Credits: CherryX per Wikimedia Commons
This submission is a Cross-Post from the ECHR Blog (https://www.echrblog.com/)
For the first time, the ECtHR has acknowledged that judicial reasons negatively stereotyping and blaming and, therefore, revictimising, survivors, are discriminatory
By: Margarita S. Ilieva
Introduction
In L. et Autres c. France, the European Court of Human Rights (ECtHR, Court) considered three separate cases of sexual assaults on girls, finding positive duty violations of Articles 3 and 8 of the European Convention of Human Rights (ECHR) in all three. According to the Court, France failed to apply, in practice, a criminal-law system capable of punishing non-consensual sexual acts against minors.
In L. c. France, one of the three cases, the Court also found a violation of Article 14 ECHR as the French judges had used ‘moralising and guilt‑inducing statements which propagated gender stereotypes’ amounting to ‘secondary victimisation’ and gender-based discrimination (see the Court’s summary). Such gender stereotypes were ‘ineffective’ and ‘infringed’ the survivor’s dignity. Previously, in at least two cases of sexual or sex-related gender-based violence, respectively, against a young woman (22) and a girl (18), whom the judges/ other criminal justice officials victim-blamed and stereotyped, the Court refused to even consider the survivors’ Article 14 allegations. It did the same in a workplace sexual harassment case of similar stereotyping. (See details below)
This post, consisting of two parts, focuses on L. c. France. The first part sets out the facts and summarises the judgment (as concerns L.). The second part showcases its critical precedence and other noteworthy advancements compared to relevant prior case law, while also highlighting certain remaining deficiencies in the Court’s approach.
Facts of the case
L. was an already extremely vulnerable victim when she started, aged 13, being repeatedly sexually abused by multiple firefighters in the course of 2 years. Aged 9, she had suffered school harassment causing serious psychological problems leading to her leaving school and isolation. Aged 12, she began having regular violent tetany seizures resulting in 130 interventions by firefighters, acting as first responders, including some of her future abusers, in her home. L. admired and trusted the firefighters who were 4 to 14 years older than her and represented a ‘moral authority’. Later, she stated that she felt she owed them and that her main abuser sometimes told her that she needed to be ‘nice’ considering how many times they had aided her. When the abuse began, she was being heavily medicated against depression and anxiety due to numerous suicide attempts and psychiatric hospitalisations. Later, she stated that her psychotropic medication (according to an expert, heavy doses of neuroleptic capable of sedating her) had reduced her to a ‘vegetable’, unable to consent to the sexual acts.
L. was self-harming and later stated her succumbing to the sexual abuse was like (self-)cutting. A forensic psychiatrist confirmed her sexual behaviour was self-punishing, like her self-mutilating; she was ‘fragile, immature, susceptible’. Another expert found she had ‘a need to debase herself’, was ‘particularly easily influenced, impressionnable, and suggestible’. Her vulnerability was ‘perceptible by others, notably the firefighters’. ‘Psychologically, consent by such a fragile, vulnerable and disturbed young girl could not be considered “informed”.
Her abusers who were aware of her age and medical record, including her suicide attempts and self-harming, disseminated her contact details among firefighters from multiple other barracks, resulting in her being involved in sexual acts with around 15 more men who also knew her age.
After her criminal complaint, L. was first questioned by a policeman who repeatedly asked why she didn’t defend herself physically as a ‘woman being raped would’, leading L. to admit that she hadn’t acted in a way the perpetrators would know was non-consenting.
A juge d’instruction found the sexual acts established, however, L.’s psychological state and varied statements regarding her consent required caution. The accused had maintained that she was sexually active with them. No force was used. No rape or other assault charges were substantiated, merely sexual offences against a minor less than 15 years old.
An appeals court confirmed this decision/reasons. It held, inter alia, that: fellatio L. was involved in was not compatible with passivity; she had opposed one of the perpetrators, accordingly, her age and medication hadn’t rendered her unable to; she had brought preservatives; her varying statements greatly diminished her credibility, as did the expert conclusions regarding her ‘pathology’; L. was fascinated by the firefighters and sought their acquaintance; her behaviour was ‘active (entreprenant) and provocative’; her ‘active participation in the frolicking (ébats), notably by means of fellatio’, her ‘hiding’ of her age, her ‘morphology’ established via photographs, her capacity to refuse certain sexual acts, such as anal penetration, and to reject certain of her ‘partners’, did not allow a finding of violence, physical or moral constraint, threat, or surprise as elements of rape and sexual assault, despite the age difference between her and the accused. L’s vulnerability could not necessarily be seen by her ‘partners’ during their brief contacts; her self-harming scars did not show her fragility at that time; her ‘active participation’ in the sexual acts did not reveal she was heavily medicated. The firefighters’ ‘usual success with the female race (la gent féminine)’ and L.’s ‘sometimes unbridled’ behaviour with them ‘did not incite them to reflect’.
On appeal, the Court of Cassation confirmed this decision and its reasons as ‘exempt from insufficiency or contradiction’.
During the proceedings, L. made several suicide attempts and was hospitalised. The juge d’instruction acknowledged the proceedings’ detrimental effect on her by refusing certain investigative actions as those would risk causing her to self-harm.
The European Court’s Judgment
The European Court reiterated its settled case law that States’ Articles 3 and 8 positive duties require them to effectively punish all non-consensual sexual acts. (para. 193) Victims, especially children, may not be expected to physically resist. Lack of consent is decisive. Criminal proceedings regarding sexual crimes are often an ordeal for victims. Their rights must be protected, including their image, dignity, and private life. It is essential that courts abstain from reproducing sexist stereotypes, minimising GBV, and exposing women and, a fortiori, children to secondary victimisation by using recriminating (culpabilisant) language discouraging victims from trusting the justice system. Children are entitled to protection from sexual abuse in a way prioritising their best interests, including appropriate support measures facilitating their recovery and social reintegration. The authorities must: analyse the facts from a GBV angle; consider the psychological factors characteristic of rape cases; evaluate the victims’ state of mind; take account of the victims’, in particular, minors’, vulnerability; seriously assess the credibility of the differing versions of fact based on the relevant context.
The Court stressed L.’s extreme vulnerability as a 13-year-old at the time of the first acts, whose psychological fragility had led to 100+ first aid interventions by the firefighters in her home. She had been a victim of school harassment with grave psychological consequences, withdrawal from school, significant isolation, and heavy medication for recurring panic attacks and seizures. When she first met the accused, she had been hospitalised due to her self-harming and suicide attempts, which continued throughout the relevant period, including the proceedings. L.’s interest in the firefighters, bordering on obsession, rendered her particularly vulnerable to their attention and sexual demands.
In their appraisal of L.’s conduct, the French judges failed to make a contextual analysis, notably, of the power imbalance in her relationship with the accused. The judges altogether failed to consider the established fact that some of the accused knew L.’s age and medical record, or L.’s statements that the sexual acts with her main abuser were largely due to his demands once he had gained her trust and that of her parents during first aid interventions. The judges also took no account of the evidence supporting L.’s statements that she was considered an ‘easy sexual prey’ once her name was circulated in the barracks of the accused and in other barracks. They did not consider the effect of her particular vulnerability, including her psychological state, on her behaviour, including her documented ‘self-punishing’ tendencies, ‘need to debase herself’, and ‘particular suggestibility’ preventing her informed consent, which were visible to others. The domestic court’s reasons were marred by grave deficiencies as regards L.’s capacity to really consent to repeated sexual acts with multiple men.
The proceedings lasted 11 years and 9 months, resulting in the discard of rape charges. This was unsatisfactory, conflicting with the requirement for particular diligence considering L.’s particular vulnerability manifested by suicide attempts during the proceedings, which the authorities were perfectly aware of.
In terms of secondary victimisation, L.’s health status deteriorated during the proceedings. Additionally, at least twice, the authorities failed to protect her dignity by exposing her to guilt-inducing, moralising statements, and sexist stereotypes capable of discouraging victims from trusting the justice system.
A policeman indirectly reproached L. for not crying or physically defending herself. He caused L. to recognise her behaviour as inadequate and not what was purportedly expected from a rape victim. Such questioning was inappropriate, guilt-inducing and disqualifying L.’s word, and that at the decisive stage of receiving her complaint, when the authorities owed to be especially victim-supportive. It was also contrary to contemporary rape definitions, which include no physical resistance element.
The gender stereotyping domestic court’s reasoning described the facts in a grotesque and derogatory manner, referencing firefighters’ ‘usual success with the female race’ and L.’s ‘occasionally unbridled behaviour with them’. This reasoning aimed to exonerate the accused. The words used and their message were completely out of place. The court’s gender stereotyping was both ineffective and infringed L.’s dignity.
These findings of secondary victimisation sufficed for a finding of discrimination as well. (para. 230) The judicial reasoning confirmed by the Court of Cassation was marked by gender discrimination.
To sum, the authorities’ failures in terms of diligence and expedition, as well as assessment of the reality of consent not only deprived L. from appropriate protection but also exposed her to secondary victimisation amounting to discrimination.
The analysis of the judgment follows in the second part of this blog.
Bio:
Margarita S. Ilieva is an international equalities and human rights lawyer, an independent expert, and an international consultant.