Sexual violence in Russian criminal law is an act that is criminal in accordance with Article 132 of the Criminal Code of the Russian Federation . Among the violent acts of a sexual nature (other than violent sexual intercourse , which is the essence of rape ), Russian criminal law includes sodomy , lesbianism and other sexual acts (the scope of which is not defined by law) with the use of violence or with the threat of its use against the victim, and also to other persons or using the helpless state of the injured person.
History
Prior to the adoption of the Criminal Code of 1996, there was no article in the legislation of Russia providing for liability for violent acts of a sexual nature. However, in view of the fact that, in fact, the acts included in this concept were committed earlier, the legislation provided for, and the judicial practice used other rules to bring the perpetrators to justice.
So, by a resolution of the Central Executive Committee of the USSR of March 7, 1934, and later art. 121 of the Criminal Code of the RSFSR in 1960 established liability for sodomy, both violent and non-violent.
As rape was considered the commission of sexual intercourse "in perverted forms" (in particular, oral and anal ) by a man against a woman. The same qualification, although not always, was obtained by violent mockery of a woman's genitals (insertion of various objects into the vagina, hands, etc.) [1] .
Other sexual acts committed against males by women, forced homosexual intercourse between men, and violent lesbianism were not independently assessed by the law: in such cases, the guilty person could only be charged for torturing, causing bodily harm, or threatening to kill or causing grievous bodily harm [2] . Sometimes such actions were qualified as hooliganism, which is regarded by modern scholars as the application of the law by analogy [3] . A. A. Piontkovsky proposed qualifying such actions as an insult [1] .
Introduction to the Criminal Code of the Russian Federation 132 allowed to eliminate the injustice in the assessment of sexual assault on people of different sexes, especially from the subjects of the same sex [2] . Moreover, the legislator considers it necessary to unify the punishments and qualifying features of Art. 131 and 132 of the Criminal Code: in the course of all the reforms of the criminal law after 1996, they remained identical. In view of this, the history of changes in the wording of Art. 132 of the Criminal Code of 1996, providing for liability for violent acts of a sexual nature, coincides with the history of amendments to Article 131 of the Criminal Code of the Russian Federation, providing for liability for rape.
Composition of crime
Crime Object
The object of sexual violence coincides with the object of rape [2] . The main immediate object of sexual violence is sexual freedom (the right of one’s choice to engage in sexual relations with a particular partner) or sexual integrity of a person [4] . Sexual integrity is regarded as an object of sexual violence only in relation to victims who have not reached the age of 16, or who are unable to consent to sexual intercourse due to dementia or other mental disorder [5] .
In the literature it was proposed to consider the honor and dignity of the victim as the main object of this crime. According to P. P. Osipov, sexual acts “in a perverted form” as contrary to “biological laws and social norms” should not be covered by the concept of sexual freedom, respectively, the forcible commission of such actions does not encroach on sexual freedom, but on honor and dignity [6 ] . This point of view has not received support: at present, the concept of sexual freedom covers any actions aimed at satisfying a sexual need that do not violate the rights of third parties; honor and dignity may be considered as an optional object of this crime).
As an additional optional object, bodily integrity, honor and dignity, health and life of the victim may be considered. In addition, the commission described in Art. 132 of the Criminal Code of the Russian Federation actions against a minor or minor victim (paragraph "a" part 3 of article 132, paragraph "b" part 4 of article 132) also infringe on the interests of the normal mental and physical development of minors [4] .
Victims can be persons of both sexes. Other social and legal characteristics of the victim and the object of the crime coincide with those for rape .
The objective side of the crime
The objective side of sexual violence includes [7] :
- act - violent sexual acts that do not form sexual intercourse, that is, not accompanied by the introduction of the male penis into the female vagina (violent sodomy, lesbianism, violent oral-genital, anal-genital contacts, other options for violent sexual acts), as well as forced sexual intercourse intercourse, if the active partner who uses violence is a woman;
- alternative ways of committing an act: the use of violence or the threat of its use against the victim or other persons, or the use of the helpless state of the victim.
The legislator and judicial practice refused to characterize such manifestations of sexuality as perverted. The criminalization of such acts is not associated with a negative assessment of any sexual practices, but exclusively with their violent nature [8] .
The legal definition of “sodomy” was given inPPVS No. 11 . AT PPVS No. 16 this issue is not considered. In the literature, sodomy is considered more narrowly and involves the commission of anal intercourse, including the introduction of the penis of the active partner into the anus of the passive; other forms of sexual intercourse between men are usually included in the category of “other sexual acts” [9] . At the same time, some scientists propose to include the act of oral sex in the concept of “sodomy” [10] .
PPVS No. 11 defined lesbianism as sexual intercourse between women (in PPVS No. 16, this issue is also ignored). Some scholars dispute the inclusion of lesbianism in sexual violence, indicating that sexual affection between women can only be mutual in nature [11] , but other authors note that violent lesbianism is possible, for example, in the form of tribadia (friction with the genitals various parts of the partner’s body) [9] . Other forms of lesbianism are also indicated, such as oral-genital contacts, petting, masturbation, and imitation of sexual intercourse (including using various devices, such as dildos) [12] . According to S. D. Tsangel, the concept of “lesbianism” in the Criminal Code of the Russian Federation includes only such forms of sexual intercourse between women that are accompanied by stimulation of the genital organ of at least one of the partners [13] .
In the concept of “other sexual acts”, the Supreme Court of the Russian Federation PPVS No. 11 included satisfying sexual needs in other ways, including forcing a woman to have a man commit sexual intercourse through violence or the threat of it. In the literature, other sexual acts are divided into several types [14] [15] :
- performed in the form of sexual intercourse: oral sex, anal sex, sexual intercourse, femoral coition, vestibular coition (reciprocating movement of the penis in the labia), narvasadata (stimulation of the penis by the woman’s mammary glands), etc .;
- not containing signs of sexual intercourse, but including sexual effects on the victim: for example, the insertion of fingers or hands or various objects (sticks, bottles) into the vagina or anus orifice, masturbation, frotting (friction with the genitals on the body of the victim), etc.
Some authors attribute sadistic acts to sexual violence, in which the sexual satisfaction of the perpetrator is achieved by torturing the victim: beating, causing wounds and cuts with piercing and cutting objects, flagellation, burning with cigarettes, bites; To distinguish such actions from torture (Article 117 of the Criminal Code of the Russian Federation), it is proposed to involve a sexopathologist as an expert [16] . Critics of this position note that when committing such acts, despite the receipt of sexual satisfaction by the perpetrator, sexual freedom or sexual integrity of the victim, for which these actions are not sexual, does not suffer, therefore, such actions, like any similar acts (for example , forced theft of underwear by a fetishist) should not qualify under Art. 132 of the Criminal Code [17] .
Other authors indicate that sexual assault must necessarily be in the nature of sexual penetration or genital mutilation [18] , because “otherwise a limitless understanding of“ other sexual acts “will lead to an unjustified expansion of the scope of criminal liability and possible application of the law by analogy” [19] .
Necrophilic acts committed with a corpse do not form part of violent acts of a sexual nature and can be considered as abuse of the bodies of the dead (Article 244 of the Criminal Code of the Russian Federation) [12] . Exhibitionist actions that do not directly affect the integrity of the victim do not form this composition [20] .
The characteristics of violence, the threat of violence and the use of a helpless state as ways to commit this crime, as well as the characteristics of voluntary refusal, coincide with similar characteristics of rape .
The act was completed at the time of the commencement of any of the sexual acts that are part of the objective side of this corpus delicti.
Subject of crime
The subject of a crime may be a male or female person who has reached the age of 14.
The subject of violent acts of a sexual nature is also recognized as a person who persuaded (or otherwise persuaded) to commit appropriate violent acts of persons not subject to criminal liability (for example, minors or insane). In this case, complicity does not arise, mediocre harm occurs.
The subjective side of the crime
The subjective side of the crime is characterized by direct intent. The guilty person realizes that he commits sexual acts with the use of physical violence or threats of its use, or uses the helpless state of the victim.
Motive and purpose are not mandatory signs of the composition of violent acts of a sexual nature. Some forms of sexual violence (including, for example, sodomy) are characterized by non-sexual motives, such as the desire to humiliate the victim, as well as hooligan motives [21] .
In general, the content of the subjective side of this act is the same as with rape .
Qualifying Attributes
The qualifying signs of this act coincide in content with the qualifying signs of rape .
Qualification and delimitation from other offenses
The main features of the qualification of this act and its delimitation from other crimes were disclosed when characterizing the composition of the rape .
Links
- Resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2004 No. 11 “On judicial practice in cases of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation” (ceased to be valid in connection with the adoption of resolution of December 4, 2014 No. 16).
- Decision of the Plenum of the Supreme Court of the Russian Federation of December 4, 2014 No. 16 “On judicial practice in cases of crimes against sexual integrity and sexual freedom of an individual” .
Notes
- ↑ 1 2 Full course of criminal law: in 5 vol. / Ed. A.I. Korobeev. - SPb. : Legal Center Press, 2008. - T. II. Crimes against the individual. - S. 546. - 682 p. - 2000 copies. - ISBN 978-5-94201-543-5 .
- ↑ 1 2 3 Criminal law. Special Part / Ed. I.V. Shishko. - M .: Prospect, 2012 .-- S. 117. - 752 p. - ISBN 978-5-392-02569-5 .
- ↑ Naumov A.V. Russian criminal law. Lecture course. In two volumes. T. 2. The special part. - M .: Legal literature, 2004 .-- S. 138. - 832 p. - ISBN 5-7260-1025-6 .
- ↑ 1 2 Criminal law. Special Part / Ed. I.V. Shishko. - M .: Prospect, 2012 .-- S. 111. - 752 p. - ISBN 978-5-392-02569-5 .
- ↑ Criminal law course. Special Part / Ed. G. N. Borzenkova, V. S. Komissarova. - M .: Mirror-M, 2002. - T. 3. Chapter VI. § 3.
- ↑ Osipov P.P. Sexual freedom and its criminal law protection in a socialist society // Issues of personal protection and strengthening socialist legality. Saratov, 1966.S. 132.
- ↑ Criminal law. Special Part / Ed. I.V. Shishko. - M .: Prospect, 2012 .-- S. 118. - 752 p. - ISBN 978-5-392-02569-5 .
- ↑ Criminal law of Russia. Special part: Textbook / ed. V.N. Kudryavtseva, A.V. Naumova. M.: Lawyer, 1999.
- ↑ 1 2 Course of criminal law. Special Part / Ed. G. N. Borzenkova, V. S. Komissarova. - M .: Mirror-M, 2002. - T. 3. Chapter VI. § four.
- ↑ Yakovlev Y. M. Sexual crimes. Dushanbe, 1969.S. 330.
- ↑ Truntsevsky Yu., Uvarov I. Lesbianism under pain of a new criminal law? // Investigator. M., 1997.S. 63.
- ↑ 1 2 Russian criminal law: a textbook: 2 vol. T. 2. Special part / ed. L.V. Inogamova-Khegai, V.S. Komissarova, A.I. Raroga. - 2nd ed., Revised. and additional .. - M .: TC Velby, Prospect, 2007. - P. 106. - 664 p. - ISBN 978-5-482-01455-4 .
- ↑ Tsengel S. D. Qualification of violent acts of a sexual nature (Article 132 of the Criminal Code of the Russian Federation). Abstract. dis. ... cand. legal sciences. St. Petersburg, 2004.S. 12.
- ↑ Criminal law. Special part / holes ed. I. Ya. Kozachenko, Z. A. Neznamova, G.P. Novoselov. - 3rd ed., Rev. and additional .. - M .: Norma, 2001. - S. 185. - 960 p. - ISBN 5-89123-511-0 .
- ↑ Russian criminal law. Special Part / Ed. V. S. Komissarova. - SPb. : Peter, 2008 .-- S. 130 .-- 720 s. - ISBN 978-5-469-01524-6 .
- ↑ Criminal law. Special part / holes ed. I. Ya. Kozachenko, Z. A. Neznamova, G.P. Novoselov. - 3rd ed., Rev. and additional .. - M .: Norma, 2001. - S. 186. - 960 p. - ISBN 5-89123-511-0 .
- ↑ Full course of criminal law: in 5 volumes / ed. A.I. Korobeev. - SPb. : Legal Center Press, 2008. - T. II. Crimes against the individual. - S. 552-553. - 682 p. - 2000 copies. - ISBN 978-5-94201-543-5 .
- ↑ Russian criminal law. Special Part / Ed. V. S. Komissarova. - SPb. : Peter, 2008 .-- S. 131. - 720 p. - ISBN 978-5-469-01524-6 .
- ↑ Izotov N.N. Criminal liability for violent acts of a sexual nature. Abstract. dis. ... cand. legal sciences. Stavropol, 2000.S. 14.
- ↑ Full course of criminal law: in 5 volumes / ed. A.I. Korobeev. - SPb. : Legal Center Press, 2008. - T. II. Crimes against the individual. - S. 553. - 682 p. - 2000 copies. - ISBN 978-5-94201-543-5 .
- ↑ Russian criminal law: a textbook: in 2 vol. T. 2. Special part / ed. L.V. Inogamova-Khegai, V.S. Komissarova, A.I. Raroga. - 2nd ed., Revised. and additional .. - M .: TC Velby, Prospect, 2007 .-- S. 107. - 664 p. - ISBN 978-5-482-01455-4 .