Rape as socio cultural phenomenon – a key to tackle gender based violence, in L'EUROPE UNIE/UNITED EUROPE PARIS, EU Enlargement and Resilience: Legal and Economic Reforms on Georgia's Path to Integration, L'Europe unie/United Europe - special volume - no 22/2025

L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 143 Rape as socio-cultural phenomenon – a key to tackle gender-based violence DR. IRINE KHERKHEULIDZE Professor, CAUCASUS SCHOOL OF LAW CAUCASUS UNIVERSITY PAATA SAAKADZE 1, TBILISI 0102, GEORGIA [email protected] Abstract: Significant changes have been made in last decade in terms of empowering women – both on individual and a class level. The Council of Europe Convention on preventing and combating violence against women and domestic violence with its all-encompassing and groundbreaking nature safeguards women rights through diverse means. Nonetheless, gender-based violence against women, including rape is still pervasive in our societies, undermining universal clause on gender equality. This article approaches rape, as one of the forms of gender-based violence. It disassembles the phenomenon of rape into pieces with a view of examining its socio-cultural genesis. Keywords: Gender stereotypes; gender-based violence; socio-cultural; the Istanbul Convention; rape. INTRODUCTION or the last decade the Council of Europe Convention on preventing and combating violence against women and domestic violence1 has become by far the most magnificent regional legal instrument to tackle gender-based violence against women. In line with such international developments, Georgia has made a step forward and signed the Convention in June 2014, yet ratified it only in 2017. Apart from naming and framing the concept and essence of gender-based violence, Which CEDAW2 failed to accomplish until elaboration of General Recommendation N19,3 the Istanbul Convention has also drawn states' attention to something being underestimated before as trigger of such violence. This trigger, in a whole can be named as socio-cultural aspect of the issue, whilst owing to differentiated approach this phenomenon is possible to be dismantled into cultural (including believes, prejudices, customs and traditions) and social (including gender) components. Proposed construction and interrelatedness of above referred aspects, as of being underpinning gender-based violence is explicitly seen in the rape cases. Hence the article aspires to explain the rape from the socio-cultural dimension with a view to elucidating the main common causes for gender-based violence, which are not limited to rape or even other forms of sexual violence. Nevertheless, diversity of cultures, as well as of the social practices, inclined to each corresponding culture, still contributes to divergent peculiarities and resilience of indigenous roots entrenched in a society of particular culture. Ultimately, this is to say, that for comprehending and tackling gender-based violence against women on the instance of rape, it is utmost to relate the sexual violence to the socio-cultural background of the issue, considering similarities and discrepancies in their features. 1 Council of Europe Treaty Series - No. 210, Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, 11.V.2011. Available at: https://rm.coe.int/168008482e 2 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted December 18, 1979, entered into force September 3, 1981, U.N. Doc. A/34/46 (1979). Available at: https://www.ohchr.org/en/treatybodies/cedaw 3 Dubravka Šimonović, “Global and Regional Standards on Violence Against Women: The Evolution and Synergy of the CEDAW and Istanbul Convention”, 36 Hum. Rts. Q. 590, 2014, p. 601-602. F L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 144 Only in this way it will become possible to see how and why the definition of sexual assault, including rape, should be composed according to a certain construction, why should we approach this issue, both theoretically and politically with special gender sensitivity and why to foresee possible socio-cultural barriers on the way of the implementation of these normative and political changes. Therefore, the main findings of this article are applicable across the cultures of different countries, in their attempt to bring national legislation to the compliance with international women human right standards. It has been widely agreed that the concept of rape as well as its perception by humans has never fallen under blanket approach. Rather, multi-layer contributor factors to the rape should be approached not only in legal, but also in socio-cultural (including gendered) understanding of the issue, which are tightly intertwined to each other. Whilst the mere legal interpterion of the issue limits its assessment to the criminal law scope, the socio-cultural observation of the phenomenon opens the doors to the detection of an ally to defeat this pervasive phenomenon. It is in this discourse, when becomes necessary to develop theories, tested against evidence, as to what causes rape in order to help the evaluation of what is effective in preventing such type of sexual violence against women.4 From this stance, socio-cultural dimension is the main point to started with, as pursued in the article below. 1. CONCISE DESCRIPTION OF A RAPE PHENOMENON FROM SOCIO-CULTURAL PERSPECTIVE In contemporary European sexual politics the intersection of categories – such as race, gender and sexuality - are closely related to the political discourse.5 In turn, such complex interrelatedness is built upon social and cultural factors, which, sadly, not quite seldom create the safe haven for the perpetrators of sexual violence. Gagnon’s and Aker’s attitudes and theories on learned behavior, implicating crime of rape too in their analysis, support an idea of placing rape under the umbrella of societal phenomena. This perspective complements the general sociological recognition that rape – like all other behavior-should be understood in terms of its socio-cultural context.6 Due to various feminist campaigns, during the last four decades, the issue of rape has turned into a matter for sociological interpretation, where the reasons are sought in gender relations, power dynamics, and sexuality constructs.7 In this relation the preamble of the Istanbul Convention emphasizes the fact that, violence against women is a manifestation of “historically unequal power relations between women and men”, which have led to “domination over, and discrimination against, women by men”, and that it acknowledges the “structural” nature of violence, which means that it is rooted in society and as such must be eradicated.8 In turn, anthropological research on the genesis of gender inequality suggests that cultural support for violence is inimical to the status of women. 9 This is a cornerstone statement, that proves 4 Sylvia Walby et al., Stopping Rape, Towards a comprehensive policy, University of Bristol, Policy Press, 2015, p.4. 5 Sharron A. FitzGerald & May-Len Skilbrei, Sexual Politics in Contemporary Europe: Moving Targets, Sitting Ducks. Cham: Palgrave Macmillan, 2022. p. 11. 6 Vickie McNickle Rose, “Rape as a Social Problem: A Byproduct of the Feminist Movement”, Oxford Journal: Social Problems, Oct., 1977, Vol. 25, No. 1, p.79. 7 May-Len Skilbrei et al. in Rape in the Nordic Countries, Continuity and Change, Routledge Research in Gender and Society, edited by Marie Bruvik Heinskou, May-Len Skilbrei and Kari Stefansen, Routledge, 2020, p.12. 8 Sara de Vido, “The ratification of the council of Europe Istanbul Convention by the EU: A step forward in the protection of women from violence in the European legal system”, 9 Eur. J. Legal Stud. 69, 2016-2017, p.75. 9 Larry Baron & Murray A. Straus, “Four Theories of Rape, A Macro-sociological analysis”, Social Problems, Vol. 34, No. 5, 1987, p. 470. L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 145 why irrefutable connectivity of the decisive elements, such as – legal and socio-cultural components –plays a crucial role in understanding and punishing rape. In this discourse, gender as a social construct10 is to be evaluated under the lens of gender-based discrimination due to direct linkage between gender-based violence and discrimination against women.11 Simultaneously, socially constructed roles of women and men are culturally determined. Such an overlap of social and cultural components regarding the conceptualizing and elucidating the phenomenon of gender, makes it a cultural and social construction. The Istanbul Convention recognizes “that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men in addition to the recognition of the “structural nature of violence against women as gender-based violence.12 However, gender-based violence can be fueled not only with social, but cultural mechanisms too. Quite often cultural factors13 bond to particular environment, ethnicity or even to a history can serve as the impetus to the suppression of women. The undeniable fact, that cultural support for violence renders gender inequality, is supported in legal literature too.14 Eventually, rape survivor women face in their social life a path, difficult to walked owing to the abundancy of social and cultural norms of degrading nature. This are such norms that emboldens gender inequality and condone gender-based violence – even and at some instances – rape. Implication of cultural factors In the latest studies the concept of culture is defined in a broad and narrow terms.15 Such a division enables on its unbounded engagement in this article – from social activities to societal movements, which overall forms the mentality and values of a society at large. Against this background it’s predicable to assume, that culture poses an important place in envisaging on how particular populations and societies view, perceive, and process sexual acts as well as sexual violence.16 The study on general cultural factors, conducted by anthropologists have identified three common characteristics of societies, which seemingly affect the frequency of rape. These features are: interpersonal violence, male dominance, and negative attitudes toward females.17 Violence, that is being legitimate culturally, plays a huge pole in rape cases as it creates both - culturally legitimized crime and culturally legitimate victim. In such a society gender role stipulates forming typology of a perpetrator and its victim. Various cultures describe certain forms of sexual violence that are condemned and other forms that may be tolerated to a degree, the 10 The Istanbul Convention, Article 3, para (c): “gender shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. 11 Irine Kherkheulidze, “Re-conceptualizing Sexual Harassment—Premises and Challenges”, in Reconsidering Gender Based Violence and Other Forms of Violence Against Women, Comparative Research/Analysis in the Light of the Istanbul Convention, edited by G. Piccinelli, I. Kherkheulidze & A. Borroni, LibellulaEdizioni, pp. 87-88. 12 The Istanbul Convention, preamble. 13 FGM is one of the examples. The practice of FGM is a violation of the human rights of girls and women. See: Irine Kherkheulidze, "Gendered aspects in the crimes threatening human's life and health - forced sterilization and FGM" in Actual Matters of Criminal law, edited by N. Todua & M. Ivanidze, Tbilisi, 2020, p. 201-303. 14 Janet Saltzman Chafetz, Sex and Advantage: A Comparative Macro-Structural Theory of Sex Stratification, 1984; Naomi Quinn, "Anthropological studies on women's status," Annual Review of Anthropology, 1977, 6:181-225. 15 Sylvia Walby et al., Stopping Rape, Towards a comprehensive policy, University of Bristol, Policy Press, 2015, p.191. 16 Kalra Gurvinder & Bhugra Dinesh, “Sexual violence against women: Understanding cross-cultural intersections”, Indian Journal of Psychiatry, 2013 July-September, 55(3): 244–249. 17 William L. Marshall & Howard E. Barbaree,” An integrated theory of the etiology of sexual offending”, in Handbook of Sexual Assault, Issues, Theories, and Treatment of the Offender, edited by W. L. Marshall, D.R. Laws & H. E. Barbaree,” (NSSB), Plenum Press, 1990, p. 265. L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 146 culturally legitimized forms of violence.18 Victimization risk for women to be raped can increase because of cultural (structural) proneness to such behavior. In Criminology, a positive correlation is found between powerlessness, deprivation and the frequency of criminal victimization. Cultural stigmatization and marginalization also enhance the risks of criminal victimization by designating certain groups as “fair game” or as culturally legitimate victims.19 Hence, it is obvious why in the society of male dominance and women powerlessness, the women in general are deemed to be “legitimate” victims of sexual desires to men. That is why the equal power relations as a guarantor of gender equality at the same time safeguards the reduction of the sexual violence against women. Examination of current situation shows that together with growing consciousness about the significance of crime of rape, on its cultural background and on its interdependence with women’s position in society, the crucial aspect is a progressive trend around the globe toward reshaping rape laws.20 Moreover, an undeniable nexus can be found not only between culture and sexual violence as an act, but also to some extent, between the violence-prone culture and pornography, for “pornography expresses a hostile and contemptuous attitude toward women”.21 Such a misogynist regards towards women once again underlines the gendered paradigm of the issue as well as related discrimination against women. Thus, the feminists’ allegations, expressed by Dworkin22 and MacKinnon,23 that pornography is a direct cause of gender inequality in needed to be taken under consideration. Similar argument comes from Zillmann and Bryant’s study on the effects of massive exposure to non-violent pornography on attitudes toward women. This study showed an inverse relationship between long-term exposure to sexually explicit films and endorsement of sexual equality. Therefore, if pornography fosters the belief that the women do not deserve the equal rights, it is possible that the widespread availability of sexually might lead to discriminatory practices,24as it happens in reality and as it works with the cases of sexual assault. Beyond the legal definition of rape, which is not the subject for discussion in this article,25 its societal perception plays a tremendous role in the protection of women’s rights, including the protection of rights to sexual autonomy and gender equality in a particular culture. It is in this context gains importance an observation on the implication of social factors for conceptualizing rape from a woman's perspective as it had been done by the outstanding feminist authors. - Implication of social factors Understanding the driving force and root causes of a rape is an initial step for its prevention. As Susan Brownmiller26 believed, rape was primarily about power rather than sex. Despite recent 18 Larry Baron & Murray A. Straus, “Clinical Criminology, Rape and its relation to social disorganization, pornography and inequality in the USA”, Med Law, 1989;8(3):209-32. 19 Ezzat A. Fattah, “Victimology: Past, Present and Future” in Criminologie, Printemps, 2000, Vol. 33, No. 1, LA VICTIMOLOGIE: QUELQUES ENJEUX, Université de Montréal, p. 30. 20 Wojciech Jasiński, “Defining Rape. In Quest of the Optimal Solution”, in Consent and Sexual Offenses, Comparative Perspectives, edited by Elisa Hoven & Thomas Weigend, first addition, 2022, p.12. 21 Larry Baron & Murray A. Straus, “Four Theories of Rape, A Macro-sociological analysis”, Social Problems, Vol. 34, No. 5, 1987, p. 470. 22 Andrea Dworkin, “Against the male flood: censorship, pornography and equality” Harvard Women's Law Journal, 1985, 8:1-29. 23 Catherine MacKinnon, “Not a moral issue”, Yale Law and Policy Review”, 1984, 2:321-45. 24 Larry Baron & Murray A. Straus. “Four Theories of Rape, A Macro-sociological analysis”, Social Problems, Vol. 34, No. 5, 1987, p .472. 25 It is presumable that the reader is already familiar with the acknowledged definition of rape, which is based on the lack of consent as given in International Convections. See: The Istanbul Convention, Article 36. 26 See: Susan Brownmiller, Against Our Will: Men, Women and Rape, 1975. L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 147 criticism, expressed in contemporary literature towards such an attitude,27 it is one of the first exposure of feminist thoughts upon the history and nature of rape. Feminist movement from its onset has viewed rape as a “power trip”, as a means of political oppression and social control to keep women in their place.28 Catharine MacKinnon in her theory,29 in difference from her predecessor, argued that rape was the logical extension of a phallocentric, patriarchal system of sexual inequality.30 Accordingly, in line with the feminist theory, rape functions as a mechanism of social control in patriarchal societies.31 Instead of involuntary sex, rape was defined not just as a crime but as an exercise of gendered power.32 Thus, in a broader way, it can be asserted that “rape is a social concern with patriarchal, misogynist, and gender-shaming undertones.”33 If observed carefully, quite logical as well as empirical connection can be drawn between the legal and social understanding of the rape from women perspective. A closer look to the phenomenon from the modern perspective elucidates how does disguised power and control (power and control theory, Brownmiller), as well as unequal power relations between the sexes (gender inequality theory, Mackinnon) create the basis for conceptualizing sexual assault, including rape. For instance, contemporary wording of rape definition in German Criminal Code34 with the phrase “against the discernible will” of the person, - a core idea of the offence,35 - albeit stresses on protection of sexual autonomy, is clearly aligned to mentioned theories. Also, viewed under the lens of feminism, “a female definition of rape can be contained in a single sentence. If a woman chooses not to have intercourse with a specific man and the man chooses to proceed against her will, that is a criminal act of rape.”36 Although such a definition of the rape is presumably equally acknowledged from women’s perspective, it is not always the case for the society with diverse cultural background. Unfortunately, in Georgia too, both at legal and socio-cultural level rape is understood as something exclusively forceful and coercive;37 whilst it is the absence of the consent of the victim to intercourse what is to be qualified as rape. 2. SHOULD EVER CULTURAL VALUES ENCOURAGE RAPE? Regretfully, there are certain forms of violence against women that are embedded in specific cultural values and beliefs.38 Paradoxically, there are particular provisions in the legislations of some 27 Beverly A. McPhail, “Feminist Framework Plus”, Trauma, Violence & Abuse, Vol. 17, No. 3, Sage, 2016, p.317. 28 Vickie McNickle Rose, “Rape as a Social Problem: A Byproduct of the Feminist Movement”, Oxford Journal: Social Problems, Oct., 1977, Vol. 25, No. 1, p.78. 29 See: Catharine A. MacKinnon, Toward a Feminist Theory of the State, 1991. 30 Information available at: https://philpapers.org/browse/feminism-rape-and-sexual-violence 31 Larry Baron & Murray A. Straus. “Four Theories of Rape, A Macro-sociological analysis”, Social Problems, Vol. 34, No. 5, 1987, p. 467. 32 Riikka Kotanen, “From the protection of marriage to the defence of equality, The Finnish debate over the sexual autonomy of wives” in Rape in the Nordic Countries, Continuity and Change, Routledge Research in Gender and Society, edited by Marie Bruvik Heinskou, May-Len Skilbrei and Kari Stefansen, Routledge, 2020, p. 92. 33 Kalra Gurvinder & Bhugra Dinesh, “Sexual violence against women: Understanding cross-cultural intersections”, Indian Journal of Psychiatry, 2013 July-September, 55(3): 244–249. 34 See: Criminal Code of Germany, Section 177(1). Available at: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html 35 Tatjana Hörnle, “The New German Law on Sexual Assault” in Sexual Assault: Law Reform in a Comparative Perspective, edited by: Tatjana Hörnle, Oxford University, 2023, p. 145. 36 Susan Brownmiller, Against Our Will: Men, Women and Rape, 1975, p.18. 37 Irine Kherkheulidze, “Sexual Violence: Comparative Overview of German and Georgian Legal Perspectives”, TalTech Journal of European Studies, Tallinn University of Technology, Vol. 14, No. 1 (39), p.185. 38 Aruna Papp, “Conspiracy of Silence: “Honour-Based Violence in North America”, 22 Buff. J. Gender L. & Soc. Policy, 105, 2013, p.115. L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 148 countries, driven by cultural norms and thus fostering and at some instances even justifying rape. The abhorrent example of such an approach is marital rape, which takes place in domestic environment, whilst ideally, the home must be by far the most secure place for a woman and not the place of misery and torture. CEDAW Committee clearly explains that: “gender-based violence against women occurs in all spaces and spheres of human interaction, whether public or private, including in the contexts of the family”.39 Unfortunately, sexual violence (including rape) as a form of gender-based violence is the painful reality, that the considerable part of our globe’s female population faces with and which constitutes the subject of examination in a quest of the efficient approaches for its eradication. Whilst, ideally, cultural values and practices should have fostered to the empowerment of women and to the protection of their fundamental human rights, a reversed reality is observed, ironically. On the contrary of what is wished upon, quite frequently and, in many communities, some cultural norms, practices, customs, traditions and religious values are used directly or indirectly to justify violence against women.40 “It is culture that provides the script for gender roles and the repercussion for any deviation from these ascribed roles”.41 Marital rape is the very example where a dovetail of culture and gender, as a social factor, builds an unjustified ground for suppression of women, discarding their choices and thus infringing their sexual autonomy. Therefore, interrelatedness of cultural and social factors, their interaction on rape – as on a form of gender -based violence - makes the tremendous influence on the perception, evaluation and punishment of this offence. It is in this relation must be noticed that such a composite has created obstacles to the elimination of violence against women. Grounding their stance and approaches on such social and cultural norms, the legal systems of many countries have considered violence between women and men not a crime, but a family dispute that should be resolved without the intervention of the state.42 One priority of 1970s feminism was to bring violations that occurred in domestic environment to the attention of politicians and to make sure that such crimes were recognized illegal, so that they to tantamount with physical and sexual crimes that take place between strangers.43 It is widely agreed, that the intimate relationships are the most common context for rape and thus physical and sexual violence overlaps very often makes victims vulnerable to both - intimate partner violence and rape. Globally, wider societal awareness of rape in marriage rose step by step alongside the second-wave feminism, the enhancing criticism of violence against women and the lack of state intervention in both the private sphere and in intimate relations.44 Finally it has led to the criminalization of marital rape in the different parts of the globe and notably, in the US. By the end of 1990-ies marital rape exemption rule finally declared to be void in the United States.45 Nor 39 CEDAW, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, 2017, para. 20. Available at: https://www.ohchr.org/en/documents/general-comments-andrecommendations/ general-recommendation-no-35-2017-gender-based 40 Bharat H. Desai & Moumita Mandal, Sexual and Gender-Based Violence in International Law: Making International Institutions Work, Springer, 2022, p.157. 41 Aruna Papp, “Conspiracy of Silence: Honour-Based Violence in North America”, 22 Buff. J. Gender L. & Soc. Policy, 105, 2013, p.115. 42 Mari Kurtanidze, Nino AbramiSvili, Baia Pataraia, Femicide - Femicide – Hate Crime and the State’s Obligation to Combat It, “SAPARI”, Tbilisi, 2016, p. 24. 43 May-Len Skilbrei, Kari Stefansen & Marie Bruvik Heinskou, “A Nordic research agenda on rape and sexual violence”, in Rape in the Nordic Countries, Continuity and Change, Routledge Research in Gender and Society, edited by Marie Bruvik Heinskou, May-Len Skilbrei and Kari Stefansen, Routledge, 2020, p.10. 44 Riikka Kotanen “From the protection of marriage to the defence of equality. The Finnish debate over the sexual autonomy of wives”, in Rape in the Nordic Countries, Continuity and Change, Routledge Research in Gender and Society, edited by Marie Bruvik Heinskou, May-Len Skilbrei and Kari Stefansen, Routledge, 2020, p. 83 45 PEOPLE v. LIBERTA 64 N.Y.2d 152,474 N.E.2d 567,485 N.Y.S.2d 207(1984). L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 149 Germany has been the exception from the legislation that justified marital rape, a phenomenon, which has been indorsed in Germany until 1979.46 The historical acceptability of marital rape can be explained by a combination of socio-legal ideologies and attitudes to marriage, sexuality and gender inequality.47 Ironically, although marital rape as a phenomenon has never been articulated in national legislation of Georgia as a justification for the removal of criminal charges from the perpetrator, - rape in marriage, as an offence has never been put forward in practice owing to its misleading social perception. Not only in Georgia, but worldwide, traditionally, “rape in marriage was perceived to be as impossible as a husband robbing himself.”48 The Istanbul Convention with a view of changing such perceptions both from the side of the society and a lawmaker, has mandated the ratifying countries substantive revision of the related legislation. Namely, it required the states to make the specific efforts to “ensure that the criminal offences of sexual violence and rape established in accordance with this Convention are applicable to all non-consensual sexual acts, irrespective of the relationship between the perpetrator and the victim… It is crucial to ensure that there are no exceptions to the criminalization and prosecution of such acts when committed against a current or former spouse or partner as recognized by internal law.”49 Albeit, corresponding acts of rape had been criminalized since long ago in Georgian Criminal Code,50 the absence of related judgements points out to its practical non-execution. Relevant data from police on reporting of such crime or data from prosecution office on prosecuting it - indicated that such a behavior is perceived as socially condoned owing to its acceptance as a norm by the community. This biter reality demonstrates once again how devastating can be cultural views and traditions for the development of the equal rights in the country, where women at large are thought to be subjected and submitted to their husband’s sexual gratifications and desires. 3. SCRUTINIZING GENDER STEREOTYPES Gender stereotyping is one the root-causes hampering the adequate protection of women from sexual violence and proliferating the injustice in the court room. Its role played in the victimization and discreditation of the women victims of the sexual violence is tremendous. Hence, it is a task of this chapter, to explain how this social phenomenon has been outlined in sexual violence case instances, as well as in the CEDAW jurisdiction and practice. In depth private-public dichotomy analysis for the exposure of gender stereotypes Even Division into public and private sphere, albeit in normative frame, at some point, can be evaluated as culturally stipulated. This is especially true in connection with duties, activities, responsibilities, availabilities, permissions or banns for the persons of particular gender. Such dualism between public and private spheres of activity has been a central concern of liberal feminism as they tried to show what a devastating effect it could have had for the interests of 46 Tatjana Hörnle, “The New German Law on Sexual Assault” in Sexual Assault: Law Reform in a Comparative Perspective, edited by: Tatjana Hörnle, Oxford University, 2023, p.142. 47 Riikka Kotanen “From the protection of marriage to the defence of equality. The Finnish debate over the sexual autonomy of wives”, in Rape in the Nordic Countries, Continuity and Change, Routledge Research in Gender and Society, edited by Marie Bruvik Heinskou, May-Len Skilbrei and Kari Stefansen, Routledge, 2020, p. 85. 48 Catharine A. MacKinnon, “Substantive equality revisited: A reply to Sandra Fredman”, International Journal of Constitutional Law, Oxford University Press, Vol. 14, No. 3 (2016-07), p. 746. 49 Explanatory Report to the Istanbul Convention, para. 194. Available at: https://rm.coe.int/ic-and-explanatory-report/16808d24c6 50 Criminal Code of Georgia, Article 137. Available at: https://matsne.gov.ge/en/document/download/16426/157/en/pdf L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 150 women. The differentiation of public and private has normative as well as descriptive dimension, as far as greater legal and social significance is ascribed to the public world than to the private. Described distinction made between the public and the private to some extent justifies and makes natural the division of labor and distribution of resources between the male and female members of the society. The endorsement and acceptance of such division in all areas of knowledge have supported the primacy and domination of the male world over women.51 Such a pattern, in its turn, has served as a favorable basement for the reinforcement of traditional gender and social norms related to male superiority, which is most prevalent factor, that is linked to high rates of sexual offences committed by men. “Because of such perceptions on gender roles, in many societies it has been normalized to recognize sexual intercourse as a man’s right in marriage, and to assume, that women and girls are responsible for keeping men’s sexual urges at bay or that rape is a sign of masculinity.” 52 Respectively, the focus on the curve of the private-public dichotomy has been criticized for a number of reasons, especially in a view of the fact that, concepts of the public and private are not fixed but complex, culturally determined, and shifting.53 Thus feminism has made significant explorations in problematizing what considers as the private and the political by reasoning that certain problems are not essentially personal but societal too and therefore something, which law and policy should address.54Whilst the language of the Istanbul Convention did even more through shifting a focus from legally defined actions to culturally defined traditions, as to an obstacle to the achievements of gender equality. For showing interrelatedness between society’s perception and sustainability of gender-based violence, in a broader context, the Istanbul Convention also clearly defined “gender” as the “socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for men and women”.55 The progressive language in these definitions urges ratifying parties to acknowledge gender inequities and the role of social constructs in applying the Istanbul Convention provisions to their domestic legislation.56 Such an articulated approach on gender component and its importance turns the Istanbul Convention into promising mean to end up with detrimental effect of gender-based violence to the women as a class – the issue steadily highly prioritized in the political agenda of international and regional organizations. Furthermore, not only the women right specific treaties, but the agenda 2030 on sustainable development has included among its goals the achievement of gender equality and the empowerment of all women and girls.57 Feminist writers have argued that public-private dichotomy has both supported and obscured the structural subordination of women. The role of law in the public sphere is protection from harm, while its role in the private domain is about preserving and thus perpetuating male autonomy. The focus of legal regulation on the public sphere has enabled the private to remain relatively free from 51 Christine Chinkin, Feminism: Approach to International Law, Max Planck encyclopedias of international law, Oxford Public International Law (http://opil.ouplaw.com), Oxford University Press, 2023, p. 2, para. 7. 52https://apps.who.int/iris/bitstream/handle/10665/77434/WHO_RHR_12.37_eng.pdf;jsessionid=EDC6BB6952951560D B11C30157EFC51B?sequence=1 p.6. 53 Christine Chinkin, Feminism: Approach to International Law, Max Planck encyclopedias of international law, Oxford Public International Law (http://opil.ouplaw.com), Oxford University Press, 2023, p. 4, para. 8. 54 Sharron A. FitzGerald & May-Len Skilbrei, Sexual Politics in Contemporary Europe: Moving Targets, Sitting Ducks. Cham: Palgrave Macmillan, 2022. p.11. 55 The Istanbul Convention, Article 3 (c). 56 Meredith Kimelblatt, “Reducing harmful effects of machismo culture on Latin American domestic violence laws: amending the convention of “Belem Do Para” to resemble The Istanbul Convention”, 49 Geo. Wash. Int'l L. Rev. 405, 2016-2017, p.427. 57 Sara de Vido, “The ratification of the council of Europe Istanbul Convention by the EU: A step forward in the protection of women from violence in the European legal system”, 9 Eur. J. Legal Stud. 69, 2016-2017, p.74. L’EUROPE UNIE / UNITED EUROPE, no. 22/2025 Print ISSN 0248-2851 • On-line/Linking ISSN 2743-4052 • ISBN 978-630-354-001-6 151 State intervention so that abuses committed there, for instance - domestic violence - can be relatively easily disregarded.58 Again, it was the Istanbul Convention, that assured states to draw attention at the structural subordination,59 as to detrimental to women - as a class. Such subordination fosters different forms of violence against women, which emanates from specific cultural values and beliefs.60 Some of the noticeable examples for such kind of violence can be bride burning61 or female genital mutilation62, whilst each of them are being strongly fought against by the means of international law. Human Rights Committee in its General Comment No 28 (2000) on Equality of Rights between Men and Women, required States to “report on measures to protect women from practices, that violate their right to life, such as female infanticide, the burning of widows and dowry killings”.63 Sexual offences too, including rape do not constitute an exception in this relation for a particular type of society, whose legal settings although covertly, but still boldly reinforces the ground for preservation of the cultural norms supporting outdated interpretation on sexual offences. There are cultural ideologies that support and sustain social structures, which permit and condone specific forms of violence against women.64Reparational marriage, which have been removed from Italy’s criminal code only in 80-es65 and the United States’ “marital rape exemption law” which have been abolished only in 90-es66 are the clear examples of the unfavorable cultural of particular states on the issue. Dismissive effects of cultural beliefs and stereotypes elucidated by CEDAW The clearest example of negative effects of cultural believes and stereotypes on the final assessment of rape cases can be seen in CEDAW committee judgment regarding Vertido case.67It was the first CEDAW communication in which wrongful gender stereotyping and States Parties’ obligations to eliminate that practice have been a central focus.68 Committee evaluated Judge Europa’s reasoning as stereotypical belief as if women should physically resist rape and other forms of sexual assault at every possibility.69 In any relation, it must be always considered that gender stereotypes influence legislation on the formulation of norms as well as on actions of the 58 Christine Chinkin, Feminism: Approach to International Law, Max Planck encyclopedias of international law, Oxford Public International Law (http://opil.ouplaw.com), Oxford University Press, 2023, p. 4, para. 8. 59 Explanatory Report to the Istanbul Convention, preamble, para. 25. 60 Aruna Papp, “Conspiracy of Silence: Honour-Based Violence in North America”, 22 Buff. J. Gender L. & Soc. Policy, 105 (2013), 115. 61 It is a form of domestic violence spread in India and practiced in countries located on or around Indian subcontinent. 62 Irine Kherkheulidze, “Gendered aspects in the crimes threatening human's life and health - forced sterilization and FGM" in Actual Matters of Criminal law, edited by N. Todua & M. Ivanidze, Tbilisi, 2020, pp. 145-304. 63 Christine Chinkin, Feminism: Approach to International Law, Max Planck encyclopedias of international law, Oxford Public International Law (http://opil.ouplaw.com), Oxford University Press, 2023, p. 7, para. 20. 64 Aruna Papp, “Conspiracy of Silence: Honour-Based Violence in North America”, 22 Buff. J. Gender L. & Soc. Policy, 105, 2013, p. 115. 65 Valentina Rita Scotti, “Protecting women from rape” in Reconsidering Gender Based-Violence and Other Forms of Violence Against Women, Comparative Research/Analysis in the Light of The Istanbul Convention edited by G. Piccinelli, I. Kherkheulidze, A. Borroni, LibellulaEdizioni, 2017, p. 132. 66 Jill Laurie Goodman, updated by Lynn Hecht Schafran & Eliana Theodorou, “Intimate Partner Sexual Assault: An Overlooked Reality of Domestic Violence” in Lawyer’s Manual on Domestic Violence Representing the Victim, 6th ed., edited by Mary Rothwell Davis, Dorchen A. Leidholdt & Charlotte A. Watson, 2015, pp. 68-69. 67 Karen Tayag Vertido v. The Philippines (18/08), Available at: https://juris.ohchr.org/casedetails/1700/en-US; CEDAW/C/46/D/18/2008 (2010), at: https://documents.un.org/doc/undoc/gen/n10/545/58/pdf/n1054558.pdf 68 Simone Cusack and Alexandra S. H. Timmer, “Gender Stereotyping in Rape Cases: The CEDAW Committee’s Decision in Vertido v. The Philippines”, Human Rights Law Review 11:2(2011), p. 336. 69 Simone Cusack and Alexandra S. H. Timmer, “Gender Stereotyping in Rape Cases: The CEDAW Committee’s Decision in Vertido v. The Philippines”, Human Rights Law Review 11:2(2011), p. 332.