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Archives of Perinatal Medicine 20(3), 162-164, 2014
ORIGINAL PAPER
Sexual crimes
GRAŻYNA JARZĄBEK-BIELECKA1, KATARZYNA WARCHOŁ-BIEDERMANN2,
MAKSYMILIAN JARZĄBEK1, ANNA BIELECKA-GĄSZCZ1, WITOLD KĘDZIA1
Abstract
All actions against the law are punishable and forbidden by formalized legal codes. These offenses, depending on
the level of severity, are called felonies, misdemeanors or infractions. Legal norms and regulations also refer to
the issue of sexuality. Aim: to present the problem of sexual offenses.
Key words: law, sexology, sexual crimes
In modern societies all actions that break the law
are forbidden by formalized legal codes and punishable.
They are called felonies and misdemeanors. From legal
point of view, one may differentiate between sexual crimes and offenses with a sexual background. The former
include crimes which are described by sexual circumstances such as rape (mentioned in article 197 of Polish
Penal Code), incest (mentioned in article 201 of Polish
Penal Code) described by the law as typed sexual offenses. The latter category includes all other offences, in
which perpetrator’s behavior was driven by sexual motives or caused by sexual factors.
Ever since the beginnings of the civilization sexuality has been regulated by social restraints and legal
norms. The convention regulating human sexuality has
always remained diverse and depended on numerous
factors such as the historical period, culture, geographical conditions and living conditions of a given society.
Even in the oldest civilizations, however, the state
and the authorities enforced its own regulations on sex
life, usually by favoring marriage and family, sexual behavior have always been regulated by law. Law, in turn,
consisted of legal rules, which forbid certain sexual
activities under threat of penalty. So, the same activity
could be regulated by law or even penalized in one
country or community but it would not be subject to any
regulations and could be interpreted differently in another [1]. Law can be seen as protective instrument of
sexual freedom (right to choice whether, when and with
whom to have sexual intercourse), as well as a means of
defending the sexual morality of a particular society.
The present Polish Criminal Code of 1997 has been
influenced and shaped by the 1932 Penal Code, which
1
was based on materialistic philosophy. In chapter 23rd
of that Code on “harlotry” one could find that all criminal
offenses it specified as harlotry were directed against
some particular “government” or order in the sexual
sphere. The Criminal Code in force since 1969, which
was inspired by the philosophy of freedom, partly withdrew from this rule. In this Code sexual offenses were
included in chapter 22nd (on “Offenses against freedom”) and in the succeeding chapter 23rd (on “Offenses
against decency“).
The current Penal Code of 1997 contains one separate chapter of crimes “against sexual freedom and decency”. Present Polish criminal law defines, inter alia,
the following types of sexual crimes:
1) Involuntary sexual contact (rape; taking advantage
of the victim’s impaired consciousness, dependence
or critical situation)
2) Pedophilia
3) Exhibitionism (sexual activity in public circumstance or when children are present)
4) Incest
5) Distribution of pornographic materials
6) Crimes which may stimulate the practice of prostitution such as procurement or advertising sexual
services [2].
Polish criminal law pay special attention to protection of children and juveniles. There are a wide range of
offences designed to protect them from sexual abuse.
Polish legislature uses different terms in relation to
children and adolescents, depending on the area of law,
for instance “child”, “minor”, “juvenile”, “a junior worker”, “a person under seventeen years of age”, “an underage person”, whereas according to the internationally
Department of Perinatology and Gynecology, Division of Developmental Gynecology and Sexology, Poznan University of Medical Sciences, Poznań, Poland
2
Department of Clinical Psychology, Poznan University of Medical Sciences, Poznań, Poland
Sexual crimes
recognized Convention of Children’s Rights the term
„child” refers to any human being under 18 years of age,
if this person has not otherwise come of age legally
(Article 1 of The Convention). Here one may add that
the in Poland the age of legal majority is set at eighteen
years of age (Article 10 § 1 of the Civil Code) except for
women aged 16 or older who married with a family court
approval (Article 10 § 2 of the Civil Code).
According to the Penal Code of 1997 perpetrators
who turned seventeen are regarded as being able to bear
legal responsibility for their deeds (art. 10 § 1 of the
Penal Code) therefore an offender under age seventeen
is regarded as an underage person who cannot be held
accountable for a crime. However, the problem is complicated by the fact that according to art. 10 § 2 of Polish
Penal Code in certain prerequisites, even individuals
who are as young as 15 can be held legally responsible
for their actions (these prerequisites relate to the offenses defined in one the articles of § 2 of the Penal Code).
Additionally, the perpetrator can be held responsible for
the offense only after a thorough analysis of the circumstances of the crime, mental capacity and characteristics
of the offender, when previous rehabilitation was unsuccessful. Even in such circumstances, a penalty which is
imposed upon the offender may equal up to two-thirds of
a maximum penalty for a given offense. Additionally, the
court may also decide to rule extraordinary mitigation
of punishment. Yet, the possibility to punish persons
under 18 does not mean they can be automatically tried
as adults.
Here it would be valuable to pay attention at the so
called Beijing Rules. One of its parts comprises the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, which proposed that the legal
systems recognizing the concept of the age of criminal
responsibility for juveniles fix that age at a level that is
not too low, bearing in mind the facts of emotional,
mental, intellectual maturity and the fact that a child
should not be considered a “miniature” of an adult.
H. Ross remains the first lawyer who saw the need
to use psychology to evaluate the witness statement. He
believed that in difficult situations psychologists should
be summoned as experts.
In fact, women and children could be summoned as
witnesses thanks to the development of law and psychology because in the feudal system they did not have
a capacity to be a party in a legal case.
In Poland children remain under the protection of
the law because they are at risk of becoming a victim of
a number of crimes such as rape, incest, pornography,
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harlotry, domestic violence, kidnapping or alimony evasion. A child who is a victim of a crime has the status of
a party to the criminal proceedings but is usually represented by a proxy. It is worth noting that according to
art. 304 of Polish Code of Criminal Procedure, everyone,
including pediatrician, childhood and adolescent gynecologist, sexuologist, has duty to report any suspicion of
committing a crime prosecuted ex officio to the Police or
Public Prosecutor Office. Sexual offenses on children
are prosecuted ex officio, but some of them require prior
request of the victim (Article 205 of Polish Code of
Criminal Procedure). Due to the dramatic consequences
of sexual offenses on children which include not only
physical harm, psychological trauma and developmental
disturbances, professionals who work with juvenile victims of sexual abuse should identify the crime, find
the offender and start therapy of the victim as soon as
possible. One can observe that children are also protected by international law declarations and conventions
such as Universal Declaration of Human Rights, Convention on the Rights of the Child, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. One must not forget that
Poland has established the new office of an Ombudsman
for Children’s Rights whose duty is to counteract maltreatment, negligence violence or exploitation of children [4].
One of the most difficult problems is related to juveniles, their sexuality and their right to make free decisions. Interestingly, according to the legal doctrine, the
principal value related to sexuality is freedom of individuals defined positively as “freedom to” make independent decisions connected with one’s sexuality (as
long as these decisions are not harmful to other human
beings or social order) [4] and freedom from any physical or psychological obligation in intimate life.
Law makers pay particular attention to protection of
healthy physical, psychological and sexual development
of juveniles, the necessity to prevent moral depravity
and corruption of minors and create conditions that promote healthy development of youth and children [5].
Unlike in case of adults, protection of sexual freedom and dignity of juveniles is not only based on approval and tolerance for individual choice but also on the
protection of sexual freedom of underage persons who,
because of their psychological immaturity, are not able
to make their own well thought out decisions or cannot
express them. Here one may also mention such problems as cultural differences regarding the minimum marriageable age and the legal status of polygamy.
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G. Jarząbek-Bielecka, K. Warchoł-Biedermann, M. Jarząbek, A. Bielecka-Gąszcz, W. Kędzia
In Islamic countries, for example, polygamy is socially accepted while in most European countries it is forbidden and punishable by law.
One must consider the legal status and definition of
such acts as sexual intercourse, “other category of a sexual contact” or “sexual activity other than intercourse”.
Here, probably the most problematic issue is related to
the interpretation of the concept the so called “other
category of a sexual contact” [4, 6, 7]. According to Zygmunt Tobor’s interpretation of the Supreme Court ruling
of 1999, the above mentioned activity remains an act of
intercourse or its surrogacy such as bodily contact,
touching sexual organs or other activity which leads to
sexual satisfaction of the offender [8]. In order to protect
individuals who are neither physically nor psychologically mature to start sexual life, Polish legislators set a
lower age limit to start sexual activity (the age of consent) at fifteen so anyone who starts intimate contact
with a partner below age fifteen can be imprisoned
to up to twelve years [1, 4]. Globally, the age of consent
is diverse. Usually it is set at approximately 15-18 years
of age but in some regions it may be much lower (9-21
age range). There are also countries where any sexual
activity outside marriage is forbidden, punishable and
considered either a misdemeanor or a rape, as well as
countries where right to choose with whom to have
sexual relations is regarded as a fundamental freedom,
even outside marriage.
References
[1] Lew-Starowicz Z. Seksuologia sądowa. 1st ed. Warszawa:
Wydawnictwo Prawnicze; 2000.
[2] Marzec-Holka K. Przemoc seksualna wobec dziecka: studium pedagogiczno-kryminologiczne. Bydgoszcz: Wydawnictwo Uczelniane WSP; 1997, p.61.
[3] Podgajna- Kuśmierek M. Pedofilia. Kraków: Wydawnictwo
Uniwersytetu Jagiellońskiego; 2003, p. 16.
[4] Jarząbek-Bielecka G., editor. Seksuologia aspekty humanistyczne. Poznań: Wydawnictwo UM; 2011
[5] The Polish Penal Code. Justification. Warszawa; 1968
p. 142.
[6] www.wikipedia.org/wiki/Obcowanie płciowe. Obcowanie
płciowe – spółkowanie lub jego surogat, np. stosunek oralny lub analny.
[7] www.wikipedia.org/wiki/Inna_czynnosc_seksualna (data
dostępu 20.11.07). Inna czynność seksualna jest to zachowanie seksualne nie będące obcowaniem płciowym. Przykładem innej czynności seksualnej jest przykładowo: kontakt cielesny o charakterze seksualnym nie będącym jednak obcowaniem płciowym, masturbacja.
[8] Tobor Z. O wykładni. Studia Prawnicze. 2009; 3.
J
Grażyna Jarząbek
Department of Perinatology and Gynecology
Division of Developmental Gynecology and Sexology
Poznan University of Medical Sciences
ul. Polna 33, 60-535 Poznań, Poland