Written by Rosamund Shreeves and Martina Prpic,
Consent Matters…
Credits: European Commission / EurostatThe International Day for the Elimination of Violence against Women on 25 November is a time to take stock of what has been done to root out this violation of women’s and girl’s human rights. It is also a moment to identify where improvements must be made to legislation, policy and practice on the ground to ensure that all women can live free from violence and insecurity. This year, the global focus for the international day is the issue of rape and the importance of ensuring that there is clarity across society regarding the concept of consent.
The most comprehensive survey on violence against women at EU level, published by the EU Agency for Fundamental Rights (FRA) in 2014, shows that one in 10 women has experienced some form of sexual violence since the age of 15, and one in 20 has been raped. Yet a 2016 Eurostat survey shows that more than one in five respondents (22 %) believe that women often make up or exaggerate claims of rape and just over a quarter (27 %) think that there are situations (reflecting attitudes regarding appropriate behaviour for women), where sexual intercourse without consent is justified. Such victim-blaming attitudes are one of the factors that can deter women from reporting rape and obtaining support and justice. Research shows that prosecution rates are not increasing in line with rising reporting rates and conviction rates for rape tend to be low. As several recent court cases in Spain demonstrate, consent – and the question of how it is established – is also crucial to legal definitions and prosecutions of rape.
The benchmark established in Article 36 of the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) is that lack of consent should be the central element in the framing of rape as a criminal offence. As of November 2019, 21 EU Member States have ratified the Convention (AT, BE, DE, CY, DK, EE, EL, ES, FI, FR, HR, IE, IT, LU, MT, NL, PL, PT, RO, SE, SI) and the EU is in the process of acceding to it (within its competences). An evaluation report for the Council of Europe’s Parliamentary Assembly has found that one impact of the Convention has been to encourage states to amend rape legislation to better correspond with Article 36, but the monitoring process has also shown that several countries are encountering difficulties in aligning their legislation with this standard. Analysis conducted by Amnesty International in 2018 found that a minority of EU countries (Belgium, Cyprus, Germany, Ireland, Luxembourg, Sweden and the UK, since joined by Greece in 2019), define rape based on ‘absence of consent’. Denmark has also announced plans to alter its legislation. Legal definitions of rape often include other elements such as use of force, threat, or coercion. Research conducted by the European Union’s Institute of Gender Equality (EIGE) in 2016 found this to be the case in a majority of EU Member States (23 countries). The explanatory report accompanying the Istanbul Convention clarifies that where legal definitions include such additional elements, rigid approaches to prosecution, such as requiring proof of physical resistance in all circumstances, do not reflect the wide range of ways in which victims can respond and risk leaving certain types of rape unpunished. It also stresses the importance of ensuring that gender stereotypes or myths about male and female sexuality do not affect interpretations of rape legislation and the prosecution of rape cases.
Along the continuum of gender-based violence, lack of consent is an important element in another hidden and previously unrecognised form of abuse, which is receiving increasing attention in the media and at international level. In October 2019, both the United Nation’s Special Rapporteur on violence against women and the Council of Europe’s Parliamentary Assembly identified the issue of violence and mistreatment of women and girls during childbirth and in reproductive healthcare as a widespread, systemic issue and human rights violation. Coerced or forced abortion and sterilisation is one extreme example, which the Istanbul Convention (Article 39) requires signatory countries to criminalise. Women in the EU also share testimonies via movements (e.g. #BreakTheSilence (#prekinimosutnju) in Croatia; ‘EnoughSilence‘ (#bastatacere) in Italy; ‘Me too during childbirth‘ (Minä myös synnuttäjänä) in Finland; and #PayeTonUtérus in France), of other medical interventions resulting in physical and emotional trauma. These include: induced labour and episiotomies, performed without explanation or consent; interventions without pain relief or anaesthesia; verbal and physical abuse; and ineffective complaints procedures. Contributors to the United Nations (UN) report highlight that particular groups of women, including women with disabilities and migrant women, may be especially vulnerable to such abuse.
Where these practices occur during pregnancy, childbirth or postpartum, they are defined as obstetric violence. Legal definitions and specific legislation against obstetric violence already exist in Argentina (2009), Venezuela (2007) and Mexico (2014). As yet, there are no specific laws in Europe. However, the issue has been recognised at political level in individual EU Member States, such as France, where a 2018 report on obstetric and gynaecological violence by the Haut Conseil à l’Egalité demonstrated the existence and scale of the problem and recommended 26 measures focused on further research, prevention and improving awareness and complaints procedures. The measures were not unanimously welcomed but have been endorsed by the national union of obstetricians. The World Health Organization (WHO) already highlighted in 2015 that disrespectful, abusive, or neglectful treatment during pregnancy, childbirth and postpartum violate women’s rights, deter women from seeking and using maternal health care services and have implications for their health and well-being. The WHO’s recommendations were endorsed by the UN and the Council of Europe. They include calls on governments to support research into respectful and disrespectful care practices, introduce programmes to improve the quality of maternal health care, develop systems of accountability and meaningful support for professionals and involve all stakeholders including women in efforts to improve quality of care and eliminate disrespectful and abusive practices. Civil society organisations in the EU contributed to the UN report and issued their own call to action in 2018.
European Parliament positions
During the previous legislative term, the European Parliament drew attention to the rise in online violence against women, including threats of rape. At a hearing on violence against women on 18 November, its’ Committee on Women’s Rights and Gender Equality (FEMM) announced that it will be working on reports on cyberviolence and sexual and reproductive health and rights in the coming months. In 2018, Parliament condemned forced sterilisation of women with disabilities.
Related EPRS publications:
Violence against women in the EU: State of Play, EPRS, European Parliament, November 2019.
The Istanbul Convention: A tool to tackle violence against women and girls, EPRS, European Parliament, November 2019.
Monitoring the implementation of the Istanbul Convention, EPRS, European Parliament, November 2019 (forthcoming).
