Discrimination against Women with Disabilities: Sexual intercourse with a helpless person or rape?

21. oktobra 2016.

25157_113967678634103_7286402_s[1]MDRI-S submitted to the Constitutional court of the Republic of Serbia an initiative for assessing constitutional legality of the article 179, paragraph 1 of the Criminal code, which determines a criminal act of Sexual intercourse with a helpless person. This provision states that “whoever commits sexual intercourse or equivalent act by taking advantage of person’s mental disability, mental health problem, other mental state, helplessness or other state of a person who, as a result, is not capable of resisting, he/she will be sentenced to two to ten years in prison.

The title and content of this criminal act in Serbian legislation is problematic, because it is essentially an issue of the criminal act of rape, which basic definition is given[i] as “the one who forces other person on sexual intercourse or equivalent act by using force or threat to directly attack life and body of the person or other close persons will be sentenced to three to 12 years in prison.”

The intention of the legislator in provisioning two separate criminal acts is unclear, but it certainly sends a message to women with disabilities that the gravest form of violence against them is not treated in the same way as against women without disabilities. It also allows for the more lenient punishment for the perpetrator. The logic would be to determine rape of a woman with disabilities as a qualified form of rape and provision higher sentences, since women with disabilities have been unequally treated and are still marginalized in our society.

Women with disabilities are exposed to interpersonal, institutional, and structural violence in almost every aspect of their life, and they are victims of intersectional discrimination[ii]. While they are affected by gender-based violence, they are also exposed to violence on disability grounds, which makes their position even more difficult. The position of women with disabilities in custodial institutions is particularly hard, because living regime in a closed institution puts them at higher risk of violence, including all forms of sexual violence.

We call on the responsible policy-makers and legislators to change injustice towards women with disabilities by firstly changing the relevant legislation and then setting up adequate and functional mechanisms for access to justice and remedies.

Text of the Initiative to the Constitutional court (in Serbian language)

If you would like to support out initiative, contact MDRI-S at email address mdri.serbia@gmail.com.

Implemented as part of the project „Deinstitutionalize and End Violence against Women with Disabilities in Custodial Institutions“ supported by United Nations Trust Fund to End Violence against Women.

[i] Article 178, paragraph 1 of the Criminal code

[ii] Committee on the Rights of Persons with Disabilities, General Comment no. 3 on Article 6: Girls and Women with Disabilities, Convention on the Rights of Persons with Disabilities, CRPD/C/GC/3, from 2 September 2016