Rape

Legal definiton 

Section 185 of the Criminal Code:

(1) Whoever forces another person to engage in sexual intercourse by violence, threat of violence, or threat of other serious harm, or

whoever exploits their defencelessness to commit such an act,

shall be punished by imprisonment for six months to five years.

(2) The perpetrator shall be punished by imprisonment for two to ten years if the act referred to in paragraph 1 is committed:

a) by sexual intercourse or other sexual act comparable to intercourse,

b) on a child, or

c) with a weapon.

(3) The perpetrator shall be punished by imprisonment for five to twelve years if:

a) the act referred to in paragraph 1 is committed on a child under fifteen years of age,

b) the act is committed on a person in custody, serving a prison sentence, undergoing protective treatment, protective detention, protective or institutional upbringing, or in another place where personal freedom is restricted, or

c) the act causes serious bodily harm.

(4) The perpetrator shall be punished by imprisonment for ten to eighteen years if the act referred to in paragraph 1 results in death.

(5) Preparation is criminal. 

Subjective aspect - intent

Rape is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this crime, the following questions may be relevant:

• Did the perpetrator use violence, a threat of violence, or a threat of other serious harm?
• How did the perpetrator threaten the aggrieved person?
• Could the aggrieved person perceive the perpetrator's actions as a threat?
• What was the intensity of the threatened harm?
• Was the aggrieved person defenceless, or could they prevent the perpetrator's actions?
• Did the perpetrator's actions aim at sexual intercourse?
  
• Did it occur?
  
• If not, why did it not occur?
  
• What was the relationship between the perpetrator and the aggrieved person?
  
• What was their relationship like before the incident?
  
• What was it like afterward?
  
• Was the perpetrator sane at the time of the act? Were they under the influence of alcohol, drugs, or mental illness?
• Was the perpetrator's intent directed towards the decisive facts?

In the case of this criminal offence, it is particularly important to reconstruct the entire course of the relevant actions and their context in detail. Special attention must be paid to the credibility of both the alleged perpetrator and the aggrieved person. An expert opinion in the field of healthcare, specifically clinical psychology and psychiatry, which is often prepared in such cases, can play a very significant role in this process.