Physical or mental coercion and its criminal legal significance

Rape (Article 131 of the Criminal Code of the Russian Federation) is a crime that infringes on a woman’s right to choose whether to have sexual relations with a specific man. Only a man can commit rape, only a woman can be a victim. Signs of rape are:

• sexual intercourse;
• lack of consent of the victim;
• active violent actions;
• threat of force;
• helpless state of the victim.

Note! Forcing rape should not be confused with deceptive acts to convince the victim to voluntarily engage in sexual relations. These actions do not constitute a crime.

Coercion to rape is expressed in the form of active actions to isolate the victim and deprive her of the ability to resist violence, both physically and psychologically. Coercion to rape is expressed in various forms - physical violence or threat with a weapon, as well as causing grievous harm to health.

The offender does not always manage to finish what he started, and the victim has a chance to avoid sexual violence. It is important to take advantage of the opportunity in a timely manner and then contact law enforcement agencies to punish the offender for attempted rape.

You need to know what to do and how to protect yourself in the event of forced rape.

What to do?

There are a number of preventive measures that can protect a woman from attempts to force her to rape. It is necessary to follow personal safety rules to minimize the risk of meeting a rapist:

• try not to be unaccompanied at night in unfavorable areas of the city;
• do not provoke or attract the attention of unknown suspicious men;
• do not agree to meet an unfamiliar man in his apartment;
• do not abuse alcohol in unfamiliar companies.

The given rules are approximate and correspond to the level of internal self-control of a woman. It is absolutely not necessary to dress provocatively and meet men in dubious places to become a victim of rape.

If you are faced with forced rape, it is important not to panic and concentrate on the problem as much as possible:

• At any opportunity, attempt to escape (the exception is the use of weapons as a threat);
• shout and attract the attention of passers-by;
• try to make a call to the police;
• try to convince the rapist not to commit the crime.

Before resorting to one of the listed options, it is necessary to assess the physical capabilities of the offender. If there is a real threat to your life, do not provoke the criminal to realize it.

Physical and mental coercion: types and methods

Coercion is often indicated in criminal law as a method of committing a crime or a criminal offense. In the reference literature, coercion is defined mainly as “the action of the verb “to force”, “to compel” [1, p.328].

From Bachrach’s point of view, “coercion can be understood as the affirmation of the will of the ruler in spite of the subject, the denial of the will of the subject and external influence on his behavior” [2, p.11]. A.V. Malko defines coercion as follows: “To coerce means to incline people to a certain activity through forceful pressure (against the will of the governed), limiting their freedom of choice” [3, p.114]. S. N. Kozhevnikov defines coercion as follows: “...a method of influence that ensures that people commit actions against their will in the interests of the coercer” [4, p.48]

The term "coerce" means to force a person to do something against his will. When coercion is used, using physical or mental pressure on a person, they try to change his behavior.

Based on the characteristics of the impact on the victim, coercion is divided into physical and mental. What they have in common is that physical or mental influence on a person is a socially dangerous act, is carried out illegally and is intended to prevent the manifestation of a person’s free will, to force him to commit an act that was undesirable for him.

Physical coercion is a violent influence on the human body, reduced to causing pain or harm to health, committed with the aim of getting the coerced person to perform a certain action [5, p.176]. Physical coercion can be reduced to violating the anatomical integrity of the human body (beating, using weapons, etc.), influencing other physiological processes (using potent medications, narcotic and psychotropic drugs, deprivation of food, sleep, etc.) and restricting physical freedom of the coerced (holding, tying, etc.) [6, p.38].

Physical coercion can be of two types. Firstly, physical coercion is a mechanical means of influencing the human body, and also with the help of intoxicants or in any other way it is possible to influence the body or internal organs of a person. These include the following: beating, torture, torture, forcible or against the will of a person, the introduction of intoxicating substances into his body, forced tying, i.e. actions that outwardly coincide with physical violence, but differ in their focus on suppressing the will of another person, for changing behavior in your favor.

Secondly, physical coercion may not involve physical violence. This, for example, is locking a person in a room without direct mechanical impact on his body, as a result of which he is deprived of the opportunity to use freedom of movement and cannot perform the actions that he would like (and sometimes should) carry out. [7]

From this we can draw the following conclusion. Physical coercion is a method of illegal external influence on a person’s body, as well as a way of depriving him of the ability to move in space, which is carried out in order to force a person to change his behavior, that is, to act (inaction) in favor of the coercer.

Physical coercion can be recognized as surmountable or insurmountable. With regard to mental coercion, as a rule, it is believed that it can only be surmountable [8, p.107].

When the will of a person is completely suppressed, when the person has no other choice but to commit a socially dangerous act, then physical coercion is irresistible. In this case, the person who has committed a socially dangerous act is considered innocent, and criminal liability for committing a certain act cannot occur.

If the coerced person retained the opportunity to choose a non-criminal behavior option, a situation similar to extreme necessity occurs: in order to prevent harm to his legally protected interests, the coerced person causes harm to the interests of a third party. The harm caused in such situations is assessed as caused in a state of extreme necessity: that is, in order to recognize its infliction as legitimate, it must be less than the harm prevented and causing harm must be the last resort out of the current situation. [9, p.178]

There has been much debate in the legal literature about the moment when a state of extreme necessity arises. Some authors believed that a state of extreme necessity arises only from the stage of an assassination attempt, excluding such a possibility from the stage of preparation or causing a real threat, others considered the initial moment of danger creating a state of extreme necessity to be a real threat.

Agreeing that the state of extreme necessity arises only from the stage of an attempt, it can be assumed that threat or coercion, which are far from an attempt, should be considered as circumstances mitigating the responsibility of the person who committed a crime under their influence, however, such a solution to the issue unreasonably narrows the scope of extreme necessary and unreasonably expands the possibilities of criminal prosecution. [10]

Threat, coercion, as well as a dependent position are circumstances that incline a person to commit a crime, but they do not create the conditions for the legitimacy of extreme necessity.

The sources of danger that lead to a state of emergency can be different. These are natural forces of nature, animal attacks, physiological and pathological processes occurring in the human body, and human actions, including criminal ones. People's actions, including criminal ones, bring the institution of extreme necessity closer to circumstances mitigating punishment.

Mental coercion is the application of mental violence to a person in order to force him to perform an action desired by the person demanding it or to refrain from an action that is undesirable for him.

Mental coercion is an informational influence on a person’s consciousness, which, as a rule, represents a threat of physical violence against the coerced person or his loved ones.

Mental coercion should be understood as any means of influencing a person’s psyche, expressed in intimidation with the use of physical violence, destruction or damage to property, dissemination of slanderous fabrications, etc.

Types of mental influence in coercion are threat and hypnosis.

Using such methods of coercion, the criminal tries to intimidate the subject from whom he extracts a certain behavior.

The types of threats provided for in the norms of the Criminal Code of the Russian Federation as a form of coercion, taking into account the signs characterizing their content, are divided into the following classes: 1) threats of a certain nature; 2) threats of an uncertain nature; 3) threats of violence, the nature of which is not defined by the legislator. Forms of external expression of threat can be words and gestures.

A crime should be considered committed under the influence of a threat in the following cases: 1) if the threat was real or perceived; 2) if the threat was expressed personally to the person who committed the crime, or through third parties; 3) if the threat was addressed to a specific person or addressed to his relatives; 4) if the threat falls under the signs of a particular crime, administrative or disciplinary offense or act, which, according to Part 2 of Art. 14 of the Criminal Code is not a crime; 5) if a person commits a crime aimed not at the interests of the threat, but at the interests of third parties; 6) if the threat does not create an unavoidable danger under the given circumstances; 7) if evasion of possible danger is not a sign of an independent crime.

An order can also act as coercion. In this case, the performer fears adverse consequences for himself.

Under mental coercion, the person committing a socially dangerous act has free will. The person to whom the demand is made has a choice of a certain behavior option. However, the person committing the crime may not be aware of what he is doing and may commit actions against his will - this means that the person committing the crime is in a state of hypnotic sleep.

Hypnosis is a type of force majeure. A person who commits a crime under hypnosis does not incur criminal liability. The criminal, in this case, is the person who used the hypnotized person as a living instrument of crime.

The rules on coercion as a circumstance excluding criminal liability are contained in the criminal legislation of many states. In Art. 122-2 of the French Criminal Code states: “A person who acted under the influence of force or coercion which he could not resist is not subject to criminal liability.”

The Dutch Criminal Code states that “A person who commits an offense under the influence of a force that he cannot resist is not subject to criminal liability” (Article 40). The ability to resist coercion is an evaluative sign: it is determined on the basis of a specific situation by law enforcement agencies.

The Criminal Code of Spain in paragraph 6 of Art. 21 contains a broader basis for exoneration: it states that “one who acted in a state of great fear” is not subject to criminal liability. Severe fear can be caused, in particular, by coercion (primarily mental).

The rule on physical or mental coercion is contained in Art. 40 of the Criminal Code of the Russian Federation. Causing harm to interests protected by criminal law as a result of irresistible physical coercion is recognized as non-criminal.

Literature:

1. Ushakov D. N. Explanatory dictionary of the Russian language. M. 1996. T. Z. S. 328.

2. Bakhrakh D. N. Administrative responsibility of citizens of the USSR 1989. P. 11.

3. Malko A.V. Theory of State and Law. M., 2004. P. 114.

4. Kozhevnikov S.N. State coercion, features and content. Soviet state and law. 1978. No. 5. P. 48.

5. Bastrykina A.I. Criminal law of Russia. Practical course. M. 2007. P. 176.

6. Oreshkina T. Physical mental coercion as a circumstance excluding the criminality of an act // Criminal law. 2000. No. 1. P. 33–38.

7. https://www.blog.servitutis.ru

8. Bastrykina A.I. Criminal law of Russia. Practical course. M. 2007. P. 107.

9. Bastrykina A.I. Criminal law of Russia. Practical course. M. 2007. P. 178.

10. https://www.bibliotekar.ru

How to protect yourself in such a situation?

Art. 37 of the Criminal Code of the Russian Federation provides the victim with the opportunity to cause harm to the criminal if there is a threat to her life and health. The limitation is the limit of necessary defense: the victim must prevent the commission of a crime, and not intentionally cause physical suffering to the offender. Thus, when forced to rape, the victim must defend himself. Her actions should be aimed at preventing rape.

Examples of self-defense options are:

• use any furnishings for self-defense;
• strike at the most vulnerable points of the criminal - eyes, throat, solar plexus, groin area;
• attack first to catch the criminal by surprise;
• when the opportunity arises, run.

Even if you do not have the necessary physical training, you always have a chance to take advantage of the current situation. Do not lose your composure, act soberly, but humanely, without exceeding the permissible limits of self-defense.

It is almost impossible to mentally prepare for forced rape. It is important to be able to concentrate and protect yourself at the right time. Do not neglect the rules of personal safety; carry self-defense equipment with you.

“Forcing peace”: why Russia launched a special operation in Ukraine

Russia’s actions towards Ukraine are a special operation to enforce peace. It is wrong to call what is happening a war. This opinion was expressed in a conversation with Vechernyaya Moskva by retired colonel, military expert and political scientist Viktor Litovkin.

According to him, neither side declared war. The actions of our country should be regarded as a special operation.

- Firstly, we did not declare war on Ukraine, and Ukraine did not declare war on us. Secondly, there is a special operation underway, which I call forcing Ukraine to peace. Strikes are being carried out on military facilities and the military infrastructure of Ukraine so that it stops shelling the Donetsk and Luhansk regions and the civilians who live in them, the expert explained.

The main attacks of the Russian side are also aimed at depriving Ukraine of the opportunity to receive weapons from abroad. To achieve this, the Russian army is blocking Ukrainian ports, airfields, and train stations.

Litovkin emphasizes that Russia is trying not to cause damage to civilians and civilian infrastructure:

“This peace enforcement operation is strikingly different from the one carried out by the United States and NATO in 1999 in Yugoslavia, when they bombed vital infrastructure: water pipelines, electrical substations, TV stations, sewers, bridges, etc. We don't do that. Our country carries out air strikes on military equipment warehouses, on positions of air defense systems, on airfields with military aircraft. At the same time, Russia strives to avoid causing harm to civilians as much as possible.

The situation in Donbass

In recent weeks, the situation in Donbass has worsened. Ukraine has concentrated most of its military capabilities on the contact line. Against the background of the threat of aggression from Ukraine, the Donetsk and Lugansk people's republics began to evacuate civilians from their territories. General mobilization was announced in the DPR and LPR. In connection with this situation, on February 19, the leaders of the self-proclaimed republics turned to Russia with a request to recognize their independence.

On February 21, Russian President Vladimir Putin recognized the sovereignty of the DPR and LPR due to the bloodshed in Donbass.

On February 23, it became known that the heads of the DPR and LPR appealed to the President of the Russian Federation with a request for assistance in repelling aggression from Ukraine. It is noted that this is necessary to avoid civilian casualties, as well as to prevent a humanitarian catastrophe in Donbass.

On February 24, Putin, in his address to Russians, said that the Russian Federation would conduct a special military operation on the territory of Donbass.

It's easier to force, it's hard to prove

Legal practice suggests that coercive employers often get away with impunity. There are several reasons for this:

1. The offended party cannot prove duress. Often conversations about dismissal occur unexpectedly for an unwanted employee. As a rule, the employer makes sure that they take place without witnesses. Even if you press the record button on your phone in time, it will not be legal evidence for the court.
2. Positive test result. If an organization receives an inspection from the prosecutor's office or labor inspectorate, this does not mean that it will be able to establish the fact of coercion, because it leaves no traces.
3. The prosecutor's office will only “wag its finger.” Even if you complain to the prosecutor’s office and it takes the complaint seriously, all that it can do to the employer until the dismissal takes place is to issue a “warning” - simply a speculative measure that does not carry any legal consequences. A dismissal that has already taken place can only be challenged in court.
4. “They didn’t know what they were doing.” Due to legal ignorance, many workers do not even realize that their rights are being violated.

ATTENTION! For more timid employees, the phrase “You are fired, write a statement!” is often enough. The image of an all-powerful boss is often shown in movies, so such a dismissal may seem legitimate to the average person.

Conditions of coercion

In order for this type of action to fully correspond to its nature, three conditions must be present. The first of them is the presence of a coercive party. There must be a person, or perhaps several persons, who will carry out that same coercion. For example, if this is procedural coercion, then this could be a court or law enforcement officers.

The second condition will be the presence of an object of coercion. These are, accordingly, those people who are subject to certain coercive measures. It is important that the actions applied to them must be prohibited and there should be no way to protect themselves from them. However, the prohibition condition does not always apply; when measures of state coercion are applied, it is permitted by law.

And the last, third condition is the presence of any compulsory action. That is, the coercing party forces one to perform certain actions, to undergo any restrictions or deprivations, and it is these deprivations that will constitute the coercive action in question.

State coercion

Legal coercion is a very important element of the criminal process system. In addition, this is the most common type of coercion in general, since it is legal and not prohibited, moreover, it is a common method of crime prevention. State coercion also has its own types, which are determined taking into account the sector of its action.

The most used type of legal coercion is criminal. After catching a criminal, it is very important to prevent negative behavior on his part. In this case, law enforcement agencies or the court have the right of coercion, depending on the type of measures taken.

In addition to criminal, there are also administrative, civil and disciplinary coercion. Coercion, as we know, is an inducement to do something, and so each of these branches obliges the person who has committed an offense, which is fundamentally different from a crime, to certain actions that compensate for negative consequences.