Original scientific paper
Substantive Law Overview of Crime of Rape in Croatian Jurisprudence
Igor Vuletić
; Sveučilište Josipa Jurja Strossmayera u Osijeku, Pravni fakultet, Hrvatska
Petra Šprem
; Sveučilište u Zagrebu, Pravni fakultet, Hrvatska
Abstract
The criminal act of rape had undergone significant conceptual changes with the passing of the Criminal Code of 2011. The legislature regulated this criminal act as a qualified form of sexual intercourse without consent and explicitly included the indirect perpetration in the description of the act. The most significant change involves the incrimination of the rectifiable misapprehension about the description of the act, which indirectly introduces the criminality of the negligible form of the act (considering that the misapprehension always excludes the intent). The intent was to limit the defense of the accused from appealing to the misapprehension about the existence of the victim’s consent. This solution is typical for the common law systems, and a rarity in the legal systems of continental Europe. In this paper, the authors cover the certain characteristics of the criminal act of rape in the available case law of the Croatian courts. The emphasis is placed on case law created after the Criminal Code of 2011 came into force. The authors address the issues of demarcation of attempted rape from the completed sexual misconduct, inappropriate attempt and voluntary abandonment of rape, complicity, interpretation of force and threat, while also covering the issue of demarcation of certain forms of guilt regarding this criminal
act as well as the application of aggravating and mitigating circumstances in sentencing. The purpose of the paper is to analyse the relevant case law and establish the extent to which it overlaps with the theoretical standpoints with offering certain guidelines for future interpretation.
Keywords
coercion; threat; sexual intercourse; equivalent act; mistake of facts; indirect perpetration, concurrence; aggravating and mitigating circumstances
Hrčak ID:
222372
URI
Publication date:
20.6.2019.
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