Corruption, sextortion, gender-based violence: Open challenges for the European Union in harmonising substantive criminal rules

Abstract

The TFEU granted the European Union a propulsive function of harmonizing criminal provisions by establishing minimum standards relating to the definition of crimes and penalties concerning impactful forms of criminality. Considering this, the European Commission has proposed two directives on corruption and gender-based violence, nevertheless lacking to enucleate borderline cases such as sextortion, namely that form of corruption in which sex, rather than money, is the currency of the bribe. Sextortion has been recorded in critical sectors such as education, healthcare, and law enforcement, but there are no specific laws regulating it. Consequently, law enforcement agencies pursue a case-by-case approach and prosecute sextortion either as a corruption case or as a gender-based violence case. Such an approach is not devoid of criticalities. On this point, one should consider, for example, the burdens of consent and the evidentiary system regarding sexual coercion or the unfair criminalization of victims since, technically, they are the ones who provide the sexual activity that constitutes the currency of the bribe. To overcome these concerns, this article suggests introducing an autonomous offense specifically designed to criminalize the conduct of those in a position of power demanding or receiving sexual services in exchange for treatments or services to which those who provide the sexual activity are already legally entitled. Placing the sextortion issue at the European level would fit within the current legal basis of the treaties (Article 83(1) and (2) TFEU) and align with current European initiatives in the field of corruption and gender-based violence.