review of central and east european law 45 (2020) 126-160 brill.com/rela Negligent Rape in Croatian Criminal Law: Was Legal Reform Necessary? Marin Mrčela Vice-President of the Supreme Court of Croatia
[email protected] Igor Vuletić Faculty of Law, University of Osijek, Osijek, Croatia
[email protected] Goran Livazović Faculty of Humanities and Social Sciences, University of Osijek, Osijek, Croatia
[email protected] Abstract This paper discusses the issue of negligent rape and liability for unreasonable belief in the victim`s consent in the context of Croatian criminal law. Modern rape law presents many challenges to both lawmakers and judges, with criminalizing negligence being only one of those challenges. This became more interesting in Croatia after amend- ments to the Criminal Code in 2011 (in effect since 2013), that criminalized unreason- able mistake of facts in the crime of rape. Croatian rape law has undergone significant changes related to these amendments. However, this paper focuses only on the aspect of unreasonable mistake of consent, this being both the most controversial and of great practical importance. The first section describes the elements of rape according to the Croatian Criminal Code along with an interpretation of those elements in the jurisprudence of the Croatian Supreme Court. Special attention is placed on the prob- lem of mens rea and (un)reasonable belief in consent. The discussion also identifies the reasons for reform and the impact of the Sexual Offences Act of England and Wales (2003), which served as a model for Croatian legislators. The second section analyzes the results of research conducted by Croatian judges on the relevant status of the mis- take of facts defense, as well as the importance of the victim`s resistance in terms of achieving a conviction, with special regard to the rate of rape convictions in Croatian © koninklijke brill nv, leiden, 2020 | doi:10.1163/15730352-bja10002 <UN> Negligent Rape in Croatian Criminal Law 127 law.