The Draft Law on Amendments to the Criminal Code of the Federation of Bosnia and Herzegovina is currently open for public discussion, which we used to propose amendments that would improve the position of LGBTI people and women in Bosnia and Herzegovina by harmonising the Criminal Code with the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention).
Article 1 adds a new paragraph within Article 49 that harmonises the Criminal Code with Article 46 of the Istanbul Convention, which orders member states to consider certain circumstances as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with the Convention.
The amendments contained in the Draft Law on Amendments to the FBiH Criminal Code define consent in accordance with Article 36 of the Convention. Because such provisions are not contemplated by the Istanbul Convention, paragraph 2 of the Draft Law on Amendments to the FBiH Criminal Code is omitted. According to the Convention, it is crucial to ensure that there are no exceptions to the criminalisation and prosecution of such acts. Such a provision would contradict the definition of consent, that is, voluntary sexual intercourse. This could lead to a situation in which some victim responses, such as “frozen fright”, which is identified as the most common type of reaction to rape, are misinterpreted as consent to sexual intercourse, that is, a rectifiable misconception regarding the existence of consent. The opinion of psychologists and psychiatrists is cited in the judgement of the European Court of Human Rights in the case of M.C. v. Bulgaria, who claim that all significant research indicates that “frozen fright” is a natural reaction of the victim in most cases of rape, which they subsequently established by conducting their own research. It is also said that establishing consent can be difficult, particularly if the victim knew the perpetrator. In Denmark, for example, a rape case was acquitted because the perpetrator claimed he had no idea the victim did not consent to sexual intercourse because she did not respond to a conversation he initiated about his sexual needs. A similar case from the United Kingdom was also mentioned, with the court finding the defendant guilty on the grounds that there is a distinction between consent and submission, that every consent involves submission, but not every submission involves consent, and that it is necessary to focus on the victim’s state of mind immediately before the act of intercourse.
Article 3 is being harmonised with Article 40 of the Convention. Given that sexual harassment is a criminal offence under the Law on Gender Equality in BiH, we believe that these two laws must be harmonised to avoid legal uncertainty and a dilemma over which law will be applied in each specific case. Therefore, we use the mentioned definition and the anticipated sanction from the Law on Gender Equality in Bosnia and Herzegovina.
If you also want to engage in the public discussion, please send the Sarajevo Open Centre’s proposed amendments to [email protected], no later than August 25.