M.C. v Bulgaria

M.C. v Bulgaria (2003)

The definition of rape in domestic criminal law should reflect the fact that “any sexual penetration without the victim's consent constitutes rape and that consent must be given voluntarily, as a result of the person's free will, assessed in the context of the surrounding circumstances.”

What happened?

M.C. was raped when she was 14 years and 10 months old. She had been socialising with the two perpetrators – when they were driving home, they stopped the car in an isolated place. One perpetrator trapped her in the car. M.C. was afraid, not least because she had never had sexual intercourse before, and “froze” while he raped her. The two perpetrators took her to a house, where the second perpetrator raped her the next day.

The ensuing investigation considered that this was a “date rape” and came to the conclusion that there was insufficient proof that she had been compelled to have sex. Statutory rape was only available as a charge if the victim was under 14 years old at the time of the rape.

Bulgarian domestic law on rape focused on the use of force as an element of the definition.

What was the decision?

The ECHR found that Bulgaria’s denial of M.C.’s access to justice violated the right not to be subjected to torture and ill-treatment.

The ECHR drew on caselaw from the International Criminal Tribunal for the former Yugoslavia, significantly the Kunarac, Kovac and Vukovic case, that

“[163] in international criminal law, any sexual penetration without the victim's consent constitutes rape and that consent must be given voluntarily, as a result of the person's free will, assessed in the context of the surrounding circumstances. While the above definition was formulated in the particular context of rapes committed against the population in the conditions of an armed conflict, it also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse.

164. As submitted by the intervener, the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse – in particular, girls below the age of majority – often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator.

165. Moreover, the development of law and practice in that area reflects the evolution of societies towards effective equality and respect for each individual's sexual autonomy.

166. In the light of the above, the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.”

Significance

The ECHR’s comments about sexual autonomy and the definition of rape in this case were very influential during the negotiation of the Council of Europe Convention on preventing and combating violence against women and domestic violence (known as ‘the Istanbul Convention.’)

Article 36 of the Istanbul Convention requires that states parties ensure that “engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object” is criminalised, and that the criminal law should reflect that “Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.”