O rodzajach błędów w ramach przestępstwa zgwałcenia z użyciem podstępu – polemika
Rape using deception – polemics

Summary/Abstract: M. Grudecki takes the view that rape by deception (Article 197 section 1 of the Polish Criminal Code) should encompass every devious misrepresentation leading to a sexual act if the mistake concerns an issue that was material to the decision of the victim on the sexual activity. The aim of this paper is to establish the flaws of this opinion. The author presents the following conclusions. The interpretation favoured by M. Grudecki would extend the criminal liability for rape even to cases in which the sexual autonomy of the mistaken person was not violated. Furthermore, the scope of rape would be very broadly defined, but many misrepresentations would not constitute an offence due to their negligible social harmfulness (Article 1 section 2 of the Polish Criminal Code). This method of narrowing down the criminally relevant cases of deception would lead to legal uncertainty. The author agrees with M. Grudecki that the prevailing interpretation of the element of “deception” is too narrow. Nevertheless, the scope of the offence of rape by deception should be restricted based on the criterion of “lack of consent”.

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