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WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

years old and that she is, in the above sense, an innocent person”. the resistance, he does not realize the elements of the crime of
Moreover, as Krajewski points out, “already in the between-the- rape because the victim’s consent to sexual intercourse actually ex-
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wars period Macko wrote that ‘the crime of rape is rightly counted ists and the victim only pretends not to express it”. It would be
among the most serious punishable acts, although some legisla- a logical assumption that in a situation where consent of the vic-
tions consider it unpunishable or half-punishable if the victim is tim would exist, we would not have a prosecution. Especially when
a ‘woman of easy virtue’. These are reminiscences of those times rape was prosecuted only on the motion of the victim. This means
when this kind of a woman was marginalized out of the society, that without an active will to prosecute, there would be no evi-
and the law cared for her only in certain exceptional cases”. It is dence or trace of the crime. However, Supreme Court has ad-
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now recognized that anyone can be a victim of rape, regardless of dressed the topic of “pretended resistance” and prejudged that it
their gender, sexual orientation, or opinions about their morals may be, for example, a form of amorous play, to arouse greater
and way of life. There is no doubt that the victim’s bad reputation, excitement in a partner or some other form of encouragement
past, defiant appearance, outfit, or behavior matter a great deal. for sexual intercourse. The existence of the concept of “pretended
However, such variables predominantly concern women. The insti- resistance” is intended to protect the potential perpetrator of
tutionalized environment in which women have been raised works the crime from false accusations. However, this ignores the fact
against them, especially when it comes to considering the differ- that false accusations concerning rape are very rare. Citing foreign
ent versions of the testimony – of the rapist and the victim and data, including but not limited to one of the most comprehensive
confronting them with the double standards that are held for men reports on the issue of false accusations occurring in the crime
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and women. of rape Lisak points out that “these findings contradict the still
In connection with the above considerations, it is necessary to em- widespread stereotype that false rape allegations are a common
phasize how important it should be for students to learn the crit- occurrence. Such claims not only undermine the rationality of
ical analysis of law, which undermines that the existing texts and the discourse but also harm the victims of sexual violence them-
legal solutions are constant and subject only to “interpretative selves”. The authors determined that false accusations of rape ac-
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and systematizing procedures” . This is crucial in the context of count for approximately 2% to a maximum of 10% of all reports,
teaching future lawyers so that the perspective of critical analysis a much smaller percentage compared to false accusations reported
of the law can also be a source of change in the future – not only for other crimes to which not as many suspicions and allegations
for the law itself but also for social relations . are applied. The statistics for false rape accusations, as indicated in
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In teaching law, it is important for students not only to familiarize the literature, while sometimes varying, are consistently kept very
themselves with current laws but also to learn how that laws have low, with studies in Europe and the United States indicating that
been influenced by stereotypes and social tendencies. This can be the percentage is between 2% and 6% .
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done, among other things, through the teaching and application According to the data of the Polish police, in 2016, there were
of feminist legal theory, which aims at the examination of exist- 134 identified offenses related to Article 234 of the Penal Code .
44
ing regulations, such as the problem of the longstanding domina- According to that Article, whoever, before an agency responsible
tion of men and discrimination against women. It also focuses on for prosecuting or judging offenses, contraventions, or discipli-
the necessity to go beyond previous socialization to see the exist- nary transgressions, falsely accuses another person of committing
ing oppression and privileges – also in a legal context. This is also an offense, a contravention or a disciplinary transgression shall be
important in the framework of building an open space for victims subject to a fine, the penalty of restriction of liberty or the penalty
of sexual crimes, who can seek a place free from stereotypical and of deprivation of liberty for up to 2 years. However, these statistics
prejudicial attitudes in the organizations of student legal clinics. do not specify which offenses are involved. For comparison, police
It is a valuable practice to sensitize students to the sociological and statistics for the same year show that there were 1383 confirmed
45
psychological issues that rape victims may face during the proceed- rape offenses . Even if we assume that all the false accusations
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ings. A problem often depicted in the literature is the lack of trust were related to the crime of rape (which is wrong), this percent-
in victims, which can even lead to diverting responsibility for rape age would remain small in the context of the actual cases in which
to them. It takes place on several levels. One of them is accusing the crime was found.
the victims of expressing “pretended resistance” which is charac- Stereotypical and often depreciating behavior towards the victims
terized by the fact that the victim only pretends to resist but wants of rape can also be observed among representatives of law enforce-
the sexual intercourse to happen. As it is indicated in the doc- ment agencies or the justice system . Due to that, victims may
46
trine , “if the perpetrator is aware of the apparent character of try to hide what happened to them, often by dropping the charges
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and denying the trauma they experienced. It is estimated that
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35 R. Krajewski, Zgwałcenie osoby trudniącej się prostytucją, Ius Novum 2012/2,
p. 68. 40 Judgment of the Supreme Court of the 26 July 2001, V KKN 9/99.
36 P. Skuczyński, Typy myśli krytycznej o prawoznawstwie. Od krytyki poznania 41 D. Lisak, L. Gardinier, S.C.Nicksa, A.M. Cote, False Allegations of Sexual Assault:
do walki o uznanie, [in:] M. Zirk-Sadowski, B. Wojciechowski, T. Bekrycht (eds.), In- An Analysis of Ten Years of Reported Cases, 2010; J. Krakauer, Missoula. Gwałty
tegracja zewnętrzna i wewnętrzna nauk prawnych, cz. 1, 2014, p. 134. w amerykańskim miasteczku uniwersyteckim, 2018, p. 140.
37 Ibidem. 42 Ibidem.
38 A. Grygorczuk, K. Dzierżanowski, T. Kiluk, Mechanizmy psychologiczne występu- 43 Here’s the Truth About False Accusations of Sexual Violence, Irish Examiner,
jące w relacji ofiara-sprawca przemocy, Psychiatria, 2009, T. 6, No. 2; M. Hen- 2019.
dricks-Mattews, The battered women: is she ready for help? Social casework, 1982; 44 https://statystyka.policja.pl/st/kodeks-karny/przestepstwa-przeciwko-11/
M. Grabowska, Pomiędzy wiedzą a stereotypem. Instytucje publiczne i organizacje 63580,Falszywe-oskarzenie-art-234.html [access: 12.12.2021].
pomocowe wobec problemu gwałtu, [in:] J. Piotrowska, A. Synakiewicz (eds.), Dość 45 https://statystyka.policja.pl/st/kodeks-karny/przestepstwa-przeciwko-6/
milczenia. Przemoc seksualna wobec kobiet i problem gwałtu w Polsce, Fundacja 63496,Zgwalcenie-art-197.html [access: 12.12.2021].
Feminoteka, 2011. 46 An example of this is the non-recognition of marital rape for many years, see:
39 M. Budyn-Kulik, M. Kulik [in:] M. Królikowski, R. Zawłocki (eds.), Kodeks karny. D. Rode, Gwałt w związku małżeńskim, Chowanna 1, 2005.
Część szczególna. Komentarz art. 117‒221, 2017, p. 668; J. Warylewski, 47 C.G. Bowman, L.A. Rosenbury, D. Tuerkheimer, K.A. Yuracko, Feminist Jurispru-
Przestępstwa przeciwko dobrom indywidualnym, T. 10, 2016, System Prawa Kar- dence. Cases and Materials, 1994, p. 294; M.D. Smith, Encyclopedia of Rape,
nego, p. 684. 2004, p. 8, 215.

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