EUROPE CAN SUCCEED WHERE AMERICA FAILED: A COMPARATIVE APPROACH TO GENDER-BASED VIOLENCE.

• Author: Paganetti, Lorenzo

INTRODUCTION

Gender-based violence (GBV) is a worldwide problem. According to UN Women, one in three women worldwide experience physical or sexual violence, mostly from intimate partners. (1) GBV has many forms, ranging from sexual assault to female genital mutilation (FGM) to domestic violence. Oftentimes, GBV accompanies broader societal crises. UN Women refers to the 2020 spike in GBV as a "shadow pandemic." (2) In France, reports of domestic violence increased by 30% after the March 17 lockdown, (3) and in Germany, domestic violence rose by nearly 5% in 2020. (4) The German Federal Criminal Police Office expressed concerns that domestic violence was likely under-reported during the March 2020 lockdown. (5)

However, while instances of GBV in Europe may have increased since 2020, it has been an extensive problem for the European Union (EU) for a much longer time. A study by the EU Agency for Fundamental Rights (FRA) in 2014 showed that 10% of women in the EU had experienced some form of sexual assault by the age of fifteen, and 43% of those surveyed had experienced some form of psychologically abusive and/or controlling behavior in a relationship at some point in their lives. (6)

On an individual level, GBV causes intense physical, emotional, and psychological trauma. However, these aggregated negative effects culminate in broader societal harm. This harm manifests itself in multiple ways: diminished participation by women in the overall economy, loss of productivity, increased healthcare costs, and negative effects on commutes and travel. (7) In the EU, the annual economic impact of GBV is estimated to be over 220 billion [euro], amounting to almost 2% of the EU's annual GDP. (8) Due to reporting problems, likely caused by a lack of dependable data collection, this expense could be even greater. (9) Therefore, GBV represents a significant challenge, not only for individual Member States, but for the EU as a whole. (10)

Despite this, the EU currently lacks a specific, binding instrument designed to protect women from violence. (11) Instead, the Bloc relies on a complex patchwork of directives and regulations, which individually regulate common issues related to GBV, such as human trafficking, victim's rights, mutual recognition of civil judgments, and equal treatment between men and women. (12) Taken separately, some of these directives are quite effective, (13) but together, they do not effectively address the totality of GBV. (14) This lack of a comprehensive and specific instrument has been criticized by activists (15), academics (16), and policy makers (17) alike, with even the European Parliament calling for a legally-binding instrument. (18)

Member States often have different laws regarding gender-based violence, as well as different reporting standards and definitions of crimes. (19) Consequently, in some Member States, GBV-adjacent measures are ineffective because they lack domestic implementation.

While the EU has a limited power to harmonize divergent national standards, (20) existing literature suggests that a major challenge regarding a specific harmonizing instrument on GBV is the lack of a legal basis for such action. (21) Because the EU is limited to exercising those powers that have been expressly delegated to it, (22) and because the power to harmonize laws relating to gender-based violence is not thought to derive from the current European Treaties, commentators suggest that the EU lacks the competence to act with binding legislation on this issue, favoring a soft law approach instead. (23)

This Note challenges that view. Drawing upon parallels in American constitutional jurisprudence, this Note argues that the aggregate effects of differing national laws regarding domestic violence are an impediment to the proper "functioning of the internal market" of the EU. As such, the European Council and Parliament have the authority under Article 114 of the Treaty on the Functioning of the European Union (TFEU) to harmonize laws relating to gender-based violence. Such harmonization would have wide-ranging effects on the status of GBV in the European Union. For example, legislation could create minimum definitions for intimate partner violence, marital rape, and affirmative consent, thereby targeting those nations where these definitions are lacking. Harmonization could create harsher penalties for these and other crimes, as well as standardized investigative procedures and sentencing guidelines, all of which would prevent certain member states from minimizing GBV in their own domestic legal systems. Through harmonization, the European Union could improve cross-border law enforcement cooperation in these areas, as well as support other directives that focus on gender-equality issues, such as the Victim's Rights Directive and the directive on human trafficking. Furthermore, harmonization under Article 114 would allow the EU to touch upon ancillary civil issues related to GBV, such as community support, prevention and education programs, and even possible civil remedies. These are all issues that the American Violence Against Women Act (VAWA) addressed, which is why such a comparison is of additional value.

Part I discusses the existing status quo regarding GBV within the EU, both analyzing the shortcomings of the existing directives and establishing the need for a binding, comprehensive instrument. Part I concludes by assessing various legal bases for action on this issue, focusing in particular on the European Parliament's recent proposed legislation to combat GBV. Part II analyzes the jurisprudence of Article 114 of the TFEU, regarding its limitations and its applicability towards combating GBV. Part II looks both towards the European Court of Justice's guidance and American constitutional law, particularly the case of United States v. Morrison, in assessing the possible applicability of Article 114 of the TFEU to GBV. Finally, Part III discusses possible issues related to federalism, sovereignty, and subsidiarity arising out of using Article 114 TFEU to harmonize GBV laws in the EU.

1. The EU's Current GBV Approach

   Much like in the United States, debates over GBV in the EU highlight tensions between the Member States and the federal government. (24) The federal government in the United States and the European government in the EU consistently call for more effective legislation and legal efforts in the realm of GBV. However, inaction by select Member States prevents true, comprehensive action against GBV due to widely divergent standards.

   This Part seeks to explain the current status quo regarding those divergent GBV standards within the EU, introduce and critique the unsuccessful efforts the EU has made thus far in this area, and assess both the political and legal barriers to more effective action. In doing so, this Part will also draw conclusions from the successes of the American VAWA to articulate how the EU might replicate that success with a similar binding instrument. Finally, the Part ends with a summary of the EU's actions thus far, concluding that successful regulation of GBV requires a wider approach.

   1. Initial Background

      The EU has long been active in fighting GBV. The adoption of the Maastricht and Amsterdam treaties in 1993 and 1997 brought a new social dimension within European integration, including a new focus on gender issues. (25) This appeared to be a marked departure from the then-European Community's traditional concentration on economic issues, but even before that shift, the European Parliament had tasked the Commission and Council (26) with researching and acting on GBV in a 1986 resolution. (27)

      Owing to this new focus on social equality and gender rights, the Maastricht Treaty on European Union (TEU) eschewed discrimination of all forms and made equality a core foundation of the Union in Article 2. (28) The Charter of Fundamental Rights of the EU, signed in 2000, and which nominally possesses the same binding power as the Treaties, also speaks to issues dedicated to gender equality and freedom from violence. (29) In 2009, upon recommendation of Parliament, the Commission funded the "Campaign for Zero Tolerance for Violence Against Women," which raised awareness of the issue. (30)

      The European Parliament has continuously called on the Council and Commission for more action (31) but has ultimately been unsuccessful in achieving its goal: a comprehensive instrument on GBV. Instead, the Union repeatedly utilizes targeted measures that collectively seek to cover a broad spectrum of women's issues. These include human trafficking, victim's rights, protection orders that extend uniformly throughout the Union, and mutual recognition of civil judgments. (32) The EU has also called upon the Member States to sign and ratify the Istanbul Convention, a Council of Europe human rights treaty dedicated specifically to combating GBV. (33) These are all important steps in the right direction but cannot cover GBV in its entirety. (34)

      The largest obstacle in effectively fighting GBV within the EU is the lack of uniform definitions and frameworks, which results in different outcomes among Member States. (35) For example, the Council of Europe's Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) recently criticized Poland for its lack of adequate protection for women. The criticism levied against Poland relates to both selective enforcement and claims of misogyny as well as Poland's substantive criminal law, where GREVIO found "improvement is warranted in order to reach higher levels of compliance with the requirements of the Istanbul Convention." (36) Amnesty International more directly condemned Poland's lack of protections for victims of domestic violence:

      Lack of adequate protections for victims of violence combined with antiquated laws and a culture of victim blaming and impunity form a combustible mixture. Rather than tackling these...