Alyssa Ahrabare, a lawyer specializing in fundamental rights, serves as Advocacy Manager for the European Network of Migrant Women. As a feminist activist, she also holds the positions of Vice President of the French Coordination for the European Women's Lobby and Coordinator of the working group 'Dare Feminism! Europe'." Alyssa is also a trainer on access to fundamental rights for migrant women, feminist education on sexual and emotional life, and gender-based and sexual violence. She provides consultancy to organizations on their advocacy strategies.
The mentioned directive emerged in response to the difficulties the European Union faced in acceding to the Istanbul Convention. Certain EU member states within the Council blocked this accession for years, particularly those EU member states that had not ratified the Convention themselves. This situation was overcome when the Luxembourg court decided that unanimous agreement among states was not necessary for the EU’s accession to the Convention. As a result, the European Union ratified the Istanbul Convention in June 2023 following a vote by the European Parliament. On June 1, 2023, the Council adopted two decisions specifying the ratification process. The decisions explicitly state that the EU will only adhere to the Convention for matters falling under its exclusive competences, following common rules agreed upon in the areas of judicial cooperation, asylum, and non-refoulement. The Convention came into force for the EU on October 1, 2023.
The proposed directive on combating violence against women and domestic violence by the European Commission includes a chapter on the criminalization of offenses (harmonizing criminal definitions and establishing minimum sentences), including rape (Article 5) and certain forms of online violence (Articles 7 to 10). Other chapters address prevention, victim support, and access to justice. Since March 2022, the European Parliament has actively collaborated with civil society to propose amendments, expanding the text to include the criminalization of workplace sexual harassment, the protection of migrant women, and broader definitions of certain offenses.
However, the EU Council, representing member states, significantly restricted the Commission’s proposal, even eliminating the criminalization of rape, arguing that there was no legal basis, no EU competence to legislate on this crime. This argument, repeatedly countered by the legal services of the European Parliament, does not appear satisfactory. It seems that a lack of political will, coupled with the fear of some member states that the scope of Eurocrimes could de facto expand (granting more power to the EU at the expense of state sovereignty), is truly behind this highly controversial stance. Some elements have been accepted, such as the legal basis for workplace sexual harassment, forced marriage, and ‘cyber-flashing.’
In the current phase, the trilogues involve negotiations between the Parliament, the Council, and the Commission to reach compromises on different versions of the text. Concerns are arising about the Council’s limitations on the definitions of certain crimes, particularly for online violence, where there is a significant legal gap at both national and European levels.
Through its work on the text, the Council rejected specific provisions regarding the adaptation of victim support services to the specific needs of migrant women. It also eliminated the mention of the gender-specific dimension of violence against women and removed essential elements, such as EU-wide harmonization of disaggregated data collection with indicators such as gender and age, a crucial measure to ensure the design and implementation of effective evidence-based public policies.
These shortcomings raise concerns about the potential effectiveness of the directive, especially in the face of expanding online violence. Ongoing work within the trilogues will be crucial to achieving a balanced final text, taking into account the concerns of the Parliament, civil society, and ensuring adequate protection of women’s rights, including migrant women.
Firstly, within the Council, there is a considerable diversity of positions among the member states. Over the past decade, the European Union has expanded in terms of the number of states and in the functioning of the EU itself. There has been a process of renationalization, meaning that member states, concerned about having to agree with states with a different legal culture, positioned themselves for increased influence within the EU Council and the European Council.
Some divisive issues within the draft directive, such as the inclusion of rape, depend on the stances of different states. Among the blocking states, we have member states with a large population, thus carrying significant weight within the EU Council, such as France and Germany, whose roles are prominent in the negotiations.
The second issue, regularly cited by the blocking states, is that of the legal basis. The EU has a certain number of competences that are exclusive, shared, or special. In its areas of competence, several principles apply. Concerning the definition of crimes, the EU can only act in the field of “Eurocrimes” listed exhaustively in the Treaty on the Functioning of the EU. These fields, defined notably due to their particular severity and transborder dimension, include, for example, corruption, money laundering, cybercrime, and the sexual exploitation of women and children. The Eurocrimes within which the proposed directive falls for the definition of offenses are the sexual exploitation of women and children and cybercrimes. However, according to the Council, rape and several other offenses such as sexual assaults would not fall within the definition of sexual exploitation, and thus, the criminalization of rape in this text would be devoid of a legal basis.
There is a real debate here since the legal services of the Commission and the European Parliament do not agree and have developed contradictory arguments. A few years ago, the European Union had already addressed child rape in the directive of December 13, 2011, on combating sexual abuse and sexual exploitation of children and child pornography. In this directive, children are considered particularly vulnerable, and the notion of exploitation is characterized. Concerning women, the Council argues that the condition of vulnerability not being met, the crime of rape cannot be understood as falling within the scope of sexual exploitation. It is a genuine legal debate, indeed, but it also reflects a lack of political will because the law is a flexible and extremely interesting tool used in a flexible manner.
The last issue is the monetary aspect. Member states opposing data collection partly do so because it costs money, especially if the data must be disaggregated by various indicators. Not all states are willing to invest in combating violence against girls and women.
The role of civil society and associations is crucial.
The field of women’s rights and the fight against sexist and sexual violence is one of the few areas of public policy that is almost exclusively implemented by associations.
Associations do tremendous work with very little funding. The recent report from the Fondation des femmes specifies that only 0.001% of the French state budget is allocated to the care of victims of sexual violence, not to mention gender equality. Despite this observation, the EU Council, in its amendments, also erased parts of the proposed directive concerning cooperation, funding, and support for women’s rights associations.
The EU Council made the text less binding for member states by changing certain formulations to make them more flexible (for example, ‘States must’ at times becomes ‘States are encouraged to’). Other parts of the text have also been reduced by the Council, such as the section on prevention, public and youth awareness, and education on sexual and emotional life.
Considering the additions from the Parliament and the restrictions from the Council, negotiations are taking place based on texts that are very different from each other. Since the European Parliament voted on its version of the text in a plenary session in July 2023, trilogues have started, occurring once a month. Parliament’s rapporteurs and Council representatives meet to negotiate and try to find compromises for a final text.
The reality is that the EU Council is blocking negotiations by refusing any compromise on many issues deemed essential by the European Parliament, such as the criminalization of rape. We are, therefore, in a situation of deadlock, compounded by a certain opacity in the decision-making processes on the part of the EU Council. It is challenging to obtain information and influence the process.
Several civil society organizations at the European level, along with some members of the European Parliament, would like to expand the list of Eurocrimes and create a legal basis for violence against women, including rape. Opposition is numerous, including on technical grounds because it would require a revision of the Treaty on the Functioning of the EU. In the context of work on the proposed directive, the issue of the tight schedule arises because the European Parliament elections are approaching and will take place in June 2024. When there is a new term for the European Parliament, ongoing texts are generally put aside, and few of them are reconsidered by the new term. Thus, if an agreement is not reached by the end of January, the directive may never see the light of day.
We estimate that the chances of the directive being adopted are diminishing. There is a trilogue meeting tomorrow. At the moment, no agreement has been reached, particularly on the issue that crystallizes tensions: the criminalization of rape. Indeed, the European Parliament is very firm in its position, as publicly expressed in press releases. However, the Council, especially France and Germany, strongly reject the inclusion of Article 5 on the criminalization of rape. They have also rejected a compromise text on this issue proposed by the Spanish presidency of the Council. The upcoming presidency, Belgium, may try to propose a second compromise, but the more time passes, the more the chances of this directive coming to fruition diminish.
The Council of the European Union has imposed significant limitations on Articles 7 to 10 of the directive currently under discussion. Currently, the European Union is working on a project to regulate online content related to child exploitation, emphasizing that over 60% of such content is hosted in Europe. This makes the text crucial given the increase in this type of violence in recent years.
Concerning the reality of the digital space for women, significant risks of sexual violence exist, such as cyberflashing and the sharing of intimate images without consent. There is also an increase in cyberprostitution and ‘grooming,’ a technique targeting vulnerable individuals on the Internet, particularly girls, by pedocriminals and pimps. The proposed directive seeks to provide a legal framework to address the exponential growth of these dangers and fill the legal vacuum that makes the internet almost a lawless zone regarding the regulation of sexist and sexual violence. However, the EU Council, in its amendments, has introduced several limitations to the text proposed by the Commission. A hierarchy of online violence is established, stating that only the most serious offenses should be criminalized, without clarifying what this entails.
The first limitation concerns the concept of ‘serious harm’ introduced in Articles 7 to 10 and the recitals of the proposed directive. If adopted, this undefined concept would leave a broad interpretation to the judge and require the victim to prove their harm. A second limitation lies in the distinction between the private and public online space, reintroducing a notion fought against by the feminist movement, which has been advocating for decades to understand violence against girls and women as a societal, public order, and public health issue rather than private matters falling under the realm of intimacy. This distinction is particularly problematic and artificial in the digital space, given the practical impossibility of erasing content once published online.
A third restriction concerns freedom of expression, protected by the European Convention on Human Rights. The EU Council introduces it into the text of the directive, adding a second paragraph to Article 7 on the criminalization of sharing intimate images without the victims’ consent. According to the Council, sharing images without consent in the public digital space, causing serious harm to the victim, must still be balanced with freedom of expression, as well as academic, artistic, and scientific freedoms. Not only is this balancing act superfluous, as freedom of expression is already protected in existing legal frameworks, but it goes against the spirit and text of the ECHR, which states in Article 10 that freedom of expression can legitimately be balanced in a democratic society and in a proportionate manner in various cases, including to protect the rights and reputation of others. This approach by the EU Council elevates the traditional arguments of online perpetrators of sexist and sexual violence to a norm, further marginalizing the victims. Moreover, it crystallizes a paradigm shift: freedom of expression, traditionally understood in European legal culture as a means of protecting the expression of the ‘weak’ against the ‘strong,’ is now established as a barrier to combating sexist and sexual violence. France, within the EU Council, strongly supports these limitations.
