Towards an EU criminal law on violence against women: The ambitions and limitations of the Commission’s proposal to criminalise image-based sexual abuse
| Author | Carlotta Rigotti,Clare McGlynn |
| DOI | http://doi.org/10.1177/20322844221140713 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 452–477
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/20322844221140713
journals.sagepub.com/home/nje
Towards an EU criminal law on
violence against women: The
ambitions and limitations of the
Commission’s proposal to
criminalise image-based sexual
abuse
Carlotta Rigotti
Law and Criminology, Vrije Universiteit Brussel, Brussel, Belgium
Clare McGlynn
Durham University, Durham, UK
Abstract
In March 2022, the European Commission proposed a new landmark Directive on combating
violence against women and domestic violence which includes measures on the non-consensual
distribution of intimate and manipulated images. We refer to this form of violence against women as
‘image-based sexual abuse’, a term that encompasses all forms of the non-consensual creating,
taking or sharing of intimate images or videos, including threats to share such material and altered
material. In this article, we provide a new analysis of current Member State laws covering all forms
of image-based sexual abuse, as well as the first detailed examination of the Commission’s proposals
to tackle this form of violence against women. We suggest that the Commission’s proposal is
characterised by both its ambition and limitations. It is ambitious in its attempts to set minimum
rules in challenging areas of criminal law and, in doing so, recognises the serious harms of image-
based sexual abuse. At the same time, by seeking to expand the reach of EU criminal law, inevitably
requiring compromise, the scope of the proposed measures is somewhat limited. Such com-
promises and limitations risk entrenching hierarchies between different forms of abuse and , ul-
timately, the proposal fails to provide a comprehensive response reflective of victims’experiences.
Keywords
Image-based sexual abuse, revenge porn, European criminal law, deepfakes, violence against
women, Article 83.1 TFEU, harmonisation
Corresponding author:
Clare McGlynn, Durham University, Palatine Building, Durham DH1 3LE, UK.
Email: clare.mcglynn@durham.ac.uk
Introduction
In 2021, the United Nations (hereinafter: the UN) declared violence against women and girls
a‘shadow pandemic’.
1
While the nature and extent of such violence and abuse was already
significant, the Covid-19 pandemic had intensified rates of violence, particularly domestic violence
and online abuse.
2
Accordingly, the UN called for coordinated and worldwide action to reduce
prevalence, support victims and ensure legal responses are comprehensive and effective.
In this context, the European Commission published in March 2022 a landmark proposal for
a Directive on combating violence against women and domestic violence (hereinafter: the
Commission’s proposal or the draft Directive).
3
The overall aim of the Directive is to ‘effectively
combat violence against women and domestic violence throughout the EU’by laying down
minimum rules on the definition of relevant criminal offences and penalties, as well as proposing
measures relating to access to justice, victim support and prevention.
4
The Commission’s proposal
draws on recent activity across the European Union (hereinafter: the EU or the Union) to expand the
scope of measures targeting violence against women and girls, particularly the initiatives funded by
the European Commission
5
and the many European Parliament resolutions.
6
Nonetheless, the
Commission’s proposal marks a significant shift, by proposing common legislative action to ensure
minimum standards in key, and often controversial, areas of criminal law, such as rape and female
genital mutilation, as well as specific areas of online abuse such as cyber-stalking and the non-
consensual sharing of intimate material.
7
The Commission’s proposal is characterised by both its ambition and limitations. It is ambitious
in its attempts to harmonise the laws of the Member States in challenging areas of criminal law and
policy. At the same time, by seeking to expand the reach of EU criminal law, inevitably requiring
compromise, the scope of the proposed measures is somewhat limited. Such compromises and
limitations risk entrenching hierarchies between different forms of abuse which are not reflective of
1. UN Women, ‘Measuring the Shadow Pandemic: Violence against Women during COVID-19’(2021) <https://data.
unwomen.org/sites/default/files/documents/Publications/Measuring-shadow-pandemic.pdf> accessed 27 July 2022.
2. ibid. 5.
3. European Commission Proposal for a Directive of the European Parliament and of the Council on combating violence
against women and domestic violence’[2022] COM(2022)105 final < https://eur-lex.europa.eu/legal-content/EN/TXT/?
uri=CELEX%3A52022PC0105> accessed: 27 July 2022.
4. ibid. 1.
5. Under the current Multiannual Financial Framework (2021-2027), for example, the Commission allocates funding with
a focus on preventing and combating violence and supporting and protecting victims. In Council Regulation (EU) 2020/2093
of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027 [2020] OJ LI433/11.
6. See infra: European Parliament resolution of 14 December 2021 with recommendations to the Commission on combating
gender-based violence: cyberviolence (2021) <https://www.europarl.europa.eu/doceo/document/TA-9-2021-0489_EN.
pdf > accessed: 27 July 2022. European Parliament resolution of 16 September 2021 with recommendations to the
Commission on identifying gender-based violence as a new area of crime listed in Article 83(1) TFEU (2021) https://
www.europarl.europa.eu/doceo/document/TA-9-2021-0388_EN.html accessed: 27 July 2022. European Parliament
Resolution of 13 February 2019 on experiencing backlash in women’s rights and gender equality in the EU [2020] OJ
C449/102. European Parliament Resolution of 12 September 2017 on the proposal for a Council decision on the
conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against
women and domestic violence [2018] OJ C337/167.
7. At the time of writing, the proposal is still awaiting a committee decision from the European Parliament. For more
information on the legislative schedule, see: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?
reference=2022/0066(COD)&l=en accessed: 27 July 2022.
Rigotti and McGlynn 453
To continue reading
Request your trial