Consent in criminal offences against sexual freedom and sexual inviolability of a person

Abstract

Introduction. Combating sexual violence still remains one of the most important issues arisen in criminal law study. It should be noted that Istanbul Convention on preventing and combating violence against women and domestic violence is still not ratified by Ukraine, which shall facilitate quality of criminal law concerning criminal offences against sexual freedom and sexual inviolability of a person. The purpose of the paper is to define meaning and content of consent in criminal offenses against sexual freedom and sexual inviolability of a person provided for in Section IV of the Criminal Code of Ukraine. Results. The paper establishes that lack of consent is a constructive sign of rape (article 152 of the Criminal Code), sexual violence (article 153 of the Criminal Code) and coercion to have sexual intercourse (article 154 of the Criminal Code). The ways of solving arisen problems during the qualification of situations in which a person mistakenly believes that consent was given, as well as when consent was not given explicitly, have been determined. It is recommended to clarify the content of "voluntary consent" by indicating in the note to Article 152 of the Criminal Code, actions which shall not indicate voluntariness of consent. The paper notes that using the collocation "without voluntary consent" is superfluous in Articles 153 and 154 of the Criminal Code, since "coercion" and "violence" also indicate absence of voluntary consent. It has been established that consent is a distinguishing feature of a criminal offense provided for in Article 155 of the Criminal Code from Articles 152 and 153 of the Criminal Code, thus sexual intercourse with a person from 14 to 16 years with her consent indicates the commission of a criminal offense under Art. 155 of the Criminal Code. It is proposed to supplement Article 155 of the Criminal Code with the clause “in the absence of signs of criminal offenses under Art. 152 and art. 153 of the Criminal Code”. Conclusion. The paper provides that consent shall be both constructive and distinguishing feature of criminal offences against sexual freedom and sexual inviolability. Several problems of consent in such crimes are defined as well as ways of their solution.