Protection of the sexual freedom of people with mental disorders or protection of the moral beliefs of the legislator? A case of Poland

• In Event: Sex crimes in Criminal Law

Abstract

Referring to the principles of law and morality, one can ask about the right of a state to impose law limiting sexual activity of people experiencing mental disorders. Because such people are particularly vulnerable to exploitation the state must protect their rights. On the other hand, this protection must not deprive such person of the opportunity to engage in sexual activity at all. We had to deal with this type situation in Poland from 1970 to 1998. The present scope of criminalization in relation to the previous norms been narrowed. In the current regulation one can to read that subject to the penalty is whoever, by taking advantage of another person's helplessness or lack of capability of recognizing the significance of the act or controlling one's conduct due to a mental impairment or a mental illness, induces this person to engage in a sexual activity.
In 2025, a new provision has been added. It provides a penalty if the perpetrator brings another person into sexual intercourse by taking advantage of the other person's inability to recognize the meaning of the act or to direct his or her actions, is in force in the subject area.
Probably in practice one Article will be applied when the lack of consent is obvious, whereas if there are doubts as to the actual consent another one will be applied. It is difficult to assess this positively.
The following conclusions can be drawn from this. The legislator is suspicious of the sexual life of persons with mental disorders. Further, the sexual activity of these people is considered more like an exception than the rule and the issue determining the criminality of the act is not so much the mental experience of the alleged victim as his objective ability to make a responsible decision.

Author

• Janusz Bojarski, Nicolaus Copernicus Uniwersity, Department of Criminal Law