European Directive on combating violence against women and domestic violence welcome but falls short of full potential, says UN expert

GENEVA (13 May 2024) – A UN expert* today welcomed the European Parliament’s adoption of the first European Union Directive on combating violence against women and domestic violence as a first comprehensive legal instrument to tackle violence against women and girls, but said some critical shortcomings must be addressed. The strong advocacy by countless civil society organisations was essential in seeing the Directive through on 24 April, noted Reem Alsalem, the UN Special Rapporteur on violence against women and girls. She made the following statement:

“I welcome the EU Directive’s advancements. Chief among them is a recognition of the common responsibility of EU Member States in ending violence against women and domestic violence, integrating obligations of prevention, protection, and support for victims, as well as prosecution for a range of gender-related criminal offenses; and responding to the needs of survivors and victims in a sex- and gender-sensitive manner. I appreciate that the Directive gives due attention to online violence, thereby filling important legal gaps, and criminalising some of the most widespread forms of cyber-violence. The Directive also promotes the protection of human rights defenders, and explicitly recognizes forced marriage and female genital mutilation as forms of violence against women and crimes under the EU dimension.

I highlight the Directive’s emphasis on the prevention of crimes, inclusion of aggravating circumstances for crimes, detailing of more comprehensive package for victims that includes legal aid and remedies, and its strong focus on the intersectionality of victims’ specific circumstances.

Nevertheless, I regret that an EU-wide definition of sexual assault and rape was not included in the Directive. Through this omission, the Directive missed an important opportunity to criminalise rape and gender-based violence against women using a consent-based definition and to recognise instances where the overall conditions are coercive, thus rendering consent meaningless. I am also disappointed at the Directive’s insufficient emphasis on the specific needs for protection and assistance of migrant women, especially those who are undocumented.

The Directive uses terminology such as ‘sex’ and ‘gender’ in an inconsistent manner, and at times conflates the two, and also opens the door for using the pretext of ‘freedom of expression’ to limit the ability to prevent online violence against women and girls, including the non-consensual sharing of intimate images. I commend the Directive’s respect for fundamental principles related to the freedom of expression and information. However, I am concerned that the Directive does not explicitly recognise that our imperative to address online violence against women and girls must outweigh free speech concerns. It is also concerning that the Directive distinguishes between the online violence in “private” and “public” domains, criminalising the latter only, thus potentially encouraging a new phenomenon, i.e., the development of private online groups that protect the impunity of perpetrators.

Moreover, I regret the lack of effective consultative process with key stakeholders and international and regional mechanisms, and the rejection of an amendment that would have made it obligatory for Member States to allocate sufficient, predictable, and sustainable funds for its implementation. As we all know, no legal instrument can function as intended without the proper resources.

Despite the Directive not rising to its full potential, I am reassured by its explicit prohibition of non-regression, barring EU Member States from reducing the level of protection to victims. The EU has achieved important milestones in advancing gender equality, by acceding to landmark legislation such as the Istanbul Convention, and by defining new gender-based crimes. The EU and its Member States should now not miss the opportunity to aim for higher standards of implementation in combating gender-based violence by adopting an intersectional and human rights-based approach that considers the needs of all women.

I am ready to engage with the European Council and the European Parliament on future revisions to realise the Directive’s full potential, for example, through including the exploitation of prostitution explicitly in the scope of the crimes, as well as considering the history of domestic and sexual violence in child custody cases. I call for provisions on the sharing of online materials to be brought closer in line with Article 10 of the European Convention on Human Rights, which explicitly allows for the ‘protection of health or morals or for the protection of the rights and freedoms of others.”

* The expert: Reem Alsalem, Special Rapporteur on violence against women and girls, its causes and consequences.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.