by Ayla Duygu Nasuhoğlu*
Violence against women is a pervasive public health problem. And also violence against women is gender-based (Buğa, 2021). Gender-based violence is defined in the Istanbul Convention as “violence that is directed against a woman because she is a woman or that affects women disproportionately” (Art. 3). The CEDAW Committee defines it as “a form of discrimination that seriously impairs or denies women’s ability to enjoy rights and freedoms on a basis of equality with men” (General Recommendation No. 19, Art. 1). The European Court of Human Rights (ECtHR) ruled that inaction in cases of violence against women constitutes gender discrimination (Council of Europe, 2022) and found that “the general and discriminatory inaction/passivity in the judiciary creates an environment that encourages domestic violence” (Opuz v. Türkiye, para. 198).
A woman who has already been subjected to violence should not be seen as successful simply for reaching justice after a potentially revictimizing legal process, or for surviving a divorce or separation. Laws, no matter how ideal or near-ideal, cannot be successful in preventing crime and ensuring criminal justice unless they are implemented and accepted by the public. The established case law of ECtHR supports this view (Opuz v. Türkiye, para. 192; Halime Kılıç v. Türkiye, para. 115). The EU Directive 2024/1385 on combating violence against women and domestic violence is particularly importantdue to the new crimes it defines and the clear stance it takes. As stated in the EU Directive, victims of violence against women and domestic violence should not be subjected to secondary victimization when reporting crimes and providing evidence. Failure to do so may constitute a violation of the non-discrimination principle. As emphasized in the Opuz v. Turkey application, “the general and discriminatory inaction/passivity in the judiciary creates an environment that encourages domestic violence” (para. 198).
In patriarchal societies, dominance is established by controlling female sexuality. This domination is built on the woman’s body, reproductive rights and freedoms, sexual inviolability, and sexual freedom. This is why, in our previous study (Nasuhoğlu, 2024), we found that when examining judicial cases where victims were judged on their past, alcohol consumption, and lifestyle, and experienced secondary victimization. In many decisions, contrary to legal regulations, it has been observed that physical violence was sought, and victims were expected to scream and resist physically. The ECtHR held in M.C. v. Bulgaria that the imposition of a requirement of physical force or resistance as an element of the crime of sexual assault constituted a breach of the state’s positive obligations and was incompatible with the evolving standards of human rights (para. 166). The Turkish Penal Code does not impose any obligation for victim to resist, and it is assumed that there is no consent in all cases where positive consent has not been explicitly expressed (Erbaş, 2022). The crime of sexual assault is based on the absence of the victim’s consent (Taner, 2015), which can be considered as a novelty of the Penal Code of 2005. Indeed, attitudes must change before laws and practices can be effective. The fight against violence against women should not be seen as a favor granted to women or a matter of “mercy” (Ertürk, 2022).
The EU Directive is particularly important in terms of addressing secondary victimization in sexual assaults. The Directive addresses the impact of rape myths on the assessment of the victim’s credibility and consent in sexual assault cases. According to rape myths, the “real rape” is one where the victim screams, calls for help, and resists the attacker, leading to more physical injuries. The perpetrator is usually a stranger and the attack occurs in a secluded public place (Gray & Horvath, 2018). Common rape myths rationalize the perpetrator and blame victims. As such, there is a prejudice against women who have had premarital sexual experiences, who drink alcohol, who are out late at night, who go home with a man, or who dress more revealingly than society deems appropriate. What I have listed are the components of the stereotypical victim. The use of the victim’s sexual history, sexual orientation, or clothing on the day of the incident as evidence is considered harmful and can reinforce stereotypes. The EU Directive states that evidence relating to a victim’s past sexual behavior or private life is admissible only if it is relevant and necessary to the proceedings (Art. 20). Therefore, the EU Directive represents a significant step forward in challenging sexual assault myths and promoting a shift in these harmful attitudes.
In essence, the starting point and roadmap for the fight against gender-based violence is found in the introductory part of the Istanbul Convention. According to this, it is necessary to be aware of the causes of violence against women, the historical process from which it originates, the obstacles encountered in combating violence, and the power imbalances. The key to protecting women from violence should not be to reduce them to a constantly vulnerable status. For gender equality to be achieved, women must be able to be “subjects before the law” (Butler, 2023). On the contrary, in societies where gender equality cannot be achieved, women are perceived as objects, and “if an object desires to be objectified, it is allowed to desire”(MacKinnon, 2020). Without eliminating the domination built on the female body, it will not be possible to apply contemporary laws in accordance with the standards of the age.
*PhD Student, Istanbul University – Cerrahpaşa, Lawyer, The Istanbul Bar Association
