August 14, 2026
By Işıl Kurnaz
From the 2003 decision in M.C. v. Bulgaria to the January 2026 decision in Z v. Iceland, the European Court of Human Rights (ECtHR) has been applying its consent-based approach to sexual violence cases with increasing rigour. Consequently, it is no longer merely how a Member State defines sexual violence that shapes the consent doctrine, but also how it investigates and prosecutes such cases.
Throughout most of the twentieth century in Europe, the legal approach to sexual violence centred on whether the victim resisted. Silence, passivity, and submission were often interpreted as consent or insufficient proof of non-consent. It was only after decades of feminist legal mobilisation, legislative changes, and international court rulings that the focus shifted from ‘did she fight back?’ to ‘did she freely agree?’.
Tracing the shift through the jurisprudence of the ECtHR requires particular attention to two landmark cases – M.C. v. Bulgaria, decided in 2003, and the very recent Z v. Iceland, decided in January 2026 – situated within a broader political context. This context, as I will argue, renders the consent-based standard both more urgent and more fragile.
This piece will cover four themes: the resistance paradigm; the ECtHR’s elaboration of positive obligations; a new frontier on consent in the Z v. Iceland judgment; and the comparative compliance picture grounded in the latest resolution by PACE.
In 2003, the M.C. v. Bulgaria case marked a key moment in which the ‘resistance’ paradigm gained prominence in ECtHR case law. It involved the rape of a 14-year-old girl by two men. The Bulgarian courts’ inability to find direct evidence meant they could not hold the men accountable, as stated in paragraph § 64 of the decision: ‘There can be no criminal act … unless the applicant was coerced into having sexual intercourse by means of physical force or threats’. According to the Court, resistance was assumed, but no evidence of it was found. The men could be held criminally liable only in case they knew the sex was non-consensual and used force or threats.
The expert evidence submitted in M.C. v. Bulgaria and the broader scientific literature, however, tell a different story. Psychologists call it ‘frozen fright’ or ‘traumatic psychological infantilism syndrome’: a passive, dissociative response to assault, the most common response (§§69-71). Moreover, according to the Court’s data, 24 of 25 rape victims in Bulgarian programs had not resisted physically (§71). The ECtHR found a violation of the State’s positive obligation under both Article 3 (prohibition of torture) and Article 8 (right to private and family life), while it did not see the need to examine Article 14 (discrimination). The Court reviewed European and international law, including the International Criminal Tribunal for the former Yugoslavia (ICTY) cases Furundžija and Kunarac, and noted the following trend: a shift from force to consent as the key element of rape (§§102-107; §182). Consequently, the ECtHR emphasised that investigations should focus on non-consent (§181).
The following cases (Y v. Slovenia, M.G.C. v. Romania, J.L. v. Italy, and N.Ö. v. Turkey) explore three interconnected themes: the decline of the resistance paradigm; the Court’s departure from the stereotype of the ‘ideal victim’; and the changing view of vulnerability, shaped by both personal circumstances and institutional power.
The Court’s focus shifted from the substance of the law to the conduct of the proceedings. Y. v. Slovenia in 2015 is one such example that focuses on the proceedings themselves. The Court noted that how a rape victim is questioned – especially through repeated, aggressive, or humiliating cross-examination – can violate the State’s positive obligations, and that the investigation must avoid re-traumatising the victim (§106).
Then, the Romanian case brought a new dimension regarding not just how victims are questioned, but how investigators reason about the victims. M.G.C. v. Romania in 2016 is the case in which the vulnerability thread became explicit and central. The Court stated that when the victim is a child, positive obligations demand a holistic assessment, considering age, development, and power dynamics (§§ 74-75), and vulnerability increases the State’s obligations, rather than diminishing them (§ 56). A mechanical resistance test is inadequate and cannot reflect the reality of sexual violence against minors (§69).
The Italian case marked a turning point by moving the anti-stereotype principle from the investigation to the courtroom itself. J.L. v. Italy in 2021 found a violation not because the domestic courts acquitted the accused — but rather based on ‘secondary victimisation’, which occurred due to judicial decision content that evoked guilt, moral lectures, and gender stereotypes in reasoning (§§134-143), assumptions about a ‘real’ rape victim’s behaviour, and relevance of dress or conduct (§§ 46-51). The ECtHR held that relying on such stereotypes breaches Article 8 – affecting the quality of judicial reasoning, and not just the outcome (§141). In her Strasbourg Observers commentary on the case, Ilieva criticised the ECtHR for ignoring whether the appeal court’s sexist and biphobic bias against J.L. influenced the acquittals.
Finally, the recent N.Ö. v. Turkey decision – having become final in June 2025 – warrants closer attention as it effectively synthesises the debate from previous cases by advancing the doctrine on three distinct fronts.
The applicant, a female dentist, reported that her administrative superior, the Chief Medical Officer, forced her to perform oral sex in 2010 and that she filed a complaint about this 20 months later, in March 2012. She presented forensic evidence in the form of semen found on her clothing and psychiatric evidence in the form of a diagnosis of PTSD and depression. Turkish courts acquitted the defendant, but based their decision solely on the argument that an educated professional woman would not have delayed reporting such an incident for so long had she actually been assaulted. The prosecutor, the trial court, and the appellate courts all upheld this argument.
The N.Ö. v. Turkey decision developed three fronts simultaneously: First, it applied the anti-stereotype principle from J.L. v. Italy to the issue of reporting delay. In other words, the ECtHR stated that the victim’s failure to report is not a factor that would affect her credibility, particularly if a workplace hierarchy exists. Second, it incorporated the workplace and power dimensions into the victim’s vulnerability analysis and assessed the ‘fear of professional retaliation.’ Third, the fact that the ruling was issued against Turkey – the only country to have withdrawn from the Istanbul Convention so far – is also decisive from a domestic perspective.
Z v. Iceland, decided in January 2026, is the most recent and one of the most significant relevant decisions. Here, the ECtHR most closely applied the ‘affirmative consent standard’, which requires positive and active indication of agreement to a sexual act rather than the mere absence of refusal. The facts of the case can be summarised as follows: a man entered the tent of a 16-year-old girl while she was sleeping and initiated sexual contact without prior consent; he stopped when the girl became uncomfortable. The Icelandic courts considered the man’s decision to stop when the girl became uncomfortable as a central factor in assessing consent, and subsequently acquitted him.
However, the ECtHR ruled that there was a violation regarding the procedural aspect of Article 8. Its reasoning reframed the entire inquiry. The domestic courts had determined consent by asking the wrong question: the question that should have been asked was not whether the accused stopped when the girl became uncomfortable, but whether there was a basis for believing she had consented at the moment the sexual conduct began. In other words, consent must exist at the outset of the conduct; it should not be retroactively inferred based on the absence of resistance.
Centred on a ‘case-by-case’ approach – from the M.C.’s investigative method to the Z.’s initiation criteria, the framework the ECtHR aims to develop also indicates a legislative change aligned with the Istanbul Convention and PACE Resolution 2650.
Read through the Court’s case law, the Convention establishes that consent must be given freely, based on the individual’s genuine will, and that it must be assessed in light of the surrounding circumstances. However, not all Member States have transposed this standard into their national legislation. The most significant recent institutional response on this issue is PACE Resolution 2650 (‘Paving the Way for a Culture of Consent’), adopted on 22 April 2026, based on a report by rapporteur Zita Gurmai.
As the Resolution states in §12.1.3, States must adopt an ‘only yes means yes’ approach and ensure that the perpetrator assumes the burden of proof. Read against the ECtHR case law, this is not merely a political solution but also a doctrinal consolidation. The affirmative consent standard maps directly onto Z v. Iceland’s initiation question and the burden of proof provision reflects the investigative imperative M.C. v. Bulgaria established over two decades ago – that proceedings must be ‘centred on the issue of non-consent’ (§181), not on whether the victim demonstrated sufficient resistance. Resolution 2650 can therefore be read as the Assembly translating settled ECtHR doctrine into an explicit legislative instruction to Member States. The references to the ECtHR in Gurmai’s report, on which the Resolution is based, also confirm this ground.
Resolution 2650’s call to outlaw the concept of ‘marital duty’ and criminalise marital rape (§12.1.4) similarly tracks recent ECtHR authority. In H.W. v. France, the Court condemned the doctrine of implied spousal consent, holding that consent must ‘reflect the free will to engage in a specific sexual relation at the time it occurs.’ France’s domestic response is itself instructive as a paradigm of the ECtHR-to-legislation model: following L and Others v. France (April 2025), the ECtHR found that the French framework had failed to meet its positive obligation to punish non-consensual sexual acts. France amended its criminal code on 6 November 2025 to define rape as ‘any non-consensual sexual act’, specifying that consent must be free, informed, specific, prior, and revocable. That reform is cited approvingly in Gurmai’s report as a model for states that have not yet moved to a consent-centred definition. The sequence – ECtHR ruling, domestic legislative reform, PACE endorsement – illustrates exactly how the Council of Europe framework is designed to operate.
However, it is also necessary to bear in mind the gap between legislation and internalisation. Two decades after the ‘frozen fright’ response was identified as the most common reaction to an assault, in the case of M.C. v. Bulgaria, the 2025 Brå (Swedish National Council for Crime Prevention) report empirically confirmed that the scenarios Sweden’s consent law had begun to address were the same as those the ECtHR had warned could not be addressed by resistance-based frameworks. Consequently, the link between the Court’s doctrinal intervention and legislative action is not merely theoretical. In this context, whilst a legislative amendment based on the inadequacy of physical resistance is necessary, it is not sufficient on its own.
The institutional momentum on this issue stems from the Council of Europe’s decision of April 2026. On 28 April 2026 – the week the Gurmai’s report was finalised – the European Parliament’s LIBE and FEMM committees submitted a report to the plenary session calling on the European Commission to propose an EU-wide definition of rape based on ‘freely given, informed consent’ and renewing the call for gender-based violence to be included in the list of ‘European Offences’ set out in Article 83 of the TFEU (1) (§61). The EU Directive on combating violence against women (2024/1385), adopted in February 2024, had specifically abstained from including a definition of consent-based rape as an offence, following opposition from certain Member States. Consequently, the European Parliament’s report represents a direct initiative to fill this gap at EU level.
Taken together, PACE Resolution 2650 and the European Parliament report demonstrate that the ‘only “yes” means “yes”’ standard is now the prevailing benchmark in European legislation, which in turn shapes the normative framework within which the European Court of Human Rights operates when assessing whether a Member State’s legal framework fulfils its positive obligations under Articles 3 and 8.
However, the Council of Europe’s consent framework operates in contested territory. Notably, neither the case law nor Resolution 2650 itself frames consent violations as a matter of structural discrimination. The resolution calls for gender equality measures (§12.2.6) and flags the specific vulnerabilities of disabled persons, children, and economically dependent individuals (§3), but stops short of treating non-consensual sexual violence as inherently discriminatory on grounds of sex. As Prof. Carmen Draghici highlighted in her Strasbourg Observers blog post, even where the Court identifies a violation of Article 8, the absence of acknowledgment of gender-based discrimination means that it does not engage the structural discrimination dimension that Article 14 would require.
This matters because an Article 14 analysis would compel the Court to look beyond the individual case. In none of the foundational consent judgments – M.C. v. Bulgaria, Z. v. Iceland, J.L. v. Italy, N.Ö. v. Turkey – did the Court find it necessary to examine Article 14. Without this structural lens, two distinct failures go unaddressed. First, what might be called a compliance gap: where victims sharing the same protected characteristic are subjected repeatedly to the same inadequate investigations and stereotype-laden credibility assessments, the framework has no mechanism to register this as a pattern requiring a systemic remedy rather than a series of individual judicial corrections. Second, an implementation gap: where domestic courts resist internalising consent-based standards – as Sweden’s post-2018 experience shows – Article 14 scrutiny could have surfaced this resistance as structural non-compliance, generating stronger pressure for reform than Article 8 alone can produce.
Resolution 2650 closes neither of these gaps. Until the ECtHR or the PACE framework explicitly engages Article 14 in the consent context, the doctrine will remain powerful as an individual remedy while falling short as a tool for systemic change. As backlash against the Istanbul Convention and persistent non-compliance make effective protection contested, the standard’s own architecture (positive obligations, Chamber-level precedents, soft-law enforcement) leaves it exposed to erosion without formal reversal. This erosion is fragile because the framework depends on Article 8 rather than Article 14. It is also urgent, as the institutional conditions for establishing a definitive European consent standard are now more favourable than ever.
From the 2003 case of M.C. v. Bulgaria to Resolution 2650 of June 2026, one can say that the Council of Europe has developed a significant consent framework, shifting from the question ‘did she resist?’ to ‘did she freely agree?’. This shift has also been reflected in the legislation of many Member States, and the ECHR’s case law has held states accountable both in relation to their definitions of rape and their investigations and prosecution procedures. Now, from an institutional perspective, it is possible to say that the ‘only yes means yes’ standard is becoming the European norm.
However, urgency remains real and factual as doctrinal conditions and case law do not always align. The Z v. Iceland case may have pushed for affirmative consent, France may have legislated it, and two European institutions may have moved in the same direction, but there is still a structural gap.
The fragility is equally real since the entire framework was established without the engagement of Article 14. While sexual violence is viewed as an issue of privacy and dignity, it is not recognised as a ground for sex-based discrimination. This omission does not merely point to a technical difference; it also signifies a lack of structural tools to identify and remedy this systemic failure. Therefore, a framework rooted in Article 8 can support survivors individually, while a framework based on Article 14 has the potential to fundamentally change the areas where these courts and policy-makers have fallen short.
The culture of consent that PACE calls for cannot be legislated into existence, but the legal framework that enables it can be built with a structural understanding of what sexual violence is: not merely a violation of one person’s autonomy, but a form of discrimination that states have a positive obligation to confront as such.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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