On the issue of the concept of a single continuous violent sexual crime

Mironchik Anna Sergeevna PhD in Law Associate Professor of the Department of Criminal Law at Siberian Federal University 660049, Russia, Krasnoyarskii krai, g. Krasnoyarsk G, ul. Maerchaka, 6, aud. 319 ansmiron@mail.ru Other publications by this author

Kachina Natal'ya Veniaminovna PhD in Law Associate Professor; Department of Criminal Law; Siberian Federal University 6 Maerchaka str., office 319, Krasnoyarsk Territory, 660075, Russia kachinan@bk.ru

When qualifying violent sexual crimes, there are many problems associated with both an ambiguous interpretation of the signs of the components of these crimes, and with the assessment of other circumstances ambiguously understood in the doctrine of criminal law. One of these circumstances is the commission of a violent sexual crime by several acts. The problem is to evaluate these actions either as a single ongoing crime or as a combination of these crimes. This issue is relevant for all crimes. But the need for a separate study of this issue regarding violent sexual crimes is also increasing due to the fact that the highest court provides a different concept from the general one of such a continuing crime. Accordingly, the problem of qualification of these crimes with a plurality of episodes is, indeed, relevant.

It seems that for a comprehensive and detailed study of this problem, general scientific and private scientific research methods (dialectical, logical, systemic, historical, axiological), as well as special (comparative legal, formal legal) research methods should be applied.

The study of the indicated problem should begin with consideration of the general question of distinguishing a single ongoing crime from a set of crimes.

As noted by D. Y. Krayev, the doctrine of Russian criminal law is very far from the unity of views on solving the problem of delineating the ongoing crime from the totality ^{[1, p. 50]}.

The concept of a continuing crime is explained by the highest court: This is a crime consisting of two or more identical illegal acts covered by a single intent.

Criminologists add to these signs other characteristics characterizing a single ongoing crime (unity of the criminal result ^{[2, p. 24]}, unity of guilt ^{[3, p. 97]}, unity of the source ^{[4, p. 12]}).

The recognition of these features as mandatory for the ongoing crime seems indisputable. For example, the unity of the source in case of theft can only indicate, along with other circumstances, the presence of a single intent. Therefore, for a continuing crime, the unity of intent is fundamental, which must arise to commit all identical criminal acts before the first of them begins.

In the science of criminal law, there is a point of view according to which crimes with a formal composition cannot be continued, since a single intent covers only a single consequence for all identical acts. According to the author, this cannot be the case in crimes with a formal composition, since the intention of the perpetrator is aimed only at committing actions. Therefore, the commission of two or more identical actions always forms a repetition ^{[5, p. 53]}.

It is impossible to agree with this position, since the single intention of the perpetrator should cover the commission of acts. Therefore, the dominant point of view is, according to which a single ongoing crime can be both a material and a formal composition.

It is correct to recognize the opinion that the peculiarity of a continuing crime is its commission not by one action and not continuously, but by actions (acts) scattered over time, which do not have the character of an independent crime, but represent links or stages in the implementation of the same criminal act ^{[6, p. 303]}. It is worth adding to this that there is a close subjective connection between individual acts of criminal acts. Thus, D.Y. Krayev, as a mandatory sign of a continuing crime, calls an objective connection between individual acts ^{[1, p. 51]}. However, the objective connection is directly conditioned by the subjective connection, and the objective signs that make up the objective connection are an external manifestation of the unity of intent to commit individual acts in the ongoing crime.

In turn, the multiplicity of crimes (including the aggregate) is characterized by the fact that everything committed by one person can be divided, from a legal point of view, into several independent criminal acts ^{[7, p. 242]}. At the same time, an independent intention must arise to commit each of these criminal acts, therefore there is no subjective connection between these acts.

Thus, for a single ongoing crime, it is characteristic to commit two or more identical acts united by a single intent.

Identical acts, as V. N. Kudryavtsev noted, should be understood as acts containing signs of the same corpus delicti. The author explains that the ongoing crime can be divided into a number of individual crimes provided for by the same norm ^{[7, p. 261]}.

It is worth recognizing the correct opinion of N. A. Babiy, according to which crimes with the same qualifications (i.e. qualified according to the same norms of the General and Special parts of the criminal law) are legally identical. At the same time, the author proposes to distinguish a category of non-identical crimes of the same type, which he recognizes, firstly, crimes classified according to different parts of the same article of the Special Part of the Criminal Code, secondly, crimes that differ in stages of their commission, thirdly, cases of performing different roles in the commission of crimes, in particularFourth, a combination of any of the above differences ^{[8, p. 31]}.

Accordingly, acts that are provided for by one criminal law norm (legal identity) should be recognized as identical. For example, if the perpetrator committed a violent sexual act first alone, and then jointly with another person, then the deed cannot be recognized as a single ongoing crime, even if all other signs are present ^{[9, p. 20]}.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated 04.12.2014 No. 16 "On judicial practice in cases of crimes against sexual integrity and sexual freedom of the individual" clarifies the concept of a continuing crime regarding violent sexual criminal acts. Thus, in accordance with paragraph 8 of this resolution, in cases where several rapes or several violent acts of a sexual nature were committed for a short time against the same victim and the circumstances of their commission testified to a single intention of the perpetrator to commit these identical acts, the deed should be considered as a single ongoing crime, subject to qualification according to the relevant parts of Article 131 or Article 132 of the Criminal Code of the Russian Federation.

Further, paragraph 9 clarifies: if the perpetrator committed rape and sexual violence against the same victim in any sequence, the act should be qualified according to the totality of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation, regardless of whether there was a time gap between rape and sexual violence.

As can be seen, the Supreme Court of the Russian Federation, as a mandatory sign of a continuing crime, in addition to those mentioned above, indicates one victim against whom violent acts of a sexual nature are committed.

Guided by these provisions, the following signs can be identified that characterize the ongoing violent sexual crime:

1) There are several rapes or several violent acts of a sexual nature;

2) actions are committed against one injured person;

3) the circumstances of the commission of these actions indicate the common intent of the guilty person;

4) all actions forming a continuing crime are identical.

Thus, by the verdict of the Industrial District Court of Samara, FIO2 was found guilty of committing a crime under Part 1 of Article 132 of the Criminal Code of the Russian Federation. His actions consisted in the fact that he applied violence to the victim, expressed in the application of multiple punches to the head and torso. Having broken the victim's resistance with violence, FIO2 first performed oral sexual intercourse with her, and then anal sexual intercourse. These actions were qualified by the court as a single ongoing crime under Article 132 of the Criminal Code of the Russian Federation on the basis of "other acts of a sexual nature".

Such a decision is correct, since the actions of the guilty person were identical (provided for by one criminal law norm), covered by a single intent that arose before the commission of these actions.

A.N. Zenkin, referring to the definition of a single continuing crime given in the said resolution of the Plenum of the Supreme Court of the Russian Federation, calls a short period of time during which violent sexual crimes are committed as an obligatory independent sign of a single continuing violent sexual crime, along with a single intent ^{[10, p. 18]}.

However, such an explanation by the highest court should not be interpreted literally, since the short period of time between sexual acts is only a guideline indicating the presence of unity of intent of the perpetrator. Accordingly, this is only one of the circumstances that make it possible to establish a mandatory sign of a continuing crime – unity of intent. As N. V. Tadykova rightly points out, this criterion probably has the right to exist not as a universal one, but as one of the circumstances, which, in particular, may indicate the unity of intent ^{[11, p. 34]}.

A. F. Zalov writes the following on this issue: "The essence of time in the light of the issues under consideration is not to be a criterion (or even one of the criteria) of a continuing crime, but to be a kind of "beacon" for the court in determining the key elements of the subjective side of the act: after all, the shorter the time interval between identical actions aimed at violating the norms of criminal law the more reason to believe that they are based on a single intent, and vice versa, the longer the specified time periods, the less likely it is that the crime being committed is recognized by the individual as a single criminally punishable act" ^{[12, p. 47]}. The scientist rightly believes that it makes no sense to give the gap between identical sexual acts the role of an independent (along with a single intent) feature in determining the continued nature of violent sexual assault. He concludes that it is impossible to abstractly analyze the duration of time intervals between sexual contacts in isolation from other signs of crime ^{[12, p. 173]}.

O. Mikhaylenko and S. Silaev point out the importance of a thorough assessment of the circumstances of the case, carried out in order to establish a single intent in the commission of a single ongoing violent sexual crime. So, as an example of the correct qualification of the actions of the perpetrator, they cite the decision of the Rudnichny District Court of Prokopyevsk, which did not see "signs of a continuing crime in the actions of S., who in his apartment, with a difference of several hours, twice raped G., who came to him for drinking alcohol together. The first time a violent sexual act was committed on the night from 13 to 14 July 2006, the second one was around noon on July 14, 2006, but each time the conflict situation arose anew" ^{[13, p. 74]}.

Accordingly, the presence of an independent intention to commit each of the violent sexual assaults, despite the short period of time between them, indicates the need to impute a set of crimes to the perpetrator.

At the same time, very large time intervals between sexual acts, as a rule, still indicate the absence of a single intention to commit them. So, M. V. Berecheneva gives an example where the perpetrator committed sexual acts with the victim once a year for four years. According to the author's correct remark, it is unlikely that this was covered by a single intention of the culprit, rather, it was re-emerging every time ^{[14, p. 24]}.

In practice, such a criterion as the absence of a time gap between sexual acts is often given sufficient importance to assess a violent sexual act as ongoing.

As noted by the Supreme Court of the Russian Federation in a review of judicial practice on one of the decisions: it cannot be assumed that all K.'s criminal actions were covered by a single intent, since there are significant time intervals between criminal acts, indicating that each time the convicted person had an intention to commit sexual acts arose anew. In such cases, the possibility of recognizing the deed as a continuing crime is excluded.

Thus, the time gap between sexual acts does not always indicate the absence of signs of a single ongoing violent sexual crime. If there is a single intent for all sexual acts that arose before the first of them, there is every reason to consider what was done as a single ongoing crime.

However, the supreme judicial body attaches special importance to the presence of several victims of violent sexual acts, as follows from the above provision set out in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16.

Based on the fact that articles 131 and 132 of the Criminal Code do not contain a qualifying sign of the commission of these crimes against two or more persons, researchers believe that the simultaneous commission of rape (or sexual violence) against several victims forms a set of these crimes (quantitatively directly dependent on the number of victims).

It is worth noting that the sign "commission of a crime against two or more persons", taking into account the orientation of the encroachment on several victims, is defined as qualifying in a number of articles of the Special Part of the Criminal Code of the Russian Federation (most of them are in section VII of the Criminal Code of the Russian Federation). This feature covers cases of committing both a single complex crime and a real set of identical crimes (simultaneous acts in the absence of a single intent to commit them).

It is obvious that in the absence of this feature in the articles of the Special Part, an act committed against several victims, under certain conditions, can be qualified as a single crime. We agree with the opinion that in cases where an encroachment on two or more victims is committed with a single intention and a common goal that arose in advance through a number of identical (in a legal sense) acts, a crime with a plurality of victims acquires signs of a continuing crime ^{[16, p. 239]}.

As G. N. Khlupina notes, the presence of a qualifying sign "in relation to two or more persons" in the norms of criminal law is another confirmation that different victims do not exclude a single ongoing crime at all ^{[17, p. 39]}. Therefore, we consider it possible to commit an ongoing violent sexual crime against several victims.

Judicial practice in some cases also adheres to these positions. Thus, "by the preliminary investigation bodies, T. was accused of committing two crimes provided for in paragraph "b" of Part 4 of Article 132 of the Criminal Code of the Russian Federation, namely that, having met two victims under the age of twelve, he took them to a secluded place where he photographed them partially naked, and then continued sexual acts in relation to one victim in the presence of another.

By the verdict of the Chelyabinsk Regional Court dated November 22, 2013, T. was found guilty of committing one crime under paragraph "b" of Part 4 of Article 132 of the Criminal Code of the Russian Federation, since the court found that T.'s intent was initially aimed at committing sexual acts against two victims, and his actions to implement this intent were committed at one time, in one place, they were continuous, and the object of criminal encroachment was the same - the sexual integrity of minors."

Earlier, the Supreme Court of the Russian Federation also recognized the possibility of qualifying several episodes of violent sexual assault committed by the perpetrator against two or more victims as a continuing act.

For example, the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation satisfied the cassation submission and overturned the decision of the Moscow Regional Court of July 24, 2012.

In the cassation submission, the state prosecutor asked the said decision to be canceled, pointing out that the court unreasonably qualified K.'s actions against five victims with one article of the criminal law (paragraph "b" of Part 4 of Article 132 of the Criminal Code); believed that K.'s actions should have been qualified under paragraph "b" of Part 4 of Article 132 of the Criminal Code independently in relation to each of the victims.

Despite the fact that the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation did not recognize K.'s actions against five victims as a continuing act by the court, it follows from the conclusions of the final document that the reason for this decision was not the number of injured persons, but the absence of a single intent in the commission of violent sexual crimes. In particular, the Judicial Board pointed out that the court, qualifying the actions of K. for all episodes of sexual violence against all victims, as a single ongoing socially dangerous act provided for in paragraph "b" of Part 4 of Article 132 of the Criminal Code of the Russian Federation, K. did not take into account that these actions were committed over a long period of time (from the end of December 2008 to May 30, 2010), moreover with significant time gaps (sometimes more than two months) between the episodes of these actions, with alternating victims. Meanwhile, as single ongoing socially dangerous acts provided for in Articles 131 or 132 of the Criminal Code of the Russian Federation, acts should be regarded in cases where several sexual acts were not interrupted or were interrupted for a short time and the circumstances of their commission testified to a single intention of the person to commit these identical actions.

In giving a legal assessment of what had been done, the Supreme Court, as can be seen, focused on the absence of a single intent, while recognizing the possibility of qualification as a single ongoing violent sexual crime in the presence of several victims.

But currently, the Supreme Court of the Russian Federation, in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16, calls the presence of one victim against whom violent acts of a sexual nature are committed as a mandatory sign of a continuing crime. Although it is obvious that the presence of several victims does not exclude the possibility of evaluating criminal acts both as a single ongoing crime and as a whole. And this is confirmed, among other things, by the presence in the norms of a Special part of the Criminal Code of such qualifying features as "committing an act against two or more persons."

Taking into account the approach of the highest judicial instance that has now been formed on this issue, it can be stated that even with the group commission of these crimes, the totality will be in the case when there are several victims and the perpetrators had a single intention to commit identical sexual acts with them.

In the criminal law literature, this approach is supported by some authors ^{[18, p. 21; 19, p. 107]}. As a rule, researchers justify their opinion by the peculiarities of the object of encroachment - the presence of two or more victims, as well as the absence in Articles 131, 132 of the Criminal Code of the Russian Federation of a qualifying sign "in relation to two or more persons." N. V. Tydykova, speaking about the need to qualify such situations according to the totality of crimes, in particular notes that intent each of the perpetrators was covered by an encroachment on sexual freedom or sexual inviolability of each of the victims, and not a violation of sexual freedom or sexual inviolability in general as an abstract category ^{[19, p. 107]}.

At the same time, based on the signs and the concept of a continuing crime, the presence of several victims with the unity of intent to commit sexual acts against them allows us to consider such an act as a single ongoing crime.

In this regard, it is worth paying attention to another aspect. Rape and sexual assault are not identical. Although the consideration of their objective features indicates the common nature of these acts. Some researchers note that a comparative analysis of the norms of the Criminal Code of the Russian Federation gives grounds to assert that violent acts of a sexual nature are the general norm in relation to rape, and rape is a special norm in relation to the studied composition ^{[20, p. 284, 21, p. 107]}. Obviously, sexual intercourse is a type of sexual activity.

Therefore, in the doctrine of criminal law, it is proposed to preserve only one article "Violent acts of a sexual nature", without detailing the types of sexual acts ^{[22, p. 38]}. G. N. Khlupina, supporting this proposal, notes that the legislator at one time combined two similar forms of embezzlement (appropriation and embezzlement) in one article, having considered they are considered identical and allowing them to be considered as a single ongoing crime with the unity of intent to commit them. In her opinion, a similar decision would be correct in relation to crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation ^{[17, p. 38]}. Other experts in the field of criminal law consider such a legislative decision justified ^{[23, p. 37]}.

Indeed, the absolute identity of qualifying and especially qualifying signs, the nature and amount of sanctions for acts provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation makes the division of violent acts of a sexual nature into two independent elements of a crime legally impractical. The existing consolidation of various sexual acts in separate articles of the Criminal Code of the Russian Federation forces the law enforcement officer to impute a set of crimes in cases of multiple sexual acts committed with a single intent by one perpetrator against one victim.

Paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 defines: "If the perpetrator committed rape and sexual violence against the same victim in any sequence, the deed should be qualified according to the totality of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation, regardless of whether there was a time gap between the rape and violent acts of a sexual nature."

For example, by the verdict of the Oktyabrsky District Court (Perm Krai), FIO1 was found guilty, including of committing acts provided for in paragraph "b" of part 2 of Article 131 and paragraph "b" of Part 2 of Article 132 of the Criminal Code of the Russian Federation. His actions were expressed in the fact that, making death threats and using violence, he committed sexual intercourse with her against the will of the victim. After the rape, FIO1, continuing to make death threats and using violence, committed violent acts of a sexual nature with the victim by inserting a penis into the anus.

Thus, it is currently advisable to combine Articles 131 and 132 of the Criminal Code of the Russian Federation into one with an indication of such a qualifying feature as the commission of these acts against two or more persons. This approach should be recognized as justified, including from the point of view of the consistency of criminal law norms located in Chapter 18 of the Criminal Code of the Russian Federation. Thus, articles 134 and 135 of the Criminal Code of the Russian Federation name the commission of these crimes against two or more persons as an aggravating circumstance. And in Articles 131, 132 of the Criminal Code of the Russian Federation there is such a qualifying feature provided for in parts 5 of these articles as "acts provided for in paragraph "a" of Part three and paragraph "b" of part four of this article if they are committed against two or more minors." If several victims of violent sexual crimes are adults, then the assessment of the actions of the perpetrator in relation to them is given differently, based on a number of the above circumstances.

Obviously, there is a need to include such a qualifying feature in articles providing for liability for violent sexual crimes, regardless of the age of the victim. Such a qualifying feature will cover both a single ongoing crime and a set of crimes in the presence of two or more victims.

At the same time, a single ongoing violent sexual crime should currently be understood as the commission of two or more legally identical (provided for by one criminal law norm) acts united by a single intent that arose before the commission of the first violent sexual act.