29 January 2021 – 18:17
Flóra Dóra Csatári
• The preface of a Curia publication cites a judgment adopted in a sexual assault case that is considered by some to be just another manifestation of victim blaming in Hungarian judicial practice.
• According to the text, a rape victim is expected to resist.
• Even though rape victims often just freeze and are unable to react in any way.
• Having this case included in the publication is relevant because it may determine judicial practice in general as well.
• According to rights defenders, this publication only strengthens those prevailing interpretations of legal practitioners’ which link the adjudication of sexual assault to the victims’ resistance.
• On the other hand though, the judgment of the cited case may also be interpreted as advancement compared to previous practices.
“In cases of crimes against sexual freedom it is expected of the victims to protect all that is protected by the law, otherwise their adherence to their sexual freedom is not real.”
This sentence was not used in the infamous campaign of Baranya County Police in 2014 called “You are a reason, be the resistance” (“Tehetsz róla, tehetsz ellene”), it was in the preface of a newly presented Curia decision.
This thought received a lot of attention not only because many interpreted it as another manifestation of victim blaming in the Hungarian judicial practice, but also because it was published in the periodical called Court Decisions (BH-Bírósági Határozatok) which contains the most important Curia decisions and therefore significantly shapes judicial practices in general.
Altogether, several legal professionals rate the complete judgment to be progressive, but the preface still did push a lot of people’s buttons. The blog called Diétás Magyar Múzsa is edited by legal professionals; and even they commented the opening sentence of the preface as follows:
“it is difficult even for a legal professional to interpret what the Curia had stated otherwise than there is no rape if the victim does not struggle hard enough.”
PATENT, a legal aid organization helping abused women, stated that Hungary’s supreme judicial body only reinforced those prevailing theories of legal practitioners’ which link the adjudication of rape to the victims’ resistance.
A 19-year-old woman was raped in a locked boiler room
On this occasion the Curia decided in the case of a man, who was previously convicted for sexual assault in 2018 and was sentenced to seven years. The man’s attorney now tried to prove before the Curia that what had happened was not sexual abuse but sexual coercion, which constitutes a less serious crime. The brutal details of the case might be unsettling but we need to be familiar with these in order to clearly understand the Curia’s decision, therefore in the following we will sum up the story in short based on the judgment.
The man and his companion met the victim at a station. The 19-year-old woman had no place to go at the time and so she had not slept for a day when the two men won her confidence and promised to find her accommodation. What they actually did was, they took her to the boiler room and locked its door.
They kept offering her a pink colored alcoholic drink, which she repeatedly rejected in vain, and was finally compelled to drink it. She became dizzy from the drink, her movements slowed, and the men dragged her clothes off against her objections. One of the men started kissing her lips and naked body, and stretched her legs apart; the other one shoved his penis into her mouth. She started retching and choking so she tried to bite the penis in her mouth in self-defense. Following this, the two men raped her with vaginal penetration. The woman screamed and cried in pain, so her mouth was covered to avoid anyone hearing her.
And the judgment is still considered progressive?
Since the case before the Curia only concerned one of the men, we are not familiar with the sentence of the other perpetrator. What is clear from the court decision though, is that the attorney of the man sentenced to seven years wished to prove to the Curia that the case cannot be classified as a sexual assault, because the 19-year-old woman “did not put up strong resistance, her situation was not hopeless” and the perpetrators, because of this, were not expected to recognize or notice the victim’s “incidental” objections.
Nonetheless, according to the judges, this argument did not stand. Even though the Curia stated that sexual assault may only be established if the victim resists (since “it is expected of the victims to protect all that is protected by the law”), the progressivity of the judgment is manifested in the fact that in this specific case the Curia established that the woman closed in the boiler room acted so indeed. According to the ruling, the man was not only aware of the resistance but did everything he could to make it futile.
The ruling also states in the justification part that “self-defense (resistance) to the utmost is not expected. Determining the strength of the victim’s resistance is not excluded if the victim fails to or ceases to resist by reason of considering her own situation hopeless.”
According to the interpretation of legal professionals running the blog Diétás Magyar Múzsa, the judgment laid down that all actions are considered violence that happen after the victim has expressed her objections,
“which means the judgment expands the Criminal Code’s regulations by stating that covering the eyes, pleading, begging can be taken as resistance, therefore there is no need to go through the events frame by frame if the victim had bit, scratched, hit, if the victim’s resistance had been serious.”
Although the post admits that the preface of the court decision is unfortunate, the blog Diétás Magyar Múzsa argues that, with its decision the Curia has “modernized Hungarian criminal law and drew it nearer to European standards as concerns such an important and sensitive area.”
A classic case was established to be an assault
Compared to the judgment adopted in the case of five high school boys in Nyíregyháza (where the sentence of the molesters and those making the video recording of the molesting of an incapacitated 14-year-old girl from Nyíregyháza was reduced by judge Lajos Balla on the grounds that “the victim’s behavior was also thoughtless”)
“this court decision is actually really progressive, since there is no word in it stating that the victim was supposed to know that if she went somewhere with two strangers they would obviously rape her”,
Júlia Spronz, PATENT organization’s lawyer told Telex. At the same time she does not find this Curia decision to be progressive or very advanced because “the consistent judicial practice has always been one that held victims accountable for their resistance, this way completely neglecting the reality of these women”.
During a sexual assault, most of the victims experience a fear of dying and in such situations; it is a natural and scientifically proven stress-reflex to “freeze”. When the organism protects itself by numbing the body and the mind, the literature defines this as follows: as an effect of trauma, fear literally paralyzes the victim.
“According to the justification of the court decision, clearly nobody wants to be robbed, but we cannot agree that nobody wants to be raped. This also implies that property deserves to be better protected than sexual freedom and sexual will.”,
says Júlia Spronz. In her view, it is important to also understand that the court decision may not be taken out of its context. This means the Curia established that the sexual intercourse cannot have been voluntary just because the victim had failed to run away or had not screamed loud enough, in this specific, unambiguous – even based on textbook examples – case of the 19-year-old victim locked up in the boiler room.
The lawyer of PATENT organization emphasizes that the judgment of the case was indeed unambiguous, because it concerned a “classic” case of sexual assault that meets the expectations of a stereotypical assault in many elements which keep the myth of “real rape” alive:
the woman did not know her assailants, she was locked up, they had gotten her drunk against her will, they tore her clothes off, her legs were stretched apart while she was screaming, crying and even physically trying to protect herself, as she bit into the penis that had been thrust in her mouth against her will.
But most sexual assaults are not like that. The vast majority of the sexual offences in Hungary are committed without any weapons or physical violence and the perpetrators usually know their victims according to the research conducted by the National Institute of Criminology.
Modern, European standards
In a 2003 judgment the European Court of Human Rights already stated that the Bulgarian authorities have violated the European Convention of Human Rights when they had tried to find evidence of resistance in a sexual assault case.
Several international conventions advocate that the definition of sexual assault should not derive from the resistance of the victim, rather from the lack of consent.
One of these is the CEDAW convention on the Elimination of All Forms of Discrimination Against Women, adopted by the UN General Assembly, which was ratified by Hungary too.
According to Júlia Spronz, Hungarian women’s organizations have been fighting for decades to have “the Hungarian Civil Code clarify that sexual assault happens when there is no consent”. PATENT would not expect the court to do the job of the legislation. But in the view of the legal aid organization, the Curia would have opportunities in the direction of effective victim protection within its own competences.
“We will have a reason to be content when the same judgment is adopted in a case where a victim froze”,
said Spronz, implying that in her opinion the victim’s halting out of fear should fall under the concept of incapability of self defense.
(Translated by Dóra Horváth)
29 January 2021 – 18:17