Gender And Mental Health

TW: references to sexual violence and abuse and gender binary.

Women are about twice as likely as men to develop depression (Kuehner C 2003), which is a very disabling disease. But, how can we explain the gender gap in depression?

Would it be because of a difference between “female” and “male” brain? By exploring cutting-edge neuroscience, the neuroscientist Gina Rippon claimed the need to move beyond this binary view of brains , suggesting that we need to see them as highly individualised and profoundly adaptable (Rippon G. 2019). Human brain development is not just a biological matter: other factors influence it, including “gender”. Epigenetic studies have highlighted that genes predisposed to mental health disorders could be modulated by environmental factors and phenotypically express as ‘internalising or externalising disorders, according to gender’ (Kuehner C. 2017).

Sexual hormones are believed to contribute to the gender gap in depression. Recent evidence suggests that a variation in the levels of ovarian hormones, especially the reduction of estrogens, may contribute to the prevalence of depression and anxiety in women (Albert P.R. 2015). However, other factors seem to interact with hormones. For example, female adolescents’ high susceptibility to depression could be mainly linked to the interaction of sex hormones with intrapersonal and interpersonal factors, such as a negative self-perception due to body changes, stress related to puberty, even sexual abuse (Kuehner C. 2003, Graber J.A. 2013). Could it be possible that, in a (Western) society where the “dominant observing eye” is male, the physical change that occurs during puberty would expose girls to distress and embarrassment, as well as to the sense of a loss of control on their own bodies which are sexualised and objectified? Then, to what extent do feelings of judgement and pressure  increase the risk of body dissatisfaction and discomfort in interpersonal relationships?

Another factor to be considered is ‘neuroticism’, a personality trait defined as a tendency towards negative feelings following frustrations and stress. Neuroticism is a recognised risk factor for depression (Klein D.N. 2011), and females score higher in neuroticism than males (Costa P.T. Jr 2001). May this have something to do with the gendered education of children? During childhood, for instance, girls show a conspicuous tendency to self-control and impulse inhibition compared to boys (Else-Quest N.M. 2006) and low self-esteem and insecurity (Bian L. 2017).

A fundamental determinant for women’s health is gender violence, which is recognised not only as a human’s rights violation but also as a global health problem (UN General Assembly 1979, Council of Europe 2011). Women who are victims of violence are twice as likely to experience depression (WHO 2013). Interesting evidence is that psychological domestic violence can be as damaging for mental health as physical violence (Pico-Alfonso M.A. 2006). International guidelines (WHO, NICE) recommend that mental health professionals are adequately trained about this issue and facilitate the disclosure of domestic violence, offer support and safety, avoid pathologising and medicalising suffering, provide treatment for physical and mental disorders resulting from violence (WHO 2013, NICE 2014). Some studies (Humphreys C. 2003, Trevillion K. 2014) have found that, in the context of violence, psychiatric symptoms could be better interpreted as understandable chronic anxiety of further abuses, even if they satisfy the criteria for a mental health disorder diagnosis.

Social determinants of health must therefore  be considered in contributing to the gender gap in depression. The levels of gender equity in a society, which are measured as political participation, economic autonomy and reproductive rights, have an effect on the gender gap in depression. In the USA, women living in states with lower gender equity showed higher depressive symptoms than women living in states with better gender equity (Chen Y.Y. 2005). Same results were found in Europe (Van de Velde S. 2013). Social determinants don’t act as independent factors but interact with each other to affect health; therefore, intersectionality (Crenshaw K. 1989) must be always practised. In general, poverty is a social determinant influencing negatively mental health. Moreover, many factors are responsible for the feminization of poverty: fthe gender pay gap, reduced number of women at the leadership job positions, unpaid care work, and women’s employment discontinuity (Freixas A. 2012). Being employed generally represents a protective factor for mental health. However, a study on a sample of Dutch adults (Plaisier I. 2008) showed that paid work was a protective factor for the development of depression among all men and among women but without children. Although the increased number of women working, the sharing of housework remained often unchanged. Performing multiple social roles, which is characteristic of the so-called ‘ female condition’, causes stress and responsibility overload that negatively affect women’s mental health (Bambra C. 2009). A study on a sample of Canadian women (Glynn K. 2009) highlighted a negative correlation between role overload and mental well-being, more significant than that of other social determinants. With regards to paid job, a report in the UK carried out over a 3 year period (2014-2017) showed that the prevalence of job-related stress, depression and anxiety, was statistically superior among women than among men (Health and Safety Executive 2017). It is not surprising due to the striking discrepancy between women and men in the workplace (World Economic Forum 2017).

Alongside this, women experience a higher percentage of episodes of everyday sexism than men, being everywhere victims of comments and behaviours that reflect and strengthen gender stereotypes, degrading and humiliating comments and behaviours, sexist language, sexual objectification (Swin J.K. 2001). Everyday sexism negatively affects women’s psychological well being, causing feelings of anger, discomfort, sadness, anxiety, low self-esteem (Swim J.K. 2001) and increasing stress, anxiety and depression (Foster M.D. 2000, Borrell C. 2011). In addition, a moderately strong relationship between the experience of everyday sexism and post-traumatic stress disorder in women was reported (Berg S.H. 2006). The perceptions of gender discrimination partially explained the gap between working men’s and women’s mental health in the United States (Harnois C.E. 2018). Everyday sexism produces a chronic perception of being discriminated and constantly judged, therefore undermines self-esteem, causes social anxiety, determines chronic stress with a further weakening of mental health. In addition, since everyday sexism is widespread and repeatedly perpetrated, can be interiorised and affect women’s sense of agency. Benevolent sexism, which is often unnoticed, must be tackled too.

It must be said that a psychiatric gender-sensitive evaluation may increase the diagnosis of depression among men (Cavanagh A. 2017). It is recognised that depressed males are more likely to report externalised symptoms, such as alcohol abuse, substance abuse, reduced impulse control, risky behaviours. Social expectations, different for women and men, play a role in the perception and expression of depressive symptoms; for instance, depressed men may consider alcohol or substance abuse as a more gender-appropriate way to express suffering than cry or being sad (Ridge D. 2011). Furthermore, it is known a general scarce men’s tendency to seek professional help at mental health service (Pederson E.L. 2007, Gouwy A. 2008). Among men, levels of stigma for seeking professional mental health help is high in terms of both social and personal stigma (Nam S.K. 2013, Vogel D.L., 2011). This could be related to traditional gender norms which would encourage men to repress mental health problems, reduce emotional expression, considering asking for help as a feminine activity and a sign of weakness and lack of virility (Johnson J.L. 2012). Even women “perform” gender norms giving different advice depending on sex. Moreover, it seems that the patient’s gender would influence the diagnosis and treatment proposed by (female and male) doctors (Loring M. 1988).

The “gender gap” in depression should be interpreted according to a multifactorial perspective, in which social determinants, psychological factors and socialisation process play an important role. The gender factor itself, which is prescriptive and normative, affects mental health. An interesting theory (Bem S.L. 1974) showed that people who were able to move from “masculine” to “feminine” behaviours depending to contexts, called “androgyny”, were psychologically more adaptive than people who strictly align to stereotypes of masculinity and femininity. A study (Juster R.P. 2016) found that androgyny people reported higher self-esteem and well-being as well as less depressive symptoms, regardless of sex. The question, then, is whether the deconstruction of gender stereotypes, coupled with  education against gender discrimination, can play a role in improving people’s mental health?

The answer, undoubtedly, is yes.

Bibliography

Ilaria Galizia 

Ilaria Galizia completed a degree in Medicine and Surgery and specialised in General Adult Psychiatry. She also obtained a Master’s degree in Gender Studies and Politics, writing a dissertation about the impact of gender as a risk factor for depression. She has worked as a visiting researcher at the Psychological Medicine Department of King’s College London, collaborating with Cochrane Collaboration. As a clinician, she gained experience working at Mental Health Services in Italy. During her clinical activity, she has always maintained a gender and intersectional approach. Ilaria has a very keen interest in investigating the impact of gender on mental health. She is a member of the Global Health 50/50 where she is currently working on the GH5050 journal review.

Legislative approaches to rape in the EU: Conclusions

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which was made fully available on our website (along with a complete bibliography of works cited) on June 17th 2019.

The EU comprises 27 EU Member States, 21 of which have ratified the Istanbul Convention and all of which are contracting member states of the ECHR. Few have national rape legislation that complies with the international standards outlined in comprehensive and important legal instruments, despite their obligations under both the Istanbul Convention and the ECtHR’s binding interpretations of the ECHR.

One of the most important sticking points is the definition of rape. As outlined in Part One, comprehensive international guidelines and treaties call for consent-based standards in rape and sexual assault legislation, yet only seven EU Member States have legislation that defines rape based on consent. International instruments also outline the need for tailored victim support services, yet not all Member States have adequate provision for victims. Specifically, the Istanbul Convention requires rape to be defined as a violation of bodily autonomy, yet the language of morality and decency persists in some countries’ definitions of the crime. Europe has work to do.

Importantly, there are some examples of good practice among Member States. Sweden’s new approach is one to watch; victim-centred and responsive to civil society advocacy, Sweden’s model will show in the years to come how a consent-based approach can be implemented in a civil law jurisdiction. As regards common law jurisdictions, the UK provides a good legal standard, despite not having ratified the Istanbul Convention.

Having an affirmative consent-based standard for rape is critical. This standard provides a threshold for rape that responds to trends in contemporary moral thinking on sexual violence. Introducing elements of force, violence, threat, or power into the definition of rape creates room for courts to misinterpret these elements, and compels victims to show resistance to such force or threats in order to carry the burden of her case. Force, violence, threat, and abuse of power can be evidence of non-consent, but should not be per se elements of rape. Indeed, the ECtHR has noted that “there is a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse [and] the evolution of societies towards effective equality and respect for each individual’s sexual autonomy”[1] – let us embrace this trend. Consent is at the heart of what constitutes rape; consent should be the baseline definition for rape.

To achieve this, countries must bring their national legislation in line with the instruments that bind them: treaties such as the Istanbul Convention, and international tribunals such as the ECtHR. Another path to achieving this goal is through a legally binding instrument at EU level. The EU has recognised its current lack of authority in this domain, which suggests the need for corrective action:

“At the moment, the EU policy against violence against women at large is based on Council conclusions, resolutions of the Parliament, and Commission strategies. However, none of these documents are legal instruments which bind the Member States to make a change for women.”[2]

It must not be forgotten that legislation is but a step in effectively tackling violence against women. There is gap between what the law requires, and how police and prosecutors choose to go forward. The road from first reporting a rape to seeing a conviction is long and complex in all countries, with many stages at which a case can be abandoned or fall apart. With respect to legal definitions, the law might not need a showing of force or resistance on the part of the victim but prosecutors typically won’t choose to go forward in the absence of these elements. Legislation is important, but a multifaceted approach to criminal justice in this field is essential to tackling the endemic levels of rape and violence against women in Europe.

[1] M.C. v. Bulgaria, ¶163

[2] European Parliament DG IPOL, p.41

Legislative Approaches To Rape In The EU: Outlining Case Study Examples

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

 

You can read the introduction to this case study here

The third section of this report will comprise five case studies that explore existing rape legislation in five Member States: the UK, Sweden, France, Italy, and Poland. All five of these countries are signatories to the Istanbul Convention; only the UK has not ratified the Convention.

 

3.1: The UK

Three common law jurisdictions make up the UK: England and Wales, Scotland, and Northern Ireland. All three jurisdictions have clear legislation on sexual offences, and have passed legislation on consent that is clearly in line with an affirmative consent model. Three major Acts of Parliament outline the relevant legislation of each jurisdiction: the Sexual Offences Act 2003 for England and Wales,[1] the Sexual Offences (Scotland) Act 2009 for Scotland,[2] and the Sexual Offences (Northern Ireland) Order 2008 for Northern Ireland.[3]

Legislation on rape across the UK’s jurisdictions is compliant with international standards: rape is criminalised, it is framed as a depravation of bodily autonomy, and the definition of rape is grounded in consent. Consent must be affirmative.

 

3.1.1: England and Wales

Rape legislation

The Sexual Offences Act 2003 (SOA) is the primary legislation regarding VAW in England and Wales. Rape carries a maximum sentence of life imprisonment and is defined thus:

A person commits rape if “he intentionally penetrates the vagina, anus, or mouth of another person with his penis” and the victim “does not consent to the penetration” nor is there any reasonable belief of consent.[4]

This presents a change from previous law which was only concerned with vaginal penetration; now, both women and men may experience rape under the SOA. Notably, a person who commits the offence of rape must be male, as rape is defined with respect to penal penetration.

If penetration is by something other than a penis then the offence is an assault by penetration. A person commits assault by penetration when he “intentionally penetrates the vagina or anus of another person with a part of his body or anything else, the penetration is sexual, [the victim] does not consent to the penetration” and there is no reasonable belief of consent.[5] This offence is just as serious as rape as it still carries a maximum sentence of life imprisonment.[6]

Sexual assault is a separate offence, committed when a person “intentionally touches another person, the touching is sexual” and there is no consent or reasonable belief of consent.[7]

Consent

Consent is crucial to all three of these offences and is defined in the SOA. A person consents to an act “if he agrees by choice, and has the freedom and capacity to make that choice.”[8] The SOA lists situations in which consent is presumed to not be present, including if the complainant is asleep or unconscious, if the complainant is unable to communicate consent because of a physical disability, if the defendant has incapacitated the complainant through a substance, and if the defendant uses force or threats.[9] Further, caselaw in England and Wales has now established that consent can be rescinded at any time.[10]

Other criminalised sexual offences under the SOA include:

  • Sexual activity with a child or in the presence of a child – §§ 9-10
  • Abuses of positions of trust in connection with sexual activity – §§ 16-19 and 30-33
  • Taking indecent photographs of children – § 45
  • Trafficking – §§ 57-59
  • Incest – § 64-65
  • Exposure – § 66
  • Voyeurism – § 67

Impact

Not only is affirmative consent defined in law in England and Wales, but new guidance for prosecutors was introduced in 2015 which stressed the importance of requiring defendants to explain how they obtained consent.[11] This guidance requires defendants to explain to police and prosecutors how they knew that the complainant was consenting, and that the consent was freely given in circumstances in which she was able to consent.

Despite the absence of a requirement of force, threat, or violence in the SOA’s definition of rape, the reality is that prosecution is unlikely to proceed in the absence of these elements.[12] This raises questions regarding implementation; defining progressive legal standards and enforcing them are separate inquiries, and point to the necessity of proper police and prosecutor training on sexual offences standards.[13]

With regards to victim support structures in England and Wales, several charitable organisations provide services for victims that meet the requirements of the Istanbul Convention. One of the main victim support organisations is the Rape Crisis network. Rape Crisis Centres across England and Wales provide services to victims, such as mental health care and legal support, and promote the needs of women and girls who have experienced sexual violence. Rape Crisis is supported by the government: it receives both government funds and private charitable donations.[14]

It must be noted that in spite of comparatively strong legislative grounding, many British women do not feel adequately supported by rape laws in England and Wales, or that the English legal system and its actors are equipped to manage sexual offences.[15] Rates of reporting, conviction, and attrition are discouraging, and legal protections tend to overlook and leave behind the most vulnerable women, such as immigrant women. As such, in March 2019 the UK government announced a full review into how rape and sexual violence cases are handled across the criminal justice system. The changes that this review will bring remain to be seen.[16]

 

3.1.2: Scotland

Rape legislation

The major piece of Scottish legislation regarding rape is the Sexual Offences (Scotland) 2009 Act, which defines rape thus:

A person commits rape if, with his penis, he “penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth” of another without their consent and without reasonable belief of consent.[17]

Section 1 goes on to define penetration as “a continuing act from entry until withdrawal of the penis”, and specifies that both “penis” and “vagina” include surgically constructed anatomy. Again, rape must be committed by a male, but legally victims of rape can be both men and women. Rape carries a maximum sentence of life imprisonment.

Just as in England and Wales, penetration by an object constitutes the separate offence of sexual assault by penetration, and it still carries a maximum sentence of life imprisonment. Sexual assault by penetration is committed when a person “penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus” of another with “any part of [their] body or anything else,” without consent or a reasonable belief of consent.[18]

The offence of sexual assault makes it a crime for a person to do any of the following without consent or a reasonable belief of consent:

  • Sexually penetrate the vagina, anus, or mouth.
  • Sexually touch the victim.
  • Engage in any other form of sexual activity which results in physical contact with the victim directly, though clothing, with a part of the body or an object.
  • Ejaculate semen onto the victim or urinate on the victim sexually.[19]

The Sexual Offences (Scotland) Act also criminalises the following acts:

  • Sexual coercion – § 4
  • Communicating indecently – § 7
  • Sexual abuse of trust involving children or mentally disabled persons[20]
  • Administering a substance for sexual purposes – § 11
  • Incest[21]
  • Sexual exposure – § 8
  • Voyeurism – § 9

Consent

Consent is defined as “free agreement.”[22] The Act explicitly provides that consent can be withdrawn at any time, that consent to conduct does not of itself imply consent to any other conduct,[23] and it lists circumstances where consent is presumed to be absent.[24] These include when a person is intoxicated to the point of being unable to consent, when a person is asleep, when violence or threats have been used, and when the only expression of consent is from a person other than the complainant.

Impact

Of the Act, the European Women’s Lobby says that it represents a positive change in how rape is defined in Scotland compared to previous legislation pre-2009, not least by including male rape for the first time.[25] However, only 24% of reported rapes reach court in Scotland, which the European Women’s Lobby argues is partly due to the major barrier of corroboration. Scottish law requires corroboration for all crimes, and the nature of rape makes it difficult to meet this requirement.[26]

Similarly to England and Wales, Rape Crisis is one of the primary networks for rape victims in seeking support in Scotland. Partly government-funded and partly supported by charitable donations, Rape Crisis Scotland provides essential services and support to victims of sexual assault.[27]

 

3.1.3: Northern Ireland

Rape legislation

In Northern Ireland, sexual offences are defined in the Sexual Offences (Northern Ireland) Order 2008. Rape carries a maximum sentence of life imprisonment. Just as in England and Wales, rape is defined thus:

A person commits the offence of rape if “he intentionally penetrates the vagina, anus, or mouth of another person with his penis” without the victim’s consent to penetration or a reasonable belief of consent.[28]

The offences of assault by penetration and sexual assault are also defined identically to how they appear in the SOA.[29] Northern Ireland takes an identical approach to consent to England and Wales.

The European Women’s Lobby argues that in spite of legislative protections, prosecution rates for rape in Northern Ireland “remain disgracefully low,”[30] illustrating the importance of going beyond legislation to address educational, social, and cultural factors in tackling VAW.

 

3.2: Sweden

Rape legislation

Moving on to civil law jurisdictions, Sweden’s penal code defines rape with respect to voluntary participation.

As of July 2018, a person commits rape under Swedish law when he “carries out sexual intercourse or some other sexual act that in view of the seriousness of the violation is comparable to sexual intercourse with a person who is not participating voluntarily[31] (emphasis added). Rape carries a mandatory minimum sentence of two years, and a maximum of six years’ imprisonment.[32]

This definition of rape is incredibly current, and is one of the few consent-based definitions to be found in European civil law rape legislation.[33] Prior to July 2018, Chapter 6, § 1 of the Swedish penal code defined rape by the presence of violence or threat: “A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse […] shall be sentenced for rape.”[34] In removing the requirement of violence or threat by the perpetrator, Sweden proposed – in the words of the government – “the introduction of sexual consent legislation that is based on the obvious; sex must be voluntary.”[35]

Importantly, this new legislation also introduced the offences of ‘negligent rape’ and ‘negligent sexual abuse.’[36] These offences concern the intent of a person accused of rape, and occur when the perpetrator reasonably should be aware of the risk that the victim is not voluntarily participating but nevertheless engages in sexual activity. Negligent rape is punishable by a maximum of four years in prison. The introduction of this offence represents a welcome recognition of different situations in which consent is silent but not given; the test for negligent rape is whether a person could and did take all reasonable steps to determine whether consent was actually given. Adapting legislation to recognise liability for negligent is a new departure in rape law going beyond current international standards, responds to current debates about standards of proof for establishing consent, and sets a new high bar for other countries to follow.

Sweden’s penal code defines sexual assault other than rape thus: “A person who carries out a sexual act not referred to in Section 1 with a person who is not participating voluntarily is guilty of sexual abuse and is sentenced to imprisonment for at most two years.”[37]

Consent

Sweden’s new definition of rape is entirely consent based. Its language closely mirrors that of the Istanbul Convention and other international standards. The Swedish government summarises the core idea of the legislation thus: “Sex must be voluntary – if it is not, then it is illegal.”[38]

In assessing whether sexual participation is voluntary or not under the revised Swedish penal code, “particular consideration shall be given to whether the voluntariness was expressed through words or deed or in some other way.”[39] The penal code provides some examples of what is not considered voluntary participation. Notably, a person is never considered to be participating voluntarily if their participation is in response to violence or threats, the person is unconscious, asleep, bodily injured, in grave fear, intoxicated, or under the influence of drugs, or if the perpetrator “seriously abusing the person’s position of dependency on the perpetrator.”[40]

Certain attendant circumstances can reduce or augment the seriousness of a rape offence, which has an impact on the maximum sentence that can be served. For example, if the offence is considered gross (considering circumstances such as whether the perpetrator was physically violent, if there was more than one perpetrator, or if the victim was young), the perpetrator can be imprisoned for up to ten years. Consequently, the language of violence and threats has been retained in the revised penal code, but is now an attendant circumstance that can aggravate the crime of rape and not a required element.

Impact

In introducing a consent-based standard, the Swedish legislature responded to long-standing campaigns in Swedish civil society. According to the Swedish National Council for Crime Prevention, the first decade of the new millennium saw an increase in the number of reported sexual offences, which has been attributed to an increase in crime and a rising trend of reporting.[41] Accordingly, activist movements sought to pursue legislative change that could tackle the prevalence of rape in Sweden. The EWL already noted in 2013 that there was an active movement across lawyers, women’s organisations, and civil society to amend Swedish rape law according to the consent standard described in the Istanbul Convention.[42] In discussing the legislative change, the Swedish government sought to design its legislative modification to respond to the increasing incidence of sexual violence in Sweden and this civil society movement.[43]

To this end, as part of the 2018 legislation, the legislature tasked the Swedish Crime Victim Compensation and Support Authority with running information and education campaigns on sexual offences. These campaigns, which primarily target young people, seek to make all victims aware of their rights and to encourage them to report.[44] The Compensation and Support Authority was also tasked with producing an online training course and a teachers’ guide. Its activities are running for three years and are government funded. Engaging schools, producing information campaigns, and publicising rights under the new laws represent excellent practice. Not only do Sweden’s new laws recognise every person’s right to bodily autonomy and sexual freedom, but Sweden’s approach beyond the legislation itself respects and enforces the Istanbul Convention’s guidance on civil society engagement and victim support. Given how new the legislation is, it remains to be seen how it will be enforced.

 

3.3: France

Rape legislation

The primary legislation on rape in France is the French penal code. The rape of an adult is a crime, punishable by 15 years’ imprisonment. Rape is defined as “Any act of sexual penetration, of whatever nature, committed by violence, constraint, threat or surprise.”[45] This means that any one of violence, constraint, threat, or surprise must be present for a person to legally be raped. French law makes clear that it includes rape by a husband or civil partner in its definition.[46]

French penal law outlines attendant circumstances under which a sentence greater than 15 years’ imprisonment can be imposed. For example, rape committed on a vulnerable person is considered an aggravating circumstance to the crime, as is marital rape, gang rape, or incest, and all are punishable by 20 years’ imprisonment.[47]

Sexual assault is a secondary crime in France, and is defined as “any sexual infringement committed with violence, constraint, threat or surprise”[48] and is punishable by a 5 year sentence.[49]

Consent

There is a notable absence of consent in France’s definition of rape. Legally defining rape based on the presence of violence, as opposed to the absence of affirmative consent, is not conform with the international standard outlined in Part One. This is especially noteworthy as France has ratified the Istanbul Convention, which outlines an affirmative consent model.

Impact

France’s definition of rape has resulted in some holdings that have shocked French and international communities, and which seem out of place in the post-#metoo era.

In 2017, the cour d’assises of Seine-et-Marne acquitted a 22-year-old man accused of raping a girl aged 11 because he did not meet the legal definition of rape. The girl’s family only learned of the rape when they discovered that she was pregnant. The man has since been convicted by the Paris cour d’assises and sentenced to a prison term of seven years.[50] Similarly, a court in the Val d’Oise reduced the charge of man accused of raping an 11 year-old-girl from rape to sexual assault, because the legal requirements for rape could not be met.[51]

These cases, which caused outrage and drew international media attention, raised many questions about the definition of rape in France and the lack of consent as the baseline standard where minors are concerned. France did not, and does not, have a minimum age of consent to sexual intercourse. Consequently, no matter the age of the victim, the requirements of penetration by violence, constraint, threat or surprise must be met. This is especially concerning when the government’s own Gender Equality Office notes that young women and children are the population most at risk from sexual assault and rape in France.[52]

Many civil society actors thus drew on these cases to advocate for the establishment of statutory rape with a minimum age of consent. President Emmanuel Macron’s minister for gender equality, Marlène Schiappa, proposed tackling this by explicitly removing the requirements of violence, constraint, threat or surprise for the penetration of a person under 15. After much controversy in summer 2018, the loi Schiappa, which would have established statutory ‘sexual assault with penetration’ in France, was not passed. Thus, although France retains the age of 15 as the threshold for statutory sexual assault (without penetration),[53] there is no statutory rape under the French penal code.[54] There has been no movement in the legislature to progress to a consent-based standard for the rape of an adult.

The European Women’s Lobby notes that many rape cases in France are not fully prosecuted because of prevalent stereotypes and ‘rape myths’ in the French judiciary.[55] Many rape cases are dismissed (sans suite) and others are sent to non-criminal courts where there are not judged as crimes but rather as sexual offences; consequently, many victims do not receive adequate compensation or have proper recourse to justice through the French legal system. Indeed, the number of rape convictions has dropped by 40% in the ten-year period from 2006 to 2017.[56]

With respect to social services and support, resources are scarce in France. Victims of rape and sexual assault rely on NGOs to provide services such as confidential telephone lines to give information and guidance to victims.[57] There is no national rape crisis service or support beyond NGOs, and legal support is limited. The European Women’s Lobby also argues that social services do not have the means to effectively help victims in France.[58]

 

3.4: Italy

Rape legislation

Italy is unusual in its legislative approach to rape in that it doesn’t define this crime separately from other forms of sexual assault. Article 609bis of the Italian Criminal Code states:

“Whoever, by force or by threat or abuse of authority, forces another person to commit or suffer sexual acts shall be punished with imprisonment from five to ten years.”[59]

Italy uses the term “sexual acts” to cover various forms of sexual violence. Further clarity on the elements of force, threat, or abuse of authority is provided in the legislation: Article 609bis condemns those who induce another person to commit or suffer sexual acts by abusing the conditions of physical or mental inferiority of the victim at the time of the act, or misleading the victim through hiding their identity.[60]

Outlined in Article 609ter, attendant circumstances to rape include:

  • Using weapons or substances dangerous to a victim’s health (including alcohol),
  • Deceiving a victim by feigning to be a public official exercising official duties, and
  • Taking advantage of a victim’s physical or mental infirmity.[61]

Italy explicitly recognises statutory rape. Article 609 defines two forms of “violenza presunta”, where there is no requirement to show the elements of threat, force, or abuse of authority. Firstly, Italy recognises statutory rape when the victim is under the age of 14. Secondly, Italy finds statutory rape when a victim is under the age of 16 if the offender is the victim’s ascendant, parent (including adoptive parents), guardian, or any other person into whose care the victim has been entrusted.[62]

Italy also explicitly recognises the crime of ‘group sexual assault’. When more than one person participates in acts of sexual violence as defined under Article 609bis, each perpetrator is to be sentenced to six to twelve years’ imprisonment.[63]

Notably, in February 1996, sexual violence ceased to be a “crime against public morality and decency” and was fully recognised as a “crime against the person”.[64] Feminist movements in Italy had been campaigning for such a change for over 20 years.[65] The move away from a crime of public morality towards one of bodily autonomy, as per the Istanbul Convention, represents an important step forward for Italian legislation.

Consent

The Italian definition of rape is not consent based, but requires a showing of force, threat, or abuse of authority. This does not conform with international standards on consent, much less with the Istanbul Convention’s guidance of affirmative consent.

With respect to statutory rape, Italy does make one consent-based exception to this strict liability provision: it has adopted a close-in-age exemption. This type of exemption, otherwise known as a ‘Romeo and Juliet law’, prevents the prosecution of underage couples who engage in consensual sex when both parties are close in age to each other, and one or both are below the age of consent.[66] This is designed to prevent the prosecution of underage consensual sex as statutory rape.

Impact

The lack of a legal definition specifically for rape in Italy is highly concerning. As noted in Part One of this paper, it is difficult to begin to address the prevalence of rape if the act itself cannot be defined separately to other related acts. A crime that is undefined cannot be prosecuted; notice of legality is one of the founding principles of criminal law.

Italy has seen many high-profile and controversial rape cases, and activists on this subject remain very vocal. One such case, which highlights the country’s complex and problematic relationship with sexual assault as a subject matter, concerns a court ruling which suggested that a woman cannot be raped if she is wearing tight jeans; the court reasoned that tight jeans could not be removed without the help of the wearer, thus suggesting a lack of force or threat.[67] Though much discussed in the public arena, Italy’s rape laws are yet to be modernised.

As regards victim protection, Italy’s 1996 reform to rape legislation included provisions to protect the privacy of a victim pursuing prosecution. Within these provisions, Italy criminalized the divulgence of personal details or images of a rape victim, making this offence punishable by three to six months’ imprisonment.[68] Further, the Italian Code of Criminal Procedure provides that victims may request their sexual assault trial be partially or completely closed to the public, though – with the exception of minors – there is no guarantee that such a request will be granted.[69]

In conformity with international standards, the prosecution is not permitted to question a victim on her sexuality or sexual history unless the prosecution can show that it is necessary for the reconstruction of the facts of the case.[70]

 

3.5: Poland

Rape legislation

Rape is an offence against public decency and sexual freedom in Poland and is punishable by a term of imprisonment between two and twelve years.[71] Poland’s definition of rape is similar to Italy’s in the standard it sets and the language used. Under Article 197 of the Polish Criminal Code, a person commits rape when “by force, illegal threat or deceit, [he] subjects another person to sexual intercourse.”[72]

Within this same Article, the Polish legislature notes some special circumstances which have a bearing on the sentences available for the court to impose:

  • If the perpetrator makes another person submit to a sexual act or perform such an act, he can be imprisoned for a term between six months and eight years.
  • In cases of group rape, rape of a minor (under 15 years of age), or incest or parental abuse, a perpetrator can be imprisoned for a minimum term of three years.
  • If the perpetrator acts with particular cruelty, he can be imprisoned for a minimum term of five years.[73]

Poland thus provides for statutory rape, and the aggravating circumstances of gang rape, abuse of authority, and particular cruelty, though naturally the latter necessitates a moral judgment in the place of a legal rule.

Importantly, rape is not classed as a crime of deprivation of bodily autonomy in Poland. Rather, it is included in Chapter XXV of the Penal Code Offences against Sexual Liberty and Decency, and appears alongside such crimes as forced prostitution and adultery.[74]

Consent

Poland’s definition is another example of rape legislation that does not take consent as its basic standard. Poland requires a showing of force, illegal threat, or deceit to convict a person for rape. Further, EWL notes that often, Polish legislation is interpreted to raise expectations that a woman should use active resistance against a person attempting to rape her in order to make her a credible victim.[75]

Impact

Poland has a low number of reported rapes for its large population size. For example, in 2011 1,748 cases of rape were reported for a population of 38 million.[76] This is unlikely to suggest that rape rates in Poland are uncommonly low; according to the EU Fundamental Rights Agency (FRA), 10-19% of Polish women have experienced sexual and/or physical violence since the age of 15.[77] This low reporting level thus is more likely to point to issues inherent in the prosecution of rape and the perception of sexual violence in Poland. Exceedingly burdensome procedures, an inadequate system of compensation for victims, and the stigma associated with sexual assault could be alternative explanations for such low reporting figures.[78]

On the subject of victim compensation and protection, the EWL notes that in spite of its obligations under the Istanbul Convention, Poland has few victim support structures in place and no basic standards of training for police and prosecution in working with sexual assault cases.[79] In 2013, the Sejm (the Polish Parliament) passed provisions that were designed to protect victims from retraumatisation: a victim could henceforth be interrogated only once, in the presence of a psychologist, and the interview would be recorded.[80] Though centring the needs of the victim is an important step, Poland remains far from the standards outlined in the Istanbul Convention.

Poland includes rape in the chapter of its Criminal Code dealing with sexual liberty and decency, not the chapter on “Offences Against Life and Health.” The EWL posits that this may suggest rape is a violation of social and cultural norms in Poland, and not seen as a threat to women’s life and health.[81] Although Poland’s legislation links rape to “decency”, the relevant chapter also treats sexual liberty. The issue would seem to be more that Poland treats sexual liberty and decency as part of the same legislative family, and less that rape is included in this chapter. As made clear in the international instruments discussed in Part One supra, sexual liberty and autonomy should be disassociated from societal moral judgments. This is especially pertinent in Poland, where societal values remain heavily influenced by religious conservatism.[82]

[1] England and Wales, Sexual Offences Act 2003, <www.legislation.gov.uk/ukpga/2003/42/contents>

[2] Scotland, Sexual Offences (Scotland) Act 2009, <www.legislation.gov.uk/asp/2009/9/contents>

[3] Northern Ireland, Sexual Offences (Northern Ireland) Order 2008, <www.legislation.gov.uk/nisi/2008/1769/contents>

[4] Sexual Offences Act 2003, § 1(1)

[5] Ibid., § 2(1)

[6] Ibid., § 2(4)

[7] Ibid., § 3(1)

[8] Ibid., § 74

[9] Ibid., § 75(2)

[10] R v. DPP and “A” [2013] EWHC 945 (Admin) <https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/f-v-dpp-judgment.pdf>

[11] See Crown Prosecution Service, ‘What is consent?’ available at <www.cps.gov.uk/publications/equality/vaw/what_is_consent_v2.pdf>; Crown Prosecution Service, ‘Rape and Sexual Offences Legal Guidance’, available at <www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/>

[12] MC v. Bulgaria, ¶141

[13] For an example of good practice in this domain, see Case Study 3.2: Sweden, infra.

[14] See Rape Crisis England and Wales <https://rapecrisis.org.uk/>

[15] See, for example, Lizzie Dearden, ‘Justice system in ‘crisis’ as only 8% of crimes prosecuted in England and Wales’, The Independent, (25 January 2019), available at <https://www.independent.co.uk/news/uk/crime/crime-statistics-uk-justice-prosecution-rates-rape-victims-disclosure-police-funding-a8747191.html?fbclid=IwAR2tkPLgNmIKG35Be4IlBVtPNvrHFA6llCkVoeTmPUZKYMzT_CyaNV20Pu4>; Alexandra Topping, ‘Rape prosecutions plummet despite rise in police reports’, The Guardian, (26 September 2018) <https://www.theguardian.com/law/2018/sep/26/rape-prosecutions-plummet-crown-prosecution-service-police>; and Loulla-Mae Eleftheriou-Smith, ‘Rape victims facing ‘humiliating questions about clothing and sexual history during trials, MP reveals’, The Independent, available at <https://www.independent.co.uk/news/uk/crime/rape-sexual-history-assault-cross-examine-trial-court-voices4victims-plaid-cymru-mp-liz-savile-a7570286.html> [accessed 05/03/2019]

[16] UK Home Office, ‘Government sets out key measures to tackle violence against women and girls’, (6 March 2019), available at <https://www.gov.uk/government/news/government-sets-out-key-measures-to-tackle-violence-against-women-and-girls>

[17] Sexual Offences (Scotland) Act, § 1

[18] Ibid., § 2

[19] Ibid., § 3

[20] Scottish Government, ‘Information and help after sexual assault’, (2016) <https://www.gov.scot/publications/information-help-rape-sexual-assault/pages/7/>

[21] Ibid.

[22] Sexual Offences (Scotland) Act, § 12

[23] Ibid., § 15

[24] See Ibid., §§ 13-14

[25] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: UK, (Brussels: EWL, 2013), p.1

[26] Ibid.

[27] See Rape Crisis Scotland <https://www.rapecrisisscotland.org.uk/>

[28] Sexual Offences (Northern Ireland) Order, § 5

[29] See Ibid., § 6 and § 7 respectively.

[30] EWL, Barometer on Rape: UK, p.1

[31] Regeringskansliet, Ministry of Justice Sweden, Swedish Penal Code, Chapter 6 § 1, (unofficial translation), <https://www.government.se/4a95e7/contentassets/602a1b5a8d65426496402d99e19325d5/chapter-6-of-the-swedish-penal-code-unoffical-translation-20181005>

[32] Ibid.

[33] Other civil law countries with consent-based definitions include: Belgium, Cyprus, Germany, and Iceland.

[34] Regeringskansliet, Ministry of Justice Sweden, Swedish Penal Code, Chapter 6, § 1, (translated by Norman Bishop), <https://www.government.se/contentassets/5315d27076c942019828d6c36521696e/swedish-penal-code.pdf>, p.24

[35] Government Offices of Sweden, ‘Consent – the basic requirement of new sexual offence legislation’, (April 2018), available at <https://www.government.se/press-releases/2018/04/consent–the-basic-requirement-of-new-sexual-offence-legislation/>

[36] Swedish Penal Code, Chapter 6, § 1(a)

[37] Ibid. § 2

[38] Ibid.

[39] Ibid., § 1

[40] Ibid.

[41] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Sweden, (Brussels: EWL, 2013), p.1

[42] Ibid.

[43] Government Offices of Sweden

[44] Ibid.

[45] France, Code pénal, Art. 222-23, <https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006417678&cidTexte=LEGITEXT000006070719> (translated by author).

[46] Service-public.fr, ‘Viol d’une personne majeure’, (19 décembre 2018), available at <https://www.service-public.fr/particuliers/vosdroits/F1526>

[47] France, Code pénal, Art. 222-24

[48] Code penal, Articles 222-22 and 222-27 (translated by author).

[49] France has three levels of unlawful activity which increase in severity and punishment: the least severe is a contravention, then a délit, then a crime. Rape is a crime and sexual assault is a délit.

[50] Martine Bréson, ‘Viol d’une enfant de 11 ans : l’homme d’abord acquitté aux assises condamné à sept ans de prison en appel’, France Bleu, (28 November 2018), available at <https://www.francebleu.fr/infos/faits-divers-justice/viol-d-une-enfant-de-11-ans-en-appel-sept-ans-de-prison-infliges-a-l-homme-qui-avait-d-abord-ete-1543389369>

[51] Marjorie Lenhardt, ‘Val d’Oise : un homme de 28 ans jugé pour une relation sexuelle avec une fillette de 11 ans’, Le Parisen, (12 February 2018), available at <http://www.leparisien.fr/val-d-oise-95/montmagny-relation-sexuelle-a-11-ans-le-consentement-au-coeur-du-proces-12-02-2018-7555485.php>

[52] Secrétaire d’Etat chargé de l’égalité entre les femmes et les hommes et de la lutte contre les discriminations, ‘Enquête virage : viols et agressions sexuelles en France – premiers résultats’, (November 2016), available at < https://www.egalite-femmes-hommes.gouv.fr/publications/droits-des-femmes/lutte-contre-les-violences/premiers-resultats-de-lenquete-virage-violences-et-rapports-de-genre/>

[53] Code pénal, Art. 227-26

[54] Critically, a lot of the controversy around this law surrounded the fact that the statutory ‘sexual assault with penetration’ of a person under 15 years of age was classified as a délit and not as a crime, thus undermining the severity of the act.

[55] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: France, (Brussels: EWL, 2013), p.1

[56] Ministère de la Justice, ‘Bulletin d’information statistique, no 164’, (September 2018), available at <http://www.justice.gouv.fr/art_pix/stat_Infostat_164.pdf>

[57] See Collectif féministe contre le viol <https://cfcv.asso.fr/>

[58] EWL Barometer on Rape: France, p.1

[59] EIGE, ‘Legal Definitions in the EU’

[60] Ibid.

[61] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Italy, (Brussels: EWL, 2013), p.1

[62] Ibid.

[63] Ibid.

[64] Ibid.; EIGE ‘Legal Definitions in the EU’

[65] EWL, Barometer on Rape: Italy, p.1

[66] ‘Age of Consent in Italy’, available at <https://www.ageofconsent.net/world/italy>

[67] Alessandra Stanley, ‘Ruling on Tight Jeans and Rape Sets Off Anger in Italy’, New York Times, (16 February 1999), available at <https://www.nytimes.com/1999/02/16/world/ruling-on-tight-jeans-and-rape-sets-off-anger-in-italy.html> replace with IT language piece and/or ruling itself if possible?

[68] EWL, Barometer on Rape: Italy, p.1

[69] Ibid.

[70] Ibid.

[71] Poland, Criminal Code (Poland) 1997, Kodeks karny, Dz.U. 1997 Nr 88 poz. 553, Chapter XXV, <https://www.legislationline.org/documents/section/criminal-codes/country/10>

[72] EIGE

[73] EIGE, ‘Legal Definitions in the EU’

[74] European Women’s Lobby, Barometer on Rape in Europe, National Analysis: Poland, (Brussels: EWL, 2013), p.1

[75] Ibid.

[76] Ibid., p.2

[77] FRA, p.18. The FRA notes that this figure is likely to be a conservative estimate.

[78] For more on these issues, see EWL, Barometer on Rape: Poland, p.2 and GenPol, Can Education Stop Abuse? Comprehensive Sexuality Education Against Gender-Based Violence, (Cambridge: GenPol, 2018)

[79] EWL, Barometer on Rape: Poland, p.2

[80] Ibid.

[81] Ibid., p.1

[82] For more on this, see GenPol, Chapter 1.

Legislative Approaches To Rape In The EU: Overview of EU Members States

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

You can read the introduction to this case study here

Despite comprehensive international guidelines and binding legal instruments as outlined in Part One, many EU Member States’ legislation on VAW is lacking. Most Members States recognise the issue of VAW, and have national action plans against VAW, but what is classified as VAW is not always consistent with the international standards outlined supra. These differences result in different approaches to criminalising behaviour associated with VAW; what is a crime in one Member State is not necessarily so in another. For example, in 2015 marital rape had still not been criminalised in Bulgaria, Hungary, Latvia, Lithuania, Poland, and Slovakia.[1]

Broadly speaking, domestic physical violence and sexual violence (including rape) are the main forms of VAW punishable by law in Member States. Domestic psychological violence, sexual harassment, and FGM are generally punishable in different ways depending on the Member State.[2]

Not all EU Member States have ratified the Istanbul Convention. Of those that have, most have more to do to be entirely compliant with the Istanbul Convention’s rape provisions, as will be seen infra. The power of the Convention has not yet transformed into a strong, uniform legislative standard on rape across the European Union.

Figure 1: EU Member States that have ratified the Istanbul Convention

 

2.1: Rape legislation

Most Member States do not define rape based on a lack of consent, in spite of international agreement on a consent-based standard.[3] A detailed and comprehensive 2018 report from Amnesty International notes that the vast majority of EU countries have legal definitions of rape based on the exitance of certain circumstances – force, duress, and coercion.[4] Commonly, the use of force and coercion is used to distinguish between rape and lesser offences such as sexual assault or sexual intercourse without consent, meaning that an element of force is necessary in order for a crime to be prosecuted as a rape, as opposed to the defining element of rape being the absence of consent.

As will be seen in Part Three, many EU countries have laws which require the physical resistance of a victim in order to prove rape, a stance from which Germany, for example, has just removed itself: prior to November 2016, German legislation required a victim to have physically resisted in order to prove rape.[5] Attendant circumstances such as the victim’s age, disability, or the perpetrator’s relationship to the victim can also be factors in defining rape across Europe. To illustrate, in Finland, if a victim is aged between 16 and 18 and the perpetrator is in a position of authority over the victim (for example, as a schoolteacher) then Finnish law classes this situation as sexual abuse, and not as the harsher offence of rape. As a result, perpetrators in such situations get lesser sentences than perpetrators of rape.[6]

There are movements in some countries, especially in the wake of the #MeToo movement, to adopt consent-based definitions of rape. For example, recent high-profile rape cases in Spain involving multiple perpetrators are paving the way for Spanish legislation to recognise sex without consent as rape.[7]

Although the Istanbul Convention, ECtHR caselaw, and other international legal instruments require that rape and assault be defined as crimes against a person’s body and privacy, the sexual violence laws of several Member States are still framed in the language of honour and morality. In Malta, sexual offences fall under the chapter of “Crimes affecting the good order of families”; in Belgium and Luxembourg, rape is a “crime against the order of families and public morals”; in the Netherlands, rape is an offence against “public morals.”[8] Such language is worrying; framing rape in this way perpetuates harmful stereotypes about women’s bodily autonomy and sexuality.

 

2.2: Consent

In all but seven of the 33 countries that have ratified the Istanbul Convention, the legal definition of rape is not in line with the Convention’s consent-based definition. Only Belgium, Cyprus, Germany, Iceland, Ireland, Luxembourg and Sweden define rape based on a lack of consent.[9] The role of activists and civil society will be instrumental in pressuring legislators to amend rape laws and definitions according to the Convention, as seen in Sweden: the legal definition of rape was changed to be consent-based in May 2018, after years of activism from women’s rights groups.[10] The three common law jurisdictions under the Convention (England and Wales, Scotland, and Northern Ireland) all have consent-based definitions of rape, but the UK is yet to ratify the Convention.

With respect to defining consent itself, Europe has a lot of work to do. Although international standards in the Convention and other bodies outline an affirmative consent model, Member States generally use other markers to establish a lack of consent.[11] Notably, the negative consent (‘no means no’) model is still predominant.

The difference between affirmative consent and the ‘no means no’ model is critical in establishing consent and thus defining the scope of crimes for which consent is required. The Istanbul Convention’s implementation mechanism, GREVIO, noted as much in their assessment of Austrian rape legislation: “there is […] a difference between sexual acts committed against the will of the victim (Austrian legislation), and non-consensual sexual acts (the Convention).”[12] One relies on negative consent, the other requires affirmative consent.

In outlining a negative consent model, many Member States still rely on the presence of force to establish a lack of consent, which necessitates victim resistance to show that force was used. This is incredibly harmful. As Amnesty International notes, “there should be no assumption in law or in practice that a victim gives her consent because she has not physically resisted the unwanted sexual conduct regardless of whether or not the perpetrator threatened to use or used physical violence.”[13]

Interestingly, the ECtHR suggests that even those countries that do not have a consent-based legal definition tend to give deference to the consent standard: “it is significant […] that in case-law and legal theory lack of consent, not force, is seen as the constituent element of the offence.”[14] This begs the question: why not adopt a uniform consent-based legal standard?

Figure 2: EU Member States that have a consent-based definition of rape

 

2.3: Victim support

Most Member States have some form of protective measures in place for victims of sexual violence and rape. Further, many Member States have specialist services and structures for victims, such as rape crisis centres, shelters, or refuges.[15] Such structures tend to be partly state-funded, and party dependent on donations.[16] In Northern Ireland, for example, victims can opt to be accompanied to the police station or to court by staff or volunteers of the country’s partially state-funded rape crisis centres, and staff often prepare complainants for court proceedings. The Nordic countries go even further: in Denmark, Finland, and Sweden, complainants have access to free counsel.[17]

Deterrents to reporting still need to be removed in many Member States. The UN’s CEDAW Committee notes that legal barriers to reporting crimes of sexual violence are an important factor in discouraging women from reporting, and lists examples of the various laws that act as deterrents to prevent women from seeking justice:

“All laws that prevent or deter women from reporting gender-based violence, such as guardianship laws that deprive women of legal capacity or restrict the ability of women with disabilities to testify in court, the practice of so-called “protective custody”, restrictive immigration laws that discourage women, including migrant domestic workers, from reporting such violence, and laws allowing for dual arrests in cases of domestic violence or for the prosecution of women when the perpetrator is acquitted […]”[18]

An example of good practice in removing such barriers can be found in Scotland: in April 2017, a Scottish legislative amendment introduced a duty on judges to provide the jury with instructions on rape myths and preconceptions in cases where there was a delay in reporting and when there was no physical resistance or force.[19]

 

Sources Cited

[1] European Parliament, ‘Parliamentary questions – rape within marriage’, (online question session, 2015) <http://www.europarl.europa.eu/doceo/document/P-8-2015-004211_EN.html?redirect> [accessed 08/01/2019]

[2] European Parliament DG EPRS, p.7

[3] See Part One supra; Amnesty International, pp.10-12

[4] Ibid., p.12

[5] Amnesty International, p.10

[6] Ibid., p.12

[7] Notably, the so-called La Manada case in Pamplona caused many protests because the perpetrators were found guilty of the lesser offence of sexual abuse, and not the more serious offence of ‘sexual aggression’, because they did not meet the legal standard for sexual aggression. In Spanish law, sexual aggression requires violence or intimidation, which the court did not find was present in this case.

[8] Amnesty International, p.14

[9] Ibid., p.9

[10] See Part Three, § 3.2 infra.

[11] Amnesty International, p.10

[12] Group of Experts on Action against Violence Against Women and Domestic Violence (GREVIO), Baseline Evaluation Report Austria, (Strasbourg, Council of Europe, 2017) available at <http://www.rm.coe.int/grevio-report-austria-1st-evaluation/1680759619> ¶141

[13] Amnesty International, p.6

[14] M.C. v. Bulgaria, ¶159

[15] European Parliament DG IPOL, p.40

[16] Amnesty International, p.18

[17] Ibid., p.16

[18] CEDAW, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, CEDAW/G/GC/35, ¶29(b)(iii)

[19] Amnesty International, p.16

International Overview Of Legislative Approaches To Rape In The EU

This post is part of a series of weekly case studies addressing legislative approaches to rape in the EU. They are taken from a report written by our research associate, Nathalie Greenfield, which will be made fully available on our website (along with a complete bibliography of works cited) from June 17th 2019.

You can read the introduction to this case study here

1.1: Overview of legal instruments

The EU has no binding legal instrument specifically designed to tackle the unacceptable levels of rape in the region. While the EU and its member states have shared competencies in tackling some forms of VAW (such as human trafficking), member states have sole competence in fighting VAW, including rape.[1] Consequently, there is an array of different legislative definitions of rape in the EU, discrepancies in the criminalisation of rape, and varying protections afforded to victims of this crime. Indeed, the European Institute for Gender Equality (EIGE) starkly exposes such variation in its online database which lists the different definitions of various forms of VAW in member states.[2] Member States recognise the problem of VAW in general, but have adopted non-uniform approaches to the solution, resulting in non-uniform protections afforded to European women.

There are, however, a number of different statutory frameworks and bodies that protect women and girls from rape and sexual assault in Europe, both binding and non-binding. Relevant sources of law include:

  1. The European Convention on Human Rights (ECHR).
  2. Caselaw from the European Court of Human Rights (ECtHR).
  3. Guidelines from structures such as the UN and the International Criminal Court (ICC).
  4. EU treaties and directives.
  5. The Council of Europe Convention on preventing and combatting violence against women and domestic violence (Istanbul Convention).

International human right standards with respect to rape are largely clear and consistent between these different bodies.[3] This report will map the legal definitions and standards provided with respect to rape, measures regarding victim protection, and requirements for prosecution of rape as a crime.

1.2: The European Convention on Human Rights

The European Convention on Human Rights (ECHR) contains four articles that protect a woman’s right to be free from gender-based violence:

  1. Article 2 protects the right to life.
  2. Article 3 prohibits the degrading treatment of another.
  3. Article 8 protects the right to private and family life.
  4. Article 14 prohibits discrimination on the grounds of sex.[4]

Parties to the ECHR must uphold these rights and where they have been violated, citizens of Party states can pursue legal action up to the European Court of Human Rights. Importantly, articles 2 and 8 are affirmative rights, endowing these protections in all citizens. The ECHR provides human rights standards recognised by Parties to be common to all citizens, of which rape and its improper prosecution is a clear violation.

1.3: The European Court of Human Rights

Caselaw from the European Court of Human Rights (ECtHR) demonstrates how the ECHR is applied with respect to rape. Decisions from the ECtHR govern diverse legal systems and cultures, as they govern the 47 contracting member states to the ECHR.

With respect to defining rape, the ECtHR has established a clear consent-based standard. In its landmark decision, M.C. v. Bulgaria (2003), the Court found that rape is penetration without consent, and that consent must be given voluntarily and by free will. Further, it established that a lack of violence, force, or resistance from a victim cannot be used to establish consent.[5] Although criminal law is the mandate of individual nations, this instrumental decision sent out a clear message from the Court than non-consensual activity, and not force or victim resistance, is the grounding for finding sexual assault.

Importantly, the Court ruled that the Bulgarian prosecutors had violated Articles 3, 8, and 13 of the ECHR when they dropped this case without a full investigation because of insufficient findings of the use of force in the incident that the applicant described. The Court held that parties to the ECHR who used an element of force in defining rape in national criminal law must extend their definitions of force to encompass coercive circumstances. Further, this ruling held that the ECHR must be interpreted to require the prosecution of any non-consensual act, irrespective of the presence of force or threats.[6]

The Court has also established standards regarding victim protection. In Y v. Slovenia (2015), the Court found that the seven-year gap between the applicant’s sexual assault complaint being filed and the pronouncement of the first-instance judgment constituted a violation of Slovenia’s procedural obligations under Article 3.[7] Article 3’s prohibition of inhuman or degrading treatment incorporates a requirement of promptness; parties to the ECHR cannot impermissibly delay proceedings. The Court also held that improper cross examination of victims in rape cases violates Article 8 of the ECHR. Here, the accused had cross examined the applicant himself, intimidating and humiliating her, which the Court found violated the applicant’s personal integrity during proceedings given the sensitivity of the subject matter.[8]

1.4: The EU

The EU does not have a specific binding instrument designed to prevent rape or to protect women from violence. Crime prevention being a Member State competence, the EU has established legal instruments in different areas in which women can be victims of violence and where there is a cross-border element, because this is where the EU has the strongest competence for crime-related action.[9]

Some of the EU instruments that incorporate space for tackling various forms of VAW include:

  1. Article 2 of the Treaty on European Union mandates respect for gender equality in Member States.[10]
  2. Article 4 of the Treaty on the Functioning of the European Union provides possibilities for the EU to develop measures to combat VAW with the Member States.[11]
  3. The Charter of Fundamental Rights of the European Union is legally binding when implementing EU law.[12]
    1. Article 3 prohibits discrimination based on gender.
    2. Article 4 prohibits inhumane and degrading treatment of another.
  4. With respect to victim protection, two EU directives impose standards on Members States that victims of VAW can benefit from. EU directives are binding in the sense that they specify the results that all Member States must achieve, but they do not specify how members states must achieve these results. Member States are left to transpose Directives into national law, which gives them substantial leeway on what they choose to adopt from Directives and thus endows Directives with less force than the aforementioned legal instruments.
    1. The Victims’ Directive – Directive 2012/29/EU – obliges Member States to support victims of crime and their family members. It also gives victims of all crimes the right to remain informed throughout the prosecution process. Article 9 of the Directive specifically incudes protection and support for victims of sexual and gender-based violence, obliging Member States to provide “targeted and integrated support for victims with specific needs, such as victims of sexual violence, victims of gender-based violence and victims of violence in close relationships, including trauma support and counselling.”[13]
    2. The European Protection Order can also be beneficial to victims of VAW as it expands national protection orders across member state borders.[14]

The EU has a number of monitoring mechanisms in place to track adherence to these measures, notably through the EU Fundamental Rights Agency and the European Institute for Gender Equality. On the whole, though, the EU has little legislative power in this area. Monitoring mechanisms and the exchange of best practices cannot be compared to the legal obligations under binding European instruments such as its treaties. To be truly effective in this field, the EU needs to recognise VAW as a discrete issue that requires a binding instrument specifically dedicated to its elimination.[15]

1.5: International Tribunals and UN Guidelines

The ICC works with a comprehensive definition of rape, which includes “all non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object.”[16] With respect to consent, the ICC specifies that rape includes the bodily invasion of a person incapable of giving genuine consent.[17] These definitions centre the absence of consent in rape, and serve as important guidance for the international community on the elements of this crime. Relatedly, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) urges countries to define rape based on the absence of consent. We will see this emerge as a theme across international standards on rape, and one to which few EU Member States abide.

The International Criminal Tribunal for the former Yugoslavia has also outlined a consent-based standard for rape. In Prosecutor v. Kunarac (2001), the Chamber observed that “sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it.”[18]

As regards victim protection, the UN Handbook for Legislation on VAW contains some important recommendations. These include free legal aid for victims (especially in criminal proceedings), specialist in-court support for victims, and provisions to ensure that victims of VAW are protected when testifying, such as not having to meet defendants when appearing in court, in camera proceedings, and testifying via videolink.[19] The Handbook also recommends that evidence of survivors’ past sexual history never be introduced into criminal or civil proceedings.[20]

1.6: The Istanbul Convention

The Council of Europe Convention on preventing and combatting violence against women and domestic violence (Istanbul Convention) is by many measures the most important legislative instrument in the European region with respect to tackling VAW. Comprehensive and legally binding, it is the first treaty to outline minimum standards on criminalising VAW, consent, and victim protection. All Parties to the convention are bound to take appropriate legislative steps to comply with it.

1.6.1: Criminalisation

The Istanbul Convention outlines the scope of violence against women and is an excellent point of reference for the current international standard to which most EU Member States, if they have ratified the Convention, are bound.[21] Articles 33-42 specifically recognise 8 different forms of VAW and give specific information on the measures that Parties must take to tackle them. The Convention is premised on the understanding that these forms of violence are committed against women because they are women. States having ratified the Convention are obliged to fully implement it, which requires taking measures to prevent VAW, to protect its victims, and to prosecute its perpetrators. National legislation that is not in line with the Istanbul Convention must, therefore, be changed.

Article 36 of the Istanbul Convention concerns rape. It requires the criminalisation of:

  1. The “non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object”;
  2. “Other non-consensual acts of a sexual nature with a person”;
  3. The “causing [of] another person to engage in non-consensual acts of a sexual nature with a third person.”

Article 36 then goes on to specify that it also applies to acts committed against former or current spouses or partners, and Article 43 further specifies that Article 36 applies irrespective of the nature of the relationship between the perpetrator and the victim. This is a comprehensive and progressive definition of rape.

Importantly, the Istanbul Convention requires that rape and sexual assault be defined as crimes against a person’s body, autonomy, and privacy. This conception is in line with ECtHR decisions anchoring rape as a violation of the ECHR, and not as crimes against morality, social order, or honour.[22] In approaching rape as a crime of bodily violence, the Convention centres women, their experiences, and the unacceptable violation of their bodies in the criminalisation of rape. The primary harm caused by rape is to a person, usually a woman, and this should be recognised in all national legal definitions of the crime.

1.6.2: Consent

Article 36 of the Istanbul Convention defines rape by a lack of consent. Consequently, the Convention’s conceptualisation of consent is important; Article 36(2) states that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.”

The Explanatory Report to the Convention expands on this definition, stating that a case by case assessment to determine consent is required. Further, it mandates that interpretations of rape legislation not be influenced by stereotypes and myths about male and female sexuality.[23]

Notably, the Convention does not provide a definition of consent that Parties must adhere to, opting instead to provide guidelines on a context-sensitive assessment of consent. Indeed, the Explanatory Report notes that it is “left to the Parties to decide on the specific wording of the legislation and the factors that they consider precluding freely given consent. Paragraph 2 [of Article 36 of the Convention] only specifies that consent must be given voluntarily as the result of the person’s free will, as assessed in the context of the surrounding circumstances.”[24]

The most important thing to note here, then, is the use of an affirmative consent model to guide Parties. Parties are encouraged to look for whether consent was freely given and expressed, as opposed to presuming consent in the absence of contrary information from the victim. This is the same standard used at the International Criminal Court.[25]

1.6.3: Victim protection

The Istanbul Convention also provides minimum standards with respect to victim protection that Parties must adhere to. Responding to ECtHR caselaw, Article 50 of the Convention requires that law enforcement respond “promptly” to cases and offer immediate protection to victims.[26] Importantly, investigations and judicial proceedings must be “carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.”[27] In line with the UN Handbook for Legislation on VAW, evidence related to the sexual history and conduct of the victim is not permitted, unless it is relevant and necessary.[28]

Under Article 20, Parties are also required to facilitate victim recovery. Parties must take necessary measures to ensure that victims have access to services including legal and psychological counselling, financial assistance, housing, education, training, and assistance in finding employment. Under this same article, parties must also take necessary measures to ensure that victims have access to health care and social services. The Council of Europe task force on combatting VAW recommends one rape crisis centre per 200,000 women and one counselling centre per 50,000 women.[29]

 Sources Cited:

[1] European Parliament DG IPOL, The Issue of Violence Against Women in the European Union, (Brussels: European Parliament, 2016), p.39

[2] EIGE, ‘Legal Definitions in the EU Member States’ <https://eige.europa.eu/gender-based-violence/regulatory-and-legal-framework/legal-definitions-in-the-eu>

[3] Collectively, the largely cohesive standard common to these international bodies will be referred to in Sections 2 and 3 as the ‘International Standard.’

[4] European Court of Human Rights and Council of Europe, European Convention on Human Rights, <https://www.echr.coe.int/Documents/Convention_ENG.pdf>

[5] M.C. v. Bulgaria [2003] 39272/98 <https://www.coe.int/t/dg2/equality/domesticviolencecampaign/resources/M.C.v.BULGARIA_en.asp>

[6] Ibid.

[7] Y v. Slovenia [2015] 41107/10 <http://hudoc.echr.coe.int/eng-press?i=003-5091847-6273156>

[8] Ibid.

[9] European Parliament DG EPRS, Violence Against Women in the EU: State of Play, (Brussels: European Parliament, 2018), p.6

[10] European Union, Treaty on European Union, Art. 2, <https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_on_european_union_en.pdf>

[11] European Union, Treaty on the Functioning of the European Union, Art. 4, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN>

[12] European Union, Charter of Fundamental Rights of the European Union, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN>

[13] European Union, Directive 2012/29/EU, Art. 9 § 3b <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012L0029&from=en>

[14] European Parliament DG IPOL, p.33

[15] The European Parliament has acknowledged as much, see European Parliament DG EPRS.

[16] Amnesty International, Right to be Free From Rape, (London: Amnesty International, 2018) p.6

[17] International Criminal Court, Elements of Crimes, PCNICC/2000/1/Add.2 (2000), Art. 7(1)-(g)1(1) <http://hrlibrary.umn.edu/instree/iccelementsofcrimes.html>

[18] Prosecutor v. Kunarac [2001] IT-96-23-T <http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf>

[19] United Nations Department of Economic and Social Affairs, Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, (United Nations: New York, 2010), pp.40-43

[20] Ibid.

[21] All EU Member States are signatories to the Istanbul Convention; seven are yet to ratify it. See the full list on the Council of Europe website <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures>

[22] See also UN Women, Handbook for Legislation of Violence Against Women, (UN Women: New York, 2012), p.12

[23] Council of Europe, Explanatory Report to the Council of Europe Convention on preventing and combatting violence against women and domestic violence, (Istanbul: Council of Europe, 2011), ¶192

[24] Ibid. ¶193

[25] International Criminal Court, Rules of Procedure and Evidence, UN Doc ICC-ASP/1/3 (2002), Rule 70(a)-(c) <https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf>

[26] Istanbul Convention, Art. 50

[27] Ibid., Art. 49

[28] Ibid., Art. 54

[29] Council of Europe Task Force to Combat Violence Against Women, including Domestic Violence (EG-TFV), Final Activity Report, (Strasbourg: Gender Equality and Anti-Trafficking Division, 2008), available online at <https://www.coe.int/t/dg2/equality/domesticviolencecampaign/Source/Final_Activity_Report.pdf> p.84

Gendered Organisations: How Organisational Processes Contribute To Gender Inequality

This case study was written by Andrea Wessendorf, a first year PhD  candidate at the Cambridge Judge Business School . Her research looks into the ways in which organisations contribute to the recreation of patterned social inequality.

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In 1965, CEOs earned 20 times as much as workers within the same organisation[1]. In 2013, this divide has almost increased fifteenfold: CEOs earned 296 times as much as the workers in the same organisation.

Organisations distribute resources. In general, we assume that hard work will pay off. The top jobs in our society – that is the jobs with the most power, status and remuneration – are allocated to whoever has the most talent and put in the most effort. This believe diverts our attention away from other explanations. After all, organisations are rational, and as rational actors, it is in their best interest to give the most important positions to the people who have the most skills. But are they?

On average, girls are equally good or better in school than boys[2]. Last year, in the UK women were 30% more likely to go to university than men[3] and likewise results in the US indicate that more women graduate from college than men[4]. Assuming gender parity at 40%, women caught up on higher education in the late 80s. If women are successful early on in their years, we should expect them to perform well in the later stages of their lifes, too.

Still, we do not see many women in the upper echelons of the organisations. In fact, 80% of the Fortune 500 boards are men. The contrast is even more stark at the very top of the organisations where 95% of the Chairs are men[5]. There is a clear gender divide between the lower and upper echelons of organisations that, looking back at the pool of candidates who left university, cannot be explained with ability.

Early research on gender inequality has shown that jobs are sex-typed[6]. That means that job roles have normative ascriptions and gendered assumptions. The industrialisation led to a spatial divide of paid work and household work, and to gender segregation within and across organisations and industries[7]. During these years job roles were formed by the job role incumbents. And these formative years still influence our perceptions today. Because men were managers in the past, managers are still assumed to be men. Under this assumption, women do not fit the job role. There is a perceived lack of fit[8] between the managerial requirements, which are “inherently” male, and the gender expectations towards women.

The consequences are manifold: All else equal, men get the benefit of the doubt and are thus more likely to be hired or promoted. Even if a woman got the job, she is likely to be under-evaluated[9] – regardless of actual performance. Consequently, men and women have different opportunities within the workplace. Moreover, when women perform managerial roles well, there is a social backlash[10]. A manager is, for example, expected to demonstrate agentic behaviour. If a man demonstrates agentic behaviour, this is perfectly in synch with the gender expectations. If a woman is agentic, there is a punishment for not being nice enough. This leads to a neglect of much needed strong social networks and may result in both less career progress and less job satisfaction.

The perceived misfit is largely due to the sex-typing of jobs. We have assumptions about jobs and people, and such stereotypes evoke an idea about how well a person will or will not fit the job – beyond actual abilities. Stereotypes therefore induce bias in evaluations. This process is often unconscious. But this means that the meanings we attach to categories, such as gender, matter because they influence our actions.

Even if it is unintentional, it is still effective. It is structural, because it affects many decisions by many people in many cases. It leads to patterned outcomes in organisational processes, based on social group membership. This leads to a systemic privilege, on average, for men as they fit the managerial positions better. And because the same structures are created and recreated time over time, the stereotypes, about job role incumbents and gender, are reinforced, continuously creating artificial barriers for those who do not fit. As a consequence, the jobs with the highest power, status, and remuneration largely continue to be assigned to men.

The central role of organisations in facilitating gender equality

Organisations contribute to gender inequality beyond the upper echelons in organisations. Gender equality is essentially about equal opportunities. It should mean that every person, given the required skills for the job at hand, should have the same opportunities of access and performance, regardless of their gender. In reality, this is not the case.

As pointed out above, we have assumptions about people based on how we categorise them. We expect a woman to be caring and a man to be assertive. We also have assumptions about job roles. A manager is a man[11] and a nurse is a woman. When job role incumbents deviate from these expectations, we tend to jump to wrong conclusions. For example, women in management positions are frequently under-evaluated, regardless of actual performance[12]. On the other hand, male nurses are regularly mistaken for doctors[13] .

These assumptions influence decision making processes. Within organisations, women are segregated into lower positions relative to men, and across organisations and occupations women tend to do more caring jobs. These phenomena are not only driven by organisations. They are recreated in daily interaction across social spheres. Consequently, gender equality in organisations is inextricably linked to more basic assumptions about gender roles. Still, organisations play a huge role in bridging the gender divide.

Not only do organisations distribute resources through organisational processes, such as hiring and promoting, in patterned ways, thereby directly contributing to gender inequality. Their policies and cultures also affect gender roles beyond their organisational boundaries. Specifically, studies have shown that the success of government policies in driving gender equality is affected by organisational policies and cultures.

At entry level positions, men and women earn the same wages[14]. The pay gap emerges as soon as partners start having a family. Women tend to stay at home and work reduced schedules, thereby suspending their careers. But even if women work full-time, they spent more time in the household than men. This is a double-burden that men are not expected to carry.

Sweden tried to address this issue by making a portion of the parental leave obligatory for fathers[15]. However, a study found that men will only take parental leave if they feel that it is socially accepted and not punished in the company[16]. This bring the responsibility back to organisations. Their policies and cultures play a big role in making the change. Gender equality cannot be achieved without organisations.

References:

[1] https://www.epi.org/publication/ceo-pay-continues-to-rise/

[2] http://kjonnsforskning.no/en/2017/03/underachieving-boys-or-clever-girls; https://www.telegraph.co.uk/education/11364130/Girls-do-better-than-boys-at-school-despite-inequality.html

[3] https://www.ucas.com/file/140436/download?token=WX45D1lF

[4] https://www.statista.com/statistics/184272/educational-attainment-of-college-diploma-or-higher-by-gender/

[5] https://corpgov.law.harvard.edu/2018/05/01/missing-pieces-report-the-2016-board-diversity-census-of-women-and-minorities-on-fortune-500-boards/

[6] Epstein, C. F. (1970). ‘Encountering the Male Establishment: Sex-Status Limits on Women’s Careers in the Professions’, American Journal of Sociology, 75(6), pp. 965–982.

[7]Calás, M. B. and Smirich, L. (2006). ‘From the “Woman’s Point of View” Ten Years Later: Towards a Feminist Organization Studies’, in The SAGE Handbook of Organization Studies. Second. London: SAGE, pp. 284–346.

[8] Heilman, M. E. (1983). ‘Sex bias in work settings: The Lack of Fit model’, Research in Organizational Behavior, 5, pp. 269–298.

[9] Heilman, M. E. (2002). ‘Description and Prescription: How Gender Stereotypes Prevent Women’s Ascent Up the Organizational Ladder’, Journal of Social Issues, 57(4), pp. 657–674. doi: 10.1111/0022-4537.00234.

[10] Eagly, A. H. and Karau, S. J. (2002). ‘Role congruity theory of prejudice toward female leaders.’, Psychological Review, 109(3), pp. 573–598. doi: 10.1037//0033-295X.109.3.573; Rudman, L. A. and Glick, P. (2002). ‘Prescriptive Gender Stereotypes and Backlash Toward Agentic Women’, Journal of Social Issues, 57(4), pp. 743–762. doi: 10.1111/0022-4537.00239.

[11] Schein, V. E. (1973). ‘The relationship between sex role stereotypes and requisite management characteristics’, Journal of Applied Psychology, 57(2), pp. 95–100. doi: 10.1037/h0037128.

[12]Heilman, M. E. (1983). ‘Sex bias in work settings: The Lack of Fit model’, Research in Organizational Behavior, 5, pp. 269–298; Heilman, M. E. (2002). ‘Description and Prescription: How Gender Stereotypes Prevent Women’s Ascent Up the Organizational Ladder’, Journal of Social Issues, 57(4), pp. 657–674. doi: 10.1111/0022-4537.00234.

[13] Wingfield, A. H. (2009). ‘Racializing the Glass Escalator: Reconsidering Men’s Experiences with Women’s Work’, Gender & Society, 23(1), pp. 5–26. doi: 10.1177/0891243208323054.

[14] https://slate.com/business/2018/02/even-in-denmark-children-are-career-killers-for-working-moms.html

[15] https://www.telegraph.co.uk/news/2017/12/19/take-five-months-parental-leave-swedish-fathers-told/

[16] Haas, L., Allard, K. and Hwang, P. (2002). ‘The impact of organizational culture on men’s use of parental leave in Sweden’, Community, Work & Family, 5(3), pp. 319–342. doi: 10.1080/1366880022000041801.

Podcast: What Role Can Men Play in Gender Equality and Activism?

In our recent report on consent workshops, we recommend promotion of male allyship: a concept that feels all the more pressing a year after the rise of the #MeToo movement. Gender inequality is deeply rooted in our cultural and societal norms, and whilst supporting women to revert justice, men also have a lot to gain from a more gender equal world.

If you’re interested in finding out more, we’d recommend listening to the podcast we co-produced with SOS Music Media  last June, where our CEO Lilia Giugni took to the microphone to discuss what role men can play in gender equality and activism.

Happy Listening

 

Mapping Sex and Relationship Education (SRE) in Italy

Dr Iole Fontana is a political scientist and a researcher at the University of Catania. She has a PhD in Institutions, Politics and Policies and has been a visiting researcher at the London School of Economics and at the Université Hassan II in Casablanca. She has worked as a research intern for the Delegation of the European Union in Tunisia and is specialized on EU politics and Euro-Mediterranean relations.  This case study is an extension of her  pre-existing research for GenPol’s Can Education Stop Abuse policy paper.

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Relationship and Sex Education (SRE) is now considered an essential tool to empower young people to stay physically and mentally healthy as well as to prevent gender-based violence, as GenPol’s recent policy paper has showed us. Yet, whereas the potential of education in this domain is widely acknowledged, comprehensive programs are still lacking. In Europe, students’ sex education remains a geographical lottery, with SRE initiatives remaining patchy across and inside countries. Italy is a case in point. As one of the few EU member states where sex education is not compulsory, to date, there has been no law on the matter. As such, SRE is still not part of any teaching and education ministerial program. The consequence is that initiatives and activities remain uneven across the country, and dependent on the willingness and financial availability of schools, associations and non-governmental organizations.

What SRE is…and what it is not.

According to the reports of the European Parliament (2013:10) and of the IPPF European Network (2007), SRE is the process of disseminating information, increasing awareness and providing young people with the essential knowledge to enjoy sexuality both physically and emotionally, individually as well as in relationships. To put it briefly, SRE is the result of sex education (the ‘S’ component) and relationship education (the ‘R’ component). The first addresses the biological aspects of reproduction and deals with contraception possibilities, prevention of teenage pregnancy and protection against diseases. The second is concerned with ethical, moral, psychological and emotional aspects of sexuality. In this sense, SRE is not ‘a simple mechanistic coverage of biological facts’ (IPPF, 2007:12). Rather, it links general topics on sexuality with emotions, relationship, consent and respect of the other. Yet, in many countries –Italy included- the ‘S’ and ‘R’ are not promoted in an integrated fashion, with initiatives addressing just one of the two dimensions.

Italy and SRE: a leap into a legislative vacuum

Convoluted discussions on the subject have often heated parliamentary debates (Forleo and Lucisano, 1980). Both right and left wing parties[1]  tabled several legislative proposals on SRE, yet none of them passed the discussion-stage and become formal law[2]. This legislative vacuum stems from the preponderant role of the Vatican, which has traditionally questioned the responsibility of schools in this domain, relegating SRE to the domestic and family sphere. Moreover, the controversial reactions by parents and citizens have complicated the matter even further. As a glaring example, in many cases they have obstructed attempts to distribute in schools booklets on sex, gender issues and same sex relations[3]. For these reasons, no fully-fledged policy framework was ever developed, with politicians and successive governments approaching the issue with great caution. The Education Plan approved by Matteo Renzi’s former government (the so-called ‘Good School Plan’ or ‘La Buona Scuola’) adopted in fact a very soft and generic stance, devoid of comprehensive SRE initiatives. Similarly, the manifesto of the current Five Stars-Lega Nord government fails to refer to the issue.

 

Who takes care of SRE in Italy?

Due to the lack of a proper legislative framework, institutions are not at the forefront of SRE activities. The Ministry of Education is not directly responsible for centrally coordinating the delivery of the SRE initiatives,  and there is currently no Ministry for Equal/Gender Opportunities to take on this task. Schools remain the main institutional actor for the provision of SRE to young people aged between 8 and 19 years old.

In the absence of any ministerial guidance, each school is free to adopt (or disregard) SRE initiatives and to autonomously define educational contents and objects. The result is an uneven geographical distribution and the lack of common standards[4]. Students are in fact exposed to different meanings and messages, depending on their instructor and school. Moreover, many schools do not have enough funding for the delivery of SRE, especially when this implies the involvement of external experts. This further results in a patchy geographical distribution.

In order to map the state of SRE initiatives in Italian schools, a sample of 106 schools was randomly selected from the list of Italian registered schools. For a broader coverage of the Italian territory, schools were selected equally from Northern, Central and Southern regions. To facilitate the analysis, the sample was restricted just to high schools. The content of the Programmatic Document of each school (the so-called ‘PTOF’) was explored to identify the presence of key words (e.g. sexual education; sexuality; affectivity; gender; violence; women; love; HIV etc.) and understand how many schools include SRE activities in their educational offer and -if so- what kind. Overall, -out of 106 schools- 57 do not plan or even mention any kind of SRE. For the remaining 59, at least one SRE activity is mentioned in the PTOF (see table 1). Yet, for many of them, clearly recognizable projects are not always available, and it rather seems that SRE is only formally and merely mentioned in the PTOF but never really translated into action.

Source: Author’s Own

Moreover, the analysis of the PTOFs reveals that the combination of the ‘S’ and the ‘R’ components is hardly reflected in the educational offer of Italian schools. Most of the schools focus just on one of the two dimensions, overlooking the other. The schools promoting the “S” tailor their activities to sex education, prevention of sexual diseases, pregnancy and development of sexual awareness through cycles of meetings with gynaecologists, psychologists or other external experts. The schools that address the “R” target their activities to the fight against gender violence, discrimination, gender equality and relationship with the other. They use different interactive teaching tools, such as calls for journal articles, movie/photograph contests or the participation to key symbolic events (e.g. the woman international day). Many schools affirm their commitment to introducing gender and sexual education in a transversal way across different schools’ subjects.

However, of the selected sample, just 2-3 schools were actually able to support SRE in a comprehensive way, by combining the “S” and “R” components. There is no evidence that schools in the South are less receptive to SRE than schools in the North. The high number of schools without SRE initiatives concerns all Italian geographical areas. SRE activities are distributed unevenly, independently from the school’s geographical location. Finally, for most of the schools engaged into SRE, there are interesting synergies with other local actors (hospitals, ASLs, associations) who contribute with their expertise to the delivery of SRE initiatives.

SRE at a grassroots level

An increasing number of Italian civil society associations have made gender equality (and SRE) their mission. Their main strength is that they are able to target a much bigger audience than schools. Whereas the latter are generally limited to 13-19 years old teenagers, SRE initiatives in the associative world can address a mixed target composed of students, teachers, educators and parents. Some of the activities specifically target primary school students. Different methodologies and teaching methods are adopted. Many promote awareness-raising days on key topics such as gender-based violence; others organize interactive and training laboratories in private and public structures. Most of the associations cooperate with schools and some of them have even activated training courses on gender violence in cooperation with Universities.

Yet, ‘the exacerbation of the anti-gender campaigning as well as the recrudescence of racism and xenophobia have made the education work one of significant difficulty both inside and outside schools’[5]. In this regard, several associations have recently emerged with the goal of contrasting public SRE activities and keep the issue as a private affair within parents’ competence. The National Observatory devoted to affective and sexual education is a case in point. Born within the Committee “Let’s defend our children”, the goal of the Observatory is to keep a tight control on schools’ educational offer, warning about any potential teaching and educative ‘abuse’. These social divisions directly impinge upon the work of many of the associations engaged into SRE promotion.

Overall, SRE remains a contested issue in Italy. The absence of a clear public policy on the point gives raise to uneven implementation, with schools and associations’ capacities and practices varying greatly across the country.

 

Dr. Iole Fontana
Reserach Associate 

 

 

References:

IPPF (2007), The Safe Project.

European Parliament (2013), Policies for Sexuality Education in the European Union, Policy Department C.

Forleo R. and Lucisano P. (1980), Sex Ed in Italy, Journal of Sex Education and Therapy, n.6

[1] The proposals equally came from centre-right, extreme right, centre-left and extreme-left parties.

[2] For instance, the first draft bill in 1975 was blocked during the discussion within the parliamentary committee. The same happened in 1991, 1992, 1995, 1996, 1999, 2001, 2007, 2013, 2015.

[3] http://www.ilfattoquotidiano.it/2014/06/08/educazione-sessuale-in-olanda-si-inizia-a-4-anni-in-italia-non-ce-una-normativa/1008863/  ; http://www.huffingtonpost.it/2017/06/07/genitori-in-rivolta-contro-il-libro-di-educazione-sessuale-mio_a_22130537/

[4] Informal interviews with a sample of Italian high school professors.

[5] https://ilprogettoalice.wordpress.com/

New Report: Consent training and sexual violence prevention in UK universities

We are delighted to present GenPol’s report on consent training and sexual violence prevention in British universities. Through desk research, focus groups, workshops, and an online survey, we have aimed to assess how current training practices help prevent sexual violence on campus, and what else could be done to support practitioners and enhance the impact of prevention work. This report was born from the collaboration between GenPol and Dr Tom Dougherty, a philosopher who researches consent at the University of Cambridge. It has seen us working for many months with university staff, students, trainers, sexual violence experts and gender equality activists.

Our commitment to ending sexual violence

As think tank researchers and gender equality advocates, at GenPol we work closely with universities, their students and personnel. Many of our researchers are, or have been, academics, and many of our interns study at, or have just come out of, university. Thus, we are painfully aware of the existence of sexual harassment and assault on campus. It saddens and outrages us beyond words, and we are committed to do our bit to end it. We hope that this report may be a useful tool for peer-to-peer trainers, student leaders and activists, as well as for sexual violence professionals and all those who work to tackle gender-based abuse in all its forms. We dedicate it to all victims and survivors, whose courage and resilience is a never-ending source of inspiration.

Our findings

Our data analysis clearly shows that consent training is increasingly perceived as an effective violence prevention tool by trainers and beneficiaries alike, and adopted by more and more universities nation-wide. We identified a number of good practices for consent workshops, including break-away group discussions, scenario and myth-busting exercises, and the use of national and local statistics on assault and harassment. However, our report also highlights existing challenges and areas for improvement. These include the reluctance of (mostly male) students to attend consent workshops, existing time constraints, and the fact that trainers struggle to find a suitable language and cover a plethora of complex topics.

Above all, we found that training as a stand-alone tool is not particularly successful. In fact, trainees turn cynical and lose motivation if they do not see their institution truly committing to address the problem, and an institutional culture of sexual respect is not developed. Specifically, our respondents complained about the fragmentation of sexual violence reporting mechanisms and disciplinary procedures across universities, and even colleges within the same institution. They also felt that specifically trained personnel and sexual violence professionals (including therapists) should support consent trainers.

Building on this, we issued a set of comprehensive recommendations for peer-to-peer trainers, student unions, universities, sexual violence professionals and other relevant stakeholders. They include:

  • The introduction of transparent reporting mechanisms for sexual harassment, assault and discriminatory behaviours across universities nation-wide (ideally, an anonymous online reporting system should be developed aside non-anonymous reporting forms, easily accessible on universities’ websites);

  • The introduction of clear, appropriate and well-advertised disciplinary measures, and of specific compulsory training on gender-based violence and discrimination for members of staff;

  • Hiring specially trained therapists to support survivors of abuse and their loved ones, as well as students and staff with specific pastoral duties;

  • Offering multiple forms of consent training and spreading teaching over different sessions, so that complex topics can be dealt with, and information and ideas can sink in;

  • Using in consent training well-tested delivery methods such as breakaway groups (with the double option of single-gender groups and mixed ones), open and interactive discussions, myth-busting, scenario and privilege-related exercises, local case studies, reflections on the differences between legal and ethical concerns);

  • Designing consent training to change not only beliefs but behaviours (through exercises aimed at developing empathy, processing difficult emotions, and offering creative strategies to identify and respond to problematic behaviours);

  • Mapping existing consent-related resources and making them available to the student community;

  • Carefully monitoring and evaluating consent training.

 

For further details, please see the report below. This study is part of a broader research project started with Can Education stop abuse?’, a comprehensive policy paper in which we examined the linkage between consent-centred sexuality education and gender-based violence on an European level.

Happy reading!

Click here to read the report

 

 

 

Social innovation, anti-mafia and intersectionality made in (Southern) Italy

Students of social innovation know only too well the power of symbols and story-telling. Those who look for innovative solutions to complex, wicked social problems face, first, the challenge of conceptualising and clearly explaining to others the very social evils they are trying to address. This is usually no trivial matter: the way we consider approaching, say, violence against women and girls will very much depend on how, and through which lenses, we understand this phenomenon. Secondly, social innovators who are lucky enough to have identified viable solutions often struggle to illustrate this to donors, investors or policy-makers, and more generally to anyone who’s not as familiar with the subject as they are (or, indeed, as passionate).

There is, however, a third way in which the ability to forge narratives, and use sets of languages and symbols, is key to social innovation work. In fact, tackling some of the most entrenched social problems generally requires not only long-term, sustainable actions, but also a change in people’s habits and way of mind. This is where so-called cultural entrepreneurship, namely the processes and skills that allow innovators to (re)craft identities and symbolic practices to gain legitimacy and open up access to new resources and opportunities, often come into play.

Southern Italy, and especially my native Naples and Campania region, offer plenty of intriguing examples. Born in a land rich in traditions, rituals and unspoken rules, no Neapolitan would ever deny how much symbols and stories matter. It is no wonder that local social innovators pay close, conscious attention.

Take the case of Radio Siani, an anti-mafia social cooperative based in the small town of Ercolano (Naples), long-dominated by mafia interests, and once a central hub for extortion and drug trafficking. Radio Siani’s headquarters are in a flat that once belonged to a mafia boss. He used to watch the murders he had commissioned from the balcony .where young activists now enjoy their cigarettes. The flat currently hosts an anti-mafia web-radio (its origins lie in the fact that criminals in and out of prison exchanged messages through their own local radio). The organisation also runs educational activities for the local young people, and workshops for students who come to visit from all over the region. All visitors are asked to leave a message on the wall of what once was the boss’s kitchen.

Over the years, radio broadcasting has become increasingly intersectional, including a sex ed radio programme, regular coverage of LGBT+ issues, and awareness-raising emissions on the theme of disability. When interviewed, Radio Siani activists argued that mafia is fought not only talking crime and spreading ‘legality culture’, but also working towards an equal, democratic and non-violent world, where everyone’s rights, particularly those of the traditionally oppressed, are defended. It is definitely not by chance that the organisation was involved in the setting up of Lilith, the very first gender-based violence emergency point ever opened in Ercolano (now sadly shut down due to lack of funding).

 

This intersectional ethos is evident in Radio Siani’s effort to reclaim the mafia’s own words and symbols, and propose positive language, rituals and role models to those who were born in a mafia-dominated area. In fact, the radio and the social cooperative are both named after Giancarlo Siani, a Neapolitan journalist killed by the mafia in 1985, aged 26. The flat is packed with pictures and images of Giovanni Falcone and Paolo Borsellino, Sicilian judges also murdered by organised crime, and of Miriam Makeba, one of the most audible voices of the anti-Apartheid and civil rights movements.

The cooperative’s members have recently started to engage in agricultural work, producing a special breed of tomatoes in a field which was, too, once confiscated from a criminal family. The tomatoes, small and pointy, have been nick-named pizzini, slang word for sharp-edged objects but also for the messages whereby the Sicilian mafia used to communicate. Agricultural projects also serve the purpose of offering work opportunities to kids just come out of juvenile prisons in the area, many of whom share a migrant background or a history of mental health issues. Radio Siani’s staff makes a point to provide them with professional and personal mentorship, as well as examples of healthy, non-violent masculine bonds.

Other actors in the Ercolano’s anti-mafia network are equally cultural entrepreneurship-conscious. The Associazione Anti-Racket, the charity which unites shop-owners and entrepreneurs who rebelled to mafia’s extortions and reported offences to the police, organises a yearly ‘anti-extortion’ walk, where the civil society is invited to take the streets and reclaim the right to own their town. Enlightened local school principals adopted an open-door policy, arguing that schools should be open well beyond class-time to offer kids a stimulating alternative to life on the street. The carabinieri (Italian military force with police duties), very much involved in anti-mafia work and central to the eradication of the extortion practice in Ercolano, are about to move to a new head-quarter, in the very centre of the town once controlled by criminal families.

Tomatoes and public walks, radio broad-casting and messages on the wall, then, all fulfil a similar purpose. They are the tools whereby activists and innovators reclaim bits and pieces of an oppressive system (that of organised crime, or, say, that stemming from the intersection of the discrimination directed against women, the LGBT+ community , migrants and disabled people), re-forging them for new purposes. They are meant to empower people and local communities in innovative ways, with the long-term purpose of making social change possible.

Stories worth telling? I’d say a couple of very poignant lessons to be learned.

(This blog is a revised version of a longer articles published on the Cambridge Judge Business School’s website).

Lilia Giugni
GenPol CEO

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