Anna Kubacka: The FEMM Committee wants ‘gender-based violence’ to be recognised as a European crime

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• The European Parliament Committee on Women's Rights and Gender Equality (FEMM) voted for  submitting a draft resolution to the PE which was designed to elicit changes in the Treaty on the Functioning of the European Union (TFEU) and to result in adoption of a new directive.

• In its resolution, the PE is to put pressure on the European Commission (EC) to launch a procedure for amending Article 83(1) of the TFEU through addition of ‘gender-based violence’ to the list of European crimes.

• The amendment will allow the European Commission to set forth minimum standards for prosecution and criminalisation of new types of crimes by way of a directive.

• Article 83(1) of the TFEU has been recently seen as the back door to the introduction of such solutions to the legal systems of the Member States to which those Member States object.

• Ordo Iuris has stated on numerous occasions that the ‘gender’ perspective is ineffective in combating violence because it fails to properly identify the sources of crime.

Consequences of the amendment

At the beginning of May, the FEMM Committee published a draft resolution designed to put pressure on the European Commission to exercise its rights and put forward an initiative to amend Article 83(1) of the Treaty on the Functioning of the EU. Yesterday the draft was adopted by the Committee in a vote which means that it will soon be voted on by the whole EP.

It must be noted that every amendment of any EU treaty changes law of the highest-rank because treaties are the primary legislation of the EU. Article 83(1) of the TFEU includes a list of European crimes, i.e. areas of crime which are prosecuted in all EU Member States and for which the EC has a right to define minimum standards by way of a directive, for instance the minimum sentence. After its transposition to national law, the directive must be applied by every Member State.

The article currently lists such crimes as terrorism, trafficking in human beings, illicit drug trafficking, illicit arms trafficking, corruption, counterfeiting of means of payment. For those areas of crime, there is no doubt as to the need for their criminalisation or combating, and the legal definition clearly sets the criteria determining what is and what is not a crime. Unfortunately, Article 83(1) of the TFEU has been recently seen as the back door to criminalising such behaviour, conduct and opinions in the legal systems of the Member States which those countries do not want criminalised.

Terms without precise definitions

In April we mentioned that the EC was commencing works on adding ’hate crimes’ and ‘hate speech’ to the said Article 83(1) of the TFEU (for more see HERE). Without a binding and well structured definition, they leave too much room for interpretation and as such they may censor and limit or even eliminate public debate and thus infringe on the freedom of expression and freedom of speech. 

In the resolution proposed by the FEMM, the EP is to “call” the EC to add ‘gender-based violence’ to the list of European crimes and, after the Treaty is supplemented, issue a directive setting the minimum standards for such crimes, e.g. the minimum sentence. Just as hate speech, this issue also entails the definition problem as ‘gender-based violence’ is a vague term which encourages extremely free and broad interpretation of its meaning. Besides, the authors of the draft resolution themselves state that the directive addressing this category of crime is to address “sexual and reproductive health and rights” (SRHR), so one vague term (’gender-based violence’) contains yet another vague term, which is not defined in any binding international legal act and is additionally highly controversial (‘sexual and reproductive health and rights’).

It is not without significance that SRHR is customarily understood to encompass postulates for access to abortion on demand or obscene sexual education. So it can be expected that the attempt to introduce the crime of ‘gender-based violence’ to the legal systems of countries such as Poland is in fact a way to force Poland to criminalise refusals to abort a child or prevention of sexual education in its most obscene variant, i.e. according to WHO’s standards. This is yet another attempt to interfere in the health policy of the Member States, and obviously an illegitimate one because it exceeds the authority granted to the EU under the treaties. On top of that, depending on how the directive is worded, the pressure on the introduction of permissive sexual education may violate the rights of parents to bring up children in accordance with their own beliefs.

The directive is also intended to implement the “standards of the Istanbul Convention,” to which a number of countries, including Poland, have raised and are still raising multiple objections. As shown by the numerous analyses and data collected over the years of pursuing the anti-violence policy based on the gender-based violence paradigm, the convention is an obsolete, ineffective or even counter-effective document because it fails to properly identify the sources of violence and as such is unable to eliminate them and prevent violence. The pressure to introduce the standards of the Istanbul Convention, despite the vast evidence demonstrating its ineffectiveness and the aversion of the Member States to its provisions, once against shows that the true purpose of that document is to introduce the gender ideology to the legal systems of the Member States. Introducing the crime of ‘gender-based violence’ to the Polish legal system will result in permanent presence of the legal category of ‘gender,’ which by definition undermines the foundation of our native family law based on the existence of two sexes. Putting the term ‘gender’ in use may result in legal uncertainty regarding the wording of the basic official template forms as well as Article 18 of the Polish Constitution, which states that marriage is a relationship of a woman and a man.

Actual purpose of the changes

The actual purpose of the attempt to amend the Treaty is also exposed by the argumentation included in the draft resolution. We can read the following in the draft expected to be signed by the EP in September:

“violence against women and other forms of gender-based violence are the result of the unequal distribution of power, patriarchal structures, and gender stereotypes, that have led to domination over and discrimination against women by men; (...) this situation is aggravated by social and economic inequalities” (source: HERE).

The resolution is to be voted on in the EP on 13 September. If the EC submits to the political pressure of the EP, we may expect a roadmap of the proposed TFEU amendments and, afterwards, a draft directive. Ordo Iuris will take part in all public consultations and a memorandum will be sent to the Members of the European Parliament laying down the argumentation in support of rejecting the resolution.

Recently, we have been increasingly facing the EU’s attempts to interfere in the health policy and the family law of the Member States, even though the Union is well aware that it does not have the authority to meddle with those areas. The interference attempts based on directives, case law (the famous Romanian Coman case) and proposal of a regulation intended to force us to formally recognise parenthood of same-sex people were all followed by two more attempts to circumvent the authority limitations and the will of the Member States through change of the primary law. Fortunately, changing the treaties requires unanimity and we expect that for both hate speech and gender-based violence not only Poland will vote against the amendment.

Anna Kubacka – analyst of the Ordo Iuris Center of International Law