“Sexual violence: look at ‘was there consent,’ not ‘did they resist’”…A European human rights judge offers recommendations

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Judge Vasilka Sancin of the European Court of Human Rights is interviewed by the Kyunghyang Shinmun on the 17th at the Grand Hyatt Seoul in Yongsan-gu, Seoul. Jeong Hyo-jin

“Consent must reflect a free will to engage in sexual relations at that very moment and in the specific circumstances. It must not be inferred solely from any past promise.”

This is what Vasilka Sancin, a judge of the European Court of Human Rights (ECHR), said in a recent interview with the Kyunghyang Shinmun. Formerly a professor of international law and vice-chair of the UN Human Rights Committee, she took office in May last year as the judge for Slovenia at the ECHR. On the 17th in Seoul, at the 20th Asia-Pacific Chief Justices Conference, she also presented on the ECHR’s case law and judicial approaches to sexual and domestic violence.

In a recent written interview, she emphasized that assessments of sexual violence should center not on how much the victim resisted, but on whether there was free consent. In South Korea, debate has continued over shifting the axis of rape adjudication from ‘force or threats’ to the ‘presence or absence of consent’, under the banner of a proposed ‘non-consent-based rape offense’. Most recently, a case in which a defendant was finally acquitted of quasi-rape despite the victim having expressed refusal more than 75 times has been brought to the Constitutional Court as a petition for adjudication, and is now under review by the full bench.

Citing European examples, Sancin explained that a lack of resistance by the victim cannot by itself be taken as consent to sexual activity. One emblematic case occurred in Bulgaria in 2003. A 14-year-old girl reported being raped by two men in their twenties, but the authorities closed the investigation, citing a lack of evidence of physical coercion or active resistance.

The ECHR held that Bulgaria failed to fulfill its effective protective obligations against sexual violence and found a violation of the European Convention on Human Rights. Victims of sexual violence may be unable to resist physically because of psychological factors or fear of the perpetrator’s violence. Sancin said that the Bulgarian authorities in the past placed excessive weight on ‘direct’ evidence of rape and, as a result, failed to focus primarily on the core issue of ‘non-consent’.

Recent case law takes a much broader view, considering situations in which victims freeze in fear. In a case last year concerning sexual violence against a minor in France, the ECHR noted that many European states define rape around the ‘absence of freely given consent’ rather than force or threats, and pointed out that standards centered on physical force make it hard to capture situations in which a victim is paralyzed or in a state of ‘tonic immobility’.

This does not mean uncritically believing whatever the victim says. Sancin said that even if there is no direct evidence that the victim explicitly refused or no traces of physical resistance, one should not immediately conclude there was consent. Instead, consent should be determined by synthesizing surrounding circumstances that show whether the victim could choose freely, such as the trust, authority, or dependency between the two people at the time, and the victim’s vulnerability or fear.

Some in South Korea argue that adopting a non-consent approach to rape would “end up convicting based only on what the victim says.” Sancin’s explanation points in the opposite direction. The point is not to conclude based on the victim alone, but to seek out more evidence that can test conflicting accounts.

She said that, if necessary, authorities should conduct timely forensic examinations and question relevant witnesses, and also check communication records or documents to carry out "additional investigative steps that can support or test the competing accounts." In short, centering the analysis on consent does not grant a special status to the victim’s statement; it means weighing multiple pieces of evidence that show the circumstances and determining which side’s explanation is closer to the facts.

The same applies when parts of a victim’s statement change. Sancin said discrepancies in a victim’s account can be explained by trauma. Because of a shocking experience, it may be difficult to give a complete account in chronological order without contradictions. She added, "One must distinguish whether it actually undermines the credibility of the account, or whether it can be reasonably explained by a severe psychological experience."

Sancin also cautioned against treating a victim’s past conduct or relationship with the perpetrator as proof of ‘consent’. In a case in Cyprus, investigators placed weight on the fact that the victim had "liked" the perpetrator in the past. On this, Sancin said, "Past intimacy or a preexisting relationship, as such, cannot establish consent to later sexual activity." In another gang rape case, the ECHR found that ‘victim-blaming stereotypes’ were at play when investigators evaluated credibility based on the victim’s past sexual history and behavior.

Under these standards, Europe also does not assume that consent is always present between spouses. In France, a ruling that placed blame for divorce on a wife because she had long refused sexual relations with her husband became a problem. The ECHR held that the concept of ‘marital duty’ took no account of consent to sexual relations, and rejected the French government’s claim that consent to marriage implies consent to future sexual relations.

“Sexual violence cases are an area where gender stereotypes can have a particularly broad impact on the protection of human rights,” Sancin said, adding that judges should beware of mistaken notions about what an ‘ideal victimhood’ looks like. For example, the notions that women fabricate claims of sexual violence, report out of revenge, or later regret consensual sex and then call it sexual violence. Such gendered stereotypes can influence the direction of investigations and trials even before enough evidence is gathered.

Sancin said, “The most important point is that state authorities must refrain from any conduct constituting secondary victimization,” and that they should “instead place special emphasis on protecting the victim’s dignity, physical and psychological integrity, and sexual self-determination.” She stressed that “even if the need to establish the facts is legitimate, investigative practices that needlessly retraumatize the victim or subject them to intrusive procedures cannot be justified.”