Dr. Ceren Kasım, Postdoctoral Research and Teaching Fellow, University of Hildesheim, Germany

Photo credit: MesserWoland, via Wikimedia Commons

INTRODUCTION

May 14, 2024, marked a pivotal moment for the European Union (EU) as it unveiled its first legally binding instrument to combat violence against women and domestic violence. This Directive, officially known as Directive 2024/1385, signifies the EU’s strong commitment to achieving genuine equality for women.

Gender-based violence is a pervasive issue across the EU. A staggering one in three women report experiencing physical or sexual violence, and tragically, six to seven women lose their lives daily at the hands of a partner or former partner. This violence is deeply rooted in gender-based discrimination, serving to maintain women in a subordinate position within society. The Directive aims to dismantle this structure by criminalizing various offenses and establishing preventative, supportive, and prosecutorial measures across Europe.

BACKGROUND

Directive 2024/1385 is a landmark legal document designed to curb violence against women (VAW) and domestic violence. It underscores the EU’s commitment to achieving gender equality, as enshrined in its foundational treaties and the Charter of Fundamental Rights. This aligns seamlessly with the EU Gender Equality Strategy 2020-2025, which prioritizes the elimination of gender-based violence.

European women’s organizations have long advocated for legal measures that would enhance women’s safety and empowerment across the continent. Launched symbolically on International Women’s Day in 2022, the Directive underwent extensive discussions, culminating in its adoption by the EU Parliament in April 2024.

A pivotal moment in this journey was the EU’s accession to the Istanbul Convention in October 2023. This convention, the only legally binding European treaty addressing gender-based violence, encountered opposition from some EU member states. This resistance highlighted the need for a dedicated EU legal instrument, particularly since several member states have yet to ratify the Istanbul Convention. Member States now have three years to incorporate the Directive’s provisions into their national laws.

COMMON RESPONSIBILITY AND A COMPREHENSIVE FRAMEWORK

The Directive is notable for acknowledging the collective responsibility of EU member states in addressing and advocating for a robust framework to prevent and combat VAW and domestic violence.

It takes a comprehensive approach, introducing detailed regulations and rules to ensure practical and enforceable measures. The Directive focuses on four key pillars: prevention and early intervention, protection and access to justice, victim support, and coordination and cooperation. This aligns with the Istanbul Convention’s four-pronged approach: prevention, protection, prosecution, and coordinated policies.

The Directive emphasizes preventative measures that extend beyond basic awareness campaigns to include mandatory, comprehensive education on sexuality, consent, and challenging harmful gender stereotypes.

Protection and support for victims are paramount. The Directive guarantees victims access to comprehensive medical care, including sexual and reproductive health services. This is a groundbreaking inclusion, as it marks the first time EU law explicitly obligates member states to provide such crucial medical care for victims of sexual violence. Additionally, it ensures victims have access to justice. Member States are obligated to train professionals likely to interact with victims, including law enforcement, prosecutors, and the judiciary. The prosecution of perpetrators must be consistently pursued across all member states. This training must be human rights-based, victim-centered, and sensitive to gender, disability, and children’s needs.

Significantly, the Directive urges member states to draw on the expertise of women’s organizations and specialized services. These groups play a vital role in addressing all forms of VAW and offering survivor support from a gender-sensitive and intersectional perspective.

CRIMINALISING FORMS OF VIOLENCE

The Directive establishes minimum standards for criminal offences and penalties related to the sexual exploitation of women and children, as well as cybercrime. By doing so, it criminalizes and categorizes forms of gender-based violence previously recognized by only a limited number of member states.

A crucial aspect is the mandatory criminalization of female genital mutilation and forced marriage. This sends a powerful message that these are not simply cultural practices but rather crimes rooted in gender inequality.

The Directive also prioritizes cyber-related violence. It criminalizes the non-consensual sharing of intimate or manipulated material, offering women protection that extends to instances like deepfakes. Additionally, cyberstalking, cyber harassment, and cyber-incitement are recognized as criminal offences. The Directive fills a legal void by addressing issues like cyberstalking, criminalizing various forms of online violence that disproportionately target women because of their gender.

Furthermore, the Directive outlines aggravating circumstances for these crimes. Offenses motivated by the victim’s sexual orientation, gender, color, religion, social origin, or political beliefs, as well as acts intended to uphold or restore “honor,” are considered aggravating factors. Crimes against public figures, journalists, or human rights defenders are also included.

INTERSECTIONAL DISCRIMINATION

A particularly forward-thinking aspect of the Directive is its emphasis on intersectional discrimination. It recognizes that individuals can face multiple forms of discrimination based on their overlapping identities, making them more susceptible to gender-based violence.

By acknowledging intersectional discrimination, the Directive extends its protection to the most vulnerable groups – including women from racial minorities, women with disabilities, individuals with diverse sexual orientations, gender identities, and expressions, sex workers, and those with lower socio-economic status. These groups, often overlooked and underserved, are at heightened risk of all forms of gender-based and domestic violence.

THE ABSENCE OF ACKNOWLEDGEMENT OF GBV AS A HUMAN RIGHTS VIOLATION

Despite its strengths, the Directive fails to explicitly recognize gender-based violence as a human rights violation. While it does refer to VAW and domestic violence as violations of fundamental rights, it misses the opportunity to directly align itself with the Istanbul Convention’s core human rights framework.

A CLEAR GENDER PERSPECTIVE MISSING

The Directive lacks a clear and consistent approach to the concept of gender. It often uses the terms “sex” and “gender” interchangeably, creating ambiguity and undermining its progressive intentions. A genuine gender perspective would have facilitated a deeper understanding of the systemic and historical roots of gender-based violence, moving away from a binary understanding of sex and harmful stereotypes.

Unlike the Istanbul Convention, the Directive does not provide a definition of gender. It primarily uses the term “violence against women” instead of “gender-based violence against women.” While these terms are sometimes used interchangeably, there is a crucial distinction. Gender-based violence, which includes violence against women, encompasses all forms of violence disproportionately affecting women and marginalized communities. By primarily using “violence against women,” the Directive risks excluding individuals who do not identify as women, such as sexual minorities and non-binary individuals.

NOT CRIMINALISED FORMS OF VIOLENCE

Certain forms of violence, such as intersex genital mutilation and forced sterilization, were not criminalized in the final Directive. Intersex genital mutilation affects intersex individuals, a group facing significant discrimination within the LGBTI population. Forced sterilization, a violation of reproductive rights, disproportionately impacts women with disabilities. The absence of explicit prohibitions on these practices is a significant oversight.

ABSENCE OF A DEFINITION OF RAPE

Despite persistent calls from women’s rights groups, human rights organizations, and academics, the Directive does not provide a common European definition of rape based on consent. While the initial proposal included a definition similar to the “yes means yes” approach adopted in Spain, it was ultimately removed from the final text. This omission is a notable departure from the Istanbul Convention, which explicitly defines rape based on the absence of consent.

UNDOCUMENTED WOMEN AND WOMEN WITH AN INSECURE RESIDENCE STATUS

The Directive lacks a dedicated section addressing the specific vulnerabilities of migrant women. Women without secure residency status face heightened risks of violence and exploitation, making them less likely to report abuse. The final text also omits safeguards initially proposed to prevent the sharing of victims’ personal data, including residency status, with immigration authorities. This raises concerns as it may deter migrant women from seeking help and contradict the Istanbul Convention’s emphasis on equal treatment for all women, regardless of their residency status.

THE WORLD OF WORK AND THE NEW DIRECTIVE

While acknowledging that VAW and domestic violence threaten the EU’s fundamental values, including equality in all aspects of life, the Directive falls short in comprehensively addressing workplace violence.

Despite efforts to include provisions on work-related violence, the final text primarily focuses on sexual harassment. It mandates counseling services for victims and employers in cases of criminal sexual harassment and requires training for workplace supervisors. However, it lacks broader protections against gender-based violence and domestic violence in the workplace, whether in employment, occupation, or self-employment.

Given the significant amount of time individuals spend at work and the link between work and socio-economic rights, a more inclusive approach to addressing workplace violence is crucial for advancing women’s rights in the EU.

CONCLUSION

Directive 2024/1385 is a significant step towards gender equality in the EU. It underscores the shared responsibility of member states in combating VAW and domestic violence, advocating for a comprehensive framework that encompasses prevention, protection, support, and cooperation. By criminalizing previously overlooked offenses and establishing minimum standards, the Directive has the potential to create meaningful change.

However, the Directive is not without its limitations. Its lack of a clear gender perspective, the absence of specific regulations on certain forms of violence, and its shortcomings in addressing workplace violence are notable drawbacks. Nonetheless, the Directive represents a major milestone. It is expected to shift legal norms and foster cultural change in understanding and addressing gender inequality across the EU. This progress should be celebrated while acknowledging that further efforts are needed to strengthen legal safeguards and eradicate gender-based violence and domestic violence completely.

[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.