Lack of consent as the basis for redefining article 197 § 1 of the criminal code

Abstract

The study addressed the issues and doubts concerning the change in the definition of rape, specifically through the addition of the element of consent to the basic provision. However, this is not possible without highlighting the specificity of the problems that the criminal law system grapples with, and revealing the legal gaps that the amendment of June 28, 20243 creates. At the outset, it was necessary to outline the historical background, which showed how the provision of Article 197 § 1 of the Criminal Code has evolved over the years, what Legal prerequisite it has established so far, as well as their relation to the explanatory memorandum of the parliamentary bill amending the act of February 14, 2024. The second thematic area was based on an attempt to define the meaning of consent as an element of the crime of rape. The research attempt included considerations based on the Patient Rights Act and the Patient Rights Ombudsman, Civil Code, as well as relevant doctrine. The third area focused on examining the need for a redefinition. The analysis includes statistical data, the 20134 amendment to the prosecution procedure, issues of victimization and re-victimization, as well as reflections based on court rulings. The final area aimed to identify and address problems that have been left unrecognized, such as the scope of granted consent and its revocation, as well as the phenomenon of bodily paralysis in response to fear and violence. The primary research method applied in this study was the deductive method, encompassing the analysis of relevant literature and rulings.