Rape Trials

At the beginning of April 1983,¹ 16-year-old Iza² was dragged into a car by four young men (17- to 18-year-olds) and driven out to the forest. One by one, they forced her to have oral and vaginal sex. In reading the court file, we learn that one of the perpetrators had previously also gang-raped her in November 1982. After the first rape, her parents and her stepfather convinced her not to report it to the police. After the second rape, she went to the police station on her own. During the investigation and throughout the court trial, her family as well as the offenders’ families tried to convince her not to testify and that what had happened was not really rape. But she did testify. Iza experienced psychological trauma after the rape. She sought help from a therapist, who sent her to a psychiatric facility, while the police investigated the case and arrested the men.

After the investigation, the trial began. The offenders tried to convince the court that the sex was consensual and that the victim was a “slut”. One of the defendants testified in court that he had had consensual group sex with Iza in the past. This was the event she described as a brutal gang rape. He also claimed that she had told him that she loved him and that she really liked having sex with him. She insisted, he said in court, on having sex with him again. But he was tired, he explained in court, and so he agreed to letting her give him a “blow job”, as he put it.

While testifying, Iza was very stressed, she kept crying, and it was hard for her to talk about what happened. Her therapist was called in to testify and describe her condition.

Guilt on the offenders’ part seemed to be obvious especially since investigators found proof, an illegal jail letter, that the defendants had concocted their defense based on the allegation that Iza wanted to have sex. A letter sent by one offender to another, included detailed instructions on how to testify, outlining what really happened and how to modify the story accordingly to present rape as consensual sex. The court³ found the offenders guilty and sentenced them to between two and five years in prison.

They appealed. Their lawyers claimed in their appeals that the victim suffered from sexual and psychological dysfunctions, and that the sex was consensual because she did not defend herself. She only said “no”, but she had a reputation, they argued, that made the boys think that she really wanted to have sex with them; the boys read her behavior as an invitation to sex. Moreover, the lawyers argued that she might suffer from psychological dysfunctions, which rendered her testimony unreliable.

As a result, there was a second trial, in which an expert witness⁴, a sexologist, said that the victim indeed had a sexual dysfunction: hypersexual disorder. His opinion was based on the victim’s statements during a sexological examination that she had had several sexual partners in the past and that she did not feel any guilt while masturbating. Furthermore, a group of psychiatrists testified that she had been mentally ill (before the rape) and therefore hospitalized. They seemed to forget that she had been placed in a psychiatric facility after the rape, and, as her medical documentation showed clearly, because of the rape.

As a result, the offenders were found not guilty. Her being sexually “hyperactive” was crucial evidence for the court. It diminished the meaning of her “no”. But there were also other elements at work here. During the trial it became clear that Iza did not fit neatly into the category of a “proper woman” that prevailed at the time in Poland in many other ways: she was not interested in house work and she preferred to spend her time reading (before the first rape, she was an excellent student in a good high school). She would engage in lengthy intellectual discussions with her father instead of helping her mother do the cooking and the cleaning. Finally, her family itself was of dubious moral character, as her parents were divorced.

Although shocking, the case was not exceptional in the 1980s. In January 1981, Sylwia ran away from home in a village and came to a big city. She met men who were friends of her friends and who offered her a place to stay. Not only did they rape her, but they also stole her money and her watch. They were found guilty of stealing, but not of rape. The offenders stressed Sylwia’s sexual experience, argued that the sex was consensual and managed to convince the court to believe their version of the story.

In November 1986, 16-year-old Ula was raped on her way home from school. While waiting for a train at a station café with her friends, she was lured out of the café, taken to a basement and gang-raped. Here again the offenders tried to convince the court that she had initiated sex. One of them testified during trial that it was her initiative to take his “penis into her mouth”. The lawyers debated whether her behavior was reckless. This time however, the judge was not convinced and found the offenders guilty; it was stressed that the victim was not sexually experienced.

In most rape cases, not only from the 1980s but also, although less often, from the 1990s and 2000s, it was women’s behavior that was on trial. Various arguments were held against the women: they were presented as sexually active, drunk, provocative, reckless, and in the wrong place (at a café, in the rapist’s apartment). As I will show below, although Poland had a progressive law concerning rape, it was very difficult for the victim to seek justice in court because of patriarchal cultural settings.

Feminist Perspectives on Rape

Rape constitutes one of the major areas of focus for feminist scholarship and activism. In the approach they developed to sexual violence, feminists re-defined its understanding far beyond feminist circles. It is thanks to the work of feminists that today we consider rape less often a crime of passion or an offence against a woman’s “owner”, such as her father or her husband (on the history of rape, see Bourke 2007; Vigarello 2001). Feminist takes on rape vary. Already in the 1970s, Susan Brownmiller (1975) argued that rape was not a crime of passion, but an act of violence aimed at sustaining patriarchy. In the late 1980s, Catherine MacKinnon also saw rape as a tool of male domination but pointed to its sexual nature (1987). Later feminists defined rape as an offence against victims’ sexual autonomy and focused on the concept of consent, opposing a common assumption that “no” means “yes” and arguing for women’s freedom and capacity to say “yes” (Cowan 2007; Friedman & Valenti 2008). Others, like Susan J. Brison (2003), would understand rape as a traumatic disruption of personhood and articulate the need for recounting rape stories by the victims as a key to recovery (for a useful overview see, e.g., Godden-Rasul 2017). An important component of the feminist approach to rape is stressing its gendered character: rape is a part of the broader phenomenon of gender violence (Menjívar 2008; Merry 2009) aimed at sustaining patriarchy, including “proper” gender roles. As Carole Vance put it: “the threat of sexual attack served as a powerful reminder of male privilege” (Vance 1984: 3).

In this paper, I focus mostly on this last point and trace the understanding of gender, sexuality, and violence that underlies the trials described above. What kind of woman was able to seek justice in court? In the introduction to her famous Pleasure and Danger, published as Iza’s rapists were standing trial, Vance wrote that “gross and public departures from ‘good’ woman status… still invite – and are thought to justify – violation” (1984: 3–4). This diagnosis accurately described the United States in the mid-1980s. What happened to Iza, Ula and Sylwia, showed the same to also ring true in Poland. In this paper, I depart from these rape trials to discuss Vance’s conclusion in relation to Poland. Does “proper” gendered behavior still play a central role, or is rape somehow perceived differently, perhaps in a feminist manner, as a part of violence and a way to control women? I analyze the legal and sexological understandings of gender, sexuality, and violence that led to how the victims were treated in court. I inquire if Vance’s diagnosis is still up to date and point to changes in expert discourse that have led to the improvement of victims’ situations in court. I argue that since the 1990s, Polish feminists played a critical role in changing both the expert understanding of sexual violence and court practices.

This article centers on expert knowledge of sexuality and gender that contributes to maintaining and naturalizing gender violence (Menjívar 2008: 127).⁵ Its focus also trains on the transfer of feminist knowledge and its influence on the mainstream expert knowledge of sexuality. I assume that expert knowledge is the result of interactions between experts (like for instance physicians, or lawyers) and other individuals and groups (such as activists) within different cultural, economic and social settings (Oosterhuis 2000; Terry 1999). I examine the role of feminists therein: how is feminist knowledge transferred and how does it contribute to the formation of expert knowledge? As María Bustelo, Lucy Ferguson and Maxime Forest have suggested, the transfer of feminist knowledge is an “inherently political, dynamic, and contested” process aimed at “a transformation in gendered power relations for more equal societies, workplaces, policies, and communities” (2016: 3). Bustelo, Ferguson and Forest focus on exposure in the media, governmental and non-governmental organizations as well as policy and advisory work. My research points to yet another dimension of feminist knowledge transfer, namely to informal activities, based not on institutionalized transfers like training but on personal contacts between feminists and not-feminist experts involved in the production of rape discourse.

Ethnographic and Archival Research

This paper is based on ethnographic and archival research. Archival research includes: the analysis of sexological, criminological and feminist publications (both scholarly and popular) on sexual violence (1965–2018); the analysis of Supreme Court and courts of appeals judgments; the analysis of court cases (30 district court cases from 1981–2009; in the Polish judiciary system, district courts deal with more serious crimes, which in the case of rape means gang rapes and particularly cruel rapes). I was granted access to these court files in accordance with the Polish Act on Personal Data Protection, in force when I conducted my research. Its provisions oblige me to keep the anonymity of people involved in court trials. Therefore, I do not provide the locations of the courts and change some minor details that could lead to their identification.

Ethnographic research includes participant observation conducted between 2008 and 2015 during classes for future expert witnesses (physicians and psychologists who would like to serve as court experts), counselors and educators, expert conferences as well as more informal spaces where sexual violence is discussed. I also conducted 35 interviews with experts: feminists, psychologists and sexologists serving as expert witnesses in courts and/or counselors helping victims and sex educators. Research was conducted in major Polish cities.

In my research I was interested in heterosexual rape, in which the woman is the victim. On the methodological level, I followed the rules of feminist methodology, hoping that my research will not only describe change, but also bring change by describing effective feminist strategies (Reinharz 1992).

Rape in Poland: Legal Regulations, Definitions and Statistics

The contemporary legal understanding of rape in Polish law remained unchanged since 1932 until recently, and dated back to the enactment of the first penal code following the re-establishment of the Polish state after World War I. Its creators envisioned Polish law as modern and liberal contrasting with earlier foreign (especially Russian) legal regulation imposed on Poles. The 1932 code was relatively progressive considering the general values of the time. Although it placed rape in the section entitled “lasciviousness” (nierząd) and described it as forcing to engage in a somewhat vague “lascivious act” (czyn nierządny), the 1932 code defined rape regardless of the relationship of the rapist to the victim (in this way it penalized marital rape, as well as rape of a prostitute)⁶ or their gender (what meant that men could be victims and that rape could be same-sex; see Płatek 2010: 361). Furthermore, the physical act of rape was very broad in the code’s understanding: it was not limited, like in many other European countries (see, for instance, Smith 2018 on the UK), to vaginal intercourse,⁷ as “lascivious act” covered all sorts of sexual activity (Leszczyński 1973: 40). At the same time, the code also stated that: “The prosecution shall take place on motion of the injured person” (Lemkin & McDermontt 1939: 65). Since 1932, two major penal code reforms were enacted in Poland, in 1969 and 1997, but the broad understating of rape remained unchanged. Also unchanged until 2014 was the prosecution of rape on the victim’s motion only. In 1969, a few years before Brownmiller published her famous book in the United States (1975), the rape article was moved from the lasciviousness section to crimes against freedom, but the old-fashioned term “lascivious act” was still used. Only in 1997 was the term “lascivious act” replaced with “sexual act” (obcowanie płciowe).⁸ According to article 197 of the 1997 penal code, rape is understood as an offence against “sexual freedom”, with a maximum penalty of 12 years imprisonment (15 years if the victim is younger than 15 years old).

Progressive law does not necessarily translate into analogous cultural and social practices. In Poland, rape is highly stigmatized and often perceived to result from women’s provocative behavior. Victims rarely report to the police or press charges. Women’s centers providing help to victims of sexual violence estimate that around 80–90 percent of rapes remain unreported (Piotrowska & Synakiewicz 2011). According to official statistics, since the late 1960s around 1,200–2,000 rapes occur annually (Leszczyński 1973: 187–188; Filar 2010: 351), with 1,354 in 2019.⁹ This makes Poland, a country of 38 million inhabitants, one where sexual violence is negligible as a social problem. Before the late 1960s, the official number of rapes was even lower: for instance, around 200 rapes annually were alleged to take place in the 1950s, and 600 in the mid-1960s (Leszczyński 1973: 187–188). The 2014 European Union Agency for Fundamental Rights’ report also found Poland to have a rather low prevalence of “physical and/or sexual violence”¹⁰ – 19 percent of women were subjected to it, while the European average was 33 percent (2014: 28–29). The authors of the report suggested, however, that “victimisation rates, as established through survey research, reflect the extent to which it is socially acceptable to talk openly about violence – and, by extension, to talk about it in a survey” (2014: 31). Recently, in response to this finding, the Foundation for Equality and Emancipation STER conducted a study that took on a different methodological approach: it formulated questions in a way that allowed women to break the taboo of sexual violence, by asking about specific situations, instead of asking straightforwardly, “have you been raped?”. In addition, the interviewers went through special training drawing on feminist methodology on how to conduct interviews dealing with such a sensitive topic (Grabowska & Rawłuszko 2017: 11–12). In this study, 22 percent of women reported having been raped, 75 percent of them more than once. 23 percent had experienced attempted rape (2017: 15–16), 62 percent reported that they had experienced some kind of sexual activity against their will (2017: 8). Juxtaposed with official statistical data, these numbers not only point to the high prevalence of rape in Poland, but also to women’s reluctance to report. It is easier to understand this reluctance when it is placed in the context of the expert discourse of sexuality.

The Art of “Female Diplomacy”: The Construction of Gender and Rape in Expert Discourses of Late State Socialism

In state socialist Poland debates about sexual violence started in the late 1960s (e.g., Bereżnicki 1972). Although the 1969 penal code defined rape as a crime against freedom (not a sexual crime) and the Polish Supreme Court ruled in 1972 that the victim’s behavior before rape (for instance “recklessness” and “provocation”) should not be taken into consideration, most legal scholars in the 1970s and 1980s seemed to disagree with the Supreme Court and with the non-sexual definition of rape expressed in the penal code (see, e.g., Bieńkowska 1984). Literature on rape from the era focused on the victim; her gendered behavior and her morality were central to the analysis put forward by the majority of legal scholars. The cases against Iza, Ula and Sylwia’s rapists draw heavily on expert literature from the era. The manual Zgwałcenia (Rapes), written by a team of two lawyers and a forensic medicine specialist, Tadeusz Hanausek, Zdzisław Marek and Jan Widacki (1976), represents one important example. The authors argue that rape is frequently provoked by the victims. They write: “We understand the term provocation broadly. Mostly, we refer to situations, in which the victim purposefully induces in the offenders the impression that she agrees to have intercourse” (1976: 64).

Seemingly, this has nothing to do with Iza, who was dragged into a car while walking on the street. Yet in the chapter on victims, the authors discuss other dimensions of provocation and factors that make certain women especially vulnerable to rape because of their behavior and lack of moral character. They analyze 35 cases of young, single victims and they divide these women into three groups. The first group includes decent women who were randomly attacked, did not provoke and strongly resisted. But this kind of rape hardly ever takes place, the authors argue. The victims of most rapes are women from the two other groups. The second group is girls younger than 18-years-old, who never had any sexual experiences, but, according to the authors, “seem loose”. Their own behavior contributed to the crime, since they paid late night visits to men in their houses, “walked at night in desolate places”, allowed men to buy them drinks and talked about sex. The third group consists of young women who behaved provocatively and were considered “loose”; some of them knew the offender and had sex with him in the past. Many of them had the common background of divorced parents. Some of them already had multiple sexual experiences. The authors give examples of these “experiences”: sex with the father or the stepfather, prostitution, and sex with peers. In one case, they note that in the past, the victim had also been a victim of incest, but usually their narrations sound like this: “She started her sex life with her father at the age of 13.” Or: “The 14-year-old victim of gang rape initiated her sex life far before the event in question, with her mother’s boyfriend” (1976: 19). The authors make no mention of the fact that sex with a minor is a crime. Yet they emphasize that the victims are demoralized. They conclude that early sexual experience is an important risk factor, just like in the case of Iza. They write:

Such experience is in fact symptomatic of a certain moral stance and of a girl’s character. Perpetrators, especially underage, explain their behavior by pointing to the girl’s conduct; they are convinced that they did nothing wrong. In their understanding, forcing such a girl to have intercourse is no crime. The reputation that the victim holds among her peers swells in its significance with time and becomes the fundamental indicator of predestination. … The analysis of victims’ character, demeanor, and behavior might bring important insight to the evaluation of the phenomenon of rape as a whole. (Hanausek, Marek & Widacki 1976: 25)

To assess girls’ morality, Hanausek, Marek and Widacki give some instruction to expert witnesses and forensic medicine specialists: while conducting their examinations, they should interrogate victims about their sex lives as well as on the details of their behavior, dress and so on before the rape (1976: 104).

During the trial, Iza testified that she said “no” to sex, but her statement was completely ignored. In Hanausek, Marek and Widacki’s framework, as a sexually experienced girl, she in fact had no right to say “no”. They also argue that in some cases, women’s resistance might lead to misunderstandings and could cause sexual arousal. Their thinking is deeply rooted in seemingly progressive sexological literature of the time.

The sexologist Zbigniew Lew-Starowicz, who continues to be one of the most popular sex experts in Poland (for more, see e.g. Kościańska 2014, 2016), ran sex columns in several Polish magazines in the 1970s and 1980s. In his texts from the era, he affirms sexuality, also female sexuality, and stresses that a satisfying sexual life is the key to self-realization and a successful marital life. In his writing on sexual violence, however, he points to women’s responsibility for male violent behavior. In one of his columns, he writes, for instance:

Specialists in sexual assault (victimologists) often emphasize that some rapes result from the fact that women cross the threshold of male self-restraint. The border between what is permitted and what is not permitted might not be treated seriously. It is known that often “no” means “yes”. This is the well-known language of coquetry. The fact that we have a certain level of sensibility and place the frontier of flirt at a certain point does not mean that the other person feels the same, or that they have the same level of feelings. In cases of rape that resulted from this kind of situation, behaviors on the woman’s part, prior to rape, most often, are:

• leading the man to the extreme and sudden refusal of further engagement in this “harmless play”

• pretending to be sexually experienced, to be a woman of enormous sexual capacity, what prompts the man’s imagination and hopes

• kissing and petting, that is partial ars amandi

• flirting combined with promises for the future. The scope of this future might be differently understood by both parties involved. (Lew-Starowicz 1978: 30)

Lew-Starowicz discusses the issue of provocation on many other occasions, talking about the importance of “conscious and unconscious provocation” and about “instances of gross recklessness (meeting up for a late-night date at the man’s apartment, going out for a walk in the middle of the night, drinking alcohol)”. He stresses the role of girls’ behavior in rape prevention; in his opinion, women should avoid “provoking situations” (Lew-Starowicz 1985: 22). In the article that appeared in Zwierciadło (The Mirror), a magazine published by the League of Polish Women,¹¹ Lew-Starowicz writes that women’s behaviors “push their partners beyond the limits of self-restraint” (emphasis added). He estimates that: “I don’t want to deny the existence of rape as a brutal, violent act, but I am convinced that around 30 percent of rapes are in this or another way provoked” (Lew-Starowicz 1982: 12).

The most elaborate discussion on women’s responsibility for rape can be found in Sztuka kochania (The Art of Love) written by sexologist and gynecologist Michalina Wisłocka. The book is the most popular Polish sex manual. First published in 1978, it had several editions. It is estimated that the book sold 7 million copies. Even if this number is exaggerated, the fact remains that the book was highly influential. It was also called revolutionary. In many ways, in late state socialist Poland, Wisłocka was a progressive author aiming at the liberation of sex. She discussed issues such as female orgasms, sexual techniques, and contraception (Kościańska 2014).

Yet her book was also very much about gender relations. Wisłocka’s understanding of femininity and masculinity could be traced back to Polish counseling literature from the nineteenth century. Within this framework, the woman was responsible for her household, her family, her husband, his feelings toward her as well as for wielding control over his sexuality. He was the one with robust sexual capacities, while her duty was to restrain him and to inhibit his desires (Urbanek 2004). Wisłocka reiterated this thinking and reinforced it with scientific arguments. She maintained, for instance, that male desires were related to male hormonal functioning (Wisłocka 1978: 31–32). The sexologist claimed that women should control men’s desires while caring for them, by for instance: making them food, and if necessary, sending them to the doctor. At the same time, the woman had to act indirectly, she could not be explicit about her expectations toward her husband; she could only suggest them to her man. This applied to any marriage-related issues, especially to sex. In following Wisłocka, women should never initiate sex, be explicit about their sexual needs, or even say “yes”. In this model there is no room for open communication about sex or about any other matter. Thus, Wisłocka represents a very specific understanding of women’s agency: women control and influence what is going on in their marriage, family, and household, but they do it from behind the scenes. The author calls it “female diplomacy” (Wisłocka 1978: 40) and gives women practical tips on how to achieve their goals without articulating them.

Wisłocka anticipated that her approach would be decried as regressive to gender equality and women’s emancipation (official policies under socialism). But in her opinion, there just is no equality in sexual relations.

You might shout with outrage: what about equal rights? … We should accept the major psychosexual differences between genders … Our grandmothers claimed that man is a hunter, and woman is a bird which he hunts. The more difficult to hunt, the more precious. Girls, don’t deprive your boys of the pleasure of hunting a precious prey. (Wisłocka 1978: 152)

Hence, for Wisłocka, sexual liberation did not go hand in hand with women’s emancipation.¹² Her definitions of gender roles become even more problematic when she writes about sexual violence. As mentioned above, in her view, men, especially young men, are not able to restrain their sexuality. This is the duty of women, even in such extreme cases as rape: “While watching film accounts of gang rape, I was wondering if in many cases ‘victims’ of individual or gang rape are not in the same way guilty of what happened as the rapists, and in the end only more injured” (1978: 41). Wisłocka linked this problem to new gender models, within which young women could enjoy independence:

During the times of our mothers and grandmothers it was impossible for a young girl to go with a man she had only recently met for a walk, to a restaurant or to a desolate place. The notorious chaperones of old times… were meant to prevent unexpected physical aggression on the man’s part. (1978: 41)

Wisłocka suggests a solution: the popularization of scientific knowledge regarding sex difference and young men’s inability to restrain their sexuality:

The boy cannot control his level of sexual arousal, but the girl should know that every situation mentioned above is for him an explicit invitation to “rape”, and if she does not want to be raped, she should not allow for the opportunity. (1978: 41–42)

The sexologist concludes: “The ordinary recklessness of girls puts boys, carried away by sexual arousal… at risk of being compromised, subject to legal punishment and frequent derailment from the path of proper development already in their early years”¹³ (1978: 42).

In the 1970s and the 1980s, both lawyers and sexologists argued that it was women’s responsibility to wield control over sex. In sexology, pleasure and violence were intertwined: in order to achieve sexual and marital fulfillment, women had to act from behind the scenes and could never be straightforward in their relations with men. Women could only use female diplomacy, which, when it came to sex, translated into arranging the situation such that she was being conquered and “no” meant “yes”. In particular, lawyers would add, if she was sexually experienced, then her “no” was always read as a “yes”.

Within this understanding of sexuality, gender and violence presented by major sexologists and legal scholars, Iza and Sylwia had no chance for justice in court. Iza was sexually experienced, therefore her “no” was read as a “yes”, while Sylwia had agreed to go to the apartment of men she had just met. They both transgressed “proper” gender roles. Only offenders in the case of sexually inexperienced Ula were found guilty, although they and their lawyers tried hard to prove that Ula had been the one to initiate sex. But her appropriate gender behavior made it impossible. During my archival research, I found only one case in which nobody attempted to blame the victim. In the fall of 1982, a 47-year-old mother was on her way home with groceries when she was attacked by a 24-year-old schizophrenic man, who never had sex with a woman before. The offender knocked the woman over and said: “you slut, I will rape you.” The woman resisted and screamed. Her son, who was at home, heard her calling for help and came. The woman and her son beat the offender so hard that he ended up in the hospital. In a surprisingly fast trial, he was found guilty of attacking a decent mother and wife. Nobody had any doubts as to his guilt.

“Sexual violence is a part of violence”: The New Experts and their Perception of Rape

Starting in the early 1990s, right after the fall of state socialism, a new group of experts gained voice in the rape debate: feminists.¹⁴ They worked on various grounds. Newly established non-governmental organizations such as the Center for Women’s Rights, the Society for Crisis Intervention, the Polish Feminist Organization, the Federation for Women and Family Planning, National Women’s Information Center “Ośka” conducted research, prepared reports, offered psychological and legal advice, ran helplines and even a shelter for victims. In 1995, the Polish Nationwide Emergency Service for Victims of Domestic Violence “Blue Line” was established and offered help to victims of domestic violence, including sexual violence. The assumption on which this organization was founded was to conceive of sexual violence as a part of domestic violence, which was often also thought to come about as the result of women’s provocation or some other form of improper behavior (Marcus 2009). The “Feminoteka” Foundation has run a helpline for victims and organized social campaigns since it was established in 2001. Since 2007, the Foundation Autonomy has been involved in anti-violence public actions. Finally, the “Towards the Girls” Association, established in 2006, has focused on preventing teenage sexual violence.¹⁵

Experts from these women’s organizations approached sexual violence in a completely new way. Informed by their experiences while working with victims and drawing on international feminist literature (both classical like Brownmiller 1975 and more recent such as Friedman & Valenti 2008),¹⁶ they mostly focused on three interrelated issues: stressing victims’ suffering, presenting rape as violence, as well as redefining female sexuality vis-à-vis concepts of autonomy and responsibility.¹⁷

Firstly, feminists stressed various dimensions of victims’ suffering. Just like Brison (2003), they argued that rape was deeply damaging on a psychological level. Furthermore, they stressed that rape was only the beginning of victims’ suffering: victims were poorly treated in contacts with police officers, forensic specialists and lawyers (Piotrowska & Synakiewicz 2011; Kościańska 2014). They had to testify numerous times (at the police station, at the prosecutor’s office and later in the courtroom), and were exposed to questions, just like those suggested by Hanausek, Marek and Widacki.¹⁸ One of the new experts who participated in my research said in an interview:

the more we enter into the intimate, the more difficult it is to speak; the court trial is then very brutal, it really requires a lot of self-determination and I believe it is impossible to go through it without psychological support … Women often tell me that they felt as if they were being tried, as if they somehow contributed to what happed … the majority of judges tend to ask questions that imply this, like for instance: what led to this situation, what do you think?

She concluded:

Once five of us did a project together. Sharp-witted, we were all used to talking back, each one of us was well-educated, for years in all those women’s organizations… It turned out… that two of us in this group of five had been raped… So we asked ourselves, would we press charges today if something like that happened to us, and all of us said “no”.

But she stressed at the same time that punishing the offender was a crucial element of victims’ therapy. As a result of such recognitions, feminists did not discourage women from reporting rapes, but advocated that rape victims should be interrogated only once, outside the courtroom and police officers as well as forensic specialists should be trained how to deal with rape victims, in order not to deepen their suffering.

Secondly, the new experts argued that rape was not a sexual act conducted by somebody incapable of restraining his sex drive, but that it was an act of violence and control over the victim. As a 35-year-old feminist lawyer said during an interview: “sexual violence is a part of violence … if there is violence in the family or in the relationship, usually there is also sexual violence there.” A 57-year-old anti-violence coach explained:

the assumption that girls provoke sexual violence and that they are responsible for male sexual behavior is based on the belief that sexual violence is rooted in sexual arousal. There is no awareness that this is all about power relations and a hierarchy, in which boys are more important than girls. Sexual violence maintains that hierarchy.

Thirdly, feminists developed arguments against the conception that women are responsible for male sexuality. Activists, with whom I spoke, stressed that the belief in women’s responsibility for male sexuality, as presented in sexological and legal works of the 1970s and 1980s, was deeply rooted among police officers, physicians, and lawyers in the 1990s and the 2000s. One of them described a typical situation from the court room:

There are these very deeply entrenched beliefs about consent acquiescence – what means giving the go-ahead, and what does not. Does a series of behaviors, non-verbal communication, elements of dress, or the context allow for judging that a woman agrees to intercourse? In such situations, it is very difficult to prove that rape took place.

In reply to these situations, feminist legal experts drew on North American feminist thinking about sexual violence (Friedman & Valenti 2008) and argued for an understanding of rape as the violation of sexual autonomy (Płatek 2010: 368). Furthermore, they argued for changing the law so that rape would be prosecuted ex officio (Płatek 2010). Since the 1930s, the proponents of prosecution on the victim’s motion claim that rape is both a traumatic and stigmatizing experience for the victim, therefore, that she should have a choice whether to press charges or not (more Kościańska 2014). This understanding of choice mixes agency with responsibility by alleging that it is in a woman’s power to decide whether to prosecute or not, and in effect that she, not the state or society, has to be responsible for punishing the offender (Płatek 2010). The weight of responsibility becomes even greater, when the offender, his family and friends pressure the victim not to press charges, and not to testify (what is not uncommon, as I learned from reading court files). Activists with whom I spoke stressed that sometimes, even police officers pressured women not to press charges because they either did not want to be bothered, or because they assumed that the victim must have provoked the rape and that the offender was not guilty.

Against “the male limits of self-restraint”: Feminism and the Shift of Expert Knowledge

All three major feminist demands were forged and advocated within the everyday activities of activists, therapists, and lawyers. These new experts made an effort to redefine the understanding of rape in public discourse and in the courtroom. They worked both formally and informally. For example, since the early 1990s, feminist milieus conducted research about sexual violence and tried to publicize their results in the media. The first¹⁹ research of this sort was done by Urszula Masny-Sokołowska, a Polish-American sociologist, who conducted a series of interviews with Polish judges asking them about their understanding of rape. Her interlocutors perceived rape as a predominantly sexual act (although at that time, the Polish penal code defined rape as a crime against freedom). One of them told her for instance that “rape is an act of sexual relief” (Masny-Sokołowska 1993: 27). When she confronted the judge saying that the legal definition was different, he seemed to be genuinely surprised. Another judge told Masny-Sokołowska that there was nothing wrong in asking the victim during trial how she was dressed and if she was a virgin before the rape. Masny-Sokołowska’s research got press coverage in many cases combined with reportages showing how victims were treated by lawyers. For example, the journalist Karolina Cwynar wrote an article about a 13-year-old who was gang-raped by five boys. Her mother pressed charges. The prosecutor insisted that the victim be examined by a psychologist. As a result of this examination, it was decided that “the rape resulted from the provocative behavior on the part of the girl. The boys’ reaction was described as perfectly normal” (Cwynar 1993). Cwynar quoted extensively from Masny-Sokołowska’s research to argue that the problem was systemic; it was not just this one prosecutor. The National Women’s Information Center “Ośka” sent an open letter to the Polish Prime Minister Hanna Suchocka (a lawyer by education) drawing her attention to judges’ incompetence. Experts from women’s organizations became visible in the Polish media talking about the suffering of victims and pushing for the understanding of rape as violence.

Feminists also worked on the informal level to influence old experts, mostly sexologists and lawyers who not only, as I presented above, wrote extensively on the issue and served as expert witnesses, but also organized trainings for professionals working on sexuality. In the early 1990s, the old and the new experts had many opportunities to meet, for example within the Warsaw or Krakow intelligentsia milieus,²⁰ and for instance, thanks to the Polish Planned Parenthood Association networks. During socialism, most sexologists were members of the Association,²¹ and the Association supported newly established feminist organizations in their political struggle to maintain the 1956 liberal abortion law.²² In the 1990s, feminists also used those networks to convey the message about sexual violence (Grabowska 2012). Not only did they invite sexologists to conferences (for instance to the conference during which Masny-Sokołowska’s research was presented in 1993), but also talked with them informally. A feminist involved in those actions told me:

We did our best to start a collaboration with various milieus, for instance with women professionally dealing with sexuality, to make them think in a feminist way. These women didn’t have any feminist insight, but they had an extended knowledge, for instance medical. They often thought about the social settings of sexuality but always through a male-oriented normative framework. We wanted them to see it in a broader perspective.

Those women “dealing with sexuality” were sexologists, psychologists, educators or police officers. The results of this activity became visible in the Polish media. In the 1990s and onwards, increasingly more often experts not directly associated with feminism spoke about sexual violence in a feminist way. For instance, a female psychologist and an expert witness explained in an interview for a daily newspaper: “In the case of rape the victim is always innocent. Women can wear what they want, walk where they want. For the rapist, a woman’s look does not matter” (Głębocka 2000). A female sexologist argued in the media against the idea that women liked to be conquered (Berezowski 1997). A female police officer explained to a journalist how she saw rape prevention: “We should tell women: if you don’t feel like having sex, you don’t have to go to bed with your husband or your lover” (Domeracka 2002). Another female officer stated: “It is not true that women provoke rapists” (Gadek 2000).

The central problem that the new experts faced, which in fact intersected all three elements of the feminist understanding of rape, was the concept of women’s responsibility for male sexuality explicit in the sexological writings of the 1970s and 1980s. A feminist active in the early 1990s told me about the informal conversations she had had with sexologists, which targeted Lew-Starowicz’s concept of “the male limits of self-restraint”:

We particularly fought against the concept of the limits of male self-restraint; sexologists often argued that there is a certain border and after crossing it nothing could be done. This thinking is very dangerous for women. And the concept of provocation that translates into women’s responsibility in the field of sexuality. We tried to explain how dangerous this thinking is. A lot of us had the experience of a situation which was sexually extreme when suddenly the parents come home. In such a situation, there isn’t any border of self-restraint, the lover just hides in the closet.

In their conversations with the old experts, feminists stressed that women had the right to say “no” at any moment of the sexual situation, and that “no” meant “no”. They stressed that these issues were particularly important in the courtroom. Feminist efforts have really made a difference. For instance, Hanausek, co-author of Zgwałcenia, slightly modified his views presented in the 1976 book during a press interview in 1995. Differently than in the book, he spoke about men: “it is common among men to believe that they are incredibly attractive and that there is no woman who can resist them.” Next he came back to the issue of provocation: “I wouldn’t say that women are partly guilty of rape. But in many cases there is no doubt that the victim in some way contributed to what happened” (Lubaś-Harny 1995). Although he still blamed the victim to a certain extent, in comparison to his highly sexist writing about sexually experienced 14-year-old girls, his statements were less harmful.

The views of other old experts evolved more considerably. Lew-Starowicz, who in the 1980s wrote about the male limits of self-restraint, was asked by a journalist in 2011, what he thought about women saying “no”. Lew-Starowicz explained:

I agree with feminists that a woman has the right to say “no” on any level of her sexual contact with a man. But many men still believe that after crossing certain borders women do not have this right anymore. (Lew-Starowicz 2011: 56–57)

This quote serves to depict the evolution of Lew-Starowicz’s thinking: not only did he agree with the feminists, but he was also explicit that his own concept of the limit of male self-restraint was somewhat old-fashioned. The feminist fight that had started in the early 1990s against this concept was finally successful.

The influence of feminists was also visible in trainings for sex experts (including expert witnesses, psychologists, forensic specialists, and police officers) at a postgraduate center for medical education, during which I conducted participant observation in 2008–2009 and in 2011–2012. In 2008–2009, lectures about rape were conducted by a senior male sexologist and his young female assistant. Although they portrayed sexual violence as a brutal source of women’s suffering, the classes were not well structured and jokes about handsome rapists seemed to be written into the syllabus. The general impression was that sexual violence was not really something serious. Three years later, the class about rape was taken over by the female assistant, who started her lecture from the declaration: “I am not a feminist, but when it comes to rape, I do agree with feminists.” In her lecture, she gave an in-depth presentation of the feminist understanding of rape, as portrayed above. Thanks to my ethnographic work in the sexological milieu, I know that the main source of her knowledge is her friend who happens to be a major Polish feminist sex educator. Here again, informal feminist activities have proven successful.²³

Finally, this general change in discourse brought about changes in the courtroom. In the case files as well as the Supreme Court and appeals court decisions I read as part of my archival research, elements of the feminist understanding of rape were clearly distinguishable. For instance: in 1993, Ania and Magda were waiting for a bus. A car stopped with a group of young men inside, one of them being Ania’s boyfriend. They offered the girls a ride home, but took them to the forest and gang-raped them instead. Two of the boys were found guilty, the third one disappeared and was arrested by the police ten years later. During his trial, Ania, who had been in therapy for years due to the rape, could not testify: she cried and was very stressed. Her behavior was not interpreted as being related to some psychological dysfunction that would make her testimony unreliable (like in the case of Iza), but as proof of her suffering, which ultimately contributed to the court’s decision to punish the offender.

Furthermore, although in 1997 rape became a sexual crime again, or more precisely a crime against sexual freedom, the sexual arousal component became less important in court. Just like in this ruling of the Supreme Court from 2001:

The perpetrator’s aim to satisfy his sexual drive does not constitute the crime of rape. In order to admit that the perpetrator exhausted the definition of this crime through his deed, it is not the perpetrator’s aim that is of importance, but whether or not in his behavior … he violated the victim’s sexual freedom.

Moreover, judges often stress that any form of resistance is sufficient to rule that sex was not consensual. The victim does not need to bite the offender to be sure that the court will see her resistance. The appeals court in Katowice ruled in 2008: “Any visible objection on the victim’s part indicating the lack of will to engage in intercourse is sufficient to consider that the crime of rape took place.” Being out after dark is also no longer perceived as an invitation to sex. In June 2000, 14-year-old Zuzia went with two men she had just met to a park. They raped her and took her phone. First, the court ruled that they were guilty of stealing but that the sex was consensual, especially since she had had sex before. The court files show that one of the judges ruling in this trial did not agree with the ruling, and wrote a dissenting opinion that going to a park after dark does not imply agreeing to sex. After an appeal and a long trial, the offenders were found guilty in 2007. The court ruled: even if Zuzia’a behavior was reckless, it does not change the fact that the offenders were guilty of the crime. Here again the victim was under psychiatric care because of the rape, and could not testify. The court understood this to mean that rape is such a traumatic experience.

Finally, since January 2014, Poland has a new law: rape is prosecuted ex officio and victims are interrogated only once outside the courtroom with a psychologist present, if requested. While feminist recommendations were put into practice here, there were also other factors at play. This change in law was part of the legal reforms conducted within the process of Poland’s preparation to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence. While the Convention and legal changes related to it caused major controversies in Poland (Graff & Korolczuk 2017), the change of rape regulations was passed with no objections.

Conclusion

This is unfortunately not to say that rape discourse has completely transformed since the 1970s and that the situation of victims has totally improved. Indictments such as those from the 1970s about provocation, reckless behavior, or bad reputation on the victim’s part, remain a problem. While other explanations clearly exist, as far as expert discourse is concerned, feminist thought strongly influenced disciplines such as law, sexology and psychology. This is a very important achievement of the Polish feminist movement, which has led directly to improving the lives of victims. Besides the fact that they are treated better than in the 1970s and the 1980s, the 2014 law protects them from brutal questioning and meeting their offenders in court. Their sexual history and their transgressions of “proper” gender roles are no longer relevant, or at least less relevant than in the past. Vance’s 1984 introduction to Pleasure and Danger quoted at the beginning of this paper was translated into Polish in 2000. By this year, her diagnosis had already become less pertinent than it was in 1984. There is still a lot to be done, there are still cases almost as scandalous as those from the 1980s, but increasingly more often feminist language enters the expert discourse of law and sexology.

Expert discourses seem to be crucial here, and sometimes even more important than legal regulations. In the 1970s and 1980s, Polish law did not define rape as a sexual crime and the ruling of the 1972 Supreme Court stated that women’s behavior prior to rape does not diminish the rapists’ guilt. But experts, both legal and sexological, associated rape with sex, discussed in the context of “the male limits of self-restraint”. In 1997, rape was re-defined as sexual in the penal code, but courts partly ceased to perceive it that way, stressing the victim’s freedom rather than giving consideration to the offender’s arousal.

Research on feminist intervention in postsocialist contexts often focuses on international knowledge transfers (Johnson 2009). The case of rape discourse in Poland shows that changes were possible also thanks to local women’s activities, including the construction of new definitions of rape, and successful, formal and informal, knowledge transfers on the local level, and thanks to progressive pre-war and socialist legal regulations.

The Polish case shows that progressive law is not enough to protect victims and to guarantee them justice in court. There is a need for a strong feminist voice that can change cultural settings and expert discourses. This is what happed in Poland after socialism through the process of formal and informal feminist knowledge transfers: thanks to the democratization of the public sphere, women’s perspectives became more visible. Although in many ways the end of socialism denoted a backlash to women’s rights in the country (the 1993 anti-abortion law is the most obvious example), changes in the perception of sexual violence have been positive. Hopefully, the recent backlash against women’s rights that we observe not only in Poland (Graff & Korolczuk 2017), but also globally, will not destroy feminist achievements in the field of sexual violence.

Agnieszka Kościańska, Ph.D., is an associate professor at the Department of Ethnology and Cultural Anthropology, University of Warsaw. She is the author and (co)editor of several volumes on gender, sexuality, and sexology, including the monographs Gender, Pleasure, and Violence: The Construction of Expert Knowledge of Sexuality in Poland (forthcoming with Indiana University Press; Polish version 2014, University of Warsaw Press) and To See a Moose: The History of Polish Sex Education from the First Class to the Internet (forthcoming with Berghahn Books; Polish version 2017, Czarne).