Rape and Sexual Violence: the Quality of Law and the Questions of Qualification

Abstract

The article examines the problems of legislative regulation of liability for violent sexual crimes and the qualification of such offences. The author states that Russian criminal law is ambiguous in its understanding of such categories as sexual intercourse, lesbian and gay homosexual acts. The content of other actions of sexual nature also poses questions. The analysis of criminal law norms protecting the sexual freedom of a person, as well as the analysis of court and investigation reports, showed that some criteria of differentiating liability for these crimes are not well-grounded. A systemic approach to examining the norms of Chapter 18 of the Criminal Code of the Russian Federation (CC of the RF) revealed the following problems. The current version of the CC of the RF does not penalize a violent sexual act if its victim is male. The use of violence by a woman against a man during a sexual intercourse is not covered by Art. 132 of the CC of the RF, because other sexual acts, according to law, are sexual acts that are not sexual intercourse, lesbian or gay homosexual acts. Simultaneous existence of actus reus under Art. 131 and 132 of the CC of the RF, according to the principle of legality, should prevent from charging for rape under Art. 131 only. Human sexuality requires, as a rule, that sexual intercourse should be accompanied by other acts of sexual nature (forced kissing, masturbation, impact on breasts or other sexual acts) aimed at achieving sexual arousal and satisfaction, which, under Art. 17 of the CC of the RF, constitutes a combination of offences. The differentiation of liability for various acts of sexual nature under Art. 131 and 132 of the CC of the RF violates the principle of justice. If there is a sequence of violent sexual acts (for example, oral and anal penetration with the use of violence), these actions are qualified only pursuant to Art. 132 of the CC of the RF. If there is a violent sexual intercourse and some other act of sexual nature, these actions are punished as multiple offenses. The author uses doctrinal views, analysis of current legislation and the practice of its enforcement to suggest a solution for the described problems.