Speech Dr. Lara Dimitrijevic (Founding Partner at Sciberras Associates, Malta). Find her short bio here.)
Legal Expert – Panel 2 Good morning and thank you for the invite. Before I start my presentation I would like to issue a warning that some of the content may be triggering and upsetting. Also for the purpose of this presentation I will be using the word victim, however to me personally they are all SHERO Survivors. I will briefly recount 2 cases that I have had to work on:- Paula is a 35 yr old Polish woman that was travelling through Europe. She had a family wedding in Malta and needed an accommodation for 1 night since the hotel she booked did not have availability for her whole stay. Her friends suggested couch surfing, something that she was completely new too. She found someone on the app and had a brief conversation with him. He sounded like a nice person but it turned out to be her worst nightmare since that night he raped her. She recounts how she froze, could not move and just shut her eyes and cried. He did not use any form of violence against her. The second story is of a 23 Colombian woman who was raped by her boss. She believes to have been drugged since when she woke up in the morning, she found herself naked lying next to equally her naked boss. She had asked if they had sex, to which he replied it will be ok. She felt panicked and could not believe what she went through. Nothing was ok and her life turned upside down after that. A legal definition of rape should be based on voluntary, genuine, and willing consent – a ‘yes’ means ‘yes’. This is not a new concept. The dynamics of rape are based on power and control. Through out recent years, with the upcoming ME TOO movement, hundreds of women have shared their experiences on rape. Many where those that were involved in the film making industry that shared there experiences of how they were raped by directors, established male actors, lest we forget the famous Weinstein. Ultimately when dealing with rape, we are dealing with a situation whereby the perpetrator feels that sense entitlement that he can sexually abuse the victim. Whilst anyone can be a victim of rape, we cannot disregard the ample research and studies that highlight that rape disproportionately and predominantly affects women and girls. We cannot detract from the reality that rape is then a form of gender based violence against women and girls thus the law ought to be gender-sensitive when drafted, applied and interpreted within the justice context. Failing to do so, we are failing women and girls and creating a system from one that ought to protect them, bring justice and accountability, to one that is pushing them further away from it by putting the onus on them by making them having to prove that they were raped, rather than a system where the onus is shifted onto the perpetrator that he made efforts to ensure that the victim gave consent. The element of consent is not new when it comes to sexual violence nor to the EU. When it comes to trafficking of persons, the law explicitly states that consent is irrelevant. Thus even if we have a situation whereby one gave consent to be involved in the prostitution, once there is exploitation, then there is the offence of human trafficking. So one cannot but question as to why when it comes to rape we should deal with consent and exploitation any differently? The following are some of the reasons as to why must we change to consent as opposed to forced based/violence definition of rape Basing rape on violence, fails to meet international human rights standards. • General Recommendation No 35 calls upon states and I quote ‘Ensure that sexual assault, including rape, is characterized as a crime against the right to personal security and physical, sexual and psychological integrity and that the definition of sexual crimes, including marital and acquaintance or date rape, is based on the lack of freely given consent and takes into account coercive circumstances’. • The Istanbul Convention has now codified that the criminal offence is based on the free consent of the person. • Special Rapporteur Simunovic in her report on rape recommended that there needs to be an accelerated harmonization process with regards to rape so it will be in line with international rights standards and to explicitly include lack of consent at its centre. • The international Tribunal for the Former Yugoslavia ‘concluded that sexual penetration would constitute rape if it was not truly voluntary or consensual on the part of the victim. Lack of consent was therefore recognized as a central element of the definition of the crime of rape. • The European Court of Human Rights in M.C. v. Bulgaria had also stated that it was “persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual’s sexual autonomy. In accordance with contemporary standards and trends in that area, the member states’ positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim”. Therefore, it is no new notion to Member States, whether party to the Istanbul Convention or not that already have the positive obligation to view rape on the basis of consent. What are the impacts of rape when Based on violence on the victims? Definitions of rape based on violence, can lead to a situation where perpetrators of rape go unpunished and contribute further to the rape myths. And it does this by putting the responsibility on the victim by expecting them to protect themselves from being raped and completely ignores the reality that women and girls go through. It completely disregards that some may freeze like the polish survivor Paula and creates a situation whereby victims are meant to behave in a certain way. Failing to act in this manner or because they have certain backgrounds or because they already alleged rape in the past. The list can be endless, but the expectation is real. We already have a system that that women are blamed for their behaviour such as the temptress woman, the promiscuous woman, women that lie, if she didn’t flee or scream than it could not have been rape. These myths are very real within the judicial system. This is an example of it: In 2018, at a time when the definition of rape in Malta was still based on violence, a 26 year old Police Surgent was raped on 2 occasions whilst on night duty at a local police station by a police constable. In one of the occasions, he removed the bottom part of her uniform and underwear. The line of questioning by the court was re-victimising in itself. She felt violated by her rapist and felt violated again by the very system that was meant to protect her. To add insult to injury, the rapist had confessed to the rape, however due to procedural technical issues, the court expunged the statement that he had given the police. In this case the court concluded that he was not guilty of rape because, according to the court it stated that despite that the victim was crying and visibly moved when giving her testimony, she did not believe her version of events. The court argued that she did not resist the rape and even asked her why she did not try to close her legs or scream for help. The court further punished victim by saying that she could have left the police station following the acts of rape and continue to stay on till her end of shit duty. Today, the victim not only left the police force and has been since been in ongoing therapy. She disclosed with me she can never forget her rape nor the face of her rapist, but she will never be able to forgive the court for the injustice and humiliation she was made to go through. In my experience over the years, this case highlights the epitome of the harmful impact that rape based on violence has. So here in my opinion we have a clear situation where rape based on violence also expects victims to behave in a certain way. It disregards the notion of coercion that exists when it comes to the crime itself. I will conclude on this note, leaving rape out of the proposed Directive or not having a harmonized definition of rape based on consent is nothing short of an absolute betrayal of women and girls and it is beyond reprehensible that today in 2023 we even have to discuss this!
