After many months of discussion, and due to the opposition of some member countries, this measure has disappeared. However, the issue of rape has crystallized the debate. For about a dozen European states, the Union would not have the competence to legislate in this matter. They argue that rape does not have the necessary cross-border dimension to be classified as a “eurocrime”.
The legislations of European countries differ in their definition of rape. In French law, rape is characterized by an act of penetration committed by “violence, coercion, threat, or surprise”. In Belgium, authorities went further in 2002 by defining rape as sexual intercourse without consent. Spain, on the other hand, stipulates that consent must be explicitly formulated.
Some Members of the European Parliament, from France and other Union countries, have criticized it. Raphaël Glucksmann (Place Publique), who sits within the group of Socialists and Democrats in the European Parliament, condemns it as “a disaster”. Civil society organizations have also condemned the French attitude. Amnesty International and Planned Parenthood believe that “France’s opposition endangers millions of girls and women”.
This view is shared by a dozen other NGOs, including Human Rights Watch, who have deemed it “unacceptable that some member states persist in not responding to the need to combat rape throughout the EU”. According to the Fondation des femmes, two-thirds of reported cases of sexual violence in France were dismissed in 2020. According to some legal experts, an international standard very close to this article already exists: Article 36 of the Istanbul Convention on violence against women, ratified by France in 2014. Now, the issue is at the center of attention.
This could lead to a fundamental reflection on the notion of consent, looking towards countries like Sweden or Canada, where laws have completely changed the landscape. François Lavallière, a magistrate and associate professor at Sciences Po Rennes, says, “This legislation alone is not enough; it would need to be transposed into domestic law and detailed, with a redefinition of rape in French criminal law”. Whether the measure is adopted or not, debates at the European level are a good start for François Lavallière. “Now, the issue is at the center of attention.
This could lead to a fundamental reflection on the notion of consent, looking towards countries like Sweden or Canada, where laws have completely changed the landscape.” In the systems of these two countries, the burden of proof has been reversed: the accused must demonstrate that the partner consented. Consent is free and must be expressed without doubt about its validity.