The criminal offense of a sexual intercourse with a helpless person

Normative construction, some disputable questions and possible future modifications

Abstract

In the paper are explained the concept and basic elements of the normative construction of the criminal offense of Sexual intercourse with a helpless person, as one of the criminal offenses against sexual freedom in the Serbian Criminal Code. There are in the text analyzes in detail the basic form and the more severe forms of the sexual intercourse with a helpless Person, the possible form of guilt (mens rea), when it comes to this criminal act, as well as all other important features of the sexual intercourse with a helpless person in the context of a positive criminal justice solution. The author explains especially the relationship between the two sexual crimes: the rape as the basic criminal offense against sexual freedom and the sexual intercourse with a helpless person. It is especially analyzed when there can be a joinder of criminal offenses, connected to the relations between the criminal offence of a rape and the sexual intercourse with a helpless person. In the article there is a conclusion that if the criminal offence of a rape in the Serbian criminal legislation would be defined in some future novelties, so as to cover not only compulsory sexual actions, but any such (sexually) act, perpetrated a contrary to the will of the passive subject (which is the request contained in the Istanbul Convention), this will certainly also leads to the need for a proper redefinition of the incrimination of the sexual intercourse with a helpless person, and this conclusion is accompanied by concrete proposals in de lege ferenda sense.