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
This second part of the blog offers an analysis of the European Court’s judgment. The judgment and the case’s facts were summarised in the first part.
a. Precedence
L. c. France is a turning point. Previously in cases of justice authorities victim-blaming and negatively gender stereotyping sexual abuse survivors, the Court, despite finding revictimisation, simply refused to address discrimination complaints (see this author’s commentary here, here, and here). L.’s case is the first one, in which the Court considered, and upheld, a discrimination allegation in such a case. This elevates its sexual assault impunity case law to its domestic violence impunity case law, in which, since Opuz v. Turkey (2009), it has regularly found not only discrimination, but institutional discrimination as well, by passive judges and others.
L.’s is only the second case of sexual abuse impunity, after J.L. c. Italie, in which the Court recognised judicial sexist reasoning as revictimisation and a breach per se. In two other cases (respectively workplace sexual harassment and online violence by a former partner (revenge porn), the Court recognised such stereotyping as stigmatising and revictimising, however, in a limited manner and not as a separate breach (M.Ș.D. v. Romania, §147-8, see commentary; C v. Romania, §83-5, see commentary).
b. Other noteworthy advancement
b.1 Possible negative duty breach
The Court’s language, while not explicit, could be construed as (opening the door to) a finding that L.’s revictimisation by the justice authorities amounted to a negative duty breach as opposed to a positive duty breach. The judgment frames L.’s revictimisation amounting to discrimination as an additional breach, alongside the positive duty breach consisting of the ineffectiveness of the protection/ proceedings: the authorities ‘also exposed her to (l’ont aussi exposée à subir) secondary victimisation amounting to discrimination’ (§232). The Court referenced judges’ duty to avoid (éviter) reproducing sexist stereotypes in their decisions (§229), which is rightly phrased as a negative duty.
However, this is unclear/contradictory as elsewhere the Court found that the authorities ‘failed their duty to protect [L.’s] dignity by exposing her’ to guilt-inducing and stereotyping statements, thusly apparently framing the breach as a positive (protection) duty breach (§226). Nevertheless, this ambiguity possibly implies an advancement compared to J.L. c. Italie, in which judicial revictimisation via sexist stereotyping was explicitly framed as a positive duty breach, thusly misnamed and lessened (critique by this author). Framing judicial reasoning as a positive duty breach also conflicts with other case law (listed here), including notably the recent H.W. c. France, in which a court stigmatised and penalised a wife for not performing her ‘marital duty’, which the Court expressly termed an interference to be examined from the angle of negative duties (§71-2).
b.2 Revictimisation via negative judicial stereotyping assessed under Article 3, as well as Article 8
L.’s revictimisation by the policeman and judges was found to be in breach of both Articles 3 and 8. Previously, in J.L. c. Italie, the only other case of sexual abuse impunity, in which the Court has recognised judicial negative stereotyping of the victim as revictimisation and a breach per se, it held that only Article 8 applied (§119, 136, 140-1; see critique). In the more recent X c. Grèce, where revictimisation of a sexual abuse survivor was also found, although not in the form of sexist reasoning, the Court also acknowledged the applicability of Article 3 to victims’ rights to non-revictimisation (§68).
b.3 Duty to assess the credibility of both the victim’s and the accused’s statements
L.’s case is the second case of sexual abuse impunity and revictimisation, in which the Court affirmed that domestic judges must examine the credibility of the alleged perpetrator’s statements, as well as of the victim’s ones; the first case being X c. Grèce (§79). Previously, in J.L. c. Italie, it had validated the judges’ exclusive focus on the victim’s credibility, holding that this question 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 and were entitled to contest her credibility, as long as they refrained from using cross-examination to intimidate/humiliate her (§126-8). In J.L. c. Italie, the Court ignored the judges’ omission to consider the accused’s credibility in light of the context and other evidence (see critique).
c. Gaps
c.1 No recognition that judicial himpathy and anti-victim bias (could) have affected the case outcome
The Court never acknowledged in L.’s case or other cases of sexual abuse survivors’ victim-blaming and revictimisation that the authorities’ gender stereotypes (possibly) affected the case outcome resulting in impunity instead of (proper) punishment (see J.L. c. Italie critique). However, judicial stereotyping of women and victim-blaming in GBV cases is a well-documented key obstacle to access to justice (see CEDAW and scholarship here and here). Stereotyping results in decisions based on [rape] myths rather than relevant facts, leading to miscarriages of justice, including revictimisation (CEDAW). Stereotyping compromises the impartiality and integrity of the justice system, causing judges to misinterpret or misapply laws. This has far-reaching consequences in criminal law, resulting in perpetrators not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity (CEDAW).
Judicial stereotyping has a well-studied pernicious impact on VAW case outcomes (for example, S. Cusack, “Eliminating Judicial Stereotyping. Equal Access to Justice for Women in Gender-Based Violence Cases”, Office of the High Commissioner for Human Rights, UN, 2014). Judicial victim-blaming results in effacing various forms of rape by constructing consent in the place of victimisation. This has allowed rape law to exclude certain forms of rape from recognition, reducing survivors’ suffering to a condition incapable of being legally articulated (see here).
Rape stereotypes and victim-blaming narratives pervasive in society and within law enforcement and judicial institutions, as well as in criminal justice outcomes, are the most significant reasons why women and girls do not report sexual violence. VAW is significantly underreported, underinvestigated, underprosecuted, and results in very few convictions. At the same time, violence against women, in particular, sexual violence, is ‘devastatingly pervasive’ (WHO), with France ranking high within Europe in prevalence of sexual offences (Eurostat).
The Court has itself admitted that judicial ‘leniency in punishing violence against women, instead of communicating a strong message to the community that violence against women will not be tolerated […] may in turn discourage victims from reporting such acts whereas according to the scarce data […] violence against women is worryingly common and remains seriously underreported (see the FRA’s report […] that one in ten women in the European Union has reported having been exposed to some form of sexual violence since the age of 15, whereas only about 14% of the victims of such conduct seem to report it). (Vučković v. Croatia, §65).
In another recent landmark case, I.C. v. Moldova, the Court found that the domestic courts had evaluated the evidence regarding sexual and other abuse of a woman with intellectual disabilities in a biased manner, reaching discriminatory conclusions. Their conclusions ‘seem[ed] to convey stereotypes, preconceived beliefs and myths about persons with disabilities lacking agency, about a woman’s role being that of a housewife who attends to the needs of a man and the family, and about the domestic work carried out by women lacking any economic value’. This also amounted to secondary victimisation and a failure to provide the necessary procedural accommodation. (§220-1) The Court held that the case outcome ‘clearly reflect[ed] a discriminatory attitude towards [I.C.] as a woman with intellectual disabilities’. It found unrebutted I.C.’s prima facie case of a general institutional passivity and/or lack of awareness of violence against women with disabilities in Moldova. (§222).
In L. c. France, the ECtHR expressly found that sexist judicial reasoning ‘aimed to exonerate’ the perpetrators (§228). The Court recognised that the reasoning was gender discriminatory. Effectively, these are findings of a lack of impartiality, of bias against the female victim and in favour of her male abusers. The ECtHR found that the court had ignored victim-supporting evidence and exclusively used evidence favouring the accused. It held this amounted to ‘grave deficits’ (§222). Is it realistic that such deficits, including such overt bias, had no impact on the case outcome? The Court limited itself to the serious understatement that the sexist reasons were ‘ineffective’.
c.2 No reference to victim-blaming and body-shaming
The Court did not mention victim-blaming as an established concept in the relevant literatures, with its range of relevant connotations. It used instead, as in previous cases, ‘culpabilisant’ (guilt-inducing) regarding the recriminations, which is not fully the same.
Additionally, it failed to reference the French judges’ explicit body-shaming of L. as a part of their slut-shaming. They relied on her ‘morphology’ (sa morphologie) to suggest that her body shape was an element of her purported consent along with her alleged activity (§31). This amounted to suggesting that female forms per se imply consent (are ‘asking for it’). Particularly misogynyst and virulent as applied to a child, this should not have been let slide by the Court.
c.3 No finding regarding the lack of any victim support
While the Court held, as a general principle, that children, sexual abuse survivors, are entitled to protection, including support measures facilitating their recovery and reintegration (§201), it ignored the authorities’ failure to offer L. any such support – no psychological counselling, practical assistance, social intervention; no procedural adjustment to minimise the stress of the proceedings. The Court did find that L.’s health status had deteriorated during the proceedings, with more suicide attempts, which was a part of her revictimisation. (§225) However, it did not examine the authorities’ complete passivity to mitigate that.
Conversely, in the comparable X c. Grèce, for example, the Court listed all the official omissions in terms of victim support measures to address X.’s needs. (§86)
Conclusion
L. c. France is a seminal judgment, meriting to be designated an ECtHR key case for 2025. It levels up the case law on sexual GBV impunity to that on domestic GBV, laying the groundwork for the Court’s future acknowledgment of judicial anti-victim and pro-perpetrator sexist bias in sexual GBV cases as a pervasive, systemic issue structurally undermining women’s equality before the law and access to justice.
Bio:
Margarita S. Ilieva is an international equalities and human rights lawyer, an independent expert, and an international consultant.