Lithuania’s criminal code on sexual violence is seriously outdated. Despite the stalling implementation of the Istanbul Convention, more can be done to protect women in the country, writes Laura Nacyte from Rape Crisis Scotland, the national office for the rape crisis movement.
There is a sense of déjà vu surrounding the Council of Europe's Convention for fighting gender-based violence – known as the Istanbul Convention – and the related public debate in Lithuania. Despite the parliament’s decision to put on hold its ratification in 2018, members of parliament and civil society continue to advocate for the adoption of the treaty.
The stalemate centres around the term ‘gender’ which the Istanbul Convention defines as “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 and inisist that the treaty may lead to the introduction of same-sex marriage.
Read more: Why fighting domestic violence is still contentious in Central and Eastern Europe?
The ruling Lithuanian Farmers and Greens Union (LVŽS) party had also previously stated that Lithuania “applies all the main provisions of the fight against violence against women, which the Istanbul Convention seeks to implement”.
However, the reality differs.
Recently, Aušra Maldeikienė, a member of the European Parliament, sent an open letter to the Catholic Church, asking to clarify the theological stance in relation to the Convention — despite the bishops’ expressed opposition a couple of years ago.
Alternative strategies are needed to resolve the impasse. The Istanbul Convention – no matter how comprehensive, far-reaching and therefore appealing it is – should not divert us from other strategies that could promote gender equality and tackle gender-based violence.
"The relevant Criminal Code provisions are ill-suited to serve complainants of sexual violence."
One such strategy could be to reassess the LVŽS’s argument of legal sufficiency and argue for a legal reform. More specifically, a reform of the Lithuanian Criminal Code and its provisions on sexual assault.
The relevant Criminal Code provisions are ill-suited to serve complainants of sexual violence. They are outdated, convoluted, and effectively place the burden of proof on victims.
For example, the crime of rape is defined 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 the brain responsible for rational thinking — is impaired. The defence circuitry takes over, making the person under attack to retreat to learnt habits and reflexes.
Read more: Domestic violence second most common crime in Lithuania
Shaped by evolution, this process is activated automatically. 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”.
"Lithuanian criminal law acknowledges that mental coercion or a person’s dependency could be used to compel individuals to have sexual intercourse; nevertheless, such cases are treated as the lesser offence of sexual abuse."
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 decides 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 premise in the law about physical force warrants a revision, too.
Stephen J. Schulhofer, a criminal justice scholar, explains: “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.”
Lithuanian criminal law acknowledges that mental coercion or a person’s dependency could be used to compel individuals to have sexual intercourse; nevertheless, such cases are treated as the lesser offence of sexual abuse.
Read more: Domestic killings double in Lithuania during quarantine
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 we change the lens through which we view sexual offences. Unwanted bodily invasion is an act of wrongdoing – labelling it as such should not be subject to whether or not the victim resisted, or what type of accompanying violence they had to endure. Instead, the focus should be 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 ground. Described by the United Nations as a "gold standard”, it recognises different forms of violence, including psychological and physical, while its definition of rape is consent-based.
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.
Read more: Women's rights march in Kaunas demands action on gender violence
As the open letter to the Catholic Church mentioned above 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.
Nonetheless, the backlash against the Istanbul Convention should not place an insurmountable constraint on activists' imagination. The ways to strive for gender equality and improve victims’ lives are countless — the criminal justice reform is one of many alternatives that could provide renewed impetus for mobilising civil society, launching public awareness campaigns and lobbying.
It offers an opportunity to critically evaluate the dynamics of sexual violence and abandon assumptions about victims' behaviour that do not withstand scientific and ethical scrutiny.
Laura Nacyte holds an MSc in Global Security from the University of Glasgow. She has been actively involved in the third sector, focusing on gender equality and social justice issues. She has participated in the Standing Safe Campaign, My Body Back Cervical Screening Clinic, and Glasgow & Clyde Rape Crisis. She is currently based at Rape Crisis Scotland.
The views expressed in this article are the author's own and do not necessarily reflect those of LRT.
Newsletter
Every Friday morning.
