“They never talk about a victim’s feelings: according to criminal law, feelings are not facts”—Portuguese judicial narratives about sex crimes

Abstract

Sexual violence is a central dimension of what is generally called violence against women. Historically, the law has been one of the structures that has reinforced gender inequality and legitimized male seizure of women's sexuality within and outside marriage: legally, married women had no right to sexual freedom regarding their husbands and, at the same time, non-wed women who pressed charges against white men were accused of lying and faced victim-blaming judicial practices. Since the beginning of the 1990s, Portuguese rape legislation has changed in order to recognize that sex crimes offend someone's right to sexual self-determination. The Criminal Code has abandoned expressions like modesty and decency when referring to sex crimes, and a controversial mitigating penalty norm based on a victim's provocative behaviour or on the relation between the accused and the plaintiff was repealed in 1995. In addition, criminal law has evolved to a gender-neutral formulation and expanded the definition of rape adopting the "all penetration" formula. Nevertheless, the discourses of Portuguese jurisprudence and doctrine reveal stereotyped images about rape victims' behaviour and biased evaluations against women. Therefore, the 'law in books' must be analysed in its relation with 'law in action', which is unescapably influenced by doctrine and by magistrates' individual beliefs. This paper aims to capture judicial representations of rape, rape victims and offenders. Qualitative data are used based on 20 semi-structured interviews with 18 judges and prosecutors and two attorneys. The interviews were analysed through critical discourse analysis using a feminist approach. This article is published as part of a collection on gender studies.

‘It doesn’t meet the requirements of violence or intimidation’. A discursive study of judgments of sexual abuse

“…She is merely an inactive body, specific parts of a body, legs pulled out of a car: «taking her legs out of the seat» (sacándolas [las piernas] fuera del asiento), and a name, «Rocío». As Ventura (2016) states, «victims are reduced to parts touched by the other» (p. 7), thus, they are objectified (Smart, 1990;Ventura, 2016). This objectification can be observed in the other judgments analysed, such as case 2: «he carried out touching of Teresa's breasts and vagina, and introduced his penis into her vagina» (llevó a cabo tocamientos sobre los pechos y la vagina de Teresa, e introdujo su pene en la vagina), case 3: «he tried to touch her breasts» (intentó tocarle los pechos), and case 4: «the victim stated that when he was in the vehicle, the defendant began to touch her breasts and remove her clothes» (la víctima manifestó cómo cuando se encontraba en el vehículo, el acusado, comenzó a tocarle los pechos y a quitarle la ropa), where the survivors are merely parts of their body, mainly breasts, vaginas and legs.…”

“…Feelings may not be facts, but they represent the impact of the violence and intimidation upon the survivor. Ventura (2016) points out that «rape victims speak about their emotional state, which is juridical irrelevant since is not regarded an objective evidence of the crime» (p. 6); however, in a rape case it is contradictory, because feelings are a way of measuring an intimidating situation. And it can determine whether or not the crime is interpreted as sexual assault rather than sexual abuse (as it has been understood due to the so-called lack of violence and intimidation).…”

The Affirmative “Yes”. Sexual Offense Based on Consent

“…According to Ventura's research, victims' feelings are not contemplated by law. Criminal laws do not consider feelings because they are not facts (Ventura, 2017). However, sexual violence has serious consequences for victims and for society.…”