Rola zgody w znamionach przestępstwa zgwałcenia
The role of consent in the structure of the offence of rape

Summary/Abstract: The article offers a renewed analysis of the role of consent in the structure of theoffence of rape in the context of the amendment to Article 197 § 1 of the Criminal Codeintroduced by the Act of 28 June 2024 amending the Criminal Code and certain otherstatutes, which adds the element of “lack of consent.” The author argues that this changedoes not introduce any genuine normative novelty and that its justification is based ona misreading of the requirements of the Istanbul Convention. The problem was not theabsence of the concept of consent in the provision, but rather the overly narrow interpretationof the elements constituting the prohibited act of rape. As a result, the amendmentdoes not eliminate existing interpretative difficulties but instead reproduces them, whilealso posing a risk of violating the principle of nullum crimen sine lege and thereby weakeningthe guarantee function of criminal law. The author proposes that, instead of multiplyingvague statutory elements, solutions should be sought in a correct interpretation ofthe elements of the offence, one that corresponds to social evaluations.

• Details
• Contents