M.C. v. BULGARIA JUDGMENT
21
the victim had been threatened with violence or other consequences. In three
cases the victim had committed or attempted to commit suicide as a result.
(vi) The research had produced only two cases in which a more
context-sensitive approach could be noted. In one case a teacher, having
attempted flirting, forced his student to have sex with him repeatedly over a
certain period of time by threatening her with negative consequences at
school and with violence. The Supreme Court found that there had been
repeated acts of rape committed through the use of threats and
acknowledged that the victim had gradually been put into a state of a
psychological dependence. In another case, a 14-year-old girl who suffered
from epilepsy and was mentally retarded had been raped by an acquaintance
of the family; the courts noted that the girl had offered weak resistance (she
had tried to get up after being pushed down on the floor by the perpetrator)
but concluded that that “level of resistance”, seen in the context of the girl's
age and health, had been “sufficient to demonstrate her unwillingness to
have sex”.
114. The applicant submitted a copy of a letter by a Bulgarian
psychotherapist working with victims of sexual violence, who stated that in
her experience the prosecuting authorities brought charges only in cases
where the attacker was a stranger to the victim, where there were serious
injuries or where there were witnesses. In the applicant's view, that
confirmed her allegation that the predominant tendency in practice was to
infer consent from insufficient proof of physical resistance.
115. She further stated that, by setting at 14 the age of consent for sexual
intercourse and at the same time limiting the prosecution of rape to cases of
violent resistance by the victim, the authorities had left children
insufficiently protected against rape.
116. The applicant submitted that, in her case, the prosecutors had put
undue emphasis on the absence of physical violence and had not taken into
account the fact that, at the age of 14, she had never taken important
decisions herself, particularly under the pressure of time. The prosecutors
had failed to have regard to the unlikelihood of a 14-year-old girl who had
never had sexual intercourse consenting to sex with two men in a row.
117. Furthermore, the investigation had not been thorough and complete.
The crucial issue of the timing of all the moves of the three men and the
applicant during the night in question – which could have shown that there
had been no visit to a restaurant after the rape at the reservoir – had not been
investigated. Contradictions in the evidence had been disregarded. The
police patrol who had stopped the group on their way to the reservoir had
not been identified. The investigator had accredited the testimony of the
alleged perpetrators and of witnesses called by them and had at the same
time disbelieved or ignored the testimony of other witnesses and the
applicant's account of the events.