Deborah Melegare Teixeira Salvador

U210420

Case:
M. G. C. v Romania, no. 61495/11, 15 March 2016.

Read the case given and consider the following questions:

1. Briefly summarise the facts of the case and the legal issue at stake. (2 Points)

The case was presented to the Court pursuant to Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Romanian
citizen, Mrs. M. G. C. ("the applicant"), on September 21, 2011 regarding the criminal case with
alleged rape of a minor. The applicant claimed that the Romanian authorities failed to protect her
from inhuman and degrading treatment and to protect her right to respect for her private life, as
guaranteed by Articles 3 and 8 of the Convention. The applicant declared to the police that
between August 2008 and February 2009 she had been raped by six men in total (J.V., F.B., A.B.,
G.B., P.B. and G.I.) and often under threat.
First, on December 10, 2009, the Prosecutor's Office of the Hunedoara County Court issued
an indictment decision in relation to J.V. for the crime of sexual relations with a minor on repeated
occasions. F.B., A.B., G.B. and P.B. were administratively fined for the same crime. The
prosecutor considered it relevant that the applicant had gone to the neighbors' house poorly
dressed. Thus, the prosecutor concluded that it was not proven without room for doubt that the
applicant had not given her consent to the sexual acts. The applicant's complaint against this
decision was rejected by the senior prosecutor and later by the courts.
In sequence, on April 20, 2010, J.V. was found guilty by the District Court of Deva of having
had sexual relations with a minor and was sentenced to three years in prison. After this decision,
the applicant requested the conviction of the perpetrator for rape, using as an argument a sentence
of November 10, 2009 by the Bacău Court of Appeal that declared that a ten-year-old and eight-
month-old girl was not able to understand what a sexual act meant and, therefore, give her consent
to it. The District Court took into account the testimony of the accused about the relevance of the
clothes and an alleged "provocative" behavior of the applicant.
The Hunedoara County Court decided to allow the applicant’s appeal and, on November 4,
2010, the Hunedoara County Court sentenced J.V. for rape and sentenced him to four years in
prison, but considered that it was not necessary to increase the amount of compensation for non-
pecuniary damages.
 Finally, the applicant filed an appeal against the sentence of November 4, 2010, asking for
higher compensation for non-pecuniary damages and that a more severe sentence be imposed on
the defendant. In this sense, the Court of Appeal of Alba Iulia allowed the appeal of J.V. and
maintained with final effect the judgment of the District Court of Deva of April 20, 2010.
After all, the European Court of Human Rights accepted the applicant's request and
understood that there was indeed a violation of the positive obligations of the requested State
under Articles 3 and 8 of the Convention.

2. The judgement considers the use of ‘rape myths’ on trial. What constitutes a rape
myth? Which myths were relevant in this case? Did the court go far enough in
dispelling such myths? (3 Points)

The “rape myths” consist of a belief that the behaviors (or supposed behaviors) of the victim
are the central reasons why rapes happen and, understanding this, the "circumstances" created by
the victim mischaracterize the practice of a non-consensual sexual relationship. Thus, rape is one
of the few, if not unique, crimes in which the victim's behavior has some relevance on the
sentences, and not only the conduct of the rapist. In addition, jurists attach themselves to physical
evidence, which is often extremely inaccurate and irrelevant, instead of considering the victim's
report.
In this case, the perceived "myths" refer to the observance, as a relevant factor for the
accusation or not of rape, of the (a) applicant's clothing, of the (b) testimony of the accused, who
said that she had provocative behaviors, that incited "sexual relationship" (which was, in fact,
rape), of the (c) physical report, that did not show evident signs of violence and, finally, of the
fact that (d) the child did not talk to her parents about what happened, witch was analyzed not as
shame or fear (normal reactions of children and young people), but as the absence of any situation
dangerous enough that deserved parental attention.
In its report, the Court analyzed all the points mentioned above. The Court noted that Article
197 of the Romanian Criminal Code does not require physical resistance on the part of the victim
to configure rape (§63), spoke about the need to understand consent from the victim's report (§65-
69) and the situation of vulnerability in which she was (§70) and also how difficult it may be to
prove the lack of consent in the absence of traces of explicit violence (§72).

3. Read §10-37 on the relevant domestic provisions and case law. Do you consider the
Romanian distinction between ‘sexual intercourse with a minor’ and ‘rape of a
minor’ to be in line with human rights standards on child protection? Explain why.
 Did the European Court sufficiently address this issue in M.G.C. v Romania? (3
Points)

The distinction between "sexual intercourse with a minor" and "rape of a minor" is clearly
not in accordance with the parameters of Human Rights and the protection of the child. To
insinuate that there is the possibility of children having consensual sexual relations is to
misrepresent the concept of maturity and development of people as children. It is to ignore that
children do not have the ability to understand what a sexual relationship is, let alone do it
consensually. To claim under any circumstances that a child could have any share of responsibility
and consensual participation in such a dynamic is to disrespect and ignore reality.
Even though the Court made well-prepared statements about the case, addressing and facing
some of the myths of rape, as stated above, it was not emphatic enough to deal with this
unacceptable distinction between ‘sexual intercourse with a minor’ and ‘rape of a minor’.
Theoretically, it was well explained why talking about "sexual intercourse with a minor" is simply
absurd, due to the lack of the ability of children to express or understand what a consensual sexual
relationship is, but it lacked a harsh position of the Court when denying the simple existence of
this term.

4. Name a notable case from a different jurisdiction which relates to this issue. Are
there any similarities or differences with the approach of the court in M.G.C. v
Romania? (2 Points)

In Brazil, in 2018, the case of Mariana Ferrer and André de Camargo Aranha generated a lot
of repercussion1. According to the victim's reports, the rape would have occurred in a club (Café
de La Musique), where Mariana Ferrer worked. The case gained attention from the reports of the
victim herself on her profile on Instagram, because she disclosed her dissatisfaction with the
posture of the court that alleged insufficient evidence, even though it was proven in medical
exams that there was carnal conjunction (complete or incomplete introduction of the penis in the
vagina), rupture of the hymen and that André's semen was found in the victim's André de Camargo
Aranha was cleared for lack of evidence and, in his statement, the judge understood that the
medical examinations were not concrete evidence of rape (only that there was sexual intercourse)
and also cited issues such as the clothes worn by Mariana and her "provocative" behavior on
social media.
The fact that irrelevant things have been analyzed by the judge demonstrates how present the
myths of rape are in this case. The victim was sequentially held responsible because of the way

1 BRASIL. Estado de Santa Catarina. 3ª Vara Criminal. Case n. 0004733-33.2019.8.24.0023.2020

she dressed, how she presented himself and because she frequented nightclubs. Once again the
victim's behavior was placed as a central issue, and not the behavior of the accused. Unlike the
decision of the European Court of Human Rights, the Brazilian judiciary did not at any time
validate the victim's report and the substantial evidence that existed. In this case, what happened
is similar to the case of the 11-year-old child because the notions of consensus and aspects such
as the applicants' clothes and their alleged behavior were ignored had a greater weight in the
domestic decision.