Criminal liability for sexual offences against minors in the United States, Canada and the United Kingdom

Ostroushko Aleksandr Vladimirovich ORCID: 0000-0003-0595-9205 PhD in Law Associate Professor, Department of International and Public Law, Financial University under the Government of the Russian Federation 38 Shcherbakovskaya Lane, office 805, Moscow, 109542, Russia ostroushko@mail.ru Other publications by this author     Chukreev Vadim Andreevich ORCID: 0000-0002-1354-5443 PhD in Law Deputy Prosecutor, Prosecutor's Office of the Sverdlovsk Region 21 Moskovskaya str., Yekaterinburg, Sverdlovsk region, 620014, Russia chukreevva@mail.ru

Bukalerov Sergei Aleksandrovich Postgraduate student, Department of Criminal Law and Criminology, Law Academy of the Ministry for Justice of the Russian Federation 10a Bolshoy Karetny str., Moscow, 127051, Russia sergbukalerov@yandex.ru

To date, Russian legislation does not contain a detailed description of the types and forms of criminally punishable violence against children, in particular, there is no normative definition of the term "other sexual acts", which creates law enforcement difficulties. The fact that there is no normatively fixed prohibition of incest should also be recognized as a problem. In this regard, in order to create an optimal model for countering sexual crimes against minors in our country, we consider it possible to turn to the positive experience of legislators from foreign countries. In this article, the authors examined the norms of the criminal laws of Canada, Great Britain and several US states. All countries belong to the Anglo-Saxon family of law, which is characterized by a detailed differentiation of criminal liability for crimes against sexual integrity and public morality of minors, as well as rather severe measures of criminal liability for these acts.

The work uses classical methods of cognition for legal research, in all their totality, the greatest prerogative was given to methods: comparative, formal-logical, legal analysis, document research, as well as content analysis of law enforcement practice materials, statistical reports, and media materials. The use of these methods of cognition made it possible to identify modern directions for ensuring the sexual integrity of minors, to substantiate proposals to increase its effectiveness by implementing positive foreign experience, taking into account current trends in the formation of criminal policy in our country.

The study of responsibility for crimes related to sexual exploitation and sexual abuse of minors in the countries of the Anglo-Saxon system has already been conducted. Thus, the general issues of countering sexually motivated crimes in the United States of America were investigated by A.Ya. Avdalyan ^[1].

In particular, A. G. Donchenko and A. A. Tokareva recognized the issues of "sexual exploitation and sexual abuse of minors as a global problem of our society" ^{[2, p. 54]}. Nonviolent attacks on the sexual integrity of minors under the criminal law of foreign countries were the subject of research by A.A. Bimbinov ^{[3, p. 156]}. The specifics of the regulation of criminal liability for crimes against sexual freedom and sexual integrity committed against minors are summarized in the article by A.V. Maslov and N. V. Pyadukhov ^[4]. A number of private issues of protecting the sexual integrity of minors in foreign countries were considered by V.V. Stalbovsky – the age of sexual consent ^[5], M. V. Bercheneva – the Institute of mutual consent ^[6], A.A. Nikolenko – preventive measures ^[7]. A.N. Kameneva, based on the analysis of foreign experience, proposed to introduce criminal liability for sexual relations between close relatives, however, her position can be considered devoid of specifics ^[8] and does not correspond to the current state of criminal law policy. Among the foreign researchers of criminal law measures to protect sexual freedom and sexual integrity of minors, I would like to mention the works of Ruby Andrew ^[9], Jennifer Foster, David Carson ^[10].

The novelty of this work lies in the fact that the authors, exploring responsibility for sexual crimes against minors, paid special attention to criminal legal measures to counter pedophile incest in the legislation of the United States and Canada and the United Kingdom. Previously, the issues of pedophile incest were not the subject of research by domestic scientists. In the works of foreign authors, these problems are more often investigated by representatives of psychological and medical sciences rather than legal ones.

According to the results of foreign studies, incest is the most common form of sexual abuse of children, accompanied by the most severe consequences. According to WHO, "one in three adult women and one in five adult men were exposed to one or more forms of sexual violence in childhood or adolescence, and the vast majority of these abuses were of an intra-family nature"^{[11, p. 204]}.

Back in 1979 in the USA, D. Russell interviewed more than 900 randomly selected women in San Francisco about their childhood experiences and found that "38% of them were victims of sexual harassment by relatives." Studies conducted in the United States and Great Britain have shown that from 20 to 30% of women and 10% of men were subjected to various kinds of sexual abuse in childhood, and in 45% of cases by family members. At the same time, as in all countries, pedophile incest is committed by both relatives and persons living with the parents of the victims (cohabitants of the parents).

In the USA, cases of violence against adopted children are quite common ^{[12, p. 140]}. According to D. Finkelhor, "girls who are raised in families with a stepfather are at the greatest risk of sexual molestation at a young age" ^{[13, p. 24]}, and according to K. Meisselman, "there are no cases of female homosexual relationships within a nuclear family. The study of multiple incest models emphasizes that incest behavior of fathers is more common, not towards relatives, but towards adopted daughters" ^{[14, p. 201]}.

In United States law, the treatment of incest in specific states is not the same. The most severe penalties for incest are applied in Massachusetts, Virginia, Texas and Oregon, where incest is punishable by imprisonment for up to twenty years, Georgia, where this act is punishable by thirty years in prison, Wisconsin, where the punishment for incest is up to forty years in prison, and in the states of Colorado, Nevada, Montana, Idaho and Michigan, where incest is punishable by up to life imprisonment^[15].

In Colorado, violations of the following prohibitions are punishable by imprisonment for a term of two to six years and a monetary fine from $2,000 to $500,000: marriage; sexual penetration, invasion or contact with an ancestor or descendant. At the same time, the concept of "descendant" has an expanded interpretation and includes not only a child born naturally, but also a child who entered the family after adoption. These include stepsons, full- and half-siblings. All uncles, aunts and nephews are also included here. If there are aggravating circumstances, the punishment is increased, and criminals receive imprisonment from four to twelve years and a fine from $3,000 to $ 750,000. A conviction for "incest or aggravated incest also leads to lifelong supervision in accordance with the 1998 Law on Lifelong Supervision of Sex Offenders, and the perpetrator receives lifelong electronic labeling" ^[16].

Minors who have not reached the "age of consent" in the United States cannot consent to sex with an adult (unless they are legally married). Thus, any form of sexual activity involving an adult and a minor may violate the law. This is true even if the child does not interfere with sexual intercourse and such sexual contact with a person who has not reached the "age of sexual consent" is considered rape, and is referred to by a special term - "statutory rape".

The term "statutory rape" is applied to a relationship related to the perpetrator's position in his relationship with the victim. In many states, sexual contact between people is prohibited when an imbalance of power in a relationship implies a certain power over the victim. This includes situations involving a parent and a child, as well as a teacher, a representative of the security services or the administration of an educational institution on the one hand, and a student on the other. I would like to note that in the United States there are states where the term "statutory rape" is not used, but instead the act is qualified as sexual violence, corruption of a minor or sexual intercourse with a child. Thus, it can be concluded that legal terminology in the United States varies from state to state ^[17].

We have revealed that in various states there is no unified approach to the possibility of involving persons related to a victim of sexual violence as subjects of sexual crimes. As an example, in Idaho, adultery of persons related by any blood relationship is punishable up to life imprisonment, and in New York State, in accordance with the decision of the state's Highest Court of 2014, the marriages of an uncle and a half-blood niece are recognized as legal ^[18]. In Utah, "the sexual act of a person who is an ancestor, descendant, brother, sister, uncle, aunt, nephew, niece or cousin of a minor is punishable by a fine of up to $5,000" ^[15].

The classic notion of "rape" in America is forced sexual contact, but in some states rape is only a classic sexual act where sexual intercourse with a woman or child is performed under duress. States may use different laws with different terminology, but they all prohibit forced sexual acts (whether vaginal, oral or anal sex). In the case of "statutory rape", the use of force or threats is not a mandatory element of the corpus delicti.

"Statutory rape" usually involves a minor participant or other vulnerable person who intentionally engages in sexual relations with an adult or a person who has some power or control over him.

However, in cases involving a minor, the State does not assume consent based on the age of the child. As a result, law enforcement agencies do not need to prove that the offender knew about the child's age when using any force or coercion.

In cases where the perpetrator has power over the victim, many state laws require that sexual conduct between the parties be proven. If the incident involves actual force or coercion, many states prosecute the perpetrator on more serious charges, such as child molestation or aggravated rape.

Most rape laws are based on the age of "legal consent to sex," which varies from state to state. In many states, including North Carolina and Michigan, "the age at which a person can legally consent to sex is 16 years old, but this is not a dogma and there are states where this age has been raised to 17 or 18 years"^[15].

From the point of view of American lawmakers, minors who have not reached this age are too immature to make a decision that may have consequences, such as pregnancy or sexually transmitted disease. Society must protect them from sexual exploitation, for which sex with them is classified as a crime. It is important that the "age of consent" is different from the "age of majority", which allows you to sign contracts or vote.

The description of the circle of persons who may be subjects of incest in the legislation of the state of Rhode Island deserves the attention of the legislator of the Russian Federation. It states that "no one should marry his brother or sister, parent, grandparents, child, grandson, stepfather, spouse of grandparents, child of spouse, grandson of spouse, child of brother or sister of parent"^[19]. In this state, there is no criminal punishment for incest, by mutual consent between people aged sixteen and older. In Rhode Island, only incestuous marriages are criminalized.

Let's analyze the norms of the criminal laws of two US states - North Carolina and California. It is important to note that the text of the articles of the two documents under consideration protecting children from sexual assault differs significantly. Thus, § 14-27.1 of the Criminal Code of North Carolina contains definitions, in particular, "sexual intercourse means cunnilingus, fellatio, anilingus, or anal intercourse, but does not include vaginal intercourse. Sexual intercourse also means penetration, no matter how insignificant, of an object into the genital or anal opening of another person's body. Sexual contact means touching the genitals, anus, breasts, groin or buttocks of any person, or touching another person with his own genitals, anus, breasts, groin or buttocks. Touching means physical contact with another person, regardless of whether it was carried out directly or through the clothes of the person who committed the offense, or through the clothes of the victim"^[20].

In paragraph 1 of 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", a narrower definition of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation is given, these include: sexual intercourse, sodomy, lesbianism and other sexual acts against the victim persons (the victim or the victim) who are committed against his will and consent and with the use of violence or with the threat of its use to the victim or to other persons, or using the helpless state of the victim ^[21]. At the same time, there is no legal interpretation of the term "other sexual acts", which creates difficulties in law enforcement practice.

The statutes of the Criminal Law of the state of North Carolina establish two degrees of severity of rape, so it says about rape of the first degree and second degree.

§ 14-27.2 provides a complete description of the person guilty of first-degree rape, who must be over 12 years old and 4 years older than the victim. The victim's age is under 13 years old. § 14-27.3 describes the composition of second-degree rape, when rape is committed with violence and against the will of another person; or with someone who is mentally retarded, mentally incapacitated or physically helpless, and the person committing the act knows or should know it.

Important for us is section 14-27.7, which establishes responsibility for sexual intercourse and sexual crimes when the minor victim is the child of the perpetrator, or lives in a house and the perpetrator has custody of her or the perpetrator is an agent or employee of any institution (private, charitable or public) and its functions include custody of the victim. Consent to sex in this case is not a defense against the charge. Paragraph "b" of this paragraph establishes liability if the perpetrator is a teacher, coach or employee of any other school staff.

§ 14-27.7 states that the victim may also be 13, 14 or 15 years old, and the perpetrator in this case must be at least six years older.

Nowhere earlier in the laws of foreign countries did we come across the provision provided for in § 14-27.9, where there is a definition that "during prosecution there should be no presumption that a person under the age of 14 is physically incapable of committing sexual crimes or rape of any degree, or that a male child under the age of 14, he is unable to engage in sexual intercourse"^[20].

We can state that the state of California currently has the most developed criminal legislation on liability for sexual crimes than in other US states. Chapter 1 of Section 9 of Part One of the California Criminal Code is called "Rape, kidnapping, carnal abuse of children and seduction" and contains 8 articles. The concept of rape in California is "this is a sexual act committed under any of the following circumstances: if a person who is not the spouse of the person who committed the act is unable, due to a mental disorder or mental or physical disability, to give legal consent, and this is known to the person who committed the act; if it is committed against the will of the person by force, violence, coercion, threat or fear of immediate and unlawful bodily harm to this or another person; if the person cannot resist under an intoxicating or anesthetic substance and this condition was known or should have been known to the accused; if the person does not realize the nature of the act at that time and the accused knows this"^[22].

The expression "unconsciousness of the nature of the action" in California law means inability to resist and is described in great detail. Let's focus only on the important characteristics of the victim that California lawmakers require to be taken into account: was unconscious or asleep; did not realize, did not know, did not perceive that the act took place; did not know, did not perceive and did not realize the essential characteristics of the act in connection with the actual fraud; did not know, did not realize, did not perceive the essential characteristics acts in connection with deception that sexual penetration served to fulfill a professional purpose; if the act was committed against the will of the victim by threatening to take revenge on the victim in the future, etc. In this paragraph, the term coercion means a direct or implied threat of force, violence, danger, or retaliation sufficient to compel a person with ordinary susceptibility to perform an action that would not otherwise have been performed, or to consent to an action that he would not otherwise have obeyed.

According to Article 261.5, illegal sexual intercourse is recognized as sexual intercourse committed with a person under the age of 18 who is not the spouse of the person who committed the crime. Moreover, if a person more than three years older than the victim enters into an illegal sexual act with a minor, then he will be found guilty of committing a serious crime.

The additional civil liability of an adult who has entered into sexual intercourse with a minor in the form of monetary compensation to the victim, which depends on the age difference between the victim and the perpetrator, deserves attention.

Article 269 states that a person who commits any of the following "acts against a child under the age of 14 and seven or more years younger than this person: rape; rape or sexual penetration, by consent; sodomy; oral copulation; sexual penetration, is found guilty of sexual abuse of a child when aggravated circumstances and is punishable by imprisonment for a term of 15 years to life imprisonment"^[22].

Criminal liability for incest is established in Article 285 of the State of California, where "persons who are within the degrees of consanguinity when marriages are declared incestuous and invalid by law, who intermarry with each other or commit adultery with a person under 14 years of age or older" are found guilty. Such acts are punishable by imprisonment in a State prison"^[22].

The California Criminal Code defines the concepts and defines the measure of responsibility for such acts as sodomy, sodomy, oral copulation, obscene or lascivious action. For any of the actions of an adult over the body or any part of it, as well as the genitals of a child under the age of 14 with the intention to excite or satisfy lust, passion or sexual desire of this person or child, criminal liability is provided in the form of imprisonment for up to 8 years ^[22].

In the UK, in 2022, amendments were made to the "Law on Sexual Crimes"^{[23, p. 100]}, according to which sexual activity with a child family member is prohibited under threat of imprisonment for up to fourteen years^[24].

There is no normative definition of "sexual exploitation of children" in England, in theory it recognizes "any form of sexual abuse of children that occurs when a person or group of persons takes advantage of an imbalance of power to coerce, manipulate or deceive a child under the age of 18 and force sexual acts in exchange for what is needed or what the victim wants, and/or for financial gain or status enhancement"^[23]. The victim, if he has not reached the age of majority, is considered to have been sexually exploited, even if the sexual acts occur by mutual consent. At the same time, the sexual exploitation of children is not always associated with physical contact, it can also happen through the use of technology.

We consider it correct and justified to have a single "Sexual Offences Act" of 2003 in the UK, according to the provisions of which rape is a crime with elementary intent, and intoxication is not an excuse. Unlike Article 131 of the Criminal Code of the Russian Federation, rape in England involves penetration of the penis into the vagina, anus or mouth. Penetration can be any part of the body (for example, a finger, tongue, foot) or anything else (for example, a bottle). According to Article 3, sexual violence is touching, it has a broad definition and includes touching another person with any part of the body or anything else. Touching includes touching equivalent to penetration, such as kissing.

A woman can commit this crime only as an accomplice. Rape carries a maximum penalty of life imprisonment.

Sexual violence is a crime in any case and carries a maximum penalty of 10 years in prison. Coercion to perform penetrative sexual acts without the consent of the victim is punishable by life imprisonment.

In this case, the crime can only be committed in words, for example, the accused forces his victim to perform a sexual act such as masturbation, in which only the victim participates, this crime covers situations where, for example, the applicant is forced to perform sexual acts involving his own personality, such as masturbation, or enter into sexual relations with a third person whether they want to or not, or engage in sexual relations with an abuser, for example, a woman forces a man to penetrate her.

The law distinguishes two separate sexual offences: penetrating and non-penetrating. The crime of non-penetration carries a maximum penalty of 10 years in prison, and penetrating - life imprisonment.

The 2003 Law defines the following categories of crimes against children of different ages: crimes against persons under the age of 13; crimes against persons under the age of 16; crimes against persons under the age of 18; crimes against children under the age of 13 (articles 5-8).

Article 5 provides for liability for the rape of a child under the age of 13 and means the deliberate penetration of a penis into the vagina, anus or mouth of a child. As we can see, the concept of rape is broader here than in the Criminal Code of the Russian Federation and includes penetration into the anus or mouth. Article 6 criminalizes intentional sexual penetration into the vagina or anus of a child under 13 years of age with a part of the perpetrator's body or anything else, and under article 7, it is even a crime to sexually touch a child under 13 years of age.

Article 8 considers it a crime to intentionally coerce or incite a child under the age of 13 to participate in sexual activities and includes two elements of the crime: sexual acts with penetration and sexual acts without penetration. Such coercion is punishable: without penetration - up to 14 years in prison, with penetration – life imprisonment.

It is important that the law considers that a child under the age of 13 under no circumstances has the legal capacity to consent to any form of sexual activity.

Articles 25 to 27 of the Law, which are called "Sexual crimes against children in the family", are important for us: These crimes are committed "in the family and cover situations where someone lives in the same household with a child and takes a position of trust or power over this child, as well as relationships determined by blood ties, adoption, foster family, marriage or cohabitation as partners ^[23]. In our opinion, this understanding of the "family" is correct and should be enshrined in domestic legislation.

For the purposes of articles 25 and 26, family relations are divided into "three categories: first, the parent, grandparent, brother, sister, foster parent, stepbrother, stepsister, uncle, aunt, foster parent, etc., will always be family members; second, the partner of the other parent or cousins brothers and sisters will be family members only if he lives or lived in the same household, or participates or participated in the care, supervision or sole custody of the child"^[23]. The third category is similar to the second, except that it applies only to those who live in the same household and are not related.

In cases where penetration is involved, crimes carry a maximum penalty of up to 14 years in prison, and if not related to penetration, the maximum penalty is 5 years in prison.

Articles 64 and 65 relate only to blood relatives and contain liability for crimes of sexual contact with adult relatives.

Part V of the Canadian Criminal Code is called "Sexual crimes, public morality and hooliganism", and Article 150 contains definitions of concepts, for example, "guardian" is "a person who legally or actually has custody or control over another person"^[25].

Article 151 "Sexual interference" establishes the responsibility of a person who "for sexual purposes touches, directly or indirectly, a part of the body or any object of any part of the body of a person under the age of 16." Such an act is punishable by imprisonment for up to 14 years.

The same punishment is established in article 152 "Invitation to sexual touching", where a person may be found guilty who, for sexual purposes, invites, advises or incites a person under the age of 16 to touch, directly or indirectly, a body part or any object to the body of any person, including the body of a person which invites you.

"Sexual exploitation" is punishable under Article 153 (1): the crime is committed by a person who is in a position of trust or authority with respect to a person with whom a teenager is in a relationship of dependence, or who is in a relationship with a person who exploits a minor, and who: a) touches, directly or indirectly, for sexual purposes, a part of the body or any object to any part of the adolescent's body; or b) for sexual purposes invites, advises or incites a minor to touch, directly or indirectly, a part of the body or any object to the body of any person, including the body of the person who invites.

The judge may conclude that a person is in a relationship with a minor who exploits a minor, based on the characteristics of the perpetrator and the circumstances of this relationship, including: (a) The age of the young person; (b) the age difference between the persons; (c) the evolution of the relationship; and (d) the degree of control or influence of that person over the minor.

A "minor" means a person "who has reached the age of 16 but has not reached the age of eighteen" ^[25].

In 2005, the Supreme Court of Canada indicated that incest may include consensual behavior, while rejecting the view that consent to "sexual activity with blood relatives should be legalized", since the prohibition of incest is aimed at preserving the integrity of the family and avoiding incest, the risk of genetic abnormalities in children born from incest relationships, as well as protecting vulnerable family members.

According to Canadian federal law, incest is defined as "having a sexual relationship with a brother or sister (including a stepbrother), a child/parent, or a grandson/grandparents, while it requires knowledge of the existence of consanguinity"^[25].

Thus, it can be concluded that familiarization with the legislation of foreign countries can enrich the domestic norms of the criminal code in the case of the implementation of certain substantive provisions.

The Russian legal system of law does not imply the adoption of a "Law on sexual crimes" like the one available in the UK, at the same time, we consider it necessary to supplement the Family Code of the Russian Federation and the Criminal Code of the Russian Federation with definitions and regulatory prohibitions of incestuous sexual behavior. Noteworthy is the introduction in the Russian Federation of additional civil liability for an adult who has engaged in sexual intercourse with a minor and lifelong electronic labeling of sex offenders.

The primary task is to develop and legally consolidate the concept of "incest" and establish its direct prohibition by criminal law. In our opinion, pedophile incest should be understood as sexual intercourse and other sexual acts between minors and their parents, other relatives, roommates of parents, grandparents, sisters, brothers, uncles and aunts.

The comparative analysis revealed that Russian legislation in the field of criminal law protection of sexual integrity of minors is among the most liberal. Pedophile incest is proposed to be classified as serious crimes. The positive experience of the USA, Great Britain and Canada shows that long prison terms, up to life, for sexual abuse of children, are highly preventive and contribute to reducing the level of this type of crime.

Despite the fact that the Russian Federation does not use the term "age of consent for sexual activity", it is considered established under Article 134 of the Criminal Code of the Russian Federation. The issues of its increase or decrease are beyond the scope of the study of this work and should be resolved by lawyers in close cooperation with representatives of psychological, sociological and medical sciences.

Based on the analysis of the legal experience of the Anglo-Saxon countries, it should be concluded that further analysis, revision and improvement of legislative acts are required in Russia to create a comprehensive regulatory framework providing for both preventive and protective measures to prevent sexual crimes in general, and to protect the sexual integrity of minors in particular.