De la parité des genres à l’égalité des sexes : Le rôle de l’Union Européenne face aux violences perpétrées envers les femmes
From Gender Parity to Gender Equality: The role of the European Union in combatting violence against women
© Shaojie. Woman holding « Equality Now » banner at Amsterdam, during a demonstration in the Netherlands (August 2018).
With the health events of spring 2020, domestic violence is on the rise in every country, in every city, in every home. The COVID-19 crisis is thus an opportunity to review the measures put in place by the European Union to combat gender-based violence.
Gender parity is already an objective that the European Union has set itself. Thus, in a report dated January 2019, the European Parliament calls on the political parties to ensure that both sexes are represented in its midst during the 9th parliamentary term. Following the May elections, 41% of women will sit in Parliament alongside their male colleagues. It represents 4.5% more than in the previous legislature.
However, parity is not synonymous with equality. The European Union, through its measures, is, therefore, trying to deepen the existing provisions in terms of equality in order, in particular, to minimize the rates of violence against women.
The European Union’s fight to establish equality between men and women: a commitment from the outset
The European Union, one of whose primary objectives is to promote economic and social progress, places the fight against discrimination of any kind at the heart of its action. Article 19 of the TFEU states that « the Council (…) may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. ».
From its inception, the Union has focused on certain areas of its policy on ensuring gender equality. Several directives have subsequently clarified this provision. Equal treatment in the field of work, parental leave, and access to social security are the subjects of European directives in this area.
In 2009, the entry into force of the Charter of Fundamental Rights of the European Union prohibits discrimination, in particular on the grounds of sex in Article 21. The same year also sees the entry into force of the Treaty of Lisbon, which stipulates in Article 8 of the TFEU that: « In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. »
However, before that, the 2005 European Charter on Equality between Men and Women in Local Life states that equality between women and men is a fundamental right. The measures of the European Council would be unsuccessful without the help not only of a judicial body but also of state political bodies.
The key role of the ECJ in the field of equality: the contribution of European case law to the implementation of measures
Thus, the Court of Justice of the European Union (CJEU), established in 1952 as the Court of Justice of the European Communities (CJEC), lays down through its decisions the various concepts of the Union’s gender equality policy.
In this sense, the Defrenne II judgment of 8 April 1976 gives a social dimension in addition to the economic dimension already attributed to Article 19 of the TFEU. It was in the Defrenne III judgment of 5 June 1978 that the Court of Justice enshrined equality as a fundamental right.
Other judgments of the Court extend the obligation of equality according to other criteria, such as gender in its Hay decision of 12 December 2013 in which France was at issue. Legalized by the law of May 17, 2013, same-sex marriage was not yet admitted at the time of the events. The Court decided in this case that the refusal to grant PACS benefits between two persons of the same sex constituted discrimination on the basis of sexual orientation in the sense that these same benefits were granted to married persons and that homosexual persons did not enjoy this prerogative at the time.
The EUJC is not the only institution that is making a difference. Every citizen can become involved in the fight to achieve equality, to combat violence and to fight discrimination. In this sense, since 1988, the European Parliament has been awarding a prize to people who devote their lives to the defense of human rights and fundamental freedoms. In 2014, the Sakharov Prize was awarded to Congolese gynecologist Denis Mukwege, who has spent his life helping victims of gang rape and sexual violence in the Democratic Republic of Congo and who has also fought for the dignity of women.
State measures to combat gender discrimination: France facing gender inequality
Within states, the highest norm imposes the prohibition of gender discrimination. Thus, the legislator has constitutionalized it in all European countries, with the exception of Denmark, Liechtenstein, and the United Kingdom.
In France, for the five-year period of 2017, Marlène Schiappa has made major commitments to combat discrimination and inequality between women and men. Thus, out of the 8 commitments she wants to put in place, 3 have already been achieved. Strengthening the sentencing of aggressors and improving the protection of victims of sexist and sexual violence with the Act of 3 August 2018. Secondly, the government is carrying out an awareness campaign against gender-based and sexual violence to encourage witnesses to react. Finally, measures are being taken to combat sexual and gender-based violence in the workplace.
Promoting gender diversity within different sectors, integrating equality issues within each ministry and in the functioning of the State, and launching an application for victims of cyber-harassment are still objectives to be achieved for France by 2022.
Setting up a standing committee within the European Parliament: taking effective account of gender inequalities
The Commission on Women’s Rights and Gender Equality was established in 1984 with the support of Simone Veil. The latter is mainly fighting to achieve equal pay but is also leading a fight against violence encountered by women. Moreover, this subcommittee, which is one of the 22 constituent parts of the European Parliament, places at the heart of its objectives the fact that the European Parliament adopts certain binding measures in this area. For example, the revision of several directives, including the one on maternity leave. The Parliament of the European Union places gender equality at the center of its action, which is reflected in particular in the adoption of own-initiative reports on gender issues and recommendations.
More generally, the European Parliament takes various measures to achieve gender equality: annual events to raise awareness of women’s rights, the celebration of 8 March as International Women’s Day, and measures relating to the field of work.
On this last point, the European Union enshrines in Article 157 of the TFEU that « The Member States shall ensure the application of the principle of equality between men and women workers (…) ». To this end, Parliament calls for provisions to reduce the pay gap between women and men, which was around 16% according to 2017 figures. Reducing female poverty, employment rules, regulations on self-employment and so many others are goals that the EU has yet to achieve. In 2018, Parliament adopts a resolution to introduce measures to integrate women in the information and communication technology sector.
While EU policies focus mainly on reducing inequalities in the world of work, the EU also puts the prevention of violence against women at the heart of its projects.
The Council of Europe’s Istanbul Convention: a legislative instrument to combat violence against women
The Court of Justice of the European Union is certainly playing an increasing and fundamental role in the trend of European policies to promote gender equality. However, the jurisdiction that has more influence on this issue is the European Court of Human Rights (ECHR).
Sexual harassment, trafficking in human beings, forced prostitution, genital mutilation, cyber harassment, online violence, are all forms of violence perpetrated against women. Combating such violence is one of the objectives of the European Union policy. The European Parliament, therefore, calls for a reinforced European strategy to combat violence against women.
The Council of Europe, which is an intergovernmental organization, differs from the European Union. However, all EU member states are also parties to the Council of Europe. The Council of Europe has adopted a convention on preventing and combating violence against women and domestic violence. Better known as the Istanbul Convention, it entered into force on 1 August 2014 after being signed by 45 countries and one supranational body: the European Union. This treaty is the first binding legal instrument to prevent violence against women.
However, the legislative process is not yet complete. Parliament, therefore, wishes to conclude the accession of the European Union to the Convention. A roadmap to this end was published by the European Commission in October 2015. Parliament also wants to achieve the ratification of the Convention by all Member States, all of which have already signed it. The European Union’s accession to the Treaty would make it possible to bind the States by the policies that the Union wishes to adopt in this area, in addition to the commitments they are bound by virtue of their own ratification.
The EIGE: European body devoted to gender equality
Inequality and violence are intrinsically linked. To combat them, the European Council set up a specialized agency on 20 December 2006: the European Institute for Gender Equality. In order to establish a « stronger, fairer, and more united » Europe, the Union set itself the objective of eliminating inequalities. Indeed, achieving equality between men and women would mean achieving 10.5 million additional jobs and a 10% increase in GDP by 2050.
In this sense, the EIGE draws up reports that aim to guide European policies. The institute uses several indices to assess gender equality. An increase of only 4 points between 2005 and 2015 and an average of 66.2 points in the European Union, these scores are low. All the weaker as, while some countries such as Sweden reach a score of 82.6, others such as Greece struggle to reach 50.
The index developed by the EIGE covers 6 areas: power, knowledge, time, work, money, and health. The results within the EU range from 48.5 points to 88.1. The time index shows the least increase, and even a decline, over the last ten years. This means in particular that inequalities linked to domestic, family, or social tasks are constantly increasing.
Main forms of violence against women
The IEGE in a report dated 2019 lists the main acts of violence perpetrated against women. In this sense, it notes that in the year 2016, 788 femicides took place in 16 member states of the union, i.e. 788 women were killed by their partner or a member of their family. A large number of this type of violence makes it all the more incomprehensible that no union state has defined it in its criminal law.
In two studies it has carried out in nine member states, the IEGE has shown that anti-female genital mutilation campaigns, awareness-raising campaigns and sound legal frameworks make it possible to prevent forced practices against women. Independently, Finland and Germany have carried out the research, which showed that 3000 women in Finland and between 6 and 17% of women from countries at risk in Germany were possibly subjected to such acts that do not require their consent.
Despite the European Parliament’s resolution of 2 May 2016 on the prevention of trafficking in human beings, this act of violence continues to occur in Europe, particularly affecting women. Thus, in terms of trafficking in human beings, of which sexual exploitation is the most widespread form, women are the victims twice out of three times. In order to remedy this, the Parliament will adopt in 2011 an anti-trafficking directive encouraging States to repress it, through transposition laws, but also to protect the victims.
A 2012 directive on the rights of victims of crime, including victims subject to violence, sets a minimum standard of rights, support, and protection for victims. It sets out a long-term action by referring to future directives with the aim of developing protection mechanisms.
The response to anti-violence measures: between willingness to change frameworks and opposition
In order to promote an end to violence against women, the European Union has put in place a strategy of engagement for the years 2016 to 2019. To enable effective action to be taken, States must develop effective institutions. Awareness-raising, data, access to protection, and support for victims are therefore areas to be promoted.
However, as with any development, the will to make things happen in terms of equality is opposed. Thus, anti-gender movements have repercussions on institutional, legal, and political frameworks. Similarly, the ratification of the Istanbul Convention has brought to the fore differences of opinion in this area, including the strong opposition of certain political and religious groups.
The distribution of spousal violence within Europe: countries most affected
According to the figures, on average 1 in 5 women in Europe is a victim of physical and sexual violence, with 7 women a day dying as a result of beatings by their husbands. The most important hotbeds of violence against women are Sweden and Denmark. The European Union considers violence against women as a violation of human rights, gender discrimination. Both physical and psychological violence mainly affect migrant women, women with disabilities, and women in institutions.
The desire for equality promoted by the EU faces several problems. The absence of a binding legal instrument, traditional and religious values, lack of economic independence. The European Agency for Fundamental Rights carried out a study in 2015 in the 28 Member States of the European Union. Of the 42,000 Europeans questioned, on average 22% of those who have had a relationship with a man has been subjected to violent acts. France is above this average with more than ¼ of women victims.
Some countries have much higher scores of domestic violence than others. A north/south divide seems to be operating within Europe. Danish, Finnish, Dutch, Latvian, and Swedish women are more prone to it. However, these results are to be taken with tweezers. It is true that alcohol is a factor explaining these higher rates in the north than in the south of Europe, but above all the moralities are not the same. In this sense, in the countries of the North, the inhabitants are more aware of abuse, an awareness that stems from more accepted equality than in the countries of the South. For example, Sweden, which is one of the countries where the most acts of domestic violence are recorded, is also the EU member state with the highest gender equality scores. This « Swedish paradox » shows that equality in texts is not absolute equality in behavior, but above all that admitting such gender equality makes it easier to admit discriminatory acts.
The lack of European harmonization is called into question. The adoption of a common legislative instrument will only be possible in Europe once Poland and Hungary have accepted the concept of gender; a concept that has been rejected until now. Despite the adoption of a European directive in 2016 laying down basic standards for women’s rights and the ratification of the Istanbul Convention by 21 of the 28 member states, the European Agency calls for more coherent policy. The first thing it advocates is a vision of these acts of violence as a public matter and no longer as a private matter.
Some countries are opposing, some are increasingly taking into consideration domestic violence and are putting in place policies to protect women. Spain has taken important measures; Italy is facing recent awareness.
The institutions and measures implemented by Spain: concrete results
The Spanish government has allocated 1 million euros over 5 years to combat domestic violence. The results are significant. Thus, in Spain, half as many women are murdered as in France, 50 compared to 121 in 2018.
France is not, however, passive in the protection it provides. Thus, since 2010, it has been possible to be granted a protection order even before filing a complaint. This measure includes the possibility of removing the spouse, re-housing or obtaining a special mobile phone with geolocation and a specific assistance platform.
However, Spain is at the forefront of the protection of women. Since the early 2000s, specialized courts have been set up to try cases of domestic violence, combining criminal and civil law. These jurisdictional institutions derive from the Act on Comprehensive Protection against Gender Violence adopted in 2004 by the deputies. In addition, the Spanish judge can order the wearing of an electronic bracelet to prevent the violent ex-spouse from being approached.
Significant progress in Italy: towards growing awareness
Honor killings are in most cases understood as « a homicide against a woman: the perpetrator of an honor killing kills a woman who is alleged to have disgraced him or her or an entire family. Until 1981, the Italian Criminal Code provided for reduced penalties for this type of offense.
However, morals are changing, and so is the law. Thus, femicide is now recognized as a crime since the law of 15 October 2013, as part of the Italian policy to combat domestic violence. In the same year, Italy ratified the Istanbul Convention.
But the developments do not stop there. The Italian legislature, which is at the forefront in Europe with the recognition of the crime of femicide, also adopts a law in 2018 to protect orphans from femicide. On 9 August 2019, a Member of Parliament, a former victim of domestic violence, puts the fight against violence suffered by women at the heart of Italian action. The « Red Code« , which came into force on this date, plans to incorporate four new offenses into the Criminal Code: revenge porn, the offense of deformation of the person’s appearance, forced marriage and the violation of removal measures by a violent spouse.
Reinforcement of measures due to the 2020 Confinement: Towards amplified protection?
In France as elsewhere, the confinement due to COVID-19 has the perverse effect of increasing the number of victims of domestic violence. In response to this, an alert system in pharmacies, temporary support points in shopping malls, special housing for victims, online legal consultations offered by lawyers of the Paris Bar, a new national number for perpetrators of domestic violence, has been set up.
We can only hope that, at the end of this health crisis, the measures in place will continue or will be replaced by more effective measures, that policies will focus on combating domestic violence and improving equality between women and men, and that the Member States will agree to take joint action in this area.
Salomé Assa, L3 Double Degree in French and British Law at Université Toulouse Capitole (UT1)