Page 10 - Klinika nr 39–40 (44–45)/2025

WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

the experiences of women. The demand to change not only a different meaning by way of interpretation, in the situation of
the content of the law, but also its practice, is inextricably linked its occurrence in rape and other crimes, especially since the crim-
to the fundamental characteristic of feminist jurisprudence, which inal law system – as a rule – should be consistent and uniform in
is the advocacy for maintaining a close connection between theory terms of interpreting the same concepts contained therein. Courts
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and practice. in Poland recognise that the interpretation of the premise of vio-
According to representatives of feminist legal theory, the law needs lence in the crime of rape means that there must be resistance on
to be deconstructed and then reconstructed by redefining many le- the part of the victim. Meanwhile, the interpretation of the prem-
gal institutions and/or their significance, in such a way that wom- ise of violence, contained in the definition of the crime of rob-
en’s subjectivity is recognised in the law and that their perspective bery, leads to the conclusion that no resistance is required from
and experiences are considered. The demand to analyse existing the victim to recognise the commission of the crime of robbery
legislation through a gendered perspective also implies the abil- by the perpetrator. Several questions can be asked about the crime
ity to identify its shortcomings in terms of redressability in cases of rape, which is also presented in this issue of the journal in
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when women’s and men’s rights have been violated. It is worth the text by M. Płatek .
noting that this ability is fundamental to both theoretical and Feminist practical reasoning is a method that primarily works
practical considerations. to undermine the legitimacy of legal norms as impartial and uni-
Intent on critiquing the law, feminist jurisprudence proposes versal norms, i.e., as the norms that represent everyone in a given
the use of a feminist methodology to consider women’s experi- society, when in practice the applicable norm expresses the inter-
ences and their needs – what K. T. Bartlett calls „women’s practice ests of men only, e.g., the substantive and procedural legal reg-
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of law” . K. T. Bartlett distinguishes three interrelated feminist ulation of domestic violence did not consider the adequate pro-
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methods: asking women questions, feminist practical reasoning, tection of women against violence for many years. The same can
and consciousness raising. be recognised in the regulation of sexual crimes, the regulation of
The method of asking gender-conscious questions, known as ask- access to abortion or the criminality of modern slavery for sexual
ing „the women’s question” should be practised continuously, exploitation. As K. T. Bartlett points out , „the feminist method of
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only then does it become an effective way of examining the law in practical reasoning is not the polar opposite of „male” rationality.
theory and in practice. Identifying and revealing the perspective The process of finding commonalities, differences, and connections
of women reveals the effects legal norms have on women’s lives in practical reasoning is a rational process. To be sure, feminist
when they are assumed to be neutral and objective. „In law, asking practical reasoning gives rationality new meanings. Feminist ra-
the women question means examining how the law fails to take tionality acknowledges greater diversity in human experiences and
into account the experiences and values that seem more typical the value of considering competing or inconsistent claims. The es-
of women than of men, for whatever reason, or how existing legal sence of the method of feminist practical reasoning is primarily
standards and concepts might disadvantage women” . to recognise existing forms of exclusion, injustice and greater di-
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A good example of an issue within which „women’s questions” keep versity in the human experience, and then to introduce a kind of
needing to be asked might be the crime of rape and its definition. contextual reasoning that reveals those existing injustices”.
One can – following K. T. Bartlett – ask: „why does the defence of K. T. Bartlett is correct in pointing out that „if one assumes that
consent focus on the perspective of the defendant and what he methods can and should screen out political and moral factors
„reasonably” thought the women wanted, rather the perspective from legal decision-making, practical reasoning is not an appro-
of the woman and the intentions she „reasonably” thought she priate mode of legal analysis. To the contrary, its open-ended-
conveyed to the defendant”, bearing in mind that this is a question ness would seem to provide the kind of opportunity for deciding
from an American lawyer in the context of the American legal sys- cases based on political and moral interests that the method, op-
tem. It is possible, within the framework of Polish law to ask why erating independently of substance, is supposed to eliminate. On
the crime of rape is based on the protection of sexual freedom, the other hand, if one assumes that one neither can nor should
which provides the right to object, rather than on the protection eliminate political and moral factors from legal decision-making,
of sexual autonomy, which provides the right to consent, and how then one would hope to make these factors more visible. If political
each of these solutions derives from the experience or needs of and moral factors are necessarily tied into any form of legal reason-
each gender. ing, then bringing those factors out into the open would require
About the jurisprudence of Polish courts interpreting the prem- decision-makers to think self-consciously about them and to jus-
ise of violence included in the definition of the crime of rape tify their decisions in the light of the factors at play in the particu-
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and included in the definitions of other crimes, e.g., in the crime lar case”. 40
of robbery, one may ask why the same-sounding premise is given
37 See the judgment of the Supreme Court of 8.10.1997 (ref. V KKN 346/96), in
33 K.T. Bartlett, Feminist Legal Methods in: Feminist Legal Theory. Reading in Law which the Supreme Court stated that „in order to confirm the act of rape, it is
and Gender, Oxford 1991, p. 371. necessary to demonstrate the victim’s resistance, i.e. externally manifested oppo-
34 Ibidem, pp. 371 et seq. sition, although the victim’s resistance does not have to consist of physical oppo-
35 Ibidem, pp. 371 et seq. sition, but may take the form of crying, verbalised opposition, jerking or attempts
36 It should be noted that as of February 13, 2025, pursuant to the Act of June to call for help”. The indications of resistance adopted in case law have not lost
28, 2024, amending the Penal Code and certain other acts (Journal of Laws of much relevance over the years and have been reiterated in subsequent judgments,
2024, item 1228), a new definition of the crime of rape, regulated in Article 197 e.g. in the judgment of the Supreme Court of 26.7.2001 (V KKN 95/99) and in
§ 1 of the Penal Code, came into force. The previous wording of the provision the judgment of the SA in Katowice of 8 April 2009. (II AKa 72/09), judgment of
criminalizing the crime of rape, which provides that anyone who forces another the Supreme Court of 28.5.2024, ref. no. II KK 540/23, LEX.
person to have sexual intercourse by means of violence, unlawful threat or de- 38 For more questions regarding the crime of rape, see the text by M. Płatek,
ception, shall be punished with imprisonment for a term of 2 to 15 years, has How to teach about sexual offences using rape as an example, KLINIKA 2025,
been replaced by a new version according to which whoever forces another person No. 39–40 (44–45)/2025.
to have sexual intercourse by means of violence, unlawful threat, deception or in 39 K.T. Bartlett, Feminist Legal Methods in: Feminist Legal Theory. Reading in Law
any other way despite their lack of consent shall be punished with imprisonment and Gender, Oxford 1991, p. 380.
for a term of 2 to 15 years. 40 Ibidem, p. 381.

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