A legal process is underway on the directive to combat violence against women and domestic violence. The priority of the European Commission and the European Parliament is to include the crime of rape in the directive, which, unfortunately, is opposed by the Council.

At the beginning of 2023, the European Parliament started work on the project of the directive to combat violence against women and domestic violence. This is the first act of the European Union to regulate the issue of gender-based violence and domestic violence, which – as we must continue to remind – overwhelmingly affects women. It is not unreasonable that many years ago the position was taken that violence against women is the most severe form of discrimination against women based on their gender.

Sylvia Spurek is the only Pole participating in the work on the draft directive. His team tabled nearly 200 amendments to it and pushed through months of inter-parliamentary negotiations to make the directive as comprehensive as possible, tackling violence and protecting its victims as much as possible.

Many of these priorities and amendments were included in the Parliament's proposal, which was voted on by the FEMM Committee in June 2023 and then approved by Parliament in July. This is how the so-called trilogyThat is, the tripartite negotiations of the European Parliament with the Council and the European Commission on the final formulation of the directive.

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Directive on combating violence against women and domestic violence

What is in this directive? First, the directive will harmonize provisions on victim protection and access to justice, specialist victim assistance, violence prevention mechanisms and cooperation between Member States.

It is very important that it also includes a list of crimes related to sexual violence against women and children and cybercrime. The current stage of negotiations indicates that crimes include: sexual violence, female genital mutilation, forced sterilization, forced marriage, sexual harassment at work, as well as gender-based cybercrimes (including cyberbullying and sharing or manipulating intimate material without consent).

Moreover, the priority of the European Commission and the European Parliament is to include the crime of rape in the directive, which, unfortunately, is opposed by the Council.

It is worth explaining here that how comprehensive the directive will be depends on the outcome of the negotiations between the three institutions. At this point, let's be honest, the EU Council, which consists of representatives of all member states, is slowing down and blocking the work on the directive.

Both the European Commission and the European Parliament have adopted very progressive positions based on consultations with experts and NGOs. However, many member states represented in the Council do not want the directive to introduce specific harmonization legal solutions at the EU level. We understand that it would be best if it remains as it is and allows member states to set their own standards for protecting women's rights.

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Both the European Commission and the European Parliament have included in their positions the criminalization of the crime of rape and its definition based on the concept of consent in Article 5 of the Directive. Any intercourse for which The absence of free and informed consent is rape, plain and simple.

If the directive enters into force in this form, each member state will be obliged to make the necessary changes to the criminal law code.

Unfortunately, the Council of the European Union requires the rape regulation to be removed from the bill. This is due to the opposition of several countries, including Poland, to the directive to criminalize the crime of rape.

Will Poland's position on this matter change with the change of government, and will Poland support the inclusion of a criminalized rape provision in the directive and will it support the full adoption of the directive? If so, what about other countries?

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What is rape?

If we want to take a big step in terms of legal protection of women's rights in the European Union, the crime of rape must be included in the directive. Because it is one of the most serious and severe types of gender-based violence against women. The scale of this crime is still high and women are not sufficiently protected from it.

The definition of rape must be based on consent because only “yes” means consent. This removes the burden from the victim's behavior—proving that the victim was defending or resisting—and shifts the burden to the perpetrator's behavior. This assumption was introduced by the Istanbul Convention, which was ratified in 2023 by the European Union and Poland in 2015. Article 36 of the Convention states that consent must be given voluntarily as a matter of free will.

Unfortunately, this provision, like many other provisions of the Convention, has not been implemented by Poland. Despite the European standard definition of rape adopted by most EU countries in their legal systems, Article 197 of the Polish Penal Code punishes sexual intercourse with another person: by force, unlawful threat or deception. If one of these three situations did not occur, there was no crime of rape under Polish law.

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Meanwhile, a definition of consensual rape exists in 14 of the 27 member states, namely: Austria, Belgium, Croatia, Cyprus, Denmark, Finland, Germany, Greece, Luxembourg, Malta, Portugal, Slovenia, Spain and Sweden. However, the law in Ireland is very close to consent-based law.

Holland may also join this group, where legislative work is currently underway to change the definition of the crime of rape. In addition to Poland, the list of countries that have ratified the Istanbul Convention but have not yet changed their laws in this regard include: Estonia, France, Italy and Romania.

Consequences of a wrong definition of rape

The absence of a definition of consensual rape in the Polish system has very serious consequences for victims in terms of seeking justice, especially when it comes to the treatment of rape by Polish courts. It would be an example The case from Wroclaw from 2022, when the court assessed that the crime of rape was not committed because the victim did not scream, which, according to the court, means that the perpetrator did not use violence. The 14-year-old boy was crying and saying, “I don't want to,” but that didn't matter to the court.

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On March 8, 2021, the left-wing club presented a bill to the Polish Sejm that changes Art. 197 Criminal Code The draft assumes that the regulations will be based on the concept of informed and voluntary consent. It was prepared in cooperation with non-governmental organizations working for the rights of rape victims. The draft has not been substantially worked on so far – we hope this will change in the new term seim, which will return to the topic.

The criminalization of rape and the concept of consensual rape should not only be included in the Polish penal system, but also regulated at the EU level. All European women should be protected equally. Thanks to the consistency of regulations in the EU member states, all women can feel safe, regardless of whether she is in, for example, Austria, Croatia, Portugal, Finland, Cyprus, where there are rape regulations based on the concept of consent. or in Poland, Romania or Estonia, where there are no such regulations.

NGOs and experts are currently trying to get their countries to agree to include the crime of rape in the new directive. A case has already been filed on this matter Petition to representatives of EU countries “Only yes means yes”.

The creators of the initiative wrote on the petition: “Sex without consent is rape. We, as residents of the whole of Europe, ask to stand on the side of the offended people. Let informed consent for sex be the guiding principle in legislation to combat gender-based violence across the EU.” So far, almost 300,000 people have signed the petition.

A change in the definition of the crime of rape was previously proposed by the previous Ombudsman, Dr. Hub. Adam Bodnar, today the Minister of Justice. In 2022, the acting ombudsman Prof. Marcin Viacek reiterated the demand to base the definition of rape on the concept of the absence of consent of the other party to the sexual activity. He argued that, taking into account the international legal standard applicable to Poland, the absence of consent should be a sufficient – independent and clear sign of this crime. Today, consent is only a derivative element, as it is obtained through a properly focused interpretation of the elements of “violence,” “unlawful threats,” and “deception.”

How many rape victims are there?

The magnitude of the crime of rape is large, but it is difficult to precisely define it due to the serious consequences and specificity. According to a study by the European Union Agency for Fundamental Rights since 2014, 5 percent of European women have been raped after 15 years.

However, the results of these studies are said to be underestimated, especially in patriarchal countries such as Poland, where women find it very difficult to talk about traumatic experiences. Much higher numbers are reported by UNICEF, which in 2022 found that 1 in 10 girls worldwide had been raped in a study of 14,000 girls.

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What are the consequences of rape?

The consequences of rape are enormous. These are health, mental, family and economic consequences. 80 percent of rape victims suffer from post-traumatic stress disorder (PTSD). Rape often affects one's whole life, has psychological consequences and makes it difficult to form relationships with other people or have sexual relations.

In addition, it is estimated that it also has economic consequences that affect individuals, families and entire communities. According to EIGE, the European Institute for Gender Equality, the cost of gender-based violence against women in EU countries exceeded 290 billion euros in 2019. Rape is one of five crime categories included in EIGE's calculations of the estimated costs of gender-based violence.

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We need to change the definition of rape to a consensual one and punish the perpetrators consistently. Rape should also be criminalized at EU level so that it is defined and punished in the same way in all EU countries.

We hope that Article 5 will be an integral part of the Directive on combating violence against women and domestic violence, and that Poland will vote for this progressive project that protects all European women – because every 3 European women are victims of gender-based violence. .

***

Markin Anasevich – Lawyer, Doctor of Social Sciences, President of Green REV Institute.

Sylvia Spurek – Doctor of Law, Member of the European Parliament, former Deputy Commissioner of Human Rights.

Barbara Wolk – Accredited parliamentary assistant in the European Parliament, student of international law and EU law at The Hague University of Applied Sciences.

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