On no-consent rape, Malta shies away from zealous EU definition

At home, Malta’s Labour administration has launched a national strategy on domestic violence which, ministers hope, will address the stuttering enforcement of the laws protecting women from aggressors.

But in Brussels, the mood is a different one. While Malta’s Commissioner for equality Helena Dalli seeks to advance a harmonised definition of no-consent rape in the EU’s directive on gender violence, her home country does not want to take that step.

Together with 16 EU member states, Malta is adopting a restrictive view of the kind of crimes that the European Union should be able to apply common rules on. And a cross-border application of rules on the prosecution of rape, is not one of them.

Activists and politicians who believe in the objectives of the Gender Violence Directive have been met by a lack of appetite in the EU to legislate on new areas of so-called “euro crimes”, where a standardised definition would – theoretically – protect a female victim of gender violence in Bulgaria as much as she is protected in Malta.

Justice minister Jonathan Attard says Maltese national law already ratifies in full the principles of the Istanbul Convention with the introduction in 2018 of no-consent rape.

“Our national law goes beyond the minimum standards proposed by the Commission regarding rape,” he says.

But Attard will not be an evangeliser in Brussels. Prising open the EU Treaty, which already has its list of serious “euro crimes” with a cross-border dimension, can be a tricky political line to follow – perhaps more particularly for a small member state.

“Nationally our law is already in line with the proposed Directive. We do not think however that the EU should have this competence on aspects of national law by casting a wider obligation on other member states,” Attard concedes – predicting that Malta would not want to have its own hand forced by the Union, on other aspects of criminal law.

It is a restrictive view of EU law which, even insiders concede, does not truly reflect Malta’s alleged ambition as a champion of LGBTQI rights in Europe.

“Malta may have enshrined the Istanbul Convention on paper, but the truth is that women are unprotected when a failing law enforcement system cannot take them out of the house of their aggressor,” says one activist, who will remain anonymous. Last year 3,100 victims of domestic violence – 77% of them women – sought assistance from the law, which struggles to take immediate action to protect particularly vulnerable women with no choice but to live inside their aggressor’s home.

“Now even at an EU level... without the super-structure to apply uniformity on legal protection, effectively it leaves women, and LGBTQI people, vulnerable to less safe legal systems,” says the activist.

“A Maltese woman might have the protection of the Istanbul Convention’s principles at home, but what happens if she is raped in another member state... should we not demand that say, Bulgaria, affords her the same guarantees? Will we be shocked that another EU member state does not have the level of protection guaranteed by Malta? Or will we just stigmatise some female tourist for picking a ‘less safe’ EU country for a holiday?”

Two Maltas

Clearly, two different Maltas are at play at home and abroad in Brussels.

Malta often prefers to adopt a restrictive view of EU lawmaking because it frequently feels the pressure of the EU or other 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 exploitation’ under the TFEU can only be used on a specific aspect of human trafficking.

“The notion of ‘sexual exploitation’ is generally not used to cover crimes like rape or engaging sexual activity with a person without his or her consent, of which the essential constitutive element is sexual violence directly affecting 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 gender-neutral way.

The proposed Gender-Based Violence directive is to allow 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 violence or violence.

Under the TFEU, such minimum rules for criminal offences 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 dimension”, either due to their nature 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 trafficking, and computer crime.

The CLS said that unless the Council extends these euro-crimes, unanimously, then the crime of rape could only be considered as to whether it falls under the human trafficking 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 understood 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 exploiting 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 approach.

“Contrary to the gender-neutral approach taken, for example, in the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention)... rape of adults would be criminalised at EU-level only where perpetrated against women, despite the fact that sexual freedom and physical integrity of man is to be equally protected by the incrimination of rape,” the CLS said.

It added that such a definition could render the law open to a legal challenge based on non-discrimination provisions.

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 instead extend the Treaty’s ‘euro-crimes’ by adding the competence to establish minimum rules on the definition of criminal offences for sexual abuse and sexual violence.

MEPs disappointed

Despite appeals from both Maltese Commissioner for equality Helena Dalli and Labour MEP Cyrus Engerer, Malta did not back the harmonised definition of rape.

On Monday, Irish MEP Frances Fitzgerald (EPP) and Swedish MEP Evin Incir (S&D), the European Parliament’s negotiators on the legislative proposal on combating violence against women and domestic violence, expressed disappointment at the Council’s refusal.

“We are extremely disappointed that certain EU governments, especially France and Germany, are refusing to include a consent-based definition of rape in the draft legislation. For us, for survivors, and for anyone who supports women’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 twenty women had been raped.

“Since then, no step has been taken at European level to provide an adequate and consistent level of legal protection to over half of the EU’s population,” the MEPs said. “Legislation in the member states remains patchy - and in most cases, it is not fit for purpose. Outdated rules give perpetrators a ‘get out of jail free’ card, by placing the burden of proof on survivors or requiring medical confirmation using systems that do not account for the complexity of the crime. Moreover, women travelling 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 Europeans, as per the Charter of Fundamental 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-conceived 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.