Does current legislation require a receipt for sexual relations?

On January 11, 2019, the Law of Ukraine “On Amendments to the Criminal Code and the Code of Criminal Procedure of Ukraine to Implement the Provisions of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence” dated December 6, 2017, which introduced significant amendments and additions to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine, including a revised version of Article 152 of the Criminal Code of Ukraine. Rape is defined as: the commission of sexual acts involving vaginal, anal, or oral penetration of another person’s body using the genitals or any other object, without the voluntary consent of the victim (rape).

Myths are circulating on social media regarding the need for written consent forms for sexual contact, witnesses, sample consent forms, video recording, and proposals to develop mobile apps for recording consent, among other things.

In fact, the Criminal Code of Ukraine does not contain such provisions.

The difference lies in the fact that under the previous version of Article 152 of the Criminal Code, rape was defined as sexual intercourse involving the use of physical violence, threats of its use, or taking advantage of the victim’s helpless state, that is, to establish the offense, it was necessary to prove the use of physical violence, the threat of its use, or the exploitation of the victim’s helpless state.

Under the updated version, for an act to be classified as rape, it is sufficient that the victim did not give voluntary consent, that is, consent resulting from the person’s free expression of will, taking into account the surrounding circumstances (without threats, deception, psychological manipulation in other forms, etc.).

Regarding voluntary consent and the need to shift the focus.

Recommendation Rec (2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence provides: 101. The Committee of Ministers recommends that member states adopt and implement, in the manner most appropriate to the circumstances of each country, a series of measures to combat violence against women. Paragraph 35 of the Appendix to the Recommendation states that, in the field of criminal law, member states must, in particular, “ensure that any sexual act committed against a person who does not consent to it is punishable by law, even if the person does not show signs of resistance;... ensure that any abuse by the perpetrator of a crime of their position—and especially the position of an adult in relation to a child—is punishable by law.”

As noted by Olena Kharitonova[1], author of the scientific and practical guide “Key Principles of Gender Policy in Ukrainian Criminal Law and Main Directions of Reforms to Combat Violence Against Women and Domestic Violence” (2018), in national criminal law theory and practice, the interpretation of violence as an element of sexual offenses has often been framed through the category of “resistance.” However, the development of the law in this area reflects the evolution of societies toward effectively ensuring equality and respect for every person’s sexual autonomy. Violence is interpreted more broadly—as an infringement upon the victim’s sexual autonomy due to the absence of her voluntary and consensual actions. To combat sexual crimes, society must cultivate a so-called “culture of consent.” The motto of this culture is: “Yes Means Yes.” Anything that isn’t “Yes” (“I don’t know,” “I’m not sure,” “I’ll think about it,” “maybe tomorrow”) is “No”! The idea of communicative consent lies in shifting the burden of proof onto the sexual offender—who failed to ensure a “Yes”—rather than onto the victim—who failed to say “No.” Each partner must ensure that the other has clearly and voluntarily consented to specific sexual acts. The minimum standard of consent is a person’s ability to clearly (physically, verbally, or through other conclusive actions) to express their freedom of sexual will, to understand the nature and significance of the actions and the consequences of their decision regarding sexual relations, and to comprehend the possible consequences of such a choice at the moment the decision is made.

In other words, as Vladislav Vlasyuk[2] points out, for a long time, rape and other forms of sexual violence were defined by the principle that “only ‘no’ means ‘no.’” This means that a person who does not want sexual contact with another can firmly state their refusal, and if this statement is ignored, all subsequent actions by the perpetrator will be considered rape or sexual assault. From now on, the concept of voluntary consent—or “only ‘yes’ means ‘yes’” (onlyyesmeansyes)—will apply. This is linked to the development of a culture of consent—that is, a set of beliefs, customs, and behaviors aimed at ensuring that any sexual interaction takes place with informed mutual consent.

According to surveys[3], a significant proportion of the men and women surveyed agreed to sex they did not want under certain conditions:

51%—out of a sense of duty toward a partner with whom they were married or in an intimate relationship;

23% agreed to unwanted sex to avoid being offended or blamed by the initiator for refusing;

16%—out of fear of losing their partner;

16%—for other reasons;

8%—because the initiator used force or threatened to use force;

7%—due to dependence on the person who initiated the sex.

According to Ukrainian civil society organizations, one in four women in Ukraine has experienced rape or an attempted rape at least once in her life, yet only 6% of female victims report rape or sexual violence to law enforcement agencies.

It should be noted that the ECHR’s decision in the case of “M.C. v. Bulgaria” (December 4, 2003) addressed the issue of rape[4]. The applicant is a Bulgarian citizen born in 1980. She claims that on July 31 and August 1, 1995, she was raped by two men when she was fourteen years and ten months old. The subsequent investigation concluded that there was insufficient evidence to prove that the applicant had been coerced into sexual intercourse.

During the criminal proceedings in Bulgaria, experts noted that, due to her trusting nature and inexperience, the applicant apparently never even considered the possibility that she might be raped. There were no signs that the applicant had been threatened or caused pain, or that she was in a state of shock during these events—as she demonstrated a clear recollection of them. According to the experts’ conclusion, during the events, she suddenly experienced an internal conflict between her natural sexual desire and the awareness that such relations were reprehensible, and this “limited her ability to resist and defend herself.” The experts also noted that the applicant is psychologically healthy and that she understood the significance of what was happening. However, given her age at the time, she “was not capable of demonstrating the stability of the relevant beliefs.” The court’s decision stated: “It should be noted that, as evident from the conclusion of the forensic medical experts, due to her young age and lack of life experience, the complainant was unable to demonstrate the firmness of the relevant convictions, that is, to resolutely show her unwillingness to engage in sexual intercourse. However, in accordance with paragraphs 1(2) and 3 of Article 152 of the Criminal Code, the act cannot be of a criminal nature if the complainant was not compelled to engage in sexual intercourse through the use of physical force or threats that would give grounds to assume the existence of resistance. But there is no evidence of resistance in this particular case. R. and A. can be held criminally liable only if they were aware that they had engaged in sexual intercourse with the complainant without her consent and if they used force or made threats specifically for the purpose of engaging in such intercourse against the complainant’s will. There is insufficient evidence to indicate that the complainant demonstrated a reluctance to engage in sexual intercourse or that R. and A. used threats or force.” It was further noted that the bruises on the applicant’s neck, according to her own account, were caused by “hickeys.” These same conclusions were reiterated in the decision of June 24, 1997, which also stated: “Of decisive importance in this case is the fact that it has not been proven beyond a reasonable doubt that physical force, psychological pressure, or threats were used against the applicant, and that sexual intercourse took place against her will and despite her resistance. There are no signs of physical force, such as bruises, torn clothing, etc... It must be acknowledged that it is unusual for a young woman, who is a minor and a virgin, to engage in sexual intercourse twice within a short period of time with two different people, but this fact alone is not sufficient to prove that a criminal act took place, since there is no other evidence, and it is impossible to gather additional evidence.”

In June 2001, the applicant submitted a written opinion prepared by two Bulgarian experts, Dr. Svetlozar Vasilev, a psychiatrist, and Mr. Valeri Ivanov, a psychologist, whom the applicant’s attorney had asked to express their opinion on the case. The experts, citing scientific publications from several countries, noted that there are two known forms of reaction by rape victims toward their attacker: fierce physical resistance and so-called “frozen fear” (also known as traumatic psychological infantilism syndrome). The latter form occurs when any behavioral pattern based on the victim’s prior experience—in the face of the inevitability of rape—proves inadequate. Therefore, the victim, overcome by terror, often exhibits a passive reaction of submission—a behavior pattern characteristic of childhood—or attempts to psychologically dissociate herself from what is happening, as if it were not happening to her. According to the experts, all the scientific publications they reviewed point to a higher prevalence of the “frozen fear” reaction. In addition, while preparing their written opinion in this case, they conducted their own research. They analyzed all cases of rape involving young women aged 14 to 20 who reported the incidents as part of two special research programs on victims of violence in Bulgaria between 1996 and 2001. However, situations that differed significantly from the one in which the applicant found herself were not considered. Consequently, 25 such cases were identified, and in 24 of them, the victim did not offer fierce resistance but reacted with passive submission.

The ECHR noted that: it follows directly from Articles 3 and 8 of the Convention that States have a positive obligation to enact criminal law provisions that effectively ensure punishment for rape, as well as to apply them in practice by conducting effective investigations and prosecutions in such cases. The Court noted that, in the past, the domestic law and practice of some states required, in rape cases, proof of the use of physical force and the offering of physical resistance. However, over the past few decades in Europe and some other parts of the world, there has been a clear and consistent trend away from formalistic definitions and narrow interpretations of the law in this area. First and foremost, it has been found that the legislation of European states no longer requires evidence that the victim offered physical resistance. European and some other countries have already removed any references to the element of the use of physical force from their general legal provisions and/or case law. In most European countries that have developed under the influence of the civil law tradition, the definition of “rape” refers to the perpetrator’s use of violence or threats to use violence. However, it is important that, in judicial practice regarding rape and the relevant legal theory, the absence of consent—rather than the use of force—be considered an essential element of this crime. The Court also notes that the recommendation adopted by the Committee of Ministers reflects the agreement reached among the member states of the Council of Europe regarding the need, in order to effectively protect women against violence, to ensure punishment for non-consensual sexual acts, “[in particular] in cases where the victim shows no signs of resistance,” and to pursue further reform in this area. International criminal law has recently recognized that the use of force is not a prerequisite for rape and that the use of coercive circumstances to obtain sexual intercourse must also be punishable by law. The Court recognizes that, as evidenced by contemporary standards and trends in this area, the positive obligations arising from Articles 3 and 8 of the Convention require member statesto ensure punishment for non-consensual sexual intercourse and to conduct effective investigations into such cases, including cases where there is no evidence of physical resistance by the victim.

As for the burden of proof in rape cases in Ukrainian criminal proceedings, no changes have been made to the Criminal Procedure Code of Ukraine. As before, the presumption of innocence applies, according to which:

1. A person is presumed innocent of committing a criminal offense and may not be subjected to criminal punishment until their guilt is proven in accordance with the procedure set forth in the Criminal Procedure Code of Ukraine and established by a final and binding court conviction.
2. No one is required to prove their own innocence of a criminal offense and must be acquitted if the prosecution fails to prove the person’s guilt beyond a reasonable doubt.
3. Suspicion or charges may not be based on evidence obtained unlawfully.
4. All doubts regarding the proof of a person’s guilt shall be interpreted in that person’s favor.

As before, criminal liability is provided for knowingly making a false statement to a court, a prosecutor, an investigator, or a pretrial investigation authority regarding the commission of a crime — it is punishable by correctional labor for a term of up to two years, or arrest for a term of up to six months, or restriction of liberty for a term of up to three years, or imprisonment for a term of up to two years.

The criminal procedure remains unchanged, and the burden of proof beyond a reasonable doubt that rape was committed rests with the prosecution (the investigator, the prosecutor). The suspect/defendant DOES NOT HAVE TO prove that he/she did not commit rape!!!, and no adverse consequences for him/her are foreseen, even if he/she refuses to testify!

THERE IS NO QUESTION OF SHIFTING THE BURDEN OF PROOF, NOR IS THERE ANY QUESTION OF THE BURDEN OF PROVING INNOCENCE—AND THERE CANNOT BE!!!

Thus, to summarize briefly:

The Criminal Code of Ukraine has shifted the focus of the classification of rape from the use of physical violence, threats of its use, or taking advantage of the victim’s helpless state—to the absence of the victim’s voluntary consent, the absence of which cannot be linked solely to the use of physical violence, threats of its use, or the exploitation of the victim’s helpless state. No statements, receipts, or attachments are required to document this.
The procedure for proving a person’s guilt beyond a reasonable doubt has not changed; the burden of proof beyond a reasonable doubt that rape was committed rests with the prosecution (the investigator, the prosecutor).
The suspect or defendant is NOT REQUIRED to prove that he or she did not commit rape, and no adverse consequences for him or her are foreseen, even in the event of a refusal to testify.
Criminal liability remains for knowingly making a false statement to a court, prosecutor, investigator, or pretrial investigation authority regarding the commission of a crime.

[1]https://jurliga.ligazakon.net/analitycs/183309_khlb-lyubov--fantasy-or-notes-on-the-fields-of-the-Istanbul-Convention-and-the-Criminal-Code-Part-2?fbclid=IwAR0cPiLBGepXo0eqMhD27_FbLx0d_Rjb_622o8E1YEhwrqfQRoRAf-c_Nf4

[2] Cited from: https://life.pravda.com.ua/columns/2019/01/11/235043/

[3] Cited from: https://life.pravda.com.ua/columns/2019/01/11/235043/

[4] http://eurocourt.in.ua/Article.asp?AIdx=629