Page 5 - Klinika Nr 33–34 (38–39)/2022

WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

It is women who most often become victims of so-called crimes The crime of rape as a clinical case
and violence based on their gender (it concerns especially such To be able to analyze problems that rape victims face and to find
crimes as human trafficking , domestic violence/partner abuse , out possible problem-solving paths for students (including teach-
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rape , or sexual harassment ). ing materials and plan, which is extremely important in terms
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It is important to underline that in the context of sexual violence, of understanding the complexity of the problem), it is necessary
victims affected by this crime are much more likely to be stigma- to briefly outline the existing legislation in this area. The base legal
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tized and subject to deep-rooted stereotypes than clients in other act relating to rape is the current Penal Code of 1997 . According
sections of legal clinics (although this is not a constant rule). In to the binding article 197 of the Penal Code, the offense of rape in
addition, the literature has extensively addressed the psycholog- its basic form is committed when the offender uses force, illegal
ical consequences of crimes, such as rape . Victims may suffer threat, or deceit and thus makes the victim have intercourse or
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extreme trauma and post-traumatic stress disorder, ranging from other sexual activities (Article 197 §2). Article 197. § 1. of the Pe-
multiple re-experiencing of the traumatic event to various disor- nal Code indicates that the objective side of an offense consists
ders, depression, dissociation, etc. in causing another person to have sexual intercourse or to submit
Law students in their contact with persons experiencing sexual vi- to another sexual act or to perform such an act, which is confirmed
olence are facing a situation that requires not only a comprehen- by Article 197. § 2. of the Penal Code. According to that provision,
sive analysis and subsumption of the facts under the existing laws it is also required that the crime of rape is committed using vio-
but also an empathetic approach and sensitive consideration of lence, unlawful threat, or deception. Based on the objective side
the issues of inequality and discrimination that still exist in the so- of an offense, rape is a complex crime. As noted by Budyn-Kulik
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cial and legal space. The growing social awareness of the issues re- “for this crime to be committed, two elements have to be present
lated to sexual crime, which is still deeply conditioned by gender at the same time: using a specific method (by force, illegal threat or
and culture, makes it possible for students to deal with cases of deceit) to have sexual intercourse with the victim”.
victims of such crimes as rape or sexual harassment. More victims One of the problems concerning the crime of rape addressed in
are coming to university legal clinics and seeking help there, which the doctrine is the current wording of the provision of Article 197
requires a comprehensive approach to the above crime from law of the Penal Code. The literature indicates that the normative
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students in such clinics. content of the provision does not correspond to the criminolog-
The Legal Clinic at the University of Warsaw has a section deal- ical content of the crime and that Article 197 of the Penal Code
ing with cases of gender-based violence and discrimination, that protects the so-called sexual freedom but does not protect the sex-
serves not only victims of crimes, but also victims of discrimina- ual autonomy of the individual. This problem was also recently
tion and inequality in other branches of law, such as reproductive brought to the attention of the Minister of Justice by the Om-
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rights, etc. Nevertheless, a noticeable tendency in the Clinic’s ac- budsman. In his position , the Ombudsman stated that it is cru-
tivity is an increasing number of cases of victims of rape and sex- cial to improve the standards of protection against sexual violence
ual harassment who seek help from students and future lawyers. and that in the case of rape, the occurrence of the crime should be
This is a phenomenon of great social importance, which makes proved by the lack of positive, i.e., conscious, free, autonomous and
a huge and positive impact, and all efforts should be made to en- uncoerced consent to sexual intercourse. Sexual autonomy presup-
sure that victims seek help in such places as a university clinic. poses the necessity of consenting to sexual intercourse, whereas in
That should be a space where they are treated with due respect Polish law the emphasis is on the need to express objection to un-
and understanding, and where is room for a critical evaluation of wanted sexual behavior, which takes the form of the so-called vic-
the existing law. tim’s resistance. This has far-reaching consequences, as a result of
This study is an attempt to indicate and eliminate potential prob- which the lack of rape is determined by the lack of use of force, il-
lems that may arise in the context of dealing with the cases of rape legal threat or deceit by the perpetrator as well as lack of resistance
victims. Also, it aims to indicate potential directions of education by the victim. As Płatek emphasizes, the lack of the above does
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regarding the ways to provide support for the victims, which should not prove that the person has consented to sexual intercourse. Due
be full and comprehensive. It is also important from the point of to that the element of consent is not included in the current defini-
view of de lege ferenda conclusions in the context of binding regula- tion of rape, the victim in the proceedings before the court de facto
tions concerning the crime of rape in the Polish Penal Code. must prove that her/him was resisting and that the perpetrator
broke such resistance by using one of the ways indicated in the act.
6 B. Namysłowska-Gabrysiak, Handel ludźmi w celu wykorzystania seksualne- The inclusion of the element of consent in the definition of rape
go, 2018, p. XI. The author refers to the European Union statistical report is also suggested in numerous acts of international law, especially
on the crime of trafficking in human beings, which contains data for the pe- in the Convention on preventing and combating violence against
riod 2010‒2012: „This report shows that in the 28 EU countries, during 16
the above-mentioned three-year period, there were 30 146 victims of this crime, women and domestic violence , which was ratified by Poland over
80% of whom were women. Over 69% of registered victims of trafficking in
human beings were victims of sexual exploitation and within this population,
women constituted 95% of the registered cases”. 11 Act of 6 June 1997, The Penal Code, Dz.U 1997 No. 88/553.
7 B. Gruszczyńska, Przemoc wobec kobiet i reakcja policji w perspektywie międzynar- 12 M. Budyn-Kulik, Przestępstwa przeciwko wolności seksualnej i obyczajności,
odowej, Archiwum Kryminologii T. XXIX–XXX, 2007–2008, p. 100; U. Nowakows- [in:] M. Królikowski, R. Zawłocki (eds.), Kodeks karny. Część szczególna, Komen-
ka, A. Kępka, W. Chańska, Przemoc w rodzinie a wymiar sprawiedliwości, Centrum tarz do art. 117‒221, 2017, p. 668.
Praw Kobiet Foundation, 2005, p. 18. 13 M. Płatek, Zgwałcenie. Gdy termin nabiera nowej treści. Pozorny brak zmian i jego
8 O. Borkowska, M. Płatek, Skala przestępstwa zgwałcenia w Polsce, p. 10–11, skutki, Archiwum Kryminologii, T. XL, 2018, p. 350; R. Włodarczyk, Kryminal-
[in:] J. Piotrowska, A. Synakiewicz (eds:), Dość milczenia. Przemoc seksualna wobec istyczno-kryminologiczne aspekty przestępstw na tle seksualnym, Wydawnictwo
kobiet i problem gwałtu w Polsce, Fundacja Feminoteka, 2011. Wyższej Szkoły Policji w Szczytnie, 2015.
9 J. Smętek, Z. Warso, Cyberprzemoc wobec kobiet. Raport, Helsinki Foundation for 14 https://bip.brpo.gov.pl/pl/content/nie-bedzie-zmiany-prawa-w-sprawie-zgwalce-
Human Rights, 2017, p. 9‒10. nia-ms-odpowiada-rpo [access: 13.12.2021].
10 A. Czapczyńska, Chcę o tym zapomnieć… Psychologiczne konsekwencje gwałtu, 15 M. Płatek, Zgwałcenie…, p. 285.
[in:] J. Piotrowska, A. Synakiewicz (eds.), Dość milczenia. Przemoc seksualna wobec 16 Convention on preventing and combating violence against women and domestic
kobiet i problem gwałtu w Polsce, Feminoteka Foundation, p. 97. violence, Dz.U. 2015, 961.

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