#Fuoridallatrappola

25 November

Rape, political debate on the law of consent grows in Europe

Among the most recent regulations is the one passed in the Netherlands, where it has become a criminal offence to have unwanted contact in the face of a rejection signal

by Maria Paola Mosca

23 November 2024

3' min read

Key points

Reforms in Europe and the idea behind the consensus
The Spanish and Belgian cases
European Directive on Violence in Light and Shadows

3' min read

More and more European states are changing their laws on sexual violence by putting the issue of consent at the centre. But at EU level, significant resistance remains, showing the persistence of a wide variety of visions. On a national scale, the latest reform comes from the Netherlands where from 1 July the law increases protection in this respect. It is now a criminal offence to have unwanted contact in the face of a rejection signal. Rejection that, it is specified, can be expressed in words but also through behaviour such as crying, walking away, or on the contrary not moving and stiffening. It then becomes punishable to sexually approach someone in an unwanted and intimidating manner on the streets, in public places or online. The 12-year time limit for reporting is also removed.

Reforms in Europe and the idea behind the consensus

This update is only the most recent example of the trend that has seen a number of reforms proliferating in Europe in recent years. Until 2017, in fact, only seven jurisdictions had consent-based laws against sexual violence. By 2024, also thanks to the growth of movements such as #metoo, we have reached over twenty - from England to Portugal, from Iceland to Croatia, from Denmark to Malta. With Greenland, Switzerland and the aforementioned Netherlands having introduced or updated their laws in the last 18 months.

While a certain trend towardshomogenisation of the treatment of these offences is clear, the question of the definition of 'consent' remains open. With different interpretations as a starting point - some regulations look, for example, at active confirmation, others focus on denial of consent - the legislative models cannot but remain varied. And the penalties imposed vary. They range, for example, from one year in prison in Finland to life imprisonment in Cyprus.

At the root, consensus.

The Spanish and Belgian cases

Speaking of consent and sexual violence, the best known and most cited law is the Spanish law for the integral guarantee of sexual freedom, also known as the 'only yes means yes' law. With its entry into force in 2022, Spain punishes 'anyone who performs any act that violates the sexual freedom of another person' without an explicit expression of will. And it removes from the penal code the difference between sexual abuse and sexual assault: the former offence, previously punishable with less severe penalties, is equated with the latter, which is instead punishable with imprisonment of up to 15 years.

The reforms introduced in Belgium also go in the same direction. Here, in addition to harsher penalties, the definition of sexual violence has changed. In judging each case, moreover, the circumstances in which the crime took place are taken into account, which is aggravated if, for example, the victim was in a vulnerable condition because she was under the influence of drugs or a minor. Belgian law then confirms that consent must be free and voluntary, is not taken for granted and can be revoked at any time.

European Directive on Violence in Light and Shadows

Individual national examples aside, the discussion on the topic of consent in recent times has also reached the EU institutions. Here, however, the debate intensified when Directive 2024/1385 on violence against women and domestic violence was approved in April. The approved text was criticised from many quarters precisely because of the way it (does not) deal with the issue of expression of will. Although the new regulation introduces important indications. Among other things, for example, it obliges member states to commit to improving understanding of stereotypes, promoting gender equality and mutual respect. And it imposes initiatives to counter the phenomenon of secondary victimisation, often the reason why many choose not to report.

In the opinion of many, however, the positive actions it introduces are overshadowed by the absence of some of the proposals made at the beginning of the process. Such as, above all, the deletion, due to the lack of agreement between states, from the original text of Article 5, which contained the definition of rape as 'sexual intercourse without consent'.