About the legal element of a victim of illegal abortion or sterilization

Abstract

The article is devoted to some topical issues of establishing the characteristics of a victim of a crime, provided for in Art. 134 of the Criminal Code.
 A generalized review of the concept of the victim in criminal law science has been made. Attention is drawn to the fact that the doctrine of the victim has an interdisciplinary nature - the criminal-legal, criminological and criminal-procedural concepts of the victim are distinguished: 1) criminal-legal - the victim of a criminal offense; 2) criminological - a victim of the crime; 3) criminal procedure - a victim in criminal proceedings.
 It has been established that the domestic legislator directly refers to the victim of abortion (sterilization): the relevant parts of Art. 134 of the Criminal Code on forcing abortion or sterilization without the voluntary consent of the “victim”. The author’s opinion is expressed that, in the context of responsibility for illegal abortion, the legislator could specifically indicate a woman, and in the second case – alternatively, a woman or a man.
 In the context of a legal comparison of the provisions of Art. 134 of the Criminal Code and Art.Art. 38 and 39 of the Istanbul Convention, taking into account the systematic approach to the interpretation of legal acts, attention was drawn to the following: a) in the prescriptions of the convention, when it comes to forcing a woman to undergo certain actions (genital mutilation), there is no normative reference to her informed consent; and in the case of an abortion or surgical sterilization of a woman, in the absence of a sign of coercion, a sign of prior and informed consent or understanding of the procedure on the part of the woman is used; b) the domestic legislator provided in part 2 and part 4 of Art. 134 of the Criminal Code, respectively, forcing an abortion / sterilization without the victim’s voluntary consent. The domestic approach has been subjected to reasoned criticism, since in the theory of criminal law, the sign of coercion traditionally excludes the consent of the victim - these concepts are mutually exclusive.
 It is shown how the victim of the investigated crime is mentioned in judicial practice; at the same time, a small number of verdicts passed under Art. 134 of the Criminal Code.