The European Parliament has approved a resolution calling for a single EU-wide definition of rape based on the absence of consent — replicating a Spanish law that, within months of coming into force, saw 978 sex offenders benefit from reduced sentences and 104 walk free from prison.
The resolution, passed on April 28, 2026 with 447 votes in favour, 160 against and 43 abstentions, demands that only a clear, affirmative and freely given indication of consent be considered valid in any sexual act. It states that silence or the absence of a “no” cannot be interpreted as agreement.
The vote is non-binding. It is now up to the European Commission to propose formal legislation, which would then need the approval of EU member states — a process that has previously proved politically divisive.
THE VOTE AND WHAT IT MEANS
The resolution is explicit: any sexual act that takes place outside a freely given and unambiguous consent must be treated as rape. It also rules out the notion that prior consent, a previous sexual relationship or marriage can imply automatic agreement.
MEPs backing the measure cited cases of online abuse and drug-facilitated assault as evidence that laws based on the use of force have failed to keep pace with the reality of sexual violence.
The definition endorsed by the parliament aligns with the Istanbul Convention, ratified by 22 EU member states. According to the European Parliament Research Service, 17 of the 27 member states already define rape or sexual assault through the absence of consent.
The remaining member states — among them Estonia, Latvia, Romania, Italy, Slovakia, Hungary and Bulgaria — retain laws that require proof of force, threats or incapacity. These often demand victims to demonstrate physical resistance, a standard that critics say places an excessive burden of proof on those who report attacks.
A PRECEDENT WITH CONSEQUENCES
Spain was held up in the European Parliament debate as a model to follow. Its so-called ley del solo sí es sí — the “only yes means yes” law — was approved in 2022 following a high-profile gang rape case. It embedded the consent-based standard into Spanish criminal law.
What was less discussed in Strasbourg is what happened next.
Under Spanish law, as under the legal systems of most EU member states, any new legislation that is more favourable to a defendant must be applied retroactively to those already serving sentences. This principle, enshrined in Article 2.2 of the Spanish Penal Code, triggered an immediate review of cases already decided under the previous, stricter sentencing framework.
The result was not what the law’s architects intended.
978 OFFENDERS BENEFIT, 104 WALK FREE
Data compiled by Spain’s Consejo General del Poder Judicial (General Council of the Judiciary) showed that by April 14, 2023 — less than five months after the law came into force — 978 convicted sex offenders had seen their sentences reduced under the new legislation. Of these, 104 had been released from prison.
The figures covered rulings from the Supreme Court, the Audiencia Nacional, regional superior courts of justice and provincial courts across the country. Several courts had not yet reported their data at the time, meaning the true number was likely higher.
The Supreme Court alone had reduced 15 sentences for sexual offences. The 17 regional superior courts of justice accounted for 82 further reductions, while provincial courts were responsible for 880.
Spain’s Supreme Court subsequently scheduled a full plenary session to set binding doctrine on how the law should be applied, after the government — led by Prime Minister Pedro Sánchez — sought to push through an amendment to limit the damage.
A POLITICALLY COMPLEX ROAD
In Brussels, the political path to EU-wide legislation on rape is no clearer. The consent-based definition was explicitly excluded from a directive on violence against women adopted in 2024, after several member states — including France — argued that criminal law is a matter of national competence and should remain so.
France’s position was particularly striking. It was cited in the 2024 debate as one of the countries where new forms of sexual violence had exposed the limits of force-based definitions. MEP Abir al Sahlani pointed to French cases of drug-facilitated abuse as justification for the resolution.
The European Union Agency for Fundamental Rights has estimated that around 5 per cent of women in the EU have experienced rape since the age of 15.
The European Commission has not yet said whether it will take forward the parliament’s call. Any directive would require unanimity or a qualified majority in the Council of the European Union and would face the same sovereignty objections raised during the 2024 negotiations.
What the Spanish case makes clear is that even well-intentioned legislation can have outcomes its drafters did not foresee — and that the gap between political intent and legal reality is not always easily closed.
