Some problems of qualification of violent acts of a sexual nature according to the objective side of the crime

Safonov Vladimir Nikolaevich ORCID: 0000-0002-3676-1894 PhD in Law Associate Professor of the Department of Public Law, St. Petersburg State University of Aerospace Instrumentation; SZF Federal State Budgetary Educational Institution of Higher Education "Russian State University of Justice" (St. Petersburg). 197046, Russia, Saint Petersburg, Alexandrovsky Park, 5A svn205@gmail.com Other publications by this author

Agayev Guloglan Ali oglu ORCID: 0000-0003-0439-5794 Doctor of Law Professor of the Department of Public Law, Saint Petersburg State University of Aerospace Instrumentation 190000, Russia, Saint Petersburg, Bol'shaya Morskaya str., 67A guloglanmvd@gmail.com

The current state of protection of sexual integrity and sexual freedom of the individual is a subject of increased interest to legislators, law enforcement officers and forensic researchers. This is confirmed by the regular appeal to the designated problem by the legislator, the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) and scientists. The Degree of Interest is also supported by public opinion, since resonant problems are constantly being heard in modern Russian society: opposition to pedophilia, up to the chemical castration of pedophiles, the recurrence of sexual crimes, acts associated with sexual crimes. The subject of constant discussion in society is the types and limits of punishments for crimes in this area.

However, it is possible to speak about the success of countering violent sexual crimes only if there are balanced criminal law norms. Considering that the qualification of crimes is a complex logical and psychological process that includes two related stages: the establishment of an identity between a socially dangerous act committed and the signs of a crime provided for in the relevant article of the Special Part of the Criminal Code of the Russian Federation (1), and the legal consolidation of this identity (2), the problems of qualification of violent sexual crimes relate not only to four elements of the corpus delicti, but also to the legal and technical side of the legislative process.

 Referring to the composition of violent acts of a sexual nature (Article 132 of the Criminal Code of the Russian Federation) almost immediately leads to the identification of an obvious problem related to the objective side of the crime. It is quite obvious that despite the importance of the objects of legal protection protected by criminal law and the strict sanctions of the norms corresponding to them, the legislative description of the signs of the objective side of violent sexual acts remains uncertain, which opens up room for incorrect qualification of crimes and other violations of substantive and procedural law.

The object of the study was the legal relations arising in connection with the commission of crimes against sexual integrity and sexual freedom of the individual. Since sexual crimes have a complex nature and, in addition to the actual sexual assault, include attacks on the health and even the life of the victim (in specially qualified formulations), these relationships have also become the object of research.

At the same time, a systematic approach to the study was followed: these relations were considered in interrelation, in the context of comparative legal and proper legal approaches.

The subject of the study is the criminal law norms providing for criminal liability for crimes against sexual integrity and sexual freedom of the individual, mainly the composition of violent acts of a sexual nature (Article 132 of the Criminal Code of the Russian Federation). In this regard, the necessary attention is also paid to related crimes, the theory of qualification of crimes and the composition of the crime.

The purpose of the study is to study the essence of sexual violence and its types. The aim of the study was also to develop the most universal definition of this act, which would avoid legal, technical and law enforcement errors, as well as to develop proposals for the qualification of violent acts of a sexual nature. 

The research methodology is based on the application of general (generalization, observation), general scientific (dialectical, logical, systemic), private scientific (sociological, historical, axiological) and special (comparative legal, formal legal, method of legal hermeneutics) research methods. Special methods were used mainly in the study of the content and types of violent acts of a sexual nature, as well as in the development of proposals for the qualification of violent acts of a sexual nature. 

The results of the study

1. General features of the legislative structure of the composition of violent acts of a sexual nature

Violent acts of a sexual nature are one of the dangerous crimes that significantly violate the sphere of sexual relations and personal integrity. In the Russian Federation, sexual violence is considered one of the most dangerous crimes, and countering it has an obvious priority in the law enforcement sphere. Indicative in this regard is the legislative novelty (No. 3 – FZ) of 28.01.2022, which introduced specially qualified compounds with increased sanctions in Article 132 (as in Article 131 of the Criminal Code of the Russian Federation). Even earlier, a note to Article 131 of the Criminal Code (No. 14 – FZ of 02/29/2012), extending to Article 132 of the Criminal Code of the Russian Federation, which regulates liability for crimes against sexual integrity of persons under the age of 12, became a sign of the legislator's constant interest in the protection of sexual integrity and sexual freedom of the individual.

  These and other circumstances indicate the constant interest of the Russian legislator in the criminal protection of sexual integrity and sexual freedom of the individual, including by strengthening criminal liability.

It is quite expected that the legislative novelty of criminal law norms and the lack of a legal concept of signs of a crime give rise to problems of a law enforcement nature. Among the problems is the interpretation of the objective side of sexual violence. In particular, 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" [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" // Bulletin of the Supreme Court of the Russian Federation. 2015. No. 2] also does not provide explanations on this issue, which entails problems of law enforcement. There is also a discussion on this issue in the doctrine of criminal law, which is understandable, because the signs of the objective side of the crime are of crucial importance, since they: indicate the nature and degree of public danger of the act, form the basis of legal responsibility, are a differentiating criterion, etc. Recall that the objective side of the crime is of crucial importance for establishing the subjective the parties to the crime, which has a retrospective nature. According to the well-known criminologist Ya.M. Brainin, the subjective side of criminal encroachment should include "all mental activity accompanying the commission of a crime, in which intellectual, volitional and emotional processes proceed in complete unity and interdependence" ^{[2, p.227]}. Ya.M. Brainin is not alone in his judgments. In turn, the importance of the subjective side lies in the fact that the establishment of all its signs is also a necessary condition for the correct qualification of a socially dangerous act as a crime from the perspective of the objective side. Thus, the establishment of the subjective side of the crime is preceded by an accurate study of the objective signs of the act, reflected in the intellectual and volitional signs of guilt as the main sign of the subjective side of the crime.

The analysis of the disposition of Article 132 of the Criminal Code of the Russian Federation shows that the objective side of the main composition of the specified crime is characterized by an act in the form of an action and an alternative way of committing the specified crime ^{[4, p. 816]}. The signs that make up the objective side of the main composition of the specified crime are sodomy, lesbianism, and other sexual acts.

An appeal to the current criminal legislation and practice of the Armed Forces of the Russian Federation shows that the content of such concepts as sodomy, lesbianism and other sexual acts has not been disclosed anywhere. Accordingly, the lack of a legal definition of the essence of these actions leads to problems in the qualification of committed acts. The generalization of the definitions of these concepts presented in the scientific literature allows us to conclude that one of the types of homosexuality is sodomy, that is, sexual contact of a male person with a male person by inserting the penis of one person into the anus of another ^{[3, pp. 174-180]}.

From the literal interpretation of the disposition of this article, it follows that the legislator identified only one type of homosexual relationship – "sodomy". In this case, the question arises as to how to define other types of male homosexuality? The answer to this question is given in the scientific literature, in particular, they are attributed to other sexual acts ^{[6, pp.56-63]}.

Lesbianism is a manifestation of female homosexuality and is a specific way for female persons to satisfy sexual needs with each other, provided that the sexual organ of at least one female person is involved. It should be noted that the structure of the female reproductive system, unlike the male one, allows any manifestation of female homosexuality to be attributed to lesbianism.

Thus, violent sexual acts between males are expressed in two actions – sodomy and other sexual acts, and any violent sexual act between females is only violent lesbianism. By the way, this conclusion is of great practical importance for the qualification of an act under Article 132 of the Criminal Code of the Russian Federation.

Therefore, taking into account the practical meaning of these actions, we consider it advisable in the disposition of Article 132 of the Criminal Code of the Russian Federation to replace the definitions of "sodomy" and "lesbianism" with a single term "homosexual acts", which will accurately determine the range of actions forming the objective side of the specified composition, and avoid discussions in determining the content of sodomy and lesbianism and ensure uniform law enforcement.

2) The most relevant qualification and legislative problems of the composition of violent acts of a sexual nature

A significant problem is the issue of establishing the content of other sexual acts. A generalization of current legislation and law enforcement practice shows that such actions include any other than sexual intercourse, lesbianism, sodomy, including forcible coercion by a woman of a man to commit sexual intercourse [Generalization of the practice of consideration by the courts of the Chelyabinsk region of criminal cases of crimes against sexual integrity and sexual freedom of the individual (Chapter 18 of the Criminal Code of the Russian Federation) (approved by the Presidium of the Chelyabinsk Regional Court on June 11, 2014). URL: https:// garant.ru .].

The doctrine notes the inaccuracy of interpretations of other actions on a residual basis. There is an ambiguous, and, in our opinion (taking into account strict sanctions for the act), and unsafe statement that the law enforcement officer should qualify as violent acts of a sexual nature any form of contact exceeding the boundaries of sexual activity (kissing against the will of the victim, one-time touches to the buttocks or breasts through clothes while dancing) ^{[7, p. 40-44]}. In the context of what has been said, T.V. Kondrashova believes that the legislative turnover "and others" implies actions that are comparable to those indicated in the disposition of the article. According to the author, the actions applicable to Article 132 of the Criminal Code of the Russian Federation should be comparable in their form to such actions as sexual intercourse, lesbianism and sodomy ^{[5, p. 74]}. In our opinion, the important thing here is the emphasis on the comparability of the public danger of actions.

 A.A. Bimbinov notes that since sodomy and lesbianism are characterized by a contact form and are sexual in nature, other actions should also have the same signs ^{[1, pp. 105, 119]}.  Literary sources also offer other criteria for understanding other sexual acts. From the above, it can be concluded that the definition of other sexual acts in the presence of doctrinal and law enforcement abundance still needs to be updated, which would exclude an excessively broad interpretation.

Considering the above, we believe that the concept of other sexual acts needs to be detailed and normalized. As a working option, other actions of a sexual nature can be defined as, "the commission of violent similar forms of sexual intercourse that are associated with sexual penetration into the natural cavities of the victim(s), forcing the victim(s) to perform similar actions against the perpetrator, as well as the commission of sexual imitation against the will of the victim(s) intercourse.

It follows from the disposition of Part 1 of Article 132 of the Criminal Code of the Russian Federation that in order to recognize a violent sexual act as criminally punishable, it is necessary that the guilty person commit them with the use of violence, the threat of its use or using the helpless state of the victim(s). The content of these concepts is explained in paragraphs 2-5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 mentioned above.

However, in practice, it is difficult to establish the fact of violence in general, and against minors in particular. Let us turn to the case of multidirectional judicial assessments. For example, the court of cassation overturned the verdict under paragraph "b" of Part 4 of Article 132 of the Criminal Code on the following grounds. By the verdict of the Kolomna City Court, P. was convicted under part 2 of Article 135 of the Criminal Code of the Russian Federation. By the appeal ruling of the Moscow Regional Court, the sentence was changed and the actions of P. were reclassified to paragraph "b" of Part 4 of Article 132 of the Criminal Code of the Russian Federation. The court of first instance found that P. entered his son's room, lay down in bed with him and, without using violence, put his hand into his underpants and began to make various movements on his genitals. After the son tried to get rid of P., he asked him to be quiet, and continued to touch his genitals until the child pulled out his hand and pushed him away. The actions were qualified by the court under Part 2 of Article 135 of the Criminal Code of the Russian Federation. The court of Appeal reclassified the actions, justifying that P.'s actions against his son were precisely violent, since P. demanded that he behave quietly, suppressing his will to resist, using physical force, restricted his movement and against his will continued to touch his genitals until he ran away. Taking into account the young age of the victim and the advantage of P. in physical strength, actions to restrict movement constitute violence. However, the court of cassation pointed out that in itself the advantage of P. in physical strength and the young age of the victim are not grounds for qualifying actions as committed with the use of violence. In this regard, the case has been transferred to a new appeal [Ruling of the First Court of Cassation of General Jurisdiction No. 77-965/2020 dated June 24, 2020 URL: https://1kas.sudrf.ru / (accessed 02/16/2023)].

A different approach to understanding violence as a constructive sign of the composition of violent acts of a sexual nature is seen in another criminal case. So, the Soviet District Court of the Republic of Crimea dated June 26, 2018 in case No. 1-31/2018 found that Sh.E.S., while in the home of S.T.S., approached her and, using violence, grabbed her with his hands, knocked her to the floor, and lay on top of S.T.S., which deprived the victim opportunities to actively resist. Then S.E.S., against her will, lifted her nightgown and began to touch S.T.S.'s penis with his hand, then inserted the fingers of his hand into the latter's penis. Then S.E.S. took off his trousers, and began to touch the bare thighs and buttocks of S.T.S. He continued such actions for about 1-2 minutes, or rather until he received sexual satisfaction. Then he got dressed and ran away [Verdict of the Soviet District Court of the Republic of Crimea dated June 26, 2018 in case No. 1-31/2018. URL: sudact.ru/regular/doc/2fsask1U65Jw / (accessed 09/01/2023)]. It was the imitation of sexual intercourse, coupled with contact touch and the insertion of fingers into the genital organ of the victim, that became the reason for the conviction of the perpetrator of the crime provided for in Article 132 of the Criminal Code of the Russian Federation by the court. 

As for the qualification of an act involving the threat of violence, the latter must be real. In addition, it should be borne in mind that the fact of violence is objective, and the threat is subjective, in particular, the reality of its use should be perceived by the victim(s) ^{[8, p.39]}.

In law enforcement, it is particularly difficult to establish the fact of the helpless condition of the victim. The Supreme Court of the Russian Federation explained that the helpless state is caused by various reasons: physical condition, mental disorder, age. We agree with those criminologists who believe that for the qualification of a crime on this basis, a combination of two conditions is necessary: an objectively established fact of a helpless state and a subjective awareness (understanding) by the guilty person of the helpless state of the victim ^{[9, p. 116]}.

The main composition of violent acts of a sexual nature is designed as a formal one: the crime should be considered completed from the moment of the beginning of sodomy, lesbianism, and other sexual acts using violence, threats, or the helpless state of the victim (victim). It is advisable to recall that in cases where these actions are carried out between persons voluntarily and without violence in the criminal law sense, they do not constitute a crime. Therefore, in order for them to be recognized as a criminally punishable act, it is necessary that the guilty person commit them with the use of violence, the threat of its use or using the helpless state of the victim(s) ^{[11, pp.26-31]}.

A number of special cases are dissonant with the mechanism of sexual violence. For example, an act of bestiality combined with the use of physical violence or the threat of its use against the owner of the corresponding animal is not an encroachment on sexual freedom (sexual inviolability) of a person, since similar behavioral acts are not covered by the disposition of Article 132 of the Criminal Code of the Russian Federation. If we talk about acts of necrophilia, then this is also not covered by the disposition of Article 132 of the Criminal Code of the Russian Federation, because necrophilia is sexual attraction to corpses and sexual acts with them. A necrophile is sexually aroused and gets an orgasm both from direct contact with a corpse, and from dismembering it, inhaling the smell of blood or cadaverous odor. Extreme forms of necrophilia are considered to be the desire to abuse a corpse (it often takes the form of cutting off mammary glands and cutting out genitals) and eating parts of a corpse, including genitals. These actions are qualified under Article 244 of the Criminal Code of the Russian Federation ^{[10, p.10]}.

The connection of satisfaction of sexual passion with violence, the threat of its use or with the helpless state of the victim is indicated in the law, the practice of the Armed Forces of the Russian Federation and doctrinal sources. If the actions committed against the body of the injured person are objectively devoid of a sexual nature (whipping, biting, scratching, burning the body with cigarettes, etc.), they can be qualified under Article 132 of the Criminal Code of the Russian Federation only on condition that the intention of the guilty person was aimed at arousing and (or) satisfying his sexual passion in this way, in particular in this connection, the crime committed (based on the direction of intent) should be regarded as a special case of encroachment on sexual freedom or sexual inviolability of the victim. Otherwise, the deed should be considered as an encroachment on the bodily integrity of a person, which, if there are grounds, can be qualified as a crime against the health of a person (Articles 111, 112, 115 of the Criminal Code of the Russian Federation). The latter applies, in particular, to situations where a person, in order to satisfy his sexual passion, engages in: self-masturbation, observing the physical torture of the victim, carried out on the instructions of this person, or does the same in the presence of a naked person who is in a helpless state; stabbing the victim's mammary glands or genitals with a knife, sucks and he licks her wounds, rubs his penis against them, and the like. Because sexual freedom (sexual inviolability) the injured person does not suffer in such cases, and the criminal encroachment is aimed at the health of another person, incrimination of the act provided for in Article 132 of the Criminal Code of the Russian Federation is excluded in such cases.

Conclusions.

1. Variants of qualification situations, defined with varying degrees of severity by objective and subjective signs of an act, suggest their typologization as a prerequisite for the correct assessment of the actions of the subject. The variety of variable actions that can potentially be covered by the generic concept of sexual violence motivates the search for their reasonable limitation. Such guidelines can be: a) understanding of violent similar forms of sexual intercourse; b) the axiological (value) aspect of the object of encroachment. Regarding the latter, we note, for example, that touching the buttocks of a partner through clothes during a dance or kissing an unfamiliar girl on a subway escalator (a case discussed in the media) They "do not pull" for public danger for an act provided for in Article 132 of the Criminal Code of the Russian Federation.

2. An open list of other acts of a sexual nature as a type of general (generic) concept – violent acts of a sexual nature – creates uncertainty and scope for an expansive interpretation by law enforcement officers, which is unacceptable taking into account the principle of legality (Article 3 of the Criminal Code of the Russian Federation) and possible negative consequences due to the severity of the sanctions of the norm provided for in Article 132 of the Criminal Code of the Russian Federation.

3. The analysis of normative acts and law enforcement experience allows us to conclude that Article 132 of the Criminal Code of the Russian Federation needs legislative reconstruction. In our opinion, the disposition of this norm should be reconstructed taking into account the nature of the actions and the axiological aspect of the object of encroachment as follows:

- the constructive signs of the corpus delicti "sodomy" and "lesbianism" should be abolished, supplementing the norm in question with the constructive sign "homosexual acts", which will accurately determine the range of actions forming the objective side of the specified composition;

- the norm in question should be supplemented with a note revealing the concept of other sexual acts, defining them as, "the commission of violent similar forms of sexual intercourse that are associated with sexual penetration into the natural cavities of the victim(s) or forcing the victim(s) to perform similar actions against the perpetrator (except sodomy), as well as committing, against the will of the victim(s), imitation of sexual intercourse with the help of contact touch by manipulating the naked genital organ or influencing the anus of the victim(s) or the perpetrator (except for lesbianism)."

This would significantly reduce the cases of formal and expansive approaches to the qualification of acts under Article 132 of the Criminal Code of the Russian Federation.