Your Honour: A Kiss is not a Free Pass for Sex.

As a follow-up to two recent Certioraris blog posts about a UNDT judge adopting a sexist and victim-blaming approach to recent cases of sexual harassment and sexual exploitation in the United Nations, my jurisprudence research led me to an appalling dissenting opinion by the same Judge in yet another judgment in which he obscenely blamed the Victim for a case of sexual assault and rape.

To recap, in his “Boys will be Boys” Judgment, the Judge who holds an Italian nationality considered comments from a male staff member to a female staff member, such as “Your breasts look like mountains….” and “The water jets in the pool could be pleasurable between a woman’s legs….” as “euphoric jokes and quips, “boutades” by an elated person (like a boy on a school trip) with no intention to harm or harass or humiliate.”

In a second Judgment, Makeen, UNDT/2023/071, the Judge considered it normal for a 53-year-old UN married man to have sex with an 18-year-old girl who cleans his house and cooks for him and ordered his reinstatement or in lieu compensation for his termination.

In both Judgments, referring to a 2007 Duke Law Research Paper, I argued that the cultural beliefs and values of the same UNDT Judge were once again crucial factors impacting his final decision and judgment and that the cultural affiliations of different judges and jurors will influence their perceptions of whether sexual harassment occurred.

Most recently, an Italian judge provoked outrage after clearing a school caretaker of sexually assaulting a teenage girl because the grope lasted only “a handful of seconds.” 

Italians expressed their outrage on social media by posting videos of themselves touching intimate body parts alongside the hashtags “palpata breve” (brief grope) and “10 secondi” (10 seconds).

Italian judges have been criticized in the past for similar rulings. In 2017, a judge in Ancona cleared two men of the rape of a 22-year-old Peruvian woman because they said (and the judges agreed) that she was “ugly.” In a famous case from 1999, a man was cleared of rape because the Victim was wearing tight jeans believed to be impossible to remove without her assistance.

The UNDT judge has an array of judgments that all point to sexist cultural beliefs, and in which he seems to consistently want to blame the women for the sexual harassment and violence they endure.

Such victim smearing is commonplace in rape trials in Italy, and the UNDT Judge did not depart from this sexist legal approach in yet another UNDT judgment in which he expressed his dissenting opinion against the majority of the Judges.

The case itself is pretty straightforward, albeit revolting.

A long-term serving UNFPA staff member at the D-1 level sexually assaulted, forced himself, and raped a UN colleague he had met earlier at dinner.

The majority of the Judges upheld the disciplinary sanction of termination, having considered the totality of the evidence before them; chief among them was that irrespective of the fact that the female colleague had kissed the Director, she had not given him explicit consent to have intercourse with him, and she explicitly told him that she had made a mistake and wanted to leave the room, but he would not let her.

The D-1 Director and the female staff had met over dinner during a UN mission. The conversation was friendly. The Director invited his female colleague to continue the conversation. On her way to pick him up, he left his room door open as he stood on his balcony waiting for her. They had a discussion on the balcony, and he kissed her. 

She then realized she made a mistake and wanted to leave.

Her judgment, Her Call, Her Right.

But the Director wouldn’t let her go. She explicitly told him she didn’t want to have sex with him, but he wouldn’t let her leave. The Director attempted to pin her against the wall but was unsuccessful, so instead, he held her in a firearms lift, put her on the bed, and raped her.

The majority of the Judges ruled against the Director, and the termination decision clearly referred to the lack of consent as a decisive factor for sexual assault and rape which had zero tolerance in the United Nations.

The UNDT judgment UNDT/2022/030 featured a 17-page dissenting opinion by the UNDT Judge same author of the “Boys will be Boys” judgment.

The UNDT judge argued why he would have cleared the D-1 Director of any misconduct. He even managed to quote the Applicant’s words in his application to defend him.

In a disturbing quote, the UNDT Judge invoked the Director’s own words in his application by stating that 

“the Complainant’s “friendly disposition towards the Applicant … was exculpatory of him having assaulted her.” 

In other words, the Judge plainly said, if you’re friendly to me, I have the right to rape you!

But, Your Honor:

Image courtesy of boldomatic.com

The Judge then quotes the OIOS investigator to insinuate that a long time had elapsed during which the Director was on top of the Complainant, therefore, questioning how it is possible that the female staff member did not give consent given the lengthy period.

In other words, the Judge was saying that it if was rape, it would have all happened in seconds.

The Judge goes on to state. 

“It is really difficult to recognize that an alleged victim of assault and rape, in a situation showing no sign of threat or violence at all will accept the sexual intercourse because she was “afraid to upset” the perpetrator, or because she had in front of her a person perceived as a “powerful person”. 

With all due respect, your Honour, it must be difficult indeed, first because you’re looking at it from a Man’s perspective and not a Woman’s.

Second, Your Honor, it seems you are also looking at it from a deep-seated sexist perspective embedded in your cultural beliefs, namely that if a woman flirts with a man, he is entitled to have sex with her.

The Judge’s dissenting opinion goes on:

“When the borders of a situation of mutual respect are crossed, indeed, no gentle relationship could be kept, and a reaction by the victim is expected according to “id quod plerumque accidit,” that is what usually happens to ordinary people; indeed, the embarrassment invoked by the Complainant cannot justify the acceptance of sexual advances without any reaction. 

The lack of any reaction by the person who is the object of sexual advances, whatever could be its motivation, cannot be interpreted as a clear dissent to the sexual intercourse. In other terms, the test required by this case is not only to assess if the Complainant wanted the sexual intercourse or not, but also the perception of her behaviour by a reasonable person within a multicultural environment.”

With all due respect, your Honour: ordinary people??? Lack of any reaction? Perception in a multicultural environment??

Are you, in fact, your Honour, insinuating that the Victim is not ordinary and hence is not normal because she froze and did not shout for help??

Are you, in fact, transferring the blame to the Victim because she froze despite the overwhelming scientific evidence that exists why rape and sexual assault victims freeze during the assault and the experts saying that victims are blamed for not fighting attackers despite evidence that rape triggers immobility in victims.

Are you, your Honour, asking the Victim:

Why did you not scream for help?

Why did you not fight back?

In what culture, your Honour, may we ask, a Man has a right to rape a Woman who clearly said No to Sex?

Are you really working for the Administration of Justice in the United Nations with the overall aim of advancing a zero-tolerance policy for sexual harassment, sexual exploitation, sexual abuse, violence; and assault against Women?

The Judge goes on to argue in his dissenting opinion, that the Complainant told the Director she had made a mistake going into his room. She did not want to have sex with him; however, this happened in the very first moments of the meeting and the fact that she did not repeat her dissent statement later on equates to weak resistance or consent! 

Even when the Complainant testified about the physical strength of the Director and his firemen’s lift to fly her on the bed, which the Director conceded to, the dissenting Judge considered this an act that in itself could be subjected to different interpretations… 

No comment.

In his closing arguments, the dissenting Judge goes on to intimate a disgraceful analysis of events that undeniably point out his own cultural beliefs and values and the sexist approach towards female victims of sexual harassment and assault.

“Certainly the expectations that a young staff member – with work-related problems and frustrations – may have placed in a powerful and sly colleague with a high position in the United Nations hierarchy and well connected (running for presidency in his country, friend of the Regional Director and of the former President of the United States of America, Barrack Obama) remained frustrated after she realized – at the end of the intercourse and not before and probably only when the Applicant told her he was married and with his own life – he had purely sexual objectives, she had made a mistake and she had been used as an object. However, this is not sufficient to substantiate an accusation of rape.”

Wow.

Just Wow.

So, the D-1 Director knows Barrack Obama and is running for the presidency in his country. It goes without saying, we will believe the D-1 Director. And she is just a frustrated young female staff member in the United Nations who did not realize she has been used as an object!! Goes without saying, she is just a frustrated female staff member and she is lying!

Yes, dear audience, these are the owns words of a UNDT judge!

Let’s recall here that this was a 17 pages dissenting opinion by the UNDT Judge and that the UNDT judgment ruled in favor of the Complainant. The Director appealed the judgment to UNAT. 

The importance of the case called for a full bench of UNAT Judges.

Thankfully, in Judgment No. 2023-UNAT-1332, UNAT unanimously ruled in favor of the Victim and against the Director finding

“that the evidence established with a high degree of probability that the Appellant engaged in non-consensual sex with the Complainant, amounting to sexual assault”

UNAT further held against the dissenting opinion that it was

“insufficient for the Appellant to rely on “tacit” consent or the absence of repeated expressions of non-consent in these circumstances.

Also, rape and sexual assault do not always include threats of violence or physical restraint nor victims physically fighting back but can occur, as here, where a person in a position of power, trust or authority compels the Complainant to engage in unwanted activity.

However, the Complainant did testify to being physically restrained and overwhelmed after having expressed her lack of consent. This would be a plausible rationale for the Complainant to not struggle and suffer further physical assault in the interaction.

She described that her failure to scream or yell was because she was “in shock”, “ashamed”, and “embarrassed”, as well as cognizant that she was in a “very precarious situation with the Regional Director” that could compromise her job.”

Surprisingly, there was a new division among the UNAT Judges as to whether the name of the Director should remain anonymous. There was once again a dissenting opinion by 3 Judges who refused to protect the perpetrator even though the final judgment remained anonymous.

The dissenting Judges held

“while we acknowledge the desirability of protection of personal privacy, so too must we bring to account in a balancing exercise, the need to deter others, no less senior officials of the United Nations, from insidious and harmful sexual abuse and exploitation. 

For these reasons we would not have found good cause to depart in this case from the UNAT’s practice of naming parties in judgments”

 The name of the UNFPA D-1 Director remains Anonymous to date.

It is no surprise then that a recent 2023 JIU report of UNFPA made the following observations.

“The most concerning findings are those related to misconduct. The overall sense from staff is that senior management does not take appropriate action and simply “shuffles” or “outrides” problems, especially in cases of abuse of authority and sexual harassment.

The number of open investigation cases related to harassment, including sexual harassment, retaliation and misconduct, has been growing year after year, and, the overall sense is that senior management does not take appropriate or timely disciplinary action against perpetrators of misconduct (sometimes the individual is just transferred to another duty station) or action against perpetrators is delayed to the point that the Victim, or the perpetrator, leaves the organization before any formal disciplinary action is taken.

Staff also felt that this behaviour by management was particularly acute when it was related to sexual harassment, abuse or exploitation. “

The dissenting Italian Judge judged a woman because she did not express her dissent twice to the Man who raped her.

In other words, his dissenting opinion boils down to his sexist and discriminatory obiter dictum: if you kissed him, it means you gave him consent. 

The UNDT code of conduct of Judges requires “fairness in the conduct of proceedings and that Judges must not conduct themselves in a manner that is racist, sexist or otherwise discriminatory. They must uphold and respect the principles set out in the Charter of the United Nations, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.” 

Further, the Judges of the UNDT are appointed by the General Assembly following recommendations of the Internal Justice Council and consultation with the Office of Human Resources on the search for suitable candidates for the positions of judges.

May we ask the General Assembly, the Internal Justice Council, and OHR who can hold this UNDT judge in contempt of the UNDT code of conduct for his consistent sexist legal approach against female staff members in the United Nations?

May we further ask these bodies how do they ensure that that they are recruiting the Judges who uphold and respect the principles set out in the Charter of the United Nations, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights and whom we assume, in turn, advance the Secretary-general’s policy on zero tolerance towards sexual harassment, sexual abuse, sexual exploitation and sexual vioence against women?

May we further ask UNAT judges on what grounds they decide that a perpetrator at a D-1 level convicted of a sexual assault that is considered a crime is granted anonymity despite the UNDT and UNAT establishing the misconduct against him?