April 20, 2016
Those who think stereotypical beliefs about rape are a thing of the past will probably be surprised to read the domestic reasoning in cases that have recently reached Strasbourg. Allusions to women’s “immoral” behavior in I.P. v. the Republic of Moldova and insinuations that women should have resisted “by scratching or biting” in Y. v. Slovenia show that these beliefs continue to pervade domestic justice (see here and here). M.G.C. v. Romania is the latest example of the tenacity of harmful stereotypes in domestic assessments of rape complaints. The domestic courts found that the applicant – eleven years old at the time – had “provoked” the alleged perpetrators to have sex with her largely because she was “scantily dressed.”
Facts and Court’s Judgment in Short
The applicant, M.G.C., lived with her family and used to play with the neighbors’ daughters at their house. When the mother noticed that M.G.C. had not gotten her period, M.G.C. revealed that she had been sexually abused by several of the sons and a fifty-two-year-old male relative (J.V.) living in the neighboring family’s house where she used to go to play. Following a complaint brought by the applicant’s parents with the police, the prosecutor indicted J.V. for the crime of “sexual intercourse with a minor.” The brothers, on the other hand, were not indicted but received administrative fines for the same crime. J.V. was ultimately found guilty of sexual intercourse with a minor and sentenced to three years’ imprisonment.
The Court found a violation of Romania’s positive obligations under Articles 3 and 8, as the investigations fell short of effectively applying domestic law punishing rape and sexual abuse against children (§ 74). In line with M.C. v. Bulgaria, the Court held that the domestic authorities had failed to sufficiently investigate all the surrounding circumstances, including the psychological factors at play in cases involving the rape of minors (§§ 71-73).
The Need to Tackle Persistent Reliance on “Ideal” Victim Stereotypes
Human rights law is increasingly tackling judicial assessments based on preconceived notions of what girls and women’s responses to sexual violence should be like (see e.g. CEDAW Committee, Vertido v. the Philippines and R.P.B. v. the Philippines). These assessments should not rely on “assumptions of typical behavior in such situations” but, on the contrary, recognize “the wide range of behavioral responses to sexual violence and rape which victims exhibit” (Istanbul Convention, Explanatory Report § 192). Victims whose lives or behaviors depart from what is stereotypically expected from the “ideal” rape victim risk being viewed as less worthy of legal protection.
In M.G.C., the domestic authorities inferred that sexual intercourse had been initiated by the applicant based largely on (1) the applicant’s provocation through her “scanty” dressing and (2) her reaction after the events, namely continuing playing with her friends and not telling her parents about such events. The first conclusion stereotypically assumes that, by dressing “provocatively,” girls and women “ask for it” – or, in this case, actually go as far as taking the initiative. The second conclusion stereotypically expects child victims of sexual abuse to tell their parents about it. The “good” or “ideal” female child rape victim implicit in these gender- and age-based stereotypes is thus someone who dresses with more body concealing clothes and tells her parents about the sexual abuse without delay.
Commendably, the Strasbourg Court tackles the domestic authorities’ rigid approach to the applicant’s reaction as a child after the alleged abuse:
“… the domestic courts failed to demonstrate a child-sensitive approach in analysing the facts of the case and held against the applicant facts that were, in reality, consistent with a child’s possible reaction to a stressful event, such as not telling her parents.” (§ 70)
The Court, however, surprisingly leaves unexamined how the domestic authorities held against the applicant that she was “scantily dressed.” All the alleged perpetrators admitted to having had sex with the applicant but challenged her lack of consent arguing that she had provoked them by “being scantily dressed most of the time” (§ 13 and § 17). The court of first instance (whose judgment was upheld on appeal) concluded that the applicant “had always taken the initiative” and “been in the habit of provoking both J.V. and the other boys to have sex with her” (§ 24). It considered “relevant” that the applicant “was scantily dressed” (§ 24; see also prosecutor’s assessment in § 19).
The applicant’s clothes thus became an indication of her “provocation” and even of her “initiative.” Evoking the myth that women are “asking to be raped in that outfit” (766-7), this kind of reasoning problematically reinforces the idea that women are or should be responsible for managing men’s sexual attention and advances and that perpetrators “had no choice” but to assault the victims. The dangers of using stereotypical notions such as these in courts’ handling of sexual assault cases are well-known. They preclude actual inquiry into the facts of the case, lead to disregard for individual circumstances, undermine victims’ access to justice, and ultimately, compromise the fairness and impartiality of the justice system.
In M.G.C., these gender-based stereotypes harmed the applicant in several ways. The domestic authorities failed to “see” relevant evidence. For example, they did not consider the psychiatric report stating that the applicant, given her young age, had insufficient discernment (§§ 67-68). The domestic authorities simply assumed that the applicant had given her consent partly based on her alleged “scanty” dressing. This, in turn, influenced the way the prosecutor and judges understood the criminal offense. The fifty-two-year-old neighbor was indicted for sexual intercourse with a minor (punishable with 3 to 10 years of imprisonment) rather than for rape of victims under 15 (punishable with 10 to 25 years of imprisonment).
To conclude, the Strasbourg Court surely deserves praise for challenging inflexible standards of what a “real” child victim should behave like after sexual abuse and for demanding child-sensitivity in cases concerning sexual abuse of children. Yet the Court could have more fully illuminated the harmful assumptions underlying the domestic authorities’ support for the account of the alleged perpetrators over that of the applicant. More precisely, the Court could have tackled inflexible standards of what an “ideal” female victim should dress like and pushed for more gender-sensitivity.
 Randall, Melanie, “Sexual Assault Law, Credibility and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming,” 22 Canadian Journal of Women and the Law (2010) at 409.
 Cusack, Simone, “Eliminating judicial stereotyping: Equal access to justice for women in gender-based violence cases,” Final Paper submitted to the Office of the High Commissioner for Human Rights on 9 June 2014.