STA, 9 January - Questions are being raised in Slovenia about the adequacy of criminal law and judicial discretion after it was reported that a man who raped a drunk woman was charged with criminal coercion rather than rape because the woman, passed out drunk in the man's apartment, did not - and could not - resist.
Dnevnik reported earlier this week that a man from Koper was sentenced to ten months in prison for raping a family friend, who was passed out drunk in the children's room in his apartment.
Testimony suggests the woman woke up after he had already undressed her and started raping her; she tried to resist but he continued to force himself upon her until he completed the deed.
While such an act would be widely expected to result in a rape conviction, the court had a different view and after a series of appeals that went all the way to the Supreme Court, the perpetrator ended up being convicted of a crime that is not even classified as a sex crime.
“Not rape when the perpetrator uses force after the sexual act has already begun”
In the last sentence handed down by the Koper Higher Court after the appeals, the judges held that it was not rape when the perpetrator uses force after the sexual act had already begun, which is why he was convicted of criminal coercion.
In this particular case, this in effect means that the drunk woman sleeping, waking up only after he had already started to rape her, was an attenuating circumstance for the perpetrator.
The crime occurred in 2015 and the bulk of the court procedures took place in 2017.
The case raises a series of questions, most notably about the definition of rape in the Slovenian criminal code.
As Dnevnik emphasises, the law says that rape occurs when a perpetrator coerces the victim into sexual intercourse with force or with serious threats. There is no mention of consent at all.
The current Slovenian criminal code was adopted in 2008 and revised several times since then, most recently in 2016, but the definition of rape has not changed.
Mirjam Kline, the head of the department for juvenile and sex crime at the Ljubljana District State Prosecutor's Office, told Dnevnik the model of coercion in place in Slovenia was outdated.
"It is also unjust because we always focus on the victim: how she resisted to make the perpetrator interpret that as resistance and knew this was against her will," she said.
Matjaž Ambrož, a professor of criminal law at the Ljubljana Faculty of Law, meanwhile pointed out for the Delo newspaper that the Higher Court had argued in the retrial the act constituted rape, but procedural constraints prevented it from re-classifying the crime after the District Court had already reduced it to attack on a feeble person.
Calls for a redefinition of rape
Several media have stressed that in countries such as Germany and Sweden the criminal code has already been changed to focus on consent, which would make sense in Slovenia.
This point was also raised by the Association for Non-Violent Communication, which called for a redefinition of rape.
"We know from our work with victims of sexual violence that rape is often caused without coercion ... in particular between sexual partners, where perpetrators commonly use indirect forms of coercion and threat," they said.
Despite the calls for change, the Justice Ministry said no changes were on the horizon at the moment since focusing on consent would be even more difficult for courts to process given that rapes are typically crimes without witnesses that rest on testimony by the victim and the perpetrator.
But it later said it took comments by the expert public to heart and would host a meeting next week to examine possible changes to the criminal code. "We expect them to present their views on the subject. Based on the conclusions of the meeting, we will be able to provide an estimate about potential shortcomings of the valid legislation and requisite measures," the ministry said.
The response came after public outcry over the case started escalating and several groups took up the cause.
Amnesty International Slovenije, an NGO, publicly called for changes to the criminal code that would be "compatible with international human rights standards, meaning it would be based on the absence of consent."
Institute 8 March, an NGO fighting for equal rights, launched an online petition demanding legislative changes based on consent that garnered over 1,000 signatures within hours, and the Left, an opposition party, initiated a formal motion asking the government to change the legislation according to the "no means no" model of consent.