Dr. Ceren Kasım, Postdoctoral
Research and Teaching Fellow, University of Hildesheim, Germany
INTRODUCTION
The first-ever binding European
Union (EU) legal instrument to combat violence against women and domestic
violence was approved on the 14th of May 2024 by the EU and has already been
published in the Official
Journal of the European Union. This Directive, known as Directive 2024/1385
on combating violence against women and domestic violence (Directive), marks a
historic moment for equality and equal opportunities in the European Union and
is a significant symbol of the EU`s dedication to achieving not only de jure
but also de facto equality.
Gender-based violence is
prevalent in the European Union, with one in three women in the EU reporting
experiences of physical and/or sexual violence.
Each day, between 6 and 7 women in Europe are killed by their partner or ex-partner,
resulting in an estimated total of 2300 women becoming victims of femicides
every year.
The structural nature of such violence is inherently connected to gender-based
discrimination, serving as a central social mechanism that perpetuates women`s
subordination in society. The Directive represents a step closer to gender
equality in the European Union, not only through the criminalisation of many
offenses but also by promising preventive, supportive, and prosecutorial
measures linked with training and coordinated Europe-wide policies.
BACKGROUND
The Directive 2024/1385 is a
groundbreaking legal document that aims to prevent and combat violence against
women (VAW) and domestic violence. It highlights the European Union’s
objectives to achieve equality between women and men, as outlined in the
Treaties, including Art. 2, Art. (3)(2) TEU, Art. 8, 10, 19 TFEU, as well as
Art. 21 and 23 of the Charter of Fundamental Rights, which represent the
fundamental values of the EU. The Directive also aligns with the EU Gender
Equality Strategy 2020-2025, which includes the objective of eliminating
gender-based violence.
European women`s organisations
have advocated for a European legal instrument to empower women in Europe,
aiming to create a safer environment for women and girls.
In a parallel development, the Directive was launched on March
8, 2022, a significant symbolic date for women's rights – International
Women`s Day. Subsequently, on June 9, 2023, the Council agreed on its position
regarding the proposed Directive, leading to a deal being reached among EU
legislators in February
2024. The EU Parliament then adopted the directive on April 24, 2024, with
522 in favor, 27 against, and 72 abstentions, which was later adopted by the
council on May 7, 2024. Finally, on May 14, 2024, the act was signed.
Moreover, a significant advancement
towards gender equality in the European Union was the accession of the EU to
the Council of Europe Convention on preventing and combating violence against
women and domestic violence (Istanbul
Convention) (IC) on October 1, 2023 – the sole binding European human
rights document addressing gender-based violence. However, controversy
surrounding the Istanbul Convention arose within the broader European context,
with instances such as the Bulgarian
Constitutional Court declaring it unconstitutional
in 2018. Additionally, Polish
government argued
that the convention disregards religious beliefs and promotes what they term ‘gender
ideology’. In 2019, the Slovakian
parliament chose not to ratify the Convention, despite earlier signing it.
Notably, an Opinion by the European Court of Justice (Grand Chamber) on October
6, 2021 (Opinion
1/19), paved the way for swift ratification of the Convention,
allowing the Council to adopt it through a qualified majority vote.
EU acceded to the Convention, handling matters falling under its exclusive
competences as defined by agreed common rules related to judicial cooperation,
asylum, non-refoulement, institutions, and public administration of the Union.
So, it was crucial for the EU to have its own
legal instrument, especially considering that some EU Member States have
not ratified the Istanbul
Convention.
The Directive stands as the sole
European Union legal source addressing VAW and domestic violence directly.
Member States now have three years to implement the provisions (Art. 49).
COMMON RESPONSIBILITY AND A
COMPREHENSIVE FRAMEWORK
The Directive stands out in many
aspects. Foremost, it acknowledges the shared responsibility
of Member States in addressing and advocating for a comprehensive framework to
effectively prevent and combat VAW and domestic violence.
This holistic approach within the
Directive introduces detailed regulations and sets down rules to prevent and
address VAW and domestic violence, with the aim of ensuring effectiveness and
enforceability. The Directive's obligations cover four key pillars: prevention
and early intervention, protection and access to justice, victim support, coordination
and cooperation. In alignment with the four aims of the Istanbul Convention –
prevention, protection, prosecution, and coordinated policies – the EU seeks to
bolster the protection of all victims of VAW and domestic violence by
establishing measures focusing on prevention, minimum guidelines for reporting,
early intervention, victim protection, support, access to justice, perpetrator
prosecution, training, enhanced data collection, coordinated mechanisms, and
cooperation requirements.
The Directive establishes
mechanisms for prevention and early intervention, as well as measures to
protect and support victims, outlining the minimum rights of victims of all
forms of VAW or domestic violence before, during, and for a period of time
after criminal proceedings. It advocates for a comprehensive preventive
approach and ensures the existence of early intervention mechanisms. It is
convenient to emphasise the importance of these mechanisms going beyond basic
preventive measures to include compulsory comprehensive sexuality education,
consent education, and challenging negative gender norms.
The Directive mandates the
provision of protection and support for victims, guaranteeing victims access to
comprehensive medical care and sexual and reproductive health services. This
marks the first instance where EU law imposes explicit obligations on Member
States to ensure access to essential medical care for victims of sexual violence.
Additionally, it ensures that victims have access to justice. Member States are
required to provide training for professionals who are likely to interact with
victims, including law enforcement, prosecutors, and judiciary. Moreover, the
prosecution of perpetrators must be consistently ensured across all Member
States. The training provided should be based on human rights, centered around
the victim, and sensitive to gender, disability, and children (Art. 36).
In many respects, the Directive
is determined, demanding that Member States adopt comprehensive and coordinated
policies (Art. 38) and introduce national action plans (Art. 39) that should be
implemented with union-level cooperation (Art. 43). These efforts should be
bolstered by collaboration with non-governmental organisations (Chapter 6).
Member States are urged
to consider the expertise of women's organisations and women's specialist
services, as crucial players in addressing all forms of VAW and offering
assistance to survivors with a gender-sensitive and intersectional outlook.
CRIMINALISING FORMS OF VIOLENCE
In addition, the Directive
establishes minimum rules specifying criminal offences and penalties related to
the sexual exploitation of women and children, as well as cybercrime. In doing
so, it criminalises and categorises forms of gender-based violence that were
previously only acknowledged by a limited number of Member
States. By taking this step, the Directive aims to standardise criminal
legislation across the European Union concerning certain forms of VAW.
One key aspect is the requirement
for EU countries to criminalise female genital mutilation (Art. 3) and forced
marriage (Art. 4). This demonstrates the Directive`s firm stance that these
issues are not merely products of cultural distinctions but are rather
gender-related crimes.
Moreover, the Directive places a
significant emphasis on addressing cyber-related violence. It considers the
non-consensual sharing of intimate or manipulated material as a criminal
offence (Art. 5), providing a safety measure to protect women, which also
encompasses instances like deepfakes.
Additionally, cyber stalking (Art. 6), cyber harassment (Art. 7), and
cyber-incitement (Art. 8) are recognised as punishable criminal offences. The
Directive also addresses issues such as cyber stalking that have previously not
been adequately covered in EU legal regulations, thereby filling a legal gap
and for the first time criminalising various forms of cyber violence that
predominantly target and impact women due to their gender.
Furthermore, the Directive
outlines a list of aggravating circumstances (Art. 11), which include offences
driven by motives related to the victim`s sexual orientation, gender, colour,
religion, social origin, or political beliefs, as well as actions intended to
uphold or restore “honour”. It also covers crimes against public figures,
journalists, or human rights defenders.
INTERSECTIONAL DISCRIMINATION
One of the most visionary aspects
of the Directive is its consistent reference and emphasis on intersectional
discrimination. The term ‘intersectional discrimination’, coined by Kimberle
Crenshaw in the early 1990s, highlights the nature of discriminatory practices
by showing how different discriminatory grounds interact with each other in a
multifaceted way. The intersectional aspect of discrimination makes women more
vulnerable and at a heightened risk of experiencing gender-based violence.
The Directive refers to
intersectional discrimination in connection with Art. 21 of the Charter of
Fundamental Rights and the referenced grounds of discrimination (Articles 16,
21, 33). With advancing technologies, Art. 21 of the Charter becomes more significant
as it includes genetic features as a ground for discrimination. By
acknowledging intersectional discrimination, the Directive extends its
protection to the most vulnerable groups who are at risk of all forms of
gender-based violence and domestic violence – including women from racial
minorities, women with disabilities, individuals with different sexual
orientations, gender identities, and expressions, such as transgender and
non-binary individuals, sex workers, individuals with lower socio-economic
status, those who are homeless, with unstable immigration status – to access
improved support
services. These groups are the least protected and supported in society.
THE ABSENCE OF ACKNOWLEDGEMENT
OF GBV AS A HUMAN RIGHTS VIOLATION
However, there is a missing human
rights perspective in the Directive. Neither in the Preamble nor anywhere else
does the Directive acknowledge that gender-based violence is a human rights
violation. This recognition is a core element of the Istanbul
Convention. However, the Directive refers to VAW and domestic violence as a
violation of fundamental rights and, thereby losing its connection to the most
significant human rights document on VAW and domestic violence in Europe.
(Compare Art. 3(a) IC to Art. 2(a) Directive 2024/1385) The Directive missed an
opportunity to align closely with the Istanbul Convention's human rights
approach, which would have been a groundbreaking step in addressing
gender-based violence and domestic violence at the EU level.
A CLEAR GENDER PERSPECTIVE
MISSING
In the Directive, a clear
reference to gender and a distinction between ‘gender’ and ‘sex’ are also
lacking. The Directive has an ambiguous relationship with the concept of
gender. It uses the terms ‘sex’ and ‘gender’ interchangeably in most cases,
leading to significant uncertainty and undermining all the progress that has
been made thus far. It lacks a genuine gender
perspective. Which would have allowed for an understanding of the root
causes, socially structured and historically ingrained nature of violence in
relation to structural inequalities, moving away from a binary understanding of
sex and stereotyping.
Unlike the Istanbul Convention,
the Directive does not provide a definition of gender. CEDAW has also amended
its General
Recommendation No. 35 by explicitly choosing the phrase ‘gender-based
violence against women’, a new and more inclusive approach to addressing the
issue. Gender is socially constructed, whereas sex is genetically determined.
The concept of gender enables us to comprehend violence within its societal
context rather than viewing it as an individual
problem. Considering that the European Court of Justice also does not clearly
differentiate between ‘gender’ and ‘sex’ and regrettably uses the two terms
interchangeably, it would have been appropriate for the European legislative
body to rectify this and bring clarity.[1] The Directive
could have simply followed the footsteps of the Istanbul Convention and
provided clear definitions of the term gender and distungish betwenn gender and
sex.
Furthermore, the Directive uses
the term ‘violence against women’ instead of gender-based violence. However, it
defines ‘violence against women’ as “gender-based violence directed against a
woman or a girl because she is a woman or a girl or that affect women or girls
disproportionately”. (Art. 2(a)) ‘Victim’ refers to “any person, regardless of
their gender, who has suffered harm directly caused by violence against women
or domestic violence”. (Art. 2(c) ) Throughout the text, the directive does not
clearly differentiate between ‘sex’ and ‘gender’. Although some use ‘violence
against women’ and ‘gender-based violence against women’ interchangeably, there
is a distinction in understanding. Gender-based violence, including violence
against women, encompasses all forms of violence that disproportionately affect
women and marginalised communities.
Using ‘violence against women’ as an umbrella term excludes also individuals
who do not fit into the category of ‘women’, such
as sexual minorities and non-binary people.
NOT CRIMINALISED FORMS OF
VIOLENCE
In addition, other forms of
violence, such as intersex genital mutilation and forced sterilisation, were
ultimately not criminalised
in
the Directive.
Intersex genital mutilation affects intersex individuals, who
are one of the most discriminated groups among the LGBTI population. On the
other hand, forced sterilisation is a surgical procedure that removes a person`s
ability to have children without consent or under
undue pressure. Women with disabilities are disproportionately
subjected to forced and involuntary sterilisation. United Nations human rights
instruments, mechanisms, and agencies have acknowledged that the forced
sterilisation of persons with disabilities constitutes discrimination, a form
of violence, torture, and other cruel, inhuman, or degrading
treatment. The UN Special Rapporteur on the rights of persons with
disabilities stated in 2017 that protecting the rights of persons with disabilities
to make decisions about their own bodies and sexuality is crucial in the global
effort to end violence, exploitation, and abuse
against women. Forced sterilisation is still either permissible by law or
not expressly banned in 12 out of the 27 EU Member States –Bulgaria, Cyprus,
Croatia, Denmark, Estonia, Hungary, Finland, Latvia, Lithuania, Portugal, Slovakia
and the Czech Republic– as
reported by the European Disability Forum.
ABSENCE OF A DEFINITION OF
RAPE
One of the continuous criticisms
and demands preceding the adoption of the Directive was a common European
consent-based definition of the crime of ‘rape’. Article 5 of the initial
Proposal, focusing on the definition of ‘rape’ – a definition similar to the
Spanish law from 2022, known as the “yes means yes” approach – was deliberated
for nearly two years and was ultimately removed
from the draft. This sets the Directive apart
from the Istanbul Convention, which already includes a definition of rape
based on
the absence of consent (Art. 36 IC). Member States held varying opinions on
this matter, with Italy and Greece supporting
the inclusion of such a definition, while
Germany
and France opposed
it,
arguing that the EU lacked the authority to address this issue. Despite
persistent demands from women's
and
human
rights
organisations,
as well as many
academics,
the approved Directive does not provide a definition.
UNDOCUMENTED WOMEN AND WOMEN
WITH AN INSECURE RESIDENCE STATUS
The Directive lacks a dedicated
chapter addressing migrant women. The
absence of an independent residence status, a secure status, or any status
poses challenges for women, increasing their vulnerability to violence or
exploitation in a variety of contexts by employers, intimate partners, or other
individuals. As a result, they are less likely to report violence and abuse.,
limiting their access to justice and their ability to escape abusive
situations, rendering them vulnerable to further abuse.
Recently, the European Court of Justice in two landmark cases WS v Bulgaria
(C‑621/21)[2]
and K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21)
reaffrimed the status of women as a whole, including minors, and women facing
domestic violence in their country of origin in particular, and women who
identify themselves with the fundamental value of equality between women and
men qualify as a protected ‘social group’ in reference to Istanbul Convention. While
the initial proposal included provisions to ensure that no personal data about
victims of abuse, including residence status, would be shared by police with
immigration authorities, the final text omits
these safeguards
(Art. 16(5) Propsal) As stated by many human rights organisations, this
approach would run counter
to the EU's rules on victims' rights (Victims' Rights Directive) and data
protection (General Data Protection Regulation), which mandate rights and
safeguards for all individuals without discrimination. This discrepancy with
the Istanbul Convention contradicts the Convention`s requirement that all women
be treated equally, irrespective of their
residence status.
THE WORLD OF WORK AND THE NEW
DIRECTIVE
In its preamble, the Directive
highlights that VAW and domestic violence pose a threat to the fundamental
values and rights of the European Union, particularly equality between women
and men and non-discrimination. These forms of violence undermine women and
girls' rights to equality across all aspects of life, including the world of
work. The European
Gender Equality Strategy 2020-2025 as well outlines key objectives, such as
ending gender-based violence, challenging gender stereotypes, closing gender
gaps in the labour market, achieving equal participation in various sectors of
the economy, addressing gender pay and pension disparities, bridging the gender
care gap, and attaining gender balance in decision-making and politics.
However, the Directive falls
short in thoroughly regulating gender-based violence in the world of work. The
initial Proposal in Article 4 defines ‘sexual harassment at work’ as any form
of unwanted verbal, non-verbal, or physical conduct of a sexual nature that
violates the victim`s dignity, particularly when creating a hostile or
offensive environment. Despite
efforts to include work-related violence, such provisions were rejected and
are absent from the final text.
The Preamble of the Directive refers
to sexual harassment at work in connection to EU non-discrimination Directives
(No. 65 Preamble) and also in relation to support and protection mechanisms
(No. 77 Preamble). Only Article 28 mandates that Member States ensure
counselling services are accessible for victims and employers in cases of
sexual harassment at work that constitute a criminal offence under national
law. Article 36 states that individuals with supervisory in the workplace
should receive training on recognising, preventing, and addressing sexual
harassment at work. Additionally, Article 19 briefly mentions that restraining
orders should prevent the perpetrator from entering the victim`s workplace but
does not delve into specific scenarios. By 14 June 2032, the Commission is
required to assess the need for further Union-level measures to effectively
address sexual harassment and violence in the workplace (Article 45).
Given that individuals spend a
significant part of their lives in the workplace and the relationship of work
to socio-economic rights, an inclusive and comprehensive approach to addressing
violence at work will have an emancipatory and empowering impact on women`s
rights in the European Union. This approach should involve third-party violence
and harassment at work, encompassing gender-based violence as well as domestic
violence, whether in employment, occupation, or self-employment. However, the
Directive falls short in this regard.
CONCLUSION
In conclusion, the Directive
represents a significant advancement in promoting gender equality within the
European Union. It recognises the shared responsibility of Member States in
addressing violence against women and domestic violence, advocating for a
comprehensive framework to effectively prevent and combat such issues. By
criminalising offences that were previously overlooked in EU Member States and
establishing minimum standards that Member States can exceed, the Directive
serves as a robust legal instrument. It takes a holistic approach, providing
detailed regulations and guidelines spanning from prevention and early
intervention to protection, access to justice, victim support, and coordination
and cooperation.
While the Directive is a positive
step forward, it falls short of the initial Proposal's ambition, lacking a
clear gender perspective and specific regulations on certain forms of violence,
particularly in the context of the world of work. Nevertheless, the Directive
is poised to bring about significant changes in the legal norms of Member
States and pave the way for a cultural shift in understanding and addressing
gender inequality that persists in EU countries. This milestone should be
celebrated, while also acknowledging that there is still much work to be done
to enhance legal safeguards in preventing and eradicating gender-based violence
and domestic violence.
[1] Endres de Oliveira, Pauline /
Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den
flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der
Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.
[2] Endres de Oliveira, Pauline /
Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den
flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der
Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.
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