Crimes against sexual inviolability and sexual freedom of the...

Crimes against sexual inviolability and sexual freedom of the person

Rape

(in the amended version of the Federal Law of July 27, 2009 No. 215-FZ)

1. Rape, that is, sexual intercourse with the use of violence or with the threat of its application to the victim or to other persons or using the helpless state of the victim -

is punishable by deprivation of liberty for a term of three to six years.

2. Rape:

a) committed by a group of persons, by a group of persons by prior agreement or by an organized group

b) connected with the threat of murder or causing serious harm to health, and also committed with particular cruelty towards the victim or to other persons;

c) that caused infection of the victim with a venereal disease, -

is punishable by imprisonment for a term of four to ten years, with or without freedom of imprisonment for up to two years (as amended by Federal Law No. 377-FZ of December 27, 2009).

3. Rape:

a) a minor;

b) caused by negligence causing serious harm to the health of the victim, infection with her HIV infection or other serious consequences -

is punishable by deprivation of liberty for a term of eight to fifteen years with deprivation of character to hold certain positions or engage in certain activities for up to twenty years or without and with restriction of freedom for up to two years (in the edition of the Federal Law of December 27, 2009 No. 377-FZ).

4. Rape:

a) caused by negligence the death of the victim;

b) a victim under the age of fourteen -

is punishable by deprivation of liberty for a term of twelve to twenty years, with deprivation of the right to hold certain positions or engage in certain activities for up to twenty years or without and with restriction of freedom for up to two years (in the edition of the Federal Law of December 27, 2009 No. 377-FZ).

5. The conduct provided for in the " b of part four of this article committed by a person who has a previous conviction for a crime committed against the sexual inviolability of a minor -

is punishable by deprivation of liberty for a term of fifteen to twenty years with deprivation of character to hold certain positions or engage in certain activities for up to twenty years or for life imprisonment (part five is introduced by Federal Law from 29.02 .2012 No. 14-FZ).

Note: For the offenses referred to in the b part four of this article, as well as the item "b" the fourth part of Article 132 of this Code also includes acts falling within the grounds of the crimes envisaged by parts three to five of Article 134 and parts two to four of Article 135 of this Code committed against a person who has not reached the age of twelve, since such a person, by virtue of his age in a helpless condition, that is, can not understand the nature and significance of the actions performed with it (note introduced by Federal Law No. 14-FZ of February 29, 2012).

1. According to Part 1 of Art. 22 of the Constitution everyone has the right to freedom and personal inviolability.

The problem of eliminating violence against women, including in the sphere of sexual relations, is given attention in the resolutions of the UN General Assembly 61/143 of December 19, 2006, 62/133 of December 18, 2007. "On the intensification of efforts in order to eradicate all forms of violence against women ". and 62/134 of 18 December 2007. On the Elimination of Rape and Other Forms of Sexual Violence in All Their Forms, Including in Conflict and Related Situations. The Declaration of the Rights of the Child of 20 November 1959 and the Convention on the Rights of the Child of 20 November 1989 are devoted to the protection of children, including from all forms of sexual exploitation and sexual abuse

2. The main object is the sexual assault (the woman's right to independently decide on entering into sexual intercourse with a man, on the choice of a sexual partner, forms, without physical or mental coercion) when raping an adult adult woman; and with the rape of a minor, underage or in a helpless condition - sexual inviolability (protection from violent sexual assault). In this case, the violation of sexual inviolability always means a violation of sexual freedom, as a constituent part.

An additional object is the health of the victim, her honor and dignity, and with the rape of minors or minors - their normal physical, mental, moral, sexual development.

3. The victim of rape can only be a female. For criminal prosecution, the previously established relationship of the victim with the guilty person or the previous behavior of the victim (being in a registered or civil marriage, engaging in prostitution, immoral behavior, etc.) do not matter.

4. The objective side of rape has a complex, structural character, consists of the obligatory actions: 1) sexual intercourse and 2) violence or threat of its use or use of the helpless state of the victim.

Absence of one of the specified actions of the objective party means the absence of the composition of rape, or if there are grounds for the person's actions, they can be qualified under Art. 133 or 134 CC (see comments to them).

If only violence is used or the threat of its use is made to commit sexual intercourse against the will of a woman, but there was no sexual intercourse, an attempt is made to rape.

5. The term "sexual intercourse" in the law is not legal, but medical, as the sex ratio, understood in sexology only as a heterosexual, physiological act aimed at the continuation of the genus and consisting in the introduction of the male penis into the vagina of a woman.

Other violent acts of a sexual nature can not be considered as rape and are classified under art. 132 of the Criminal Code. If the perpetrator rapes the victim and commits sexual acts against him, the offense forms a set of crimes, qualifies according to the article being commented and 132 of the Criminal Code.

Can not be considered as rape not specified in the law of action, for example, the person commits sexual intercourse with a woman by deceit, for example, promises to marry, to provide any material benefits or help get rid of debts in the future, etc.

However, the recognition of fraud on the part of the guilty person, as a fact of rape, is not excluded, when in such a way the victim is misled about actual circumstances. For example, a woman is deceived into a person, taking the guilty person for another twin brother with whom she wanted to have sexual intercourse and believed she was committing it to him. Such a deception can be equated with the helpless condition of a woman, since she is deprived of the opportunity to resist.

Rape should be considered finished from the moment of the beginning of the sexual act, regardless of its completion and the consequences (paragraph 5 of the resolution of the Plenum of the US Armed Forces No. 11 of June 15, 2004).

6. "Violence" means physical violence in the form of beatings or committing violent acts that caused physical pain (for example, tying, seizing, restraining, etc.), light or moderate harm to health, and additional qualifications on articles on crimes against the person is not required (see paragraph 15 of the resolution of the Plenum of the US Armed Forces of June 15, 2004 No. 11).

By the threat of violence is understood such actions of the guilty person, which testify to his intention to immediately apply the above physical violence, are perceived by the victim as real regardless of the person's intention to actually carry out such a threat. Such a threat can be expressed by words, gestures, actions.

If the threat is the nature of the future, then it can not be considered a threat of violence to the victim, as in this case the victim has a real opportunity to seek help. The threat of damage or destruction of property, the dissemination of disgracing victims of information, as well as the coercion of a woman for sexual intercourse, as it is not connected with the possible use of physical violence, but only a certain pressure on the psyche of the victim to incite to sexual intercourse .

Physical violence or the threat of its use can take place in relation not only to the victim, but also to other persons who may be her relatives, relatives, other persons whose fate she is not indifferent, for which the woman is forced to agree to sexual intercourse , for example a pupil of the school, a pupil of a kindergarten, a guardian, etc.

7. In case of intentional infliction of serious harm to the health of the victim during rape, the actions of the guilty person are qualified according to the totality of the article under review with Art. 111 CC. Careless infliction of such harm to the health of the victim excludes the indicated population. If the deliberate infliction of serious harm to health caused negligent death of the victim, then in the absence of other qualifying signs, rape is qualified in the aggregate of part 1 of the article being commented and part 4 of article. 111 of the Criminal Code (see clause 15 of the Resolution of the Plenum of the US Armed Forces No. 11 of June 15, 2004).

If rape was threatened with murder or causing serious harm to health, then the actions of the guilty person are qualified in part 2 of the article being commented.

8. As a result of rape, deliberate harm to health before the beginning of the specified actions or in the course of their commission with the purpose of overcoming the resistance of the victim, his prevention, as well as to suppress her will is recognized, since in such circumstances the use of violence is fully covered by the article under comment. If harm is caused after, then there is a set of crimes. For example, in the case of D. it is recognized that the infliction of harm to health after committing rape is qualified as the real aggregate of crimes provided for in Art. 131 of the Criminal Code, and the corresponding crime against the person.

9. Rape using the helpless state of the victim is recognized in cases where, due to her physical or mental state (dementia or other mental disorder, physical disabilities, other painful or unconscious condition, young or old age, etc.), she could not understand the nature and the significance of the actions performed with it, or to offer resistance to the guilty party, and the latter, entering into sexual intercourse, realized that the victim is in such a state (see paragraph 3, 4 post an anthology of the Plenum of the US Armed Forces as of June 15, 2004 No. 11).

As a helpless condition, the victim's presence in such a degree of intoxication (alcoholic, narcotic, etc.), which deprived her of the opportunity to resist the guilty, can be regarded. It does not matter whether the woman brought herself to such a state, and the guilty person used it only, or the guilty person brought it to such a state, for example, suggested using alcohol, drugs, toxic or other intoxicating substances, drugs, provided them with the victim, etc. For example, in the case of S. it is acknowledged that the young victim was in a helpless condition due to strong alcohol intoxication, which, due to the failure of memory after drinking further events, does not remember waking up in the morning that the lack of habit of drinking could aggravate her indecisiveness and passivity in situation of rape.

If, with the use of drugs, strong or poisonous substances, any medicinal or other drugs when the victim is rendered helpless, harm is caused to her health, which must be established by the expert's conclusion, then responsibility is incurred for both physical violence and use helpless state.

A helpless state is excluded if the victim is conscious, understands what is happening to her, but does not resist because her will is suppressed by the use of violence. For example, in the E. case it is acknowledged that the qualifying sign of rape "using the helpless state of the victim" is mistakenly attributed, since it is established that the victim did not lose consciousness, understood everything that was happening, did not resist, because her will was suppressed by threats and beating, she was afraid convicted and did not resist, and not because she was deprived of the opportunity to resist physically.

According to Notes, to the article being commented, the victim, under the age of 12, by virtue of age is in a helpless condition, i.e. can not understand the nature and significance of the actions performed with it.

10. An attempt on rape is defined as the perpetration by the guilty person of acts directly aimed at sexual intercourse with the victim in addition to her will, if they were not brought to completion due to circumstances beyond his control. In the case of K. it was established that he had declared to the victim that he would rape her, she asked not to do so, but, overcoming the resistance of the victim, he tried to have sexual intercourse with her, but could not finish the idea, as he was detained by police officers.

The attempt to rape should be distinguished from other crimes related to sexual acts (articles 132 - 135 of the Criminal Code) affecting the honor, dignity, inviolability of the person (for example, insult, harm to health, etc.), the distinction between them is conducted on the content of objective and subjective signs.

11. Voluntary renunciation of rape, excluding criminal liability, in accordance with Art. 31 CC is possible only at the stage of preparation and the stage of assassination, i.e. before the beginning of sexual intercourse, when the person voluntarily and finally stops his actions, realizing the possibility of bringing the crime to the end. If a person objectively could not commit an offense, for example, for physiological reasons, because of fear of being detained when outsiders appear, the refusal can not be considered voluntary. Motives for voluntary refusal of legal importance do not have, they may be fear of responsibility, fear of contracting any venereal disease, pity, disgust, etc. However, a person who voluntarily refused to bring the rape to completion is liable to criminal liability in the event that in fact, the act committed by him contains a different component of the crime, for example, for causing harm to health, depraved actions.

12. When a guilty person commits an attempt on rape in one case, and in another finished rape, his actions for each episode are qualified independently. In accordance with the requirements of Art. 17 of the Criminal Code of self-qualification, there are cases when two or more rapes fall under the signs of various parts of the article being commented, and when violent sexual acts are committed with several victims.

However, do not constitute a combination of a person committing one crime with qualifying signs in different parts of one article.

Also, in cases where several sexual intercourses were not interrupted or interrupted for a short time and the circumstances of the rape testified about the common intent of the guilty person to commit the specified identical actions, the crime should be considered as a single continuing crime (see clause 8 of the Plenum Decree US Armed Forces as of June 15, 2004, No. 11).

13. The subjective side of rape is characterized only by direct intent. The perpetrator realizes that, contrary to the will of the victim, she commits sexual intercourse with her using violence or with the threat of her being applied to the victim or to other leaders or with the use of her helpless state, and wishes it.

Motives crimes can be different, for example, satisfying the sexual need, for hire, out of vengeance, to force marriage, and others, which for the qualification of the crime do not matter, but can be taken into account when imposing punishment.

14. The subject of the crime is special , only a sane person who has reached the age of 14. A woman can also be recognized as co-executor when, for example, a woman uses violence or threatens to use violence against the victim or other persons, leads the victim into a helpless condition for the man to have sexual intercourse. In such cases, part of the objective side of rape, having a complex, structural character, takes place, and the sex of the guilty person does not have legal significance. For example, F. was recognized as co-executor in committing rape by a group of people, since it was established that she was the initiator of the crime, actively assisted the convict in the case of X., the victim S., kept her, closed her mouth so that she could not shout and call for help . About the intent of F. to commit in relation to the injured S. acts, encroaching on the sexual inviolability of the individual, is evidenced by the fact that immediately after the rape, F. committed against S. violent acts of a sexual nature.

15. Part 2 of the article under envisages aggravating circumstances Rape: a) committed by a group of individuals, group of persons by prior agreement or an organized group; b) coupled with a threat to kill or cause grievous bodily harm, and committed with extreme cruelty against the victim or other persons; c) entailing infection of the victim with a venereal disease.

The qualifying characteristics specified in the a Part 2 of the article is defined in Art. 35 of the Criminal Code.

Group rape is not only the actions of people who have committed a violent sexual act, but also the actions of persons who assisted them by applying physical or mental violence to the victim. The actions of persons who did not personally commit violent sexual intercourse, but through the use of violence that assisted others in raping the victim, should be qualified as co-participation in group rape (paragraph 10 of the resolution of the US Armed Forces Plenum of June 15, 2004, No. 11).

As group rape, cases are acknowledged where the perpetrators act in concert, use physical violence or threat against several women, but then everyone commits sexual intercourse with only one of the victims, for example, in different rooms of the same apartment, as well as cases when one person joins another during the commission of those rapes.

However, if the victim was coerced sexual acts by several persons who did not render each other any assistance, for example, one raped, reported this to another person, indicated where the victim is, and another took advantage of this situation, went there and also raped her, rape is not recognized as group, the actions of each of them are qualified in the absence of other aggravating circumstances under part 1 of the article being commented.

16. Co-participation in group rape differs from complicity in committing this crime in that the organizer, instigator or accomplice does not perform the objective side of the crime (or part of it). The organizer only organizes the perpetration of rape or directs execution, the instigator inclines the person to commit rape, the accomplice promotes the commission of rape by advice, instructions, etc. If the accomplice does not render any assistance to the performer during the rape, he is not recognized as co-executor. In the case of M. and G. it was established that M., against the will of the victim, pushed her into a dilapidated house where she was raped by G., to whom M. did not render any assistance to G. in overcoming the resistance of the victim, did not apply violence to her, but created the conditions for rape. In this regard, the actions of G. were re-qualified for Part 1 of Art. 131 of the Criminal Code, and the actions of M. as an accomplice on Part 5 of Art. 33, part 1 of Art. 131 of the Criminal Code.

At the same time, if a person does not facilitate the commission of rape by advice, directions, provision of funds or removal of obstacles, it can not be recognized as an accomplice. For example, the case under item a Part 2 of Art. 131 of the Criminal Code in relation to T., who at the time of committing rape by other persons was only nearby, but did not follow the situation.

17. The committing of rape by a group of persons by prior conspiracy means that at least two persons participated in the crime, who agreed on this beforehand, prior to the commencement of the rape. The perpetration of rape by an organized group of people is characterized by the fact that the crime is committed by a stable group of persons who have previously joined together to commit one or several rapes, which can be manifested in the existence of permanent and long-lasting ties between them, the structure, the leader, the specific methods of organizing the group, the methods of preparing for the perpetration of rape, distribution of roles, etc.

18. The actions of the guilty person in the specified forms of participation in group rape are qualified under item "a" Part 2 of the commented article, regardless of the fact that other persons can not be brought to criminal responsibility under the grounds provided for by law, for example, due to insanity, not reaching the age of criminal responsibility.

19. Item b Part 2 of the article commented provides for responsibility for rape combined with the threat of murder or serious bodily harm, and also committed with particular cruelty towards the victim or to others.

Under the threat of murder or causing serious harm to health should be understood as direct verbal threats that expressed the intention of immediate application of physical violence to the victim, her children, close relatives or other persons, but, cases, such menacing actions as, for example, demonstration of weapons (pistols, knives, razors, etc.). These actions do not require additional qualification under Art. 119 of the Criminal Code (paragraph 11 of the Resolution of the US Armed Forces Plenum of June 15, 2004 No. 11).

This threat must precede sexual intercourse, serve as a means of overcoming the resistance of the victim when she had reason to fear the perpetrator's execution of a threat when she realizes that the threat can be brought to execution immediately, and therefore she does not resist.

If the threat of murder or causing serious harm to health was expressed after the rape, for example, that the victim did not tell anyone about what was done, and if the victim had reason to fear this threat, then the actual set of crimes takes place, the actions of the guilty person are corresponding part of the article being commented and under art. 119 of the Criminal Code.

20. Rape is considered to be committed with particular cruelty, if in the process of committing it the victim or other persons are deliberately caused physical or moral anguish and suffering.

Special cruelty can be expressed in mockery and mockery of the victim, torture in the process of rape, in causing bodily harm, in committing a crime in the presence of her relatives or loved ones, and also in a way of suppressing resistance, causing severe physical or moral anguish and suffering of the victim or others. At the same time, it is necessary to establish the intent of the guilty person for causing special torment and suffering (paragraph 12 of the resolution of the Plenum of the US Armed Forces No. 11 of June 15, 2004).

If the guilty person showed particular cruelty after the rape, then such actions form a real set of crimes, qualify additionally, as encroachments on the life or health of the victim.

21. For the specified in cl. in Part 2 of the commented article rape, which resulted in infection of the victim with a sexually transmitted disease, the responsibility comes only when it is established that it is as a result of forced sexual intercourse that a woman is actually infected with any sexually transmitted infection (syphilis, gonorrhea, soft chancre, inguinal lymphogranulomatosis and other). If there is no direct causal link between rape and infection of a sexually transmitted disease, liability is excluded. In addition, the responsibility for such rape occurs only if the perpetrator knew of the presence of such a venereal disease. Additional qualifications under art. 121 CC is not required. Wines can be either intentional or careless.

If the infection of the victim with a venereal disease has led to serious health damage, the actions of the guilty person are classified as "b" Part 3 of the commented article.

22. Part 3 of the article commented provides for the responsibility for rape: a) a minor who, by negligence, causes serious harm to the health of the victim, infection with her HIV infection, or other serious consequences.

According to Art. "1 of the Federal Law of 24.06.1999 No. 120-FZ" On the basics of the system for the prevention of neglect and juvenile delinquency " (as amended on 02.07.2013), a minor who is under the age of 18 is recognized as a minor.

Criminal liability for committing a rape of a minor occurs only when the guilty person is aware or admits that he commits rape by a minor. The age of the victim may be known to him in connection with various circumstances, for example, according to the information of the victim about her minority, appearance, relationship, relationship, etc. If the guilty person in good faith has been mistaken about the age of the victim, mistakenly believing that she is an adult, then responsibility for this qualifying attribute is excluded.

For example, in the case of K. it is acknowledged that he did not know of the underage age of the victim F., who, on acquaintance, said she was 18 years old, and she informed her convicted person only after committing sexual acts with her, the conclusion of the court that the victim corresponds to a minor age, is not supported by evidence. In this connection, the actions of the convict were qualified under Part 1 of Art. 131 of the Criminal Code.

The sexual maturity of the victim with rape for qualification does not matter.

23. Rape, which caused by negligence the infliction of grave harm to the health of the victim, is recognized when such harm comes from both the direct actions of the guilty person, for example, who pushed the injured person, why she fell head first on the lying solid object, causing injury, and the actions of the victim herself, who tried to avoid rape, for example, ran out onto the roadway, was knocked down by the passing traffic.

For example, in the case of N., found guilty according to cl. ",", "to" Part 2 of Art. 105, para. b Part 3 of Art. 132 of the Criminal Code, the actions of the convict were re-qualified from the item "b" Part 3 of Art. 132 CC on Part 1 of Art. 132 of the Criminal Code and stated that the court mistakenly qualified his actions as violent acts of a sexual nature that caused by negligence the infliction of grave harm to the health of the victim, since his deliberate actions aimed at causing physical harm to the victim's health and killing the latter, N. continued also after the commission of violent actions sexual nature, i. committed a murder associated with violent acts of a sexual nature.

For the rape that caused the infection of the victim with HIV infection, the responsibility comes in the same way as when a sexually transmitted infection is infected, when it is established that it was with rape that the victim is actually infected with such an infection and if the perpetrator knew of its presence.

Other grave consequences that are an appraisal concept are recognized as equivalent to serious harm to health or HIV infection, for example, suicide of a victim, pregnancy, mental illness, etc., which come directly from rape. However, if the consequences occur in the distant future, for example, the victim committed suicide due to the fact that the perpetrator after the rape promised to marry, but after a few months of his promise failed to fulfill, terminated the relationship with the victim, then such consequences can not be considered other grave.

24. Part 4 of the article under review provides for the responsibility for rape: a) that caused by negligence the death of the victim, b) the victim under the age of 14.

Rape, which caused the victim's death by negligence, is recognized when death comes from the immediate careless actions of the guilty person (for example, when the rape was closed the respiratory tract of the victim), or from the actions of the victim herself, seeking to avoid rape.

For example, in the case of F., convicted of attempted rape, which resulted in imprudence of the death of the injured J., it is acknowledged that the victim, aware of the inevitability of group rape, trying to escape, climbed onto the balcony, but, unable to resist, fell on the asphalt and crashed to death.

If the death of a victim occurs not as a result of rape, but as a result of leaving her at risk, then the actions of the guilty person are qualified according to the totality of the crimes of the relevant part of the article under review. 125 of the Criminal Code.

25. Criminal responsibility for committing rape by a victim who has not attained the age of 14 years comes only when the guilty person is aware or admits that he rapes such a victim. If the guilty person was faithfully mistaken in his age, he believed that the victim had reached the age of 14, then his actions under the rules of error are subject to qualification under item "a" Part 3 of the commented article, like rape of a minor.

For example, in the case of S. it is recognized that in the qualification of rape of a victim who has not reached the age of 14, under item "b" Part 4 of Art. 131 of the Criminal Code (as amended by Federal Law No. 215-FZ of July 27, 2009), it is necessary to prove the intent of the perpetrator to commit the actions incriminated to him, including the age of the victim. The exclusion from the previous version of the indication of "knowl- edge" the commission of rape by a victim under the age of 14 does not release the investigating authorities from the obligation to prove that the perpetrator has the intent to commit rape of a person under 14 years of age. Since S. did not reliably know that the victim K. had not reached the age of 14, but reliably knew that she was under the age of 18, his actions were correctly re-qualified by the court on paragraph "a" Part 3 of Art. 131 of the Criminal Code, as the commission of rape by a minor.

According to Notes, to the article being commented, to the crimes provided for in paragraph "b" Part 4 of Art. 131, as well as the b Part 4 of Art. 132 of the Criminal Code, also include acts that fall under the signs of crimes provided for by Parts 3-5 of Art. 134, part 2-4 of Art. 135 of the Criminal Code committed against a person who has not reached the age of 12, since such a person is in a helpless state, by virtue of age, i.e. can not understand the nature and significance of the actions performed with it.

26. The subjective side of the b part 3 and the a Part 4 of the commented article of crimes in part of causing by negligence the serious harm to the health or death of the victim is characterized by a double form of guilt - intention for rape and imprudence with regard to consequences. Infection with HIV infection can be committed with intentional and reckless forms of guilt.

27. Cases of committing after the rape of non-violent sexual intercourse or other acts of a sexual nature by a person who has reached the age of 18 years, with a person who has not reached the age of 16 and puberty or who have reached 12 years old, but have not attained 14 years of age and sexual maturity, constitute a set of crimes under Art. 131, 134 of the Criminal Code.

28. Part 5 of Art. 131 of the Criminal Code provides for the responsibility for the rape of a victim who has not reached the age of 14 years, committed by a person who has a previous conviction for a crime committed against the sexual inviolability of a minor. Such persons should be understood as persons who, at the time of the rape, had an unpaid or not withdrawn conviction for any of the offenses committed in relation to juveniles under Art. 131 (part 3 - 5), 132 (part 3 - 5), 133 (part 2), 134, 135 of the Criminal Code.

29. Cases of committing after the rape of non-violent sexual intercourse or other acts of a sexual nature by a person who has attained the age of 18 years, with a person who has not attained the age of 16 or reached the age of 12 but has not attained the age of 14 and sexual maturity, constitute the totality of crimes provided for in Art. 131, 134 of the Criminal Code.

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