Benchbook for Consideration of The Criminal Offence of Rape in the Caselaw of Bosnia and Herzegovina
Benchbook for Consideration of The Criminal Offence of Rape in the Caselaw of Bosnia and Herzegovina
Contributor(s): Majda Halilović (Editor), Ivanka Marković (Editor), Maida Ćehajić-Čampara (Editor)
Subject(s): Gender Studies, Criminal Law, Human Rights and Humanitarian Law, Clinical psychology, Criminology, Studies in violence and power, Health and medicine and law, Victimology, Ethnic Minorities Studies, Penal Policy, Court case, Asylum, Refugees, Migration as Policy-fields
Published by: Atlantska inicijativa: Udruženje za promicanje euroatlantskih integracija BiH
Keywords: criminal offense; criminal law; rape; court; judicial practice; BiH; manual; health; psychological trauma; gender; penal policy;
Summary/Abstract: Although rape constitutes the gravest criminal offence against sexual freedom and morale and is one of the most severe allegations in contemporary criminal legislation, an analysis of publicly available cases carried out by the Atlantic Initiative in late 2017 indicated a need to direct greater attention towards the crime of rape in justice systems in Bosnia and Herzegovina (BiH). The results of that analysis, presented in the second chapter of this text, revealed inconsistent practices in the evaluation of mitigating and aggravating factors, insufficient consideration of the mental health consequences for victims of rape, and the frequent reduction of sanctions or the imposition of minimum sanctions for this offence. It also uncovered evidence that stereotypes about the behaviour of victims and perpetrators impacts outcomes. In response, the Atlantic Initiative facilitated the work of a panel of twelve judges from different courts in BiH through the “Gender and Justice Project in Bosnia and Herzegovina,” to consider existing court practices in cases of rape and develop recommendations and resources for work on these cases. The panel held monthly meetings from December 2017 to June 2018, developing this Benchbook through working groups, discussions with experts, and analysis of cases. The panel believes this Benchbook can help judges better understand the criminal offence of rape, as well as its short- and long-term effects on victims, and can play a role in helping them overcome dilemmas that arise in these cases. During its work, the panel considered legislative solutions in BiH, focusing on the uniformity of provisions governing the criminal offence of rape and the sanctions prescribed by criminal codes; but also on sentencing, particularly legislation directly relating to “court sentencing.” The panel also analysed the application of mitigating and aggravating factors, which were observed to have an important if not a decisive influence on the specific type and severity of sanctions imposed by the courts. Further, the panel reviewed qualifying forms of rape and the consequences of gender bias in sexual assaults, and took an in-depth look at the psychological traumas experienced by victims of rape. In the context of discussions and presentations, the panel analysed the international practice and concept of “rape without consent” as well, which is promoted by the Istanbul Convention but has not yet found its place in BiH (other than as a crime against humanity). Along with references to court practices and literature from BiH and beyond, this Benchbook offers the conclusions, recommendations, and key findings of the panel that developed it. The Benchbook is divided into seven chapters that can be used separately or together as a resource in work on criminal cases of rape. Chapter One considers legislation in BiH on the criminal offence of rape. Chapter Two reflects on caselaw relating to the application of mitigating and aggravating factors. Chapter Three reviews the qualifying framework of the criminal offence of rape. Chapter Four provides an overview of the psychological consequences of rape for victims. Chapter Five addresses gender bias and socio-cultural specificities of the criminal offence of rape. Chapter Six presents an analysis of bias against disabled persons, minorities, and migrants with regard to the criminal offence of rape. Chapter Seven provides panel recommendations for the evaluation of mitigating and aggravating factors when determining sanctions for the criminal offence of rape.
- E-ISBN-13: 978-9926-465-13-1
- Print-ISBN-13: 978-9926-465-13-1
- Page Count: 112
- Publication Year: 2019
- Language: English
The Legal Framework: Legislation in BiH on The Criminal Offence of Rape
The Legal Framework: Legislation in BiH on The Criminal Offence of Rape
(The Legal Framework: Legislation in BiH on The Criminal Offence of Rape)
- Author(s):Haris Halilović
- Language:English
- Subject(s):Gender Studies, Criminal Law, International Law, Studies in violence and power, Court case
- Page Range:11-17
- No. of Pages:7
- Keywords:criminal offense; criminal law; rape; BiH; legislation; legal framework;
- Summary/Abstract:Over the past decades, interpretations of what constitutes the criminal offence of rape have developed, and the existence of coercion (force or threat against the life or body of the victim or a person close to them) is no longer seen as necessary for qualification of this offence, given that the absence of consent can be proved through other factual circumstances. This interpretation is unequivocally enshrined in the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), which was ratified by BiH in 2013. In line with requirements set out in the Istanbul Convention, the Criminal Code of BiH (CC BiH) was amended in 2015 and the qualifications of crimes against humanity (Article 172) and war crimes against the civilian population (Article 173) were changed, so that the use of force or the threat of direct attack against the life or limb of the victim or a person close to them is not necessarily a constituent element of sexual violence crimes during armed conflict. Accordingly, the lack of consent by a victim can be proved through the existence of other decisive facts.
Sentencing in Rape Cases and Other Crimes Against Sexual Freedom: An Analysis of The Mitigating and Aggravating Factors Applied by Courts in BiH
Sentencing in Rape Cases and Other Crimes Against Sexual Freedom: An Analysis of The Mitigating and Aggravating Factors Applied by Courts in BiH
(Sentencing in Rape Cases and Other Crimes Against Sexual Freedom: An Analysis of The Mitigating and Aggravating Factors Applied by Courts in BiH)
- Author(s):Haris Halilović
- Language:English
- Subject(s):Gender Studies, Criminal Law, Human Rights and Humanitarian Law, Studies in violence and power, Court case
- Page Range:19-34
- No. of Pages:16
- Keywords:criminal offense; criminal law; court; sentencing; sexual freedom; circumstances;
- Summary/Abstract:Preparations for this research included a focus on identifying problems that arise in the context of sentencing decisions for the offence of rape and other related crimes, especially when it comes to the evaluation of mitigating and aggravating factors. These factors have been observed to contribute directly to inadequate sentencing for rape and related offences, and therefore, this research examined the mitigating and aggravating factors applied by courts when deciding the type and severity of sanctions. A total of 34 convictions were analysed, among which 4 judgements were for the continued criminal offence of rape (including cases where a continued rape crime was perpetrated in concurrence with other crimes), 27 were for rape crimes (including cases where a rape crime was perpetrated in concurrence with other crimes), 2 were for the criminal offense of sexual intercourse with a child (in one of these cases, this offence was perpetrated in concurrence with the criminal offence of abuse of a child or juvenile for pornography, referred to in Article 211(1) of the CC FBiH), and 1 judgement for lechery. The parts of the country, subject matter, and jurisdictions encompassed by these judgements distributed cases across the following courts: the Supreme Court of FBiH; the Appellate Court of BDBiH; the District Courts in Doboj and Bijeljina; the Cantonal Courts in Bihać, Livno, Tuzla, and Zenica; the Municipal Courts in Livno, Travnik, Tuzla, Visoko, Velika Kladuša, and Živinice; and the Basic Courts in Trebinje, Bijeljina, Modriča, and the BDBiH.
Qualified Forms of The Criminal Offence of Rape
Qualified Forms of The Criminal Offence of Rape
(Qualified Forms of The Criminal Offence of Rape)
- Author(s):Ivanka Marković
- Language:English
- Subject(s):Gender Studies, Criminal Law, Studies in violence and power, Court case
- Page Range:37-57
- No. of Pages:21
- Keywords:criminal offense; criminal law; rape; forms; qualified forms;
- Summary/Abstract:Like other criminal legislation around the world, that of BiH includes different qualified forms of the offence of rape. Although there are some differences in the legislative techniques used to define certain qualified forms in the CC RS, the CC FBiH, and the CC BDBiH, there are no substantial differences among them. All these laws, described earlier, establish the following qualifying circumstances: the age of the passive subject, the motives for and method of perpetration, and actions that result in serious bodily injury or health impairment to a victim, or their death. However, legislators in the Federation of BiH and the Brčko District stipulate different sanctions for the qualifying form of the offence perpetrated against an adult person versus a juvenile. For example, if a rape was perpetrated in a particularly cruel or degrading manner against an adult person, the punishment set out is 3 to 15 years in prison, and if the same offence was perpetrated against a minor, the minimum sanction is instead 5 years. The CC RS does not make this distinction. In all codes, the most severe form of the offence is defined as resulting in the death of the victim.
The Psychological Trauma of Rape
The Psychological Trauma of Rape
(The Psychological Trauma of Rape)
- Author(s):Heather Huhtanen
- Language:English
- Subject(s):Gender Studies, Psychology, Clinical psychology, Criminology, Studies in violence and power, Health and medicine and law
- Page Range:59-70
- No. of Pages:12
- Keywords:violence; rape; psychology; trauma; health;
- Summary/Abstract:Rape is in a category of highly intense traumatic events that so exceed the limits of common human experience as to be exceptionally horrific for all people, especially children. According to the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), traumatic events include those involving direct and indirect exposure to death or threats of death, serious injury, or sexual violence. These events are extremely difficult and imminently result in the psychological condition called psychological trauma. These events may be isolated or recurring, and can so severely disturb the “life balance” of an individual that they have difficulty ever finding it again.
The Consequences of Gender Bias in Sexual Assault Cases: Victim Selection, Recantations, and False Allegations
The Consequences of Gender Bias in Sexual Assault Cases: Victim Selection, Recantations, and False Allegations
(The Consequences of Gender Bias in Sexual Assault Cases: Victim Selection, Recantations, and False Allegations)
- Author(s):Mirela Mujagić
- Language:English
- Subject(s):Gender Studies, Criminal Law, Social differentiation, Studies in violence and power, Court case
- Page Range:73-83
- No. of Pages:11
- Keywords:gender; bias; sexual assault; selection of victims; testimony withdrawal; false allegations; consequences;
- Summary/Abstract:Gender bias affects our understanding and opinion of the world around us, particularly concerning social behavior. Specifically, gender bias refers to negative or positive judgements and/or behaviours associated with women, men, girls, and boys and extending from prevailing stereotypes in a given socio-cultural context. Gender bias can be explicit or implicit; and implicit bias develops automatically and unconsciously in a process we are all affected by, in which we assign a stereotype and/or associate a negative or positive attitude with a particular group, or with an individual associated with a group.
Special Vulnerabilities of Rape Victims
Special Vulnerabilities of Rape Victims
(Special Vulnerabilities of Rape Victims)
- Author(s):Majda Halilović
- Language:English
- Subject(s):Gender Studies, Social differentiation, Studies in violence and power, Health and medicine and law, Victimology, Ethnic Minorities Studies
- Page Range:85-92
- No. of Pages:8
- Keywords:violence; rape; victims; vulnerabilities; Roma; refugees; women; migrants;
- Summary/Abstract:In order to best deliver justice to victims of rape and sexual violence, judges must understand their real vulnerabilities, as well as perceptions of vulnerability that arise from a combination of gender inequality and other social and personal characteristics of a victim and make them targets of perpetrators. These factors lead perpetrators to believe they will have easy access to the victim, or that the victim will not have the capacity to report the assault or will be prevented from reporting. Among the groups discussed in this context below are some of the people most frequently exposed to multiple layers of discrimination – because they are women, disabled, members of a minority community, refugees, and/or migrants. Even when they report a rape, these individuals are often exposed to additional review, double prejudice, and distrust.
Panel Recommendations: Mitigating and Aggravating Factors Related to The Criminal Offence of Rape
Panel Recommendations: Mitigating and Aggravating Factors Related to The Criminal Offence of Rape
(Panel Recommendations: Mitigating and Aggravating Factors Related to The Criminal Offence of Rape)
- Author(s):Adisa Zahiragić, Alen Lukač, Amela Skrobo-Kadrić, Biljana Radulovic, Duško Miloica, Jasmina Ćosić-Dedović, Lejla Konjić Dragović, Melika Murtezić, Nada Živković, Miroslav Popović, Silva Belegić-Perčinlić, Svetozar Bajić
- Language:English
- Subject(s):Gender Studies, Criminal Law, Human Rights and Humanitarian Law, Criminology, Victimology, Court case
- Page Range:95-108
- No. of Pages:14
- Keywords:criminal offense; criminal law; court; circumstances; rape; panel recommendations;
- Summary/Abstract:Unlike the sentencing policy of the legislature for certain criminal offences, which is mostly known only to legal professionals, the sentencing policies of courts are known to the general public and serve as the basis for their impressions about how effectively the public good is being protected. Therefore, it is extremely important for judges to recognize not only special prevention requirements but also general prevention requirements at the sentencing stage in crimes of sexual violence, so that the imposed sanctions affect not only the perpetrators and act as a deterrent from future criminal acts but send a message to all other potential perpetrators of sexual offences, too. Such an approach to the purpose of sentencing requires maximum engagement by courts in the sentencing process, in order to determine optimal sanctions based on existing aggravating and mitigating factors. Any imposed sanction should fulfil both justice and fairness requirements and should adequately satisfy the victim.
Additional Literature
Additional Literature
(Additional Literature)
- Author(s):Not Specified Author
- Language:English
- Subject(s):Gender Studies, Bibliography, Criminal Law, Criminology, Studies in violence and power, Court case
- Page Range:109-110
- No. of Pages:2
- Keywords:references; additional literature; criminal law; offense; rape; court; BIH;
Author Biographies
Author Biographies
(Author Biographies)
- Author(s):Not Specified Author
- Language:English
- Subject(s):Scientific Life
- Page Range:111-112
- No. of Pages:2
- Keywords:about authors; biographies;
Excerpts from Reviews
Excerpts from Reviews
(Excerpts from Reviews)
- Author(s):Miloš Babić, Hajrija Sijerčić-Čolić
- Language:English
- Subject(s):Book-Review
- Page Range:113-114
- No. of Pages:2
- Keywords:reviews; excerpts;
- Summary/Abstract:The Panel participants share the view that it is unacceptable that the same circumstances are mentioned as mitigating in all criminal offences, regardless of their nature or character of the protected good, although those circumstances are not functionally associated with the perpetrated criminal offence (e.g. financial status or family circumstances in case of rape crimes). Template explanations, without judicial creativity or daring based on the law, are present in a large number of judgements that were examined by this Panel. Therefore, Panel participants believe that it is necessary to change the court practice in this field, in order to pay much more attention to the explanation of the sentence, so that any reader, not only the victim, has a clear idea about circumstances that made the court decide on the concrete sanction. In that sense, it is emphasized that it is necessary to specify contents of each aggravating and mitigating factor when valuing them (instead of just listing them, e.g. family circumstances, without a specific analysis of this factor and evaluation of its importance and correlation with the offence and sentencing. In view of the above, I think that this Handbook will be significant resource for court practice in Bosnia and Herzegovina which, when used in court proceedings involving the criminal offence of rape, can provide insight not only in case law of other courts, but also in all potential psychosocial consequences of rape for the victim and her future life. Such a comprehensive approach to this issue will result in a more acceptable evaluation of all circumstances relevant for reviewing of severity of the rape crime and the degree of perpetrator’s criminal liability, which will eventually result in a more adequate sentencing policy of courts for the criminal offence of rape.
