Germany Blocks Europe-Wide Protection of Women Against Violence

Why a European Harmonization of the Definition of Rape is Possible and Necessary

Gender-based violence has dramatically increased in the European Union (EU) in recent years. In particular women are widely affected by rape. Yet, in 16 EU Member States, rape can only be prosecuted if coercion is used involving either violence or threats (see section 2.1.2. European Commission, Impact Assessment Report). A simple “no” is not legally relevant. Combating violence against women and domestic violence is, therefore, a central concern of the EU Commission under the leadership of Ursula von der Leyen. The long-delayed accession of the EU to the Istanbul Convention (the Council of Europe Convention on preventing and combating violence against women and domestic violence) on 1 October 2023 is a first step towards better protection of women. Additionally, on 8 March 2022, the Commission presented a Draft Directive for comprehensive, effective and enforceable protection against gender-based violence in all EU Member States. The European Parliament and the Council are already in the final, decisive phase of the so-called trilogue negotiations.

The main point of contention in the negotiations, which could ultimately prevent the adoption of the Draft Directive, is the deletion of the offence of rape, i.e. Article 5 of the Draft Directive. The Directive aims to harmonize across Europe the definition of the criminal offence of rape as a violation of the consent-based sexual act. Twelve Member States, with Germany and France at the forefront, call for the deletion, referring to the opinion of the Council’s Legal Service (LS-C). The German Federal Ministry of Justice blocks this directive due to “considerable doubts” concerning the legal basis. It argues that rape is neither “sexual exploitation” nor a transnational crime within the meaning of Art. 83 (1) TFEU. On the contrary, the European Parliament, the Commission and numerous women’s and human rights organisations, including the German Women Lawyers Association (Deutscher Juristinnenbund e.V.), have all emphasized – so far in vain – that effective protection against gender-based violence should not depend on the Member State in which a woman lives. While the issue has received a lot of media attention in France, it has been largely overlooked in Germany.

This article conducts a legal analysis from the perspective of the EU law. It refutes the “considerable doubts” stressed out by the Federal Ministry of Justice, and it shows that a Europe-wide harmonization of the criminal offence of rape on the grounds of Art. 83 (1) TFEU is possible and necessary.

Rape as sexual exploitation within the meaning of Art. 83 (1) (2) TFEU

Art. 83 TFEU establishes the competence to adopt directives regarding substantive criminal law for the areas of crime listed exhaustively in the second sentence of Art. 83 (1) (2) TFEU. The main question is, however, whether the wording of the area of crime “trafficking in human beings and sexual exploitation of women and children” also includes rape.

Following a very narrow understanding of sexual exploitation, the LS-C assumes that “sexual exploitation of women” is related to or is a specific aspect of human trafficking and should, therefore, be interpreted restrictively as a sub-category of human trafficking with the element of exploitation as a common component (paras. 24, 25, 44). Focusing on exploitation as the common and required element, the LS-C has the opinion that the term generally does not include criminal offences in which sexual violence is an essential element (paras. 26, 44). The LS-C thus distinguishes between exploitation and violence and excludes rape from the area of crime, maintaining that rape determines consent or a lack thereof as an essential feature and should therefore primarily be understood as violence, not exploitation (see para. 32).

We challenge the above-described legal assessment by the LS-C and state that rape as a serious form of sexual violence falls under the term “sexual exploitation”. Interestingly, the LS-C admits itself explicitly that the harmonization of rape is indeed possible on the legal basis of “sexual exploitation of women” (para. 45). Due to the lack of an international and European (legal) definition of “sexual exploitation of women”, one must understand it as an autonomous concept of EU law. According to the case law of the European Court of Justice, for the legal analysis the wording, the legislative history, the context of the EU-law provision, the entire body of EU law, and finally, the objectives pursued by said provision must be taken into account (para. 50). Overall, Art. 83 (1) (2) TFEU must also take into consideration the international and European legal practice on instruments of harmonization. ¹⁾

Wording

While, at first glance, the wording of “sexual exploitation” seems quite narrow, the norm does not refer to single criminal offences, but rather outlines areas of criminal offences or even criminological phenomena. (Streinz/Satzger, TFEU Art. 83 para. 13). Therefore, the areas do not include individual criminal acts only, such as forced prostitution, but each area suggests a group of punishable acts. Furthermore, one cannot easily distinguish between criminal offences involving abuse as a form of violence and/or exploitation. Finally, modern legal instruments no longer strictly distinguish between sexual exploitation, sexual abuse and pornography. Instead, sexual abuse and sexual exploitation are understood as a common category (e.g. here and here), the latter even as a generic term for sexual abuse, exploitation of prostitution and pornography. Henceforth, Art. 83 (1) TFEU allows to harmonize large parts of criminal law governing sexual offences in the EU far beyond mere economic exploitation (Grabitz/Hilf/Nettesheim/Vogel/Eisele, TFEU Art. 83 para. 56).

This view is also shared by the EU legislator. In particular, the EU Directive on combating the sexual abuse and sexual exploitation of children and child pornography (Child Abuse Directive) of 2011 was adopted on the basis of the area of crime of “sexual exploitation” in Art. 83 (1) (2) TFEU. The Child Abuse Directive does not only harmonize child prostitution but also comprehensive criminal offences related to sexual abuse that go far beyond the economic component (see Art. 3 of the Child Abuse Directive). The Directive also contains provisions that focus on the use of violence and forced sexual acts.

History of origins

Furthermore, the drafting history of Art. 83 TFEU suggests that sexual exploitation should be understood separately from human trafficking and in a broader sense. In the conclusions of the Tampere European Council of 15 and 16 October 1999, the exploitation of women was still understood as a component of human trafficking by defining the area of crime as “trafficking in human beings, in particular the exploitation of women and the sexual exploitation of children”. However, the Constitutional Treaty and, subsequently, the Lisbon Treaty finally adopted the wording “trafficking in human beings and sexual exploitation of women and children” (paras 13 et seq.). This change reveals that the sexual exploitation of women is no longer simply a specific form of trafficking but can be defined independently and more broadly, including sexualized violence, i.e. non-consensual sexual acts. Even the LS-C recognizes this (paras 17, 27).

Context of the provision and EU law

During the negotiations on the Draft Directive, the Commission based its arguments for including Art. 5 of the Draft Directive on the UN General Secretariat’s definition of “sexual exploitation”. According to this definition, sexual exploitation includes as central elements any actual or attempted abuse of a situation of vulnerability, differential power, or trust for sexual purposes, including but not limited to profiting monetarily, socially or politically from the sexual exploitation of another. Despite the arguments on the relevancy of this definition by the LS-C (para. 29 fn. 20), one cannot overlook that a broader understanding of ‘sexual exploitation’ – akin to the UN definition – can be found in numerous EU instruments.

First, the instruments on human trafficking show that the term “exploitation” is not limited to economic exploitation like prostitution. For example, the 2005 Council of Europe Convention on Action against Human Trafficking and Article 2 (3) of the EU Directive on preventing and combating trafficking in human beings and protecting its victims state that exploitation includes “as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation” (emphasis added). Furthermore, the Child Abuse Directive shows that sexual exploitation can be defined primarily by the need for protection from certain exploitative relationships characterized by power imbalances, vulnerable status, e.g. due to a situation of dependency, or the abuse of relationships of trust (cf. offences of Art. 3 para. 5 i)-ii)). The need for protection does not have to be based on personal characteristics, but can primarily be based on the exploitative relationship, especially since these provisions also apply to older children who have reached the age of sexual consent. Secondly, according to Art. 3 para. 5 iii) and Art. 6, sexual activities are criminalized if coercion, violence or threats have been used or if children have been induced to engage in sexual activities with third parties. Accordingly, the focus of “sexual exploitation” can also be a forced sexual act that is not primarily linked to the need for protection due to the status as a minor but to other factors such as coercion, violence or threats.

In line with this broader understanding, the term “sexual exploitation” allows for the inclusion of rape of women. Whereas the sexual element of exploitation is obvious, the vulnerability and need for protection of children in relation to adults cannot be equated with the vulnerability and need for protection of women in relation to their perpetrators. Minors are subject to a power imbalance caused by their immature physical, mental and emotional development. However, the Istanbul Convention states clearly that gender-based violence, including rape, is an expression of historically evolved unequal power relations that have resulted in discrimination against women by men and prevent the full equality of women. This violence is structural in nature and serves as a key social mechanism by which women are forced into a subordinate position to men. This structural discrimination and power imbalance is not only the root cause of rape, but it also enables it. Furthermore, rape occurs in a context in which the victim is particularly vulnerable. Many factors can cause vulnerability. While the defining characteristic of sexualized violence is the lack of consent, rape in particular often takes place in a context of coercion, violence or threats that creates a specific vulnerability. Other vulnerable factors can be the use of drugs or alcohol, and family or other dependency relationships, which constitute a particular breach of trust and must therefore be taken into account as aggravating factors under the Istanbul Convention (Explanatory Report, para. 236). Hence, especially in case of rape, the sexual acts may be perpetrated as an expression of exercising power and control, and it is precisely the disregard for the lack of consent that illustrates the abusive behaviour. Finally, the Commission further explicates in the explanatory memorandum to the Draft Directive as profiting elements the achievement of power, control, or domination over another person as well as the personal satisfaction, financial gain and/or social advancement.

Objectives of the EU law

Rape is an expression of structural power imbalance and gender discrimination. According to Art. 2 and Art. 3 (3) (2) TEU as well as Art. 8, 10 and 19 TFEU, the EU must fight against discrimination and promote the equality between women and men. Moreover, these competences must be interpreted in the light of the fundamental values of the Union, i.e. respect for human dignity, respect for human rights, equality between men and women and the principle of non-discrimination. Furthermore, Articles 21 and 23 of the Charter of Fundamental Rights enshrine the principle of non-discrimination on grounds of sex and the principle of equality between women and men. In addition, the EU has regularly and repeatedly made political commitments to combat gender-based violence comprehensively and effectively. Not least, the declarations annexed to the Final Act of the Intergovernmental Conference on the Lisbon Treaties clearly emphasize that the EU wants to combat all forms of domestic violence and that Member States “shall take all necessary measures to prevent and punish these criminal acts” (No. 19).

Cross-border dimension within the meaning of Art. 83 (1) (1) TFEU

The cross-border dimension is already indicated by the subsumption of rape in the area of crime of sexual exploitation. This follows directly from the wording of Art. 83 (1) (1) TFEU, which states that the EU legislative bodies may adopt minimum rules in “areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”. Under Art. 83 (1) (2) TFEU, “these areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children (…)”. (emphasis added).

According to one criticism, the cross-border dimension should only be present when a border is crossed in the geographical sense. This view states that rape is not a transnational crime in fact or in law since domestic violence typically takes place at home. It is largely based on the so-called Lisbon judgement of the German Federal Constitutional Court of 30 June 2009, in which the Federal Constitutional Court demanded a restrictive interpretation of the cross-border dimension. The German government also seems to adhere to this position when it justifies its blockade of the Draft Directive. It claims that including the offence of rape could open the floodgates, leading to a loss of the Member States’ competences in criminal law.

One must reject these arguments. First, there are a number of situations in which rape has a cross-border dimension, even in the geographical sense, through preparatory acts (such as grooming), due to the mobility of victims and perpetrators, or in the law enforcement phase (cf. section 3.2. European Commission, Impact Assessment Report).

Second, a physical aspect of the cross-border dimension does not have to be present for each individual act for the criminal offence of rape to be harmonized on the basis of Art. 83 (1) TFEU. This is also the view of the ECJ in the Varna judgment, ruling that Directive 2014/42/EU, which was applicable in this case and is based on Art. 83 (1) TFEU, applies even if all the circumstances, when committing a criminal offence, are confined to a single Member State and there is no geographical border crossing. Moreover, an explicit physical cross-border element was apparently also not demanded in other EU criminal law harmonization projects. For example, Germany did not have similar concerns regarding the Child Abuse Directive, based on Art. 83 (1) TFEU, although in these cases a geographical cross-border dimension is equally not always given.

Moreover, although the German Federal Constitutional Court in the Lisbon judgement argues for a narrow interpretation of Art. 83 TFEU, it does not require a purely geographical interpretation of the cross-border dimension. It only calls for a “strict – by no means extensive” interpretation of the conferred competences concerning criminal law. Moreover, it argues that criminal law does not serve as a legal instrument to effect international cooperation but rather stands for the particularly sensitive democratic decisions on the legal-ethical minimum (para. 358).

Explicitly for cases in which the cross-border dimension is essentially based on the criterion of the special need to combat criminal offences on a common basis, the Federal Constitutional Court states that such a special need does not simply exist if the institutions have formed a corresponding political will. Nor can it be separated from the nature and impact of the offence since it is not clear from what, if not from the nature or impact of the offences in question, the special need to combat them on a common basis should arise (para 359).

The Federal Constitutional Court thus merely points out that a purely political will is not sufficient. However, the restrictive attitude towards a European criminal law expressed in the Lisbon judgement cannot lead to the criterion of “need to combat them on a common basis” being rendered meaningless. Especially since the history of Art. 83 TFEU shows that this criterion was intended to ensure that the EU could take measures against acts that are directed against the values of the Union as such and which the Union therefore cannot tolerate. ²⁾. The Federal Constitutional Court does rather emphasize that Art. 83 (1) TFEU cannot be used as a blank authorization to enact criminal provisions.

However, as the above explanation of the objectives and fundamental values of the EU has shown, the Draft Directive in its aim to effectively combat criminal offences against women’s sexual self-determination cannot be reduced to an instrument based on purely political will. Thus, as required by the Federal Constitutional Court, the prerequisite of the cross-border dimension within the meaning of Art. 83 (1) TFEU is met precisely because of the nature and impact of the criminal offence in conjunction with the special need to combat rape throughout the EU on a common basis. The LS-C takes the same view in its opinion: The necessity criterion should therefore be affirmed, “for example in view of its particular seriousness and the need to ensure an equivalent level of protection for persons enjoying the right to free movement within the EU” (para. 51).

Outlook

The German government as the “Coalition of Progress” has prioritised protection against gender-based violence in its coalition agreement (p. 114). Thus, it is incomprehensible that its blockade is jeopardizing the adoption of the directive on combating violence against women and domestic violence, which is fundamental for protection against violence at the European level. The trilogue at the beginning of February 2024 under the Belgian Presidency is the very last chance to reach an agreement on the directive before the European elections in June 2024. As explained above, the legal argument against the inclusion of rape can be refuted. The directive is not proposed on a political whim but justified by the urgent and real need to better protect women against violence in Europe.