Sexual offences have unfortunately featured very frequently in the news in recent years, and the interpretation of the relevant penal provisions is therefore a daily concern of legal practice. They also attract the natural interest of legal scholarship, as the new Greek Penal Code (PK) has introduced significant changes that do not yet appear to have been fully assimilated into our case law. Among these, of central importance is the use of the term “sexual act” (genetisia praxi), which has replaced in the new Penal Code the term “indecent act” (aselgis praxi) used in the Penal Code of 1950.
What were the reasons that led to the abolition of the term “indecent act”?
The principal reason that necessitated the replacement of the term “indecent” with the term “sexual” act was the fact that the content of the indecent act “had over time created serious interpretative problems”. The problems that had arisen were due to the content which the notion of an indecent act had acquired through case law. More specifically, our case law consistently held that: “an ‘indecent’ act is any act which, objectively, offends the common sense of modesty and morality, and subjectively, is directed towards the satisfaction or arousal of the sexual urge”. This interpretation was by no means arbitrary or unfounded, since the notion of indecency in our social life does indeed denote conduct aimed at achieving sexual gratification by immoral or impermissible means.
“Indecency” is the “action which aims at the satisfaction of a person’s sexual desires and which conflicts with what is considered morally or legally permissible”, as we read in the Triantafyllidis Dictionary. The term “indecent” was, moreover, transferred to the Penal Code of 1950 from the Penal Law of 1834 (Article 273), under which, for more than a hundred years, the offending of modesty and morality and the pursuit of satisfaction of the sexual urge were regarded as constituent elements of indecent acts. Of course, at that time indecent acts, when committed under the circumstances described in the law, were considered to offend “morality” – and not sexual freedom – and the latter (morality) was referred to as the protected legal interest in the title of the corresponding Chapter of the Penal Code.
In 1984, the legislator clarified that social attitudes had by then changed and that it was not morality that was offended by sexual offences, but sexual freedom. However, in describing the individual provisions, he retained the commission of indecent acts as the basic mode of infringement, with the result that the definition of those acts already shaped in our case law was also retained.
However, the definition used by our case law gave rise to significant issues of compatibility with the provisions of the Constitution, the European Convention on Human Rights and, later, the Charter of Fundamental Rights of the European Union. In particular:
The notion of an indecent act, with the content given to it by our courts, was extremely vague. This was because, in order to “determine” the content of indecent acts, concepts of even more imprecise content were used, such as the “common sense of modesty” and the “common sense of morality”, two notions to which any judicial decision-maker could give the content corresponding to his own personal moral views.
This “common” sense could, depending on the case, be considered to be offended not only when someone has intercourse with another person against their will, but also when, for example, someone makes a gesture of a sexual nature towards a woman unknown to him, or when he comes into very close contact with her on a packed bus. It could also be considered to be offended when someone embraces or strokes a minor on the thighs.
The definition adopted by our case law also created problems regarding compliance with the constitutionally entrenched principle of proportionality. This was because the broad scope of the definition allowed acts of entirely different gravity in terms of the violation of the victims’ sexual self-determination to be subsumed within it. In other words, coercive acts of intercourse, fellatio or cunnilingus could be treated, for criminal-law purposes, on a par with a touch on the breast over clothing or a lustful kiss on the mouth. On the other hand, however, the definition was also rather narrow, since it presupposed in every case that, “subjectively”, as our case law put it, the act had to “be directed towards the satisfaction or arousal of the sexual urge”, an element that does not appear to be of particular significance as regards the violation of the victim’s sexual freedom. When, for example, someone forces another person into fellatio, does it really matter whether his act “is subjectively directed towards the satisfaction of the sexual urge” or merely towards the punishment or humiliation of the victim? If the perpetrator does not even have the capacity for arousal or satisfaction of his sexual urge and therefore his act is directed neither objectively nor subjectively towards it, will he be punished only for unlawful violence (Article 330 of the Penal Code (PK))? The adoption of this view by our case law had the result that serious infringements of an individual’s sexual self-determination were treated with particular leniency.
What is the meaning of “sexual act” in the new Penal Code?
In order to address the problems caused by the reference to “indecency” in the old Penal Code, the new Penal Code adopted in its place the term “sexual” act. This is not a mere change of a single word, as one might suppose. Anyone who approaches the legislative change in that way demonstrates that they are unaware of the entire theoretical discussion that had previously taken place in our country, as well as in the other European countries. With this particular change, a different approach to the content of infringements of sexual freedom has been incorporated into our criminal law.
This change of stance had become imperative in order to take into account the requirements of the Istanbul Convention and the case law of the European Court of Human Rights (ECHR), which are binding on the criminal legislator, in conjunction with the rules of international criminal law and the changes that had been adopted by other European countries.
What does the Istanbul Convention say about the sexual act?
The Istanbul Convention, as a text of superior formal force, was binding on both the ordinary legislator and our case law. After its ratification, all national provisions had to be interpreted – even before the entry into force of the new Penal Code – on the basis of its rules. Article 36 of the Convention specifically establishes the obligation of Member States to ensure that the following are criminalised:
(a) any non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
(b) any other non-consensual act of a sexual nature with another person; and
(c) causing another person to engage in non-consensual acts of a sexual nature with a third person.
It is apparent from the text of the provision that Member States are obliged to criminalise all non-consensual acts of a sexual nature, regardless of whether they are committed by the person who has used force or other coercive means or by a third party.
It follows from this passage that the European legislator does not use subjective parameters to describe acts of a sexual nature, such as the “sense of modesty and morality” or the purpose of satisfying the sexual urge. The reference is exclusively to the social meaning these specific acts have acquired, that is to say, to their social characterisation. The addition, therefore, of subjective elements that limit the scope of sexual acts is contrary to the provisions of the Convention.
The Explanatory Report further clarifies that the reference to “other non-consensual acts of a sexual nature” in Article 36(2) of the Convention covers all acts of a sexual nature carried out without the free consent of the victim that fall short of penetration. The European legislator therefore regards non-consensual penetration of another person’s body as the most serious infringement of sexual freedom, in respect of which one might reasonably expect heavier penalties, on the basis of the principle of proportionality.
How does Areios Pagos understand, in its case law, the difference between the two concepts of indecent act and sexual act?
In most of the relevant decisions of the Areios Pagos (Supreme Civil and Criminal Court), the judges find no substantive differences between the two concepts.
FREQUENTLY ASKED QUESTIONS ON THE TRANSITION FROM “INDECENT ACT” TO “SEXUAL ACT”
1. What does the change of terminology in the new Penal Code mean for me?
The replacement of the term “indecent act” by the term “sexual act” is not a mere change of wording. For the defendant it has substantive significance, because the old definition was extremely broad and covered even mild conduct, such as a gesture or a kiss. Under the new term, the emphasis shifts to the absence of consent and to the sexual nature of the act on the basis of objective criteria. This opens up scope for arguments that differentiate the seriousness of the charge and prevent entirely dissimilar conduct from being treated alike. The proper legal use of this change can lead to a milder characterisation of the act or even to acquittal.
2. What sentence am I facing and how can it be reduced?
Sentences in sexual offences vary considerably depending on whether penetration, coercion, the age of the victim or other aggravating circumstances are established. The defence operates on two axes: contesting the very classification of the act as a sexual act, and, if conviction follows, making use of all available mechanisms for reducing the sentence. An important role is played by the mitigating circumstances of Article 84 of the Penal Code (PK) (prior honest life, remorse, good conduct after the act), by the suspension of sentence under Article 99 PK where feasible, and by standalone pleas. An individualised analysis of the case file determines which tools can be activated.
3. Is there a chance I can avoid conviction?
Yes, and the scope has been broadened precisely because of the new terminology. One line of defence is to dispute the characterisation of the act as a “sexual” act within the meaning of the law, where the facts do not reach that level of seriousness. Other lines include challenging the alleged absence of consent, assessing the credibility of testimony, identifying contradictions in the preliminary investigation, defects in the case file, unlawful evidence, and the principle of in dubio pro reo. In cases without objective evidence, doubt operates in favour of the defendant and may lead to an acquittal.
4. What should I do if I am summoned for preliminary investigation or under flagrante delicto procedure?
In sexual offences, the first defence statement is decisive and often determines the outcome of the case. The presence of a lawyer must be secured from the very first moment, before any statement or testimony is given. The defendant has the right to remain silent and the right to request a reasonable period of time to prepare his defence statement. Statements made to police officers without the presence of a lawyer may be used against him. Pre-trial detention is an exceptional measure and may be replaced by restrictive measures, bail or a prohibition on leaving the country. The right strategy from the first stage shapes the entire defence.
5. How long does such criminal proceedings last?
Cases involving sexual offences typically follow a more complex path due to the gravity of the charge and the need for psychiatric, forensic and other expert reports. From the filing of the criminal complaint to the issuance of a first-instance judgment, between one and three years usually elapse, while appellate proceedings can add a further one to two years. In felony cases, the stage of the judicial council, which decides on referral to trial, is also interposed. Time-frames are affected by court caseloads, adjournments and the completeness of the case file.
6. What is the role of the lawyer in a sexual offence case?
The lawyer analyses the case file from the outset, identifies weaknesses in the testimony and the evidence, and devises a strategy tailored to the new legislative framework of the “sexual act”. He drafts memoranda, prepares the defence statement, submits standalone pleas and requests for expert reports, and represents the defendant at every stage — preliminary investigation, judicial investigation, judicial council, trial. Our firm has extensive experience in criminal cases of a sexual nature, with particular expertise in the interpretative differences between the old and the new terminology, an element that often proves decisive for the outcome of the case.