Page 9 - Klinika Nr 33–34 (38–39)/2022

WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

the concept of feminist reasoning) how the law should consider violence, including the provisions of the Convention on the elimi-
the female perspective and reflect it in existing regulations. Stu- nation of all forms of discrimination against women, (CEDAW) .
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dent awareness in that area may be increased by analyzing case It would also be important to pay attention to the regulations con-
studies and problems that occurred during the proceedings – from cerning the crime of rape existing in other countries, including,
testimony to trial. This can be exemplified by examining domes- among others, the German Penal Code, in which the definition of
tic cases in which women have been held de facto liable for rape rape was changed as a result of the 2016 amendment. Previously,
– “not only a violation of a criminal law norm, but also a social it was assumed that rape is only committed when the victim de-
norm relating to the patterns of femininity that apply to them” . fends herself and fends off the attack of the perpetrator. Now, as
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It is also worth considering international jurisprudence, including a result of the adoption of the Istanbul Convention, the provisions
the judgment of the ECHR of December 4, 2003, in the case of have been revised and adapted to the requirements of Article 36
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M. C. v. Bulgaria , in which the European Court of Human Rights of the Convention. Among other interesting European solutions,
ruled that the punishability of rape cannot be made dependent on there are also provisions of the Swedish Penal Code, which also
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the existence of evidence of the use of force by the perpetrator and refer to the premise of lack of consent . Until 2018, under Swed-
the victim’s actual resistance. Another example could be the judg- ish law, it had to be proven that the perpetrator of the crime of
ment in S. Z. v. Bulgaria on March 3, 2015 , in which the Court rape led the victim to sexual intercourse by force, threat, or ex-
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acknowledged several faults related to the trial itself. The excessive ploited advantage when the victim was in a vulnerable situation.
length of the proceedings had colossal consequences for the ap- The change introduced in July 2018 means that it is now no longer
plicant’s psyche, who “being clearly in a very bad mental state as necessary to prove the occurrence of any of the above-mentioned
a result of the aggression, remained in uncertainty as to whether ways, but it is sufficient that the sexual intercourse took place
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the aggressors could be prosecuted and punished, and had to re- without the consent of the other person . Importantly, for sex
peatedly appear before the court and revisit painful events during with another person to be legal, the other person must clearly give
repeated hearings” . their consent. A passive attitude is not considered a voluntary ac-
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Another important issue is to analyze the problems that may arise ceptance of sexual intercourse or another sexual act .
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in the contact of victims with the justice system. This is justified
also on practical grounds because victims of sexual crime are ex- Conclusion
posed to the much greater influence of stereotypes, prejudices, and Rape is one of the most serious crimes, the effects of which have
patriarchal attitudes on the part of state bodies . In this context, a colossal impact on the victim’s subsequent life. Student legal
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it would be important for students to analyze specific cases of neg- clinics should be a place where victims of sexual crimes, includ-
ligence by the state and the justice system. ing rape, can receive comprehensive legal advice, but also be heard
Students should also become familiar with international legal with sensitivity and understanding. Students need to be aware
acts that aim at protecting women against violence, including sex- that this crime is fraught with numerous legal problems resulting,
ual violence. It would be worthwhile to analyze, among others, for example, from ineffective legislation, as well as the existence of
the provisions of the Istanbul Convention, i.e., the Convention on strong stereotypes that also manifest themselves in the activities
preventing and combating violence against women and domestic of the authorities and the judiciary. The proceedings in rape cases
violence, which is supposed to supplement national legislation are undoubtedly a huge challenge for law clinics, which is also be-
concerning the protection of women against violence. The Conven- cause students cannot represent clients in court proceedings.
tion defines sexual violence, including rape, as performing vaginal, An important point in clinical teaching about sexual crimes and
anal, or oral sexual penetration of another person with any part of violence against women is its critical analysis, which – perhaps
the body or any object without that person’s consent; performing – in the future will lead to a change in the public perception of
other acts of a sexual nature towards another person without that the crime of rape. According to the Ombudsman, “changing the law
person’s consent; or leading another person, without that person’s is not enough: the proper implementation of the legal interna-
consent, to perform sexual acts towards another person. About tional obligation to criminalize and prevent all forms of sexual vi-
the analysis of the provisions of the Convention and the protec- olence, including rape, can only be achieved if legislative efforts
tion it provides to women, it would also be important to note that are supported by proper action by law enforcement authorities.
there is increasing talk of the possibility of its denunciation by Po- This, in turn, will not happen unless we eliminate stereotypical
land, which was already done by Turkey. These trends should be perceptions of rape, particularly the role of the victim in its com-
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considered in connection with the general assessment of the situ- mission” . Expanding knowledge through participation in clinical
ation of women in those countries that want to denounce the Con- classes can also be an ideal beginning for generational change in
vention and see it as “a threat to traditional values” . worldview and ideological context.
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During clinical classes, it would be useful to discuss other docu-
ments that guarantee women greater protection against sexual

52 Ibidem, p. 15.
53 Judgment of the European Court of Human Rights of the 4 December 2003, 58 Convention on the Elimination of All Forms of Discrimination against Women,
M. C. v Bulgaria, No. 39272/98 [in]: M.A. Nowicki, Nowy Europejski Trybunał Dz.U. 1982, No. 10/71.
Praw Człowieka. Wybór orzeczeń 1999‒2004, 2005, p. 305. 59 See: P. Banaszak-Grzechowiak, K. Burdziak, Ł. Pohl, Przestępstwo zgwałcenia w wy-
54 Judgment of the European Court of Human Rights of the 3 March 2015, branych państwach europejskich – raport z badania, Instytut Wymiaru Spraw-
S. Z. v Bulgaria, No. 29263/12, www.echr.coe.int iedliwości, 2021.
55 Helsinki Foundation for Human Rights, S. Z v Bulgaria, https://www.hfhr.pl/ 60 S. Holmberg, L. Lewenhagen, The New Consent Law in Practice. An Updated Re-
wp-content/uploads/2015/10/omowienie_orzeczenia_sz_przeciwko_bulgarii. view of the Changes in 2018 to the Legal Rules Concerning Rape, 2020, p. 3.
pdf [access: 12.12.2021]. 61 U. Andersson, The Body and the Deed. Places of Rape in Swedish Court Narratives,
56 M. Płatek, Zgwałcenie. Gdy termin…, p. 273. Gender and Women’s Studies, 2021, p. 2–3.
57 https://prawo.gazetaprawna.pl/artykuly/1486907,konwencja-stambuls- 62 https://bip.brpo.gov.pl/pl/content/nie-bedzie-zmiany-prawa-w-sprawie-zgwalce-
ka-przemoc-wobec-kobiet-polskie-prawo-protesty.html [access: 13.12.2021]. nia-ms-odpowiada-rpo [access: 13.12.2021].

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