A long way to end rape in the European Union: Assessing the commission’s proposal to harmonise rape law, through a feminist lens
| Author | Carlotta Rigotti |
| DOI | http://doi.org/10.1177/20322844221100046 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(2) 153–179
© The Author(s) 2022
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DOI: 10.1177/20322844221100046
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A long way to end rape in the
European Union: Assessing the
commission’s proposal to
harmonise rape law, through
a feminist lens
Carlotta Rigotti
Vrije Universiteit Brussels, Belgium; Durham Law School, Durham University, UK
Abstract
On 8 March 2022, the European Commission presented a proposal for a Directive of the European
Parliament and of the Council on combating violence against women and domestic violence. Inter
alia, the proposal includes minimum rules on the definition of certain forms of violence again st
women and domestic violence, including rape. Building on a historical overview of what counts as
rape and on the legal context in which the European Commission has tabled the proposal, this
article will critically discuss whether the European Union (hereinafter: the EU) has the competence
to harmonise the crime of rape pursuant to Article 83 of the Treaty on the Functioning of the
European Union and what the desirable content of EU legislation in this field should be. For this
purpose, the article will use long-lasting, feminist scholarship as an analytical tool to address the
transformations that these feminist discourses have traditionally brought into rape law, stressing the
legal gaps that still need to be filled, and suggesting a possible new synergy between EU criminal law
and feminist scholarship and activism.
Keywords
Rape, gender-based violence, Article 83.1 TFEU, harmonisation, serious crime, cross-border crime,
sexual autonomy
Introduction
On 8 March 2022, the European Commission presented a proposal for a Directive of the Europe an
Parliament and of the Council on combating violence against women and domestic violence
Corresponding author:
Carlotta Rigotti, Vrije Universiteit Brussels, Pleinlaan 2, Brussel 1050, Belgium.
E-mail: Carlotta.Rigotti@vub.be
(hereinafter: the Commission Proposal).
1
Briefly, the Commission Proposal aims to criminalise rape
in the absence of consent, female genital mutilation, and certain forms of cyber viol ence. Moreover,
it seeks to strengthen the protection, access to justice and support of victims, as well as to prevent
violence against women and domestic violence and enhance coordination and cooperation across
the European Union (hereinafter: the EU or the Union).
At the heart of the Commission Proposal lies the idea that ‘violence against women and domestic
violence are matters of criminal law, violations of human rights and forms of discrimination.
Combating them is part of the European Commission’s action to protect the core EU values and to
ensure that the EU Charter of Fundamental Rights is upheld’.
2
The document goes on to dem-
onstrate that the incidence of violence against women and domestic violence is still dramatically
high across the Union and refers to the long-lasting commitment of the EU to combat them.
3
The Commission Proposal comes after the EU has struggled for years to get all the Member
States fully on board with the instruments adopted by the United Nations (hereinafter: the UN) and
the Council of Europe (hereinafter: the CoE) to curb violence against women.
4
Moreover, as in the
rest of the world, various waves of feminism have long tried to challenge and influence the social,
political and legal processes condoning violence against women and blaming its victims in Europe.
Most recently, the #MeToomovement has raised new awareness about the widespread prevalence of
violence against women, generating significant support for victims and shifting the blame on the
male offender. Simultaneously, it has ushered the criminal response to violence against women into
a new era, where sexual autonomy is starting to be considered a new legal interest to protect, and law
enforcement is seeking not to discount the credibility of rape victims’before court, as has tra-
ditionally been the case so far.
5
Against this backdrop, this article has a twofold aim. First, we seek to critically discuss whether
the EU has the competence to harmonise the crime of rape. Second, we aim to sketch what the
desirable content of EU legislation in this field should be. In doing so, the starting point of our
analysis is the above-mentioned Commission Proposal, while we look at the overall research
questions through a feminist lens. Because rape mostly affects women, feminist scholarship has
traditionally seen it in the context of the existing, unequal power relations between women and men
in society, while posing significant challenges to the way the law is used to treat rape and raising new
questions about its criminalisation. As a result, considering that the EU has also traced rape back to
the social issue of equality between women and men and gender equality has become a political
battlefield within the EU, it is our opinion that feminist scholarships can provide a useful, analytical
tool addressing the transformations that feminist discourses have brought into rape law, highlighting
the legal gaps that still need to be filled and suggesting a possible, new synergy between EU criminal
law and feminist scholarship, as well as activism.
The paper is composed of 4 sections.
Section 1 begins with a historical overview and a terminological clarification of what counts as rape
through feminist lenses. Section 2 then moves on to provide the legal context in which the
Commission has tabled its proposal. It illustrates how significant divergences in the interpretation of
1. Commission, ‘Proposal for a Directive of the European Parliament and of the Council on combating violence against
women and domestic violence’COM(2022) 105 final
2. ibid. 1
3. ibid. 1-2
4. European Parliament Research Service, ‘Violence against Women in the EU. State of Play’PE644.190(2019)
5. T. H¨
ornle, ‘Evaluating #MeToo: The Perspective of Criminal Law Theory’(2021) 22 German Law Journal 833, 846
154 New Journal of European Criminal Law 13(2)
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