A System of Sexual Offenses (In the Context of an Explanatory Note to Article 131 of the Criminal Code of the Russian Federation)

Abstract

The purpose of the Paper is to analyze the current system of crimes against sexual freedom and sexual inviolability in the context of the Explanatory Note to Article 131 of the Criminal Code of the Russian Federation. The Explanatory Note contains Requirements to qualify dissolute acts (Para 2-4 of Article 135 of the RF Criminal Code), sexual intercourse and other acts of a sexual nature (Para 3-5 Article 134 of the RF Criminal Code) committed against persons under the age of twelve in accordance with Article 131(4)(b) or Article 132(4) as rape or sexual assault, i.e. the most dangerous sexual offenses, which gives rise to various assessments. The mere transformation of qualification of the acts in question is defined by the introduction of the so-called "age of absolutely unacceptable consent" of a person to engage in sexual intercourse or other sexual activity. In revealing the effects of the transformation, the author shows that now Chapter 18 of the RF Criminal Code contains two systems of crimes against minors, namely, a complete and truncated systems. The truncated system has been formed due to recognizing the sexual offenses committed against persons under the age of twelve as violent. This approach is far from being obvious. The second research issue is associated with the evaluation of normative grounds of compliance the provisions contained in the Explanatory Note with the provisions of Article 8 of the RF Criminal Code. The establishment of the grounds is complicated because the text of the Explanatory Note combines at least two Articles of Chapter 18 of the RF Criminal Code. It is necessary to evaluate the conformity of the characteristics of the act with the characteristics of an objective and subjective elements of non-violent sexual intercourse, certain acts of sexual nature or dissolute acts, i.e. any offense under Articles 134 or 135 of the Criminal Code of the Russian Federation. Then, on the ground of the victim's helpless condition it is possible to qualify the act under Article 131(4)(b) of the RF Criminal Code or Article 132(4)(b) of the RF Criminal Code. The issues of qualification are being dealt with in the light of Recommendations determined in the Decision of the Plenum of the Supreme Court of the Russian Federation of December 4, 2014, № 16 "On Court practice in cases involving crimes against sexual integrity and sexual freedom of the individual» that did not, however, deal with some complicated cases. Lack of recommendations is particularly obvious concerning the qualification of dissolute acts committed against persons under the age of twelve in accordance with Article 132 of the RF Criminal Code.