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11 NEWS EWROPEJ maltatoday | SUNDAY • 10 DECEMBER 2023 The articles hereunder form part of a content series called Ewropej. This is a multi-newsroom initiative part-funded by the European Parliament to bring the work of the EP closer to the citizens of Malta and keep them informed about matters that affect their daily lives. These articles reflect only the authors' views. The action was co-financed by the European Union in the frame of the European Parliament's grant programme in the field of communication. The European Parliament was not involved in its preparation and is, in no case, responsible for or bound by the information or opinions expressed in the context of this action. In accordance with applicable law, the authors, interviewed people, publishers or programme broadcasters are solely responsible. The European Parliament can also not be held liable for direct or indirect damage that may result from the implementation of the action. ing because it frequently feels the pressure of the EU or oth- er influential member states, forcing its hand on other laws it does not see the urgency of enacting nationally. To keep enjoying that position on the laws it 'might not like', it needs to show a similar lack of zeal on such 'super-structure' laws as the harmonised definition of no-consent rape. But the 17 states opposing the directive's proposals are also resting on the opinion issued by the Council Legal Service (CLS), which says that the Treaty of the European Union (TFEU) already has a list of "euro crimes". Rape is not one of them. And attempts by the European Commission to argue that rape is a tool of sexual exploitation have been refused because the CLS says the notion of 'sexual exploita- tion' under the TFEU can only be used on a specific aspect of human trafficking. "The notion of 'sexual ex- ploitation' is generally not used to cover crimes like rape or engaging sexual activity with a person without his or her consent, of which the es- sential constitutive element is sexual violence directly affect- ing the physical integrity and sexual freedom, as opposed to sexual exploitation," Jonathan Attard told MaltaToday. Harmonised definition of 'rape' According to the Council legal service, a compromise could have been reached if a non-discriminatory approach was taken by referring to the sexual exploitation of "adults" or "persons", so that the crime of rape be redrafted in a gen- der-neutral way. The proposed Gender-Based Violence directive is to al- low for minimum rules for the criminal offences of rape against women and female genital mutilation (FGM), as well as revenge porn, cyber stalking, cyber harassment, and cyber incitement to vio- lence or violence. Under the TFEU, such mini- mum rules for criminal offenc- es can be laid down on specific crimes: namely when they are "particularly serious" – which in this case rape is – and then having "a cross-border dimen- sion", either due to their na- ture and impact, or because of a "special need" for a common basis to combat such crimes. With these two aspects in mind, the TFEU had listed two such "euro-crimes" upon its drafting, namely human traf- ficking, and computer crime. The CLS said that unless the Council extends these eu- ro-crimes, unanimously, then the crime of rape could only be considered as to whether it falls under the human traffick- ing dimension of crime. Article 5 of the proposed Gender Violence Directive proposes the definition of rape, as a criminal offence, by way of engaging with a woman, or causing her to engage in any non-consensual act of vaginal, anal or oral penetration of a sexual nature, with any bodily part or object. It adds that a non-consensual act is under- stood as "an act performed without the woman's consent given voluntarily or where the woman is unable to form a free will due to her physical or mental condition, thereby ex- ploiting her incapacity to form a free will, such as in a state of unconsciousness, intoxication, sleep, illness, bodily injury or disability." But the CLS believes the Commission's proposal for rape, interpreted as the "sexual exploitation of women", falls short of a gender-neutral ap- proach. "Contrary to the gender-neu- tral approach taken, for exam- ple, in the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention)... rape of adults would be crim- inalised at EU-level only where perpetrated against women, despite the fact that sexual freedom and physical integri- ty of man is to be equally pro- tected by the incrimination of rape," the CLS said. It added that such a defini- tion could render the law open to a legal challenge based on non-discrimination provi- sions. The CLS suggested that the Commission's interpretation of the Treaties had to propose the crime of rape as one that concerns adults, or persons, rather than just women, or in- stead extend the Treaty's 'eu- ro-crimes' by adding the com- petence to establish minimum rules on the definition of crim- inal offences for sexual abuse and sexual violence. MEPs disappointed Despite appeals from both Maltese Commissioner for equality Helena Dalli and La- bour MEP Cyrus Engerer, Mal- ta did not back the harmonised definition of rape. On Monday, Irish MEP Frances Fitzgerald (EPP) and Swedish MEP Evin Incir (S&D), the European Parlia- ment's negotiators on the leg- islative proposal on combating violence against women and domestic violence, expressed disappointment at the Coun- cil's refusal. "We are extremely disap- pointed that certain EU gov- ernments, especially France and Germany, are refusing to include a consent-based defini- tion of rape in the draft legisla- tion. For us, for survivors, and for anyone who supports wom- en's rights, it is obvious that rules on combating violence against women and domestic violence cannot possibly be complete without addressing rape," the two MEPs said. Data from the EU Agency for Fundamental Rights in 2014 show that one in ten women in the EU had experienced some form of sexual violence since the age of 15, and one in twen- ty women had been raped. "Since then, no step has been taken at European level to pro- vide an adequate and consist- ent level of legal protection to over half of the EU's popu- lation," the MEPs said. "Leg- islation in the member states remains patchy - and in most cases, it is not fit for purpose. Outdated rules give perpetra- tors a 'get out of jail free' card, by placing the burden of proof on survivors or requiring med- ical confirmation using sys- tems that do not account for the complexity of the crime. Moreover, women travel- ling or moving to another EU member state have to deal with this legal fragmentation and complexity, often giving up a decent level of protection they enjoyed at home." The MEPs said the EU was obliged to protect all Europe- ans, as per the Charter of Fun- damental Rights. "Yet many governments, including those of France and Germany, ignore the plight of over half their population, in order to pursue short-sighted political goals or to protect unfounded, ill-con- ceived claims of a lack of legal basis for these new rules. The time to provide robust rules to protect women from violence is now," the MEPs said. away from zealous EU definition Justice minister Jonathan Attard (left) with European Justice Commissioner Dider Reynders