A new definition of rape is needed
The campaign 16 Days of Activism Against Gender-Based Violence is underway. On this occasion, we speak to adwokat Dr Artur Pietryka of Wardynski & Partners’ criminal practice about the need to amend the Polish law on sexual assault.
Why is a new definition of rape needed in Polish law?
Because the current definition does not meet international standards, which are also increasingly being implemented in national legal systems, especially within European countries. The law now does not emphasise the key issue of the voluntariness of a sexual act, i.e. the participants’ consent to participate in it. It is this factor, the lack of free and informed consent, that should be a condition for a rape prosecution.
What is rape under Polish law?
In the shortest terms, it is sex, including both sexual intercourse and other sexual activities (e.g. genital touching), performed by one person on another person, where the perpetrator acts in a certain way. This last element, how the perpetrator operates, is paradoxically the most important part of the definition. This is because all the effort to prove that rape has occurred must be put into showing that the perpetrator used violence, deception or threats. Thus the issue of whether there was consent from the aggrieved party to have sex recedes into the background.
In Poland, where did this definition come from?
Unfortunately, it has been functioning in Poland for almost a century, since it was adopted in the Criminal Code of 1932. The definition has been carried forward for all the intervening decades. Any changes to it have been merely cosmetic, for example to reflect linguistic evolution of certain terminology. Thus the notion “lewd act,” rarely found in everyday language today, has been replaced by “sexual intercourse.” But the principle has remained the same. To prove rape, the perpetrator must be shown to have acted in a certain way.
Does this definition contribute to the low number of reports by rape victims to the police?
Certainly, the definition of this crime is one of the reasons it is rarely reported to law enforcement authorities. One reason, but not the only one. There are actually a mosaic of problems underlying the low percentage of reports and the resulting low effective rate of prosecution.
Another equally important problem is the approach of law enforcement authorities—police and prosecutors—to victims. For years, it has been raised in the discussion on this issue that both police officers, prosecutors and judges are insufficiently prepared to work with victims of sexual violence, and as a result they approach rape cases inadequately, without the required empathy.
What do victims have to deal with?
In short, “participation in criminal proceedings,” which is not easy for them. It is necessary to file a notice of suspicion of a crime, undergo a visual inspection of the body, a court hearing and a psychological examination. This is often a major effort for victims, which they are unable or unwilling to bear.
Law enforcement authorities are not doing much about it. There are no psychologists to work with victims. At an interview when filing notice of a crime, the victim may have to talk to a policeman, not a policewoman. There is also a lack of support from court-appointed counsel.
Thus, women reporting sexual assault (most often the victims are women) are seated in an interrogation room, and the memory of probably the most heinous event that has happened to them in their lives comes back with redoubled force. This is revictimisation, that is, a return to the trauma and, at the same time, a return to the feeling of helplessness. This feeling returns when a woman sits at the police station and answers questions like “Why did you wear such a short skirt?” Along with the definition of rape, this must change.
Some claim in the public debate over this issue that a provision in line with the Istanbul Convention, i.e. requiring “free consent,” would be abused—that anyone could be accused of rape. Are these valid concerns?
I do not agree with them. Examples of other legislation do not prove this at all. There are no exponential increases in the number of cases initiated. Of course, the change of definition introduces a change of accent and puts an emphasis on determining the existence of voluntary and conscious consent. However, this does not mean favouring the victims in the proceedings. Based mainly on their testimony, it will still be necessary to prove the circumstances in which the assault occurred.
To be clear, simply changing the definition will not result in many more complaints being filed. Much more work will have to be done to increase public awareness, combat stereotypes, and create sexual awareness in society.
What exactly is “free consent”?
Consent is free when a person has a full understanding that he or she is participating in a sexual act, and desires it, as they derive pleasure and satisfaction from the sexual act, and want to share these feelings with the other person.
Certainly, there cannot be said to be free consent in a state of intoxication with drugs or alcohol, or being paralysed by fear or as a result of injuries. Nor can the existence of consent be presumed when the victim did not scream or defend themselves. In such a situation, it must be understood that such passivity does not imply consent, but is due to the victim “freezing” and being unable to object. What I am saying might seem obvious, but law enforcement, as well as the general public, do not always keep this in mind and, unfortunately, often perpetuate stereotypes like “She was drinking with that boy, so why is she surprised….”
At the request of Amnesty International, Wardynski & Partners has prepared a legal opinion on implementation of Art. 36 of the Istanbul Convention in Polish criminal law. The opinion was drafted by Adrianna Lipień and Zuzanna Śladowska under your guidance. What does the opinion include?
In the opinion, taking into account the standards of the Council of Europe, examples of regulations from other countries, case law of the European Court of Human Rights, and the recommendations of CEDAW (the Committee on the Elimination of Discrimination against Women), we conclude that it is impossible to achieve the standard expected in the Istanbul Convention—“Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances”—without changing the definition in force in Polish law. In particular, we point out that GREVIO (the Group of Experts on Action against Violence against Women and Domestic Violence, which monitors how the Istanbul Convention is implemented in individual countries) has made a categorically and unequivocally negative assessment of the Polish provisions and thus the practices based on them. And it expects amendments to the Polish Criminal Code.
The full opinion can be found at the Amnesty International website.
Interview conducted by Justyna Zandberg-Malec
