I am very blessed to have a lot of smart friends, and I have been pointed out to a sentence by the European Court of Human Rights that has condemned an Italian court for shaming the victim of sexual abuse by questioning and discussing the victim’s sexual orientation and intimate history. The ECHR has stated that this re-victimisation goes against the Istanbul Convention, a human rights treaty on violence against women to which Malta is a signatory. The sentence can be read here and an excerpt is being published below.
A lawyer in Malta has recently been allowed by the court to shame the alleged victim under testimony by asking her about her clothing.
JL vs Italy, no 5671/16, 27 May 2021:
• Stereotypes of what she was wearing: not relevant, not necessary.
• She played a prostitute in theatre and was gang-raped.
• Right to be protected from secondary victimisation.
• A clear violation of the Istanbul Convention, as the HR Convention’s standards are considered a bit lower to establish than the Istanbul’s e.g. she had to repeat her testimony several times over a period of two years, re-victimising her, defence lawyers questioned her on family life/ sexual orientation/ intimate choices … which result contrary to the principles of international law to protect the rights of victims of sexual violence – art 54IC.
• The ECtHR’s conclusions: the personal integrity of the victim was protected by the public prosecutor and the courts, and multiple questioning was considered necessary to establish the truth since there were several conflicting versions of the event BUT the way the Florence Court of Appeal commented on the victim were found to be regrettable by the EctHR and in breach of the victim’s art 8 of the convention: emphasis on red underwear, comments on her bisexuality, her art was seen to promote ambivalent attitude towards her orientation or ‘non-linear life’, and her need to report the gang rape was described by the appeals court as a moment of fragility that she wanted to criticise and not really report.
• The judges’ entitlement to express themselves freely is limited by the positive obligation of the state to protect the victims of gender-based violence to protect their image, dignity and private life. The judges’ comments were clearly an obstacle to justice and to the institutional response.
• Art 8 was breached because the victim wasn’t protected against secondary victimisation.
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