Between coercion and consent: rape, exploitation, and the grey zones of sexual violence in polish criminal law

• In Event: Sex crimes in Criminal Law

Abstract

This paper explores the relationship between rape (Article 197 of the Penal Code) and the abuse of dependency or a critical situation (Article 199 of the Penal Code). In the Polish legal system, the following three offences are classified as violations of sexual freedom: rape, abuse of helplessness or disability, and abuse of dependency or exploitation of a critical situation. The distinguishing characteristics of these offences are the perpetrator's actions and the victim's state of vulnerability. The perpetrator of rape employs coercion, threats or deception, while in the other offences, the perpetrator does not use force or deception but instead exploits the victim's characteristics or circumstances. In 2025, the Polish definition of rape underwent a significant shift, adopting a new definition based on the Istanbul Convention and ECtHR jurisprudence. The new definition combines conventional and novel approaches, defining rape as 'causing another person to have sexual intercourse by force, threat, deception or other means despite their lack of consent'. This novel definition gives rise to several questions, including the relationship between rape and the other two sexual offences, and the distinction between coercion or not obtaining consent to sex, and obtaining 'voluntary' consent from, for example, a homeless person giving consent in exchange for sex, or an employee blackmailed with the loss of their job. This prompts the question of whether the term 'consent' can be applied in these cases, and if not, whether such actions should be classified as rape. This is a significant concern, as rape is a criminal offence that can result in a sentence of between 2 and 15-years’ imprisonment, while abuse of dependency or a critical situation is punishable by a maximum of 3 years' imprisonment. The purpose of this paper is to address the practical challenges arising from the current regulations and propose amendments.

Author

• Natalia Daśko, Nicolaus Copernicus University in Tor