Difference Art. 131 of the Criminal Code of the Russian Federation Rape from Art. 132 of the Criminal Code of the Russian Federation Violent acts of a sexual nature, lies in the fact that in the first case, the person against whom the crime was committed can only be a woman, and the subject of the crime can be a man, in the second case, criminal liability is provided for violent acts of a sexual nature (sodomy, lesbianism) as in relation to persons and by persons of both sexes.
Art.
132 of the Criminal Code of the Russian Federation, in addition to the fact that starting with a simple crime it is a serious crime and provides for imprisonment from 3 to 6 years, it is also “severe” from the moral and ethical side, not enjoying “authority” among prisoners. Since the composition of Art. 132 of the Criminal Code of the Russian Federation is serious; most often, a preventive measure associated with deprivation of liberty is chosen against the accused, which means a high probability of assigning a real term of imprisonment. The situation becomes even more complicated if there are aggravating circumstances, then the crime becomes especially serious and the maximum punishment can be up to 20 years or even life imprisonment. CRIMINAL LAWYER call now: ☎ 8 (495) 532-75-40
Lawyer under Article 132 of the Criminal Code of the Russian Federation Violent acts of a sexual nature
As a criminal lawyer, I also provide defense under Art.
132 of the Criminal Code of the Russian Federation Violent acts of a sexual nature. Having solid experience in participating in criminal cases as a defense attorney, I guarantee you qualified legal assistance. I have no right to promise you the dismissal of the case or an acquittal; this is prohibited by legal ethics and is not always possible. I offer a competent and professional approach to your case, taking into account all circumstances and significant factors, as well as the desire for the best result. Sexual assault is one of the most serious and controversial charges. On the one hand, the victim suffers severe moral and often physical trauma. On the other hand, there is a high probability of false, unfair accusations when in this way they are trying to “punish”, “revenge”, or even simply justify their own rash act.
Considering the complexity of such cases, their emotionality, the decision made by the court largely depends on the competence and skill of the lawyer under Article 132 of the Criminal Code of the Russian Federation.
Second commentary to Art. 132 of the Criminal Code of the Russian Federation
1. Sodomy as a type of male homosexuality (uranism, pederasty) is understood as the violent satisfaction of sexual passion through intercourse between man and man (per anus). Lesbianism as female homosexuality (sapphism, corophilia, tribadia) is the violent satisfaction of sexual passion by women performing any sexual actions against each other (imitation of sexual intercourse, oral-genital contacts, masturbation, petting, frottage, etc.). Other actions of a sexual nature should be understood as the forcible satisfaction of sexual needs between a man and a woman (except for sexual intercourse), between men (except for sodomy) and through sexual intercourse in which the man is the victim.
2. The content of the signs of the objective side of this assault - violence or the threat of its use, the use of a helpless state - is revealed in the same way as in case of rape.
3. The subjective side is characterized by direct intent.
4. The subject of the crime is a male or female person who has reached the age of 14 years.
5. Comparison of qualifying features specified in parts 2-5 of Art. 132, with similar features of Art. 131 of the Criminal Code shows that they completely coincide, and their content is assessed in the same way (except for infection of the victim; in case of rape, infection is provided for with HIV infection, in case of violent acts of a sexual nature - with a venereal disease).
What is considered sexual assault?
Composition of Art. 132 of the Criminal Code of the Russian Federation provides for liability for sodomy, lesbianism or other acts of a sexual nature. That is, actions falling under Art. 132 of the Criminal Code of the Russian Federation can be considered any actions that are sexually motivated and committed against the will of the injured party and do not fall under Art. 131 of the Criminal Code of the Russian Federation Rape. If rape is forced sexual intercourse, which can only be committed by a man against a woman, then all other violent acts fall under sexual acts.
For some reason, it is often believed that violent sexual acts are necessarily combined with bodily harm and beatings. However, it is not.
- If the party says, “No!”, any sexual acts committed after that will be considered forced.
- If no bodily harm was inflicted, but threats were made to inflict it, then what follows is considered violent action.
- If one of the partners, for example, was sleeping, even in a state of severe alcohol or other intoxication, and could not express agreement or disagreement, the actions committed against him will be considered violent.
Commentary to Art. 132 of the Criminal Code
1. The signs of the main and qualified elements of the crime basically coincide with the corresponding signs of rape (Article 131 of the Criminal Code).
2. The main difference lies in the objective side of the crime (clauses 2, 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 4, 2014 N 16): if in case of rape, responsibility arises for sexual intercourse between a man and a woman in a natural form, where the injured party is woman, then Art. 132 of the Criminal Code presupposes liability for all other violent acts of a sexual nature. Among them, the law specifically identifies sodomy (sexual contacts between men in any form, including oral contact (coitus per os) and interfemoral coitus between men) and lesbianism (sexual contacts between women in any form). Other acts of a sexual nature include sexual contacts between a man and a woman not covered by the concept of rape, where the injured party is the woman, including anal contact (coitus per anum), oral contact (coitus per os), imitation of sexual intercourse (for example, narvasadata, i.e. a surrogate form of sexual intercourse by inserting the penis between the woman’s mammary glands; vinharita, i.e. the same form by inserting the penis between the woman’s compressed thighs). This should also include sexual intercourse in its natural form between a man and a woman, where the injured party is the man.
3. A consequence of the characteristics of the objective side is also that a man can also be classified as the direct victim in this composition, and a woman can be classified as the performer of the main composition.
4. If the intent of a person includes committing (in any sequence) rape and violent acts of a sexual nature against the same victim, the act should be assessed as a set of crimes provided for in Art. 131 and 132 of the Criminal Code. At the same time, to qualify the offense, it does not matter whether there was a gap in time during the commission of rape and sexual assault against the victim (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 4, 2014 No. 16).
Responsibility for sexual assault
According to Art. 132 of the Criminal Code of the Russian Federation for violent acts of a sexual nature, the most severe measure that threatens is imprisonment, is provided for in each part:
- Part 1 – for a period of 3 to 6 years.
- Part 2 - for 4-10 years, if violent acts were committed by a group of people, organized or in conspiracy, with threats to life or injury, combined with extreme cruelty, which caused infection with sexually transmitted diseases.
- Part 3 – for 8-15 years, if the victim has not reached the age of majority or has been infected with HIV or caused other serious harm to health.
- Part 4 – for 12-20 years, if the victim was under 14 years old or died due to negligence.
- Part 5 – from 15-20 years to life is provided for a repeated act against a minor.
In addition, restrictions on freedom and deprivation of the right to hold certain positions or conduct certain types of activities for different periods may be introduced.
Commentary on Article 132 of the Criminal Code of the Russian Federation
1. Sodomy (pederasty) is sexual contact between a man and a man, carried out by introducing the active partner’s penis into the passive partner’s anus (per anus). Other forms of satisfying sexual passion are not sodomy, but can be considered as other actions of a sexual nature, for example, insertion of the penis into the mouth. Other actions of a sexual nature include some forms of sexual contact between a man and a woman: oral, anal sex, penetration with a hand or any object into the genital organ, etc.
2. Lesbianism (sapphism) - female homosexuality, which is sexual contacts between women through imitation of sexual intercourse.
3. The main object of a criminal assault is the established way of life in the sphere of sexual relations, and in the case of committing an act of sodomy, lesbianism, or other acts of a sexual nature against a minor (minor), in addition to this, the normal sexual and moral development of the victim (victim). An additional object is the honor and dignity of the individual, in the most dangerous cases - the life or physical (mental) health of the victim.
4. The objective side consists of sexual contacts between a man and a man (sodomy), a woman and a woman (lesbianism), and the commission of other acts of a sexual nature using: a) violence; b) threats of its use; c) using the helpless state of the victim (victim).
4.1. The actions of a person who has obtained consent to commit an act of sodomy, lesbianism, or other acts of a sexual nature under the threat of disclosing disgraceful information, destruction, damage or confiscation of property, etc., cannot be considered as violent acts of a sexual nature. In some cases, such actions form a crime under Art. 133.
4.2. For the concept and content of physical (mental) violence, a helpless state, and qualifying features, see the commentary. to Art. 131.
4.3. The main structure of this crime - formal, is considered completed at the moment of the beginning of sexual contact between a man and a man (sodomy), a woman and a woman (lesbianism), and the commission of other acts of a sexual nature.
5. The subjective side of the crime is characterized by direct intent. The perpetrator realizes that he is committing acts of a sexual nature against the will of the victim, using violence, the threat of its use, or the helpless state of the victim, and wants to commit them.
6. The subject of a criminal attack may be a sane person of any gender who has reached the age of 14.
7. In parts 2 and 3 comments. Article provides for qualifying and specially qualifying characteristics similar to the circumstances specified in Art. 131.
8. Violent acts of a sexual nature, provided for in parts 1 and 2 of the comment. articles belong to the category of grave crimes, part 3 - especially grave crimes.
Defense under Article 132 of the Criminal Code of the Russian Federation
The charge under Article 132 of the Criminal Code of the Russian Federation is extremely serious, so it is important that a lawyer be with the detainee as soon as possible. Usually they try to build protection in one of the following directions:
- Challenge the fact of the incident or the results of the forensic medical examination.
- Agree that there was mutual consent.
- Compensate the victim for damages.
- Reclassify to a less serious article.
It is necessary to develop a certain line of behavior from the very beginning, which must be strictly adhered to in the future. Careless actions or words spoken under the stress of being detained can undermine the possibility of an effective defense. From timely contacting a lawyer under Art. 132 of the Criminal Code of the Russian Federation often depends on the fate of the accused.
Part 4 art. 132 of the Criminal Code of the Russian Federation or children are not inclined to lie.... a typical trick of modern "Justice"
About the current situation with the consideration of criminal cases on charges of crimes under Part 4 of Art. 132 of the Criminal Code of the Russian Federation cannot be called optimistic from the point of view of the prospects of the defense. In principle, the number of acquittals under this article in Russia can be counted on one hand.
I devoted about a year to defending a 75-year-old man accused of committing a particularly serious crime of violating the sexual integrity of minors.
This case made me think deeply again about the imperfections of our judicial system and the lack of real implementation of the principle of the presumption of innocence by the courts and preliminary investigation bodies.
So, in the summer of 2022, the relatives of a 75-year-old pensioner contacted me, accusing him of molesting an 11-year-old girl on the street of one of the villages in our province, namely, stroking her legs above the knees, and subsequently luring her into a deserted alley and kissing her.
Arriving at my client, who was already in a pre-trial detention center at that time, I met a 75-year-old man, almost blind and deaf, completely harmless and constantly crying because he ended up in MLS in his old age, and in response to his request to an administration employee during the reception of new arrivals, he was refused to go to the toilet in the form of the phrase “You don’t have any rights at all, just stand there and be patient.”
After a conversation, I established. That my client is a pensioner, a labor veteran, who has lived in this village all his life. In retirement, he was engaged in farming and herding goats, which he led every day through the streets of the village into a ravine for them to graze there, and in the afternoon he went to the same ravine to collect nettles for them.
A few days before our meeting, he, as always, took the goats to the ravine, and around lunchtime he took them back, but since the goats were walking slowly, he sat down on a bench in the middle of the street (I must say the windows of at least 6 houses look at this bench, a neighbor stood nearby and rocked his grandson. At that moment, a neighboring girl, let’s call her “Varya,” sat down on the bench next to him and they were talking about goats, chickens and how life was going in the village. After that, my client headed home with the goats.
About half an hour later, he went into the ravine to collect nettles for the goats and the same girl followed him where she helped him pick nettles, for which he treated her to candy, as he constantly treats local children to candy.
After another 2 hours, the girl’s stepfather came to his house and said that he was calling the police because he was molesting his daughter.
Grandfather stayed at home because he did not understand what had happened and did not feel anything reprehensible about himself. About half an hour later, a police squad arrived, the grandfather was taken to the investigative committee, an interrogation took place, an examination and selection of biomaterial for DNA examination took place, and the next day, despite having a permanent place of residence, having a source of income in the form of a pension, a large number of relatives of children and grandchildren, due to his advanced age and positive characteristics, he was sent to a pre-trial detention center, with the wording that he is not burdened with a family, does not work, and is accused of committing a particularly serious crime.
It was necessary to build a line of defense, for which I interviewed adult residents of the village, but no one saw anything suspicious. A request was made for a confrontation with the victim, but the investigator “in the interests of the minor” refused it. A petition was filed to conduct a DNA examination to determine the presence of traces on clothes and hand washes, as well as other places important to the investigation. The results pleased the defense, as no traces of any contact were found.
However, the girl’s parents and the investigator immediately have a version that after the alleged assault, she played with the children on the street and they doused themselves with water, so there are no traces.
Months passed, with each extension of the preventive measure, I insisted on the release of my client from the pre-trial detention center, but the court refused, citing the gravity of the crime committed. As a result, we managed to get the defendant transferred to a prison hospital for a comprehensive examination (if you can call it that, since there is not even an ophthalmologist there, and they recommended buying a tonometer at your own expense).
As a result, the doctors’ conclusion revealed “oncology” under? necessary before examination. At the same time, before the placement of the TB, he is transported to the city of Ufa for a forensic psychiatric examination, since in our province it is not carried out due to the department’s non-compliance with the “European norms of humanism.” While the client is on his way back to the SI in Yekaterinburg, the time comes to extend the guard and a wonderful the judge, despite all the requests of the defense demanding video conferencing with a pre-trial detention center in a neighboring city, in order to respect the right to defense, refuses this with reasons: in the pre-trial detention center you cannot reach a single known number.
And lo and behold, the regional court cancels this vicious extension of custody and sees during the hearing that the accused (the court) does not see or hear him without the help of a defense lawyer who is in prison in the hospital during the hearing. the extension of the guard is canceled and taking into account the fulfilled requirements of Art. 217 of the Code of Criminal Procedure of the Russian Federation and health status changes the measure of restraint to house arrest, without the right to walk and use communications equipment. Half of the case was done by the client at home and he has the opportunity to receive normal medical care. help.
It must be said that the study of the case revealed even greater inconsistencies. The victim’s testimony is constantly changing, regarding the events and method of assault; during the interrogation using video recording, she answers the main questions with promptings from her mother. A psychiatric examination says that the girl is not prone to lying (however, in our province she says so in 100% of the cases that I have encountered) and definitely does not recommend her participation in court hearings.
A forensic psychiatric examination of my client also says that he is not prone to “pedophilia” and, moreover, he has, more precisely, a lack of sexual function due to the presence of a disease. There are no direct witnesses to what happened. After the events, the girl played with the children on the same street for another hour, after which she allegedly reported that her grandfather had touched her to her stepfather (and this was in the presence of deep psychological trauma, according to the conclusion of psychologists). In general, I have not found a single piece of evidence indicating the defendant’s guilt.
The trial begins. Which categorically refuses to call and interrogate the victim, and minor witnesses aged 12 to 16 years with whom the victim communicated that day after the events. They only interrogate their parents, who say that their children are not prone to lying, but they did not notice anything strange about their grandfather and have known him since childhood, and the victim herself now continues to live an ordinary life and there have been no changes in her behavior. Only the victim’s mother convinces everyone of her daughter’s deep psychological trauma, and also constantly focuses on the goats and the fact that the pensioner is disturbing them as they eat flowers in the flower beds and relieve themselves on the roadway and playground.
The mother’s personality is interesting; she is one of the managers of a large collection company and is legally literate. The court constantly asks my client what grounds do witnesses have to incriminate you of committing a particularly serious crime, under penalty of criminal liability. To which I have repeatedly made comments that we are not obliged to prove our innocence or justify the motives for slander.
This argument, by the way, became the main argument in refuting the arguments of the defense during sentencing. Of particular interest was the interrogation of the teacher who was present during the investigative actions, who was the victim’s class teacher; I clearly sympathized with her and her family, but when the defense lawyer asked how the victim’s testimony was verified on the spot, apparently due to inexperience, she answered the truth: “Mom showed and told everything about what happened, the investigator I wrote everything down, and then we all took pictures together.”
During the period of consideration of the case by the court, my client began to undergo “chemotherapy”, in connection with which I asked the court not to change the measure of restraint during the period of appealing the verdict, since its content was obviously clear. The court rejected all defense arguments about the lack of evidence of guilt and the presence of irrefutable doubts about guilt, citing the absence of doubt in the testimony of the victim, who, according to expert opinions, is not prone to lying and fantasizing. At the same time, a petition was repeatedly submitted to conduct an additional forensic psychiatric examination in the case at another expert institution due to significant contradictions and incompleteness of the methodology, but the court refused to satisfy them without issuing a reasoned ruling.
So, as a result, the sentence is 6 years of imprisonment with serving the sentence in a maximum security colony and an additional punishment of 1 year of restriction of freedom. Finally, taking into account being in custody and house arrest, 5 years of imprisonment are due to be served.
However, the story did not end so badly, although in our particular case. The client, fearing that if the prosecutor filed a complaint, the sentence might be toughened, he asked not to appeal. Immediately after his admission to the pre-trial detention center, I presented all medical reports and certificates. As a result, a month later (though he celebrated his 76th birthday in a maximum security colony), on the basis of the conclusion of a medical commission at the request of doctors, another court completely exempted him from punishment and released him from custody immediately due to the presence of a disease that prevented him from serving his sentence.
He does not want to appeal the verdict, because he is very worried and due to his health, he endured every meeting with difficulty, and is undergoing treatment.
The victim’s mother, having learned about the release, writes to all authorities and the media, demanding that my client’s freedom and choice of place of residence be limited.
How many more people in our country will be convicted of committing a particularly serious crime only on the words of the injured party, in the absence of solid evidence and evidence?
I have repeatedly met people who turned to me and my colleagues with questions, for example, what will happen if their husband (accused under Article 132, Part 4) is imprisoned and whether in this case his share in the apartment will be transferred to them, and whether it is possible to reconcile if he transfers your share.
It is necessary to develop a more advanced system of psychiatric and psychological examination of minor victims. Cases of refusal to interrogate on the basis of Part 6 of Art. 281 of the Code of Criminal Procedure of the Russian Federation must be of an extraordinary nature due to the limitation of the right to defense. Introduction of a legislative ban on the use of Art. 73 of the Criminal Code of the Russian Federation for this category of crime was premature given the low level of the judicial and investigative system.
