The European Parliament has started this November the legislative work on the “Directive on fighting gender-based violence and domestic violence in the EU”. Soraya Rodríguez (Renew Europe) analyzes the text proposed by the Commission, the aspects to be worked on during the parliamentary process and the main challenges ahead in the procedure.
On March 8, the Commission presented the Proposal for a Directive on combating violence against women and domestic violence, whose legislative work in the European Parliament starts this November. The Commission proposal was a historic milestone for more than 250 million European women and girls. In 2022, the European Union still does not have a common framework on gender-based violence.
The situation of gender-based violence in the Union
Inequality and violence suffered by women and girls result in significant physical, sexual and psychological harm. Moreover, only in the European Union, gender violence represents a cost of 366,000 million euros per year.
It is estimated that 50 women are murdered as victims of gender-based violence, every week in the European Union: one every six hours. In Spain, 38 women have been murdered this year and, since data is available, 1,168 women. This is the ultimate expression of the violence suffered by women in the European Union, the tip of an iceberg that hides mistreatment, sexual assault, harassment, cyberviolence, trafficking, and sexual exploitation.
The pandemic has led to an increase of around 60% in violence against women and girls, in addition to the growth of new forms of online violence against women. In this context, urgent action is needed more than ever at EU level, in order to develop strong and common legislation to combat all forms of violence against women and girls.
Gender stereotypes, power asymmetries and structural inequalities are the root causes of violence against women. Therefore, its eradication requires a multidimensional approach. Criminal measures must be accompanied by political, social and economic strategies to strengthen gender equality, empower and support survivors, and consolidate women’s social and economic autonomy.
Unfortunately, not all Member States have ratified the Istanbul Convention, which is a comprehensive framework of legal and strategic measures aimed at preventing such violence, assisting the victims and punish the aggressors. In particular, Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania and Slovakia have not yet ratified it. This results in disparities in the national legislation of the Member States and asymmetries in the rights of European citizens. The protection of the integrity and dignity of a Spanish, Polish or Italian woman must be the same in any European country and there must be no room for impunity for murderers and perpetrators of crimes against women.
The pressing need for the Union to have a directive to combat violence against women
The issue is especially worrying given the growing denialism of gender-based violence and populist attacks on the advances in equality achieved in recent years around the world. The situation of women in Afghanistan or the setback in the right to abortion in the United States through the Roe v. Wade ruling are examples of this. Furthermore, violence against women is used as a weapon of war, for example, in Ukraine; and anti-gender movements grow tirelessly, with political groups that deny gender violence, even reaching governments in some States of the Union such as Poland, Slovakia, Italy or Hungary , whose legislation against women’s freedom puts them at risk their lives daily.
it should be noted that the European Commission’s proposal is a response to the lack of political will in the Council to ratify the Istanbul Convention. With this Directive, the EU aims to harmonize the fight against gender violence among the 27 EU Member States. This is a first step in the right direction. Now it is up to the European Parliament and the Council of the Union to strengthen the Commission’s draft and get it adopted.
What does the Commission’s proposal say?
The legislative proposal constitutes a good basis for creating a European framework to combat and prevent gender violence. The introduction of common minimum standards across the EU will go a long way towards ensuring that all Member States have the necessary tools to end this systematic form of violence.
However, it should be noted that the legal basis of the Directive is very weak. It is based on two articles. The first is Article 82(2) of the Treaty on the Functioning of the European Union , which provides the legal basis for establishing minimum standards on the rights of crime victims. It also facilitates mutual recognition of judgments and judicial decisions, and police and judicial cooperation in criminal matters with a cross-border dimension. The second is article 83 (1) TFEU, which provides the legal basis for minimum standards relating to the definition of criminal offenses and sanctions in criminal areas that are particularly serious, including sexual exploitation of women and children and computer crime. This legal basis clearly limits the scope of this regulation, covering only six forms of violence against women: rape, female genital mutilation, and four forms of gender-based cyber-violence. The Parliament had clearly asked the Commission for a greater ambition to achieve a Directive covering all forms of violence against women.
The EU proposal:
- It proposes common definitions and harmonizes the EU legislative framework on issues such as rape, understood as any sexual intercourse without explicit consent.
- It explicitly prohibits the following forms of violence against women: rape on the basis of lack of consent, female genital mutilation, non-consensual dissemination of intimate or manipulated material, cyberstalking, cyberharassment, and incitement to violence or hatred through cyber means.
- It sets out a number of provisions in relation to the protection of victims and access to justice for victims of gender-based violence and domestic violence before, during and after criminal proceedings.
- It proposes a series of tools for prevention and specialized help and support mechanisms for survivors of such violence.
Aspects to be improved in the Directive’s proposal
The legislative procedure still gives us the opportunity to improve the text of this Directive from the European Parliament. In order to be truly effective, the future directive should have had a more solid legal base, which would have been achieved by the introduction of gender-based violence as a new criminal area at the European Union level, incorporating it into the list of Eurocrimes provided in article 83 TFUE. It is highly reprehensible that the Union continues to doubt that gender-based violence is a crime, just as serious as money laundering or corruption, which are already considered Eurocrimes. The inclusion of gender-based violence as a Eurocrime is also an unfulfilled promise made by President Von der Leyen before she was elected President of the European Commission.
Although this amendment never came to fruition, the European Union has indeed submitted a communication to add hate crimes and hate-motivated crimes to the list. However, hate crimes are not the appropriate legal basis to fight against all forms of gender-based violence, since the latter is based on structural inequalities.
Secondly, we cannot forget that this proposal does not cover all forms of violence against women. We in Parliament must work to include other types of violence against women, the absence of which is not justified. I am talking about, for example, forced marriages, which are mentioned at the beginning of the document, but specific measures to combat them are not developed.
Thirdly, there are different NGOs and women’s associations that consider that the Directive is too firmly anchored in criminal law and leaves aside procedures that are already contemplated in equality and non-discrimination laws. One example is the support networks for women victims of gender violence, which already exist in many Member States and which have numerous very good practices. For this reason, strengthening the chapters on the support and protection of victims should be central to the future Directive, so as not to neglect the good work of many groups that have been dealing with victims of gender-based violence for decades.
Finally, it is striking that the text proposed by the Commission does not contain an explicit condemnation of violence against women as a form of human rights violation and discrimination, as it is the case in the Istanbul Convention. Furthermore, throughout the Directive, sexual and reproductive health and rights are mentioned only once, although one of the most specific forms of violence against women is rape.
The relationship of the Directive with the fight against gender cyber-violence
One of the great novelties of the future Directive is the criminalization of four forms of gender-based cyber violence:
- the non-consensual dissemination of intimate or manipulated material,
- and incitement to violence or hatred by cyber means.
This is an important step forward as the is currently no legal tool that regulates these specific forms of gender-based violence. The Istanbul Convention, for example, does not provide for this cyber dimension of violence against women. The inclusion of gender-based cyber-violence in the Commission proposal was a request from the European Parliament in its Report 2020/2035(INL) with recommendations to the Commission on cyber-violence in the fight against gender-based violence, approved in plenary on 14 December 2021, and which we specifically analyzed in this article.
The Directive and its relationship with the ratification of the Istanbul Convention
The proposal for a Directive on the fight against violence against women and domestic violence is a response from the Commission to the Council’s position not to allow the ratification by the European Union of the Istanbul Convention. Both the French Presidency of the EU, from January to June 2022, and the current Czech Presidency, which ends in December this year, have indicated that the EU’s accession to the Istanbul Convention is a priority. From the Committee on Women’s Rights and Gender Equality of the European Parliament (FEMM) we have insisted on the need for the EU to ratify the Convention and to have European tools to fight against gender-based violence in all its forms.
From Renew Europe group we continue working at the European Parliament to make this ratification a reality. However, we all know that it is a difficult task. Last October, the Court of Justice of the European Union issued a favorable opinion on the ratification of the Convention. Despite not closing a clear direction, it gave an important message: that a qualified majority could be exercised in the final decision-making. However, the Treaties do not prohibit the Council from waiting for the “common agreement” of the Member States to ratify the Convention.
Although many Member States may be interested in the European Union ratifying it, and indeed many of them have already ratified it at national level, the decision to do so without unanimity could become a dangerous precedent at Council level, in relation to other policies where there is no consensus among Member States. Therefore, it is abundantly clear that the lack of ratification of the Convention is not due to the impossibility of doing so, but rather due to the lack of political will of the EU governments. From the European Parliament and the Committee on Gender Equality and Women’s Rights we will continue to press for it to become a reality.
The position of the European liberals and Renew Europe
Freedom and democracy can only exist if gender equality is guaranteed. Non-discrimination on grounds sex and equality between men and women is a fundamental right and a core value of the EU enshrined in the Treaty on European Union and recognized in the Charter of Fundamental Rights. Putting an end to gender-based violence is one of the EU’s international commitments.
As long as we do not confront violence against women in all its forms and the political discourses that justify it or try to make it invisible, we will be perpetuating discrimination and undermining our democracies. Anyone who does not want to take up the fight against gender-based violence as their own is placing themselves outside the rule of law.
This legislature cannot end without progress against gender-based violence and the defence of our sexual and reproductive rights. Fighting for women’s rights means fighting to guarantee the rights of all citizens. We must achieve historic and consistent progress unblock the ratification of the Istanbul Convention in the Council and approve the Directive on fighting against gender violence. We need minimum protection standards at the EU level. This is the only way the Union will be able to assume its global role in the defense and promotion of human rights: through a standard that fully and effectively responds to the great challenge ahead of us.