Radical feminism, prima facie wrongdoing, and the council of Europe: tackling rape before the European court of human rights

Abstract

This paper is centred around the link between human rights and the crime of rape. The European Court of Human Rights is the final interpreter of the European Convention on Human Rights, and increasingly the Court is hearing more cases regarding sexual assault. Article 3, the prohibition of torture or degrading or inhuman treatment, and Article 8, the right to private and family life, have been reinterpreted recently to directly apply to sexual assault cases where the state has failed to effectively prosecute the crime. This paper, through a case study of E.B. v Romania, will analyse how the Court has reinterpreted the Convention to protect survivors of sexual assault by evaluating its triumphs as well as its failures. Secondly, I argue that the study of consent theory can be a very valuable tool for understanding how rape laws should be constructed and interpreted for the better. I demonstrate this by looking primarily at two consent theories. First, Catherine MacKinnon’s radical feminist theory on consent and coercion, and secondly, Jonathan Herring and Michelle Madden Dempsey’s theory on sexual penetration as prima facie wrong. Using these theories as a starting point, I analyse E.B. v Romania in light of the MacKinnon and the Herring/Dempsey theories in order to demonstrate how these theories can function in practice. Finally, I argue that some elements of these theories may indeed be incorporated by the Court in order to further ensure state accountability on the issue of rape and to promote better prosecutions across Europe.