A.F. v Italy

CEDAW Committee, 18 July 2022. CEDAW/C/82/D/148/2019

A.F. was raped by one of the police officers who came to her house to investigate her report of being subjected to domestic violence by her husband. The prosecution of this rape by a state official was undermined by gender-based stereotyping of victims of sexual violence in the criminal justice system.

What happened?

A.F. was subjected to domestic violence by her former husband and reported him to the police. One of the officers, CC, who dealt with her initial report, invited himself to her house the next day on the pretext of having information about her case, and raped her. CC continued to harass her with phone calls and demands to meet, given that he was a police officer she was scared by his persistence, particularly, that he might harm her two daughters. On the one occasion she met CC in a public place, he boasted about his high position in the police force and claimed that he would benefit from impunity for the rape of A.F. because of this. A few weeks later, she reported him for rape and harassment, and he was convicted.

On appeal, his conviction was reversed – the appeal court was persuaded by CC’s allegations that the sexual contact was consensual, and that A.F. complained of rape because CC was not willing to continue their relationship. A.F. appealed to the Supreme Court, citing the appeal court’s “illogical and discriminatory justification of the appraisal of [her] testimony as not credible.”(paragraph 2.16) The supreme court of cassation refused to hear the appeal, holding that “it described as logical and therefore concluded that the author merely disagreed with the Court’s evaluation of the facts and evidence, which was a matter outside the Supreme Court’s jurisdiction.” (paragraph 2.17)

A.F. brought her case to the CEDAW Committee, arguing that justice had not been done in her case because of gendered stereotyping, and that (para 2.19)

“These stereotypes were a result of the State party’s failure to implement measures to eliminate gender stereotyping. Such measures should have included imposing mandatory training at all levels of the judiciary on the effect of gender stereotypes on women’s equal access to justice. The failure to address harmful cultural norms that pervade the judiciary leads to bias in interpreting subjective elements of criminal law. She therefore claims that the State party failed to protect her from discrimination by public authorities, including the judiciary, and to exercise due diligence in punishing acts of violence against women, in particular, rape.”

She continued her complaint to the CEDAW Committee:

“She points to the definition of rape in the State party’s criminal legislation, which fails to place lack of consent at its centre or to encompass a broad understanding of coercive circumstances and includes the requirement of force or violence, all of which call for interpretation by the judiciary, which does not receive mandatory training on gender-based violence, of a broad range of culturally subjective factors, which are heavily influenced by gender stereotypes. (paragraph 3.5)

Italy sent representations to the CEDAW Committee citing many initiatives and programs, but A.F. said

(paragraph 5.6)

“Regarding the effectiveness and efficacy of the Italian legal system and the legal tools that were cited, the author refers to the gap that exists between the Italian legal system as formally defined by law and public policies and its concrete implementation of those principles, which is compromised precisely by the pervasive and widespread sexist culture that remains embedded at the social and political level, as denounced in the reports submitted by Italian civil society organizations during the last reporting cycle. Unfortunately, such discriminatory thinking still influences the legislative and judicial branches of government and has not been seriously addressed by the State party in terms of legislative or policy changes that prioritize the elimination of discrimination and stereotypes.

5.7 The author asserts that judicial stereotyping remains a central issue, as stressed by the parliamentary commission of inquiry on femicide and all forms of violence against women, which called upon the National Institute of Statistics to investigate the impact of gender stereotypes on women, while in 2019 the General Prosecutor before the Supreme Court of Cassation had highlighted the worrying increase in femicide in Italy.”

The CEDAW Committee said:

“Often, judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to those stereotypes. Stereotyping also affects the credibility given to women’s voices, arguments and testimony as parties and witnesses. Such stereotyping can cause judges to misinterpret or misapply laws. This has far-reaching consequences, for example, in criminal law, where it results in perpetrators not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity. In all areas of law, stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the revictimization of complainants. Judges, magistrates and adjudicators are not the only actors in the justice system who apply, reinforce and perpetuate stereotypes. Prosecutors, law enforcement officials and other actors often allow stereotypes to influence investigations and trials, especially in cases of gender-based violence, with stereotypes undermining the claims of the victim/survivor and simultaneously supporting the defence advanced by the alleged perpetrator. Stereotyping can, therefore, permeate both the investigation and trial phases and shape the final judgment.” (paragraph 7.5)

Referring to the appeal court and supreme court of cassation, the CEDAW Committee said:

“The Committee concludes that the treatment of the author before the appeal court and compounded at the Supreme Court level failed to ensure de facto equality between the author as a victim of gender-based violence. It revealed a clear lack of understanding of the gendered constructs of violence against women, the concept of coercive control, the implications and intricacies of abuse of authority, including the use and abuse of trust, the impact of exposure to consecutive traumas, complex post- traumatic symptoms, including disassociation and memory loss, and the specific vulnerabilities and needs of victims of domestic abuse.” (paragraph 7.17)
[…]
The Committee finds that these stereotypes flourish where legislation does not clearly identify consent as the central element in the definition of an offence. The failure to do so led to a dissection of the author’s life, morals, communications, injuries, marital and relationship status, age and numerous other factors, which were repeatedly pored over. She faced a degree of scrutiny that was not applied to C.C. As a result, the proceedings were vulnerable to contrasting and damaging interpretations based on cultural norms and preconceptions that denied her equal access to justice and not only failed to protect her but repeatedly subjected her to discrimination and traumatization.” (paragraph 7.19)

The CEDAW Committee found that A.F. had been subjected to gender-based violence and discrimination in seeking justice.

Recommendations

As well as making comprehensive recommendation about training all participants in the criminal justice system so that they apply the law without gender-based discrimination, the CEDAW Committee made some specific recommendations on how to ensure that stereotyping should be eradicated, through

“Developing, implementing and monitoring strategies for eliminating gender stereotyping in cases of gender-based violence that include highlighting the harms of judicial gender stereotyping through evidence-based research and identifying best practices; advocating for legal and policy reforms; monitoring and analysing precedents and trends in judicial reasoning; allowing for challenges to individual incidents of judicial gender stereotyping; and improving oversight capacity.” (paragraph (b)(ii)(c))

To enhance these positive developments, the law relating to sexual violence should be defined and prosecuted. (paragraph 9(c)(iii))

(iii) Introduce concrete legislative measures to ensure that the burden of proof is not unduly onerous or vague, leading to overly broad or far-reaching interpretation, including:

a. Amending the definition of all sexual offences involving victims capable of giving legal consent, to include consent as the defining element.

b. Ensuring that, where consent is raised as a defence, the burden of proof is placed on the accused to substantiate a well-founded belief that affirmative consent was given, rather than on the victim to show that she communicated an unequivocal lack of consent.

c. Removing from the defining elements of sexual offences the requirement for the victim to prove penetration, force or violence, unless such evidence is required to establish an additional offence or aggravating circumstances.

Significance

This case consolidates understanding of how rape should be defined and prosecuted, following the landmark case of Vertido v Philippines, (CEDAW/C/46/D/18/2008, 22 September 2010) which covered similar ground in terms of the stereotyping influencing the prosecution of sexual assault and the secondary victimization inflicted on the survivor seeking justice.

Since the Vertido case, there is a greater understanding about the need for definitions of rape which respect the principle of freely given agreement to sexual contact, including Article 36 of the Council of Europe Convention on preventing and combating violence against women and domestic violence.

In the Vertido case, the CEDAW Committee was unable to find a violation of the applicant’s rights, although it analysed the various stereotypes that undermined justice in that case, because the Committee members felt that it was not appropriate for them to give judgment on evidence that they had not heard directly and in completeness. However, in this case, there were two courts making findings of facts, and one court making a judgment which applied review of evidence (such as CC making repeated calls to A.F.) and the other court making a judgment which was full of gendered stereotyping. So, in this case, the CEDAW Committee was able to make a judgment in favour of the applicant A.F. on the content of the evidence.