INTERIGHTS' Amicus Curiae Brief
to the ECtHR on
Rights to Bodily Integrity and
Gender Equality
In April 2003, in the case of MC v
Bulgaria (Application No. 39272/98), INTERIGHTS filed a �friend of the
court� submission with the European Court of Human Rights (ECtHR). The submission outlines comparative law from eight jurisdictions
and relevant international standards which establish that proof of use of
physical force by the alleged perpetrator or of physical resistance by the
alleged victim is not required in order to establish rape.
This case raises important issues concerning the
rights to physical integrity, private life, equality and non-discrimination and
an effective remedy. Specifically, it raises the question of the extent to which
a state has positive obligations:
1)
to ensure a
legal framework capable of effectively protecting minors against rape and other
sexual abuse, including by persons other than agents of the state; and
2)
to
undertake
adequate and effective investigation and prosecution of alleged cases of rape
and to punish those responsible.
Summary
of Facts
The Applicant, then a minor aged 14
years and 10 months, was allegedly raped by two men in 1995. The Bulgarian state
authorities terminated the investigation into the allegations of rape on the ground of there being insufficient evidence of her having been
compelled to have sex against her will. Following investigations, which
continued over a period of three years, the District Prosecutor issued a decree
terminating the criminal proceedings. He found, inter alia, that it had not been established beyond reasonable doubt
that there had been use of force or threats or that sexual intercourse had taken
place without the Applicant's consent and despite her resistance. Subsequently,
the Regional Prosecutor�s Office and then the Chief Public Prosecutor�s
Office, dismissed appeals by the Applicant against this decree.
The Bulgarian Government, in its Memorial to the European Court, noted
that under Bulgarian law the offence of rape requires proof of sexual
intercourse through the use of force or threats, and that in this case this was
not proved due to a) lack of evidence of physical resistance by the Applicant and b) the Applicant�s prior acquaintance with the alleged
perpetrators.
INTERIGHTS� written comments to the Court focus primarily on
whether, in order to prove rape, it is necessary to prove the use of physical
force by the perpetrator or of physical resistance by the victim. The brief
provides an international and comparative law perspective on whether, by
requiring such proof, Bulgaria had violated its positive obligation to ensure the protection of the Applicant's rights
to physical integrity and to private life, including the obligation to have in
place an effective legal framework for the investigation and prosecution of
rape, and to undertake prompt, adequate and impartial investigation and
prosecution thereof.
The written comments draw on international human
rights standards and jurisprudence, and on statements of law prepared by experts
from eight jurisdictions (Australia, England and Wales, Belgium, Canada, Denmark, Ireland,
South Africa and the United States of America). These
statements established that, in the eight jurisdictions surveyed, the legal
definition of rape did not require proof of the use of force or of resistance.
Further, in each jurisdiction, the relevant law has been amended to ensure
that in the investigation and prosecution of rape allegations, the authorities
are required to focus on whether consent to intercourse was given freely.
Varied measures have been taken in each of these
jurisdictions to ensure that the above factors do not determine whether or not a
prosecution is brought or a conviction sustained. Such measures include:
�
The
abandonment of legal requirements that the victim physically resisted and the
enactment of legislation explicitly criminalising non-consensual sexual
intercourse without physical force being used by the perpetrator (the United
States);
�
Recognition
that threats of force, duress or trickery can compel a victim into
non-consensual intercourse (Belgium and Denmark);
�
The legal
acknowledgement that fear of force, including in some jurisdictions fear of the
deprivation of one's livelihood, may cause a victim to submit to non-consensual
intercourse (Australia (Victoria) and South Africa);
�
Statutory
recognition that the offence of rape does not require a
victim to physically resist (Ireland); and
�
Obligatory
jury directions to dispel misconceptions that the factors referred to above are
decisive in establishing whether or not the victim consented to intercourse
(Australia (Victoria)).
The
ECtHR is expected to hand down a judgment either in late 2003 or early 2004.