Maria Leonor Cano Crespo Dargent, University of Lisbon

A pregnant woman was seeing a psychiatrist in order to cure her depression. In one of the psychiatrist appointments, while the woman was 8 months pregnant, after prescribing her some medicine, the psychiatrist, suddenly, put his penis into her mouth while pulling her head. The woman tried to leave the psychiatrist’s office, but before she got to the door, he pushed her against the sofa, making her lean with her abdomen towards the sofa, undressed her maternity pants, and penetrated her from behind.

This was enough for the Court of First Instance to convict the psychiatrist for the crime of rape, according to art. 164º of the Portuguese Criminal Code. He was sentenced to 5 years of suspended sentence, and to pay the victim 30.000€ for moral damages.

The Public Prosecution Office, the victim (the pregnant woman), and the defendant (the psychiatrist) all appealed the judgement– the Public Prosecution Office and the victim asking for actual imprisonment, and the defendant claiming that there were no grounds to consider this a rape case, and that some of the facts were wrong. The facts changed, but the ones exposed on the first paragraph of this post were all still deemed to be established. The Court of Appeal ruled in favour of the defendant, stating that there were no grounds to conclude that the defendant had forced the victim to have intercourse, as there were no elements of violence, and hence art. 164º could never apply. The defendant was acquitted.

This judgement would be shocking in developing countries, where women are not awarded proper judicial protection, or decades ago, when todays’ notions of gender equality were nothing but a dream, but it’s even more shocking knowing that it happened in Portugal, an allegedly developed country, in 2011, less than 10 years ago.

Before 2015, article 164º.2 read “Who, through means not contemplated in the previous number and abusing the authority resulting from a familiar or guardianship relationship, or hierarchic, economic or work dependence, or taking advantage of a fear caused by them, forces someone to: (…)”[1], and it was altered to match the definition of rape in the Istanbul Convention, which Portugal ratified in 2013, and which considered in its article 36.1 that engaging in any non-consensual sexual acts should be criminalised, defining the grounds for valid consent in article 36.2, which states that “Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstance”. Yet, article 164 of the Portuguese Criminal Code often remains a matter for discussion among specialists and scholars in Portugal, as this change in the text of article 164º doesn’t seem to carry a change in the meaning of the article for some authors.

Cláudia Amorim, a member of the Commission on Domestic Violence of the Portuguese Bar Association, claims that “If someone has sexual intercourse against their will, it’s rape. The law was changed in 2015 (…). The goal of this change was precisely to show that non-consensual sexual intercourse is a crime.”. Maria Fernanda Palma and Teresa Quintela de Brito, two of the most important authors in Portuguese Criminal Law, support this position.

However, the Secretary General of the Portuguese Judges Trade Union, Carla Oliveira, while agreeing that the legal definition of rape doesn’t match the social definition of rape, claims that legally “when violence is not proven, the crime of rape can’t be considered”. Jorge de Figueiredo Dias, one of the most important authors of Portuguese Criminal Law, agrees, going as far as writing that “The perpetrator acts without guilt, firmly believing that the victim’s objection to his actions isn’t serious, when the victim expresses himself with words and not with physical resistance”. This position is mostly supported by older and conservative authors. Nevertheless, Amnesty International[2] and the United Nations Committee on the Elimination of Discrimination against Women[3] both issued reports which stated that the Portuguese Criminal Code doesn’t contemplate all non-consensual sexual intercourse as a crime.

While in Portugal the most commonly socially accepted definition for rape is sexual intercourse without consent, the law seems to require the existence of violence, in a way that the victim is coerced and truly has no other possibility but to endure the rape, according to specialists and authors like Carla Oliveira and Jorge de Figueiredo Dias. This contemplates most of the rape cases, but, clearly, not all of them. Rape is a crime that happens in very diverse contexts – sometimes, in the context of a romantic relationship, for example – and this violence is often extremely hard to prove. Moreover, all victims react differently, and some may be unable to react or to defend themselves, requiring the rapist to use little to no violence, as seems to be the case of the pregnant woman and the psychiatrist.

From all of this, I believe two things are clear:

  1. Portugal still has a long way to go to ensure a fair treatment of sexual crimes in the judicial system. There is a need for improving people’s understanding of these types of crimes, especially everyone involved in the Criminal Proceedings, like police officers, prosecutors, and judges.
  2. The law regarding rape must change. Amnesty International and the United Nations Committee on the Elimination of Discrimination against Women have reported on this, and Maria Fernanda Palma, although defending that the law already includes all forms of non-consensual sexual intercourse, accepts that change might be necessary; I strongly agree with her. I do believe that the law includes all forms of non-consensual sexual intercourse, nevertheless, if this same law is still allowing different interpretations and opposite judgements on the same issue, it must be changed in order to be clearer, and not allow such different interpretations.

Fortunately, the Portuguese Government agrees, and the Secretary of State for Citizenship and Equality, Rosa Monteiro, has announced that change is ongoing “to better meet the Istanbul Convention”. Unfortunately, no deadline for such change was set.