“There are Limits to European Law”
ARD podcast with Tatjana Hörnle on the EU directive to combat violence against women
At the beginning of the year, German Federal Minister of Justice Marco Buschmann opposed a draft directive in the European Commission to combat gender-based violence, which sought to standardize the law of sexual offenses, particularly the offense definition of rape. The reason for Germany's hesitation: the drafting of criminal law does not fall within the competence of the EU. In the end, the European Parliament and the Council of the EU agreed on the legislative text of the directive without including the offense of rape based on lack of consent. In a podcast by “Justizreporter*innen”, aired by Germany's public service broadcaster ARD, legal expert Tatjana Hörnle explains why she believes this was the right approach.
The new EU directive, the text of which was agreed on in February 2024, is intended to combat violence against women and domestic violence across Europe. In addition to physical violence, it also covers psychological, economic, and sexual violence, according to a press release by the European Parliament. However, the criminalization of non-consensual sex was not included in the directive. France and the Netherlands also opposed the proposal in its original form.
Tatjana Hörnle explains the legislative background in a podcast recorded by the legal editorial team from ARD. The legal scholar explains that, although changes to the law of sexual offenses are certainly recommended in a number of European countries, this is the task of national parliaments. European law is not responsible for the overarching regulation of criminal law. This is why it is not accurate to say that Germany blocked the inclusion of a consent-based rape legislation. “The point is to point out the limits of European law,” says Hörnle.
She considers the law on rape in Germany to be adequate, but she sees problems with the application of the law by German courts. Courts often hand down more lenient sentences for rape if the victim and perpetrator had intimate relations prior to the sexual offense. This sentencing practice is based on outdated ideas, and regulations must be put in place to prevent this mitigation of sentences from happening.
Tatjana Hörnle is joined in the podcast by Dilken Çelebi, chairwoman of the Commission for Criminal Law of the German Women Lawyers Association. Unlike Hörnle, who sees the law of sexual offenses as a national matter, Çelebi is in favor of extending EU law.
Ja heißt ja – Darf die EU regeln, was eine Vergewaltigung ist? [Yes means yes – Can the EU regulate what constitutes rape?] Die Justizreporter*innen, Podcast in German on 11 March 2024 (47 min.)
