In 2025, the ECtHR has delivered significant judgments concerning
gender-based violence. This post provides some reflections on X v. Cyprus of 27 February 2025, I.C. v. Moldova of 27 February 2025, and L. and Others v. France of 24 April 2025. The aim is not to treat each case
in its entirety, but to provide some key takeaways (for a detailed analysis of L. and Others v. France, see this excellent analysis). I argue that these three cases are notable as the Court (I)
addresses secondary victimisation through stereotyping and prejudices in
criminal proceedings; and (II) partly reviews this as a separate issue
of discrimination. In addition, in L. and Others, the Court (III)
emphasises the need in sexual abuse cases to review the vulnerability,
especially of minors, when assessing consent. This post will be followed by a
note on the autonomous and proactive risk assessment under Article 2 in N.D. v. Switzerland.
I. Challenging Stereotyping and Prejudices in Criminal Proceedings
These cases indicate increased sensitivity of the Court towards
secondary victimisation in domestic proceedings due to stereotypes and
prejudices faced by the alleged victims of sexual abuse. In earlier cases, the Court’s omission in directly addressing such
attitudes has been criticised (see here).
The Court reiterated that ‘in
criminal proceedings on sexual violence, it is essential that authorities avoid
reproducing sexist stereotypes in court decisions, playing down gender-based
violence and exposing women to secondary victimisation by making guilt-inducing
and judgmental comments that were capable of undermining victims’ trust in the
justice system’ (I.C. v. Moldova, para. 199; L. and Others v. France, para. 200). In X. v. Cyprus, it noted that biases concerning women in Cyprus had hindered the
effective protection of the applicant’s rights, and that they risk creating ‘a
background of impunity discouraging victims’
trust in the criminal justice system, despite the existence of a satisfactory
legislative framework’ (X. v. Cyprus, para. 125).
In all cases, these concerns were elaborated in more detail. In X. v. Cyprus, the Court for instance held that:
[I]t appears that the authorities’
disinclination to pursue the investigation further or to initiate criminal proceedings had been based on the
applicant’s sexual liberty and conduct. The applicant’s credibility appears
to have been assessed through prejudicial gender stereotypes and
victim-blaming attitudes […]. By focusing on the applicant’s prior conduct,
the authorities seemed to suggest by implication that because she had
allegedly participated in group sexual activities before, she would not have
refused to engage in such activities on the day of the alleged rape. The
Court reiterates that circumstances concerning the victim’s behaviour or
personality cannot excuse the authorities from the obligation to carry out an
effective investigation (para. 119, emphasis added).
In L. and Others, the Court also found that an applicant had been subject to secondary
victimisation by the national authorities through the use of moralising and guilt‑inducing
statements which propagated gender stereotypes. The Court took into account
that, the applicant was confronted with questions from a police officer who indirectly
reproached her for not having shown her lack of consent by screaming or
physically defending herself. These exchanges led the
applicant to acknowledge that she had not behaved in an appropriate manner,
allegedly expected from a rape victim facing her aggressor. The Court noted the
inappropriate nature of such remarks, which were guilt-inducing and tended to
discredit the applicant’s account. The Court also noted that such remarks are
inconsistent with the contemporary definition of rape, which no longer depends
on establishing physical resistance by the victim (emphasis added, para. 227).
The Court also found the
reasoning used in the judgment problematic. It noted the gender stereotypes
present in the domestic judgment which described in a caricatured and
pejorative manner the facts reported by the applicant by referring to the ‘usual
success [of firefighters] with the female sex and [the] sometimes uninhibited
behavior of the latter towards them’, which supposedly did not ‘lead them to
reflect’. The Court found that this reasoning was aimed at exonerating the
perpetrators and that it was entirely inappropriate (para. 228).
In I.C. v. Moldova, the Court similarly noted that
without having any procedural accommodation:
the police officers had asked [the women with disabilities]
directly if she had enjoyed having sexual relations with I.P. […] Such a line
of questioning was clearly inappropriate, insensitive and harmful. It was also
legally irrelevant in that context, when the investigation should have focused
on the absence of consent. Such behaviour by the police can only stem from and
contribute to the stereotype of a female victim being somehow responsible
for an assault. The Court finds that the said questions were not only aimed
at attacking the applicant’s credibility, but were also meant to denigrate her
character (para. 199).
It also
noted that a social worker present at an interview appeared to have a prejudiced
view of the applicant’s credibility because she thought that ‘as a person with
disabilities, [the applicant] enjoyed drawing attention to herself’ (para.
200).
The
Court further took into account how the domestic courts had relied on the
opinions of some witnesses which in fact had little or no knowledge of the
applicant and never questioned why a crucial witness had changed their
statements in the course of the investigation, while dismissing statements and
conclusions from professionals as to the applicant’s credibility as their ‘personal
conclusions’ (para. 201). Similar concerns on the biased treatment of evidence
were also present in X v. Cyprus, where the Court also
reacted to a
lack of sensitivity towards the individual during the proceedings.
The term secondary victimisation
is mentioned numerous times in the Istanbul Convention (see Articles 15, 18 and
also Article 56, the Court has also referred to the Istanbul Convention in this
context, see for instance, Y v. Slovenia, para.
104). These
cases also follow the line of case law represented by J.L. v. Italy (paras 136-142); Carvalho Pinto de
Sousa Morais v. Portugal (paras 49-56), Y v. Slovenia, (paras 107-114),
and C. v. Romania, (paras 83-86), which to different degrees emphasise the need to avoid
secondary victimisation through stereotypical judicial reasoning and/or due to
lack of sensitivity towards the victim in criminal proceedings on sexual
violence.
The Court’s approach in X. v. Cyprus, I.C. v. Moldova, and L. and Others v. France also seems to more
directly challenge the domestic authorities’ preconceptions of victims of
sexual violence than some earlier cases. The Court’s reference to the
reproduction of ‘sexist stereotypes’, ‘preconceived beliefs’ and ‘myths’ (I.C. v. Moldova, para. 221) is
stronger than the language used, for instance, in Y v. Slovenia which referred to ‘accusatory
questions unrelated to his task’ (para. 112), and ‘offensive insinuations about
the applicant’ (para. 109). The Court thus seems to be more directly addressing
the reproduction of rape myths (see here) by national
authorities, challenging views such as a ‘female victim being somehow responsible for an
assault’, and that ‘because she had allegedly participated in group sexual
activities before, she would not have refused to engage in such activities on
the day of the alleged rape’.
It is also notable that the secondary victimisations established in I.C. v. Moldova, L. and Others v. France and X v. Cyprus were dealt with under Article 3 of the Convention (either alone or together with Article 8). The need to consider the victim in proceedings and stereotypical approaches to sexual offences have earlier been reviewed from the point of view of Article 8 (for instance, Y v. Slovenia, and J.L. v. Italy). The recent cases thus seem to reflect the ECtHR’s tendency to increasingly review the state’s obligations in relation to cases on sexual abuse under Article 3, instead of under Article 8.
II. Secondary Victimisation as Discrimination
The second aspect of the Court’s recent
cases relates to the interpretation of the prohibition of discrimination. I.C. v. Moldova and L. and Others v. France indicate a
willingness to treat cases of secondary victimisation as a separate issue to be
addressed under Article 14. In L. and Others v.
France, the Court held that its findings on secondary
victimisation were sufficient to conclude that the reasoning in the domestic
judgment was marked by gender-based discrimination (para. 230). In I.C. v. Moldova, the Court expressly noted the need to examine the applicant’s
complaint separately under Article 14, as it was ‘based
on the broader allegation that [the failure of the authorities to investigate
her allegations, inter alia about sexual abuse,] was due to the general
stereotypes held by the Moldovan authorities against women with intellectual
disabilities and a failure to attempt to correct such inequality’ (para. 93).
This contrasts with the Court’s approach in cases such as J.L. v. Italy or C. v. Romania, where the Court did not separately review or find an Article 14
violation. Scholars have, indeed, criticised
the Court’s lack of consistently assessing the reproduction of gender
stereotypes in judicial decisions as a question of discrimination (here, and here).
It is also
notable that in these two cases, the Court is not applying the approach of a
comparator for finding violations of Article 14. The traditional requirement of
‘a difference in treatment of persons in analogous or similar situations’
(which in much of the Court’s case law requires a comparative group) and that
this distinction is discriminatory, was, for instance, invoked by the dissenting
judges in Carvalho Pinto de
Sousa Morais v. Portugal. The
importance of a comparator group seems, indeed, less significant in cases that
concern stereotypisation (see here).
Some
further aspects of I.C. v. Moldova are also worthy of
attention with respect to the Court’s approach to discrimination. First, the
Court reviewed ‘whether the failure of the authorities to protect the applicant
from servitude and to investigate her allegations about servitude and sexual
abuse was the result of a discriminatory approach, stemmed from a wider
institutional tolerance of violence against women and neglect of persons
with disabilities and the Moldovan authorities’ complacency in relation to such
cases which undoubtedly affected women more than men’ (emphasis added, para.
216). The Court’s view of these wider institutional matters indicates a certain
sensitivity towards the systemic nature of violence against women.
Second,
the Court held that Article 14 of the Convention must be read in light of
international requirements regarding reasonable accommodation, which ‘helps to
correct factual inequalities which are unjustified and therefore amount to
discrimination’ (para. 213, for similar reasoning, see Çam paras 65-69). The Court seems to be taking one step beyond formal
towards factual equality, in a way which seems to imply the influence of the CRPD on the Court’s reasoning (despite that it
has been found to have limited influence in the ECHR context, see here).
Third, the Court in I.C. v. Moldova noted the UN bodies’ concern with ‘the intersecting
forms of discrimination faced by women with disabilities’ in Moldova (para.
218). It concluded its review by noting that the case did ‘clearly reflect a
discriminatory attitude towards the applicant as a woman with intellectual
disabilities’ (emphasis added, para. 222). The Court thus seems willing to
recognise the intersecting nature of discrimination in the case. This echoes
the recent trafficking case of F.M. and Others v. Russia, where the Court condemned the authorities’
discriminatory attitude towards the applicants
‘as women who were foreign workers with an irregular immigration statusä (para. 346). The Court’s approach may
indicate a somewhat more robust use of Article 14 with respect to
intersectionality, which also is in line with B.S. v. Spain (paras 58-62, see Yoshida). In general, the Court has
been held to seem particularly resistant towards the notion of
intersectionality (see
Thielen). The absence of an
analysis of intersectionality has been criticised in the context of
discrimination against women (see here, and here). Oftentimes, the Court instead
uses the notion of vulnerability, and has recognised the ‘particular
vulnerability’ of applicants, for instance as ‘women with intellectual
disabilities exposed to sexual abuse in an institutional context’ (G.M. and Others v. the Republic of
Moldova, para. 95).
III. The Assessment of Minors’ Consent in Rape Cases
The third main takeaway relates to L. and Others v. France. The Court found that the national courts in their
assessment of the applicants’ consent and judgment in cases that concerned
alleged rape, had not taken into account the particular vulnerability in which
the applicants found themselves, especially given that they were minors at the
time of the events (para. 249).
The Court reiterated its earlier established case
law on the ‘importance of interpreting domestic definitions of rape in such a
manner that they would encompass any non-consensual sexual act’ (for instance, M.C. v. Bulgaria, para. 171) and that ‘the
investigation and its conclusions must be centred on the issue of non-consent’
(for instance, M.G.C. v. Romania, para. 72). The Court has also earlier required a
context-sensitive assessment of consent and the importance of taking into
account the vulnerability of the applicant in cases such as E.B. v. Romania, Z. v. Bulgaria, and N.Ç. v Turkey.
In L. and Others, the Court noted that in order to guarantee an
adequate protection against rape and sexual abuse, the authorities must take
into account, where appropriate, the vulnerability of victims, particularly
minors, in accordance with the standards established in this area by national
and international instruments (para. 213). The case thus also provides an
example of the Convention being influenced by the broader (international) legal
context.
Without directly reproaching the French legislative
framework in terms of a failure to fulfil positive obligations (and thus, not
directly challenging the insufficiencies in the obligation to criminalise), the
Court took into account the domestic legislation as a background in its
analysis. It noted that the relevant provisions of the French penal code did
not include a reference to consent, but that the issue of consent is generally
taken into account by the Court of Cassation in its jurisprudence (para. 206).
The Court held that the domestic courts thus strive to determine the existence
or absence of consent, while respecting the defence rights of the accused, in a
context where the judge sometimes has few other elements at their disposal than
the conflicting statements of each party (para. 206). The cases in L. and Others were illustrative of this difficulty (para. 206).
The Court also referred to GREVIO holding that there is a strong judicial
insecurity in France as to the constituent elements of rape, and that the
definition does not cover all situations of non-consenting victims,
particularly when they are in a state of shock or stupefaction (para. 206).
Although the particular vulnerability of applicants
has also in earlier cases been considered important by the Court for assessing
the matter of consent, the emphasis and detail of review in L. and Others is worthy of particular attention (see paras
216-252). The Court, among other things, found insufficient reviews of each of
the applicants’ consent, as the domestic courts had not taken adequately into
account the applicants’ young age, the context of the alleged rape, the
applicants’ mental state, and/or possible state of intoxication. For instance, the Court held that:
The applicant’s state of intoxication was only
taken into account by the appellate judges to characterise her disinhibition
and to dismiss any opportunism on the part of the accused. The Court further
notes that the court of appeal did not carry out any contextual assessment of
the particular situation of vulnerability in which the applicant found herself,
who, at the time of the events, was a very young girl who had had her first
sexual experience that very afternoon with a third party and was facing insistent
advances from two adults aged 21 and nearly 30, respectively (translation,
para. 236)
In another case, the Court noted the absence of a
sufficient balancing between the applicant’s behaviour and the effects of the
surrounding circumstances on her, as well as the elements characterising her
particular vulnerability, whether be it her health condition or the findings of
psychiatric assessments describing the applicant’s condition as preventing her
from the expression of informed consent. The Court held that the judgment suffered
from serious shortcomings in its assessment of whether the applicant had
sufficient discernment to genuinely consent to repeated sexual acts with
multiple partners, given her extreme vulnerability resulting from her very
young age and her health condition (paras 221-222).
In a third case, the Court found issue with the appellate
judges establishing ‘the applicant’s consent primarily on the basis of her
passive behavior and lack of physical resistance, without duly taking into
account either her particular vulnerability or her psychological state,
contrary to current knowledge about the behavior of rape victims, especially
when they are young’ (translation, para. 243).
In this way, the case of L. and Others provides a strong reminder of the need to take into
account the particular vulnerability of (young) victims in the assessment of
consent in cases that concern sexual abuse.
Conclusion
The Court’s recent judgments on gender-based violence are of
considerable length, and they will hopefully be analysed more extensively in
the future. I have argued that X v. Cyprus, I.C. v. Moldova, and L. and Others v. France are important at least for three reasons. Firstly,
the Court addresses secondary victimisation through stereotyping and prejudices
in criminal proceedings, and secondly, the Court partly reviews this as a
separate issue of discrimination. Thirdly, the case of L. and Others emphasises the need to review the vulnerability,
especially of minors, when assessing consent in sexual abuse cases.
