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Italy’s highest court has made way for two men, who were convicted of rape over a year ago, to receive a retrial based on the court’s finding that the woman victim had voluntarily consumed alcohol on the night of the attack.

According to the Guardian, Italy’s court of cassation acknowledges that the men “took advantage” of the victim, but argues in its decision for a retrial that the victim’s drinking prior to the attack essentially precludes the men from being punished past a certain extent:

“...the court of cassation has ordered a retrial in order to revise the sentence, saying that even though the defendants took advantage of the woman’s drunken state in order to have forced sex with her, aggravating circumstances were not applicable because she had voluntarily consumed alcohol.”

The two men were found guilty of rape by a court in Turin in January 2017, after they were found not guilty years before, in 2011, by a judge in Brescia who “found the victim’s account of events unreliable.” According to the Guardian, the alleged rape took place in 2009, in a bathroom after the men and woman had a meal together, and the woman showed up at the ER a few hours later.

In many ways, the Guardian’s coverage of the case makes each court’s rationale to convict, not convict, or retry the defendants seem equally paper-thin. The court that found the two men guilty is described as making its decision based on evidence that indicates the woman “tried to resist the attack.”

Then again, the victim drank that night—which apparently matters more than the potentially predatory actions of the defendants or how hard she fought back. Was she wearing a short skirt, too?