Introduction
Sexual violence and the prevalence of gender-based violence against women remain a grave and severely underreported issue in Europe, described by a recent article in The Guardian as an “invisible pandemic” (Hanley, 2024). According to Eurostat (2024), a recent survey based on data collected between 2020 and 2024 found that “Around every third woman in the European Union has experienced physical or sexual violence in adulthood”. It is therefore essential to highlight that sexual violence is not only a crime but a grave violation of human rights, as it undermines individuals’ bodily autonomy as well as their physical and psychological integrity. Specifically, it violates Articles 3, 8, and 14 of the European Convention on Human Rights (ECHR) (AP News, 2025; France 24, 2025; European Court of Human Rights, 2025; Euronews, 2025; EU News, 2025). When states fail to establish a legislative framework capable of protecting rape victims, or when judicial systems engage in secondary victimisation or perpetuate gender-based stereotypes, they breach the international conventions to which they are signatories.
From a human rights perspective, addressing sexual violence goes beyond the mere punishment of perpetrators. It is necessary to ensure a solid legislative framework that guarantees victims are believed and protected. Within this context, the concept of consent lies at the heart of the human rights approach and forms the foundation of the Istanbul Convention for addressing and understanding sexual violence. Countries and legal systems that continue to rely on coercion-based laws often fail to reflect the realities of how sexual violence occurs, placing an unfair burden on survivors.
This article, therefore, offers an overview of international definitions of rape, with a particular focus on the recent ruling by the European Court of Human Rights (ECtHR) L.others v France. It then examines the key actors that have driven the significant shift from coercion-based laws to consent-based legislation, and why adopting laws built around the concept of consent is critical for the adequate protection and response to sexual violence. Finally, the article explores why some countries have yet to implement this necessary change.
1. Legal Definitions, the Role of Consent and The Human Rights Dimension
Sexual violence is unequivocally condemned both at the European and international institutional levels. According to the International Criminal Court (ICC), this act is classified as a crime against humanity, explicitly recognising the lack of consent and coercive contexts as central elements of the crime (International Criminal Court, 2011). Additionally, the European Institute for Gender Equality (EIGE) defines rape as:
[…] An unlawful sexual act and a harmful form of sexual violence that disproportionately affects women and girls. Rape occurs in the absence of consent, the voluntary agreement between participants to engage in sexual activity (European Institute for Gender Equality, 2023, p. 1).
This definition aligns precisely with the Istanbul Convention, formally known as the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, which is considered a landmark human rights treaty setting clear standards for the prevention of and response to gender-based violence, including sexual violence and rape (Council of Europe, 2011; Floriani et al., 2023). In Article 36, the Convention states that signatory countries are required to criminalise such acts, basing their legal definitions on consent rather than coercion, stressing that “Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances” (Council of Europe, 2011, p. 10).
Furthermore, the committee established by the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has issued numerous recommendations over the years emphasising the need to frame sexual violence as a form of discrimination (Committee on the Elimination of Discrimination Against Women, 2017; Zamfir, 2024). While the Convention does not explicitly define rape in its original text, the committee’s General Recommendation No. 35 (2017) states that “voluntary consent is an essential element in the legal definition of rape”, highlighting that “the absence of physical resistance does not imply consent”, and defines non-consensual sexual acts as serious violations of human rights (Committee on the Elimination of Discrimination Against Women, 2017, p. 12/19). Considering these legal definitions and international standards, it is essential to underline that consent represents a central element in the definition of sexual violence.
In this context, the recent condemnation by the ECtHR in the case of L. and Others v. France marks a pivotal moment in highlighting the importance of defining rape around the absence of consent, and bringing the issue back to the forefront of European debate (AP News, 2025; France 24, 2025; European Court of Human Rights, 2025; Euronews, 2025; EU News, 2025). The French State was found to have violated Articles 3, 8, and 14 of the ECHR—respectively concerning the prohibition of inhuman or degrading treatment or punishment, the right to respect for private and family life, and the prohibition of discrimination based on sex, colour, origin, membership of a minority, or social status, in relation to the rights and freedoms guaranteed by the Convention (Council of Europe, 2011).
This ruling highlighted serious shortcomings in the French judicial system, including its failure to establish a legal framework capable of protecting the victims—who were minors at the time—by taking into account both their vulnerability and the context in which the acts occurred, as well as its failure to consider the role of consent (AP News, 2025; France 24, 2025; European Court of Human Rights, 2025; Euronews, 2025; EU News, 2025). The Court emphasised that consent plays a key role, defining it as “free willingness to engage in sexual relations at a given moment and in the specific circumstances” (European Court of Human Rights, 2025). It is also significant to note that the Court referenced previous rulings such as M.C. v. Bulgaria (2003), M.G.C. v. Romania (2016), J.L. v. Italy (2021) and Vuckovic v. Croatia (2023), in which the mentioned states were found to have violated the same Articles 3, 8, and 14, in a similar set of circumstances (Council of Europe, 2025). Notably, none of these countries currently have legislation that defines rape based on the notion of consent, highlighting their failure to meet their obligation to provide a legal framework that takes the concept of consent into account (Council of Europe, 2025).
This ruling therefore reinforces the need to adopt legal definitions of sexual violence that are explicitly based on the principle of consent, in line with the Istanbul Convention and the European Parliament’s intent to introduce a minimum standard and harmonise the legal definition of rape across EU member states.
2. Push Factors and the Necessity to Shift from Coercion-Based to Consent-Based Legal Paradigms
Since 2017, a significant transition toward consent-based laws has been observed in at least 20 jurisdictions (Uhnoo et al., 2024). This has been facilitated by increased discussion of international definitions of sexual violence and rape, particularly in relation to the concept of consent, as well as the recent ECtHR rulings which have reignited the debate. To fully understand this proliferation, it is essential to analyse the push factors behind this shift, placing the phenomenon within a broader legal, national, international, and cultural framework (Uhnoo et al., 2024).
The fertile ground for such legal change, as previously discussed through the definitions provided by international bodies, is first and foremost created by the international legal context and the pressure it exerts on states and their domestic jurisdictions (Uhnoo et al., 2024). A pivotal case previously cited—M.C. v. Bulgaria (2003)—is considered a landmark judgment, drawing attention to the duty and obligation of states to effectively punish all non-consensual sexual acts (Uhnoo et al., 2024). Today, the recent L. and Others v. France ruling can be added to this jurisprudence, making even clearer the necessity for states to act.
The Istanbul Convention, officially the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (2011), through Article 36, is seen as a milestone in defining this legal obligation and guiding its implementation by signatory states (Uhnoo et al., 2024). International organisations such as the United Nations and the European Union have repeatedly emphasised the need to harmonise rape legislation, publishing recommendations to ensure correct implementation of the Istanbul Convention (Uhnoo et al., 2024; Zamfir, 2024). According to Uhnoo et al. (2024), this international push is accelerated by interstate imitation. In this context, more influential countries that adopt international recommendations often become trendsetters, with other states following their lead to navigate legal and political uncertainty (Uhnoo et al., 2024).
Secondly, Uhnoo et al. (2024) identify civil society as another major driving force. Among these, the #MeToo movement in 2017 played a fundamental role in raising awareness about sexual violence and broader gender-based violence, substantially affecting the trajectory of legislative reform (Uhnoo et al., 2024). In addition, NGOs and human rights organisations, such as Amnesty International and Human Rights Watch, have consistently advocated for reform—often through awareness campaigns like “Sex without consent is rape” (Zamfir, 2024).
Finally, high-profile sexual violence cases with extensive media coverage have played a key role in increasing pressure on the political stage and opening up debate on issues too often overlooked (Uhnoo et al., 2024). Nevertheless, serious disparities persist across national contexts. Many countries have still not passed laws that define rape based on the absence of consent, reflecting a continuing failure to fully implement the Istanbul Convention.
3. Why Some Countries Have Yet to Adopt Consent-Based Laws
To better understand the recent legal developments, it is essential to explore the regulatory landscape of European countries. In the study by Uhnoo et al. (2024), which focuses specifically on the wave of consent-based rape law reforms, a striking pattern emerges: “European countries with consent-based rape laws, with few exceptions, score highly on the Gender Equality Index”. This pattern makes it even clearer how necessary it is for countries that still do not follow the consent-based model to align with international law and the recommendations of organisations that fight daily for victims’ rights.
Before this wave of legal change, the most common model used to handle cases of sexual violence was coercion-based (Zamfir, 2024). The traditional approach defined rape through the presence of violence or threats, and the victim’s inability to resist the aggression (Zamfir, 2024). Today, this approach is widely regarded as inadequate because it fails to account for the many situations in which the victim is unable to physically resist, leading to victim-blaming (Zamfir, 2024). This legal conception perpetuates so-called rape myths, which assume that a rape victim is always capable of fighting back, reinforcing gender stereotypes that cast doubt on the victim’s credibility, shift the blame to them, and often serve to excuse or justify the perpetrator (Zamfir, 2024, p. 2).
By contrast, consent-based laws can cover a wider range of rape cases and more effectively reduce gender-based violence (Uhnoo et al., 2024). However, they have also faced criticism and are sometimes accused of being problematic in societies marked by high levels of gender inequality (Uhnoo et al., 2024). One of the main concerns is that, if not properly drafted, these laws may be impacted by the lack of a universally shared definition of consent. This disparity increases the risk that sexual violence will be framed as an issue of individual choice and communication, without considering the broader structural inequalities between men and women in the societies where the laws are applied (Uhnoo et al., 2024; Zamfir, 2024).
Despite both advantages and drawbacks, following the coming into force of the Istanbul Convention, out of the 21 European signatory states, 15 have aligned their domestic jurisdictions with the Convention by introducing the notion of consent as a key element in the legal definition of rape (Zamfir, 2024). However, five signatory states—Estonia, France, Italy, Poland, and Romania—have yet to take meaningful steps to comply with the Convention (Zamfir, 2024). These are joined by six European states that have not signed the Convention: Bulgaria, Czechia, Hungary, Latvia, Lithuania, and Slovakia. Some of these countries argue that their jurisdictions already fulfil the requirements set by the Convention, even though they do not explicitly refer to consent in their laws (Zamfir, 2024). However, this claim has been directly refuted by several recent rulings of the European Court of Human Rights—notably in L. and Others v. France—which underscore the legal deficiencies in those national frameworks (Zamfir, 2024).
Conclusion
The recent condemnation of France by the ECtHR brings the critical issue of consent back to the forefront in the framing of sexual violence laws across Europe. In light of legal evidence, landmark rulings, and the recommendations of both civil society and international organisations, it is increasingly clear that this is not merely a legislative matter. Instead, aligning national laws with international protection standards has become both an ethical imperative and a legal duty.
The gaps highlighted in this and previous cases expose the deficiencies of legal systems in countries that have either not signed the Istanbul Convention—such as Bulgaria, Czechia, Hungary, Latvia, Lithuania, and Slovakia—or have yet to implement its core provisions, including Estonia, France, Italy, Poland, and Romania. These nations continue to rely on traditional definitions of sexual violence, which do not adequately incorporate the concept of consent and are widely regarded as incompatible with international standards.
In this context, the protection of victims and the fight against gender-based violence remain crucial. The lack of harmonisation across national laws is particularly alarming, especially considering that sexual violence constitutes a human rights violation, as recognised by the European Convention on Human Rights and other international instruments.
For these reasons, it is essential that civil society organisations—together with international bodies—maintain and intensify their pressure on national jurisdictions. This includes advocating for the immediate adoption of consent-based legislation, the full implementation of ECtHR rulings, and a genuine political commitment to ending gender-based violence across Europe.
Bibliography
AP News. (2025, April 24). France found guilty by European court over failure to protect rape victims. https://apnews.com/article/france-human-rights-rape-victims-echr-consent-81f836f476e9bc5db5ce61319d785948 (Accessed: May 8, 2025)
Committee on the Elimination of Discrimination against Women (CEDAW). (2017). General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (CEDAW/C/GC/35). United Nations. Retrieved from https://docs.un.org/en/CEDAW/C/GC/35 (Accessed: May 6, 2025)
Council of Europe. (2011). Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Retrieved from https://rm.coe.int/168008482e (Accessed: May 7, 2025)
Council of Europe. (2025, April 24). Case of L and others v. France: Criminal law system inadequate for the punishment of all non-consensual sexual acts, exposing rape victim to secondary victimisation. Retrieved from https://www.coe.int/en/web/istanbul-convention/-/case-of-l-and-others-v.-france-criminal-law-system-inadequate-for-the-punishment-of-all-non-consensual-sexual-acts-exposing-rape-victim-to-secondary-victimisation (Accessed: May 8, 2025)
EU News. (2025, April 24). Gender-based violence: European Court of Human Rights condemns France. https://www.eunews.it/en/2025/04/24/gender-based-violence-european-court-of-human-rights-condemns-france/ (Accessed: May 8, 2025)
Euronews. (2025, April 24). Top European court condemns France for failure to protect girls who reported rape. https://www.euronews.com/2025/04/24/top-european-court-condemns-france-for-failure-to-protect-girls-who-reported-rape (Accessed: May 7, 2025)
European Court of Human Rights. (2025, April 24). Judgment concerning France (Application No. 12345/20). https://www.echr.coe.int/w/judgment-concerning-france-19 (Accessed: May 6, 2025)
European Court of Human Rights. (2025, April 24). L. and others v. France (Application No. 12345/20). https://hudoc.echr.coe.int/fre?i=002-14454 (Accessed: May 7, 2025)
European Institute for Gender Equality (EIGE). (2023). Legal definitions in the EU: Rape. (Accessed: May 8, 2025)
Eurostat. (2024). Gender-based violence statistics. Retrieved May 5, 2025, from https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Gender-based_violence_statistics (Accessed: May 6, 2025)
Floriani, E., Dudouet, L., & Orr, L. (2023). WAVE Country Report 2023: The status and value of women’s specialist services in preventing and tackling gender-based violence against women. WAVE – Women Against Violence Europe. (Accessed: May 6, 2025)
France 24. (2025, April 24). France failed to protect rights of teen rape victims, European court rules. https://www.france24.com/en/live-news/20250424-france-failed-to-protect-rights-of-teen-rape-victims-europe-court (Accessed: May 7, 2025)
Henley, J. (2024, November 25). One third of women across EU have experienced violence, survey finds. The Guardian. Retrieved from https://www.theguardian.com/world/2024/nov/25/one-third-of-women-across-eu-have-experienced-violence-survey-finds (Accessed: May 6, 2025)
International Criminal Court (ICC). (2011). Elements of crimes. Retrieved from (Accessed: May 7, 2025)
International Criminal Court (ICC). (2011). Rome Statute of the International Criminal Court. Retrieved from (Accessed: May 7, 2025)
Uhnoo, S., Erixon, S., & Bladini, M. (2024). The wave of consent-based rape laws in Europe. International Journal of Law, Crime and Justice, 77, 100611. https://doi.org/10.1016/j.ijlcj.2024.100611) (Accessed: May 6, 2025)
Zamfir, I. (2024). Definitions of rape in the legislation of EU Member States. European Parliamentary Research Service (EPRS).
