Introduction
In L. et Autres c. France, for the first time, the Chamber of the European Court of Human Rights has acknowledged that judicial reasoning which negatively stereotypes, blames and therefore revictimises (secondary victimisation) survivors of sexual violence (SV), is discriminatory. In its judgment, the Court considered three separate cases of sexual assaults on girls, finding positive duty violations of Articles 3 and 8 ECHR in all three. France had failed to apply, in practice, a criminal-law system capable of punishing non-consensual sexual acts against minors.
In L. v. France, one of the three cases the judgment addressed, 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 (this is the wording used in the Court’s summary in English). 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 domestic judges or criminal justice officials victim-blamed and stereotyped, the Court refused to even consider the survivors’ Article 14 allegations (J.L. v. Italy; M.Ș.D. v. Romania) It did the same in a workplace sexual harassment case of similar stereotyping (see details below). This post thus focuses on L. c. France, the instance in which the judgment is most innovative.
Facts of the case
L., aged 13, was extremely vulnerable when multiple firefighters started sexually abusing her. She had suffered school harassment causing serious psychological issues, had left school, and was very socially isolated (paras 5, 16, 220 of the judgment). L. was heavily medicated against depression and anxiety, with numerous suicide attempts, self-harming, and psychiatric hospitalisations. She was having seizures, resulting in 130 interventions by firefighters/ first responders in her home (paras 6, 11, 15, 220-1). (In addition to providing fire protection and rescue, the French fire service is also one of the providers of emergency medical services (see here and here). L. admired and trusted those (4-14 years her seniors) as a ‘moral authority’. She felt she owed them. Her main abuser told her she must be ‘nice’ considering how many times they had aided her. L.’s abusers knew her age and medical record, including suicide attempts and self-harming. They disseminated her contact details in various firefighters’ barracks. She was involved in sexual acts with around 15 more men who knew her age. The abuse lasted 2 years.
L. later stated her succumbing to it was like self-harming. Her neuroleptic medication (according to an expert, heavy doses capable of sedating her) had reduced her to a ‘vegetable’. A psychiatrist confirmed her sexual involvement was self-punishing, like her self-mutilating; she was ‘susceptible’. Another expert found she needed ‘to debase herself’ and was ‘particularly easily influenced’. Her vulnerability was ‘perceptible by others, notably the firefighters’; her consent was not ‘informed’ (paras. 6, 10, 20, 221).
The policeman who first questioned L. repeatedly asked why she didn’t defend herself as a ‘woman being raped would’ (paras. 8 and 227). A magistrate found the sexual acts were established, however, no force was used. The accused maintained L. actively participated. Her psychological issues undermined her credibility regarding consent. No rape or assault was substantiated, merely sexual offences against a minor under 15.
A court confirmed this decision. It held: the firefighters fascinated L., she sought their acquaintance; she was ‘active and provocative’; fellatio and her bringing condoms implied activity; her heavy medication did not show; she rejected one perpetrator and certain acts, accordingly, she was able to; her credibility was diminished, including by expert conclusions regarding her ‘pathology’; her ‘active participation in the frolicking’, her ‘hiding’ of her age, and her ‘morphology’ prevented a finding of violence, constraint, threat, or surprise required for rape/ assault; L’s ‘partners’ could not necessarily see her vulnerability; her self-harming scars did not show fragility during their contacts; firefighters’ ‘usual success with the female race’ and L.’s ‘sometimes unbridled’ behaviour ‘did not incite them to reflect’ (paras. 30-1, 217-218, 228).
The Court of Cassation confirmed this reasoning as ‘free from insufficiency or contradiction’. During the proceedings, L. made several suicide attempts and was hospitalised. A magistrate acknowledged the proceedings’ detrimental impact, refusing certain investigative actions that could cause her to self-harm (paras. 224-5).
The Judgment
The European Court of Human Rights reiterated its settled case law that Articles 3 and 8 require states to effectively punish all non-consensual sexual acts. 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 gender-based violence (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 such as to prioritise 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 (paras. 193, 195, 200-1, 211, 213).
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 (para. 220).
The Court found that 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 reasoning was marred by grave deficiencies as regards L.’s capacity to really consent to repeated sexual acts with multiple men (paras. 221-2).
The proceedings lasted 11 years and 9 months, resulting in the eventual discarding of rape charges. This was unsatisfactory and conflicted 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 (para. 224).
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 (paras. 225-6).
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 (para. 227).
The gender stereotyping reasoning by the domestic court 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. This gender stereotyping was both ineffective (‘inopérants’) in the Court’s view and infringed L.’s dignity (paras. 228-9).
These findings of secondary victimisation sufficed for a finding of discrimination as well. The judicial reasoning confirmed by the Court of Cassation was marked by gender discrimination, according to the European Court (para. 230).
To sum, the Court found that the domestic authorities’ failures in terms of diligence and expedition, as well as assessment of the reality of consent not only deprived L. of appropriate protection but also exposed her to secondary victimisation amounting to discrimination.
Commentary
In the earlier 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 (‘general and discriminatory judicial passivity’, ‘overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors’, Opuz, paras. 198, 200).
L.’s is only the second case of sexual abuse impunity, after J.L. v. Italy, in which the Court recognised judicial sexist reasoning as revictimisation and as a breach of the ECHR 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, paras. 147-8, see commentary; C v. Romania, paras. 83-5, see commentary).
Possible Negative Obligations Violation
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 violation of a negative obligation as opposed to a positive one. The judgment frames L.’s revictimisation amounting to discrimination as an additional breach, alongside the positive obligations aspect consisting of the ineffectiveness of the protection and domestic proceedings: the authorities ‘also exposed her to (‘l’ont aussi exposée à subir’) secondary victimisation amounting to discrimination’ (para. 232). The Court referenced the duty for domestic courts to avoid (‘éviter’) reproducing sexist stereotypes in their decisions (para. 229), which is rightly phrased as a negative obligation.
However, this is unclear and even 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 (para. 226). Nevertheless, this ambiguity possibly implies an advancement compared to J.L. v. Italy, in which judicial revictimisation via sexist stereotyping was explicitly framed as a violation of a positive obligation, arguably a misnomer with the intent or effect of minimising the breach (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. v. 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 (para. 71-2).
Judicial reasoning is an official act and should be acknowledged as an active infringement, i.e. a violation of a negative obligation, rather than mere passivity. A violation is a violation, whether of a negative obligation or of a positive one - that may be so. However, for a victim, the trauma of revictimisation is much more severe when judges or police themselves blame her and stereotype her as compared to when they fail to check defense lawyers or other private actors who do so. The severity of active official revictimisation should be acknowledged. Officials should be exposed as active wrong-doers.
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 v. Grèce (para. 79). Previously, in J.L. v. Italy, it had validated the domestic courts’ exclusive focus on the victim’s credibility, holding that this question was ‘particularly crucial’ (para. 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 was entitled to contest her credibility, as long as they refrainedfrom using cross-examination to intimidate or humiliate her (paras. 126-8). In J.L. v. Italy, the Court ignored the judges’ omission to consider the accused’s credibility in light of the context and other evidence (see critique).
Gaps: Himpathy and Anti-victim Bias in the Domestic Decision
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. v. Italy 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 ormisapply laws. This has far-reaching consequences in criminal law, resulting in perpetrators not being held legallyaccountable 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 (see). Judicial victim-blaming results ineffacing various forms of rape by constructing consent in the place of victimisation. This has allowed rape law to excludecertain 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)’ in Vučković v. Croatia (para. 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. The Court held that the case outcome ‘clearly reflect[ed] a discriminatory attitude towards [I.C.] as a woman with intellectual disabilities’ (para. 220-1). 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 (para. 222).
In L. c. France, the Court expressly found that sexist judicial reasoning ‘aimed to exonerate’ the perpetrators (para. 228). It recognised that the reasoning amounted to gender discrimination. Effectively, these are findings of a lack of impartiality, of bias against the female victim and in favour of her male abusers. The Court found that the domestic judges had ignored victim-supporting evidence and exclusively used evidence favouring the accused. It held this amounted to ‘grave deficits’ (para. 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’.
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 (para. 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.
Lack of 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 (para. 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 (para. 225). However, it did not examine the authorities’ complete passivity to mitigate that. Conversely, in the comparable X. v Greece, for example, the Court listed all the official omissions in terms of victim support measures to address X.’s needs (para. 86).
Conclusion
L. c. France is a seminal judgment, meriting to be designated a key case for 2025 (currently assigned level-2 importance). 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.
