C. v. Romania: A ‘Sensitive and Reverent’ But Gender-Blind Standard for Assessment of Sexual Harassment Cases? The ECtHR’s Long and Winding Road to Gender-Responsiveness in Sexual Predation Contexts

[Margarita S. Ilieva is an international human rights litigator, providing analysis and capacity building for institutions including the EU Fundamental Rights Agency, OSCE, the Academy of European Law, Equinet, and others.]

In C. v. Romania (30.08.2022), the Court examined the authorities’ response to a sexual harassment at work complaint. It deemed the response ‘insensitive and irreverent’, and otherwise flawed, and declared a procedural violation of Article 8 (right to private life). Yet, the Court avoided addressing the gender inequality inherent in the justice system’s revictimisation of the survivor – it declined applying Article 14 (the ban on discrimination). The judgment marks headway on the Court’s tortuous path to acknowledging women sexual abuse survivors’ unequal access to justice. By analyzing both the Court’s headway and its stalling in this regard, this post attempts to reconcile the Court’s declared values of sensitivity to gender-based abuse and its own lack of (adequate) gender awareness.

Facts

For two years, C. was sexually harassed by a manager. She complained to the employer, a State-owned company, which did nothing to address the issue, unexpectedly confronted her with the abuser, and later forced her to resign. C. reported the harassment to the police. An investigation confirmed the acts, yet a prosecutor held they weren’t criminal as C. wasn’t humiliated (occasionally, she’d been ‘cheerful’). Adducing no reasons, the authorities confronted C. with the supervisor who’d dismissed her complaint. In their decision, a prosecutor reproduced in detail the perpetrator’s insinuations about her private life. The courts upheld that.  

Judgment

The Court noted the employer was a public authority, which refused to look into the case. C. was merely referred to the police after being confronted with the alleged harasser without warning. No internal inquiry took place. This, in itself, possibly infringed Article 8. (§68-71)

Focusing on the criminal proceedings, the Court found the authorities’ decisions weren’t reasoned, and their conclusions were unexplained. C.’s statements weren’t treated as evidence or contextualized. (§79) Her hierarchical relationship with the alleged abuser, and his alleged threats against her weren’t considered. (§80) No psychological assessment was performed to evidence the acts’ impact on her. (§82) Another concern was the prosecutor’s unwarranted extensive repetition of aspersions the alleged perpetrator cast on C. It was ‘insensitive and irreverent’ towards C., ‘stigmatised her’, and possibly infringed Article 8. (§83) C.’s unexplained confrontation with the dismissive supervisor was unnecessary.(§84) The authorities denied her protection from secondary victimisation (international victim rights law was invoked). (§85) They didn’t consider C.’s forced job loss resulting from the harassment after the employer had been alerted. (§86) These significant procedural flaws amounted to a breach of Romania’s positive duties under Article 8 to protect the victim’s private life from others. (§87) Article 14 was unnecessary to apply as C. “did not provide any material to allow the Court to assess the existence of potential discrimination”. (§90)

Headway

1. The Court treated the apparent lack of employer-level mechanisms to deal with sexual harassment as a liability under Article 8. It referenced Directive 2006/54/EC requiring prevention and redress of harassment, and a 2017 European Parliament Resolutionacknowledging it as a health and safety issue. (§71)

2. Criticizing the authorities’ disregard for C.’s submissions’ evidentiary value, the Court acknowledged, for the first time, that sexual harassment ‘continue[s] to be significantly underreported and ‘difficult for victims to prove’. (§79) It cited its Opuz v. Turkey acknowledgment of domestic violence as a grave general problem, which doesn‘t always surface. (Opuz, §132) This can be construed as the Court intimating that sexual harassment is a systemic issue as well, insufficiently documented by justice systems, its victims’ access to justice impeded. The Court implied contextualization of sexual harassment complaints, especially in terms of power imbalances, is required to address this. It referenced international law requirements to ‘effectively punish perpetrators and thus put an end to impunity’. (§85)

3. Exposing the prosecutor’s unjustifiable stigmatization of C. through detailing the abuser’s accusations as ‘insensitive and irreverent’ towards her, the Court implicitly introduced a commendable ‘sensitive and reverent’ standard for official responses to such cases. This is unprecedented, implementing a victim-centred, victim-responsive approach. The Court implied a departure from this standard violates Article 8.  

4. The Court held the “necessity of a confrontation must be carefully weighed […] and the victim’s dignity and sensitivity must be considered and protected.” (§84) In Y. v. Slovenia, it recognized that proceedings concerning sexual violence, especially confrontation with defendants, are an ordeal for victims. Therefore, victim-protective measures were allowed, if reconcilable with defence rights. (§103) In C.’s case, the Court developed this, effectively requiring protective measures, and confrontations to be avoided unless demonstrably necessary.  

5. The Court effectively acknowledged C.’s forced resignation as an element of the harassment, implying authorities should take such outcomes into account. (§86)

Evasions

1. The Court extensively reasoned why the harassment reached the threshold of Article 8 applicability, which the Government didn’t dispute. (§50-54) Yet, international law recognises sexual harassment as a serious breach of human rights. The European Parliament (cited) defines it as ‘a form of violence against women and girls’, ‘the most extreme form of gender-based discrimination’, ‘a matter of health and safety’. It holds that ‘all forms’ of sexual harassment ‘constitute a systemic violation of fundamental rights and a serious crime’. An ILO Convention recognises that ‘harassment in the world of work affects a person’s psychological, physical and sexual health, dignity, and family and social environment’. The Court ignored these standards regarding the acts’ severity, noting instead that not every act affecting moral integrity is adverse enough for Article 8. Indeed, CEDAW has held on gender-based violence, including sexual harassment (2017): ‘[A] gender-sensitive approach is required to understand the level of pain and suffering experienced by women.’ It’s unjustified to trivialize sexual harassment by implying some of it isn’t Convention materiae.  

2. The Court didn’t consider a negative breach of Article 8 duties. It held the prosecutor’s stigmatization of C. ‘may be seen as an infringement’, yet didn’t analyse or declare one. It referred to Sanchez Cardenas v. Norway, in which it’d held a ruling stigmatized an alleged child sexual abuser. Firstly, the analogy is inappropriate as stigmatization of C., a victim, constitutes revictimisation, which doesn’t apply to an alleged abuser. Secondly, in Sanchez Cardenas, the Court treated the alleged abuser with more consideration by scrutinizing his stigmatization as an interference, analyzing its justifiability, finding it unnecessary. C. benefitted from no such examination. Her experience of unwanted sexual acts that were established (only their impact on her was denied) was accorded a ‘may be’ holding.

3. The Court didn’t consider a negative duty breach regarding C.’s exposure to revictimisation in the proceedings. Yet, officials needlessly confronted her with the dismissive supervisor, not private parties. Officials revictimised her.

4. The Court didn’t examine the harassment itself, including the retaliatory forced resignation, and the lack of employer-level response to C.’s complaint as a negative duty breach. Yet, it determined the employer whose staff performed those acts was a public authority. The Court ruled this authority’s refusal to address the case ‘may run counter’ to Article 8 but avoided declaring a violation.

5. The Court didn’t consider the authorities’ flawed actions as possible discrimination, refusing to apply Article 14. It implied C. had a burden of proof for applicability purposes. She failed to meet that, not providing ‘any material to allow the Court to assess the existence of potential discrimination’. (§90) A woman sexual harassment survivor stigmatized and revictimised by the justice system shouldn’t have to adduce further proof for Article 14 to apply. International law defines sexual harassment as discrimination, a form of gender-based violence constituting discrimination (CEDAW 1992, CEDAW 2017, Directive 2002/73, Directive 2006/54/EC, Directive 2012/29/EU, ILO Convention). Harassment is gendered: over one in four women (28%) suffered harassment in the year before the survey. (FRA 2021) Sexual harassment of women is pervasive, every second woman (55%, 102 million) in the EU having experienced it, one in five women (21%, 39 million) in the year before the survey. A colleague, boss or customer victimized 32%. (FRA 2014) ILO recognises ‘harassment disproportionately affects women and girls’ and ‘a gender-responsive approach, which tackles […] gender stereotypes […] and unequal gender-based power relations, is essential to ending harassment’. It requires States to secure gender-responsive complaint mechanisms for victims of gender-based harassment, including sexual harassment (Art. 10.e).

How Gender-Responsive is Article 14 as Applied by the Court in such Cases?

The Court didn’t name the negative gender stereotyping inherent in the authorities’ denial of C.’s humiliation. Being sometimes ‘cheerful’, she wasn’t an ‘ideal victim’ acting as a harassed woman is expected to. Accordingly, her victimhood was unacknowledged. ‘Often judges adopt rigid standards about what they consider to be appropriate behavior for women and penalize those who do not conform to these stereotypes.’ (CEDAW 2015) Justice system stereotyping and stigmatization of women claiming rights are discriminatory barriers to access to justice. (Id.) So are procedures excluding or according inferior status to women’s testimony. (Id.) The Court noted C.’s testimony wasn’t treated as evidence, and she was stigmatised. (The prosecutor covertly victim-blamed her, using the abuser’s accusatory language against her.) The Court didn’t recognise the impact of this on C.’s equality before the law.

This gender-blindness in sexual abuse cases is an issue of the case law. The Court didn’t apply Article 14 to the previous cases, in which it considered the revictimization of women and girls surviving sexual violence (discussed here). In N.Ç. c. Turquie, it found a vulnerable child, multiple rapes survivor, had suffered severe revictimization breaching Article 3 (ban on torture and inhuman or degrading treatment). Yet, her discrimination claim was ‘manifestly ill-founded’. In sexual abuse cases, the Court hasn’t discussed the shifting burden of proof. ILO recommends this in gender-based harassment cases, including sexual harassment, as part of the gender-responsiveness required under Convention Art. 10.e., EU law requires the burden of proof to shift in all discrimination cases, including sexual harassment. In C.’s case, the Court acknowledged obiter that proving harassment is difficult for victims, yet expected direct proof from C. just to apply Article 14 to her established revictimisation, never mentioning possible inferences.

Not recognizing that sexual abuse survivors’ revictimisation by justice systems is as much about discrimination as is violence against women itself is a far cry from gender sensitivity. The Court may be seen as (pacing itself) getting there.