Besides fight/flight responses, sexual violence can also precipitate a freeze reaction (tonic immobility) in victims. In many jurisdictions force is typically defined in terms of the victim's resistance, which is absent in case of a freeze response, even though consent is obviously not given. Can you give me good examples of criminal law provisions on sexual violence (primarily from European countries), in which this common but often not acknowledged possible reaction to an attack is (expressis verbis or otherwise) incorporated? Or any examples on how courts consider this type of repsonse in sexual violence cases?
Well, I honestly think that incorporating such a provision expressis verbis would not be a good idea - it would be a classic example of casuistic approach to creating legal rules.
But in the Russian Federation rape is defined as a sexual intercourse in which violence of threat of violence is applied to a victim or other persons, or by means or victim's helpless state (Part 1 Article 131 of the Russian Criminal Code).
Helpless state, in turn, is defined by the Supreme Court as:
"victim not being able due to her physical or psychological state (feeble-mindedness or other psychological disorder, physical defect, any other pathological state or loss of consciousness) or any other circumstance to understand nature and meaning of actions done to her or resist them".
As you can see, there are no obstacles to putting tonic immobility under the definition of a helpless state.
Alas, I haven't been able to find any cases on it: there are around 700 of published decisions and most of them are either verdicts passed without trial or appeals - full text decisions are usually not published for obvious reasons of protecting the victims.
Kirill Berchansky thank you for your comment. Perhaps you are right, expressis verbis incorporation would be problematic, it would indeed lead to a casuistic approach. Wording does not change the fact that proof in such cases - namely when victim is put in a state of tonic immobility by the attack - is extremely difficult. Still, I am not sure tonic immobility (which may not be a well-acknowledged phenomenon by judges, courts) would generally be considered to be a helpless state in legal practice. Maybe if the defitition would contain the possibility that the victim was put in such a helpless state by the attack itself, and that's why she did not show any (further) resistance... It would be interesting to interview judges on this matter.
We have a more or less similar regulation, as sexual violence can (besides force or threat against the life or bodily integrity of the victim) also be committed by exploiting a person who is incapable of self-defense or unable to express his/her will. I suppose tonic immobility can be considered to be such a (helpless) state, but only based on psychiatric and psyhological expert opinion/testimony.
I am still curious about legal regulation and practice in other countries.
Well, based on my experience, Russian judges tend to heavily rely (sometimes to a detriment) on expert opinion. So, interviewing judges is not the way to go - gotta ask the experts.
It would indeed be interesting to interview experts, but that would only yield knowledge that's psyhiatric/psychological in nature. It still wouldn't give enough information on how criminal law can be applied to the phenomenon in question, how legal regulations and judicial practice approach the problem. Tonic immobility is not necessarily a pathological phenomenon, it happens to victims of violence every now and then, and I wonder how often it comes up in sexual violence cases, and what judges know and think about it.
Even though tonic immobility is not an uncommon reaction to violence, there's not much in the literature about it's relevance to criminal law (violent sexual crimes). Perhaps it's more easily dealt with within the frames of a consent-based approach to crimes against sexual integrity, but in this case the definition of consent can be problematic, not to mention the difficulties of proof.
Hi Judit. The New South Wales government, Australia, is in the process of legislating for affirmative consent in order to address the "freeze response" syndrome. Under the changed law, " a person will need to say or do something to communicate in the affirmative in order to give consent. And, if a partner doesn't do something to ascertain that consent — verbally or via an action — it will not be reasonable for them to assume that consent has been given." For more, see https://concreteplayground.com/adelaide/travel-leisure/nsw-affirmative-consent-sexual-assault-laws-changes
Thank you for your reply, Michael. This is an interesting approach, quite different from what we have. It not only addresses freeze response but also any problem that may arise from the "atypical" reaction of the victim. I wonder how this affects the process of proof though.
It's good to witness that tonic immobility is getting to be acknowledged in more and more countries as a "legitimate" reaction to sexual assault.
The frozen freeze syndrome is already taken into account in German criminal law. Since such phenomena do not occur infrequently in connection with sexual assaults, this also makes a lot of sense.
If you can read German, then send me an email and I can send you my relevant commentary on the Sexual Offences Act.
Joachim Renzikowski thank you for your contribution. I can read German mit Ach und Krach, but I will hopefully manage with the help of a pile of dictionaries :) I sent you a message.
A friend of mine mentioned fact that this is an issue in a lot of rape cases. Even as a law student, I never thought of it in this context. Thank for opening my mind to the possibility. I believe it’s definitely an element that needs to be discussed and developed in rape cases.
Es interesante, si bien no lo menciona la legislación nacional en Colombia, si es un estado que debería analizarse y que considero debería incorporarse, especialmente en esta clase de delitos contra la libertad sexual.
Robyn Korkie thanks for your comment.
Tonic immobility is indeed an underconsidered phenomenon, mainly because its legal evaluation is problematic - it's hard to tell if the absence of physical (or any) resistance is a sign of consent, or is the result of a freeze reaction to the attack. In many jurisdictions it's not incorporated into criminal law, it belongs to the field of forensic psyciatric/psychological expertise (if considered at all), but as we see, there are good examples of recent developments in criminal legislations, like in New South Wales and in Germany.
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