Hence, he considers that the judges raised, based on the SMS exchanged by the teenager with members of the group with which she had gone out on the night in question, the possibility that she had started by not wanting sexual intercourse, refusing it and saying no (as she maintains in these messages, when she had not yet filed a complaint and asserted that she did not intend to do so) but “that later, faced with the insistence of the Defendant and the environment created, she agreed and wanted it.”
This demonstrates, continues this doctorate in Psychology, that it is a ruling “based on a notion of constraint [o constrangimento que no artigo 164º do Código Penal, que define violação, determina a existência do crime] as domination by force, and not as forcing, by any means — which is what is in the Penal Code — someone, against their will, to suffer penetration. It is a completely obsolete reading of the notion of constraint, which ignores the victim’s will, a will that is at the heart of the change in the criminal type of rape that was made in 2015 and 2019. It is very frustrating that we have to keep repeating that victims of sexual crimes often freeze, not reacting out of fear — especially because women’s first reaction device is not hostile.”
The expression “knowable will” was added in 2019 to article 164 to make it clear that rape does not only occur when the victim is forced into penetration through “violence, serious threat, or after, for that purpose, they have rendered them unconscious or made it impossible to resist”; It is also a violation when the constraint to the sexual acts described occurs, says the Penal Code, “against the knowable will of the victim”, by “any means” other than those.
“This ruling dates back to 1999”
“Retrocesso” is the word used by penalist Helena Morão. “This ruling is a huge setback.”
For this professor at the Faculty of Law of the University of Lisbon, “the decision is fundamentally criticizable for three reasons”, which she explains.
“First of all because The core of the critical assessment of the evidence is to explore the contradictions in the testimony of the victim, not the perpetrator. There is clearly an unequal valuation of the statements, because his statements are practically not subject to scrutiny, what is subject to scrutiny are her statements. And — this is the second reason why the ruling is criticizable — they are subject to scrutiny that completely ignores everything we know today about victims of sexual crimes. They explore the contradictions of an extremely young person, who was drunk and therefore with a relative inability to defend himself, as if he were an adult, not drunk, and as if he were not a victim of a sexual crime.”
Because, says the lawyer, “it is normal for victims of sexual crimes to be ashamed, to try to hide it, it is normal for them not to immediately assume that they are victims, it is normal for them not to even understand the current context of the crime of rape. Therefore, all the reactions they have are normal for victims of sexual crimes.”
(The same opinion, it should be noted, was held by the Lisbon Court of Appeal when in June 2024 it ruled on the coercive measure of preventive detention that was applied to the defendant (which it maintained), drawing attention to the fact that there are no “perfect victims”, and considering that “it is very clear that the offended party herself blamed herself for the fact that the defendant did not know how to control his impulses in the face of her refusal, as if it were not legitimate for her not to want have copulation with him.”)