Author: Darya Soboleva (Vienna Masters of Human Rights)
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Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) is the first legally-binding set of guidelines aiming to protect victims, prosecute offenders and prevent domestic violence. However, Istanbul Convention is currently the most debated instrument to improve the protection of women’s rights. Recent debates, critics and the willingness of some member states to withdraw from the Istanbul Convention put the protection of women under a serious threat. Conservative political narrative has played a fatal role, resulting in the refuse to ratify from some countries and intention to withdraw from the treaty from others. It goes without saying that this tendency is capable to diminish the very progressive nature of laws and obligations which are enshrined in the treaty.
One of the most notable examples is the definition of the consent provided by the treaty. Under the Istanbul Convention, all non-consensual acts of a sexual nature have to be criminalized. Much of this is covered under Article 36 of the Istanbul Convention, which states that, “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances”. Moreover, State Parties are obliged to implement this definition of the consent into their domestic legislation.
While 34 of 47 members have ratified the convention, only a few have tailored their legislation in compliance with Article 36. This means that for many, rape only occurs as a criminal offence if there is a use of threat or force, or the inability of the victim to defend themselves. But many rapes do not involve physical coercion. As a result, many European countries are amending their current laws towards a more consent-based model.
Austria and Luxembourg were one of the first countries to adapt its criminal legislation. It was followed by Belgium, which revised its Criminal Code to define rape as “[…] any act of sexual penetration, of whatever nature and by whatever means, committed in respect of a person who has not given consent.” It also specified that “violence, duress, threats, and surprise can be classified as lack of consent, but these circumstances are not exhaustive and do not constitute essential elements of the offence”.
Other changes came in quick succession:
- In 2016 Germany tailored its penal code to comply with the consent-based rape definition.
- Malta has modified the definition of rape in its penal code in 2018 to come into line with the Convention’s requirements, stipulating that there is a presumption of “[…] lack of consent unless consent was given voluntarily, as the result of the person’s free will, assessed in the context of the surrounding circumstances and the state of that person at the time, taking into account that person’s emotional and psychological state, amongst other considerations.” This year Iceland had also unanimously passed law on sexual consent as well as under the law of 2018 in Sweden, sexual participants have to ‘agree in words’ or ‘clearly demonstrate’ that they want to engage in sexual activity, whereas acting passively cannot be considered as a sign of voluntary participation. The legislation also makes it a criminal liability through negligence if reasonable measures are not taken to establish consent.
- In 2019 Greece changed its penal code provision to make any attempt of a sexual act without consent punishable by up to ten years in prison.
- In 2020, Denmark and Cyprus have also defined rape by the absence of consent.
Portugal, Finland, the Netherlands, and Spain have announced their intentions to reform their laws to become consent-based and bring the rape definition in line with international human rights law.
It has to be underlined that amending the definition of consent in national legislation as its required by the Istanbul Convention has been proven to be a real-working instrument for the protection of victims’ rights and taking a step back by some of the countries can significantly hinder women’s protection.
Internship information:
Starting from September 2020, I have been doing my internship at the Secretariat of the EU-Russia Civil Society Forum. CSF is a network of thematically diverse non-governmental organisations from Russia and the European Union, established as a bottom-up civic initiative.
The Forum serves as a platform for members to engage in joint activities, articulate common positions, provide support and solidarity, and exert civic influence on policy- and decision-making on the (inter)governmental level.
During my internship, I have been working on different projects/programmes spearheaded by the members of the Secretariat. Thus, I have conducted research for the Forum’s multiple and different projects tied to legal issues in the EU and Russia, EU-Russia relations and internal relations within the two, human rights, history and memorialisation, assisted in organising study tours, fellowships, events and visits throughout the EU and Russia, wrote concise summaries of relevant news articles in English and Russian, translated documents and articles from English to Russian and vice versa, created visuals for online and offline projects, completed miscellaneous administrative and office tasks.
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