JL v Italy: The ECtHR is finally recognising victim blaming in cases of sexual violence

By Sophie Girardini

Source: pch.vector on Freepick

This year the European Court of Human Rights (ECtHR) finally addressed victim-blaming and secondary victimisation of survivors of sexual violence by national courts throughout their criminal proceedings. In February the Court addressed the secondary victimisation in a sexual abuse case regarding a minor in NÇ v Turkey, and in March the secondary victimisation of a ‘not especially vulnerable woman’ in JL v Italy. This is a huge step. Condemning national courts for upholding presumptions and stereotypes of female sexuality and holding them accountable for their wrongdoings has been long overdue. But did the Court really go far enough in expanding its recognition? 

The applicant in the present case, JL, was a 22-year-old young woman living in Scandicci (Italy) when she was raped in 2008 by 7 men at the end of a party. While the alleged rapists were found guilty in the first instance trial, they were acquitted in March 2015 by the Florence Court of Appeal. The applicant contested the reasons of judgement and requested an appeal to cassation, which was declined and then finally opened the road to jurisdiction in front of the ECtHR. The Court found ‘the comments in the reasoning of the appeals judgment were guilt-inducing, moralising and conveyed sexist stereotypes’ and concluded therefore that authorities had failed to protect the applicant’s right to private life and personal integrity in the context of the criminal proceedings, violating their positive obligations under Art 8 ECHR.

The judgement by the Florence Court of Appeal can be seen as a classic case of victim-blaming. Through and through, like in a textbook example, the Italian Court blamed the gang rape on the young victim, calling the applicant ‘uninhibited, vulgar, lascivious’ as well as ‘non-linear’. The judges believed the applicant’s family situation, her previous relationships, her sexual orientation and her clothing choices, as well as the subject matter of her artistic and cultural activities, were relevant for assessing her credibility and the criminal liability of the defendants. The judgement mentioned the applicant’s ‘ambivalent attitude towards sex’, which led her to ‘choices that she did not entirely own and experienced in a contradictory and traumatizing fashion.’ (JL v Italy, para 46) Her allegedly liberal lifestyle as a student of art history, as a woman perceived bisexual, having casual sexual relations with both genders, made her de facto a less worthy victim. She did not fit the stereotype of rape victims that still prevails in Italian society. She was not the ‘innocent’ victim the judges expected in their stereotypical and sexist worldview.

What the Italian judges seemingly overlooked was that the applicant was a drunk young woman, raped by 7 men in a dark parking lot, who was denying her consent loudly and clearly by saying ‘no’, as witnesses vividly recalled in court. The judges called the incident ‘unfortunate’ but not criminal. They did not follow governing international standards, such as the Council of Europe Convention on preventing and combating violence against women, the Istanbul Convention, which requires that national courts focus solely on moment-specific consent.

While the ECtHR this year rightly found a violation of Art 8 of the ECHR regarding the appeals trial proceedings it did strangely not do so regarding the proceedings in front of the first instance court. The first instance court had been praised by the ECtHR for prohibiting journalists from filming the public proceedings and granting the applicant pauses when the defence lawyer continuously asked her personal questions concerning her sexual orientation and her intimate choices, which were unrelated to the facts of the case. This practice was firmly contrary not only to the principles of international law regarding the protection of the rights of victims of sexual violence, but also to Italian criminal law according to Article 472 3bis Italian Code of Criminal Procedure.

The first instance court, however, did not rebuke the defence lawyer sharply nor did it prevent him from his abusive cross-examination. Neither did it ask ex officio for an exclusion of the public in a highly polarised case when the victim unfortunately missed doing so. (JL v Italy, para 131) Did the Italian first instance court therefore really do enough to avoid secondary victimisation? The ECtHR seems to think so: ‘The public authorities in charge of the proceedings could not be considered responsible for the particularly distressing experience suffered by the applicant, and they had not failed to ensure that her persona integrity was duly protected during the trial.’

In the earlier case Y v Slovenia, the Court set high standards for victim protection in sexual violence cases and stated that cross-examination was not to be used as a means of intimidating or humiliating a victim. However, it questionably did not find this applicable to the present case. The Court saw a fair balance between the protection of the victim and the right of the defendant to proof his innocence in the first instance proceedings, which the present author cannot fully support. Relevant international instruments, such as the Istanbul Convention in its Article 54, state that ‘evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary’ and therefore only when closely related to the facts of the case. The present non-related questions, however, were highly intrusive and should not be accepted when it comes to the positive obligations of states under Art 8 ECHR.

Scholars and the ECtHR judges seem to disagree upon whether the Italian violation of Art 8 ECHR was disregarding a negative obligation of the Italian state or a positive one. I would like to argue it disregarded both. The Italian state should not only have abstained from insulting the victim actively in the appeals judgement but should have also have protected her from the abusive cross-examination of the defence lawyer in the first instance trial.

All in all, the judgement is clearly a step in the right direction on the way to the elimination of secondary victimisation and the elimination of all kinds of sexual violence in Europe. However, the Court could still go far further, recognising higher standards of secondary victimisation under Art 8 ECHR and additionally recognising secondary victimisation and sexual violence as discrimination against women in conjunction with Art 14 ECHR. The judgement shows the continuing importance of the standards of the Istanbul Convention for the ECtHR, as the Court is mentioning the Italian GREVIO report as well as provisions of the Istanbul Convention in its reasoning. Therefore, it is to be hoped that the Court will continue to show its ongoing desire to upgrade its standards in regard to violence against women and aspire to reach higher protection standards in accordance with relevant international instruments.

Bio:

Sophie Girardini is a recent graduate student of the University of Groningen’s Bachelor programme of International and European law, focusing during her Bachelor’s thesis on the European trend in consent-based rape law and the use of the Istanbul Convention by the European Court of Human Rights. She is currently working on recent issues regarding violence against women in the MENA region at ARPA International Law Group in Rabat, Morocco.