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1

Wolność słowa — ujęcie prawnokarne

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Płatek M.
Nowa kodyfikacja prawa karnego
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2017
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vol. 43
451-464
EN
The text refers to relations between freedom of speech and criminal law. It examines the ratio behind limiting the freedom of expression when personal psychological harm might occur. The inspiration is drawn from Professor Tomasz Kaczmarek’s works on the axiology of criminal law. The ratio of criminal law and ratio of democratic legal state is tested within freedom of speech. Article 196 of criminal law, among the others, is critically reviewed as far as its rationale for being included in the criminal law vis-à-vis Article 212 of criminal law and constitutional provisions confirming freedom of speech as the human right.
2
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Karnoprawne modele przeciwdziałania przemocy w rodzinie

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Płatek M.
Archiwum Kryminologii
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2008
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issue XXIX-XXX
601-616
3
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Prawo jako jeden z mechanizmów wzrostu przestępczości

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Płatek M.
Archiwum Kryminologii
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1985
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issue XII
37-45
4
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Symulakry wymiaru sprawiedliwości wobec nieletnich w Polsce

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Płatek M.
Archiwum Kryminologii
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2006
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issue XXVIII
281-297
EN
The article relates to the analysis of responses to violence in the everyday life of a democratic society. The evolution of the juvenile criminal justice system serves here as a litmus paper of the today's neo-liberal European countries. The article critically evaluates the arguments of F. Bailleau and Y. Cartuyvels who present the development of contemporary juvenile justice in terms of neo-liberalism. They claim it is the main reason to answer the question of how long the child should be treated as a child? However, we are still left with the question of what to do with those young people who act like offenders who demand more severe punishment. In her paper, the author presents the possible model of social control that responds to violence using the F.H. McClintoc's model adopted and modified in the model presented by D. Black in Behaviour of Law. The author argues that selecting a criminal model from among different possible models of social control might be an influence of the neo-liberal policy, yet it is not necessary. The examination of different models currently present in the society should help to answer the question of whether the present policy results from the neo-liberal policy as F. Bailleau and Y. Cartuyvels suggest? Or is it rather due to what Zygmunt Bauman named as the penal effect of globalisation? The author examines how much of the present practice within the juvenile justice fits Jean Baudrillard's era of simulacra where we offlcially tend to fight crime and do good, but in practice, as Michel Foucault pointed long time ago, the goal is somewhat different and detached from both the perpetrator and the victim? The paper also looks at how accurate in this case the analysis of Pierre Bourdieu would be that we tend to accept the perceived reality as natural, for we do not have the proper procedure to see that other solutions are also possible? At the end the paper, the author suggests what elements should be included within juvenile justice system to free it of the simulacra syndrome.
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Rewizja poglądów na temat konfliktu jako własności. Przeszkody we wprowadzaniu procedur sprawiedliwości naprawczej i sposoby ich pokonywania z punktu widzenia polskiej praktyki prawnej

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Płatek M.
Archiwum Kryminologii
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2006
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issue XXVIII
267-279
EN
This paper concerns the road Poland is on to introduce restorative justice procedures within its criminal justice system. The author describes the difficulties Poland has already overcome and is still facing. In addition, the paper shows the possible dangers we are not willing to see yet. The restorative justice procedures are introduced in the name of victims. They are aimed at observing the victims' rights and interests within the criminal justice system. Restorative justice is also to bring back the conflicts to their owners. The new developments are aimed at achieving this goal. The author discusses the invisible aspects which, if not diagnosed, named and prevented in time, can steal again the conflict from those most involved in it. It was once stolen by lawyers, judges and prosecutors who officially acted for the victims' good and support. Today, an identical process is possible with mediator taking the lawyers place.
6
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Dwa razy Lombroso, czyli o skutkach różnic w podejściu kryminologii pozytywistycznej i kryminologii feministycznej

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Płatek M.
Archiwum Kryminologii
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2014
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issue XXXVI
31-73
EN
Dwa razy Lombroso [Twice Lombroso] considers differences in the diagnoses and conclusions pivotal to criminal law and to criminal and social policy by way of a specific example. It would seem that so long as we rely on an accepted research paradigm, we are equipped to verify not only the validity of a theory, but also the social consequences of explaining pathological behaviour and criminality in a particular way. The story of Saartjie “Sarah” Baartman illustrates how positivist and feminist methodologies in criminality result in very different views of reality. The latter forces us to consider issues that have so far been ignored in the criminological literature. The genesis and evolution of criminology has clearly contributed to the development and modernisation of criminal law theory. Discarding the theory of free will has forced theoreticians to confront social realities when considering the creation and application of the law. What has gone unnoticed, however, is that criminology has also helped justify the creation and application of special criminal law institutions from the outset. Racism, racist practices, and the exclusion of certain groups in order to show authority and justify curtailing liberties under the pretext of having to ensure safety and social order have all been vindicated and cloaked in academic respectability with the assistance of criminology. Nowadays, it is often tempting to think that there is such a thing as safety from birth or through osmosis. On the one hand, this sometimes justifies creating separate institutions with the word “criminology” in the name. On the other hand, under the pretext of treatment, therapy or eliminating threats, it can justify maintaining institutions that greatly contribute to the arbitrary exclusion of individuals who are instrumentally exploited or deemed troublesome in order to show strength or demonstrate political efficiency. The text does not attempt to create a dichotomy of good and bad criminology. It is not about demonstrating that positive criminology is archaic and feminist criminology up-to-the-minute. It is rather a scholarly reflection on knowledge standards and on the consequences and hazards that flow from recognising a given claim as scholarly. The text, then, is merely a reflection on what characterises the feminist approach to criminology and what this approach contributes to the discipline. It also attempts to look at the beginnings of the evolution of criminology from a feminist criminological perspective. By illustrating how the work of Lombroso can be examined, described and appraised in terms of positivist and feminist criminology, I try to show how different descriptions of the reality (pathology) of criminality can be arrived at depending on whether we study it on the basis of positivist criminology or whether we also approach the problem from a feminist perspective appropriate for criminology.
7
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Kryminologiczno-epistemologiczne i genderowe aspekty przestępstwa zgwałcenia

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Płatek M.
Archiwum Kryminologii
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2010
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issue XXXII
345-378
EN
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.
8
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Zgwałcenie. Gdy termin nabiera nowej treści. Pozorny brak zmian i jego skutki

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Płatek M.
Archiwum Kryminologii
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2018
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issue XL
263-325
EN
The Council of Europe Convention on preventing and combatting violence againstwomen and domestic violence (further: CETS210, Istanbul Convention, Anti-violenceConvention) became part of the Polish legal system on 1 August 2015. The IstanbulConvention incorporates a specific legal provision on rape, namely Art. 36 CETS210.It states that the Parties should take the necessary legislative or other measures toensure that the intentional conduct described in Art. 36 CETS210 is criminalised.Article 36.1a CETS210 states that rape takes place when engaging in non-consensualvaginal, anal or oral penetration of a sexual nature of the body of another person withany bodily part or object.Rape is respectively regulated in Art. 19 7 of the Polish Criminal Code 1997 (further,k.k.). However, the context of Art. 197 k.k. significantly differs from the wordingof Art. 36 CETS. Whereas Art. 36 CETS protects freedom, autonomy and sexualautonomy of the person, Art. 197 k.k. protects merely sexual freedom combined withprotecting the social customs. In order to establish the presence of rape, one needs toprove the presence of violence, psychological aggression and/or deception. Protectingsocial customs implies an additional burden because it allows evaluating the behaviourof the victim rather than the one of the perpetrator. The Istanbul Convention is orientedon eager elimination of violence against women and domestic violence. Therefore, itestablishes that the Parties should take the necessary measures to promote changesin the social and cultural patterns and behaviour of women and men with a view toeradicating prejudice, customs, traditions and all other practices which are based onthe idea of the inferiority of women or stereotyped roles for women and men (Art.12.1 CETS210). It is within this line that rape regulation should follow.The question that is tackled in this article is as follows: to what extent doesthe difference in the legal description of the act of “rape”, and the difference in protectedvalues by legal provision in Art. 36 CETS210 and in Art. 197 k.k. make an ontologicaland normative difference? Are they not possible to be reconciled? Or, is the meredifference in the words describing what “rape” not an obstacle to achieving the goalsexpected by Art. 36 CETS210?The problem is not an artificial one especially in view of the fact that the Polishlegislators did not amend the text of Art. 197 k.k. upon the ratification of CETS210. It would suggest that the Polish legislator was of the opinion that there is no definitedifference between Art. 36 CETS210 and Art. 197 k.k. The text examines what happen eswhen an old term acquires new meaning.Is Art. 197 k.k. despite the lack of amendments filling the value required by Art.36 CETS210? Or, is the sameness expected by the Polish legislator false? By demonstratingvital differences in the protected values and the action required establish ingthe presence of the rape, I call for amendments to fulfill the state legal obligations toobserve the Istanbul Convention.The article deals with the ontological difference in the legal concept behind the textof Art. 36 CETS210 and Art. 197 k.k. While Art. 197 k.k. is built on the concept of sexualfreedom, Art. 36 CETS is developed on the concept of sexual autonomy. I elaborateon that.The changes in the protected values incorporated in Art. 36 CETS210 lead toabandoning the concept of sexual freedom established in Art. 197 k.k. and adoptingthe concept of sexual autonomy. While the former concept of sexual freedom, asin Art. 197 k.k., uses violence, psychological aggression and/or deception to establishthe presence of rape, for sexual autonomy as defined in Art. 36 CETS210 the line iscrossed where the consent was not present. While sexual freedom limits freedom to torefusal, sexual autonomy demands the presence of consent. Not violence, aggressionor deception, but the lack of consents matters.The term and concept of sexual autonomy was first explored by the EuropeanCourt of Human Rights in the landmark European Court of Human Right (furtherECHR) judgment M.C. v. Bulgaria (No. 39272/98). The case is thoroughly analysedto further illuminate the difference between the two concepts behind the differentapproaches to defining “rape”.The article, however, starts with an in-depth introduction to the goal of the IstanbulConvention, which is to place the issue of rape in a proper perspective. Apart froma criminological analysis of the concept of rape, the article discusses the values protectedby, respectively, Art. 36 CETS210 and Art. 197 k.k. and compares the similarities andactual differences. A similar examination is related to the description of “rape” in Art.36 CETS and Art. 197 k.k. Last but not least, the subject is evaluated, taking the Polishcriminal dogmas into consideration.The conclusion of the examination leaves no room for assuming that Art. 197 k.k.fulfills the requirement stipulated by Art. 36 CETS210. It is, therefore necessary, toamend Art. 197 k.k.
9
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Kreowanie „groźnych, niebezpiecznych i złych”

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Płatek M.
Archiwum Kryminologii
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2019
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issue XLI/1
125-217
EN
This text analyses the effects of the demeaning construction of ‘beasts’ in the process of creating the Law of 22 November 2013 on dealing with psychotic persons endangering other people’s life, health, or sexual freedom – colloquially known as the ‘law against beasts’. The text analyses how such a label influences human, social, and legal relationships, and how it affects the implementation of constitutional, criminal, and civil law. It also confronts problems arising from the implementation of such laws.
PL
Tekst analizuje znaczenie dehumanizacji i kreowania „bestii”, w procesie tworzenia i stosowania prawa. Bierze za podstawę ustawę z 22 listopada 2013 r. o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie dla życia, zdrowia lub wolności seksualnych innych osób nazwaną potocznie „ustawą o bestiach”. Bada, jak etykieta „bestii” wpływa na relacje międzyludzkie, stosowanie Konstytucji, prawa karnego i cywilnego. Bada też praktyczne problemy, jakie rodzi stosowanie tej ustawy.  
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