Man is not only a biological being, but also a social one. That is, each of us cannot be outside of society, completely alone. Through social interaction, people create amazing things. In fact, it was the consolidation of society that led to the technological evolution that continues in the world to this day. But the social character of a person is also determined by the presence of certain powers, which are the basis of the legal regime of each individual. Such legal freedoms allow us all to implement certain actions in one or another sphere of life. However, the legal basis of social interaction is structured in such a way that the freedoms of each person should not be violated by other persons. Fundamental freedoms include the right to sexual integrity. This term has extensive legal meaning, which indicates its importance. Along with this, sexual integrity very often becomes the object of sexual crimes, which confirms the importance of this category.
Sexual integrity: concept
As we indicated earlier, the legal policy of each person is characterized by the presence of certain rights and obligations. In this case, we are interested in the first category. Therefore, sexual integrity of the individual is an integral element of the constitutional status of each person individually. This freedom is enshrined in the constitutions of many states, and, in particular, the Russian Federation. This fact allows us to say that sexual integrity is not only sanctioned by the state at the highest level, but is also protected by it. That is, for any violation of this freedom, the guilty person will bear legal responsibility. It should be noted that sexual integrity ensures the normal functioning of a particular person. The content of this freedom ensures a person’s free choice in the process of organizing his sexual life and in other related areas.
Characteristics of sexual freedom from the perspective of criminal law
The category mentioned in the article is affected not only within the framework of the Constitution. Sexual freedom and sexual integrity of the individual is one of the objects of criminal law of the Russian Federation. This means that all social relations arising on the basis of this category are protected by the norms of this industry. Therefore, any negative actions that violate sexual freedom and sexual integrity of the individual will entail criminal sanctions against the perpetrator. This factor is extremely important, because attacks on people in this area of their freedoms have extremely negative consequences. They are usually expressed in the form of mental and physical harm. In the first case, a person receives psychological trauma due to attacks on his integrity. Physical harm may result from violent acts used in violation of freedom. It follows that we can talk not just about the existence of legal protection of sexual freedom and inviolability, but also about a whole system of socially dangerous acts that are provided for by the Criminal Code of the Russian Federation. They help protect people and their specific freedom from illegal actions that could cause significant harm.
Sex crimes
If we abstract from Russian criminal law, we can see that in almost every state there are a number of actions against human freedoms that have the status of socially dangerous. Crimes against sexual integrity in this case are no exception. In almost all modern states, any kind of encroachment on this object is punishable by law. Based on this, we can identify their most “classical” concept. Thus, crimes against sexual integrity are gross, dangerous violations of established social rules in the field of sexual relations and morality.
The object of these crimes, as a rule, is complex. This is not only sexual integrity in its classical form, but also moral social norms, human health, and the development of minors of a mental and physical nature. Thus, such crimes in most cases encroach on several fairly important social categories at once.
Signs of sexual crimes
Taking into account the legislative enshrinement and the specific nature of the acts of increased danger mentioned earlier in the article, we can highlight their most “bright” signs. It should be noted that scientists in the field of criminal law have an ambiguous approach to the issue of considering crimes against sexual integrity and sexual freedom of the individual. Nevertheless, a number of classic signs that characterize these acts should be mentioned, for example:
- crimes against sexual freedom always have a sexual orientation;
- they violate the way of sexual relations between people established in society;
- these crimes are always committed with intent;
If we analyze the presented signs, the question arises about the normal structure of sexual relations. What is this category? Again, there is no consensus among scholars about this category. A similar problem arises due to the fact that sexual relations are largely regulated not by legal, but by moral norms that have been established in society over a certain period of time. If we analyze the legislative framework, only a few acts contain the concept of “sexual relations”. However, its meaning is not revealed. If we analyze sexual relations from the standpoint of morality and common sense, then the normal way of life in this category is characterized by the following features:
- the person has reached the age from which he can be a normal participant in sexual intercourse;
- the person is aware of the physiological and social aspects of sexual relations;
- sexual relationships arise exclusively on a voluntary basis and cannot be realized under coercion;
- the normal way of life of the presented category is characterized by a natural mechanism of intercourse;
- The mandatory absence of family ties between partners plays a significant role in the sexual relations of our state.
It is on the basis of these characteristics that many norms of the Criminal Code are built, which establish crimes against sexual freedom and sexual integrity of the individual.
Law/ 1. History of state and law
Tabakov Alexey Rudolfovich
Ufa Law Institute of the Ministry of Internal Affairs of Russia, Russia
The problem of defining “sexual freedom” and “sexual integrity” in Russian legislation
Until now, Russian law does not have the concept of sex and sexual relations, which indicates a generally accepted tendency of non-interference on the part of legislators and jurists in this category of relations. First of all, this is due to constitutional and legal guarantees of ensuring the inviolability of a person’s private life. Yes, Art. 23 of the Constitution of the Russian Federation directly indicates the right to privacy of every person [3, p. 18]. Since this right traditionally falls into the category of positive rights, the state assumes the responsibility to ensure it. Therefore, in a number of cases, legal norms affect legal relations in the field of sex. This refers to areas such as international, criminal, administrative and family law.
Despite the partially developed mechanism for the legal regulation of relations in the sphere of sex by these branches, none of the listed branches of law also gives the concept of sexual relations. In the legal literature there is an understanding of sexual intercourse that is closely related to the listed category. Thus, in a large legal dictionary, a criminal legal understanding of sexual intercourse is given - (narrow sense of understanding) as sexual intercourse in the usual form, capable of causing pregnancy [2, P. 444]. Also, the criminal law doctrine considers related concepts with sexual intercourse, such as sexual freedom, sexual integrity. It should be noted that to this day, in a general theoretical context, debates have not subsided about what is more logical to understand by sexual freedom and sexual integrity and what are the criteria for delimiting these categories. In criminal law science, sexual freedom is traditionally understood as the freedom of sexual self-determination of a person, i.e. the right to independently and without coercion choose sexual partners and the form of intimate relationships. However, this concept applies only to persons who have reached puberty. As a rule, in the theory of criminal law, this right applies to persons over the age of 18 years. However, according to the point of view of A.Ya. Sukharev and V.E. Krutskikh, puberty is a physical state of the body, characterized by the appearance of the ability of sexual function (in girls - the ability to conceive, bear a fetus, give birth, and breastfeeding; in boys - the ability to fertilize). However, it is worth noting that in modern society, taking into account the process of rapid maturation of modern youth, these abilities manifest themselves much earlier than the age of 18. That is why we allow ourselves to disagree with the above opinion, since the physiological maturity of a teenager’s body does not at all mean his psychological readiness to enter into intimate relationships or make decisions about choosing a sexual partner.
In the theory of criminal law, it is generally accepted that the category of sexual freedom correlates with the psychophysiological maturation of a person, the achievement of a person’s required degree of sexual maturity in moral and physical terms, which is associated with his ability to be a full participant in intimate relationships.
Nevertheless, as M.V. notes. Avdeev, “from the standpoint of a systemic approach, such an interpretation is not consistent with constitutional provisions relating to personal freedom and inviolability. If we consider sexual freedom and sexual integrity as their integral components, then the designated tradition represents only narrow sectoral interpretations, formalization of concepts to the detriment of modern legal values” [1, p. 121].
As for the category of sexual relations in constitutional law, they find their legal regulation in two articles outlining the right to freedom and personal integrity (Article 22 of the Constitution of the Russian Federation), as well as the right to privacy (Article 23 of the Constitution of the Russian Federation) [ 3, p. 19].
From the point of view of general constitutional values, these rights relate to the so-called natural rights inherent in a person from birth.
According to M.V. Avdeeva, “freedom lies in the ability of each person to independently choose a sexual partner, to enter into sexual relations with him while independently choosing all the circumstances accompanying such relationships, or not to have sex at all” [1, p. 122]. That is, based on this point of view, from a natural science position, a child from birth has the right to determine with whom he will have sex, or not at all.
According to the provisions of Art. 17 of the Constitution of the Russian Federation, the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons, therefore, if a child has expressed the will to enter into sexual relations with another person who does not want such a relationship, sanctions may be applied to the child by the state for violating the right to freedom of this person, which in itself is not applicable in modern society, where, as is known, as a general rule, criminal liability begins at the age of 16.
As for sexual integrity, it can be defined as the impossibility of other subjects, through any kind of influence, to force a person to enter into sexual relationships, while ignoring the will of the person. Thus, the division of sexual freedom and sexual integrity in criminal law is artificial and does not agree with the interpretation of these concepts in the Constitution of the Russian Federation, where freedom and integrity are enshrined as a single personal right. Sexual freedom and sexual integrity are one-order and interconnected legal categories, inextricable elements of one right - passive (inviolability) and active (freedom) [1, p. 123].
Thus, analyzing this position, one gets the opinion that the norms of criminal law contradict constitutional and legal norms, and the traditional interpretation in criminal law contradicts universal values.
We allow ourselves to disagree with the statement about the artificiality of the separation of sexual freedom and sexual integrity in criminal law, since the arguments we have previously given indicate the absurdity of a child’s ability to independently determine from an early age with whom to have an intimate relationship and whether to have sex at all. From our point of view, M.V. Avdeeva does not take into account the fact that the legal status of an individual in legal theory traditionally consists not only of rights and obligations, but also such elements as legal capacity and legal capacity, where, undoubtedly, everyone has the right to freedom (including sexual freedom) from birth, however, take advantage of this right, i.e. can acquire legal capacity only upon reaching a certain age. Therefore, in the case of delimitation of sexual freedom and sexual integrity, we consider the criteria given in the criminal code to be absolutely justified.
Literature:
1. Avdeeva M.V. On strengthening criminal liability for sexual assault against minors // Journal of Russian Law. 2011. No. 4. P. 121.
2. Large legal dictionary / Under. ed. AND I. Sukhareva, V.E. Krutskikh. – 2nd ed., revised. and additional M.: INFRA - M, 2003. P. 444.
3. Constitution of the Russian Federation. M., 2011.
Criminal law of Russia and the place of sexual crimes in it
In such a legislative act as the Criminal Code of the Russian Federation, there are a number of rules that establish legal protection of the relations specified in the article of the sphere. Crimes against sexual integrity and sexual freedom constitute an entire chapter of the Criminal Code. Thus, the legislator most fully regulates these legal relations in order to bring to justice persons who want to violate them or actually implement their plans. Crimes against sexual integrity and sexual freedom include five main acts, namely:
- rape;
- coercion to perform sexual acts;
- violent sexual acts;
- intercourse with minors;
- lewd acts.
The rules establishing responsibility for these actions are found in Chapter 18 of the Criminal Code.
Legal characteristics
Regardless of the gender of the victim, crimes against sexual integrity can be of two types:
- with the use of violence;
- without the use of violence.
The punishment may be increased if the following qualifying criteria are present:
- the attacker threatened the victim with violence;
- there was sexual violence committed by multiple individuals;
- the victim's health was seriously harmed;
- the victim was infected with a venereal disease;
- the crime was carried out with particular cruelty.
If there are aggravating circumstances, the offender can receive up to 20 years in prison for rape. Such punishment is provided for in paragraphs 4 and 5 of Article 131 of the Criminal Code of the Russian Federation.
In addition, for committing violent acts of a sexual nature, the offender can be sentenced to life imprisonment. This is indicated in paragraph 5 of Article 132 of the Criminal Code of the Russian Federation. This article also provides penalties for the following crimes:
- sexual violence when a woman is the coercer;
- coercion to engage in homosexual relations;
- other non-traditional sexual contacts that occurred under coercion.
If such actions are committed, the culprit can be sentenced to 6-20 years in prison. If the attacker committed a crime with extreme cruelty, he may face lifelong imprisonment.
An attacker may also receive punishment for forcing someone to have sexual intercourse. We are talking about doing the following:
- blackmail;
- threats (including destruction or seizure of property);
- use of official position;
- exploiting the victim's helplessness.
If the offender carried out the above actions, inducing the victim to have sexual intercourse, he will receive punishment under Article 133 of the Criminal Code of the Russian Federation. The following preventive measures are provided:
- fine up to 120 thousand rubles;
- a fine in the amount of the convicted person’s income for a period of up to 12 months;
- up to 480 hours of compulsory work;
- up to two years of correctional labor;
- up to a year of forced labor;
- imprisonment for up to 12 months.
Sexual integrity of minors
Previously, the author examined general trends in the inviolability of relationships in the sphere of human sexual contacts. That is, the most standard characteristic of this category was presented. But in the modern world, one can very often come across such a concept as sexual freedom of minors. In general, this category meets all the principles and features of the classical one. However, its characteristic feature is the fact that the defendant is a minor. This can be called any person under the age of 16, if we are talking about the legislation of the Russian Federation. Minors have a specific legal status. It is generally subject to stricter legal frameworks. They are manifested in the fact that full-fledged persons cannot enter into sexual relations with minors under any circumstances. Because it will be punishable by law.
General provisions
The current legislation of the Russian Federation prohibits citizens from committing actions considered unacceptable from the point of view of morality and society. Freedom to choose a sexual partner is the unconditional right of every person. When committing acts of a sexual nature, a citizen should not go beyond the limits established by legislative norms, thereby violating the interests of other people.
The Criminal Code of the Russian Federation punishes especially harshly sexual relations with persons under the age of majority. Such acts are classified as a separate group of crimes against the person, since current legislation establishes the status of sexual integrity for adolescents. Accordingly, even if the sexual act was consensual, an adult who has intercourse with a minor will receive criminal penalties.
Persons who have not reached the age of majority have increased suggestibility, and therefore are not able to correctly determine their sexual behavior and choose a partner. Only upon reaching 18 years of age does a person gain sexual freedom.
Crimes against sexual integrity are divided into two groups depending on the age of the victim:
- Less than 14 years old. Children under the age of 14 are defined by the Criminal Code of the Russian Federation as minors. They cannot make important decisions on their own. For example, if a child is an heir or recipient of a gift, then his authorized representative (parent, guardian or adoptive parent) is directly involved in the procedure. Acts of a sexual nature committed against a person under the age of 14 are called pedophilia.
- From 14 to 16 years old. Starting from the 14th birthday, a child can take part in serious transactions, but with the permission of his parents or guardians. However, he is still a minor.
Having sexual intercourse with a person who has reached the age of majority can only be considered a crime if there is physical or psychological pressure. Such acts are classified as crimes against sexual freedom.
Specifics of the status of a minor
There are many quite interesting points that characterize the legal regime of persons under 16 years of age. The specificity of legal protection in this case is determined, first of all, by the lack of puberty in such persons. This thesis characterizes the stage of ontogenesis, when a person receives a real opportunity to reproduce. In other words, before the onset of puberty, a person cannot fully enter into relationships of the same name with anyone. At the same time, the legislator has built a fairly strict framework for such contacts. Sexual relations with minors have become the object of the criminal branch of law. This indicates the presence of the most significant legal consequences for violators of the regime of sexual freedom of minors.
Crimes against sexual integrity of minors
Intentional especially dangerous acts against persons who have not reached the maturity to enter into sexual contacts are strictly punished by criminal law. In certain states, actions of this kind are classified completely differently. In this case, everything will depend on the specific legislation. For example, in some countries, acts of increased social danger of a sexual nature aimed at teenagers and children are separately identified. As for the Russian Federation, crimes against the sexual integrity of minors are acts that are recognized as criminal offenses in accordance with Article 134 of the Criminal Code of the Russian Federation. It, in turn, contains the rule that any actions with a person who has not reached the age of 16 are punishable by law. In this case, the age of a person is of fundamental importance for legal qualification. After all, it is he who will influence whether Article 134 will be used specifically or not.
Composition of a crime against a minor
Article 134 of the Criminal Code has its own internal structure. It is this that allows us to highlight the actual commission of a crime. As we know, the corpus delicti of any crime consists of the following elements, namely: subject, object, subjective and objective sides. When analyzing each part, you can see the specifics of crimes against sexual freedom and sexual integrity of minors. The object of the crime is relations in the sphere of protecting puberty of persons who have actually not reached 16 years of age. In addition, this element of a socially dangerous act covers the process of normal physiological and mental development of a person. An optional subject, as a rule, is the health of a minor. Therefore, during sexual intercourse before reaching maturity, quite serious physiological harm is caused.
As for the objective side of the crime, this element covers acts characterized as sexual intercourse. It should be noted that in this case, we are talking about sexual contact between a man and a woman. However, in Part 2 of Article 134 of the Criminal Code of the Russian Federation we also found manifestations of norms characterizing unnatural types of intercourse, for example, sodomy or lesbianism. At the same time, acts of this nature are a qualifying feature of the crime. That is, they aggravate the very fact of violation of the sexual freedom of a minor. It should be noted that such an element as the objective side of the crime exists regardless of whether sexual intercourse was carried out under threat or without it. That is, even if the initiator of the connection was a minor, liability for a full-fledged person will still occur.
The subject of a crime against sexual integrity and personal freedom under the age of 16 will always be an adult. However, he must not be married to a minor. The subjective side in all cases without exception is characterized by the presence of direct intent. But in this case, judicial practice plays a significant role in qualifying the act. The sexual integrity of a 16-year-old person is violated in any case. However, there are situations when, due to the physiological characteristics of the victim, the attacker may not be aware of his real age. Therefore, investigative authorities must necessarily ascertain the fact that the offender understands that a particular person is a minor.
Depraved acts of a sexual nature (Article 135 of the Criminal Code of the Russian Federation)
Each person has his own sexual preferences, but not everyone has them that are adequate and, most importantly, legal. The defendants can be charged with prostitution, exhibitionism, and forced viewing of pornographic films. The following types of indecent acts are distinguished:
- showing the public one's genitals;
- performing sexual acts with adults in front of minors;
- inducing the victim to engage in solitary sexual intercourse;
- showing pornography to others.
In our country there is criminal liability for such depraved acts, from compulsory labor to restriction and imprisonment. A lawyer has the power to reduce the sentence of the accused by proving violations in the mental state of the accused. In cases where sexual abuse of minors occurs, the lawyer can petition the court for a psychological examination of both the accused and the victim, which will most likely be ordered. It will show whether there were illegal actions with minors or whether the accused has a chance to clear his good name before the public.
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Sexual crimes around the world
In almost all modern states there are frameworks that protect human sexual freedom. Of course, the legislation of each state has its own vision of the problems of the crimes mentioned. In addition, there is no general agreement among scientists from different countries about the place of socially dangerous acts of a sexual nature in criminal law and acts of this nature. For example, in countries such as Vietnam, Kazakhstan, China and Slovakia, there is no separate institution of sexual crimes. As a rule, such acts are included in the sections where attacks on the person are established. This factor plays a fairly significant role. After all, the existence of a separate section on sexual crimes indicates the presence of an effective legal mechanism for preventing and suppressing such phenomena. In other words, identifying socially dangerous acts in this industry makes it possible to more fully control them and bring to justice those responsible for their commission.
However, in some countries there is a big problem with the development of legal protection for crimes of a sexual nature. For example, in Turkey, or more precisely, in the criminal legislation of this power, the concept of “sexual freedom” still does not exist. Because many people, influenced by conservative tendencies, equate this legal term with promiscuity. That is, for the population of Turkey, an attack on sexual freedom is unthinkable, since it is initially something negative. There is no such pronounced conservatism in the legislation of European countries. Therefore, crimes against sexual freedom in most cases are classified equally. For example, according to the generic object, a special part of the criminal legislation contains a separate section of the mentioned socially dangerous acts in countries such as Spain, Denmark, Italy, Greece, Poland, Ukraine, etc.
Thus, we examined the concept of sexual integrity, as well as the features of crimes that encroach on the presented object. It should be noted that this kind of dangerous acts cause great harm not only to specific people, but also to the moral foundations of society. Therefore, the effectiveness of the legal regime for applying responsibility to persons who have committed sexual crimes must be monitored and modernized everywhere.
Forensic characteristics
When determining the penalty for a crime of a sexual nature, the judge must take into account the following factors:
- behavior of the attacker and the victim;
- mental, physical, mental state of the victim;
- the lifestyle of the victim;
- circumstances of the crime;
- whether the victim knew the offender before the incident;
- whether the victim resisted;
- whether the rapist had a weapon;
- whether the attacker tried to put the victim into a helpless state.
When determining the subjective side of a crime, it is necessary to take into account the following:
- whether the offender has committed similar acts in the past;
- what events led to the commission of the crime;
- whether the attacker tried to avoid punishment;
- physical and mental state of the offender and the victim;
- whether the attacker was aware that he was committing violent acts;
- how the crime was carried out.
