Rape, Torture and the European Convention on Human Rights

McGlynn, Clare

Abstract

This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.

Citation

McGlynn, C. (2009). Rape, Torture and the European Convention on Human Rights. International and Comparative Law Quarterly, 58(3), 565-595. https://doi.org/10.1017/s0020589309001195

• Journal Article Type: Article
• Publication Date: Jul 1, 2009
• Deposit Date: Nov 2, 2009
• Publicly Available Date: Nov 10, 2009
• Journal: International and Comparative Law Quarterly
• Print ISSN: 0020-5893
• Electronic ISSN: 1471-6895
• Publisher: British Institute of International and Comparative Law
• Peer Reviewed: Peer Reviewed
• Volume: 58
• Issue: 3
• Pages: 565-595
• DOI: https://doi.org/10.1017/s0020589309001195
• Public URL: https://durham-repository.worktribe.com/output/1524751