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Forced marriage and genital mutilation still present in Europe? – New Directive on domestic violence across the EU

On 24 April, the European Parliament implemented the first EU-wide regulation on combatting domestic violence, specifically with respect to violence against women. This legislation might seem shocking to some as most Europeans believe that forced marriage and genital mutilation do not exist in the modern ages. Surprisingly, in Europe, 600 000 women live that had to suffer through genital mutilations. The European Union aims to put a hold to these practices.

The Charter of the Fundamental Rights of the European Union only refers to violence, including violence against women indirectly. It can be interpreted and derived from Article 4 on degrading treatment or punishment, Article 6 on right to security and liberty of persons, moreover Article 21 on non-discrimination and Article 23 on equality between men and women. The Council of Europe already adopted the Istanbul Convention to combat violence towards women. In May 2011, the Committee of Ministers opened the document for signature, and it entered into force 3 years later, in 2014. The Convention calls for involvement of state agencies and to tackle the issue with multiple preventive and reactive measures. The special innovation of the Istanbul Convention is that it defines what gender is and also includes the definition of the term women and a somewhat extends is to girls under the age of 18.

The proposal of the European Commission was published in 2022 which also integrates cyber violence into the definition of domestic violence. It defines domestic violence as “a form of violence against women as it disproportionately affects women. It occurs in the family or domestic unit, irrespective of biological or legal family ties, either between intimate partners or between other family members, including between parents and children”. The directive is built on three P-s: prevention, protection and prosecution. In July 2023, inter-institutional negotiations started on the directive between the Council and the Parliament. The Parliament broadened the definition of non-consensual acts, emphasising the right to withdraw consent at any given moment. The proposal resulted in heavy debates regarding the extension of the definition of rape as an EU Crime.

Back in January, the negotiations regarding a new European Union Directive were finalised that considers combatting violence against women, specifically domestic violence. The directive in Article 4 defines the fundamental terms of the document. It differentiates between violence against women and domestic violence on a definition basis as well. It highlights that violence can be targeted towards anyone regardless of gender, race and age. Article 5 details rape and defines it as a criminal offence with intent to engage in non-consensual act of sexual penetration. Interestingly, the definition of rape restricts its scope to non-consensual forms of sexuality to only women.

The novelty of the directive is to address cyber harassment (Article 9), cyber staling (Article 9) and cyber incitement to violence or hatred (Article 10), and declaring both a punishable criminal offense. For criminal offenses in Article 8 and 10, Article 12 prescribes the Member States to punish these acts in their national legal systems with a minimum of 2 years of imprisonment. For Article 10, it requires a minimum sentence of 1 year in prison. For other acts, like genital mutilation, a minimum imprisonment of 7 years is required, showing that national legislations shall act and punish these criminal offences properly.

The directive follows a victim-oriented approach, emphasizing recovery and support for victims who suffered violence, specifically domestic violence. This is evidenced with the establishment of helplines for them (Article 31) and the act of providing shelter or other forms of interim accommodation (Article 32)

The opinion of the Member States varied on the proposed directive. Some, including Ireland, questioned the legal basis for creating criminal law regulations across the European Union. However, many pointed out that Article 82 and Article 83 already addresses these topics broadly therefore a directive can be created on the matter as well. Some Member States argued that the rape definition already contains the consent-based approach in their national laws, however, the Union institutions claimed that many countries still do not follow this pattern and with the directive, they will do so.

Despite the concerning voices of the proposal, the Council reached an agreement and then, on 24 April 2024, the European Parliament passed the Directive with 522 votes in favour and only 27 against. The Directive is about to step into force in 20 days and then, the Member States shall strengthen national legislation regarding combatting domestic violence.

Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. The main area of her research includes freedom of speech, digitalization, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.

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