The legal team of Diotima Centre submitted comments and observations on the Draft of the New Penal Code that had been put to public consultation. We wrote at the time, in relation to Article 336 of the Criminal Code concerning rape, that the addition of the requirement of significant and immediate danger to life or physical integrity is not in line with European and international standards. In the substance of the article to be voted on, the act committed between an “ideal perpetrator” and an “ideal victim” is impermissibly standardized. However, constitutes a very small percentage of cases, as is evident from the existing case law.
In the absence of official statistics, the above legal policy choice is arbitrary and does not comply with the principles of good law-making. Indeed, according to the United Nations Handbook for Legislation on Violence Against Women (2010): “the definition of rape should not include as a condition the use of physical force and instead its non-commission should be based on the existence of voluntary and clear consent”. Thus, the definition of article 336 of the draft law, in principle, left outside the protective core of the provision, cases in which extortionate means were used.
Furthermore, we had observed from the outset that replacing the concept of “lewd act” with “sexual act” throughout the relevant chapter of the Criminal Code was also problematic. According to the Draft Penal Code, a “sexual act” is intercourse and acts of equal gravity. However, by using the designation “equal”, all acts that go back to the sexual sphere and objectively offend the sense of decency, without presupposing penetration, are excluded.
Moreover, the above definition deprives the judge of the margin of discretion to subject to the objective substance of rape and other acts that are considered punishable under Article 336 of the Criminal Code. We, therefore, suggested at the time that “of equal gravity” should be replaced by “acts of similar gravity”.
Today, after a respectable period of public consultation, after a multitude of comments and fierce reactions from all the organizations active in the field of the protection of women’s rights, and despite the contradictions of many theorists on the issue, the new Greek Penal Code is being introduced for voting, reserving limited protection to the victims of the particularly heinous crime of rape.
Responding to the observations and comments submitted that reflect the long-standing demands of feminist movements and humanitarian organizations worldwide, the legislative committee has simply inserted a new paragraph in art. 336 which ultimately standardizes rape committed using coercive means.
Here too, however, the following observations should be made: First of all, there is no justification for the incomprehensible choice of the legislative committee according to which extorsion, by the use of coercive means, in order to attempt or tolerate a sexual act is assessed as a misdemeanor – and let us remind you that, according to the new definition, a sexual act is only intercourse and acts that presuppose penetration.
Furthermore, extorsion, in order to attempt or tolerate a sexual act, should, on the basis of the article to be voted on, be done with a threat of an “illegal” action, thus excluding cases where the threat is based on a non-illegal act (e.g. disclosure of secrets). Finally, women remain completely unprotected within the marital or partner relationship, where the perpetrator carries psychological and emotional violence and threat, something that Greek jurisprudence, as far as we know, has never judged as an “illegal” action.
In conclusion, the new definition limits excessively the protection provided, on the one hand, by introducing the concept of risk of life or physical integrity as a necessary condition for the commission of the offense of rape, on the other hand by defining excessively narrowly the ‘sexual act’, and further relegated to a misdemeanor the coercion to attempt or tolerate a sexual act.
We once again call on the Minister of Justice to adopt a modern Criminal Code worthy of a European state, which includes the concept of consent, the mere absence of which is a sufficient condition for the commission of the crime of rape, as clearly defined in Article 36 of the Istanbul Convention, which our country has already ratified with Law 4531/2018 and incorporated into its national legislation.
