“Violence” and “Lack of Consent” – Two Approaches to Constructing the Essence of the Offence of Rape from the Perspective of the Victim’s Autonomy

Summary The authors of the article answer the question of how to describe (define) rape in criminal law provisions so that the scope of criminalization covers all sexual behavior violating the subjectivity of the victim. The determination of the optimal manner of criminalization was based on definitions of being raped existing both in everyday and legal language. Reference was also made to provisions criminalizing rape in selected countries, combined with an attempt to categorize them based on the criterion of how the prohibited behavior is described. Attention was also drawn to the essence of sexual freedom and ways of its violation, and to setting the conditions under which it is possible to consider that sexual intercourse is approved by all parties. Ultimately we came to the view that rape is sexual intercourse without the other person’s consent.