weakening the measures on the protection of children witnesses of intimate partner violence, and the defence of the best interest of the child over parental rights on an offender.
The Next Step: Interinstitutional Negotiations
With today’s decision, the European Parliament gives the green light to enter negotiations with the Council of the EU. However, a round of difficult debates lies ahead during the trialogues session, taking into consideration the Council’s position. Member States will try to push for minimum standards under the argument that their national legislation sufficiently advances gender equality. However, as said today by MEP Incir, “VAWG is not a crime that is different in different corners of the EU, […] it is a serious crime and it has the same effects wherever it happens. Therefore, unlike so many other pieces of EU legislation that require nuance to consider different national realities, this piece of legislation must seek to do the opposite, to ensure European values are upheld with the same standards in every corner of the Union. We need a feminist approach to this Directive.”
Undoubtedly, the next months will be crucial in the definition of the final text of this proposed Directive. The current differences between the two texts are significant and place the European Parliament and the Council of the EU at opposite ends of the debate on women’s rights in Europe. Much will need to be reconciled and the role of the European Commission will be of key importance in trying to bridge these differences because, as stated by Frances Fitzgerald today, “We need to take the pandemic of VAWG seriously in the EU […]; we need an EU Directive so that women can feel safe in every corner of Europe knowing that these crimes of VAWG will be taken extremely seriously, have proper sanctions, proper punishment, will be interrupted, and will be prevented.”
WAVE, as a strong network of 170 members in 46 European countries, representing approximately 1,600 Women Specialist Services in Europe, will continue to push nationally and at the EU level for a Directive that is up to the task of effectively preventing and combating Violence against Women and Domestic Violence in the European Union. We call on the EU Commission, the European Parliament, and the Council of the EU to engage in a dialogue that truly serves the needs of all victims of violence against women and domestic violence and that commits to the achievement of gender equality between women and men and the effective protection of victims’ rights in the European Union. WAVE will not accept a Directive that undermines the rights of women and girls and cements the regression of hard-achieved rights in our battle for gender equality.
The WAVE Network
 Article 18. Specialised individual assessment to identify victims’ protection needs; Article 20. Referral to support services; Article 27. General and specialist support to victims; Article 31. Helplines; Article 39. National Action Plans; Article 44. Data Collection and Research; Article 44a. Resources.