On forms of non-physical (psychological) violence in the criminal legislation of Russia 336

Coercion to a transaction and the Criminal Code of the Russian Federation

The basic principle of civil law is freedom of contractual relations. In particular, this means that any participant in business transactions has the right to make his own decision on concluding an agreement with a citizen/organization. That is why the Criminal Code of the Russian Federation classifies coercion to complete a transaction as a criminal offense.

Article 179 of the Criminal Code of the Russian Federation lists actions by which one can be forced to complete a transaction. These include:

• violence;
• destruction/damage to property;
• dissemination of information that is false and defamatory to the honor or business reputation of a citizen/organization.

All these actions will constitute the objective side of the crime. At the same time, the legislator makes one reservation: although violence, damage to property or dissemination of negative information about a person/organization are in themselves criminal, they should not contain elements of extortion - in this case, liability is provided for by another article of the Criminal Code of the Russian Federation.

Important! Influence for a citizen/organization to complete a transaction can be exercised not only on the direct participants in the agreement, but also on persons whose fate is not indifferent to the coerced party. For example, disseminating information about relatives or using violence against spouses.

In addition to the above actions, threats can be applied to a citizen/organization that influence the will of the injured party to the transaction and push him to sign the contract. True, for criminal liability to arise, the threats must be real, that is, the victim must have reason to fear their implementation.

On forms of non-physical (psychological) violence in the criminal legislation of Russia 336

Violent crimes are among the most dangerous among other forms of illegal activity, primarily due to the encroachment on such important and often irreplaceable objects as life or health. And although the number of such crimes is not at the top of the crime structure, the consequences of their commission are very significant.

The problems of preventing violent crime still remain relevant, despite the many measures taken both in Russia and foreign countries. According to official statistics, in 2022, 2,058,476 crimes were registered in the Russian Federation. The categories “violence” or “violent crime”, of course, are not included in the structure of crime, but information relevant to this study can be gleaned from data on other crimes. The share of crimes against the person was about 14%, of which in January-December 2022, 9,738 murders and attempted murders were committed, as well as 24,552 episodes of intentional infliction of grievous bodily harm. As a positive point, it should be noted that compared to the previous year, there is a tendency to reduce the number of violent crimes [10]. At the same time, we note that this does not always indicate a reduction in the real number of violence in society. It is enough to point out the partial decriminalization of beatings, the statistical consequence of which should be considered an increase in the number of administrative offenses provided for in Art. 6.1.1. Code of Administrative Offenses of the Russian Federation. In the absence of partial decriminalization, this number would appear in criminal statistics.

The problem of countering violence in foreign countries is quite acute. In the United States, for example, according to research by individual authors, attacks with firearms that result in harm to the life or health of several victims occur on average every day. In addition, from 2012 to 2022 there are more than 1,500 such cases [26, p. 541-542]. In Canada, despite a decline in the overall level of domestic violence, the number of victims remains fairly stable. In 2016, their number was 239 for every 100,000 population [16, p. 34-37].

Thus, we can note a general positive trend towards a reduction in the number of violent crimes, while their value remains high.

Despite the abundance of various scientific works related to the study of types of violence, in the theory of criminal law this phenomenon is divided mainly into two categories.

The first category includes physical violence, which is traditionally characterized by a greater degree of research. Its forms of manifestation and consequences of implementation are more obvious, so such close attention of science is understandable.

The second category has been studied to a much lesser extent. It is worth paying attention to the fact that even its name is controversial. Most legal authors talk about “mental violence,” others reasonably call this phenomenon “psychological violence.” A relatively rare term such as “emotional violence” is also found in foreign and domestic literature.

In one of our earlier studies of the problems of countering violence, in our opinion, we were able to convincingly prove the need to use a new construct that covers all forms of violence that are not physical [6, p. 103-104]. In this regard, in this work, the verbal construction “non-physical violence” will be used in the future, since this allows us to cover a wider range of issues.

Despite the fact that in theory and practice, physical violence is quite reasonably recognized as a more dangerous manifestation, non-physical violence should also not be ignored, since the consequences of the above attacks can sometimes be comparable. Human health does not consist of autonomous, but of interconnected components that influence each other. Damage to mental health can affect physiology, and vice versa.

In addition, the development of methods of encroachment does not stop at present. Methods of immersion in a hypnotic state, previously available to a limited circle of people, are now spreading to a greater extent, which is associated with the development of the information society. One of the well-known scientific achievements is the implantation of false memories into the brains of mice, allowing them to change their attitude towards certain phenomena [22, p. 494-495]. The use of such methods in relation to a person can lead to both positive and negative consequences, especially if they are used by representatives of crime.

The problem that this study is devoted to is the incompletely correct reflection of forms of non-physical violence in criminal law. Accordingly, the purpose of the work was to study the problems of reflecting forms of non-physical violence in criminal legislation, aimed at developing recommendations for improving criminal law norms in the direction of increasing their effectiveness.

In the scientific literature, the problem of enshrining types of non-physical violence in legal norms has not received a clear solution, although its analysis has been carried out repeatedly. A number of authors point out that violence is reflected in criminal legislation only as a method of committing a crime [9, p. 164-167]. Others consider “non-physical violence” a more meaningful category [8, p. 59-60].

Quite a lot of works are devoted not to violence in general, but only to its individual types. For example, phenomena such as threat have been analyzed in sufficient detail [12, p. 525-526; 3, p. 14-18], coercion [5, p. 61-63], cruel treatment [7, p. 142-143], hypnosis [11, p. 210-211] and others.

Among foreign authors, a significant number of studies have recently been devoted to non-physical violence in cyberspace [23, p. 27; 24, p. 136; 25]. In particular, the authors focus on legal measures to combat cyberbullying - bullying and humiliation that is committed via the Internet [17, p. 1-7]. At the same time, some scientists propose to apply the current legislation, while others insist on fundamentally new solutions [21]. The legal problems of creating and distributing pornographic images of people for the purpose of causing them mental suffering are touched upon [20, p. 397]. Of great interest is also the work devoted to the study of cyberstalking, i.e. the pursuit of one person by another via the Internet. The authors note that the legislation does not reflect the attitude of people towards this phenomenon, who often perceive it as a threat [18, p. 83-84].

The current domestic criminal legislation in the articles of the Special Part contains prohibitions on the implementation of several different manifestations of non-physical violence. An analysis of the provisions of the Special Part of the Criminal Code of the Russian Federation made it possible to determine the frequency of occurrence of one or another manifestation of non-physical violence with the reflection of the obtained data in Table. 1 and diagram (Fig. 1).

Table 1

Forms of non-physical violence in the articles of the Special Part of the Criminal Code of the Russian Federation

Rice. 1.

Correlation of forms of non-physical violence in the articles of the Special Part of the Criminal Code of the Russian Federation

Analysis of dispositions shows that in most cases a threat is provided as constructive or qualifying characteristics. At the same time, the content of the threat is quite differentiated. Most often, the Criminal Code of the Russian Federation prohibits the threat of violence, for example, in Articles 119, 126, 131 of the Criminal Code of the Russian Federation and others. This is quite logical, since this form of violence is implemented quite simply for the perpetrator and, in fact, can potentially support a host of crimes.

Close in meaning is the content of a threat to destroy or damage property. Objectively, this form is characterized by a lower degree of public danger, and therefore this sign is found only in some crimes provided for, for example, by Articles 142, 163 of the Criminal Code of the Russian Federation and others.

Even less common in criminal law is the threat of disseminating any information (Articles 163, 179 of the Criminal Code of the Russian Federation). At the same time, it should be noted that if the specified information is false and may negatively affect the honor, dignity or reputation of another person, then its dissemination in itself is already an unlawful act under Art. 128.1 of the Criminal Code of the Russian Federation. The presence of such a crime explains the rather rare use of the threat of dissemination of information as constructive or qualifying characteristics.

In addition, in a number of dispositions the word “threat” is used without specifying the content. This allows us to conclude that in such cases, criminal law prohibits threatening anything, including violence, destruction or damage to other people’s property, dissemination of information, etc. As an example, we can cite the elements of crime provided for in Articles 150 and 151.2 of the Criminal Code of the Russian Federation.

Based on the above, we consider it possible to agree with the opinion of E.N. Barkhatova that the content of the threat is the impact on the mental activity of the victim by informing him of information about the commission of actions that are undesirable for him or those close to him [1, p. 23].

The next most common form enshrined in criminal law is “coercion,” which is found in fourteen articles. Coercion and threat have coinciding characteristics, which in some cases is confirmed by acts of the Supreme Court of the Russian Federation. Thus, in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007 No. 14 “On the practice of courts considering criminal cases of violation of copyright, related, inventive and patent rights, as well as illegal use of a trademark” it is clarified that violation of inventive or patent rights by forcing co-authorship may involve exerting influence in any way (including through violence, threats of adverse consequences for the victim).

In this regard, some scientists argue that threat is the only possible manifestation of mental (non-physical) violence. In our opinion, coercion and threat are still correlated as a whole and a part, i.e. coercion includes a threat or other actions, while threats can be made with violence or other undesirable actions, but not with coercion.

In addition, we note that determining the essence of this form of non-physical violence is more difficult than it seems at first glance, since, as S.V. correctly points out. Shevelev, the legislator puts various meanings into the term “coercion,” including by attributing this phenomenon to independent elements of a crime, methods of committing them, or to circumstances excluding the criminality of the act [13, p. 171-172].

The next form of non-physical violence enshrined in the Criminal Code of the Russian Federation is blackmail, which has much in common with both the threat and coercion discussed above. In the absence of a legal definition of this form, in the theory of domestic and foreign criminal law, in general, general features of the content of this phenomenon are distinguished. For example, Yu.A. Nikitin emphasizes that blackmail is a method of committing a crime in which a threat is made to disseminate information specified in the law about the victim or his relatives [4, p. 63-64].

A similar opinion is expressed in foreign literature. In particular, the authors understand blackmail as an illegal demand for payment or provision of services under the threat of disseminating information [15].

The next most common manifestation of violence is bullying, which acts as a qualifying feature of certain crimes against health, justice, and military service. Bullying can be carried out both in physical form (spitting, slapping, etc.) and in non-physical form (intimidation, humiliation). It should be noted that, like previous manifestations, bullying can be expressed in the form of threats. In any case, bullying is characterized by rudeness and cynicism, and its use indicates that the subject wants, among other things, to inflict moral suffering on the victim.

Despite the fact that the crime provided for in Art. 130 of the Criminal Code of the Russian Federation was decriminalized; special offenses are still provided for by criminal law. Currently, insulting participants in court proceedings, government officials and military personnel is punishable. At the same time, the legislator identifies insult, but in relation to the subject of the crime, as the causes of passion, in particular in Articles 107 and 113 of the Criminal Code of the Russian Federation.

This manifestation of violence can also be physical, as well as non-physical. Unlike previous forms, an insult in the form of a threat is unlikely, although the threat may consist, among other things, of insults.

Other forms of expression of non-physical violence in criminal law include cruel treatment, humiliation and infliction of mental suffering.

The theory of criminal law ambiguously resolves the issue of classifying deception and slander as manifestations of violence. Slander, of course, refers to methods of psychological influence, although its violent signs are not always obvious. Indeed, this unlawful act is rarely associated with a direct impact on the psyche of the victim. The subject of the crime first of all seeks to change the assessment of the victim’s personality on the part of other persons by providing them with false information.

However, we believe it is possible to agree with the position of M.S. Fokina and V.E. Dvortsov regarding the fact that repeated dissemination of slander as a component of bullying the victim can be attributed to non-physical violence, expressed in the form of systematic humiliation of honor and dignity [2, p. 270-271].

As for deception, this phenomenon, it seems, is not identical to violence, since it is not the deception itself that causes moral suffering to the victim, but, for example, damage from the loss of property during fraud. In the event that a deliberately false denunciation, deliberately false testimony, an expert or specialist opinion, or an incorrect translation are committed, it becomes not entirely clear who is being violated? Over the investigator, interrogator or court? It seems that the answer will be negative, while such crimes, of course, are not committed without deception.

Despite the fairly differentiated range of forms of manifestation of non-physical violence enshrined in criminal legislation, it seems that it remains incomplete.

For example, significant difficulties in qualifying and assessing public danger were caused by crimes committed using hypnosis or in a state of trance. Quite a lot of attention has been and is being given to hypnosis in the scientific literature, but, according to scientists, this phenomenon still remains insufficiently studied. There are also statements that hypnosis does not exist at all, despite a lot of evidence to the contrary cited in the literature [19, p. 510].

As for criminal law relations, there are many established facts of the use of hypnosis for criminal purposes. Currently, such cases also occur, although, compared to other methods of committing illegal acts, they are relatively rare.

For example, as follows from the verdict of the Leninsky District Court of Ufa dated May 10, 2017 in case No. 1-18/2017, F.D.Kh. was found guilty of creating a non-profit organization “Horde”, encroaching on the personality and rights of citizens (Article 239 of the Criminal Code of the Russian Federation). F.D.H. forced victims to participate in events of a religious association by putting them into a trance. As confirmed, including by the conclusion of a clinical-psychopathological study, the rituals presented in video and audio recordings contain signs of psychological influence in the form of suggestion and the use of psychotechnologies to manipulate people’s consciousness. These methods of psychological influence can have a negative impact on human health, provoke a maladaptive state, even a mental disorder[1].

Hypnosis is most often used for attacks on property relations, as well as life and health. At the same time, it is not entirely clear what type of violence it should be classified as, and whether this phenomenon is violence in principle or simply a method of influence?

Since in the theory of criminal law, in the context of interpreting the content of Article 40 of the Criminal Code of the Russian Federation, it is traditionally believed that physical coercion includes cases of forced use of medications, it seems that induction into a trance state with the help of various substances (for example, sodium teopental) should also be attributed to physical influences. In all other cases, hypnosis seems to be attributed only to non-physical influences.

As for determining belonging to manifestations of violence, I think this is possible, albeit taking into account specific actions when inducing a state of trance. If, with the help of hypnosis, a person is forced to take actions that are contrary to his will, and the nature of which he is aware of (for example, harming himself or others, giving away property), then all the signs of violence are present.

Otherwise, with the help of hypnosis, a person’s perception is changed, after which some phenomena are perceived differently. So, for example, in a state of trance and after appropriate suggestion, a person can perceive the sheets of paper handed over to him as real banknotes in circulation. In such a situation there is a significant resemblance to deception, which, as we indicated above, is not identical to violence.

A study of forensic investigative practice, it should be noted, shows that basically property crimes using hypnosis are classified as fraud. Therefore, hypnosis is equivalent to deception. Of course, it is easier to prove the fact of misrepresentation than the impact on the psyche, which affects the result of qualification, however, law enforcement indicators should not be ignored.

If the use of hypnosis in crimes against property were recognized as violence, then what was done in practice would be classified as robbery or robbery, depending on the possible consequences for health. Moreover, forced hypnosis should not be ruled out, because when put into a trance, property can be confiscated not by misleading, but by direct commands to transfer the thing and, for example, by inducing amnesia. Individual scientific research speaks in favor of the possibility of such a development of events [14, p. 790-791], as well as foreign legislation [1, p. 52-58].

Thus, in our opinion, hypnosis can act both as an act of violence (physical and non-physical) and as a non-violent psychological influence. Considering the fact that a number of thefts, crimes against life and health, and even against public morality can be committed using hypnosis, it seems possible to introduce this feature into the relevant articles of the Special Part of the Criminal Code of the Russian Federation. Based on the fact that this form of influence increases the social danger of the crime, the sign should characterize qualified crimes. Fixing the sign associated with the use of hypnosis will resolve a number of existing qualification problems, for example, those arising regarding the distinction between robbery and fraud.

Thus, the study allowed us to draw the following conclusions.

1. Deception is not a type of violence, since in itself it does not cause moral suffering to the victim. This position is reflected in criminal law, since acts that include deception are not considered violent (for example, fraud or deliberately false denunciation). At the same time, deception is certainly a form of psychological influence.

2. Criminal legislation does not contain all forms of socially dangerous non-physical violence, including hypnotic violence. It seems necessary to consolidate the use of hypnosis as a qualifying feature in some crimes. The addition of such a feature is possible, for example, in the compositions provided for in the following articles: 110, 110.1, 111, 112, 115,120, 131, 132, 150, 151, 151.2, 159, 161 of the Criminal Code of the Russian Federation, etc.

Improving the law in the above way will allow us to resolve a number of qualification problems, for example, those arising regarding the distinction between robbery and fraud. In addition, taking into account the use of hypnosis will contribute to the correct individualization and differentiation of punishments.

[1] From the materials of the criminal case No. 1-18/2017 on charges of F.D.Kh. in committing a crime under Part 3 of Art. 293 of the Criminal Code of the Russian Federation // Leninsky District Court of Ufa.

Signs and consequences of forced transaction

A crime will be considered committed not at the moment when the result of the actions occurs (for example, the person against whom defamatory information was disseminated concludes a deal), but from the moment the threats are made or their implementation. In this case, coercion to complete a transaction must be committed with direct intent: that is, the criminal pursues a specific goal - by any means to force a citizen/organization to sign an agreement.

The punishment for coercion to complete a transaction may be:

• fine up to 300 thousand rubles. or in the amount of the perpetrator’s salary for a period of up to 2 years;
• restriction of freedom or forced labor for 2 years;
• arrest for 6 months;
• imprisonment for 2 years (with or without a fine).

If in forcing the transaction or the crime was committed with the use of violence, then the perpetrators will face imprisonment for up to 10 years.

The procedure for organ and tissue transplantation

Medicine is developing every day. More and more methods are being found to save a person, including through transplantation of various organs and tissues. To save lives from a legal point of view, human organ transplantation is possible as a means to restore health and save lives if other treatment methods fail. To date, doctors have managed to achieve high results in transplanting many vital organs, the list of which is approved by the Russian Ministry of Health.

Donor organs for transplantation can be taken from either a living person or a recently deceased person. In each of these cases, the law defines the conditions under which this is possible. An organ transplant is a last resort when the treatment measures used do not help save a person from death or restore health.

The procedure for organ transplantation from a legal point of view in Russia can be carried out in accordance with the Law on Transplantation and the Law on the Protection of Citizens' Health.

Transplantation is possible only after the decision of a council of doctors. The most important condition for taking donor organs is the written consent of the person if he is over 18 years old and the consent of his family members or their substitutes (guardians).

This also applies to cases where an adult is incompetent, that is, cannot make independent decisions. Consent to organ removal is given by family members or a guardian. In extreme cases, when the operation cannot be postponed and any delay threatens the death of the patient, and it is impossible to obtain the donor’s consent, the doctor has the right to perform a transplant without prior consent. Removing organs from a living person is only possible in cases where there are no alternative ways to cure the patient, and there are no suitable organs from dead people.

Before permission to remove organs, a person who agrees to become a donor must undergo a medical examination. In cases where he is diagnosed with diseases that may threaten the life and health of the patient in need of a transplant, organ removal is not permissible.

Another important condition is that the removal of tissues and organs from a person who is in any way dependent on the patient requiring medical intervention and who needs a donor organ is not allowed. A person who has agreed to become a donor can give consent to organ removal either orally, but in the presence of witnesses, or in writing. Written consent is certified either by a notary or by the head of the medical institution.

This documentation is stored in the medical card of a person who has agreed to the removal of his organs for the purpose of transplantation and transplantation to sick people. Consent to the removal of organs after death is expressed in the same way. The commission gives an opinion on the possibility of removing organs for transplantation after a medical examination for use as donors only if this operation does not cause significant harm to the health of the person who agreed to become a donor.

After the operation, the donor has the right to free recovery and treatment in a medical institution associated with the operation. As noted above, transplantation of organs or tissues of a living person is applicable only in cases where it is not possible to use similar organs of already deceased people. The use of the organs of a deceased person is possible only after death has been declared, which is confirmed by the conclusion of a council of doctors.

Removing organs for transplantation of a deceased person is possible only with the written permission of the head physician of the hospital. If a forensic medical examination is necessary, you must obtain the expert’s permission by notifying, first of all, the prosecutor’s office.

The use of organs and tissues of a dead person for transplantation also requires consent written by the person himself during life, or by one member of his family (guardian) after death. Russian law prohibits the sale of donor organs. Trafficking in human organs is punishable under Russian criminal law.

Composition of the crime (coercion to remove human organs or tissues for transplantation)

Forcing the removal of human organs or tissues for transplantation is unacceptable and is criminally punishable under Russian law. The most important condition for the ability to remove donor organs, both living and deceased, in Russia, according to the law, is the consent of the donor himself; in cases where it is necessary to obtain donor organs from children or minors, then the consent of their parents or persons replacing them . In cases of removal of donor organs from incapacitated persons, the consent of the guardians is required.

The object of the crime, expressed in coercion to remove human organs or tissues for transplantation, is the life of the person from whom the organs are removed, and the consequences that may affect his health. Removal of donor organs from living children and incapacitated persons, equated in this case to children, is unacceptable according to Russian legislation, except for bone marrow transplantation.

The objective side of the unlawful act, expressed in the forced removal of organs or tissues for transplantation, is the impact on the human psyche so that he consents to the use of his organs.

Compulsion to give consent to organ removal is possible:

• by force, that is, beatings, various tortures, causing varying degrees of serious harm to health;
• or psychologically, threatening to use violent methods against a person or his loved ones.

The crime is considered committed from the very beginning of extortion and coercion to give consent to be a donor. The subjectivity of the crime lies in the fact that it has the direct purpose and intent to initially obtain by force a person’s consent to remove the victim’s organs or tissues. The subject of a crime is a legally capable person who is 16 years of age or older.

The sign that qualifies the presence of the crime of coercion to remove human organs or tissues as donors is:

• finding a person in a state where he is physically or mentally unable to be responsible for his actions or resist (children, elderly people, people with obvious mental disorders);
• coercion of people who are financially dependent or in any other way dependent on a person forcing them to consent to the removal of organs.

Criminal liability for attempted rape

Attempted rape, in contrast to preparation for committing an act, consists of committing certain acts aimed at unlawful sexual contact, but not committing it due to certain circumstances that prevented the attacker from finishing what he started. It is worth noting that such situations are characterized by particular complexity, since it can be extremely difficult to prove an attack on sexual freedom. However, it will not be possible to avoid punishment if the injured party prepares an evidence base. The only question will be how much they give for the attempt in accordance with the law.

The Plenum of the Supreme Court on June 15, 2004 determined that an attempt to commit violence related to the violation of human rights to sexual freedom of choice will be qualified according to two standards at once - Part 3 of Article 30 of the Criminal Code of the Russian Federation and Part 1 of Article 131 of the Criminal Code of the Russian Federation . However, it is worth noting that cases regarding rape or attempted rape have many features, and therefore specific measures will be established in accordance with the facts that were presented to the court, as well as through the evidence base that will be prepared by the injured party and its defenders.

Author of the article

Dmitry Leonov

Work experience 15 years, specialization - housing, family, inheritance, land, criminal cases.

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Types of domestic violence

In general, it is usually divided into three types:

• Physical. Most often found on the part of the father of the family - he can cause bodily harm to his wife and children. There are outbreaks of aggression on the part of the mother or adult children.
• Sexual violence is any forced action of a sexual nature.
• Psychological violence is moral pressure on relatives. It is this third type that will be discussed in more detail in this article.

Psychological (moral) violence leads to serious emotional trauma and mental disorders - depression, suicidal thoughts, anxiety, panic attacks, stress, and so on. Typically, this type of violence is characteristic of individuals who want to assert themselves at the expense of others; they enjoy the process of humiliating weaker people. Also, such people often suffer from mental illness - for example, personality disorder, schizophrenia, paranoia, and so on.

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