By Magdalena Grzyb (published in cooperation with the Jagiellonian Club think tank)
Article 197 of the Polish criminal code defines rape as “subject[ing] another person to sexual intercourse by force, illegal threat or deceit”. This definition does not work. Not only do most convicted rapists receive light or suspended sentences, but also the application of the law partly places the burden of proof on victims, who must demonstrate that they showed sufficient resistance.
On Women’s Day, The Left (Lewica) submitted a proposed amendment to Poland’s criminal code, which would change the legal definition of rape, raise the minimum prison sentence to three years and equalise the penalties for rape, rape in the form of another sexual act, and exploiting the victim’s helplessness, intellectual disability or mental illness to bring about intercourse or another sexual act. According to the bill, all these activities would be punished by between three and 12 years’ imprisonment.
Whether it is right to increase potential penalties and to equalise sexual intercourse with other sex acts is open to debate. The most important change, however, is the proposed new definition of rape.
By law, it would now mean any intercourse or other sex act without previous expression of the clear and informed consent of the other person – that is, any non-consensual sexual contact. This is a major change compared to the existing definition of rape as using force, threat or deceit to subject another person to sexual intercourse.
The Left’s proposal is a step in the right direction and an idea at least worth considering. The existing law is glaringly ineffective, and Poland is not immune to ongoing cultural changes. But the main problem is courts’ interpretation of such crimes and the actions taken by law enforcement authorities.
An unprosecuted and unpunished crime
Rape is a unique crime from a criminological perspective. First, it is characterised by a very high so-called dark figure, meaning the proportion of acts that do not come to light. For various reasons, victims do not report the crime to the police. Research by the Ster Foundation shows that only 8% do so. According to police statistics, there are around 1,300 reported rapes (including attempted rapes) annually. In a country of 38 million people? This seems improbable.
Second, contrary to stereotypical views on rape, it has a high detection rate of 85%, as the victim usually knows the perpetrator personally and is able to identify him and give his name. And yet most cases – as many as 70% – are discontinued. Of the crimes that reached court in 2018, only 368 convictions resulted from article 197 paragraph 1. Punishments are also not severe – 332 of those convictions resulted in imprisonment, but only 277 without a conditional suspension.
Although the law foresees prison terms of between two and 12 years, only 21 people were sentenced to more than five years. The majority received between two and three years. Of the annual 1,300 confirmed rapes, just 475 perpetrators actually end up in prison. These figures do not indicate that Poles do not rape, but that in Poland it is extremely difficult to be convicted of this crime.
It is no exaggeration to state that the existing laws and practice of law enforcement in its current form favour impunity for sexual violence. The working practices of the police and courts discourage victims from coming forward, and most cases are in any case discontinued. Above all, though, only a tiny percentage of all rapists commit an act that fits within the legal definition of rape.
Most cases that disappear at the various stages of proceedings do not concern false accusations, but instance when it could not be proven that a rape as described in article 197 paragraph 1 took place, although the victim did not give consent to intercourse. According to Polish law, non-consensual sexual relations – forcing another person to have sex – in the practice of the judicial system is not a crime.
The difficulty of rape as defined by Polish law
The legal definition of rape, with minor modifications, was added to the criminal code in 1932. Perhaps at the time it was a rather modern construction, but almost 90 years have passed since then, and the interpretation is now jarringly anachronistic and misogynous.
Since that time, by law and according to court interpretation, for sexual intercourse to be recognised as rape in Poland, the victim must resist, i.e. externalise their opposition to the actions of a perpetrator who uses forces (or threat or deceit, although these account for a small fraction of cases).
Significantly, legislation defines the ways the perpetrator can overcome his victim’s resistance, but does not specify how the victim might express this resistance, leaving the question open to the court’s interpretation. Therefore, depending on the way the victim acts and the perpetrator subjectively interprets her behaviour, courts decide whether a rape took place.
The resistance must be noticeable to the perpetrator, so passive resistance is not sufficient. Court rulings show that it must be physical (overcome by physical force), and depending on the circumstances the victim may also employ verbal resistance.
The cited examples of such opposition – crying, shouting, calling for help, begging with the perpetrator – show that simple verbal opposition in the form of a calm “no” is not sufficient. This verbal resistance must be not only unambiguous, but also reinforced, either by the strength of the voice or by means of expression and intensiveness. It must be dramatic and desperate enough for the perpetrator to be able to overcome it with violence.
The perpetrator can always defend himself by saying that he did not treat the woman’s “no” seriously. And thus, when a court rules that the victim did not put up enough resistance (employing the not entirely specified standard of the “normal Polish man”), a forced sex act is not classified as rape.
On the one hand, the victim must prove that she was not responsible for bringing about the situation of the rape by provoking the perpetrator’s behaviour, for example by wearing a short skirt or even smiling. In other words, she must demonstrate that she did not send him signals that she was sexually available and that her behaviour was within the “norm of sexual behaviour of decent women”.
On the other hand, she must also prove that when the perpetrator attacked her, because he felt “encouraged”, she gave him a clear enough signal for him to understand that she did not want sex. The woman is blamed for encouraging the rapist and also for not defending herself strongly enough. From this point of view, the perpetrator himself becomes a primitive machine with no control over his sexual urges.
Force results from the victim’s resistance, and it is therefore in her interest to resist as much as possible as a measure of this force. And it is on the victim’s behaviour that the burden of proof lies to show she resisted strongly enough for the perpetrator to be able to overcome the resistance.
A sexist definition of rape
This definition of rape has its sources in the traditional and sexist cultural and moral norms and so-called male sexual privilege (almost all rapists are men and 90% of victims are women). But this perspective lays the entire blame on the victim.
It is the victim who must behave appropriately so that the perpetrator can understand that she does not want sex and be able to overcome her resistance. She must give him the opportunity to use violence against her. It is as if the legislator assumed in advance that a man, almost by definition, has the right to sexual access to a woman’s body, unless the woman puts up clear resistance.
Such concepts sound ridiculous to contemporary ears. Not only are they extremely harmful to victims in terms of evidence and the enormous stress a woman faces during court proceedings, when she is forced to prove that she resisted the rapist sufficiently.
Above all, they are indefensible in a society in which women have – or at least this is what the state should aspire to – equal rights to men, identical sexual autonomy and rights over their own bodies.
The requirement to resist is detached from social reality
Recent empirical research and the evolution of social and moral norms have also cast doubt on the very notion of resistance to sexual attack. Although manifesting physical or verbal resistance might be evidence of use of violence by the perpetrator or the victim’s lack of consent, failure to resist by no means the reverse.
Studies have shown that, while some women react to a sexual act with active resistance, others might experience a “frozen fright” reaction and be unable to actively resist. This does not mean that they consent. The attacker’s very approach, conduct and physical advantage, combined with the circumstances, can lead the victim to freeze or make her feel that resistance is futile.
Resistance can also often increase the risk of physical harm. While some studies show that resistance can dissuade the perpetrator, around the same number suggest that it can lead to even greater escalation of violence. Of course, it is better to have more physical injuries for evidence purposes, but in terms of physical integrity and safety, this is not necessarily the best strategy.
Besides, calculating what behaviour will be more advantageous in a potential trial is hardly the first thing on the mind of the victim, who just wants to get “it” over as soon as possible and escape intact.
Framing rape solely as the perpetrator using violence or the threat thereof and the woman having to defend herself makes some sense for situations where he is an unknown person who attacks her in a dark alley in a public place.
Yet research shows that most victims knew their attackers well (it is usually a partner or ex – someone who has previously had consensual relations) and the rape took place in their own home.
A new definition
A new, more suitable definition is therefore essential in criminal law. One example is the “affirmative consent” standard proposed by The Left, which provides maximum protection of an individual’s sexual autonomy.
The doctrine of affirmative consent assumes that simple passivity or acquiescence to another person’s actions are not sufficient consent to sexual penetration. Valid consent must be an active desire to engage in sex positively expressed verbally or non-verbally before the other person can initiate intercourse. Both partners therefore have greater clarity.
The rule of affirmative consent is also referred to as the “yes means yes” standard to distinguish it from “no means no”, which lays the emphasis solely on the victim’s refusal (without the need to show resistance). This is therefore an extra step forward in the evolution of definition of rape towards protecting sexual autonomy.
The perpetrator does not have to use force, deceit or threat to overcome the victim’s resistance, while the victim need not prove that she put up resistance that was overcome. The victim does not even have to clearly say “no” to manifest her lack of consent or prove that she was unable to express her informed and free consent.
Rape is therefore understood as all non-consensual sexual relations. More broadly, the objective is to fundamentally reformulate intimate relations – to eliminate the so-called male privilege for sex and challenge all cultural sexual stereotypes on behaviour of men and women.
This means especially the image of the man as conqueror of women’s resistance and the passive woman as the conquest who says she does not want to even when she does, so as not to seem “easy”. Changing the direction of rape is also a step towards challenging the links between sexual conquests and various definitions of masculinity.
Finally, the stereotype of men as conquerors of women must be deconstructed. This and other cultural ideas on intimate relations and appropriate behaviour of women and men are the real source of sexual violence. The result is numerous breakdowns in communication whereby many men who have raped do not even realise that they have done so, while the words of women are not seen as credible.
At a time when more and more European countries are changing their legal definitions of rape and the Polish media are full of stories of rapes that turned out not to be rapes, while certain politicians chuckle that “girls are always raped a bit” to boast of their virility, it is high time for Polish legislators to seriously consider updating the legal definition of rape for the 21st century.
Translated from the original Polish by Ben Koschalka. Main image credit: DOMINIK SADOWSKI / AGENCJA GAZETA
