Search

One can often hear Polish politicians saying there is no violence against women in Poland, since Polish men respect their women and women hold a strong position in Polish culture. The conviction rates for domestic abuse in Poland are indeed low, though the attrition rates are high. Every year, for approximately 75,000 registered cases of domestic violence, there are roughly 10,000 convictions. Most of the prison sentences are conditionally suspended. Protective orders or other punitive measures are seldom handed down. There is a visible reluctance on the part of the criminal justice system to punish and correct domestic abusers. One of the reasons is that domestic abuse provisions in the Polish Penal Code (Article 207 of the Polish Penal Code from 1997) criminalises a very different behaviour than is defined in the Counteracting Family Violence Act from 2005. Another, possibly even greater, reason is the culture of sentencing (both in general and of domestic abuse) within the Polish judiciary and the very strong conservatism of Polish decision-makers and society. The protection of family values by legislators and the judiciary is often enforced at the expense of the victims’ right to life and to a life free from violence. This article discusses the Polish system for preventing domestic violence, which was set up in 2005 and the construction and jurisprudence of crime described in Article 207 of the Polish Penal Code. In particular, the question of culpability raises many problems when it comes to prosecution. First, we must compare Article 207 with the definition of ‘family violence’ specified in the Counteracting Family Violence Act and the Istanbul Convention. Then, I will explain how such an understanding and interpretation of Article 207 translates into the dynamics of sentencing and penal decision-making and the virtual ineffectiveness of both penal provisions (the lack of deterrent effect) and the system of counteracting family violence designed by lawmakers.

According to the prevailing assumption, the main cause of violence against women isa structural inequality between men and women. That idea is common in internationalhuman rights discourse, widely accepted on political level and enforced by severalscientific studies. The structural nature of violence against women means that it isgender-based violence and one of the crucial social mechanisms by which womenare forced into a subordinate position compared with men. It is a manifestationof historically unequal power relations between men and women which have led todomination over, and discrimination against, women by men, and have prevented fulladvancement of women.Logically thinking, achieving gender equality would lead to the elimination ofviolence against women. Respectively, in societies with greater gender equality, wherewomen enjoy better rights, have a better footing towards men, greater legal protectionand access to power, they also should be less vulnerable to violence based on theirgender. The most gender-equal countries in the world are Scandinavian countries –Sweden, Norway, Iceland, Denmark and Finland.Yet, the recent EU-wide victimisation survey on violence against women (FundamentalRights Agency 2014) produced startling results. It turned out that the highestrates of violence against women (in almost every single aspect, intimate partner violenceand non-partner violence) were reported in the Nordic countries, particularly in Sweden,whereas countries considered traditional and conservative, e.g. the Mediterraneancountries or Poland, revealed a lower prevalence of violence against women. The FRAresults on Scandinavian countries were coined the “Nordic paradox”.The main problem is this: is really gender equality a factor reducing or increasingthe likelihood of violence against women’s victimisation? Is the subordinate positionof women typical of more conservative societies a protective factor against violenceagainst women? And are actually the FRA study results sufficiently reliable to drawsuch conclusions?The first section of the paper discusses the FRA results regarding the Scandinaviancountries and presents it against a larger picture of gender equality indicators. Thenext section examines the possible explanations for differences between countriesoffered by the authors, which are mainly methodological and contextual ones, such as:cultural acceptability to talk with other people about experiences of violence againstwomen, higher levels of disclosure about violence against women in more gender-equalsocieties, patterns of employment or lifestyle or levels of urbanisation, differencesbetween countries in the overall levels of violent crime and drinking habits in particularsocieties.The third section reviews the previous research findings, looking at the relationshipbetween gender equality or women’s status and violence against women. There are twochief hypotheses tested in the studies: the ameliorative hypothesis (violence againstwomen will fall along with greater gender equality) and the backlash hypothesis (ifwomen remain in their subordinate position, men are less threatened and less likely toresort to violence against them). Overall, the studies showed mixed results, dependingon the used measures. Furthermore, most of the them were conducted on the US data,and their application to the European context is doubtful.The final section presents some theoretical explanations from the critical sociologyfield. The three most relevant theories suitable to explain the “Nordic paradox” andthe relationship between gender equality and relatively high rates of violence againstwomen include the variety of patriarchy theory of G. Hunnicutt, the hegemonic masculinities of R.W. Connell and J. Messerschmidt and the symbolic violence ofP. Bourdieu. All of these theories critically frame the use of violence by men as a meansof upholding their superior position towards women.

The Polish word for “femicide”, kobietobójstwo, is a composite of two concepts and words, viz. the English word femicide and feminicidio, a term used in the Spanish-speaking world. Femicide was initially a gender-neutral term and essentially referred to the killing of any woman regardless of circumstances, i.e. it did not need to be related to the social and cultural gender role of women or be driven by misogyny or contempt for the female condition. There is an ongoing debate as to whether the term “femicide” denotes any instance of a woman being killed or whether it should be limited to cases where the perpetrator is a man and/or where being a woman is a contributing factor. As the term “femicide” was introduced into academic discourse by feminists in the 20th century, it would seem obvious that the connection between a woman’s death and her sex and status is a fundamental component of the concept of femicide in a given community. Feminists proposed the term as an alternative to the neutral “homicide”, so as to emphasize the hateful and/or misogynistic nature of certain killings of women. Femicide was meant to be an example of a hate crime. Structural inequality and the inferior social standing of women are salient factors in any analysis of the cultural phenomena and practices that can be classified as femicidal. Femicide is not so much a separate manifestation of gender-related violence as an extreme one. It is a reproductive mechanism of the oppression of women and takes the form of various practices. As with all violence against women, femicide is deeply rooted in the historically unequal relations between the sexes and the systematic discrimination against women. Femicide should therefore be defined as the killing of women because they are women, but not necessarily by men. This definition is close to the views that Rashida Manjoo, the UN Special Rapporteur on Violence Against Women, expressed in her report of May 2012. Manjoo enumerates femicidal practices that she refers to as “gender-related killings of women.” The list includes both intentional (direct) killings of women committed by specific perpetrators and practices that indirectly cause women to die because they are women. These practices stem from the unequal relations between men and women and the oppression of women. Femicide, then, denotes both murder and manslaughter. It could be said that in international and feminist discourse, femicide is regarded as a set of cultural practices with a common denominator around the world, viz. they all cause women to die because they are women. These practices are not limited to voluntary and involuntary killings of women, but include practices that often cause women to die because of their social and cultural conditions.

Crimes related to the offender's cultural background are exceptional, and require special attention in many ways. Firstly, they come as far more shocking than the “typical” offences in a given society, due to their peculiar and infrequent nature. Secondly, as they are so much specific, they pose a serious challenge for law enforcement bodies, and it may seem that they are a significant problem for courts, who must face foreign and often culturally obscure situations and behaviour. This is also an important challenge for researchers, who try their best to define and, most of all, understand the mechanisms leading to such type of crime. The article discusses the specificity of honour killing, characterises the perpetrators and victims, and clarifies the motivational process of perpetrators, who often find themselves entangled in obligations enforced by cultural norms in a degree comparable to what their victims experience. The paper is also an attempt at analysis of the thesis widely found in the literature claiming that abuse towards women (irrespective of their cultural background and creed) stems from the patriarchal social structure, and should not be associated with any particular cultural system . The article claims that in order to properly analyse honour killing cases and create a possibly most effective system of preventing and countering the phenomenon, the expressions and sources of violence against women in different cultures must be precisely and unequivocally defined, and so must be the perpetrators' motivation. This clear division is necessary at the terminological level, to start with. This is why the article introduces the notion of “culture specific gender based violence”. Gender based violence itself is too broad a term to define such polarised cases as economic abuse of a wife by a husband, battering, or even marital rape and honour killing. Classifying honour killings as gender-based violence only, without precise identification of the sources behind such violence, is a dangerous practice, as - in consequence - opinions emerge equalising infringement of women's rights in the western world with those experienced in honour-based cultures or Muslim societies . The claim that women suffer the same violence regardless of culture or creed is not true. There is a dramatic difference between Christian background cultures, which nurture basic human rights, and honour cultures or Muslim communities, in the manner they treat women, and in the extent of socially accepted repression if they infringe the norms. What is even more, without changing the cultural rules or interpretation of religious rules, the position of women who are facing honour killings cannot improve. This is due to the fact that it is the culture and religion, or to be more precise, some elements of those, or instrumental use of those, that are at the source of this type of violence.

The article contains an analysis of district court sentences which included protective and re-straining orders under article 72§1 of Polish Criminal Code (hereinafter referred to as PCC) on perpetrators of harassment punishable under article 207§1 of PCC. Because of the character of the crime of harassment, the main part of the article concerns orders of refraining from contacts with victims and of leaving the common place of residence. The article contains analysis and conclusions of a research of cases which ended in a decree absolute in 2008 – 2009 and concerned prosecution under article 207§1 of the Code. The research, completed in 2010, was conducted in eleven district courts, all of them subordinate to different courts of appeals. The results of the research show a significant divergence in the manner of sentencing restraining orders throughout the country. One may notice the extremes of the approach, particularly as far as the order of leaving the common place of residence is concerned. As a result, the courts use such opportunity only in a few percent of the cases where such orders can be sentenced. It is hard to speak of any line of sentencing with such a small number of cases. Meanwhile, the legislator amended the Act on Family Violence Prevention with the view on the duties imposed under article 72§1 of PCC. As a result of this amendment, two changes were introduced. The first consisted in distinguishing correctional and educational actions in section 6a. The second concerned the order of refraining from contacts with the victim in section 7a of the said article which was extended by adding a restraining order of staying away at a minimum distance from the victim. At the same time the legislator did not take into account the doubts expressed by the doctrine about possibility of successful enforcement of orders under sections 7a and 7b (order to leave the common place of residence). The conclusions of the article concern the necessity of more frequent interpretation of duties under article 72§1 sections 7a and 7b PCC by the courts and, as a consequence, of es-tablishing a uniform and consistent judicature in sentencing such restraining orders. It is sug-gested that this can be achieved if the guidelines by Polish Attorney General on preliminary proceedings in family violence cases include an instruction for the prosecutors to apply to courts for such restraining orders. This way, the courts of law will be obliged to take a stance on such motions and a chance to standardise the manner of sentencing them will arise.

According to government information from November 2010, only 8% of committed sex crimes are reported in Poland. In 90% of cases, the perpetrators remain unpunished. Taking into account the statistics for 2009, 6,700 cases of sexual violence show the scale of the problem. The article tries to investigate the reasons of such situation. How does it happen that in a legal order, which since 1932 is based on extremely modern approach to the crime of rape, it remains in practice so often unpunished? The reasons of this are seen in the accepted procedure of prosecution, on the motion of the injured. This procedure results from the fact that provisions from 1932 have been accepted as they were, without a deeper reflection or analysis of the state of affairs of the time. What was acceptable in the criminological-epistemological and dogmatic perspective then, has been accepted by the legislator at present. This leaves a question why regulations from 1932 are still in force at present, with the detriment to the victims. In seeking an answer to this question, a methodology provided by feminist jurisprudence is assumed. The text also explains the very notion of feminist jurisprudence and gender analysis of law. The method allows to notice the elements earlier neglected by the law and to explain why corruption of the perpetrator reaches the victim. The development of feminist jurisprudence over the past three decades has contributed to significant enrichment of the theory of law in many countries and has led to many reforms of criminal law, including changes to the regulations concerning the rape of crime. Taking feminist criminology and feminist jurisprudence into account allows to consider the causes of placing joint responsibility for rape on a victim. It allows to demonstrate that what is hidden under the euphemism of morals and morality is also supported by laws and does not result from tradition as much as from the influence of contemporary law. The accepted procedure of prosecution of the crime is a significant element of this process. Assuming a gender perspective introduces a perspective of experiences and values essential for women to the analysis of language, evaluation and events, although it is not limited to this. The text, while analysing the determinants of regulations concerning rape, questions the basic axioms of criminal law dogma pertaining to neutrality and objectivity of criminal law. The example of regulations on rape proves that both axioms in fact sustain a loss to the benefit of the interest of the legislator who has a greater tendency to identify with a perpetrator than with a victim. The text analyses various perspectives of justifying accepted norms and indicates that higher arguments at each time serve to justify current interests. Using instruments of gender analysis of law here as well, reader’s attention is drawn to the perspective resulting from the experiences and values presented by women.

The phenomenon of stalking had not been studied extensively and the real scale, its forms, and consequences had remained unknown. For this reason, in December 2009, the Minister of Justice requested the Institute of Justice to conduct a research concerning stalking. It was performed by TNS OBOP in December last year on a representative, random sample of households. Over 10 thousand respondents were questioned in computer assisted telephone interviews. This is ten times more than in typical public opinion polls which undoubtedly increases credibility of the results. Every tenth respondent (9,9%) appeared to have experience stalking. This is more than expected. It these results were to be extrapolated on the whole Polish population over 18 (and there are significant ground for such extrapolation as the sample was representative), it could be estimated that as much as 3 million of adult Poles have experienced stalking. In almost half of the cases, stalking happened repeatedly and 80% of victims experienced stalking within past five years. On the average, stalking lasted for less than a year, most often from a week to three months, but as much as 15% of victims were stalked for at least three years. Every fifth person declared they are still stalked at the moment. The most common methods of stalking were: spreading slander, lies and gossip (70% of responses), getting in touch with the aid of third parties (55%), threats or blackmail and “telephone persecution” (almost half of responses). Every third victim indicated also accosting or threatening family members, physical stalking (persistent following) and unwanted correspondence. It needs to be emphasised that stalking most often appeared in more than one form at a time (e.g. following – phone calls - getting in touch with the aid of third parties). As much as three quarters of victims regarded staling as serious, one third as very serious. These extremely high percentages prove that stalking is a considerable problem – almost a social one. This is confirmed by its effects declared by respondents. Almost 70% of victims experienced negative effects of stalking. More than a half reported psychological problems (depressed mood or depression, anxiety) every fourth physical ones (pains, aches, nausea, eating disorders). Because of these, 45% of the victims sought medical consultation which proves how serious the problems were. One third of the harmed declared financial or general consequences (cost of legal fees, need to change their lifestyle, change of telephone number, sometimes even change of residence). Although as expected most perpetrators were persons known by the victims (a current or ex-partner in every fourth case), a significant number of strangers needs to be reported (one quarter). Almost 40% of stalking victims asked for help, out of which only a half to prosecution organs – this is as little as 20%.