September 06, 2021
By Margarita S. Ilieva, a strategic equality/human rights litigator with extensive experience in negative stereotyping.
The violent misogyny case of J.L. c. Italie (27.05.2021) is one of few in which the Court expressly addressed revictimisation (neglectful/actively injurious treatment of a survivor by those expected to address the original harm). Prior cases whereby this concept was integrated in Convention law include N.Ç. c. Turquie (9.02.2021) and A and B v. Croatia (20.06.2019). In Y. v. Slovenia (28.05.2015), the Court dealt with protection against repeat victimization (by the original perpetrator), not yet incorporating ‘secondary victimisation’ (by insufficiently heedful domestic judges).
The earlier cases concerned (severe) sexual predation of girl children. In the high-profile J.L., it was a young woman who survived gang-abuse. An art. 8 violation was found, since the appeals court’s reasons for acquitting the accused were sexist. The Court termed this ‘secondary victimisation’ breaching the State’s positive duties.
Yet, did the Court robustly address J.L.’s multi-layered revictimisation? Let’s examine the Court’s credibility on behalf of a woman, to return the gesture to tiers of (male-dominated) judges preoccupied with (de)constructing the victim’s credibility. The ECtHR judges (who problematized J.L.’s credibility) are predominantly male. Conversely, two out of three at the appeals court were women – a bleak symptom of internalized patriarchy.
J.L. (22) spent an evening drinking in a public place with seven men; two were her fellow art students and/or one-night stand partners. One had previously created a documentary, featuring her as a sex worker enduring violence. (Later, investigators uncovered obscene writing by him, which a judge considered alarming – evocative of unhealthy attitudes towards J.L.)
During the evening, J.L. became inebriated to the point where she had difficulty walking. She participated in what witnesses described as unchecked flirtation, while the men were continuously offering her drinks. She yielded to oral sex in the toilet with one; unwilling but intoxicated, she felt unable to oppose him. (They had had casual sex once before.) Eventually, the men began inappropriately touching J.L. in public, leading her out. Witnesses observed this and her drunken inertness – she was unable to walk; men supported her, whilst sexually touching her. J.L. was not reacting, unable to resist. Two separate concerned individuals intervened. One heard J.L. tell the men to stop. Afterwards, six had intercourse with J.L. in a car, while she was unresponsive, in a state of shock.
Later, she underwent post-traumatic stress and hospitalization.
Investigators questioned J.L. three times, making her repeat – relive – the events. At least once, they asked about her previous relations with the men. At trial, 17 public hearings occurred. Journalists attended. Eight lawyers cross-examined J.L. about her family/personal situation, sexual experience, and participation in a sex-themed workshop following the abuse (discontinued due to her panic attack resulting in hospitalization). The judge repeatedly interrupted lawyers asking repetitive irrelevant personal questions. He ordered brief pauses for J.L. to recover.
The accused maintained J.L. had consented to group intercourse: she had been provocative, ‘showing’ red lingerie, inviting group sex.
The trial court held J.L. was subjected to criminal sexual acts (not rape) whilst in an ‘inferior’ physical/psychological state. Six men were convicted. The court considered J.L.’s credibility only partial due to several inconsistencies in her testimony. However, three neutral witnesses had confirmed her drunkenness incompatible with consent.
On appeal, the accused alleged J.L. had no credibility. The court agreed, acquitting all the men involved. Its judgment referenced J.L.’s sexuality, family/personal life, and called her ‘fragile’, ‘vulgar’, and ‘lascivious’. Its reasoning was biphobic and sexist, (normalising the abuse by) blaming/othering the victim: labelling her as ‘uninhibited’, ‘non-linear’, ‘capable of managing her (bi)sexuality and of having casual sex encounters she wasn’t entirely convinced of’, ‘ambivalent attitude to sex, which led her to choices that she did not entirely own, and experienced in a contradictory and traumatizing fashion’. The court noted her previous relations with two of the men, her ‘extremely provocative’ exchanges with the group, giving oral sex, ‘showing’ red underwear, mounting a mechanical bull, acting in the sexually violent documentary by an abuser, participating in sex-themed art practice shortly after the abuse. The court held she gave consent through her preceding behaviour, not withdrawing it when the men started touching her. She allowed herself to be led and remained ‘inert’, ‘at the mercy of the group’, while they performed their acts; they had (legitimately) understood this as consent. The acts were ‘unfortunate’, not criminal.
The court insinuated J.L. was lying: by reporting the abuse, she wished to ‘stigmatise’ and ‘deny’ ‘a moment of fragility and of weakness’. In a classic ‘blame-the-victim’ act, that court effectively held that J.L. was a whore and was asking for it.
The Court ruled this reasoning breached positive judicial duties to protect a victim. J.L.’s victim rights under art. 8 implied protection against secondary victimisation (§119). The appeals court’s references to J.L.’s sexuality, underwear, relationships, artistic choices were inappropriate and unjustified, interfering with her art. 8 rights (§136). The appeals court had assessed J.L.’s attitude to sex based on her acting in the violent film by an abuser, yet failed to comment on him having created that film, and what that revealed about his own attitude to sex. The Court held those references unhelpful to ‘evaluating [J.L.’s] credibility’, unnecessarily interfering with her private life. Such reasoning stereotyped women (§140); the prejudices barred gender-based violence victims from effective protection.
Positive duties to protect victims included safeguarding their image, dignity and personal information. Judges’ freedom of expression through decisions was limited. They may not reproduce sexist stereotypes, downplay sexist violence, and blame women; this was secondary victimisation (§141).
Nevertheless, the question of J.L.’s credibility was ‘particularly crucial’ (§138). The Court was ‘prepared to admit that referring to her past relations with [the accused] or her behaviour during the evening could be justified’. Her account was inconsistent – the defence needed to cross-examine her (§ 126-7). She was not particularly vulnerable requiring enhanced protection. The accused may contest her credibility, as long as they refrain from using cross-examination to intimidate/humiliate her (§128).
The Court assessed the legal process in three segments: J.L.’s questioning/hearings, separating investigation (1) from trial (2), and the judgments (3). It found a violation solely in the appeals court judgment (3), and at no other procedural stage.
The Court believed J.L. experienced the proceedings as an especially painful ordeal, as she had to repeat her testimony multiple times over several years, answering investigators, prosecutors, lawyers. Lawyers tried discrediting her, posing prying, irrelevant questions breaching domestic and international law (§132). However, the authorities were not responsible for her ordeal: the trial court often interrupted the lawyers, briefly pausing the proceedings for her sake; it disallowed cameras (§131). J.L. was not directly confronted with her abusers (§129). When questioning her, the investigators were not disrespectful/intimidating. They asked pertinent questions, not seeking to discourage J.L. or influence the outcome.
The Court stated that it was unnecessary to apply art. 14 (§147), disregarding J.L.’s assertion the acquittals were gender-discriminatory and the authorities’ negative attitude to her stemmed from sexist prejudice.
The Court awarded J.L. EUR 12 000 for non-pecuniary damages. (J.L.’s own assessment was EUR 80 000.) It partially acknowledged her ‘distress’ and ‘psychological trauma’ due to the authorities’ failure to protect her as a victim. No pecuniary damages were awarded (which would have served to cover medical expenses for mental health issues, home relocation to avoid her aggressors, university expenses resulting from her loss of scholarship due to mental ill-health). The Court saw no causation linking these costs to the violation (§151).
In his deplorable dissent, judge Wojtyczek complained he didn’t understand what gender stereotypes the appeals court’s judgment reproduced, or why it was victim-blaming. He thought that judgment wasn’t arbitrary, and recommended reading the impugned reasons for J.L.’s lack of credibility in the overall context of the judgment’s arguments. He worried the Court’s decision might jeopardize defence rights. Notably, he warned criminal law shouldn’t be ‘overestimated’ as a tool against inequalities. This judge seemed to be unbothered by criminal law being used to perpetuate (hetero)male dominance.
His most unfortunate remark was that the Court’s judgment itself was ‘blaming and moralizing’ vis-à-vis the Italian judges. Turning around the Court’s finding that the appeals court’s victim-blaming discouraged victims’ faith in justice, he opined the Court’s finding itself discouraged faith in justice by stigmatising the appeals court. Clearly, his experience as an (international) judge hasn’t helped him comprehend the difference between victims of (bias) crime and (senior) judges. He hasn’t learned to distinguish privilege from vulnerability. This discourages faith in those who (s)elect ECtHR judges. Are they discerning ?
Judge Wojtyczek did make one valid point in arguing that the appeals court’ judgment breaches negative, rather than positive, duties under art. 8.
The Court acknowledged that a victim is entitled to non-revictimisation. Yet, its reasoning was not robust or coherent. The Court was not fully mindful of a survivor’s right to dignity and care. Among other authorities, see a selection of ODIHR standards, evidence by the Leicester Hate Crime Project, UNHCR GBV standards, and Council of Europe GBV standards for references to victim rights throughout.)
The Court qualified the appeals court’s sexist anti-victim reasoning as a positive duty violation. However, said active judicial negative stereotyping of J.L. as a (bisexual) woman breached the State’s negative duty to abstain from interfering with victim integrity. Indeed, the Court itself termed the offensive references ‘interferences’.
The Court ignored whether the appeals court’s sexist/biphobic bias against J.L. was a factor for the acquittals. In terms of case outcome, was J.L. treated less favourably than a (heterosexual) male victim in a comparable situation would be? But for her gender/(assumed) bisexuality, would the accused be acquitted? The Court is neglectful on this point.
The Court disregarded the impugned judgment’s biphobic references, ignoring its multiple bias. The Court seems unaware of the implications of (perceived) bisexuality for sexual violence. Biphobia’s tropes include othering people as ‘slutty’, legitimising sexual assault. According to the CDC’s National Intimate Partner and Sexual Violence Survey, in the USA, bisexual women are by far the most frequent victims of rape, at a rate twice to three times superior than any other group of cisgender people. 46% of bisexual women have been raped and 66% have experienced sexual or intimate violence, which is two to three times higher than for any other (cisgender) group.
The domestic court’s gender-biased reasons indicate institutionalized misogyny (and biphobia). It is unrealistic that such unchecked prejudice in a public act has had no influence on the outcome. The appeals court ignored the concordant testimony of three neutral witnesses who had seen J.L. inert whilst being subjected to sexual objectification. The acquittals occurred despite this irrefutable evidence of her incapability of consent. Did the appeals court treat the accused more favourably due to its negative stereotyping of J.L.? It privileged their self-serving assertions, without scrutinising their credibility, despite the lead abuser’s sexually violent creations featuring J.L. The Court did not address this.
The Court avoided J.L.’s established inability to consent, not engaging with the appeals court’s neglect of that crucial fact. Instead, it validated the domestic judges’ obsession with J.L.’s credibility. The Court affirmеd that each party’s credibility must be assessed, yet avoidеd the fact that the accused’s credibility wasn’t examined. Whilst J.L.’s (communicated) case did not invoke art. 6, iura novit curia is an important principle that the Court could have acted upon. (If the Court did not communicate an art. 6 allegation, that would be unfortunate.)
The Court legitimised the flawed premise that a victim’s relationship with/prior behaviour vis-à-vis a potential sex partner could be relevant where there is no consent for a sex act. Is it really relevant if she flirted earlier? Is it relevant if they had sex previously? Convention law should be long past such insulting questions. It should be settled that solely consent for a particular act is relevant, as given at the time of that act, not in general/previously. Even a boyfriend/husband needs act-specific consent at the specific time. A person is free to say ‘no’ at any point. They should never be touched if unable to say ‘yes’. If for any reason they are incapable of act-specific consent, there is no consent. If non-consensual acts are established, no other fact is relevant; least of all the victim’s credibility, personality, emotional state, sexual behaviour, or involvement with the abuser. Italian law acknowledges the irrelevance of personal life (§132). The Court however opined that some of the lawyers’ personal questions – therefore, not all of them – were irrelevant. It is regrettable the Court should intimate that any such questions could have any relevance.
The Court was satisfied that the trial court repeatedly interrupted the prying lawyers. It didn’t consider that whatever this court did was insufficient, as the behaviour persisted – numerous interruptions implies undeterred prying – resulting in J.L.’s public courtroom harassment. The Court didn’t indicate the domestic court’s responsibility to secure a result in the courtroom it was in charge of. The Court did not discuss alternative, effective measures the court should have taken to enforce domestic law, which banned such questioning (e.g. contempt of court sanctions, or session adjourning). The onus should be on the government to prove all possible measures were taken.
Instead of setting victim-sensitive standards, the Court held that J.L., a gang-predation survivor, was not vulnerable enough for enhanced protection. How does the Court construe vulnerability in gender-based violence cases? Its construction should not be narrow/exclusionary. J.L. wasn’t necessarily as vulnerable as others – like, for example, the astonishingly lionhearted girl who prevailed over heinous atrocities in N.Ç. c. Turquie. However, J.L. had her own particular vulnerability as a young woman abused by six men she called friends, a denial of which is incompatible with a gender-sensitive, victim-centred approach. Vulnerability should not be interpreted hierarchically, but inclusively, accommodating victims’ diverse individual vulnerabilities/needs.
The Court admitted J.L. underwent a protracted, ‘especially painful’ ordeal in court, but held the authorities were not responsible (§133). Who was responsible, then? Are non-State actors in control of criminal proceedings? Is there a jurisdiction issue here? This is a bit of sarcasm, of course – the Court is asking for it.
Gender-based violence victims, as well as hate crime victims, are entitled to comprehensive support, including individualized needs-based sensitive care. States are obligated to provide such support. The centrepiece of victim support is for practitioners to believe and take survivors seriously (among other authorities, see ODIHR, Hate Crime Victims in the Criminal Justice System, 1.4 The needs of hate crime victims: “Victims need to have their experience acknowledged and validated by law enforcement and criminal justice agents. They need to be believed and have their experiences recorded in the case file.”) Denying their experience is abusive. Courtrooms should not be unsafe spaces for victims (among many authorities on this, see Council of Europe, Combatting violence against women: minimum standards for support services: “The foundational principles of [support] [a]re commitments to providing spaces in which women felt safe to tell, where they would be believed and respected […].”)
Believing victims of gender-based violence/bias crime that what they experienced is what they say they did isn’t the same as believing the accused is necessarily guilty. It is accepting the victim is telling their truth, not lying. Victim perspectives must be honoured whatever the case decision. The presumption of innocence shouldn’t mutate to treating women as liars (a timeworn sexists’ projection). It shouldn’t be exploited to justify perpetuating the inequality inherent in discriminatory violence. The presumption of innocence exists to offset State privilege vis-à-vis the accused. A (bias) crime victim, especially a woman confronting traditional male sexual licence, has no privilege. They are the most underprivileged participant in the process, traditionally marginalised by the State after being hurt. Respect to the survivor. Disgrace belongs elsewhere.
The Court ignored the authorities’ failure to offer J.L. any support – no psychological counselling, practical assistance, social intervention; no procedural adjustment to minimize the pain from repeatedly narrating/reliving the abuse, or to shield her from the misogynistic verbal violence of victim-blaming lawyers. The Court disregarded the proceedings’ anti-victim slant resulting from lawyers/judges obsessing over J.L’s credibility, whilst sparing the accused any scrutiny. Typical of sexism, the woman was reduced to the one standing trial rather than her abusers-turned-accusers. The Court didn’t mind. It found no issue in her unduly extracted personal information being mediatized as journalists were allowed to exploit her (re)victimisation.
The only procedural accommodation J.L. received were brief pauses in her public revictimisation, which resumed after each pause. (The trial symbolically replicated the original violence: intrusive lawyers ganged up, unhindered by the weakly reactive judges.) This satisfied the Court. Its judgment implies that gender-based violence victims’ rights entail minimal duties: no support; mere abstention from misogynist judicial expression; the least intervention vis-à-vis third parties, however ineffectual. Possibly, gender-biased anti-victim/pro-accused case outcomes are not outlawed – the Court didn’t engage with that matter – as long as bias reasons are covert. Is it enough for judges not to explicate anti-victim bias?
Regarding J.L.’s repetitive, prolonged questioning by investigators/prosecutors without support/alleviations, the Court concluded her ensuing distress wasn’t due to ‘unjustified’ or ‘disproportionate’ traumatizing (§130). The question shouldn’t merely be if officials were actively abusive. Did they do enough to meet the special needs of a gender-based violence victim by (pro)actively enabling her recovery, shielding her from any avoidable added hurt? Consideration for the distress of bias violence victims is a duty: actively minimise the harm, not merely not actively compound it. The onus should be on the State to prove adequate support. It shouldn’t be on the victim to demonstrate bias behind official omissions to show due practical regard.
The Court’s refusal to name the multiple (gender/sexual orientation) discrimination defining this case, by refusing to consider art. 14, is typical of its arbitrary approach to equality. Its systemic marginalization of equality rights on non-transparent expediency grounds defies fairness, resulting in this pan-European jurisdiction’s ongoing impoverishment in terms of transformative justice for all identities.
The Court’s arbitrariness regarding equalities creates unconscionable inconsistency. In Carvalho Pinto v. Portugal concerning sexist-ageist judgments, the Court found an art. 14/art. 8 violation. Detrimental age-based sexual stereotyping of women – multiple bias, as in J.L. – was held to contradict gender equality as a major goal. Prevailing social attitudes didn’t justify less favourable judicial treatment. Stereotyping ‘prohibited the individualised evaluation’ of a case.
Where judges use judgmental assumptions about women’s sexuality, normativising traditional roles to the detriment of physical/psychological self-fulfilment, this interferes with judicial consideration of concrete cases. In Carvalho Pinto, sexism/ageism wasn’t an unfortunate word choice. It swayed the decision, introducing different treatment. The applicant (54) had suffered medical negligence. Her compensation was reduced through gender bias, which the Court acknowledged.
J.L., a young sexual gang abuse survivor, was no less vulnerable. Yet, the Court denied her consideration as a judicial discrimination victim.
In Paraskeva Todorova v. Bulgaria, also concerning judicial stereotyping, the Court found an art. 14/art. 6§1 breach. A Roma woman was refused a suspended sentence – the judge referenced her ethnicity, alleging minorities had a sense of impunity, not seeing a suspended sentence as a conviction. The Court held such reasoning apparently sought to set an example. The judge had disregarded the woman’s health, treating her less favourably based on ethnicity. The Court invoked equality before the law, stressing anti-racism was a priority.
Yet, it refused to acknowledge J.L.’s equality before the criminal law as a woman free to have casual sex and equally free from non-consensual acts.
The Court arbitrarily limited Convention recognition of severe State revictimisation. Protection from revictimisation was ascribed to art. 8 (§119). Therefore, art. 3 couldn’t be (regularly) invoked. The Court admitted J.L. was ‘humilated’ (§128). Revictimisation, especially in bias violence cases, could be as severe as ‘degrading treatment’. By a priori excluding this possibility, the Court underrated the impact of revictimization, notably if overt institutionalized prejudice is at play.
The Court denied J.L. compensation for expenses arising from her life’s derailing following (re)victimisation. Had it looked closer, with the consideration victim rights to full restitution and recovery imply, it could have perceived a likelihood that revictimisation contributed to J.L.’s medical and forced displacement expenses, and loss of scholarship. The Court should have comprehensively and mindfully discussed potential causalities between her revictimisation and pecuniary damages. Taking victim needs/rights seriously means comprehending the appeals court validated the gang abuse, intensifying its abhorrent wrong. Judicial revictimisation didn’t cause discreet, contained harm; it fed into the sexual predation it legitimised, magnifying it.
In his recent talk on gender equality, President Spano invoked the Recommendation on Preventing and Combating Sexism, which urges action in the justice sector and in language/communications, advising the criminalization of sexist hate speech. Judge Spano addressed judicial gender stereotyping, referencing Carvalho Pinto. He discussed the Court’s gender (im)balance and its relevance to the quality of judgments deriving from broader judicial perspectives. President Spano noted that 15 women judges represented 32% of the Court. He spoke of (the need for) gender-sensitivity capacity-building to enable gender-mainstreaming by the Court: ‘making judges recognise the minority voice or concern in a case where it might have been overlooked’.
One wonders what J.L. would say to that. Five men and two women decided her case at the Court.
J.L. is a survivor. We shall see how long the Court’s gender crookedness will last, with the ensuing preponderance of privileged perspectives preventing (full) identification with victimisation and a genuine victim-sensitive concern. J.L. is well-placed to witness the end of it within her lifetime.
Until then, shall we name ‘trivictimisation’ the Court’s partial neglect of female revictimisation? As a token of its partial credibility from the perspective of a woman.