Deliver us from democracy
The EU is about to be hit by its very own imperial boomerang, swooshing back from Ukraine. It comes draped in the mantle of technocratic feminism. Of course it would.
Last week, on April 28, the European Parliament adopted a resolution calling on EU member states to adopt consent-based rape laws. Even if you believe, as I do, that all sexual contact absent freely given, explicit consent constitutes rape and that therefore consent-based rape laws are imperative (more on why they’re still not enough below), this resolution represents a cascade of missteps, each of which deplete the struggle against patriarchal violence against women. It is also symptomatic of the European Parliament’s constant, unchecked lunging at political and legal powers that it does not possess under the EU treaties.
Powers that in fact none of the institutions of the EU possess. Title V of the Treaty on the Functioning of the European Union (Articles 67–89) regulates “Justice, freedom and security” and leaves criminal law and criminal justice to the member states. The treaty does not define crimes, their punishment or the criminal process through which criminal justice is administered, and it does not endow any EU institutions with the power to do so. Title V covers what is necessary for the EU to function as an open space with a common external borders - EU citizenship, migration, coordinating member states’ fight against organized transnational crime etc. - but makes a conspicuously wide berth around substantive definitions of individual crimes.
So we have an illicit, unconstitutional and ultimately undemocratic power grab by an EU body, which is bad enough. Its subject matter makes it more ominous still: sexual violence against women and how to stop it.
Imperial boomerang theory holds that bad habits picked up in the course of conquering and pacifying empires will eventually come home. Typically, it straightforward forms of repression in mind, like police state methods or torture. But if the imperialism is subtle, the boomerang might be, too. EU enlargement directed at its near-abroad offers a technocratic playbook containing the secret sauce of European prosperity to elites and incentivizes their cooperation, while gently blanching democracy and accountability out of politics.
There is a curious parallel to last week’s European Parliament resolution in the rash decision to grant Ukraine EU-candidate status in June 2022. Back then, the EU handed Ukraine a laundry list of reforms to implement before its candidate status would be confirmed. One of those demands was ratifying the Istanbul Convention, full name “Council of Europe Convention on preventing and combating violence against women and domestic violence”, which mandates consent-based rape laws. Ukraine ratified the convention within 48 hours after the EU made it a condition of candidacy. Previously, successive pre- and post-Maidan governments had failed to do so for eleven years.
It was a curious overreach by the EU, because the convention was not created by the EU, but the Council of Europe, a separate, older all-European intergovernmental organization that sets common norms for human rights and democracy. The convention’s subject matter - violence against women - is not subject to EU regulation. The EU does not and cannot oblige its members to ratify the convention. Five current EU members have not ratified it and don’t seem likely to, the remainder have taken their time to do so (up to eight years between signature and ratification), and in at least two, populist leaders intermittently flirt with leaving it. Yet in 2024, the EU itself acceeded to the convention. It was a pointless, legally dubious move since it has no powers in the areas the convention regulates, the kind of vapid grandstanding that animates Brussels politics.
Back in 2022, my Ukrainian feminist friends were jubilant at the overnight ratification. I was dismayed, though, and published an article to explain why: when political struggles that must be fought and won the hard way, right in the heart of society, are instead kicked up the chain into the realm of international organizations and treaties, we lose the struggle. Instead of taking on patriarchal violence the radical way, in communities, families, schools and the streets, grassroots activists are groomed to seek salvation in international mechanisms. Foreign patrons promise them miraculous shortcuts to social change, which turn out mirages.
In such a constellation, the normal democratic process is suspended. There is no broad public debate, no coalition- and consensus-building, no forging of mobilized constituencies that will hold the government accountable for translating the convention into domestic laws and enforcing them.
Ratifying an international convention is easy, especially if a government has no intention of implementing it. A 2024 comparative paper on consent-based rape laws across Europe found that in Ukraine there had been “little domestic pressure” to adopt such a law and that it had come about through “coercive isomorphism” (the approximation of norms due to international pressure).
When Ukraine came in for its first scheduled review under the Istanbul convention in summer 2024, a coalition of Ukrainian and international women’s rights groups submitted a shadow report laying out how police, prosecutors and judges stubbornly ignore the new consent-based rape law, and instead conduct investigations and trials based on their old biases about rape. The convention was ratified, a law was adopted, but nothing has changed for rape victims.
Arguably, ratification of the Istanbul convention only ever served as box-ticking and virtue-signalling, both for Ukraine’s government and the EU officials that put it on Ukraine’s to-do list. This anodyne, technocratic feminism is deployed as decoration. Neither side cares about women, girls and their safety from violence.
I won’t get into whether Ukraine’s government should be expected to adopt reforms, especially those it clearly considers irrelevant, while facing an all-consuming national crisis. Ukrainian officials certainly seem confident they can, after all they insist the country can complete the entire EU accession process by next year. But Ukraine is incidental here. It serves as an illustration of the imperial boomerang, which is now swooshing back to Brussels and about to hit EU citizens.
Just like the EU did when mandating Ukraine to ratify the Istanbul convention in 2022, the European Parliament goes out of its way - literally, by venturing beyond its legal and political prerogatives - to sink its claws into a profoundly political issue and tear it away from the profoundly political struggle it calls for. The imperial boomerang threatens to drain European democracies and civil societies, just like EU integration moves have drained the democracies and civil societies of the EU’s periphery through transactional norm transfer. The European Parliament cannot easily arrogate itself the formal power to micromanage member states’ criminal systems, but it can engage in cheap, hollow virtue-signalling and wrap itself in a faux-feminist flag.
Does it matter if good laws come into existence through flawed processes, through technocratic shortcuts ordered from above or far away?
Consent-based rape laws define rape as any sexual intercourse without active, explicit, freely-given consent. That makes them different from traditional rape laws, written by men from the self-serving male point of view that it’s only rape if it involves physical violence by the perpetrator and physical resistance or attempts to escape by the victim. Due to decades-long feminist advocacy and mass protest movements, the perspective of victims, who experience rape far more often as moments of “freeze” and “fawn” (if not as outright incapacitation due to drugging, choking etc) than “fight” and “flight”, is now codified into consent-based rape laws.
This is progress. However, rape - any rape, under any definition - isn’t just a vastly underreported crime; even when women do report, conviction rates are so low that British feminist lawyer Harriet Wistrich has argued that rape has effectively been decriminalized. A well-known parallel is the decades-old problem (scandal would be a better term) of rape kits in the US: the state refusing to test forensic evidence collected from rape victims’ bodies, sometimes making victims pay for the testing or destroying evidence without notifying them. What progress feminist movements have made towards better laws and policies around rape has been hard-won, incremental and infuriatingly precarious.
I’ll cut to the chase as to why: violence against women is the master key of the patriarchal order. It is the means by which men get what they want from women, including the use of their bodies. It is also the means by which men keep women scared, cowed and at their disposal, and the patriarchal order in place. This order functions even for men that never engage in violence and women that never experience it (although I have never known a woman who hasn’t faced gendered violence).
Since male violence against women is the central mechanism maintaining the patriarchal order, it is of an inordinate scale. A 2024 report by the UK’s Metropolitan police found that the number of perpetrators in United Kingdom may be an “eye-watering” four million and therefore far beyond the scope of the criminal justice system.
This - the scale of male violence against women and that it is the patriarchy’s central mechanism - is a pretty basic point. I am making it here to explain why rape laws adopted through coercive isomorphism - careless, thoughtless transactions between elites, over the heads of their female and male citizens - are not likely to result in significant changes in criminal justice outcomes, let alone in the prevalence of rape and other forms of violence against women. We’re not going to make so much as a chink in the patriarchy’s master key through technocratic trickery.
Even where consent-based rape laws are adopted as a result of organic democratic processes and civil society pressure, they’re hardly a silver bullet. The United Kingdom - with those “eye-watering” levels of male violence against women - has a consent-based rape law. In fact, it was a global pioneer, codifying a consent-based rape definition as part of the 2003 Sexual Offenses Act, a full eight years before the Istanbul Convention was drafted. The UK only ratified the convention in 2022.
Bringing down the levels of violence against women means chipping away at the patriarchal order itself. It requires a radical renegotiation of the social contract between the sexes. That takes everything we’ve got. It takes everything democracy puts at our disposal, and we have to make the most of it. It takes all the other institutions in our societies, too - culture, schools, media etc. Women can’t afford to ponder what came first - the chicken or the egg, the law or the social change. It has to be both at the same time. We have to wield every straw we can grasp at.
In German legal theory, the concept of the “sittenbildende Kraft des Strafrechts” (the morality-shaping force of criminal law) holds that criminalizing behaviors that society at the time considers innocuous changes societal perceptions and notions of morality. This is one straw we grasp at: laws will move the needle towards dismantling the patriarchy. But we can’t afford these laws to come about through bloodless technocracy or transnational elite deals, over the heads of citizens. We also need the movements, constituencies, debates and passions that come with a proper democratic process. They are the other straws we grasp at.
If the European Parliament succeeds in lifting the monumental task of renegotiating the social contract between the sexes out of our democracies and public squares, and if EU member states, lured by the prospect of glamorous girl-washing, pass carelessly copied and pasted consent-based rape laws, we lose the struggle and all the straws that grow from it. We can’t afford that if we want to come for the master key of the patriarchal order.
Since I don’t want to clog anyone’s inbox, I’m tacking a few updates onto this post. They cover the issues of today’s post: the imperial boomerang turning back from Europe’s periphery, Ukraine, war, peace, democracy and Ersatz-democracy, and women’s activism.
Together with Venzie Marinov, a Bulgarian-American who returned home and became an environmental activist, I wrote about the April 19 elections in Bulgaria, and how Western observers’ geopolitics and/or culture war lenses blind them to the issues mobilizing voters: war, peace, security, justice and dignity.
The recording of our panel discussion “Men in the vans, women on the streets: gender, nation, and resistance against forced mobilization in Ukraine and ex-Yugoslavia” has been put online. It comes with a revealing origin story. Volodymyr Ishchenko, Marta Havryshko, Tarik Cyril Amar, Milica Popovic and I had planned the panel together, and the Democracy Institute at Central European University agreed to host it, but then canceled abruptly after coming under pressure. Volodymyr rallied resistance, and the discussion was ultimately held in January, hosted by Scuola Normale Superiore in Florence. You can watch it here.