CRIMINAL RESPONSIBILITY FOR RAPE: ANALYSIS OF JUDICIAL PRACTICE

Abstract

The issue of qualification of criminal offenses against sexual freedom and sexual integrity became especially relevant after Ukraine had signed a number of international conventions and had made significant changes to the Criminal Code of Ukraine. The purpose of the scientific article is to highlight these issues and to form the legal guidelines for developing an unified approach to the qualification of these criminal offenses. During the research, empirical methods are used. These methods allow to study the case law and identify the main trends in the qualification of rape. Currently, the issue of qualification of the rape, committed combined with violence against the victim, is quite acute. In addition, there are problems in distinguishing related types of sexual crimi¬nal offenses and resolving the issue of qualification by a set of individual manifestations of criminal illegal behavior that encroaches on two of the most important social values – sexual freedom and sexual inviolability of a person. The analysis and generalization of judicial practice in the context of the amendments to the Criminal Code of Ukraine, which entered into force on January 11, 2019, is becoming especially relevant. Simply borrowing the provisions of the Istanbul Convention without implementing them into national law did not solve the existing problems. What is more, such a reckless step significantly complicated the issue of delimitation of criminal offenses that violate sexual freedom and sexual in¬violability, it caused problems of qualification of these criminal offenses and it broke the established legal approaches to resolving legal conflicts. This situation highlights the need to develop legal guidelines that will bring these issues closer to the legal field and stabilize judicial practice. Despite such progressive and cardinal influence of international law on national criminal law, we have received a rather “doubtful” legal basis for the protection of the most important social values – sexual freedom and sexual inviolability of a person, in terms of unambiguity, correctness and legal certainty. We can state the lack of an unified approach of the courts of Ukraine on the qualification of rape and other criminal offenses that violate sexual freedom and sexual inviolability of a person, against the background of legislative changes that entered into force on 11.01.2019. We consider it necessary to emphasize the need to generalize judicial practice and develop legal guidelines for the implementation of an unified approach to the qualification of these criminal offenses.