Revolution or smokescreen?

Rape regulation amendment in Poland and hermeneutical injustice

Photo by Héctor Berganza.

Klaudyna Horniczak & Karolina Śliwecka (Jagiellonian University, Kraków)

This blog post presents a popular overview of ideas that will be further developed in an academic book chapter to appear in a forthcoming anthology currently in development.

§1 The amendment of Article 197

February 13th, 2025, was, according to some, a revolutionary day for Polish criminal law. After years of struggle, the legal definition of rape, as included in the Article 197 of the Polish Penal Code, was finally amended to explicitly include the criterion of consent.1

However, we argue that the amendment may not have been as revolutionary as it seems—it may merely be a smokescreen. That is because the changes introduced to Article 197 of the Polish Penal Code miss the mark as the whole construction of this legal provision has failed to reflect the perspectives or experiences of women. Instead, it reflects the interests of men, and men’s beliefs about women’s sexuality. Adding just one element to the definition of rape, we conclude, will not increase the protection of victims of sexual violence.

§1.1 The role of the judicial and doctrinal interpretations

According to the amended definition introduced to the Polish Criminal Code in 2025, rape can be committed in four ways: through the use of force, unlawful threats, deception, or any other way involving a lack of consent from the other party. This last condition was added in February 2025, while first three conditions were present in Polish law since 1930s. Each of these forms is interpreted by legal scholars and Supreme Court’s judges in a particular way, presenting difficulties which we will discuss in the next section of this article. Thus, to fully grasp how rape is understood within Polish law, one must be aware of the role played by judicial and doctrinal interpretation in this context.

In theory, there is no such thing as a legal precedent in Poland, and courts are not bound by the rulings of other courts. However, the Supreme Court’s rulings are something of an exception: it is very common for lower courts to cite or rely on decisions issued by the Supreme Court in their own judgments. Thus, the Supreme Court plays a significant part in establishing the meaning behind each provision of the Criminal Code.

Another factor that affects the interpretation of the Criminal Code to a great extent are so-called commentaries. They are books written by Polish legal scholars that discuss the meaning of each legal provision and try to establish how they should be interpreted.

The meaning of the Article 197 was hugely impacted both by Supreme Court rulings and by these criminal law commentaries. Therefore, the interpretation of rape that we present below is a work of both jurisprudence and criminal law doctrine.

§2 Perspective and interests reflected in the rape regulation

The criminalisation of rape aims at achieving a particular goal: the protection of sexual autonomy. The act of criminalising such behaviour communicates that rape is wrong, that it should not be committed, and that, when it is, the perpetrator ought to be punished. This is rather uncontroversial. We must also note that rape is a gendered crime: it predominantly affects women and people who function in a feminine social role in a given society2 and gender-nonconforming people3 because of their perceived gender. Thus, we assume that the regulation, to fulfil its goal as best as possible, should reflect the perspectives of these predominantly affected groups. In reality, however, it does not: these groups are suffering from hermeneutical injustice.

As Miranda Fricker describes it, hermeneutical injustice is “the injustice of having some significant area of one’s social experience obscured from collective understanding owing to hermeneutical marginalization.”4 Hermeneutical injustice may take the form of a conceptual gap, when a community lacks a concept needed to describe experiences of some of its members. Perhaps the most famous example is the concept of sexual harassment, which was introduced to describe the unwanted sexual advances experienced by women in the workplace. When the concept was missing, women could not articulate the harm done to them, since other concepts were ill-fitting. ‘Rape’ was reserved for more severe cases; ‘romantic advances’ did not communicate the harm of the practice.  Hermeneutical injustice also occurs when a concept exists but is defective. This latter phenomenon, which we argue is at issue with the legal definition of rape in Poland, occurs when the concept is biased, and fails to refer to the phenomena it should. Defective concepts are generally constructed when the voices of a group in a superior epistemic position relative to what the concept concerns, due to their first-hand experiences (e.g., the position of women with respect to rape, which they suffer more often than men), are ignored. This often happens because marginalised groups (e.g., women in patriarchal societies) are underrepresented in political bodies, and as a result, hold less power. For example, out of 32 judges within Criminal Chamber of the Polish Supreme Court, only 5 are women.

We argue that when a marginalised group is silenced, this not only results in hermeneutical injustice, but also facilitates the dominant group’s pursuits to fulfil its own interests. The rape regulations in Poland present not only an epistemic injustice, but also a power struggle: these regulations are constructed so as to protect the interests of men in long-term heterosexual relationships. Yet as statistical data shows, sexual violence is predominantly committed by a known perpetrator, who in majority of cases is a partner.5 This creates a mismatch between the goal of the rape regulations (the protection of sexual autonomy), and the actual outcome, which fails to fulfil this goal. We believe that this failure stems from the defective concept of rape, based on men’s perspectives, and biased by men’s perceptions of what the normal behaviour of women in romantic relationships should look like. Since rape is a gendered crime, the epistemic standpoints differ between genders and so do their interests: women and members of other marginalised gender groups are more vulnerable to rape. Catharine MacKinnon writes, “In the criminal law, we can’t put everybody in jail who does an ordinary act, right? Crime is supposed to be deviant, not normal.”6 Were the regulation to reflect the experiences and perspectives of women, it would have to acknowledge how common sexual violence really is, and what the typical circumstances are of its being committed.

§3 Poland as a case study: Three conditions of rape

As mentioned in the beginning, in Poland there are three main ways, apart from the general lack of consent, in which rape can be committed: by force, unlawful threat, or deception. These conditions have been carried over from the regulation’s original text (from before February 2025). Thus, the past jurisprudence and commentaries are still effective regarding force, unlawful threat, and deception. However, as a careful reader of the Code will notice, lack of consent is a presupposition of each of the three remaining conditions, making them somewhat redundant.7

§3.1 Force

According to the Polish rape regulation, force is nothing more or less than physical violence. It is understood narrowly as aimed at overcoming resistance. This means that the victim must resist the perpetrator (e.g. by defending oneself, crying, saying no), and her resistance must communicate her protest intelligibly to the perpetrator.8

This first way to commit rape fits well with stereotypical notions and imaginings of rape. A violent stranger in a dark alley, attacking a helpless victim, who does everything in her power to fight him off. However, this narrative is far from what rape usually looks like. As mentioned before, rape is mostly committed by a known perpetrator, e.g., a romantic partner, who seldom needs to resort to physical violence to coerce the second party into intercourse. Moreover, it is common for rape survivors to react with tonic immobility.9 This is a state where the body of the victim freezes from fear, and is incapable of fighting, screaming, or sometimes even saying no. Tonic immobility affects about as many as 70% of survivors of rape by force.10 Thus, the force condition repeats a narrative that is very far from the typical experience of a rape survivor. We think this is an example of hermeneutical injustice.

To add insult to injury, the Polish Supreme Court has further defined conditions of resistance by the victim, which convey a message about what behaviour is expected of a model victim. In Supreme Court ruling V KK 316/21, the Court stated that a victim who had cried and begged the perpetrator to stop had not been raped, because her behaviour did not communicate protest. The Court stated that crying and begging expressed the shame and trauma of the survivor, rather than her resistance. What is clear from this ruling is that the interpretation of the Court hardly considered the interests of members of the gender groups predominantly affected by sexual crimes. In this interpretation, the Court employed a Victorian image of women’s sexuality (including the claim that sexual violence is a source of shame for women), while also effectively offering the survivor a lesser protection. In V KK 316/21, the perpetrator was convicted of a lesser crime than rape.

§3.2 Unlawful Threat

Unlawful threat is precisely defined in the Polish Criminal Code. Not every threat counts as unlawful, only the most serious ones: the threat of committing a crime, bringing about criminal proceedings, or spreading derogatory information. This definition significantly narrows down the scope of threats that, when used to force someone into intercourse, are considered rape.

Again, we believe that this requirement is problematic: it does not really reflect how rape usually is committed, while also ignoring the subtler forms of influencing the decision-making process that are made possible by structural inequalities and power imbalances in a given society. By focusing just on unlawful threat as a condition of rape, the Code once again ignores the context of most rapes being committed by someone known by the victim. It is highly unlikely that a partner or a family member will threaten to bring about criminal proceedings or spread defamatory information. In romantic relationships, subtler forms of threat—such as the threat of breaking up, or the threat of withholding money or assets—are often sufficient to coerce the victim into intercourse. This is especially true in societies where women still earn less and are often financially dependent on male partners.

The construction of the legal concept of unlawful threat seems arbitrary when the crime of rape is concerned. Once again, it contributes to hermeneutical injustice in rape regulations, since it constructs an alternative model of rape that diverges from the one based on the experiences of victims. Moreover, it is advantageous for perpetrators, since a statistically “typical” rape is different from the type of rape defined in the legal code.

§3.3 Deception

Lastly, the rape can by committed through the use of deception: that is, taking advantage of someone’s mistake, or deliberately misleading them about some fact that is relevant to their decision to have sex. However, it is commonly accepted within doctrinal and judicial interpretations that only mistakes about factors regarded as objectively important can invalidate consent. In Polish law, the scope of such factors is determined by so-called ‘dominant cultural patterns,’ and is very limited. Deception regarding factors that are only subjectively relevant to someone’s decision is not enough to outweigh consent11, even if the other party knows about this subjective importance.

This is, in our opinion, another example of hermeneutical injustice. There are only two universally accepted and widely discussed examples of such deceit: pretending to be the partner of the victim, and performing a sexual act under the pretence of medical examination. Although both situations certainly occur, they are rare. At the same time, more common lies, such as pretending to be single or to have certain qualities, are not seen as cases of deception. The victims of these kinds of lies and manipulations are not protected. Rather, their experiences are dismissed as something normal and to be expected in the sexual sphere12, and the victims themselves are deemed ‘naïve.’13

Let us draw a comparison with another crime that is present within Polish Criminal Code. Think of a so-called advance-fee scam: someone receives an email informing them that a wealthy prince or a famous celebrity wishes to grant them an enormous sum of money. The only thing they need to do is to pay a small fee, after which they can enjoy the promised wealth. We believe that it is not controversial to say that victims of such scams are somehow naïve. Nevertheless, the law rightfully protects them and punishes the perpetrators, regardless of how obvious or avoidable the fraud may have been. Why, then, are victims of sexual fraud perceived as naïve and unworthy of protection? Perhaps because while anyone can fall for the financial scam, rape remains a gendered crime.

§4 The lack of consent

As we can see above, the previous rape regulation in Poland generated many problems. The amendment introduced in 2025 was supposed to remedy some of them. However, sadly, it turns out it may fail to resolve the existing problems and, in fact, could even create new ones.

The first potential problem with the amendment is the lack of clarity concerning how to define consent. When introducing the amendment, the legislators stated that “the definition of consent will be developed by legal doctrine and the judiciary.”14 Since various definitions of this concept are available, there is a serious risk that legal scholars and judges will continue to rely on long-established interpretations of rape (i.e., by force, unlawful threat, or deceit), as discussed above.

The risk is even greater when one considers the second potential problem brought about by the amendment. The previous conditions – force, unlawful threat, and deception – are still present and listed first within Article 197. Furthermore, the consent clause is formulated in a way that gives precedence to the old conditions: ‘in any other way despite the lack of their consent’. This wording requires that courts first consider whether force, unlawful threat, or deception were present, and only then determine if the sexual contact was non-consensual. Thus, we believe that old conditions, which according to us prioritize interests of men over those of rape victims (i.e. predominantly women), will continue to dominate both regulation and jurisprudence on rape in Poland.

  1. Małecki, M. (2025), Przestępstwo zgwałcenia po nowelizacji. Komentarz, Wolters Kluwer. ↩︎
  2. The office of the prosecutor, International Criminal Court (2023), POLICY ON GENDER-BASED CRIMES. Crimes involving sexual, reproductive and other gender-based violence, https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf. ↩︎
  3. Bulska, D., Winiewski, M., Świder, M., Soral, W., Górska, P., Mazurczak, J., Abramowicz, M., Kryszk, K., Rawłuszko, M., & Strzałkowska, A. (2017), Sytuacja spoleczna osob LGBTA w Polsce. Raport za lata 2015-2016; Katz-Wise, S. L., & and Hyde, J. S. (2012), “Victimization Experiences of Lesbian, Gay, and Bisexual Individuals: A Meta-Analysis,” The Journal of Sex Research, 49 (2–3), https://doi.org/10.1080/00224499.2011.637247, pp. 142–167; Serano, J. (2016), Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity. ↩︎
  4. Fricker, M. (2007), “Hermeneutical Injustice,” in M. Fricker (ed.), Epistemic Injustice: Power and the Ethics of Knowing (Oxford University Press), https://doi.org/10.1093/acprof:oso/9780198237907.003.0008, p. 158. ↩︎
  5. García-Moreno, C., Jansen, H., Ellsberg, M., Heise, L., & Watts, C. (2005), “WHO Multi Country Study on Women’s Health and Domestic Violence Against Women. Initial results on prevalence, health outcomes and women’s responses,” in Book WHO Multi-country Study on Women’s Health and Domestic Violence against Women (Vol. 204). ↩︎
  6. MacKinnon, C. A. (1987), Feminism unmodified: Discourses on life and law (Harvard University Press). ↩︎
  7. See for example Bielski, M. (2017), Kodeks karny. Część szczególna. Tom II. Część I. Komentarz do art. 117-211a, edited by W. Wróbel and A. Zoll (Warszawa). ↩︎
  8. Ibid. ↩︎
  9. See for example Möller, A., Söndergaard, H. P., & Helström, L. (2017), “Tonic immobility during sexual assault – a common reaction predicting post-traumatic stress disorder and severe depression,” Acta obstetricia et gynecologica Scandinavica, 96(8), https://doi.org/10.1111/aogs.13174, pp. 932–938. ↩︎
  10. Ibid. ↩︎
  11. See for example Tarapata, S. (2022), “Podstęp jako jedna z form przestępstwa zgwałcenia – zagadnienia wybrane,” in Prawo w Działaniu, 51, https://doi.org/10.32041/pwd.5104, pp. 49–62. ↩︎
  12. Głuchowski, M. (2022), “Zakres zgody na czynność seksualną przy przestępstwie zgwałcenia z użyciem podstępu,” Przegląd Sądowy, 11–12, pp. 186–201. ↩︎
  13. Myśliwiec, H. (2012), “Podstęp jako znamię przestępstwa zgwałcenia,” Prokuratura i Prawo, 11, pp. 70-71. ↩︎
  14. The Justification of the Deputies’ bill no. 209. (2024), https://orka.sejm.gov.pl/Druki10ka.nsf/0/0C0F50C40EDBE0E0C1258ACA00374AAC/%24File/209-uzasadnienie.docx (accessed Oct 12, 2025), p. 7. ↩︎