On 24 April, 2025, the European Court of Human Rights ordered France to pay compensation to three applicants on the grounds that it had failed to effectively protect them against sexual abuse when they were minors.

The European Court of Human Rights (the Court), in its judgment of 24 April 2025 (Applications nos. 46949/21, 24989/22  and 39759/22), unanimously ordered France to compensate three applicants for failure to fulfil positive obligations to effectively apply a criminal justice system capable of punishing non-consensual sexual acts by minors, taking into account the legal framework then applicable, and its application to the present cases. This was pursuant to Articles 3 (prohibition of torture and inhuman or degrading treatment), Article 8 (respect for private and family life) and, moreover, in one of them (no. 46949/21), Article 14 (prohibition of discrimination) of the European Convention on Human Rights (Convention).

The Court thus partially upheld the three applications of 17 September 2021, 12 May 2022, and 6 August 2022, denouncing French law and practice which had neither provided the applicants with effective protection against rape, nor adequately taken into account their status as minors and their vulnerable situation at the time of the events, nor (for the first and third applicants) promptly fulfilled their obligation to investigate and punish the perpetrators of the reported offences, and had, moreover, exposed the first applicant to secondary victimization and discriminatory treatment.

The ECHR reiterated that even if, in practice, it may prove difficult to prove the absence of consent without “direct” evidence of rape (traces of violence; direct witnesses), the authorities must examine all the facts and rule after assessing all the circumstances, because the investigation and its conclusions must focus primarily on the issue of lack of consent. The successive increases in statutes of limitations and other sliding statutes of limitations require, in any case, an increasingly “indirect” approach to the law of evidence [197]. This challenge is all the greater given that the principles of the presumption of innocence and respect for the adversarial process necessarily remain.

It should be noted that the new definition of rape resulting from the law of April 21, 2024, which gave rise to the new Article 222-23-1 of France’s Criminal Code, which establishes a threshold of non-consent and criminalizes any act of sexual penetration or any oral-genital act occurring between a minor under the age of 15 and an adult, would have justified a conviction in two of the three proceedings submitted to the ECHR.

The ECHR noted that criminal proceedings relating to sexual offenses are often experienced as an ordeal by the victim. It recommended conducting the proceedings in a way that preserves the image, dignity, and privacy of alleged victims of sexual violence, including through the non-disclosure of information and personal data unrelated to the facts.

But can requests for documents, pleadings, and written submissions by the defense be limited based on these criteria?

The ECHR considered it essential that domestic authorities avoid “reproducing sexist stereotypes in court decisions, minimizing gender-based violence, and exposing women to secondary victimization by using guilt-inducing and moralizing language likely to discourage victims’ confidence in the justice system,” especially when the victims are minors [200].

The ECHR emphasized, in light of developments “in the understanding of how rape is experienced, particularly by minor girls,” [202] that they often offer no physical resistance due to various psychological factors or because they fear violence from the perpetrator.

The Court therefore considered that in this case:

• Certain questions relating to the victim’s behavior at the time of the incident can no longer be asked (Application no. 46949/21), and therefore characterizes them as “gender stereotypes that instill guilt and are likely to discredit the applicant’s testimony” [226].
• Certain grounds relating to the characterization of consent, which are based “primarily on her passive behavior and lack of physical opposition without duly taking into account either her particular vulnerability or her psychological state, contrary to current knowledge regarding the behavior of rape victims, particularly when they are young,” are not relevant (Application no. 39759/22) [243].

Additionally, the Court found discrimination based on sex with respect to the concluding grounds of the judgment of the investigating chamber of 12 November 2020, which describe the facts complained of by the applicant in a caricatured and pejorative manner, referring to the “usual success with the female sex [of the firefighters] and [their] sometimes unbridled behavior towards them,” which did not “encourage them to reflect” [31]. The Court noted that these statements were “completely irrelevant,” “ineffective,” “an attack on the applicant’s dignity,” and therefore discriminatory [228].

By noting that the Court of Cassation did not rule on this point despite the invocation before it of Articles 3, 8, and 14 of the Convention and the Istanbul Convention, it may be argued that the ECHR is suggesting a new ground for appeal through a review of the “relevance” or even the “dignity” of the lower court’s reasoning.

This condemnation of France under the heading of secondary victimization should oblige it to protect itself against such attacks and, at the very least, to integrate this notion into its liability for defective functioning of the public justice service based on Article L. 141-1 of the Code of Judicial Organization.