Malta in phalanx of EU states resisting ‘rape’ definition in gender violence law

The Maltese government has emerged as one of 17 member states in the EU who are resisting a crucial step to include the definition of rape in the EU’s Gender-Based Violence Directive.

Labour MEP Cyrus Engerer said during a debate on the International Day for the Elimination of Violence Against Women that despite support from both MEPs and the European Commission, Malta was among the Council’s majority opposing this definition.

“The dissent is rooted in the Council’s legal service’s assertion that there’s no legal basis for including rape in the directive, and that rape is not considered as sexual exploitation, counter to both the European Parliament legal services and the European Commission’s opinions,” Engerer said.

The MEP said this was a significant hurdle in MEPs’ collective efforts to combat gender-based violence.

“It’s disheartening to witness our nation take a divergent stance, especially on a day dedicated to the elimination of violence against women. The current impasse underscores the urgency for the 17 remaining member states to align with the prevailing sentiment and actively contribute to the fight against violence. It’s time for unity, solidarity, and a shared commitment to creating a safer and more equitable future for women across the European Union.”

Even European Commissioner for equality Helena Dalli, who is Maltese, penned a more diplomatic appeal to her home country in the national press, requesting that the Council agrees on adopting Article 5 of the Directive, which would call for a unified definition of rape based on the lack of freely given consent.

European Commissioner Helena Dalli

“We would be negligent not to ensure that all women living in the European Union are offered the same level of legal protection. I augur that the Council will come to agree on the urgency to take a step in this direction and share the commission’s perspective on this important definition. I expect that it agrees to establish that all sexual intercourse without consent is rape.”

In Malta, the latest data from Eurostat reports 28 women victims of rape in 2021, which is the highest since 2019.

The European Commission has proposed a directive to combat violence against women and domestic violence, which makes clear that rape is one of the most serious offences breaching a person’s sexual integrity and is a crime that disproportionately affects women.

In Article 5, it defines rape as penetrative sex performed without consent, with a body part or an object.

The consent that is required according to this proposal refers to an agreement that is freely given: it is not to be assumed from a lack of verbal or physical resistance or from the context of past intimate relations. That means that consent must be clearly expressed and may be retracted at any moment.

Conversely, the absence of consent is not only a ‘no’ or silence but any circumstance where an individual is coerced, pressured or intimidated into sexual activity.

“This distinction is not a formality,” Commissioner Helena Dalli said. “It is an essential prerequisite as the answer to this question clearly distinguishes between consensual sexual relations and rape.”

Dalli said that data shows that in member states where rape is defined in terms of an absence of consent, reports indicate an increase in the number of rape cases filed.

“This rise is linked to heightened public awareness of the improved legal definition of rape and an increase in trust in the legal system’s readiness to address such claims.

“Article 5 is, therefore, a beacon of empowerment for women as it shifts the discourse from questioning the victim’s behaviour to affirming the principle that only ‘yes’ means ‘yes’.

“By legislating on this basis, we do not only uphold the intrinsic value of individual will but also craft a legal shield that protects all women, asserting with unwavering clarity that unconsented sexual acts constitute rape.”