Rape, Torture and the European Convention on Human Rights

International and Comparative Law Quarterly 58(3): 565-595

Posted: 6 Feb 2013

See all articles by Clare McGlynn

Clare McGlynn

Durham Law School, Durham University

Date Written: 2009

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.

Keywords: Rape, torture, European Convention on Human Rights, severity of harm

Suggested Citation

McGlynn, Clare M. S., Rape, Torture and the European Convention on Human Rights (2009). International and Comparative Law Quarterly 58(3): 565-595. Available at SSRN: https://ssrn.com/abstract=2198329

Clare M. S. McGlynn (Contact Author)

Durham Law School, Durham University ( email )

Durham University
Palatine Centre
Durham, County Durham DH1 3LE
United Kingdom
0191 334 2800 (Phone)

HOME PAGE: http://www.dur.ac.uk/law/staff/stafflist/?id=429

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