various psychological factors or because they fear that the perpetrator will become violent with them"263 and this highlights the importance of analyzing various elements of evidence that can suggest the lack of the victim’s consent, far beyond the force. In this sense, the European Court considered that “any limited approach that is used to prosecute sexual crimes, such as requiring evidence of physical resistance in all cases, may lead to certain types of rape not being punished and, therefore, it jeopardizes the effective protection of the sexual autonomy of individuals.” Thus, it concluded that “States Party […] must require the effective criminalization and conviction of any non-consensual sexual act, even in the absence of physical resistance on the part of the victim.”264 141. In May 2011, the Istanbul Convention in its Article 36 provided the first legally binding definition of sexual violence in international law, including rape. This provision indicates the following: (1) ties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised: a. a engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; b. b engaging in other non-consensual acts of a sexual nature with a person; c. c causing another person to engage in non-consensual acts of a sexual nature with a third person. (2) sent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances. (3) ties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law.265 142. Similarly, in 2010 the Committee on the Elimination of Discrimination against Women (hereinafter “the CEDAW Committee”) issued a decision considered historic in the case of Karen Tayag Vertido v. Philippines,266 which concluded that “rape myths and stereotypes affected the victim's right to a fair trial.” In particular, the Committee ruled on the fact that the decision of the domestic judicial process had focused on the personality and behavior of the victim and had erroneously interpreted the lack of evidence of physical resistance as an indication that the victim had expressed her consent. The Committee noted that a victim should not be required to physically resist to lend credence to a claim of rape and therefore recommended that the Philippines “revise [its] definition of rape in law to focus on the lack of consent” and to promulgate a definition that “required the existence of an 'unambiguous and voluntary agreement' and that required proof by the accused of measures taken to secure the consent of the complainant/survivor,” or that “required that the act took place under 'coercive circumstances, including a wide range of coercive circumstances.”267 Cf. ECHR, Case of M.C. v. Bulgaria, para. 164; Expert opinion of Dubravka Šimonović, supra (evidence file, folios 11472 to 11473), and Written version of the expert opinion of Miguel Cillero Bruñol, supra (evidence file, folio 11691). 263 Cf. ECHR, Case of M.C. Vs. Bulgaria, supra, para. 166; Expert opinion of Dubravka Šimonović, supra (evidence file, folios 11472 to 11473) and Written version of the expert opinion of Miguel Cillero Bruñol, supra (evidence file, folio 11691). 264 265 Cf. Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, May 11, 2011. Available at: https://www.coe.int/en/web/istanbul-convention/text-of-the-convention According to expert witness Šimonović, some of the States that have ratified the Istanbul Convention have already promoted adjustments to their criminal regulations. As an example, the expert cited Germany, which “modified the rape provisions in its 2016 Penal Code to reflect the “no means no” principle, defining rape as any sexual act “against the discernible will of a person". Sweden has promoted similar changes. Cf. Expert opinion of Dubravka Šimonović, supra (evidence file, folio 11475). The Court observes that Spain also recently approved a reform in its legislation (Organic Law 10/2022 of September 6, 2002, on the comprehensive guarantee of sexual freedom), with a view to “consider[ing] sexual violence acts of a non-consensual sexual activity or that condition the free development of sexual life in any public or private sphere, which includes sexual assault, sexual harassment and the exploitation of the prostitution of others, as well as all other crimes provided for in Title VIII of the Book II of Organic Law 10/1995, of November 23, of the Criminal Code, specifically aimed at protecting minors.” Available in Spanish at: https://www.boe.es/buscar/act.php?id=BOE-A-2022-14630. Cf. CEDAW Committee, Case of Karen Tayag Vertido v. Philippines, CEDAW/C/46/D/18/2008, adopted on September 22, 2010, and Expert Opinion of Dubravka Šimonović, supra (evidence file, folios 11473 a 11474). 266 267 Cf. CEDAW Committee, Case of Karen Tayag Vertido v. Philippines, supra, paras. 8.5 to 8.9, and Expert opinion of Dubravka Šimonović, supra (evidence file, folios 11473 to 11474). 47