Criminal offense of rape in the Criminal Code of Serbia

Current amendments, some disscutable questions and possible future modifications

Abstract

In the paper are explained the essential characteristics of rape as the basic criminal offense against sexual freedom. The author explains summarly the historical development of the incrimination of rape, both in general point of view and in Serbian criminal law and in the former Yugoslav criminal law legislation too. The paper contains appropriate general considerations on the criminal law essence of the rape, and the classic normative-dogmatic analysis of all the important elements of the criminal offense of rape. In the paper is also analyzed a relatively new form of rape too, which was previously prescribed in the Draft Code on Amendments to the Criminal Code from 2016, from which, in the meantime, the legislator renounced, which would exist when a sexual intercourse or an equal act as sexual intercourse, was realized without coercion, but contrary to the strictly expressed will of the passive subject, which in practice can be confused with serious evidence problems. In this paper, some examples show that our practice and otherwise, in some situations, accepted the appropriate relatively 'flexible' interpretation of the existence of coercion, which the author refers to as the so-called latent compulsions on sexual intercourse or an equal act as sexual intercourse. Author conclude that, although the possible new incrimination of rape, i.e. the new form of the rape without coercion but in any case against the will of the victim (without consent), has its obvious ratio legis, it will be in the practice connected with some serious difficulties, especially ih the evidential sphere during the concrete criminal procedure.