No civilised society can tolerate sexual violence. Those who commit it deserve swift investigation, fair trial and, upon conviction, severe punishment.
On that principle there is no disagreement across Europe, nor should there be. Yet the European Parliament’s latest demand — that the European Union legislate a uniform definition of rape based on the absence of consent — raises a question far larger than the wording of a statute. It raises the question of whether Brussels is competent, in either the legal or practical sense, to sit in judgement over one of the most sensitive areas of criminal law.
MEPs argue that a common standard would strengthen protection for victims of sexual violence and ensure equality before the law throughout the Union. The intention is laudable. But good intentions have long served as the EU’s preferred instrument of expansion. The issue is not whether rape must be punished more effectively — as it must — but whether supranational lawmakers, far removed from national courts, police forces and juries, can meaningfully improve that task.
Criminal law is unlike trade policy or product regulation. It is not about harmonising technical standards for machinery or setting emissions thresholds. It is the gravest expression of state power: the authority to deprive an individual of liberty.
For centuries, European nations have guarded that authority carefully, embedding it in distinct legal traditions. Britain’s adversarial courtroom, France’s investigative magistracy, Germany’s structured prosecutorial system — these are not bureaucratic quirks but constitutional arrangements shaped by history, language and democratic practice.
The European Union, by contrast, possesses no unified judicial culture and no common criminal procedure. Yet it increasingly behaves as though it does. By urging a single legal definition of rape, the Parliament moves beyond cooperation between states and into the territory of moral arbitration. Once the Union decides what constitutes the crime, it inevitably influences how it is prosecuted and judged.
The practical difficulties are obvious. Rape cases hinge on evidence, not slogans. Courts must establish what happened in a private encounter where witnesses are rare and proof is contested. Legislators can declare that consent must be “freely given,” but no directive can simplify the forensic realities faced by investigators or juries. The risk is that Brussels confuses symbolic legislation with effective enforcement — a mistake it has made before in other policy areas.
There is also a democratic concern. National parliaments answer directly to voters when justice systems fail victims. Ministers can be summoned, police chiefs dismissed and laws amended. The European Parliament, however, is distant in both geography and accountability. Turnout in European elections remains persistently low in many countries; public understanding of its legislative reach is lower still. Yet it now proposes to define the crime that carries some of the heaviest penalties available in law.
This is not a technical extension of competence but a constitutional shift. Adding gender-based violence to the catalogue of EU crimes would establish a precedent: criminal jurisdiction determined at the European level rather than the national one. Once accepted, the boundary would not easily be restored. The history of European integration suggests that competences, once transferred, rarely return.
The irony is that Europe does not lack laws against rape. Every member state criminalises it already, often severely. Where failures occur, they tend to arise from under-resourced policing, poor evidence collection, cultural barriers to reporting, or prosecutorial caution — matters of administration and governance. These are problems national governments must solve with training, funding and institutional reform. A directive drafted in Brussels cannot recruit detectives, fund forensic laboratories or ensure sensitive handling of complainants.
Indeed, there is a risk that the EU’s involvement may allow governments to substitute gesture for action. Passing a harmonised definition may create the impression of progress while leaving underlying enforcement weaknesses untouched. Victims need competent investigation, not legislative theatre.
None of this is to minimise the seriousness of sexual crime. On the contrary: precisely because rape is so grave, it demands legal clarity grounded in systems people understand and trust. Justice depends not only on moral certainty but on legitimacy — the public belief that the court judging a case has the authority to do so. That legitimacy still resides primarily within nation-states.
The European Union has a valuable role in facilitating cooperation across borders: sharing data on offenders, coordinating warrants, supporting cross-national investigations. These are practical contributions. Defining crimes, however, is different. It requires proximity to society’s moral and legal foundations, and those foundations remain national.
Brussels often equates uniformity with progress. Yet Europe’s strength has historically been its diversity of legal traditions, each accountable to its own citizens. The Parliament’s proposal risks weakening both justice and democracy by blurring the line between cooperation and control.
Europe needs tougher action against sex offenders, certainly — faster investigations, better victim support, and sentences that reflect the gravity of the crime. But it does not follow that the solution is to transfer criminal authority upward to institutions that neither police the streets nor conduct the trials.
The Union should help nations work together. It should not presume to replace them. When it comes to criminal justice, competence is not merely a legal category; it is a matter of trust. And trust, once centralised beyond the reach of voters, becomes harder to sustain.
In seeking moral leadership, Brussels risks overstepping legal reality — and in doing so, it may hinder the very justice it claims to advance.
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