Article 153. Forced satisfaction of sexual passion in perverted forms
1. Satisfaction of sexual passion in perverted
forms with the use of physical violence, threats thereof
using or taking advantage of the helpless state of the victim, is punishable by imprisonment for up to five years.
persons, or a person who has previously committed any of the crimes provided for in Articles 152 or 154 of this Code, as well as committed against
minor or minor, is punishable by imprisonment for a term of three to
3. The same act committed against a minor or minor, if it resulted in especially grave
consequences, punishable by imprisonment for a term of eight
up to twelve years old.
1. From the objective side, this crime is characterized by the commission of a man with a woman or a man with a man (woman with a woman) of orogenital or anogenital contact with the use of physical violence, threats or taking advantage of the helpless state of the victim. Sexual activities
of a different nature using the specified methods when
the presence of all signs of hooliganism may be classified as hooliganism.
The victim of this crime may be
a person of both female and male gender is recognized.
The concept of physical violence, threat or exploitation of the helpless state of the victim (victim)
similar to these concepts in rape.
The crime is considered completed from the moment of the beginning of orogenital or anogenital contact.
2. The subjective side of the crime is characterized by direct intent - the person is aware of what he is committing
the specified actions with the victim (victim) using physical violence, threats or using the helpless state of the specified person and wishes
3. The subject of the crime is a male (female) person
gender who have reached the age of 14.
4. Part 2 of this article provides for liability for committing a similar crime repeatedly,
group of persons, or in relation to a minor or
On committing such a crime again, see comments to Art. 155.
For the commission of such a crime by a group of persons, see the comments to Art. 155.
Minors should be understood as male or female persons between the ages of 14 and 18 years.
5. Part 3 of this article provides for liability for committing such actions in relation to
minors, if they caused serious consequences.
Underage minors should be understood as female or
male under the age of 14 years.
About the concept of “particularly grave consequences” - see the commentary to Art. 155.
lawbook.online
Second commentary to Art. 153 of the Criminal Code of the Russian Federation
1. The use of the term “child” reflects the desire of the legislator to unify criminal legal terminology with international legal terminology, and also to emphasize that this means newborns or minors and thereby limit the circle of persons in respect of whom substitution can be carried out.
2. Substitution means secretly replacing one thing with another. In this case, we are talking about transferring to parents, instead of their own child, someone else’s child.
3. The subjective side of the crime in question is characterized by direct intent and selfish or base motives.
The content of the selfish motive is the same for all crimes committed from these motives. Other base motives should be considered revenge, envy, replacing a healthy child with a sick one, replacing a girl with a boy and vice versa, etc. In this case, we are talking about motives that are incompatible with the basic values of our society.
4. The subject of the crime is a person who has reached the age of 16.
What does judicial practice show under the article?
The practice under the article is not so common, because it is rarely possible to identify the perpetrator. The difficulty is due to the fact that it is not known who did this - a nurse, a doctor or other parents in the maternity hospital. Therefore, cases often remain unclear. There are often situations when parents do not know at all that this is not their child, but they raise him as they should.
Examples of cases:
- Citizen L. gave birth to a boy. She was sure of this, since the nurse had clearly told her her sex at birth. Unfortunately, due to the anesthesia, L. did not remember what he looked like. In the morning they brought her a girl and told her that this was her child. L. tried to protest, but she was told that she had heard that she had given birth to a boy. L. contacted the police to investigate. It turned out that the child had indeed been replaced with another. The attacker turned out to be the head physician, who was offered a large sum for a replacement. As a result, he was deprived of his position and imprisoned for 5 years.
- Citizen G. worked in a maternity hospital as a nurse. At night, he saw a nurse replacing one child with another. He pointed this out to her and she started to run. G. caught up with her and forced her to confess to what she had done. She confessed and came to the police to confess. There they began to investigate the case, which turned out to be more than one - the nurse had 5 substitute children on her account. She replaced all of them out of self-interest - her parents paid her money. As a result, the nurse was imprisoned for 7 years and fined. The children returned to their parents safe and sound.
- Citizen V. went for a walk with the child, left him in the stroller while he went to the store, and after returning he saw that his son was wearing a different overall. He panicked and decided that the child had been replaced. This was found out after a genetic examination. They began to look for the attacker, but nothing happened. Only 5 years later he was accidentally discovered. Since the statute of limitations for the crime had not expired, he was sentenced to 10 years in prison.
What decisions are made under Article 153?
More often, the article makes guilty decisions, since the crime is serious and dangerous for society as a whole. In 2022, not a single case was prosecuted under this article.
What are aggravating and mitigating circumstances?
The punishment may be aggravated by circumstances indicating that a group of people are working in conspiracy. Also, the sentence is increased if officials are involved in the crime. Then they will definitely be removed from their positions. The circumstances of the case can be mitigated if it is proven that the person was forced to do this under threat of death, if he confessed to his crime and helped the investigation finish the case, and compensated the damage to the affected family.
Criminal liability for child substitution
19/11/2015
Criminal liability for child substitution is provided for in Article 153 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation).
The object of criminal acts is a newborn, and its replacement can only take place when the parents, due to the current situation, cannot recognize or identify their child. For example, due to the painful condition of the mother or the child himself, he was not delivered to her for feeding for a long time; transfer of a newborn child to the father after the death of the mother, which occurs during childbirth or shortly after childbirth, etc.
Criminal acts are expressed in the substitution of a child, which means the unlawful removal of a child and replacing him with another. In the case when a child is removed without replacing him, criminal liability arises not for the replacement of the child, but for kidnapping (clause “d”, part 2 of article 126 of the Criminal Code of the Russian Federation). In certain situations, a child can be replaced by another child not only of the same sex, but also of the opposite sex (for example, during childbirth, a woman was in an unconscious state and did not know the gender of the child born).
The location of the crime does not matter; it could be a maternity hospital, a residential building, a street, etc. It is possible to replace a child, as a rule, in a maternity hospital immediately after birth or in the coming days after birth. However, based on medical parameters, a child is considered a newborn until he reaches the age of one month, so the replacement of a child can also be carried out outside the maternity hospital (for example, a newborn left unattended in a stroller near a house or a store).
Actions to replace a child are considered criminal if they are committed for selfish or other base motives.
Selfish motives may manifest themselves in receiving material rewards from persons interested in substitution.
Base motives when replacing a child are manifested in revenge, the desire to have a healthy child when a physically handicapped one is born, etc.
It is not a crime if parents voluntarily agree to exchange children, for example, if they want to have a child of the opposite sex. There is also an element of immorality here, but they cannot be equated with any kind of base or selfish motives, since both parties desire to have and raise a child. Such actions also cannot be attributed to other transactions related to trafficking in minors, since receiving another child in exchange cannot be equated to receiving any material assets or benefits from these actions. It will not be a crime to take actions aimed at raising an abandoned child, which the person who assumed these functions did not report to the relevant authorities. In connection with the commission of this crime, parents, medical personnel of maternity hospitals and children's institutions, as well as other interested parties may be held criminally liable. The age of criminal liability for child substitution is 16 years.
For committing this crime, punishment is provided in the form of imprisonment for a term of up to five years with a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months.
Commentary to Art. 154 of the Criminal Code of the Russian Federation
1. The object of the crime provided for in the commented article is the interests of the family, parents and children, the procedure for adoption established by law. According to Art. 21 of the UN Convention on the Rights of the Child of 20 November 1989, States Parties ensure that the adoption of a child is authorized only by competent authorities in accordance with applicable laws and established procedures. The Family Code of the Russian Federation determines the grounds and procedure for the adoption of children, the establishment of guardianship or trusteeship, and the transfer of a child to a foster family.
2. The objective side of the crime is the commission of illegal actions to adopt children, transfer them to guardianship (trusteeship), to be raised in foster families, committed repeatedly or for selfish reasons.
Thus, the disposition of the commented article is blanket and establishes criminal liability in case of violation of the norms of the Insurance Code, the Civil Code, and the provisions of other federal laws, for example, the Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship” (as amended on July 1, 2008. 2011), as well as other regulations, for example, Resolution of the Government of the Russian Federation dated March 29, 2000 N 275 “On approval of the Rules for the transfer of children for adoption and monitoring the conditions of their life and upbringing in adoptive families on the territory of the Russian Federation and the Rules for placement for registration by consular offices of the Russian Federation of children who are citizens of the Russian Federation and adopted by foreign citizens or stateless persons" (as amended on May 12, 2012). Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 20, 2006 N 8 deals with issues of adoption. ——————————— NW RF. 2008. N 17. Art. 1755; 2009. N 29. Art. 3615; 2011. N 27. Art. 3880.
NW RF. 2000. N 15. Art. 1590; 2002. N 15. Art. 1434; 2005. N 11. Art. 950; 2006. N 16. Art. 1748; 2012. N 19. Art. 2416; N 21. Art. 2644.
For example, illegal actions can be expressed in the preparation of documents for the adoption of children by persons recognized by the court as incompetent or partially capable, persons deprived of parental rights by the court or limited by the court in parental rights, persons removed from the duties of a guardian (trustee) for improper performance the duties assigned to him by law; registration of documents for children whose parents have not given consent to adoption by others; execution of documents without the consent of a child over 10 years of age; registration of documents for the adoption of a child by foreign citizens or stateless persons, without mandatory verification of the possibility of adoption of the child by his relatives or families of citizens of the Russian Federation. The law also prohibits intermediary activities in the adoption of children, i.e. any activity of other persons for the purpose of selecting and transferring children for adoption on behalf of and in the interests of persons wishing to adopt children.
Mandatory (alternative) signs of a crime are the commission of these actions repeatedly or for selfish reasons. In the absence of selfish motives and signs of repetition, liability for illegal actions of adopting a child, placing him under guardianship (trusteeship) or to a foster family is provided for in Art. 5.37 Code of Administrative Offences.
3. Repeated activity means performing the specified actions at least twice. Selfish motives are understood as a person’s desire to receive material benefit (monetary or other material reward - a valuable gift, an expensive service) from illegal adoption, establishment of guardianship and trusteeship.
4. The crime is considered completed from the moment the actions specified in the disposition of the article are performed.
5. The subjective side is characterized by direct intent. The person is aware that he is committing illegal acts of adoption or placement under guardianship (trusteeship) or foster families, and wishes to commit these acts.
6. The subject of the crime is common. At the same time, as a rule, these criminal acts are committed by persons who are entrusted with the responsibility for drawing up official documents for adoption, establishing guardianship, trusteeship, and transferring a minor to a foster family (employees of orphanages, boarding schools, medical institutions, educational authorities etc.).
stykrf.ru
Commentary to Art. 153 Criminal Code
1. The objective side of the crime is expressed in the substitution of a child, which means the unlawful removal of a child and replacing him with another. In the case when a child is removed without replacing him, criminal liability arises not for the replacement of a child, but for kidnapping (clause “d”, part 2 of article 126 of the Criminal Code).
2. The crime has a formal structure and is considered completed from the moment the child is actually replaced.
3. A mandatory feature of the subjective side is motive - selfish or other base motives. Selfish motives presuppose the desire of the guilty person to obtain some kind of material benefit.
Commentary on Article 153 of the Criminal Code of the Russian Federation
Commentary edited by A.V. Brilliantova
The object of this crime is the family structure, the interests of the family.
From the objective side, the crime consists of replacing one child with another without the consent of at least the parents of one of the children being replaced. A crime is possible not only in the form of replacing someone else’s child with another stranger, but also someone else’s child with one’s own or one’s with someone else’s child.
The Federal Law “On Basic Guarantees of the Rights of the Child in the Russian Federation” defines the concept of “child” as “a person until he reaches the age of 18 years (the age of majority).”
However, from the point of view of the article under consideration, clarification is necessary.
As a rule, child replacement is possible only for infants, usually newborns. This situation is possible when the child has not yet shown clearly individually defined signs or the parents have not yet had time to realize them. The location of the crime does not matter. Usually it is a maternity hospital or other children's institution, but it can also be a street if a child, say, is left in a stroller on the street. A situation is possible when, after some possibly tragic events, a child older than infancy is transferred to relatives who cannot identify the child being transferred. In any case, neither the age nor the place of commission is legally defined.
The corpus delicti is formal. The crime is considered completed after the actual replacement of the child has been committed.
From the subjective side, actions to replace a child are considered criminal if they are committed with direct intent. A mandatory element of the crime in question is selfish or other base motives. Selfish motives are considered to be those aimed at obtaining material benefits from persons interested in substitution (for example, receiving a reward) or getting rid of material costs (for example, in the case of the birth of a physically disabled child).
In theory and practice, hooliganism, revenge, envy, etc. are considered base motives. Only if there is such motivation is the act criminally punishable. However, if the substitution of a child was committed, for example, out of a feeling of compassion, then there is no corpus delicti.
If the substitution is accompanied by the subsequent presentation of claims of a property nature as a condition for the return of the child, then under appropriate conditions the act may be qualified in conjunction with Art. 163 of the Criminal Code of the Russian Federation
Taking into account the above-mentioned motives for the crime, we can conclude that if the replacement is carried out by mutual consent of the parents of both children (for example, if they want to have a child of the opposite sex), there is no element of child replacement. Also, raising an abandoned child does not constitute a crime. True, it should be noted that there is no complete unanimity on the last issue among scientists and practitioners.
When the substitution of a child was preceded by his abduction, the act must be qualified as a set of crimes under paragraph “e” of Part 2 of Art. 126 and art. 153 of the Criminal Code of the Russian Federation
If the child is not replaced, but taken away from the parents (for example, by declaring him dead at birth, and then handed over to the interested party), then such actions are considered as kidnapping (Article 126 of the Criminal Code of the Russian Federation).
The general subject of the crime is a sane person who has reached the age of sixteen. When a child is replaced by an official (for example, the head of a maternity hospital), the act must be qualified in conjunction with the article on official crime.
When replacing a child in a maternity hospital due to negligence, the perpetrators, if there are grounds and meet the requirements of the official, may be held liable for negligence (Article 293 of the Criminal Code of the Russian Federation) or subject to disciplinary liability
Judicial practice under Article 153 of the Criminal Code of the Russian Federation
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 19, 2019 N 127-UD18-22
Evgeniy Anatolyevich Grushevich, ... convicted on July 7, 2010 under Part 1 of Art. 153 of the Criminal Code of Ukraine to 4 years in prison, released on August 1, 2012 on parole for 1 year 8 months, convicted under Part 1 of Art. 105 of the Criminal Code of the Russian Federation to 10 years in prison, on the basis of Part 1 of Art. The Criminal Code of the Russian Federation, based on the totality of sentences, partially added the unserved part of the sentence under the sentence of July 7, 2010 and finally imposed 10 years and 6 months of imprisonment to be served in a high-security correctional colony.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 6, 2017 N 127-UDp17-8
Golovatenko S.V. ..., convicted: February 26, 2007 under Part 2 of Art. 186 of the Criminal Code of Ukraine to 4 years in prison; June 5, 2008 under Part 1 of Art. 152, part 1 art. 153 of the Criminal Code of Ukraine using Art. Criminal Code of Ukraine to 6 years in prison, released on parole on August 4, 2011 for 8 months 7 days; December 24, 2012 (taking into account bringing the sentence into compliance with the legislation of the Russian Federation by the resolution of the Bakhchisarai District Court of the Republic of Crimea dated December 10, 2014) under Part 1 of Art. 158, part 2 art. 158 of the Criminal Code of the Russian Federation using Part 2 of Art. of the Criminal Code of the Russian Federation to 4 years in prison, convicted under Part 1 of Art. 105 of the Criminal Code of the Russian Federation to 13 years in prison.
Substitution of a child (Article 153 of the Criminal Code)
Article 153 of the Criminal Code establishes criminal liability for child substitution committed for selfish or other base motives.
The danger of this crime lies in the fact that by substituting a child, blood ties of kinship are forcibly broken, and the relationship between parents and children, which is filled with deep moral universal human content, is violated.
The object of the crime in question is the interests of the family and the normal (mental and spiritual) development of the child.
The victim can be either someone else's child or your own child.
From the objective side, the substitution of a child is expressed in the fact that one child is replaced by another, which is possible, as a rule, only in relation to a newborn baby, and the scene of the crime is a maternity hospital. However, substitution is also possible outside the maternity hospital. For example, replacing a child who was in a stroller on the street in the absence of adults who were with him for a walk.
The subject of the crime is a sane person who has reached the age of 16, in relation to whom the substitute child is a stranger. In some cases, the subject may be a parent seeking to get rid of a sick child and replacing him with another child.
From the subjective side , the crime provided for in Art. 153 of the Criminal Code, assumes only direct intent
: the perpetrator realizes that he is committing child substitution and wishes to commit it.
A mandatory feature of the subjective side
of the crime provided for in Art.
153 of the Criminal Code are selfish
(for compensation from interested parties)
or other base motives
(hooliganism, generated by racial hostility, envy, revenge, etc.).
In the absence of
the specified
motives
, as well as
direct intent
, for example, the substitution of a child, committed as a result of a careless, dishonest attitude towards their duties on the part of the medical staff of the maternity hospital,
does not form a crime
and is qualified as a misconduct at work.
Child substitution has a formal composition . The crime is considered completed from the moment one child is replaced by another. Detection and suppression of a crime at the time of its commission, for example, detaining the perpetrator with a child at the scene of the substitution or in the immediate vicinity of it, is qualified as an attempted substitution.
Article 153 of the Criminal Code establishes criminal liability for child substitution committed for selfish or other base motives.
The danger of this crime lies in the fact that by substituting a child, blood ties of kinship are forcibly broken, and the relationship between parents and children, which is filled with deep moral universal human content, is violated.
The object of the crime in question is the interests of the family and the normal (mental and spiritual) development of the child.
The victim can be either someone else's child or your own child.
From the objective side, the substitution of a child is expressed in the fact that one child is replaced by another, which is possible, as a rule, only in relation to a newborn baby, and the scene of the crime is a maternity hospital. However, substitution is also possible outside the maternity hospital. For example, replacing a child who was in a stroller on the street in the absence of adults who were with him for a walk.
The subject of the crime is a sane person who has reached the age of 16, in relation to whom the substitute child is a stranger. In some cases, the subject may be a parent seeking to get rid of a sick child and replacing him with another child.
From the subjective side , the crime provided for in Art. 153 of the Criminal Code, assumes only direct intent
: the perpetrator realizes that he is committing child substitution and wishes to commit it.
A mandatory feature of the subjective side
of the crime provided for in Art.
153 of the Criminal Code are selfish
(for compensation from interested parties)
or other base motives
(hooliganism, generated by racial hostility, envy, revenge, etc.).
In the absence of
the specified
motives
, as well as
direct intent
, for example, the substitution of a child, committed as a result of a careless, dishonest attitude towards their duties on the part of the medical staff of the maternity hospital,
does not form a crime
and is qualified as a misconduct at work.
Child substitution has a formal composition . The crime is considered completed from the moment one child is replaced by another. Detection and suppression of a crime at the time of its commission, for example, detaining the perpetrator with a child at the scene of the substitution or in the immediate vicinity of it, is qualified as an attempted substitution.
