The legal concept of rape in the light of Istanbul convention and recent court decisions

Abstract

The authors analyze the concept of the criminal offense of rape in Serbian criminal legislation. The focus is put on the objective elements of the crime, especially the actus reus. Authors seek to examine the compliance of our legislation with the Istanbul Convention, but also to consider the standings and interpretations of domestic court practice. The legal description of this crime has changed significantly, starting with the amendments from 2002. Legislative changes reflected contemporary criminal law trends and are positively evaluated by domestic jurisprudence. Nevertheless, the interpretation of certain elements of the legal description of the criminal offense from Art. 178 of Criminal Code (CC) causes practical problems and misunderstanding. Theoretical analysis is of great importance for solving these dilemmas, especially considering their practical importance. The authors aim to provide a contribution by pointing out to the real meaning of the respective provisions of the Istanbul Convention. The authors argue that the current understanding of the scope of this legislative concept (the concept of the actus reus of the crime of rape) is not fully in accordance with the text and meaning of this important act of international law. Compliance with the Convention, however, does not require legislative changes, but an adapted interpretation of actus reus as an objective element of the legal description of this incrimination. The authors analyze court practice, and in particular one judgment of the Supreme Court from 2019, which, in their opinion, could represent an exemplary model for future court practice.

Keywords

• the crime of rape
• istanbul convention
• sexual violence
• sexual acts equaled with rape