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Violence against Women: Consent

20min

16+

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In the case E.B. against Romania (2019), the European Court of Human Rights considered the complaint of a woman known as E. for reasons of anonymity. Find out how rape is a form of torture and other ill-treatment.

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Violence against Women: Consent

Understand the theory

How is rape connected to the right to be free from torture and other ill-treatment?

To complete the task, click on all hotspots and explore 7 reasons for refusal. Put a tick if you consider the reason to be unjustified and violating the right to peaceful assembly. For a closer look at each situation, drag and move the panorama. You have two attempts.’

Torture is when a person is intentionally caused severe pain or suffering for a specific purpose or as the result of discrimination. The specific purpose must be either to get information or a confession, to punish or to intimidate. In order to be considered torture there needs to be an involvement of an official, such as a policeperson or prison guard. However, this doesn’t need to be direct – this means they don’t need to perpetrate the act of torture or other ill-treatment themselves. It is enough that they knowingly let it happen.

Sometimes a person is harmed without all the elements of torture being present. For example, where the purpose of causing pain or suffering is not one of the reasons above. In such cases, the harm will not be torture but still ill-treatment (sometimes referred to as ‘other cruel, inhuman and degrading treatment and punishment’).

States have negative and positive obligations to safeguard our human right to be free from torture and other ill-treatment.

The negative obligation means the state must not do something. For instance, public officials must not inflict torture and other ill-treatment, such as rape, on individuals.

The positive obligation requires action from the state. For example,

• states must put in place adequate legislation that effectively protects individuals from rape and other sexual violence;

• also, states must apply this legislation in practice through effective investigation and, where appropriate, prosecution, for all acts of rape or other sexual violence and provide protection to the victims.

Putting it simply, the failure of effectively investigating rape allegations amounts to a violation of the right to be free from torture and other ill-treatment by the state.

The states bear this positive duty to carry out effective investigation of all rape-related cases whether the perpetrator is an agent of the state, a violent partner or spouse or a total stranger.

Now, let’s find out what exactly happened to E. in May 2008.

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Violence against Women: Consent

Examine the authorities' investigation into E.’s case

For a detailed look at each situation, grab and move the panorama, click on the dots and read the text. Some situations are blurred, which means that the authorities ignored these circumstances.

E. went straight to the police to report the crime, but the station was closed. The next day E. went to the police again and lodged a complaint. At first, the police advised her to withdraw the complaint because there were no witnesses. They said she was “asking for it” and “it did her good”. She refused to withdraw, and the investigation began.

Let’s study what happened to E. again, but this time – through the lens of Romanian authorities. What important facts did they choose to ignore in E’s testimony?

What important facts did the Romanian authorities choose to ignore?

E’s slight intellectual disability T’s criminal record Crime scene details (night-time, cemetery, use of threat with a knife) All of the above

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Violence against Women: Consent

Consult a legal expert on the role of consent

In this case, the woman said NO but T. still violated her sexual autonomy and raped her. But even absence of a NO of victims doesn’t mean they give consent and looking for a NO is not enough to establish the fact of rape in 100% of cases.

Let’s chat to an international human rights lawyer to find out more about E’s situation and the role of consent.

RESPONSE OPTIONS

RESPONSE OPTIONS +

Hi, pleased to chat about this and answer your questions.

The authorities in the current case were confronted with two conflicting versions of the events. E. alleged that she had been raped by T. on the evening of 20 May 2008. However, the man involved in the incident claimed that she had consented to sexual intercourse that evening. The authorities’ central task, while investigating this claim, was to determine whether or not the sex was consensual.

It is important what approach the state takes. The conclusions drawn by the prosecutors and courts in Romania were based only on the fact that E. had not asked for help and her body did not show signs of violent resistance specific to rape.

The key word is “in some cases” but not all. Look at the statistics that Romania submitted to the European Court.

Exactly. The major weakness of such “violence-based” approaches to investigating rape is in fact that what happened to E. is more common. Therefore, international human rights law now requires governments move away from a focus on the proof of physical violence and resistance of the victim, to the existence or not of consent.

In fact, E. said she had been threatened and afraid for her life, and could neither react nor resist T. In such circumstances, the absence of injuries may be one of the characteristic features of rape.

This could explain less convictions in many cases where there is no evidence of physical violence in the attacks. Moreover, other survivors may decide not to report incidents in the future again. It rightfully seems pointless to them.

Let’s make a quick POLL. How many women in Europe do you think replied that have been raped?

Answer: According to FRA survey in 2014, 9 million women in Europe reported they had survived rape.

Yes, it is, isn’t it? Just looking at the scale of rape only in Europe and thinking about the ineffectiveness of this violence-based approach in the majority of these cases… one can only imagine the scale of impunity for rape and rapists at large.

It is indeed. Survivors of rape also have to confront the consequences of force and violence-based definitions of rape in the penal codes and in how courts interpret the law. In case of Romania, the definition of rape did not explicitly require physical resistance from the victim to establish the fact of rape. But such was the meaning given by the investigating authorities and the court to the definition in the penal code.

Excellent question. The answer is the authorities should have treated her with respect and care. They should have sought to establish whether the sexual act was consensual. In the absence of evidence of violence, they should have applied a “context-sensitive approach”.

Firstly, focusing not only on the survivor’s actions but on the actions of the alleged perpetrator.

Secondly, taking seriously all evidence of E.’s enhanced vulnerability. For example, authorities should have considered the medical document that stated that E. had a slight intellectual disability.

Oh yes, it does. The European Court has repeatedly expressed the view that failure to properly investigate complaints of sexual abuse against children or other vulnerable persons, such as people with intellectual disabilities, may be in breach of State’s positive obligations on the protection of the freedom from torture and other ill-treatment. Moreover, the Court found that the woman was subjected to additional suffering as a result of the authorities’ failure to inform her of her procedural rights and to provide her with free legal assistance and counselling.

In general, the officials should have done everything that reasonably would be useful in assessing the credibility of statements and a full assessment of the circumstances. And it does not only refer to Romania, by the way. These positive obligations for governments to protect us all from torture and other ill-treatment are relevant for all 58 countries who signed the European Convention of Human Rights

Great question – well, to start with we need both law reform to recognise that sex without consent is rape, and police, lawyers and judges who implement the law, guaranteeing access to justice, support and protection for all rape victims.

No, you are right! There are other important changes to make. Let’s step aside from the Romania case and look around us and at our own relationships. All of us need to think, learn and talk more about consent. For example, everyone should know that consent is not just a one off ‘yes’. Consent is an ongoing status and can be withdrawn at anytime if someone changes their mind. We also need to challenge the common negative stereotype that if a woman does not say NO or is silent and does not resist that means she consents. As we see from many other stories of survivors, absence of NO or resistance does not mean that.

I guess just asking a question and wait for the verbal or non-verbal response? We usually do that checking in when we are interested in another person’s opinion, right? We also should consider if there is anything that may impair someone’s ability to give consent freely, any disability or any imbalance of powers.

I know. So how about starting to discuss if we need a new norm? Until we raise awareness, change negative attitudes in our immediate communities, our societies and authorities will not change.

Now, let’s check how well you have done through the module!

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Violence against Women: Consent

Understand the theory

FIND OUT MORE ABOUT E.’S STORY

Examine the authorities' investigation into E.’s case

Consult a legal expert on the role of consent

Test your knowledge

How E.’s story ends