Announcement: Rape should be defined as sexual intercourse without the voluntary consent of the victim

According to certain electronic media, the Prosecutor’s Office of Sarajevo Canton reclassified the criminal offence of rape as “sexual intercourse with a helpless person” in the indictment against a taxi driver suspected of raping a woman who used a taxi service.

As a reminder, an adult female reported rape on 17 April 2021. According to media reports, the girl called a taxi, and the driver brought her to a cottage house in Semizovac, where he beat and raped her. The girl reported the incident to the Sarajevo Canton Ministry of Interior, and according to the Radiosarajevo portal, she had visible injuries on her body.

On 20 April, the media published sensationalist claims regarding the reversal and reclassification of the criminal offence of rape as sexual intercourse with a helpless person. Although the media reports have not been confirmed, we are concerned since such a change implies a reduced sentence while also implying a very problematic attitude toward the treatment of the criminal offence of rape itself.

Without delving into the reasoning for the purported decision of the Prosecutor’s Office to reclassify one criminal offence as another, we want to highlight the existing inadequate legal solutions. The Criminal Code of the Federation of Bosnia and Herzegovina requires a terminological distinction between the criminal offence of rape and other criminal offences of sexual violence, as well as all other unwanted sexual behaviours. Such legal solutions[1] and their implementation, which hold that a criminal offence is not considered rape if the perpetrator did not use force or the victim was unable to resist, have an impact on the number of cases of sexual violence and rape reported, as well as on the women’s trust in institutions.

If the rape is reclassified as sexual intercourse with a helpless person, the victim bears the responsibility due to their predicament, rather than the perpetrator. Furthermore, the current legal definition of rape specifies that only a person who is capable of resisting and has attempted to resist can be subjected to rape. Otherwise, these are other forms of sexual exploitation that exacerbate the already-existing stereotypes that the victim is to blame for these criminal offences and this type of violence.

Following the Istanbul Convention[2], the Federation of BiH should define rape as sexual intercourse without the voluntary consent of the victim, which may be caused by unconsciousness, blackmail, subordination, a threat to reputation, or any other situation in which the victim does not give or cannot give their clear consent for sexual intercourse.

We hereby inform the FBiH Ministry of Justice that such standardization of rape and criminal offences of sexual violence leads to ambiguity and misinterpretation of the law, and that, regardless of the circumstances, there should be one criminal offence – rape, for which the law will provide different penalties for the same criminal offence depending on how it is committed.

Furthermore, clearly define both consent to sexual intercourse and the absence of consent; define as precisely as possible the notions of specific forms of sexual acts that may be committed on another person without their voluntary consent; redefine the very concept of sexual intercourse with a helpless person and analyse the justification of the terminological distinction between the criminal offence of rape and other criminal offences of sexual violence; harmonize the criminal law regulation of the criminal offence of rape with Article 36 of the Istanbul Convention:

“Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

1. engaging in non‐consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
2. engaging in other non‐consensual acts of a sexual nature with a person;
3. causing another person to engage in non‐consensual acts of a sexual nature with a third person
4. Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances. Parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law.”

Recent experiences of sexual violence in the region, as well as in BiH, clearly show that citizens do not trust institutions, are fearful of public criticism, and fear that reporting sexual violence will expose them to re-traumatization and victimization. The judicial system should be set up in such a way that victims are encouraged to report all forms of sexual violence, particularly rape, rather than acting as a demotivating force that causes victims to question their actions and dread condemnation from society and the state.

Sarajevo Open Centre

CURE Foundation

[1] FBiH Criminal Code, Article 204, paragraph (1): Whoever performs sexual intercourse or equivalent sexual act with another person taking advantage of that person’s mental illness, temporary mental disorder, infirmity or any other state of that person which makes him incapable of resisting, shall be punished by imprisonment for a term between one and eight years.

[2] Article 36 of the Istanbul Convention