Protection of Human Sexual Autonomy in the Draft of Criminal Code of Ukraine: A Critical View

Abstract

The article is devoted to the analysis of the foundations of the framework regulation of sexual crimes in the draft of the new Criminal Code of Ukraine. The application of critical optics to the provisions of the project problematizes the issues of protecting human sexual autonomy and understanding the zones of theoretical and practical reflection in which they are rooted. To assess the proposed reforms of the criminal code, modern ideas about sexuality as a gendered phenomenon with a deep social interpretation are applied. The appeal to international standards for protecting human sexual autonomy and combating sexual violence focuses on paradigmatic shifts in assessing the legitimacy of sexual relations, centered around the concepts of "autonomy" and "consent", and the need to improve the draft Criminal Code in this aspect.
 The title of the section of the new Criminal Code of Ukraine "Criminal Offenses against Human Sexual Autonomy" is offering as more relevant with modern notions of sexuality and internationally recognized standards for determining the parameters of permissible sexual communication. The author stressing that if the nature of the sexual act is understood only as a desire to satisfy the libido, then some variants of illegal sexual behavior remain outside the scope of the Criminal Code, in particular, in situations where sexual violence is used as a tool to control and convey repressive messages. The propose to base the regulation of sexual crimes in new Criminal Code not on the concept of libido, but on the approach of the Istanbul Convention, according to which a sexual act is an act that has a sexual connotation, is supporting in this article.
 The absence of voluntary consent as a constitutive feature of sexual violence emphasizes the fundamental importance of the concept of "voluntary consent", by which consensual sexual act differs from non-consensual and illegal. In this regard the author, analyzing the problem of legal regulation of sexual relations with minors 14 to 16 year-olds, when their sexual life before reaching the age of consent seems outwardly voluntary, suggests discussing the possibility of introducing into the draft of Criminal Code the construct "limited voluntary consent", which will take place when a person is fully not capable to express a voluntary agreement to engage in the sexual activity and to understand the nature and significance of it’s decision regarding sexual relations.