There is a sense of déjà vu surrounding the 2011 Council of Europe Istanbul Convention and the related public debate in Lithuania. The treaty continues to find itself back on the political agenda and in public discourse, despite the parliament’s decision to put on hold its ratification in 2018.
And yet it is locked in stalemate as the major disagreement over the usage of ‘gender’ in the Istanbul Convention continues. According to Article 3c, ‘gender’ means “socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. Critics contend that the concept is unfamiliar to national law. It is argued that the Convention challenges the binary sex system and paves the way for the recognition of lesbian, gay, bisexual and transgender people.
There was also a legal sufficiency argument deployed by those objecting to the treaty. Lithuania “applies all the main provisions of the fight against violence against women, which the Istanbul Convention seeks to implement”, stated the ruling Lithuanian Farmers and Greens Union party in 2018. Little critical light was cast on this assertion, however. The society has instead immersed itself in the conceptual dispute. A recent episode was an open letter from Ausra Maldeikiene, the European Parliament member, addressed to the Catholic Church. It asks to clarify the theological stance in relation to the Convention, despite the bishops’ expressed opposition a couple of years ago.
Alternative approaches are needed to resolve the impasse. The Istanbul Convention — no matter how comprehensive, far-reaching and therefore appealing it is — should not divert from other strategies that could promote gender equality and tackle gender-based violence. One such strategy could be a reassessment of the legal sufficiency argument and the subsequent legal reform. More specifically, the reform of the 2000 Criminal Code and the sexual assault provisions contained therein.
Relevant Articles 149-153 are ill-suited to serve complainants of sexual violence. They are outdated, convoluted, and effectively place the burden of proof on victims.
Take, for example, the crime of rape. The partial definition contained in Article 149 treats it as “sexual intercourse with a person against their will by using physical violence or threatening the immediate use thereof or by otherwise depriving of a possibility of resistance”.
In truth, many victims do not resist. Neuroscience has shown that in the face of danger, the prefrontal cortex — the part of our brain responsible for rational thinking — is impaired. The defence circuitry takes over, leading the attacked person to retreat to learnt habits and reflexes. Shaped by evolution, this process is automatically activated. According to Jim Hopper, a teaching associate at Harvard University, “despite our dominant role on the planet now, we evolved as prey, and when a lion or tiger is upon us, stopping to think is fatal”.
Alas, the self-protection habits that sexual assault victims draw upon tend to be non-confrontational and ineffective. As Jim Hopper further suggests,
“What if you’re a woman and the only habits your brain cues up are those you’ve always relied upon to ward off unwanted sexual advances — like saying, “I have to go home now” or “Your girlfriend will find out”? Those phrases, and passive behaviours that go with them, may be your only responses, until it’s too late”.
If the defence circuitry determines the situation to be inescapable, it can trigger survival reflexes. These can range from partial or total immobility to difficulty speaking, dissociation, or even losing consciousness. Neurological responses seem counterintuitive, but learning about them is crucial to understand why many victims will submit to sexual attack. Their ability to resist should never, ever be assumed.
The legal premise about physical force warrants a revision, too. As Stephen J. Schulhofer, a criminal justice scholar, puts it, “force runs on a continuum — the knife at your throat, <…> the threat to take away your job or your children, the need to placate a thesis supervisor — all these things can lead a person to tolerate and submit to unwanted sexual advances”. Article 151 acknowledges that mental coercion or person’s dependency could be used in compelling individuals to have sexual intercourse; nevertheless, it is attributed to the lesser offence of sexual abuse. The latter carries a maximum sentence of three years, as opposed to seven years for rape. Ultimately, the form of violence used — be it physical, psychological or financial — should not be considered relevant. It is solely a means for coercive sexual behaviour.
It is high time to change the lens through which sexual offences are viewed. Unwanted bodily invasion is an act of wrongdoing — labelling it as such should not be dependent on whether or not a victim resisted, or what type of accompanying violence they had to endure. Instead, the focus should be placed on the victim’s consent as a voluntary agreement and the steps taken by the defendant to establish it.
For staunch proponents of the Istanbul Convention, the legal reform could offer a happy medium. Described by the United Nations as a ‘gold standard’, it recognises different forms of violence, including psychological (Article 33) and physical (Article 35). Its definition of rape is consent-based (Article 36). It may not yet be possible to align Lithuanian laws with the letter of the Istanbul Convention. But it does not mean that its spirit could not be followed.
As the aforementioned Catholic Church’s engagement shows, the echoes of religious — and political — actors can be louder than the voices of those subjected to gender-based violence. Women’s rights advocates have to attest to this reality. For many, the Istanbul Convention is too controversial.
Nonetheless, the backlash should not place an insurmountable constraint upon the activist imagination. Women’s and human rights defenders could redirect their energy towards the mobilisation of civil society, the initiation of legislative and educational campaigns, and lobbying. Criminal justice reform is a specific alternative that could be explored. Yet it is important to acknowledge — particularly in the current polarised context — that ways to strive for gender equality and improve victims’ lives are countless.