Polish court rules 14-year-old girl was not raped “because she did not scream”

A court has overturned a rape verdict against a man who had sex with a 14-year-old girl and reduced his sentence. Despite the victim testifying that the act was non-consensual and that she tried to resist, judges deemed that rape did not occur because the girl did not scream, says her lawyer.

The ruling has prompted widespread criticism, with commentators saying that it is illustrative of wider failings in how rape is defined and dealt with in Poland’s justice system.

The incident in question took place at the end of 2016 in the city of Wrocław, when the girl visited family for Christmas. With limited space in the apartment, the girl decided to sleep in the empty bed of a 26-year-old male relative, who had gone out to a night club, reports local newspaper Gazeta Wrocławska.

In the early hours of the morning, the man returned to the apartment drunk and began to kiss and undress the girl, before engaging in sexual intercourse with her. According to her testimony, she tried to prevent his advances by pushing him off, attempting to move away, and saying “I don’t want this” while crying.

The girl only informed her mother about the incident several months later, at which point the police began an investigation.

The prosecutor’s office initially accused the man of the crime of sex with a minor. However, a court went on to find that he was guilty of the more serious offence of rape, sentencing him to three years in prison.

Its decision was based on the girl’s testimony as well as instant messaging conversations between the two parties in which the man had apologised to the victim for his actions.

The man, however, claimed he had did not write the apology himself. He maintains his innocence and appealed against the verdict. Although the appeals court rejected the defendant’s call for a full acquittal or retrial, it has overturned his rape verdict and found him guilty only of sex with a minor.

That crime is supposed to carry a minimum prison sentence of two years. However, because the victim turned 15 – Poland’s age of consent – just days after the incident took place, the court decided to apply leniency in the verdict, giving the defendant only a one-year suspended sentence.

The appeals court justified its ruling in part on the fact that the victim waited so long before reporting the incident. Her lawyer also says that the court deemed rape not to have occurred “because my client did not scream, which means that the perpetrator did not use violence”, reports Gazeta Wrocławska.

The victim had explained in court that she did not scream because “I was afraid of what people would think if they came in and saw what was happening”, according to Wirtualna Polska.

The ruling is now binding. However, it can be appealed to the Supreme Court at the request of either the commissioner for human rights, Adam Bodnar, or the prosecutor general, Zbigniew Ziobro.

Contacted by Wirtualna Polska, the National Prosecutor’s Office confirmed that it has ordered a review of the case in order to determine whether Ziobro should lodge an appeal.

Bodnar, speaking to Polsat News, said the case “should be looked at” and that sometimes “courts make mistakes”. He noted a ruling by the European Court of Human Rights, which found that not screaming or otherwise resisting during rape can be a “natural psychological response” for a victim.

The ruling has been met with outcry from politicians and commentators, who argue that it is indicative of wider failings in how Poland’s justice system deals with rape.

Anna-Maria Żukowska, spokeswoman for The Left, the third largest group in parliament, said that such rulings – which are “unfortunately common” – show why so many victims decide not to report the crime at all.

Sylwia Spurek, an independent MEP (and former deputy human rights commissioner), suggested that the ruling was a result of Poland’s “archaic definition” of rape, which she said does not conform to ECHR judgements or to the Istanbul Convention on violence against women.

That convention, to which Poland is a signatory, defines sexual violence as including “non-consensual” sexual acts. However, Polish law classifies rape as an act that subjects another person to sexual intercourse through force, unlawful threats or deception.

In July, Ziobro – who is the justice minister as well as prosecutor general – launched an attempt to withdraw Poland from the Istanbul Convention, which he argues “promotes LGBT” and is unnecessary because of existing domestic laws against violence.

The next month, Ziobro announced that he would submit a bill toughening sanctions for those found guilty of rape. Currently, rapists often receive only suspended sentences. In the years 2010 to 2016, between 31% and 41% of rape convictions only resulted in a suspended jail term, reports Dziennik Gazeta Prawna.

But many organisations and activists argue that the problem is not just the severity of punishments, but also the difficulties victims face in obtaining justice in the first place.

Maja Staśko, founder of the Forget-me-not association, a charity that provides support to those who have experienced sexual violence, says that 67% of rape cases in Poland are discontinued.

Following news of the Wrocław court’s ruling, a rare voice supporting the outcome came from Janusz Korwin-Mikke, an MP and one of the leaders of the far-right Confederation (Konfederacja). “If they don’t scream, it shows they want it,” he tweeted.

“This criterion has worked for 6,000 years,” he added. Without it, “how can you distinguish a victim from a girl who [has sex] willingly but then accuses of rape because she’s afraid of her dad?” His words were widely condemned.

Main image credit: Raul Lieberwirth/Flickr (under CC BY-NC-ND 2.0)

Juliette Bretan

Juliette Bretan is a freelance journalist covering Polish and Eastern European current affairs and culture. Her work has featured on the BBC World Service, and in CityMetric, The Independent, Ozy, New Eastern Europe and Culture.pl.