Dr. Ceren Kasım, Postdoctoral
Research and Teaching Fellow, University of Hildesheim, Germany
Photo credit: MesserWoland, via Wikimedia Commons
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.