Woman as a Victim—Examples of Discriminatory Provisions in Criminal Law

Abstract

The publication analyses three criminal justice structures prominent in the scientific debate across various countries from the perspective of human rights, with particular emphasis on the principles of gender equality—the order to temporarily vacate the premises shared with the victim, the public-complaint nature of the offense of rape and the prohibition of mediation in cases of domestic violence. Their shared characteristic is their assumed support for victims of a specific type of criminal offenses, which justifies the premises and scope of these constructs (or the submitted postulates). The analysis has confirmed that all the indicated instruments unreasonably restrict the rights of victims. They are all grounded in a single model of the victim as a person—a weak, powerless woman, unable to decide about herself freely and without coercion. At the same time, it can be argued that they exemplify legal paternalism and systemic gender-based discrimination.

1. Introduction

Almost worldwide, a victim of crime ceases to be regarded merely as ‘personal source of evidence’ in criminal proceedings. To date, the most important and sole document of global significance setting out the fundamental rights of victim is the Declaration of Basic Principles on Justice for Victims of Crime and Abuse of Power (Resolution 34/40), adopted on 29 November 1985 by the General Assembly of the United Nations. For many years, work has been underway within the United Nations aimed at the further strengthening of the position of victims. The text of the draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power, dated 8 February 2010, was made available (United Nations 2010). Under Article 5 of the Draft UN Convention, State Parties shall ensure that the judicial, administrative and informal processes are responsive to the needs of victims. This should be facilitated by, among other things, allowing the views and concerns of victims to be presented and considered at appropriate stages of proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant domestic criminal justice system; allowing victims to present their views and concerns themselves or through legal or other representatives without prejudice to the discretion of the court, tribunal or other appropriate authority, and in consonance with the relevant domestic criminal justice system. Finally, by the will of the UN, State Parties shall provide victims with access to the mechanisms of justice and redress which is expeditious, fair, inexpensive and accessible, as provided for by domestic legislation, through informal mechanisms for the resolution of disputes, including mediation, arbitration, and customary justice processes or indigenous practices, where appropriate, to facilitate conciliation and redress for victims. Although no clear consensus has emerged even among victimologists on whether the convention is necessary, it has been pointed out that its adoption will raise awareness of the issues concerning victims. As an instrument of so-called hard international law, a convention will exert greater pressure on the governments of individual states than a declaration, being soft and non-binding law. Courts will accord a convention greater significance than a declaration. The convention provides a basis for an analysis of domestic law, and the ratification process will force states that have yet not endorsed it to explain officially why they do not support victims’ rights to the extent required by the convention (Groenhuijsen 2008).

For the first time, the European Union (EU) developed an EU strategy in the field of victims’ rights (2020–2025), deciding that victims of crime must have access to support and protection at all times, with a primary focus on the specific needs of victims of gender-based crimes (EU strategy in the field of victims’ rights). The EU enacted a robust set of laws safeguarding the rights of victims. The directive on victims’ rights establishes the right of access to information, the right to support and protection in accordance with the individual needs of victims and a set of procedural rights (European Parliament 2012). As indicated in a communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 24 June 2020 (European Commission, Directorate-General for Justice and Consumers 2020), all victims of crime are vulnerable, but because of their personal characteristics, the nature of the crime suffered or personal circumstances, some victims are even more vulnerable than others. This group includes victims of gender-based violence, who are often heavily impacted because of the nature, circumstances and consequences of different forms of criminal offences, including, among others, domestic violence and sexual violence.

In light of the above, a relevant question arises as to whether, and to what extent, the rights of female victims are fully respected. The analysis will focus on three institutions of criminal law, which can be found in numerous legal systems worldwide: the order to temporarily vacate the premises shared with the victim (frequently accompanied by the prohibition on approaching), the prohibition of mediation in cases of domestic violence and the public-complaint nature of the offense of rape. Their shared characteristic is the assumed support for victims of a specific type of criminal offenses, which justifies the premises and scope of these constructs (or postulates proposed in this area). Victims’ interests are the ratio legis of the legal regulations shaping the indicated three instruments of criminal law. These constructs have a rich (‘classic’) body of legal literature; therefore, only those issues that raise doubts regarding genuine respect for victims’ rights will be presented here.

Each of the constructs under discussion refers to major pathological phenomena within society: the order to vacate the premises and the prohibition of mediation in cases of domestic violence—to this form of violence, whereas the mode of prosecution to the offense of rape. A defining feature of domestic violence and rape is that these phenomena disproportionally affect women. It has been pointed out that gender-based violence (GBV) is both a cause and a consequence of gender inequality (European Institute for Gender Equality 2025). For example, on average in the EU, 64.2 females per 100,000 women and 10.9 males per 100,000 men were victims of sexual assault in 2022. The percentage of women who have ever had a partner and have repeatedly experienced physical (including threats) or sexual violence committed by their partner ranges from 25% in Finland to 8% in Portugal. The share for men ranges from around 12% in Finland to below 3% in Latvia, Portugal, Slovenia and Lithuania (Eurostat 2025). No one denies the gravity of these acts or the immense harm they cause, but the well-being of victims necessitates an evaluation of the constructs referred to in the introduction.

The objective of the study is to evaluate the three indicated constructs in terms of the human rights of a victim of crimes of domestic violence and rape and the prohibition of discrimination. For this reason, the relevant domestic legal provisions of selected states, applicable international regulations and pertinent scientific discourse will be examined. The effectiveness of these solutions will be critically assessed, and necessary recommendations for future practice will be proposed.

2. Methods

The study is theoretical–legal in nature. It includes legal texts, case law and scholarly analysis in this area.

The research is primarily based on inductive-generalizing reasoning. The methods suitable for theoretical sciences, such as analysis, synthesis, comparison and generalization, are applied.

The normative research is carried out based on methods suitable for legal and dogmatic analyses. Attention should be drawn to the contextual method, allowing for the identification of all relevant circumstances accompanying the studied issues, by taking into account both the content of the examined provisions and the factors conditioning their emergence, evolution, and connections with other branches of law. In the case of interpretation of the provisions of law, the derivative concept of interpretation is applied (Bogucki 2020). The functional method, which requires the study of law in action (based on the associated case law), is also used (Halpérin 2012). In a narrow scope, the historical-descriptive method is applied. In the case of scientific texts, the methodology is purely expository, critical and analytical.

The analysis is based on the criminal justice (substantive and procedural) national legislation of selected states, international provisions, in particular the Council of Europe Convention on preventing and combating violence against women and domestic violence, GRAVIO reports, national and ECHR case-law. The discussion is enriched by the achievements of legal doctrine and information of a criminological nature.

3. Findings—Legal Framework

3.1. Order Requiring the Perpetrator to Vacate Premises

In numerous states, the order to temporarily vacate the premises shared with the victim functions as a criminal justice measure. It is an adequate response to domestic violence, which frequently takes the form of violence that is ‘a manifestation of discrimination and inequality in the power relations of men over women, is exercised against women by those who are or have been their spouses or who are or have been linked to them by similar affective relationships, with or without cohabitation’ (see Article 1 of the Spanish Organic Act on Integrated Protection Measures against Gender Violence (2004)—de Medidas de Protección Integral contra la Violencia de Género). This measure can take three distinct forms—a civil-law or administrative measure, a form of penalty or a provisional, short-term measure until further decisions are issued. In Poland, this instrument was introduced into the criminal law system in 2010. Under Article 41a § 1 of the Polish Criminal Code, the court may impose an order to temporarily vacate the premises shared with the victim while sentencing for a crime against sexual liberty or decency committed against a minor or for any other crime against liberty, or while sentencing for an intentional crime involving the use of violence, including, in particular, violence against an immediate family member. Since 2023, it has been mandatory for the court to issue such an order at the victim’s request (§ 1a). It is also mandatory to issue an order to vacate the premises in cases where the perpetrator is sentenced to a term of imprisonment without conditional suspension of its enforcement for a crime against sexual liberty or decency (§ 2). A request lodged by the victim compels the court to proceed in only one manner, in the sense that, once it is lodged, the court is obliged to issue the order and may not decline to do so if the prerequisites set out in the provision have been fulfilled. In the absence of a request by the victim, upon the simultaneous fulfilment of the prescribed prerequisites, the court may issue the orders despite the absence of a request from the victim. A request by the victim, expressing the intention not to have the indicated order imposed on the perpetrator, is not binding for the court. Moreover, in the Polish system, at the stage of criminal proceedings, the prosecutor or the court may apply a preventive measure in the form of an order requiring the perpetrator to vacate the premises shared with the victim (Article 275 and Article 275a of the Code of Criminal Procedure). This measure may not be applied arbitrarily or at any time. The measure can be applied only when the proceedings furnish grounds for the initiation of charges for a criminal offense against a specific individual (the so-called in personam phase), the evidence suggests a strong likelihood that the individual committed the offence, and there are grounds for the application of preventative measures. An interventionist measure, prescribed by the Act on combating domestic violence 2005, consists of obliging a perpetrator of violence to vacate the shared residence and its immediate surroundings at the request of the person experiencing violence (Article 11a). Under Article 15aa Section 1 of the Police Act 1990, a police officer has the authority to issue an order requiring a person committing domestic violence—who poses a threat to the life or health of the person experiencing that violence—to vacate immediately the shared residence and its immediate surroundings. Such an order is enforceable immediately upon issuance. These measures are called the foreground of proper isolating measures (to be imposed at further stages). The police may question an individual or individuals experiencing violence at an earlier stage in the capacity of a witness/witnesses. Under Article 15aa of the Police Act, an objection from the person experiencing violence does not stay the proceedings (Ministry of Justice Poland 2020). In short, in the Polish system, a victim of domestic violence is unable to oppose effectively the issuance of an order requiring the perpetrator to vacate the shared residence.

Among European countries, Austria was the first to implement the institution of the interim order to vacate the residence into its legal system. The Austrian Federal Law on the Protection from Violence in the Family 1996, which entered into force on 1 May 1997, is frequently quoted as a model example of solutions in this regard. Its provisions, which make the issuance of an order requiring the perpetrator of violence to vacate the residence independent from the victim’s initiative, set the example for, inter alia, the provisions introduced in Denmark in 2004 and in Czechia in 2007. The Austrian law also served as a model for the Polish legislator during the drafting of the law on combating violence within the family (Melaniuk 2020). Under the Spanish Criminal Code, the aggressor is prohibited—as a judicial sanction—in all cases of domestic and gender-based violence, even the slightest, from approaching the victim or residing with them (Article 57.2). In Bulgaria, the protection of victims of domestic violence is governed by the provisions of civil law. The key legal act in this regard is the Law on the protection against domestic violence 2005, which envisages, inter alia, the order requiring the perpetrator of violence to vacate the shared residence at the victim’s request (if the victim is under 14 years of age—at the guardian’s request), a brother, a sister or any other person who is in a direct relationship with the victim. A different formula is provided for in the Dutch system, where the order of immediate protection is an administrative measure. Neither the victim’s request nor consent is required. The order can be issued immediately when the situation is assessed as posing a threat to safety, for a period of 10 days. After 8 days, a standard assessment of the situation is carried out, along with an interview with the victim, after which a decision is made whether it is necessary to extend the order to provide further protection. If deemed necessary, the order may be extended for additional 18 days. Within that time, the victim may file a request with the court for the issuance of a civil protection order; however, there are no regulations in place to ensure that this order will be issued immediately after the expiry of the interim protection. Consequently, discontinuities in the protection may arise. The person against whom the order to vacate the residence has been issued may file an appeal (Logar and Niemi 2017).

It is also necessary to refer to the latest GREVIO report, which has pointed out that before the Istanbul Convention entered into force, the legal possibility to evict domestic abusers from their own homes existed in some places, but this was far from a European standard. The convention elevated this to a legal obligation, and the past few years have seen its introduction in many countries. Although GREVIO may find fault with the level of implementation or with the sanctions for breaches imposed, or with the fact that such orders may not swiftly be followed up by longer-term protection orders that also include children, it is important to take in the paradigm shift this stands for: women and child victims of domestic violence are to remain safe in their own homes. This is “my home is my castle” re-appropriated for women and children who, because of the regime of abuse, manipulation and control they have experienced, need stability to rebuild their lives (GREVIO 2025).

3.2. Prohibition of Mediation in Cases of Domestic Violence

Mediation as a method of resolving conflicts within or alongside a criminal trial is acknowledged across virtually all countries. Its important principles are the voluntary participation of the victim and the perpetrator and the mutual acceptance of the settlement concluded by both parties to the conflict. The impact of a concluded settlement on the final court ruling varies across different countries. In some systems, in cases of petty offense no conviction is issued, while in others, upon the completion of the mediation procedure, the criminal case continues, and the court is not bound by the terms of the settlement agreement.

This model has been in place in Poland since 1997. In the Polish criminal justice system, there is no list of cases which, due to their nature, cannot be referred to mediation. This means that cases involving domestic violence can also be mediated. The experiences of the Polish Mediation Centre in carrying out mediation procedures in situations of violence show that the cases most frequently referred to mediation were those governed by Article 207 of the Criminal Code (offense of maltreatment) (Grudziecka 2012). Similarly, the experiences of the Silesian Arbitrage and Mediation Centre to the Faculty of Law and Administration of the University of Silesia (where the author is a mediator) show that the majority of criminal cases referred to mediation involve the offense of maltreating a family member.

Mediation procedures in cases involving abuse are not carried out, for example, in Czechia and Spain (in the case of gender-based violence). In Spain, the cited Spanish Organic Act on Integrated Protection Measures against Gender Violence (2004) lays down an absolute prohibition of mediation in cases involving violence against women, which fall under the jurisdiction of (both civil and criminal) courts. These courts were established specifically to prosecute cases of violence by men against their current or former female partners (in marriage, relationships, cohabitation, etc.). In addition, the cited Article 57.2 of the Spanish Criminal Code, which prohibits the perpetrator from approaching the victim in all cases of domestic and gender-based violence, virtually precludes the arrangement of a mediation meeting between them (Esquinas Valverde 2015). Mediation in domestic violence cases will be discontinued from the beginning of 2025 in Finland. In future, domestic violence cases can be mediated only when they concern petty offences committed by minors against their parents or other custodians or their relatives (Ministry of Social Affairs and Health 2024). In contrast, mediation is admissible in Denmark, Austria, Sweden (although the Swedish government does not recommend the use of mediation in cases involving domestic violence), Great Britain, the USA (only in some states) (Arczewska 2019).

Austria can be considered as a best practice example, due to its long-standing experience with RJ in cases of domestic violence, accompanying research and the high level of professionalism of RJ providers. Restorative justice has been applied in cases of domestic violence in Austria since 1992. In 2014, out of 5896 victim–offender mediation (called Tatausgleich) cases, 1258 (21%) dealt with IPV. The nationwide provider for judicial and RJ services, including victim–offender mediation and socialnet-conferences, is NEUSTART, funded by the Ministry of Justice (Păroşanu 2016).

In Germany, the first projects of VOM (called Täter-Opfer-Ausgleich) in cases of domestic violence were carried out throughout the 1990s. According to the Federal Victim–Offender-Mediation-Statistics, domestic violence cases represent currently about 20% of RJ cases. In Greece, RJ in cases of domestic violence has been implemented as a top-down initiative, in order to align with standards at the European level. In 2007, a special law for dealing with cases of domestic violence came into force, for the first time introducing victim–offender mediation. The law states that only misdemeanours can be dealt through mediation, such as simple bodily harm, threat, insult or coercion. As a prerequisite for mediation, the offender has to give his or her ‘word of honour’ not to commit any further domestic violence, agree to participate in a special counselling/therapy programme and make reparation to the victim if possible (Păroşanu 2016).

3.3. Public-Complaint Mode of Prosecuting the Offense of Rape

The mode of prosecuting the offense of rape has long occupied, and continues to occupy, the attention of lawyers and criminologists. The modes of prosecution are the established methods of prosecuting individuals suspected of committing a specific violation to hold them accountable for the act, that is, to initiate proceedings intended to bring about justice. The modes of prosecution constitute the procedural framework for initiating and conducting proceedings relating to specific criminal offenses. One can distinguish between criminal offenses prosecuted ex officio (so-called public-complaint) and offenses prosecuted at the victim’s request and offenses subject to private prosecution.1 This analysis relates solely to the mode of prosecution in the case of rape of an adult. In Poland, Article 205 of the Criminal Code was repealed in 2013 by way of amendment. Relating, among other things, to rape, Article 205 laid down that ‘Prosecution of offences specified in Article 197 (…), provided that the victim’s condition referred to in this provision is not the result of permanent mental disorders, takes place at the victim’s request’—it was a so-called negative procedural prerequisite. Under the provisions of the Code of Criminal Procedure, in contrast to other cases prosecuted at the victim’s request, once a request to prosecute the perpetrators of rape was lodged, it could not be withdrawn. This change in the mode of prosecution remains a highly controversial issue, not only for the public opinion but also within the legal community. Already by the end of 2013 (within a few months after the law was enacted), the Codification Commission put forward a proposal to return to the request-based mode of prosecution, but the Minister of Justice did not take advantage of the proposal (Podemska 2015).

An analysis of the provisions of criminal law of both EU member states and non-member countries shows that the crimes of a sexual nature are, in general, prosecuted ex officio. The Norwegian Criminal Code contains offences prosecuted at the victim’s request, but an act of that type can also be prosecuted ex officio if it is in the public interest. However, sexual crimes are prosecuted ex officio. The Swedish Criminal Code adopts a similar solution. In the Latvian Criminal Code, the crimes that violate the right to dispose freely of one’s body in the sexual sphere are prosecuted ex officio. The ex officio prosecution of the discussed types of sexual offences takes place in Belgium, Estonia and Austria (Sejm Rzeczypospolitej Polskiej 2012a). In Switzerland, the offense of rape is prosecuted ex officio in every case. Until 3 October 2003, the Swiss Criminal Code provided for a special request-based mode of prosecution in cases where a female victim (only a woman can be raped) and the perpetrator were cohabiting or were married. The victim’s right expired after six months from the moment of the commission of crime.

The situation is somewhat different in Czechia, though the standard practice is also the ex officio prosecution of the perpetrator of rape. An exception to this rule was defined in Article 163 of the Czech Code of Criminal Procedure. There are two important aspects. First, the victim’s consent to the prosecution of rape is required not only if the perpetrator of rape is the victim’s spouse or a person in a stable relationship with the victim but also if the perpetrator is the victim’s partner—meaning that they are in a formal homosexual relationship (so-called registered partnership). Second, since 2025, the legal framework governing sexual crimes has undergone significant reform. The criminal offense of rape relates to so-called penetrating sexual acts. If the perpetrator forces a victim ‘only’ to a non-penetrating sexual act, it is considered to be a criminal offense of ‘sexual attack’ under provision 185a of the CC. The prosecution of sexual attack is also conditioned on the victim’s consent if the victim is the perpetrator’s spouse, a person in a stable relationship with the perpetrator or his/her (redistricted) partner.

A different system, under which the offense of rape in its basic form is prosecuted at the victim’s request but its qualified forms are prosecuted ex officio, is in force in Hungary, Romania, Spain and Portugal (Sidor 2013). Under Romanian law, the mode of prosecuting rape depends on whether the offense is in its basic or qualified form (in general, the scope of the perpetrator’s actions is defined in relatively broad terms). Under Article 217 of the Romanian Criminal Code, the prosecution of the offense takes place at the victim’s request in the case of rape in its basic form. The qualified forms, defined in Sections 1 and 2, are prosecuted ex officio. Under Finnish law, as a rule, the offense of rape is prosecuted ex officio. Where a perpetrator compelled another person to engage in sexual intercourse by means of violence or the threat of its use, the victim of rape in that form may request the discontinuation of prosecution (the prosecutor is not bound by the request). The privileged form of the offense of rape (involving a minor degree of violence or classified as such owing to other mitigating circumstances of the act) is prosecuted at the victim’s request, though it can be prosecuted ex officio where the prosecutor finds that important public interest requires it. The Hungarian and Ukrainian Criminal Codes provide for some very interesting measures. In Hungary, as a rule, rape is subject to private prosecution. The proceedings can be initiated ex officio in exceptional circumstances where, in connection with the rape, an offense prosecutable ex officio was committed. In Ukraine, homosexual rape (the offense of coerced sexual gratification in an unnatural manner—Article 153 Section 1 of the Ukrainian Criminal Code) is an offense prosecutable ex officio. Heterosexual rape is subject to private prosecution (it may exceptionally be subject to the ex officio prosecution). These regulations suggest that, in the opinion of the Ukrainian legislator, homosexual behaviour entails a greater degree of social harm than heterosexual rape. In the Russian criminal law, rape is entirely subject to prosecution at the victim’s request (this issue is similarly regulated in the Belarussian Criminal Code). In truly exceptional circumstances, the act may be prosecuted ex officio, when a victim is in a state of dependence on the state or, for other reasons, is unable to exercise their right (Podemska 2015). The fully request-based mode remains uncommon (e.g., Turkey). According to a GREVIO report, Article 102 of the Turkish Criminal Code explicitly regards marital rape as a separate offense, it is subject to prosecution solely at the victim’s request, which is contrary to the requirements of Article 55 of the Istanbul Convention. Consequently, GREVIO urges the Turkish authorities to amend their legislation to conform with the rules regarding ex parte and ex officio prosecution set out in Article 55, paragraph 1, of the Istanbul Convention (GREVIO 2018).

4. Discussion

The foregoing observations lead to two general conclusions. First, it cannot be concluded that any of the three title constructs has been regulated in the same manner in every country. It is not solely a matter of differences concerning the prerequisites or the scope of a specific regulation. There is considerable variation in the fundamental approach to the importance of the victim’s position on the order requiring the perpetrator to vacate the premises, the initiation of the prosecution of rape or the possibility of mediation in cases involving violence. Second, these concise overviews of legislation nevertheless reveal that, even within a single legal system, the normative situation is dynamic, it is evolving as a result of ongoing debates within circles of academics, practitioners and occasionally even politicians. It is appropriate to examine the main arguments raised in these debates, evaluating them in terms of the right to equal treatment. A significant point of reference will be the Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter, Istanbul Convention), which was opened for signature on 11 May 2011 and entered into force on 1 August 2014. A total of 39 states have become parties to the Convention (Chart of signatures and ratifications of Treaty 210). One of its purposes is “to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women” (Article 1, Section 1, point b). It is obvious that these words should resonate with lawmakers in all states, irrespective of whether their state has ratified the cited Convention.

4.1. Order to Vacate the Premises

It is difficult to challenge the position of the Spanish legislator, who indicated in the cited Organic Act on Integrated Protection Measures against Gender Violence that gender-based violence is far from being merely a private matter, it manifests itself as the most brutal symbol of the inequalities that persist in the society. It is a form of violence directed at women only because they are women and their perpetrators believe that women are not entitled to basic rights such as freedom, respect, and agency. It is a complex, society-wide issue underpinned by multifaceted psychological factors, driven by a range of causes, leading to multi-level consequences for all family members, requiring comprehensive regulation in the public law and active, transparent cooperation between authorities, public institutions, and other specialized bodies equipped with relevant and professional competencies. It is not the victim who should vacate the residence when only this form of isolation can prevent further acts of violence against the vulnerable. The order to vacate the premises makes it possible both to eliminate, or at least to limit, the conditions enabling the perpetrator to commit a repeat offense against the victim and to safeguard the victim from the negative experiences of everyday contact with the perpetrator (Spurek 2008). A legal measure (in diverse forms) of an order requiring the perpetrator to vacate the premises is an extremely important and necessary element of any legal system. At the same time, one should not overlook the experiences of victims of domestic violence because this penal measure has victimologist origins and rationale.

To begin with, Article 52 of the Istanbul Convention prescribes as follows: Parties shall take the necessary legislative or other measures to ensure that the competent authorities are granted the power to order, in situations of immediate danger, a perpetrator of domestic violence to vacate the residence of the victim or person at risk for a sufficient period of time and to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk. Measures taken pursuant to this article shall give priority to the safety of victims or persons at risk. These are so-called emergency barring orders (EBO), also known as ‘eviction orders’. These measures reflect a shift in the paradigm of intervention in the case of domestic violence. In such situations, it was typically the victim who was forced to escape from home, frequently in the company of children dependent on her, with very few personal belongings, for an indefinite time. Considering the situation unfair, the authors of the Istanbul Convention deemed it essential to shift the burden onto the perpetrator by ensuring the perpetrator’s removal from the place of residence of the victim and prohibiting the perpetrator from entering the residence of or contacting the victim (‘for a sufficient period of time’). In a commentary to Article 52 of the Istanbul Convention, in mentioning the balancing of the rights and legal safeguards, pointed to a conflict between the right to privacy of the perpetrator and the safety of the victim. However, it failed to mention the right to privacy of the victim, which warrants particular emphasis. Elsewhere, it observed that ‘Different measures are also required to fulfil the obligation of the state to exercise due diligence in protecting the victims. Emergency provisions which require the victim to take initiative would, for instance, not be in compliance with the due diligence obligation.’ It adds that ‘A further difficulty is that civil law measures require the victim to take action and apply for an EBO.’ At the same time, although a majority of states allow the ex officio use of EBOs, Spanish law provides for the possibility of submitting a request by the victim (or the victim’s family member). This approach has been met with the argument that ‘The Istanbul Convention leaves it to the states parties to identify the most suitable procedure for EBOs.’ (Logar and Niemi 2017). Finally, one of the conditions of ‘The Checklist for implementing emergency barring orders’ included the following: ‘It can also be issued without the victim or persons at risk taking action (ex officio).’ Notably, the measures envisaged by the Istanbul Convention are strictly interventionist in nature and, with regard to penalties, the Convention requires only that the offences established in accordance with the Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness (Article 45).

The European Court of Human Rights has on numerous occasions addressed the issue of domestic violence and criminal justice responses to it. In the case of Opuz v. Turkey (application no. 33401/02), the Court concluded for the first time that, in connection with the use of domestic violence, there had been a violation of Article 14 of the Convention (prohibition of discrimination), read in conjunction with Articles 2 and 3, in the instant case. The Court considered that the violence suffered by the applicant and her mother may be regarded as gender-based violence, which is a form of discrimination against women. The Court developed a consistently reiterated position that, in some instances, the national authorities’ interference with the private or family life of individuals might be necessary in order to protect the health and rights of others or to prevent the commission of criminal acts, which requires States to establish and apply in practice an appropriate legal framework ensuring protection against acts of violence from physical persons.

A study carried out among perpetrators of domestic violence on the experiences and consequences of, among other things, the application of an order to vacate the premises and pre-trial detention showed that a majority of respondents experienced a critical period after the offense was reported to police, marked by a sense of abandonment in a state of practical and emotional stress without sufficient support. Those who had a no-contact order as a result of the incident experienced practical challenges through losing access to their home: they felt like they were standing alone on bare ground and dependent on luck and goodwill from their own network to get a roof over their head. Researchers found that learning better communication was significant for perpetrators in situations of violence and conflicts between partners (Gudde et al. 2025), while some suggested using couples therapy as an appropriate intervention (Brannen and Rubin 1996; Portnoy and Murphy 2020; Mills et al. 2019). It was found that a significant number of victims and perpetrators of domestic violence tried to contact each other after the partner reported violence to the police, even if there was a restraining order between them (Gudde et al. 2025).

An illustration of the paradox inherent in the absolute and mandatory no-contact order between perpetrators and victims of domestic violence is a judgment of the Court of Justice of 15 September 2011 (case C-483/09), which indicated that Articles 2, 8 and 10 of Council Framework Decision 2001/220 on the standing of victims in criminal proceedings must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided for as an ancillary penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family, even when the victims of those crimes oppose the application of such a penalty. The Court considered that, on the one hand, the duties defined in Article 2 Section 1 of the cited Framework Decision aim at ensuring that the victim is able to participate in a meaningful and appropriate manner in criminal proceedings, which is not equivalent to stating that a mandatory prohibition on approaching cannot be imposed contrary to her opinion. On the other hand, the Court concluded that the procedural right to be heard within the meaning of Article 3 paragraph one of the Framework Decision does not imply granting victims the right of selection of penalty, its type or severity from among penal measures applicable to perpetrators of offences based on the provisions of domestic penal law. The Court observed that the criminal justice protection against acts of domestic violence provided by a Member State exercising its repressive powers aims both to protect the interests of the victim and to safeguard other, more general interests of society. It should be recalled that the judgment delivered in that case by the Court of Justice was issued in the preliminary ruling procedure. The Spanish Audiencia Provincial de Tarragona posed a question in two criminal cases in relation to the violation of an imposed measure taking the form of a prohibition on approaching the harmed women, who had previously been abused by their partners, for which the partners were subsequently convicted. The domestic courts submitted a request for an interpretation of Articles 2, 8 and 10 of the Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. The perpetrators, to whom the preliminary reference related, were convicted for abusing family members and, among other things, a penal measure in the form of a prohibition of staying in the residential premises with and contacting the victims was imposed on them. Each of the convicted individuals, within a relatively short time after the imposition of these penal measures, at the victim’s request, began living together with her. Subsequently, they both were convicted of non-compliance with a prohibition on approaching the victim, though the victims stated that they knowingly and voluntarily chose to resume cohabitation with the convicted individuals.

It is clear that both the Council Framework Decision (in light of which the cited ruling was issued—2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings) and Directive 2012/29/EU (of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA) were issued to protect the rights of victims of crimes. The preambles of these two legal instruments clearly indicate that the overriding objective declared by their drafters was to safeguard the victim against secondary and repeat victimization. However, a reading of the particular regulations and an interpretation made by the JCEU reveals certain superficiality of the declarations expressed in the EU legal instruments, at the very least—a somewhat specific understanding of the interests of the victim of crime. The Directive of the European Parliament and of the Council draws attention to a number of highly significant procedural entitlements of the victim of crime. What can be deemed particularly promising is, for example, the title of Article 3 ‘Right to understand and to be understood’ or the title of Article 10 ‘Right to be heard.’ This approach suggests the subjective treatment of the victim of crime and openness to the victim’s needs. As observed earlier, the guaranteed ‘hearing’ of the victim is limited to the taking of his or her statements and motions. This entitlement has not been correlated with an actual impact on the outcome of proceedings, in particular, on the measures of criminal justice responses applied to the perpetrator, which also exert a major impact on the life of a victim of crime.

The EU decision-makers’ adherence to the state-centric ius puniendi was prominently showcased in the analysed ruling. Although the CJEU recognizes the importance of the actual participation of the victim in criminal proceedings, it promptly adds that the court can act against the victim’s will. It acknowledges the victim’s right to be heard but only insofar as it does not infringe upon the discretionary powers of national authorities in matters of penal policy.

There is no doubt that ignoring the victim’s opinion can divide family members, who love one another and wish to maintain their relationship despite difficulties that result in the violation of certain legal interests. It seems that the legislator should not interfere in the private lives of citizens, even if a given relationship between its members is considered undesirable. Just as a prosecutor cannot file a petition for divorce or separation for one of the spouses (see Article 7 of the Polish Code of Civil Procedure), neither can criminal law prohibit adult citizens from cohabitation.

It comes as no surprise that a judgement of the Polish Appellate Court in Wrocław2 pointed out that the imposition of a mandatory restraining order prohibiting the offender from approaching the victim at a time when the latter expressed the intention to maintain contact with the offender would undeniably infringe upon the victim’s rights and freedoms safeguarded by the Basic Law. Relying on a functional interpretation (ratio legis of the provision), the Court sough to show—de facto contra legem—that the penal measure had ceased to be mandatory.

Article 17 of the Spanish Law on Integral Protection Measures against Gender-Based Violence 2004 lays down that all women being victims of gender-based violence are guaranteed the rights specified in this Act, and access to these rights must not be subject to discrimination. Furthermore, the Act enumerates the right to information, the right to comprehensive care, the right to healthcare, and the right to legal assistance. However, the Law does not mention the right to self-determination and the right to make a decision on requesting the imposition of an order requiring the perpetrator to vacate the shared premises.

There is no disagreement regarding the stance adopted by psychological scholarship, according to which the victim (in particular, of domestic violence) may be so profoundly dependent on the perpetrator that he or she is unable to bear the burden of making a decision on isolation. This would be indicated by, for example, learned helplessness described in psychological literature (Walker 1980). One cannot assume that this will apply to every case of domestic violence and the burden of the decision on isolation is unbearable for every victim. Moreover, where, contrary to the victim’s wishes, the court finds that a specific prohibition is necessary for the good of that victim, it is highly likely that it will not be effective.

The above conclusion is a recommendation to consider relinquishing the state’s punitive authority where it is unnecessary and where, in some cases, it does more harm than good. Paradoxically, reducing ius puniendi in favour of the victim’s subjectivity can increase control over crime. This is substantiated by a Spanish study on domestic violence. As pointed out by Grzyb (2017), the non-reporting of crimes of that type ‘is not the matter of insufficient and overly lenient criminal justice responses, but quite the opposite—an excessive reaction that deprives a victim of the possibility of making decisions and the sense of control over the course of events.’ It should be recalled that Juliane Kokott, Advocate General at the Court of Justice of the European Union, took the view that before imposing measures of that type, the court should hear the opinion of the victim, but in order to avoid placing pressure on the victim and avoid attributing responsibility to them, the court cannot be bound by that opinion.3

4.2. Admissibility of Mediation in Cases Involving Violence

The issue of mediation in cases of domestic violence arouses even more controversy. The opponents of mediation argue that individuals harmed by violence frequently perceive themselves as lacking control over their own life and being entirely dependent on the perpetrator. The duty of taking part in a meeting between victim and perpetrator of violence can be emotionally difficult for the victim and can also lead to adverse consequences for him or her. A victim subordinated to the perpetrator can succumb to pressure and give consent to mediation contrary to his or her wishes. An inexperienced and inattentive mediator can fail to recognize the dependency relationship between the parties and carry out mediation proceedings despite the lack of equality (Sitarz et al. 2018). At a later stage, a victim can agree to the unfavourable conditions of a settlement agreement, effectively reducing the settlement to a legal fiction.

The Istanbul Convention adopts a similar stance on the issue. Article 48 lays down the principle of the prohibition of mandatory alternative dispute resolution processes or sentencing. Section one prescribes that ‘Parties shall take the necessary legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence covered by the scope of this Convention.’ In the Explanatory Report, the authors mention that ‘While the drafters do not question the advantages these alternative methods present in many criminal and civil law cases, they wish to emphasise the negative effects these can have in cases of violence covered by the scope of this Convention, in particular if participation in such alternative dispute resolution methods are mandatory and replace adversarial court proceedings. Victims of such violence can never enter the alternative dispute resolution processes on a level equal to that of the perpetrator. It is in the nature of such offences that such victims are invariably left with a feeling of shame, helplessness and vulnerability, while the perpetrator exudes a sense of power and dominance. To avoid the re-privatisation of domestic violence and violence against women and to enable the victim to seek justice, it is the responsibility of the state to provide access to adversarial court proceedings presided over by a neutral judge and which are carried out on the basis of the national laws in force. Consequently, paragraph 1 requires Parties to prohibit in domestic criminal and civil law the mandatory participation in any alternative dispute resolution processes.’ (Council of Europe 2011). The above position must consequently be understood as the criticism of even voluntary mediation in cases involving violence.

The cited Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (Rada Unii Europejskiej 2001) and Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 replacing that Decision also addressed the issue of mediation in cases of domestic violence. Restorative justice takes on a somewhat different meaning in the Directive compared to its preceding document. In contrast to the Framework Decision, mediation is not an advocated approach and was made subject to numerous conditions that must be fulfilled. The wording of the provision may be construed (by an inattentive reader) as suggesting a slightly different objective of mediation than that which follows from its very nature. The Directive makes no mention of conflict resolution, but it merely lays down that mediation is to be used only when it is in the interest of the victim, subject to any safety considerations (Article 12 Section 1 point a). Member States shall take measures to safeguard the victim from secondary and repeat victimisation, from intimidation and from retaliation, to be applied when providing any restorative justice service. Only towards the end of the provision (Section 2) mention is made that ‘Member States shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral.’

A sceptical stance towards mediation in cases of domestic violence has also been formulated by the United Nations. In the Handbook for Legislation of Violence against Women 2012, prepared by UN experts, it was recommended that legislation should ‘Explicitly prohibit mediation in all cases of violence against women, both before and during legal proceedings (point 3.9.1). The commentary to the recommendation points out that ‘Mediation is promoted or offered as an alternative to criminal justice and family law processes in several countries’ laws on violence against women. However, a number of problems arise when mediation is utilized in cases of violence against women. It removes cases from judicial scrutiny, presumes that both parties have equal bargaining power, reflects an assumption that both parties are equally at fault for violence, and reduces offender accountability. An increasing number of countries are prohibiting mediation in cases of violence against women. For example, the Spanish Organic Act on Integrated Protection Measures against Gender Violence (2004) forbids mediation of any kind in cases of violence against women.’ (UN Women 2012).

Researchers have pointed out that although the UN recommendations are intended for all countries of the world, there are fundamental differences between the ways women are subjected to abuse in the Global South and the phenomenon of domestic violence in other countries. From the perspective of the last few decades, practices now recognized as domestic violence were generally not classified as forms of violence in the past (Grudziecka 2012). In the opinion of Ewa Bieńkowska, the UN position is a feminist and one-sided approach (Bieńkowska 2012), let us add, one that is hard to accept.

Over time, the uncompromising stance of the international community has gradually been softened. It was observed in the ‘Handbook for the Judiciary on Effective Criminal Justice Responses to Gender-based Violence against Women and Girls’ that studies suggest that victim participation in restorative justice may be beneficial for victims’ psychological well-being by reducing the symptoms of stress and post-traumatic stress disorder. Research into different forms of restorative justice, mainly victim–offender mediation and conferencing, reveals high satisfaction rates of both victims and offenders. Most evaluations indicate a decrease in recidivism, especially in more severe cases, and in no types of cases have higher numbers of recidivism been found. It was also pointed out that judges should be aware of the dynamics of GBVAWG (‘gender-based violence against women and girls’), particularly the history of power and control in intimate partner violence situations, where the victim is not only in an unequal position of power but has been traumatized, including psychologically. Mediation should never be considered if there is a big gap in power between the victim and the perpetrator. The main concern is for the safety of the victim, particularly in a situation of power imbalance. This unequal situation puts pressure of the victim who may fear worse if she does not go along with the abuser’s suggestion to mediation. Another concern is that restorative justice may be seen as a “soft” option, which continues the historical trivialization of intimate partner violence by the criminal justice system.

A similar evolution in the approach to the prohibition of mediation in cases of domestic violence can be observed in the Spanish practice. Given the universal prohibition of mediation in cases of domestic violence, a majority of Spanish specialists in criminal mediation, along with numerous judges, prosecutors, and others hold the view that the legal prohibition is highly debatable and advocate for a legal reform aimed at permitting the use of mediation techniques in some cases of gender-based violence. In this context, recent years have clearly shown that the conventional justice system has failed to eradicate violence and eliminate all risks faced by victims. Even the marked toughening of penalties in the current criminal policy (the policy of ‘no drop’, ‘zero tolerance’ towards gender-based violence—and its perpetrators) has provoked even greater anger among offenders, causing this phenomenon to evolve into more serious behaviour towards women (homicide, murders). It is known as ‘the brutalization effect’ (Esquinas Valverde 2015).

An issue of concern is the enduring trend of objectification of victims of violence and the adoption of a paternalistic approach toward them. GREVIO highlighted the importance of ensuring that relevant professionals receive training on the dynamics of domestic violence and stressed that mediation should not be mandatory in custody and visitation proceedings in cases involving domestic violence, in accordance with Article 48 of the Istanbul Convention (GREVIO 2025). A prospective prohibition of mediation in cases involving violence would be a manifestation of that approach, similarly to the position expressed in the so-called Explanatory Report to the Istanbul Convention. Let us add, a manifestation that is far from isolated. Let us recall once more the judgement of the Court of Justice of 15 September 2011 (in the case C-483/09), in which in addition to the discussed prohibition on approaching (and indirectly the vacating of premises), the Court addressed the issue of mediation. The Court gave sui generis consent to exclude access to mediation in specific categories of cases. National authorities may therefore assume in advance that victims of certain categories of crimes will be unable to assess their own situation, and, for their own good, deny them the right to participate in mediation, which is in fact always voluntary. This approach is also an expression of a lack of trust in mediators and their ability to identify situations where a victim is genuinely incapable of making free decisions. Both the judgment based on the Framework Decision and the more recent Directive prioritize the protection of the victim against secondary and repeat victimization, while marginalizing the victim’s other human rights, foremost among them the right to self-determination. In a sense, the Court exempts national authorities from responsibility for the consequences that an issued judgement brings into the life of a person injured by crime. This position is striking, as it shows that the victim is indeed the object of protection but only for the duration of criminal proceedings. The Court does not make it possible to take into account further consequences of conviction for the victim (and the victim’s close relatives) when making law. This appears to be inconsistent with the general assumptions of victimology and a certain idea underlying the issued ruling, which could be inferred from recital 6 of the preamble to the Framework Decision.

A rigid stance that permits no deviation must raise opposition, especially when personal mediation experiences unequivocally show that mediation in a case of domestic violence can bring numerous benefits to the victim. The supporters of restorative justice point to the beneficial impact of a properly conducted mediation procedure on the relationship between the parties, mental strengthening of the victim and resocialization of the perpetrator. They emphasize that the dangers related to participation in mediation proceedings in situations of violence are no greater than those related to participation in court proceedings. However, thanks to the principles of voluntariness and confidentiality, it becomes possible to attain what is practically unattainable in a court trial—a conflict resolution (Sitarz and Bek 2018).

One cannot overlook the impact of mediation on recidivism, which takes on particular significance in the context of crimes in relationships. It has been pointed out that VOM (victim–offender mediation) participation predicts lower reoffending rates (Jonas-van Dijk et al. 2025). Research on recidivism following participation in victim–offender mediation, community work or measures provided by probation service showed that the re-offending rate following VOM in cases of domestic violence after three years was 11%. This is even lower than in other VOM cases, which was 15%. An in-depth Austrian empirical study on RJ in cases of domestic violence revealed high levels of victim satisfaction and empowerment of women, as well as the chance for offenders to change their behaviour. Of the women participating in the study, 83% stated that in the course of 1.5 to 2 years following VOM they experienced no further violence. A vast majority of these women (80%) attributed this to the experience of VOM (Păroşanu 2016).

In response to the criticism concerning mediation in cases of violence, it can be recalled that the concept of violence was not defined in the Convention, but it was merely clarified (further specified) in the case of violence against women and domestic violence (see Article 3 of the Convention). Criminology and legal sciences clearly support the assumption that violence has a broad meaning, covering almost every violation of human rights. In addition to physical violence, domestic violence frequently includes mental, emotional or verbal violence (Ansara and Hindin 2011), financial violence (Krigel and Benjamin 2021) and sexual assaults (Tutty and Nixon 2022; Tarzia 2021). Deprivation and neglect are frequently regarded as forms of mental violence. However, these different forms often interact with each other and form a complex pattern of behaviour where psychological violence is combined with physical and/or sexual abuse for some settings (Krantz and Garcia-Moreno 2005).

A defining feature of violence is its gradability. Behaviours regarded as violence differ in the degree of intensity of violations (both a brutal assault and pushing can be regarded as forms of violence). One-time behaviour is also violence. The measures of the severity of violence inflicted by the partner are divided into several categories. Some assess the risk of another assault, for example, B-SAFER and Ontario Domestic Assault Risk Assessment (ODARA). Others assess the risk of homicide, for example, Danger Assessment (Tutty and Nixon 2025).

It is necessary to point out that domestic violence can be discussed in three basic configurations (which certainly does not rule out the possibility of their combination):

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Partner violence (both in hetero- and homosexual relationships).

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Violence against children—inflicted by parents or guardians.

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Violence of adult children (grandchildren) against seniors.

Violence is a dynamic phenomenon. Social psychology has developed classifications of conflict escalation, which illustrate the course and development of interpersonal conflicts. Under such classifications, stages were identified at which the degree of emotional engagement and antagonisms is too high for the involved parties to resolve a conflict on their own. Under one such concept authored by Friedrich Glasl, the possibility of effective mediation exists at the first three of nine stages of conflict escalation (Glasl 1982 as quoted by Waszkiewicz and Włodarczyk-Madejska 2022).

Seeking an answer to the question of whether to use mediation in cases involving violence, all the above components should be taken into account. It appears that the drafters of the Convention, and other similar regulations, focused on intense, repeated, long-term physical violence against women, overlooking other forms of violence and actors participating in it. A similar position can be observed among many commentators and scholars. After all, the list of behaviours of a violent nature is extensive and, more importantly, varied. Therefore, one cannot establish a single unconditional rule prohibiting the possibility of mediation in relation to all behaviours of that type. The most important arguments in favour of mediation in cases involving violence are: (1) the possibility of resolving a conflict or (2) reaching an agreement on the terms of separation and division of mutual rights and obligations. In psychology, the argument that it is possible to carry out a mediation procedure for families who have remained together despite violence remains uncontested (Dyjakon 2016). In many situations, reaching an agreement on the terms of separation and mutual relations after separation (in particular, when having children together or living in close vicinity) is of immense value. These benefits would be lost to victims of domestic violence.

A study carried out by Smith O., Johnson K., Brooks-Hay O. showed that victims of crime had frequently felt disappointed by police. For example, one of the project consultants, who gave advice to the victims, recalled a comment by a participant: “My case ended in a guilty verdict with a ten-year sentence, but when people ask me about my experience it isn’t ‘yay he got put in prison’, it’s ‘well I was let down at this point, and this point, and at this point, and this point’” (Smith et al. 2022 in Stanko 2023).

4.3. Mode of Prosecution in the Case of Rape

It is undisputed that the offense of rape is a particularly drastic crime, which profoundly affects the most intimate sphere of human life. It is also true that victims of such crimes are significantly more exposed to secondary victimization resulting from the arbitrary actions of state authorities than victims of other crimes. Secondary victimization can lead to consequences more severe for a victim than those caused by the crime itself (Dudka 2008). Being a victim of the offense of rape can also produce negative family and social effects. This all means that the decision on the mode of prosecuting perpetrators of rape is entangled in a conflict of multiple values.

The Istanbul Convention also regulated this matter. Under Article 55 Section 1 of the Convention, Parties shall ensure that investigations into or prosecution of offences established in accordance with Articles (…) 36 (…) of this Convention shall not be wholly dependent upon a report or complaint filed by a victim if the offence was committed in whole or in part on its territory, and that the proceedings may continue even if the victim withdraws her or his statement or complaint. The Explanatory Report pointed out that “Conscientious of the particularly traumatising nature of the offences covered by this article, the drafters sought to ease the burden which lengthy criminal investigations and proceedings often place on the victims while at the same time ensuring that perpetrators are brought to justice. The aim of this provision is therefore to enable criminal investigations and proceedings to be carried out without placing the onus of initiating such proceedings and securing convictions on the victim. Paragraph 1 places on Parties the obligation to ensure that investigations into a number of categories of offences shall not be “wholly dependent” upon the report or complaint filed by a victim and that any proceedings underway may continue even after the victim has withdrawn her or his statement or complaint. The drafters decided to use the terms “wholly dependent” in order to address procedural differences in each legal system, bearing in mind that ensuring the investigations or prosecution of the offences listed in this article is the responsibility of the state and its authorities. In particular, the drafters were of the opinion that acts resulting in severe bodily harm or deprivation of life must be addressed promptly and directly by competent authorities. The fact that many of the offences covered by this Convention are perpetrated by family members, intimate partners or persons in the immediate social environment of the victim and the resulting feelings of shame, fear and helplessness lead to low numbers of reporting and, subsequently, convictions. Therefore, law enforcement authorities should investigate in a proactive way in order to gather evidence such as substantial evidence, testimonies of witnesses, medical expertise, etc., in order to make sure that the proceedings may be carried out even if the victim withdraws her or his statement or complaint at least with regard to serious offences, such as physical violence resulting in death or bodily harm” (Council of Europe 2011).

Rulings of the European Court of Human Rights are frequently cited as an argument in favour of the request-based mode of prosecuting the offense of rape. Most frequently it is the case of M.C. v Bulgaria (application no. 39272/98), which concerned the improper conduct of criminal proceedings in the case of rape. However, the rulings of the Court contain no clear order requiring the implementation of a particular mode of prosecuting rape. A requirement was imposed that proceedings in cases of rape should be effective. The European Court of Human Rights has not formulated a view that the request-based mode of prosecuting rape does not provide an adequate level of protection for individual rights. In its comments, the Court has placed emphasis on shaping the procedure in such a way that the prosecution of perpetrators of that crime shows signs of effectiveness (Podemska 2015).

The changes concerning the mode of prosecution for the offense of rape, which took place in Poland in 2014, and the broad and ongoing debate accompanying it justify a detailed examination of the arguments presented by both sides of the dispute.

In introducing the public-complaint mode (requiring no formal initiative from the victim) in the case of the offense of rape, the Polish drafters pointed out that the request-based mode of prosecuting the offense of rape provides a basis for exerting pressure on the victim to induce him or her to make a decision to relinquish the demand to prosecute. In the official justification of the amendment to criminal law, it was emphasised that the pressure can also be exerted by the victim’s family circle. It can take the form of physical or mental violence, blackmail, threats, bribery or, for example, within professional relationships—threats of job loss or salary reduction, etc. In the opinion of the creators of the (subsequently enacted) draft, the reasons for relinquishing the demand for prosecution may also lie in the decision of the victim, with no external pressure, and may be related, for example, to fears of revenge from the perpetrator(s) of the crime, the desire to avoid a confrontation with such individuals in the course of trial or the stigma from specific communities. The drafters pointed out that the need for reform in the mode of prosecuting the perpetrator of rape emerged from the fact that the existing legal frameworks failed to take into account the transformations in sexual norms and societal morality that had occurred over the past several decades and, at the same time, also in the area of ‘the methodology and culture of carrying out a criminal trial in cases involving such offenses.’ Given the above, in the opinion of the drafters, the level of legal protection provided at the time to a person injured by such an offense was unsatisfactory. Finally, the drafters argued that it could be demonstrated that numerous demands for prosecution are motivated by a desire for revenge or to cause harm, blackmail the perpetrator, or provide oneself with a moral alibi for a completed sexual intercourse where, in fact, the mentioned prohibited acts were not committed (Sejm Rzeczypospolitej Polskiej 2012c). Moreover, the cited Article 55 of the Istanbul Convention was another argument in favour of a change in the mode of prosecution.

As Teodor Szymanowski observed even before the amendment to the Polish Criminal Code, the ex officio prosecution would indicate intensified condemnation of such acts (Szymanowski 2012). E. Zielińska also supported a change in the mode but at the same time asserted that she could not conceive of rape coming to the attention of law enforcement bodies against the will of the victim if the perpetrator did not resort to severe violence. In her opinion, preserving the request-based mode of prosecution contributes to the perpetuation of harmful social stereotypes, hinders public education, and impedes the process of changing societal awareness (Zielińska 2007). The Polish debate even included an argument that the introduction of the public-complaint mode would make it possible to eliminate cases of so-called ‘trading of requests.’ (Pracki 1981).

In the opinion of prominent Polish victimologist Ewa Bieńkowska, the issue of the mode of prosecuting the perpetrator of the offense of rape should not be examined by comparing the interests of the victim and the public interest. E. Bieńkowska has argued that the problem lies in manifesting inappropriate social attitudes toward the victim of this offense, which very frequently involve the perception of rape as an act that shames the victim and not the perpetrator (Bieńkowska 1983). Moreover, it has been argued that the public-compliant mode arises from the necessity of eliminating discrimination against victims of the crime resulting from conditioning the initiation of criminal proceedings upon the lodging of a request for prosecution. It also arises from the necessity of eliminating the systemic axiological inconsistency of the regulations and the fulfilment of obligations imposed by both national and international legal provisions (Chodorowska 2015).

The victim is frequently blamed for having provoked the incident and ‘ruining the perpetrator’s life’ by pressing charges against the perpetrator. This may be the case, for example, when the rapist is a young man from a good family, a sport superstar or a popular actor. In 2003, in Eagle, Colorado, a 19-year-old hotel concierge accused famous basketball player Kobe Bryant of rape. Throughout the trial, the media referred to her as ‘Kobe’s accuser,’ effectively casting the alleged rapist as the victim, admiring his ‘heroic’ demeanour during court proceedings, while the young woman received death threats. Representatives of feminist circles pose a question to what extent the request-based prosecution of the offense of rape is genuinely justified by concern for the protection of the victim and to what extent it is a legacy of a societal view of the woman’s position rooted in the first half of the 20th century (Podemska 2015).

Critical voices regarding the introduced amendment have been raised by many scholars. At the outset, it must be noted that arguments have been formulated that challenge the view that Article 55 of the Convention excludes the request-based mode. This is especially relevant because such a request could not be withdrawn in the Polish system. There is a general consensus that the private-complaint mode would breach the Convention (Podemska 2015).

It is hard to refute the argument that the prosecution of crimes at the victim’s request is a legislative expression of the appreciation for individual interest and the request-based mode of prosecuting the perpetrator of the offense of rape is an expression of the individual’s autonomy in determining all aspects of one’s sexual life, even those that are connected with the possible prosecution of prohibited acts directed against sexual freedom (Warylewski 2003). In the opinion of J. M. Ferenz, depriving the victim of the possibility of deciding whether to initiate prosecution by means of the request-based mode significantly restricts the victim’s freedom and rights. The repeal of this mode has curtailed the rights and freedoms of individuals harmed by the offense of rape. Moreover, in reality, the repressive nature of criminal and procedural law has also been intensified with respect to the victim of the offense of rape. The request-based mode allowed the victim to make an early decision on whether he or she wished to testify (Ferenz 2014). The lack of that regulation restricts victims in their rights while simultaneously, in practice, expanding the scope of repression. A disciplinary sanction may be imposed on a victim (in the course of trial); a victim can incur criminal liability for giving false or incomplete testimony (Article 233 of the Criminal Code). Victims of the offense of rape have been deprived of the possibility of making a decision on the scope of disclosed information when, for various reasons, they are unable or unwilling to testify truthfully or choose to withhold certain information. In addition, the Polish legal system has not introduced regulation providing the victim of the offense of rape with the possibility of refusing to give testimony. It seems that the request-based mode of prosecuting the perpetrator of the offense of rape points to the recognition of the victim as a subject—not merely an object—of criminal proceedings. This approach aligns with the trajectory adopted by contemporary law and criminal trial, that is, strengthening the victim’s position for the purpose of understanding his or her broadly defined interests.

The public-complaint mode can paradoxically intensify a victim’s distrust of sharing the experience of a violation of his or her sexual freedom with close others. A victim can be fearful of disclosing the incident to anyone. Victims will be aware that there is a risk that a trusted person, against their will, might make the decision on their behalf to report the crime (Banaszak 2020).

One of the arguments invoked in the Explanatory Report is ‘the low numbers of reporting’. The low numbers of accusations and convictions have prompted researchers and victim support organizations to regard rape as having been effectively ‘decriminalized’ in England and Wales (Friskney et al. 2025; Hohl and Stanko 2015). It may be argued that a comparable problem can be observed across numerous states. As pointed out in scholarly writings, ‘Decades of research have documented that only about 15–20 percent of rape victims report the crime to police. This gap in reporting is unique to sex crimes. There are many reasons for not reporting or delaying a report. Victims are faced with the decision to contact the police in the immediate aftermath of a rape, when they may be traumatized and trying to make sense of what happened. In the aftermath of a rape, victims experience a wide range of physical, psychological, and emotional symptoms both immediately and in the long-term. These symptoms may include fear, anxiety, anger, self-blame, dissociation, guilt, loss of trust, flashbacks, PTSD, depression, phobias, panic disorder, and obsessive–compulsive disorder. A rape survivor may experience all, some or none of these reactions. As a consequence, victims may experience great difficulty making sense of what happened to them and therefore may behave in a manner that appears counterintuitive but is in fact merely a normal expression of the victim’s unique strategy for coping with the overwhelming stress of the assault. These counterintuitive behaviours may include avoidance strategies to ‘manage the negative impact of the victimization, including denying that the event occurred and avoiding thinking about it.’ (Tracy and Fromson 2012). Studies have also shown that the main causes why victims did not report the offense of rape were as follows: lack of trust in law enforcement authorities, fear of them, that no one will believe them or police will not recognize the incident as rape, fear of putting the blame on the injured person and being judged by police officers. The fear of disclosing the fact of rape did not emerge until the 6th position (Regan and Kelly 2001). It is hard to question these findings. However, a reform of the mode of prosecution will in no way effect any substantive change.

Importantly, in a vast majority of cases, rape is committed without the presence of third parties. Only the victim has the information about the crime. It is therefore the victim’s decision that is ultimately determinative for criminal proceedings, even in those systems where proceedings are carried out ex officio. A study carried out by K. Dudka throughout Poland between 1999 and 2001 showed that the initiation of an inquiry or investigation in 99.27% of cases occurred as a result of a notification of a crime. The notification most frequently originated from a victim, an ex officio action was initiated only in 0.73% of cases (Dudka 2006). When examining the statistical data of the Polish Police (see Table 1), it is readily apparent that the changes in the established crimes of rape after 2014 (the introduction of the public-complaint mode) are minor.

Table 1. Statistical data on rape in Poland (1999–2023).

	Established Crimes *	Detected Crimes **	% of Detection
2023	1040	926	88.87
2022	1064	937	87.49
2021	1081	955	88.00
2020	1034	894	86.30
2019	1354	1163	85.50
2018	1326	1127	84.40
2017	1262	1050	82.70
2016	1383	1116	80.50
2015	1144	896	77.60
2014	1249	983	78.10
2013	1362	1164	84.10
2012	1432	1209	83.30
2011	1498	1230	80.10
2010	1567	1305	82.30
2009	1530	1268	82.60
2008	1611	1315	81.10
2007	1827	1549	84.20
2006	2001	1665	82.70
2005	1987	1678	84.10
2004	2176	1818	82.70
2003	2322	2021	85.70
2002	2345	2032	85.30
2001	2339	1972	83.90
2000	2399	2075	85.90
1999	2029	1715	83.70

Source: Police statistical data. * An established crime is a crime under completed preparatory proceedings, as a result of which the occurrence of a prohibited act was confirmed. ** A detected crime is an established crime, in which at least one suspect was identified during completed preparatory proceedings.

It comes as no surprise that the proposal advocating a return to the prosecution of the offense of rape at the victim’s request has been put forward in the Polish legal doctrine together with a proposal to establish a specific safeguard in the form of introducing an institution similar to the one defined in Article 60 of the Code of Criminal Procedure (the possibility of initiation of proceedings by a prosecutor in a case prosecuted at the victim’s request due to the public interest) (Mozgawa 2020). The First President of the Supreme Court has argued that consideration should be given to whether depriving victims of the ability to decide on prosecuting perpetrators of the cited crimes ‘(…) is, in essence, a means of ensuring more effective protection of the injured party.’ (Sejm Rzeczypospolitej Polskiej 2012b). Even among the surveyed prosecutors, the prevailing view was that the introduction of the new mode of prosecution results in the ‘incapacitation’ of women because they do not make a decision on prosecuting the perpetrator (Błońska 2016).

Possibly, to achieve fuller understanding, the following argument warrants consideration: the complexity of sex crime laws derives from a historical background of bias against women. The legal history of rape is particularly ignominious. Under English common law―from which our laws developed―rape was a crime against property, not person. A woman’s reproductive capacity, in the form of her chastity, was considered property and was essential to establishing patriarchal inheritance rights. A woman’s sexuality was owned by her father and transferred to the man who became her husband. Rape laws protected the economic interests of men; therefore, rape was originally considered the theft of this property. The bodily integrity of the woman was irrelevant (Tracy and Fromson 2012). We believe that the position of feminists, who support the public-complaint mode, effectively amounts to an accusation of that mode. The culture is patriarchal, and the prevailing male dominance dictates that a woman-victim of rape must submit to an imposed role. They harbour the assumption that the victim should be ashamed of rape and the victim’s insistence on holding the perpetrator to criminal liability may be regarded in a negative light.

Depriving victims of rape of the right to self-determination cannot be justified by either greater effectiveness in detecting crimes or women’s vindictive actions. The issue of secondary victimization is a crucial one; nevertheless, those in favour of the public-complaint mode seem justified in arguing that it is necessary to improve the practice of handling such cases. It is also true that ‘only the individual concerned can determine whether they have in fact been harmed and whether their rights or interests have truly been infringed.’ (Piotrowski 2016). Arguments of that type cannot be the arguments about the mode of prosecution. The request-based mode is ‘simply’ a matter of respecting the victim’s will, which is particularly significant in cases involving a violation of personal rights of such an intimate nature.

4.4. The Issue of Discrimination

A comprehensive assessment of the issue necessitates its examination at an additional, equally significant level. It seems reasonable to ask whether the cited regulations are discriminatory.

At the outset, under EU law and the settled CJEU case-law, even where the areas of criminal provisions and the principles of criminal proceedings fall within the competence of individual member states, the provisions of national legislation cannot discriminate individuals for whom EU law guarantees the right to equal treatment (Publications Office of the European Union 2018).

To recall for the further argument, discrimination is the unjust, harmful, selective, and inappropriate treatment of an individual based on their membership in a socially recognizable group, distinguished by one or more characteristics (Jabłońska 2017). The basis for the unequal, thus unjustified and unfair treatment is not the individual personal characteristics or behaviour of a human being but his or her inclusion in certain categories or social groups (Winiarska and Klaus 2011). A comprehensive assessment of discrimination in social life must also take into account that discrimination can be visible or hidden. Discrimination is frequently subtle. The subtle forms of discrimination can typically be detected only after analysing all the circumstances. Taken alone, specific acts may be ambiguous or lack clarity, but as part of a bigger picture, they can lead to the conclusion that discrimination was a factor in the treatment of an individual (OHRC 2014). The essence of discrimination lies in the arbitrary, egoistic, baseless and unfair—from the perspective of (universal and recognized) social and cultural norms—resolution of a conflict of goods based on an insignificant—in given circumstances—characteristic of a human being (or a group of individuals). The source of the conflict lies, on the one hand, in the rights and freedoms of a discriminated individual/actor in the form of access to specific goods, services, possibilities and, on the other, the rights and freedoms of a discriminating actor in the form of the freedom to pursue one’s own beliefs (based on prejudices and stereotypes) and maximize one’s material and immaterial benefits. Where a discriminating actor pursues its will in the form of provisions of law, the situation pertains to systemic discrimination. Overall, discrimination is an unjustified restriction of the autonomy of an individual in their social aspect (Sitarz 2024).

Discrimination is a situation where, due to various characteristics, an individual is treated less favourably than another would be in comparable circumstances. To examine the phenomenon of discrimination as delineated by the title of this article, it is necessary to identify alternative groups of individuals lacking a particular characteristic yet having unrestricted access to specific rights. The criminal law institutions cited at the outset allow for the identification of such social groups having different rights:

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A penal measure in the form of the order to vacate the premises shared with the victim without taking the opinion of the victim into account reveals a group of individuals who are denied the right to decide with whom they may live—these are individuals harmed by, among other things, domestic violence, in contrast to unharmed individuals or harmed by a different crime, who have full decision-making authority in this regard.

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A prohibition of referring a case involving domestic violence to mediation places individuals harmed by a different type of crime in a privileged position because they have full access to mediation.

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The public-complaint mode of proceedings in cases of rape means that individuals harmed by a different type of crime violating personal goods have full decision-making power over the initiation of criminal proceedings (for example, in Poland, individuals harmed by, among others, the crimes of threat, stalking, coercion, recording the image of a naked person, and violation of the inviolability of the home.)

The key to discrimination is undoubtedly a lack of reasonable and justifiable grounds for the differentiation of individuals’ legal and social situation. From this perspective, discrimination is an (arbitrary) decision based on prejudices and stereotypes. A. Winiarska and W. Klaus recall a convincing argument that discrimination is characterized as a form of attitude. It consists of a cognitive element in the form of stereotype, an emotional component (prejudice) and, finally, a behavioural component—discriminatory action. The authors further note that stereotype is a one-sided, simplified and exaggerated image of a given collective or group, which results in treating its representatives in a uniform manner, regardless of their individual differences. Stereotype typically lacks an evaluative nature, which gives it the appearance of objective knowledge (Winiarska and Klaus 2011). A similar perspective on this issue is offered by N. Buchowska, who has argued that entrenched and replicated stereotypes tend to evolve into prejudice, which can easily take the form of discrimination. At the same time, stereotypes frequently serve to justify the existing discrimination. Moreover, the author enumerates four most common—from the perspective of discrimination—stereotypes about women: (1) women are weak and submissive; (2) a woman is primarily a mother and a wife; (3) a woman is financially dependent on her husband; (4) a woman is too emotional and incapable of making a decision (Buchowska 2011).4 In the case where a woman falls victim to a crime, the generalized image of a victim of violence is superimposed onto the above stereotype. Female emotionality and the incapacity to make a decision are strengthened by the factor of dependence on the perpetrator. Ultimately, when the stereotyping of harmed women, based on certain patterns and assumptions applying only to some victims, is turned into legal regulations, it unjustifiably restricts the victim’s right to self-determination.

The global literature indicates that classifying applicants in proceedings before the ECtHR as vulnerable persons and requiring special protection for them may result in paternalism and stigmatization (labelling). The concept of vulnerability or vulnerable groups does not appear in the treaty law of the universal system for the protection of human rights. It does not appear in the Human Rights Covenants or in the International Convention on the Elimination of All Forms of Racial Discrimination. In reality, however, as has been noted, the provisions of the entire International Covenant on Civil and Political Rights, in particular of the Convention on the Elimination of All Forms of Racial Discrimination, concern guarantees for the protection of the rights of individuals belonging to groups particularly vulnerable to various forms of discrimination and ill-treatment. Notably, direct references to ‘vulnerability’ can be found in the UN system. This can be evidenced by the preambles to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families or the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Treaty bodies for the protection of human rights provide considerably more comments on this matter in their commentaries or cases under consideration (Półtorak 2021; Nowakowska-Małusecka 2022). Furthermore, the concept of vulnerability has been repeatedly criticised as broad, vague, and elusive, and therefore incapable of capturing the complexity of the structures and forms of inequality. It has been noted that ‘its meaning is imprecise and contested. Confusing, complex, vague, ambiguous are but a few of the labels scholars across disciplines have used to refer to it’ (Mayrhofer 2025). It has already been raised in the literature that the concept of vulnerable groups entails several risks. One such risk is essentialism, which means reifying one experience as paradigmatic, at the expense of other experiences. Other weaknesses include stigmatization and paternalism. The latter term is compared to the denial of subjectivity and the imposition of protection (Peroni and Timmer 2013). In the opinion of S.Y. Kim, paternalism of the Court is inevitable as long as the Court relies on the criterion of vulnerability. This occurs because the Court demands that the defendant state provide ‘special protection’ to the group to which the defenceless applicant belongs. It is a common trap into which one falls in the case of a vulnerable person—when someone is vulnerable to serious harm, it is impossible to resist thinking in terms of attempting to help that person. Despite good intentions, when protection is elevated to the level of social intervention, it may create a pathogenic source of vulnerability, as a result of which relations of domination and inequality between members of a community or between the state and its citizens become entrenched. The author specifies three criteria of the non-paternalistic form of protection: (1) protection should obtain universal support from all individuals; (2) protection should be understood as applying to all individuals, not to specific individuals or groups, and; (3) protection should not give public officials the authority to control individuals under protection (Kim 2021). Crucially, non-paternalistic protection requires respect for the autonomy of individuals who would be under protection.

The analysed legal constructs can be viewed as so-called positive discrimination, in other words, compensatory measures. In instances where an individual or a group of individuals is deprived of, or experiences a significant reduction in, the ability to exercise their human rights, international law obliges states to take affirmative action aimed at ensuring the equal exercise of rights and freedoms, that is, striving for substantive equality (equality de facto), not only formal equality. These measures are frequently called temporary special measures, but also ‘positive measures,’ ‘positive or reverse discrimination,’ ‘preferential treatment,’ or ‘positive action.’ Their aim is social and cultural change, not the creation of new rights. When establishing these measures, it is necessary to take the context into account. They should be discontinued once the desired real equality has been achieved (Bień-Kacała and Kapelańska-Pręgowska 2022). Writers have formulated counterarguments against anti-discriminatory measures—risk of ‘secondary discrimination’, violation of individual freedoms, humiliation of representatives of supported groups, strengthening and perpetuation of social prejudices and stereotypes, economic losses, ineffectiveness or illusory nature of the compensatory nature of positive discrimination, manifestation of (not always justified) paternalism (Dylus 2007). The question is how to ensure that supportive measures directed at individuals do not discriminate against them.

In sum, the above comments permit the formulation of several significant conclusions. It is high time to consider victims of crime (including victims of violent crimes) from the perspective of their right to self-determination. Undoubtedly, the issue of proportionality (at several levels) is an element of the rational justification for a different treatment of individuals. When creating any provision of law (also a supportive one), it is necessary to take into account the seriousness and significance of the restriction in contextual terms (to avoid systemic discrimination). The victims’ right to self-determination co-creates the context of responses to a committed crime. The victims’ right to self-determination should co-create the prerequisites for the legal institutions creating the penal policy to the broadest possible extent. An irrational restriction of that right can be considered a violation of the standards of a democratic state governed by the rule of law and, in some situations, a manifestation of paternalism or even discrimination.

5. Conclusions/Overall Conclusions

At this point, it is time to take a look at the three cited constructs of criminal law from the perspective of human rights. The declared aim of all these constructs (or their proposals) is to protect victims from another victimization by the perpetrator of the crime. They are all functionally related to the phenomenon of violence and numerous criminological studies allow for an argument that, in a vast majority of cases, it is violence perpetrated by a man against a woman. However, they are all based on a single model of the victim as a weak, powerless person, unable to make decisions about herself freely and without coercion. Regulations formulated (or proposed) in such a manner leave no room for a victim aware of her rights and her reasonable expectations, ready to make decisions regarding the criminal consequences for the perpetrator, assessing what impact it will have on her life and the lives of her loved ones. Legal regulations taking into account the reasonable needs of victims and requiring full support from the state simultaneously restrict the rights of victims who do not need such support, even explicitly do not wish for it, or expect different forms of support. The regulations under analysis are a manifestation of legal paternalism, treating victims as actors unable to articulate their needs concerning the consequences for the perpetrator in relation to his violation of the victim’s rights. A rather paradoxical illustration of this is an old provision regarding rape, in force in the Polish territory—the Russian Code of Major and Corrective Penalties (1846), which contained a provision under which the offense of rape was prosecuted ex officio only when it resulted in the death of the victim. In other cases, the initiation of prosecution required a request from the victim, her husband or guardians (Banaszak 2020). The current system of police and judicial repression holds a stereotypical and simplistic view of the battered woman. It is assumed that the most beneficial for her is always for the offender to be punished and locked up in prison and that she completely break her relationship with him. Further, it is thought that if a woman does not want to leave her husband or she withdraws the complaint despite the attacks, it is simply because “she is not in her right mind.” (Esquinas Valverde 2015). The indicated international and national regulations have adopted the stereotypical model of the victim as a weak, powerless person, unable to decide about herself freely and without coercion. Victims of that type do appear in criminal trials. However, international documents and frequently national law leave no room for a harmed victim who is at the same time aware of her rights, her reasonable expectations, ready to make decisions regarding the criminal consequences for the perpetrator, assessing what impact it will have on her life and the lives of her loved ones. There is a need for legal regulations that take into account the reasonable needs of a victim requiring full support from the state, but at the same time they restrict the rights of victims who do not need such support or do not wish for it. The thesis still holds: we should consider women as autonomous and responsible persons by strengthening their psychological and social resources and “empowering them”, so that they can freely decide what to do with their lives in the future and how to manage their relationships (Esquinas Valverde 2015).

At the same time, a completely different perspective on victims of violence can be observed. In 2019, McGlynn and Westmarland developed a holistic framework for victims’ understandings of justice after sexual violence. The framework, known as kaleidoscopic justice, emphasized the significance of six components: consequences, recognition, dignity, voice, prevention, and connectedness (McGlynn and Westmarland 2019). Studies have shown that the kaleidoscopic measures of justice are indeed a good indicator of satisfaction with the justice system (Smith et al. 2025). In the last three decades, an increase has been observed in the recognition of the rights and interests of other stakeholders of the justice system, including victims. Researchers have attempted to reconcile the demands of justice of both victims and accused individuals. Notably, kaleidoscopic justice is consistent with the more established theory of restorative justice, sharing many of its principles. The benefits of restorative approaches after violence are gaining increasing recognition (Smith et al. 2025). The fourth aspect of kaleidoscopic justice is, for example, the right to a voice, enabling victims to speak about their suffering, using words that are meaningful to them. In-depth studies show that victims wish to tell their story in a safe forum, get public recognition and want their voice to be heard. The voice also refers to participation, as victims want to engage actively in decision making concerning their cases (McGlynn and Westmarland 2019; Smith et al. 2025).

The conducted analysis confirms the view formulated in the literature that a conflict of rights can be observed between the rights of victims of crimes as human rights and the interests of the state, which prevail in the administration of justice in criminal cases (Kulesza 2020). By taking away or limiting victims’ right to self-determination to the extent that it affects criminal liability or its scope, a conflict has emerged between the human rights of crime victims and an arbitrary, paternalistic approach to victim protection, which can go against the victim’s will.

The indicated weaknesses of various legal systems prompt the citation of the words of Lourdes Peroni and Alexandra Timmer—the Court should ‘beware of the temptation to turn group vulnerability into an easy and straightforward narrative: people are rendered particularly vulnerable due to a complex set of causes (ranging from economic disempowerment to social attitudes and physical limitations). Moreover, people always possess sources of resilience in the face of their vulnerabilities’ (Peroni and Timmer 2013).

Importantly, the abandonment of discriminatory and unreasonably paternalistic criminal justice measures requires undertaking research and action in (at least) four directions:

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Development of rules for mediation with vulnerable persons (including women) (Sitarz and Osmenda 2025); in a sense, continuing the EU-financed project—‘Restorative Justice in cases of domestic violence: Best practice examples between increasing mutual understanding and awareness of specific protection needs.’ A Guide for practitioners, containing (minimal) standards on the application of RJ in cases of domestic violence, or more precisely, violence within an intimate partnership (Wolthuis and Lünnemann 2016).

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Adequate support for victims, which will in a reasonable and genuine manner provide a sense of security and satisfaction with the justice system’s agencies, respecting victims’ right to self-determination.

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Solving the SLAPP problem (Strategic Lawsuit Against Public Participation), which is an attempt to silence women by restricting their freedom of speech, negatively affecting the women’s movement as a whole (Leader 2019). In reality, it serves as a tool of intimidation, humiliation and psychological manipulation (Lucindo 2022).

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Carrying out a review of other criminal justice regulations from the perspective of compliance with the principle of equality. One such issue (going beyond the scope delineated by the title of the article) is infanticide. It is now widely accepted that the concept of the offense of infanticide as a privileged form is a systemic or even normative discrimination against the vulnerable. The essence of the problem is recognized in the Implementation Handbook for the Convention on the Rights of the Child (2007), which points out that numerous legal systems regard the specific offense of infanticide as a separately defined form of homicide subject to reduced penalties. The apparent intention is to provide special protection to mothers who have experienced mental trauma as a result of childbirth. However, by pointing to a specific and privileged crime, those provisions seem to discriminate against children as victims of homicide.

At present, there is little doubt that a growing need exists to re-examine the position of victims of crime from the perspective of their right to self-determination. This becomes particularly challenging when the victim is a woman. The issue of proportionality (on many levels) serves as an element of rational justification for the differentiated treatment of individuals. Therefore, in drafting legal provisions (including those supporting victims), the seriousness and significance of the restriction must be taken into account in a contextual sense (so that systemic gender-based discrimination does not occur). The right of victims to self-determination co-creates the context of responses to the crime committed, so the right of victims to self-determination should co-create the premises of legal institutions creating a penal policy to the widest possible extent. An irrational restriction of this right can be regarded as a violation of the standards of a democratic state of law and, in some situations, a manifestation of paternalism and gender-based discrimination.