Changes brought about by the sexual offences amendment

Author of the article: Mgr. Oliver Uraz, LL.M., ARROWS (office@arws.cz, +420 245 007 740)

As of 1 January 2025, a major amendment to the Criminal Code came into force, which regulates the definition and punishment of sexual offences. The new wording of the law is based on the principle "NO means NO", which means that victims who show any understandable disapproval of sexual intercourse are now better protected, even a simple gesture or other non-verbal expression of meaning that everyone must immediately understand, such as crying, is sufficient. In detail, the amendment focuses on the redefinition of sexual offences, the creation of a new offence of sexual assault, stricter penalties, taking into account when the victim cannot express his or her disapproval, and the introduction or clarification of some other concepts of great importance for the punishment of sexual offences, such as, for example, a more precise definition of what constitutes the defencelessness of a child.

 

Redefining rape

Rape is when an offender performs coitus or sexual intercourse on his victim, where until now the main feature has been that he must use violence, the threat of violence or the threat of other serious harm. Now, however, the wording has changed to state that the offender performs against the victim's known will. In practice, therefore, rape has been extended to all cases where the victim has made a comprehensible expression of her or his disapproval of the sexual intercourse. The victim's non-consent may be in the form of words or no words, for example, by a non-consensual gesture, crying, or a defensive posture. The victim will no longer be required to physically resist the assault, or the perpetrator must have used violence or the threat thereof.

This will now include only situations where coitus or comparable intercourse occurs, which is considered to be those forms of sexual practice where penetration (including, for example, oral intercourse) takes place.

Rape also includes cases where the perpetrator takes advantage of a situation in which the victim is unable to express her or his non-consent. In order to capture this range of situations more precisely, the Criminal Code has added a new provision regulating the offence of abuse of defencelessness. The perpetrator abuses the victim's defencelessness in a situation where the victim is unable to express his or her disagreement for an objective reason or where the victim's ability to do so is severely limited. In particular, a condition induced by unconsciousness, sleep, influence of addictive substances, including alcohol, illness, disability, mental disorder, severe crippling stress, low or high age, surprise. This includes situations where severe stress leads to 'freezing' or other defensive reactions that affect the victim's mental processes and perceptions. The new definition of a defenceless victim of this offence means that, because of their young age, children under the age of 12 are always considered to be defenceless (until now, there has been no fixed age limit, although this has generally been assumed for younger children).

The fact that the offence of rape is now limited to the more serious cases of sexually motivated crime has led to an increase in the basic penalty, which is now between 2 and 10 years' imprisonment. At the same time, the circumstances for the application of the higher penalty rate (with a rate of 3 to 12 years) have been expanded, namely if the offence is committed on a child or with a weapon, and now on a pregnant woman, as in this state the woman is more vulnerable and the fetus may also be at risk, or if the rape is caused by the woman's pregnancy , and also now if the offence is committed with another person (in a group).

The maximum penalty for rape is between 5 and 15 years and is imposed on a person who commits it against a child under the age of 15 or against a person who is in a facility in which his or her personal liberty is restricted (e.g. a prison or detention centre, a custodial sentence, protective treatment, a medical facility, an educational institution) or where the act has caused serious bodily harm to the victim.

New offence of sexual assault

The amendment creates a new offence which aims to punish the same type of assault as rape, but only affects less invasive forms of sexual intercourse carried out in a so-called non-penetrative manner (e.g. groping or rubbing, etc.). Sexual intercourse also includes all practices which do not take the form comparable to intercourse but which are intended to show sexual desire on the body of another person.

The terminology of the criminal law is thus, after the amendment, closer to the generally perceived content of the concept of rape, and other types of direct sexual assault, which are of a different nature but which must also be punished by means of criminal law, are separated into a separate category.

It applies to both active acts of the perpetrator, where the perpetrator himself performs one of the sexual practices on the victim's body, and passive acts (the perpetrator forces the victim to rub his genitals), and also to situations where the perpetrator thus forces the victim to act towards another person (the perpetrator does not have to be physically involved in the sexual act itself).

A new distinction is made between three possible forms of committing this offence, which are the same as for rape, i.e. 1) against the victim's known will, 2) by coercion, or 3) by taking advantage of the victim's defencelessness.

Revision of the regulation of sexual coercion

While sexual coercion is not an entirely new offence, it is an offence that has been fundamentally revised. The offence now focuses on situations where the perpetrator does not use direct violence or threats, but nevertheless induces the victim to engage in sexual conduct such as sexual intercourse, sexual self-disclosure or exposure. The violent form of these practices has now been separated into the entirely new offence of sexual assault described above. Thus, typically, sexual coercion will involve cases where the perpetrator abuses his position, trust or influence, or situations where the victim is in distress or dependent on the perpetrator. The victim may appear to be acting voluntarily, but in reality she is not free to choose because she is psychologically or socially influenced by the perpetrator, for example by persuasion or promises.

The offence includes situations where the perpetrator exploits the victim's dependency , for example, when a creditor induces his debtor or a warder induces his prisoner to engage in sexual behaviour, etc. Or the perpetrator abuses his position and the resulting credibility or influence that inspires confidence in the victim or exerts his authority over the victim. This is the relationship between a sports coach and his ward, the relationship between a superior and a subordinate. The perpetrator takes advantage of the victim' s distress, distress being a condition, albeit temporary, brought about by adverse circumstances which lead to a restriction of freedom of decision-making. These adverse circumstances may relate to personal, family, property or other circumstances for which the oppressed person finds himself in difficulties and distress. It is irrelevant how the injured person came to be in that state, or whether he or she caused it by his or her own conduct.

Implications for the sanction of any sexual intercourse with a child under the age of 15 (sexual abuse)

The offence is committed by an offender who has intercourse with or otherwise sexually abuses a child aged between 12 and 15 years. As a child under 12 is considered defenceless under the new section 119a of the Penal Code, this would be rape or sexual assault for these children, as such acts are logically punished more severely, as it is highly reprehensible behaviour consisting in the abuse of the trust of a child who has been placed under the supervision of the perpetrator.