Ana Cardoso (PhD candidate at the School of Law of University of Minho)
Last Monday, 25 November, marked the International Day for the Elimination of Violence against Women. The President of the European Parliament, Roberta Metsola, stressed that MEPs “stand with those abused, traumatised, bullied and brutalised”, as Parliament buildings were illuminated as part of the “Orange the world” campaign.[1]
According to United Nations (UN) estimations, a woman dies every 10 minutes victim of gender-based violence, with almost one in three women being subjected, at least once in their life, to physical and/or sexual intimate partner violence, non-partner sexual violence, or both, globally. Making gender-based violence against women and girls one of the most prevalent and pervasive human rights violations.[2]
In the EU, on May 2024, the European Parliament and of the Council approved the Directive (EU) 2024/1385 on combating violence against women and domestic violence, recognising that a specified regulation on this issue was needed. With a Directive being a legally binding instrument that requires the fulfilment of detailed objectives within a defined timeframe, the Member States are therefore obligated to alter or adapt their own legal systems, as a way to provide a better, more encompassing and overall equivalent protection to victims of gender-based violence.
Taking as a reference the first-ever study[3] on this Directive, which was coordinated by Professor Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam), we will endeavour to share some of the most relevant issues covered, and how the European Union (EU) as set its “minimum rules” when it comes to the protection of victims of gender-based violence.
The legislation and practices of Member-States varies extensively, be it when it comes to the definition of the concept of gender-violence, the levels of protection and support for victims that are afforded, the typology of the regulation of gender-based offences (sometimes civil in nature, sometimes criminal), or the consequences a certain legal system deigns as fitting. This could result in the curtailment of the right to free movement for the victims of gender-based violence if they move between Member-States, as the absence of legislative harmonisation would make it meaningless by possibly having the protection of victims revoked.
Further, the existing regulation of the Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012, which replaced Council Framework Decision 2001/220/JHA establishing minimum standards on the rights, support and protection of victims of crime, was insufficient, failing to take into account the specificities that should be applied to the protection of victims of gender-based violence.
This leads us to Directive (EU) 2024/1385, which delineates gender-based violence as two concepts: violence against women and domestic violence. The defining factor is the relationship between the aggressor and the victim, in the first case outside the family unit, in the second, inside it.
As a way to clarify the scope of application, the Directive also includes a number of definitions, namely, what constitutes violence against women, domestic violence, a victim, a provider of data hosting services, an intermediary service provider, a minor, a person in charge and, finally, the competent authority.
Here, we find one of the first criticisms levelled against this Directive, since it lacks, somewhat glaringly, the definition of the crime of rape. Although it had been included in the Commission’s original proposal – and endorsed by the European Parliament – it found opposition in the Council, and therefore was not included. However, rape is a crime in all 27 Member States, hence it is considered a crime for the purposes of the Directive. Professor Freixes argues that there is a possibility that the Directive will be expanded in future regarding this issue.
The Directive also approaches the issues of combating violence against women and domestic violence setting three legal areas as its object: the criminal sphere in its Chapter II, the procedural sphere in its Chapter III, and the social sphere in its chapter IV.
When it comes to the criminal sphere, it defines the criminal offences and their respective sanctions. Articles 3 through 8 establish as crimes for the purposes of the Directive, female genital mutilation, forced marriage, non-consensual dissemination of intimate or manipulated material by means of information technology, cyber stalking, cyber harassment and incitement to violence or hatred by cybernetic means. Articles 10 and 11 stipulate the criminal sanctions and possible aggravating circumstances.
Here we find two more problems with the Directive. The wording of the number of years a given crime is expected to be punished for, “maximum of at least”, is not only lexically incorrect, it is also highly confusing. Member states will find it difficult to transpose the directive correctly, which jeopardises its effectiveness.
The second issue relates to the fact that in this Chapter the European legislator seems to forget that some of the conducts criminalised can be carried out with or without telematic means, namely the dissemination of intimate material, stalking, and harassment. The Directive establishes that they be penalised only when they are carried out using computers, leaving these conducts uncovered when done offline.
When it comes to the procedural sphere, Chapter III regulates victims’ rights in all types of proceedings, before, during and also once they have ended when believed necessary. This includes guidelines for the establishment or adaptation of proceedings when it comes to reporting, investigation and prosecution, individual assessment of first contact and of support needs, referral to support services, urgent restraining, prohibition and protection orders, protection of the victim’s privacy, guidelines for prosecuting authorities, the role that national bodies have, measures that should be in place to remove inappropriate material online, and the opportunity of compensation from perpetrators.
The idea here is to go beyond what is considered to be a normal good practice when dealing with a victim of a crime and introduce specific adaptations which take into account the specificities of the situation of a victim of gender-based violence. Some positive aspects worth highlighting have to do with the introduction of a telematic complaint, a broad legal standing to report, a specific mention that health professionals, investigators and prosecutors must be adequately trained and equipped with effective tools for the performance of their duties, the introduction of additional guarantees for reporting by minors, and the requirement that special attention must be paid to cybercrime – namely when it comes to the protection of the victim’s privacy, and the removal of certain online material.
Finally, when it comes to the social sphere, Chapter IV establishes the minimum standard of protection and support for victims, including prevention and early protection. It distinguishes between general issues and specialised support for different types of victims and encompasses all victims of violence against women and domestic violence, including instances that were omitted from the Directive’s list of crime, such as rape and sexual harassment in the workplace.
The type of support designed by the Directive is twofold: general support for victims of violence against women and domestic violence to be guaranteed always, even in crisis situations or states of health emergency; and specific support for those who have experienced sexual violence, female genital mutilation, sexual harassment in the workplace, child victims, and what it is called “victims with intersectional needs” and groups at risk – meaning those who suffer from multiple discrimination due to a stacking of factors, like race, religion, or nationality.
As we can observe, the main objective of the Directive is to set “minimum standards”, which the Member States may, and perhaps, should improve upon, be it in terms of definitions, criminalisation, rights granted to victims or protection and support that can be given.
Importantly, the Directive includes in its Article 48 a minimum standard and non-regression clause. Meaning that its application cannot be used by Member States to justify a reduction in the level of protection of victims. When the national protection is higher, that is the one that must be enforced. Additionally, although flexibility is allowed, the level of protection established by the Directive cannot be lowered.
Lastly, the Directive does not address the definition of the concept of gender and, occasionally, appears to include it in or confuse it with the concept of sex. As we have had the opportunity to explore previously in another, but related, area of study,[4] having a clear understanding of these concepts can be a starting point for the effective protection of rights. The inclusion of the definition of gender could have made some of the proposed measures clearer, and not have created a gap when it is used in the definition of victim at the beginning of the Directive.
Despite its somewhat haphazard organisation, cumbersome wording – which makes it sometimes difficult to interpret –, and the need for perhaps a more holistic approach to the issue of gender-based violence – as reasoned by the European Women’s Lobby and the Economic Social Council –, this Directive is a positive step for the protection of victims of gender-based violence and domestic violence, and it could be the starting point for growth in future, going beyond these “minimum standards” or “minimum rules”, further cementing the rights and fundamental freedoms of European citizens.
[1] European Parliament, “President Metsola calls for an end to violence against women”, https://www.europarl.europa.eu/news/pt/press-room/20241121IPR25542/president-metsola-calls-for-an-end-to-violence-against-women (27.11.2024).
[2] United Nations, “International Day for the Elimination of Violence against Women – 25 November”, https://www.un.org/en/observances/ending-violence-against-women-day (27.11.2024).
[3] See Teresa Freixes Sanjuán, “Legal study on the European Directive on violence against women and domestic violence (EU Directive 2024/1385 of the European Parliament and of the Council of 14 May 2024)”, European Project MASF2024-002 (European Women’s Lobby and LEM Spain), 2024, legal-study-on-the-directive-on-violence-against-women.pdf. The Spanish version is available at estudio-legal-de-la-directiva-sobre-violencia-contra-las-mujeres.pdf.
[4] Ana Cardoso, “Trans rights in the European Union – “sex” v. “gender” on the path towards equality and non-discrimination”, UNIO EU Law Journal, vol. 8, no. 2 (2023), https://doi.org/10.21814/unio.8.2.4761.
Picture credits: by Pixabay on Pexels.com.