Commentary on Article 120 of the Criminal Code of the Republic of Kazakhstan. Rape

1. Rape, that is, sexual intercourse committed through the use of violence or the threat of violence against the victim or other persons, or by taking advantage of the victim’s helpless condition, –

shall be punishable by imprisonment for a term of three to five years.

2. Rape:

a) committed by a group of persons, a group of persons acting by prior agreement, or an organized group;

b) accompanied by a threat to kill, as well as committed with particular cruelty against the victim or other persons;

c) resulting in the victim contracting a venereal disease;

d) committed repeatedly or by a person who has previously committed violent acts of a sexual nature;

e) committed against a person whom the perpetrator knowingly knows to be a minor –

shall be punishable by imprisonment for a term of five to ten years.

3. Rape:

a) resulting in the death of the victim through negligence;

b) resulting through negligence in grievous bodily harm to the victim, the victim contracting HIV/AIDS, or other grave consequences;

c) committed against a victim whom the perpetrator knowingly knows to be under fourteen years of age;

d) committed by taking advantage of conditions of a public disaster or during mass riots –

shall be punishable by imprisonment for a term of eight to fifteen years.

Rape is one of the most serious criminal assaults against a woman’s sexual freedom and sexual inviolability. Criminal law defines rape as sexual intercourse between a man and a woman in the natural form, where the perpetrator uses physical or psychological violence (threats) against the victim or other persons, or takes advantage of the victim’s helpless condition.

The public danger of this crime lies in the fact that sexual gratification is achieved through the use of violence, the threat of using it, or by taking advantage of the victim’s helpless condition.

The object of this crime is a woman’s sexual freedom. This means that a woman has the right to decide independently whether to engage in sexual intercourse with men. A woman’s lack of consent to sexual intimacy may be evidenced by her actual and clearly expressed objection and active resistance. In rape, the victim can only be a female person. The victim’s moral character, in particular, her improper conduct, is of no significance for the purposes of rape. At the same time, criminal liability for the rape of a prostitute, a cohabiting partner, or one’s wife is not excluded, since the criminal legislation of Kazakhstan protects the sexual freedom of every person, regardless of how that person exercises this freedom.

Sexual freedom is the object of rape and is understood as an integral part of a person’s personal freedom. It is expressed in a person’s right to independently determine how to satisfy their sexual needs. Such freedom belongs to a mentally healthy person who has reached the age of 16. Persons under this age, as well as persons with mental illnesses, do not possess sexual freedom. Therefore, criminal liability for voluntary or forced sexual intercourse with a person under the age of 16, as well as with a person aged 16 who is not mentally competent, arises under Articles 120–122 of the Criminal Code of the Republic of Kazakhstan. In such cases, the object of the crimes provided for in Articles 120, 121 and 124 of the Criminal Code of the Republic of Kazakhstan is sexual inviolability. Accordingly, only sexual freedom in circumstances where a person’s sexual conduct does not violate the interests of other persons or public interests is recognized as the object of rape. In rape, the perpetrator violates the victim’s sexual freedom by engaging in sexual intercourse with her through the use of force.

The objective element of rape consists of sexual intercourse with the victim through the use of violence or the threat of violence against the victim or other persons, or by taking advantage of the victim’s helpless condition.

Sexual intercourse is “a physiological act directed towards procreation and carried out by introducing the male sexual organ into the vagina.” Sexual intercourse is, first and foremost, and exclusively, the union of the sexes. The term “sexual intercourse” is not a legal term but a medical one and must be understood in the sense in which it is interpreted in the science of sexology.

Sexual intercourse is recognized as rape where the perpetrator engages in it against the woman’s will, through the use of physical force, threats against the victim or other persons, or by taking advantage of her helpless condition. The actions of a person who obtains a woman’s consent to sexual intercourse through deception or abuse of trust do not constitute rape.

Violence is any physical impact exerted on a person. Physical violence in rape may take the form of causing bodily harm of varying degrees, ranging from beatings to grievous bodily harm. It may involve causing pain, restricting freedom, tying up the victim, or strangling her; in other words, it includes any physical force that helps overcome the woman’s resistance or deprives her of the ability to resist.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On Certain Issues of the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature,” the intentional infliction of minor or moderate bodily harm on victims during the commission of rape, other violent acts of a sexual nature, or attempts to commit such acts is covered by the wording of Articles 120 or 121 of the Criminal Code of the Republic of Kazakhstan and does not require additional qualification.

The degree of severity of bodily harm is established on the basis of an expert opinion obtained in accordance with the Rules for the Organization of Forensic Medical Examinations, approved by Order No. 875/1 of the Minister of Health of the Republic of Kazakhstan dated December 20, 2004.

The unlawful intentional killing of a victim during the commission of rape or violent acts of a sexual nature, or during an attempt to commit these crimes, as well as after the completion of forced sexual intercourse or violent acts of a sexual nature, for the purpose of concealing the act or out of revenge for the resistance offered, must be qualified under subparagraph “k” of paragraph 2 of Article 96 and the relevant part of Article 120 or 121 of the Criminal Code of the Republic of Kazakhstan.

“When qualifying the actions of the aforementioned perpetrators, the body conducting the criminal proceedings must indicate all established qualifying circumstances provided for both in subparagraph ‘k’ of paragraph 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan and in other subparagraphs of paragraph 2 of that Article, as well as in the relevant parts of Articles 120 or 121 of the Criminal Code of the Republic of Kazakhstan.”

Physical violence during rape may be exerted not only mechanically, but also through chemical and biological effects.

The force used during rape must be sufficiently intense to overcome the victim’s actual (not simulated) resistance.

In this regard, it should be noted that sexual intercourse with a woman who has not genuinely resisted, but has merely pretended to resist or expressed disagreement with the actions of her sexual partner, cannot be recognized as rape. Moreover, there are cases in which a woman not only pretends that an act of a sexual nature has been committed against her, but deliberately fabricates an allegation of rape for the purpose of obtaining material benefits.

For example, R. met L. at one of the city’s nightclubs and invited her to his home. R. lived in a house in one of the city’s prestigious districts. Having seen the luxurious interior of the house and R.’s good financial situation, L., without any persuasion, threats, or use of force, persuaded R. to engage in sexual intercourse. In the morning, L. called a taxi and, while R. was asleep, went to the police station and reported that she had met R. the previous evening at one of the city’s nightclubs and that he had invited her to his home. She stated that R., while intoxicated, had initially asked her to engage in sexual intercourse, but had subsequently threatened her, used force against her, and raped her as a result. L. also stated that she had resisted and shouted for help, but that nobody had heard her.

On the basis of this incident, criminal proceedings were instituted against R. under paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan. By a judgment of the district court, R. was convicted under paragraph 1 of Article 120 of the Criminal Code, and this conviction was subsequently upheld by the regional court.

However, when examining this criminal case, the Supreme Court of the Republic of Kazakhstan established the following: In her testimony, the victim L. stated that the perpetrator R. had used force against her and that she had actively resisted him, shouted, and called for help. However, the conclusions of the forensic medical and several other examinations revealed no visible injuries on the body of the victim L.; no microscopic particles belonging to the perpetrator R. were found in the scrapings taken from beneath the victim L.’s fingernails; and no visible damage of any kind was found on the victim’s clothing. Similar expert conclusions were issued in respect of the perpetrator R. As for the victim L.’s allegation that she had shouted and called for help, there were statements from neighbors concerning the period during which the rape had allegedly occurred, in which they indicated that they had heard no shouting or calls for help.

In this regard, the Supreme Court of the Republic of Kazakhstan found no elements of the aforementioned crime in R.’s actions and concluded that R. had not committed rape. Accordingly, it overturned the judgments of the lower courts and acquitted R. of the charge in question. Criminal proceedings were instituted against L. in connection with the fact of slander against R. and the provision of knowingly false testimony against him.

The law equates the threat of using force, that is, psychological violence, with the use of force as a method of committing rape.

Paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan provides for psychological violence, that is, threats, as one of the methods of committing rape.

A threat is an advance indication of an intention to cause harm. It may be expressed verbally or through actions. A threat used as a means of suppressing the victim’s resistance involves intimidation by the perpetrator through words, gestures, the display of a weapon, and other means indicating an intention to use violence immediately.

A threat in the commission of rape or other violent acts of a sexual nature must be understood as intimidation through actions or words expressing an actual intention to use physical force against the victims or their loved ones for the purpose of stopping their resistance. Since a threat is one of the means of suppressing resistance during rape or other violent acts of a sexual nature, the actions of the perpetrator specified in the wording of Articles 120 and 121 of the Criminal Code of the Republic of Kazakhstan do not require additional qualification under Article 112 of the Criminal Code.

A threat to kill, cause grievous bodily harm, or use other serious violence against a person, as well as a threat to destroy property by arson, explosion, or another generally dangerous method, made after the commission of rape or other violent acts of a sexual nature, for example, for the purpose of intimidating the victims and preventing disclosure of what happened, must be independently qualified under Article 112 of the Criminal Code of the Republic of Kazakhstan if there are sufficient grounds to fear that the threat will be carried out. The overall conduct must therefore be qualified as a combination of crimes under that provision and the relevant part of Article 120 or 121 of the Criminal Code of the Republic of Kazakhstan.

Sexual intercourse obtained through threats to destroy property or disseminate defamatory information about the victim, that is, through blackmail, is not recognized as rape. Threats to commit the specified acts do not place the woman in a helpless condition, since she has time to take measures for self-protection or seek assistance.

The use of force and the threat of its use may be directed not only against the victim but also against other persons (relatives, loved ones, acquaintances), and must be made before sexual intercourse. If physical or psychological violence is used against the victim or other persons after sexual intercourse has begun, for the purpose of preventing actions directed against the completion of the forced sexual intercourse or preventing the aforementioned persons from filing a complaint with law enforcement authorities, the actions must be qualified as a crime against the administration of justice (Article 354 of the Criminal Code of the Republic of Kazakhstan – bribery or coercion to give knowingly false testimony or to evade giving testimony, to provide a false expert opinion, or to make an incorrect translation), or as a crime against the person, depending on the direction of intent and the actual consequences that have occurred.

According to paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On Certain Issues of the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature,” a helpless condition must be understood as the victim’s (victim’s) inability, due to their physical or mental condition, to resist the perpetrator (young or old age, physical disabilities, disorders of mental functioning, other illness, unconscious condition, etc.). In this regard, the person committing rape or other violent acts of a sexual nature must be aware that the victim (victim) is in such a condition.

Rape through taking advantage of the victim’s helpless condition means that, because of her physical or mental condition, she does not understand the nature of the acts being committed against her or is incapable of resisting the rapist.

Physical helplessness means a condition in which the victim is deprived of the ability to resist the rapist due to physical weakness caused by illness, blood loss, exhaustion, old age, or other circumstances, that is, because of certain physical disabilities.

Mental helplessness is associated with a particular mental state in which the woman does not understand that force is being used against her. Such conditions may include sleep, fainting, severe drug or alcohol intoxication, intellectual disability, young age, illness, or an unconscious state.

Under the law, alcohol intoxication is formally recognized as a helpless condition only where the state of intoxication has deprived the victim of the actual ability to resist the perpetrator. Thus, in accordance with paragraph 5 of the aforementioned Resolution, the victim’s intoxication may be recognized as a helpless condition if the degree of intoxication has deprived her of the ability to resist the perpetrator. In this regard, it is immaterial whether the perpetrator brought the victim into such a condition or whether the victim’s helpless condition arose independently of the perpetrator’s actions.

In practice, in accordance with the aforementioned Resolution and judicial and investigative practice, a state of intoxication may be considered a helpless condition only where, as a result of severe intoxication, the woman is weakened and practically unable to resist the rapist, while at the same time expressing her disagreement with engaging in sexual intercourse. That is, it must be considered whether she remains conscious and understands that unlawful acts are being committed against her, or whether she is unconscious as a result of intoxication.

Recognition of rape through taking advantage of the victim’s helpless condition due to her young age (under 14 years) must be based not only on knowledge of her age, but also on information concerning the victim’s ability to understand the nature and possible consequences of the acts being committed against her and to resist them. Where necessary, a psychological and psychiatric examination must be appointed to examine the victim. Liability for the rape of a minor girl may arise only where the perpetrator knew the victim’s age before committing the crime or assumed that the victim was a young child. A discrepancy between the victim’s physical development and her actual age must be assessed together with other circumstances indicating that the perpetrator knew the victim’s age.

Rape is considered a completed crime from the moment sexual intercourse begins, regardless of whether it has been completed and regardless of the consequences that have occurred. Thus, it is not necessary for the perpetrator to complete sexual intercourse in the physiological sense.

Subjectively, rape is always committed with direct intent. When committing rape, the perpetrator is aware that sexual intercourse is taking place as a result of the use of force or the threat of using it, or through taking advantage of the victim’s helpless condition, and nevertheless desires to engage in sexual intercourse. The principal motive for committing rape is the satisfaction of the sexual needs of the perpetrator or other persons. Additional motives may include hooligan motives, the intention to humiliate or take revenge, and so on. The purpose of committing rape is to satisfy the sexual desire of the perpetrator or another person.

The subject of rape includes persons who have forcibly engaged in sexual intercourse with a woman, as well as persons who have directly assisted them during the rape of the victim. A woman may also be a co-perpetrator of rape. Criminal liability for rape begins at the age of 14.

The aggravated forms of rape include the following.

1. Rape committed by a group of persons.

Rape is recognized as having been committed by a group of persons primarily where two or more perpetrators jointly participate in the commission of the crime without having reached a prior agreement to commit it.

If two or more persons participate in committing rape after having reached a prior agreement to commit this crime jointly, the rape must be recognized as having been committed by a group of persons acting by prior agreement.

If rape is committed by a stable group of persons that has previously united for the purpose of committing one or more crimes, it is recognized as rape committed by an organized group.

Rape must be recognized as having been committed by a group of persons not only in cases where several persons commit sexual violence against one or more victims, but also where the perpetrators act in a coordinated manner, use force or threaten to use force against several persons, and subsequently engage in forced sexual intercourse with each of them or at least one of them.

Where complicity in rape takes place through the distribution of roles, the organizers, instigators, and accomplices of this crime who did not directly use force against the victim but facilitated the commission of forced sexual intercourse with her by other persons are not subject to liability for rape committed by a group of persons under subparagraph “a” of paragraph 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan. Their actions must be qualified under Article 28 and the relevant part of Article 120 of the Criminal Code of the Republic of Kazakhstan.

What has been stated does not apply to rape committed by an organized group. In this case, the matter concerns a stable group of persons who have united in advance to commit one or more acts of rape. In such a case, complicity through the distribution of roles may occur.

Group rape must be understood to include the actions not only of persons who directly engage in forced sexual intercourse, but also of persons who assist them by using physical or psychological force against the victim. In this regard, the actions of persons who do not personally engage in forced sexual intercourse but assist others in committing the crime through the use of force must be qualified as co-perpetration in group rape (paragraph 2 of Article 28 of the Criminal Code of the Republic of Kazakhstan).

The actions of a person who does not directly engage in sexual intercourse with the victim and does not use physical or psychological force against her while committing the aforementioned acts, but merely assists in the commission of the crime by giving advice, providing instructions, or removing obstacles, must be qualified under paragraph 5 of Article 28 of the Criminal Code of the Republic of Kazakhstan and, where there are no aggravating circumstances, under paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan.

A woman may be a co-perpetrator of a group crime, as may a person who has no intention of personally engaging in sexual intercourse but uses force or threats against the victim. In such cases, for the purpose of charging a person with group rape, it is sufficient to perform one of the two elements of the objective side: either the use of force (threats) or sexual intercourse. Therefore, if one of two persons uses physical force and the other uses that force to engage in sexual intercourse, the rape is considered completed. Since two persons have participated in carrying out the objective side of the crime, they must be held criminally liable for rape committed by a group of persons.

In specialized literature, another view has been expressed on this issue, according to which women can participate in rape only as organizers, instigators, and accomplices, since a woman is biologically incapable of engaging in sexual intercourse with the victim. The same opinion is expressed with regard to male impotence.

This view cannot be accepted, because although such persons may be unable to engage in sexual intercourse, they must nevertheless be recognized as co-perpetrators of rape.

According to the explanations of the Supreme Court of the Republic of Kazakhstan, where one of the co-perpetrators of rape is not subject to criminal liability because they have not reached the age at which criminal liability is established or because they are legally insane, the actions of the other participant in the crime are not regarded as having been committed by a group. The actions of the perpetrator who is subject to liability must be qualified under paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan (in the absence of other aggravating circumstances).

In this case, the Supreme Court of the Republic of Kazakhstan treats a group as a form of complicity. In my opinion, in relation to rape, a group should be regarded not as a form of complicity, but as a circumstance indicating the increased public danger of the crime.

In the Russian language, the word “group” has several meanings: 1) several people, objects, or animals located together or close to one another; 2) an aggregate of people connected by a common goal, idea, work, and so on. Considering the concept of a “group” solely as a form of complicity is an excessively narrow interpretation and does not correspond either to the degree of danger posed by rape committed by a group of persons in the circumstances described or to the objectives of combating crime.

2. Rape accompanied by a threat to kill, as well as rape committed with particular cruelty against the victim or other persons.

A threat to kill may be expressed verbally or may follow from the offender’s actions. For example, squeezing the victim’s neck and demanding that she engage in sexual intercourse constitutes a threat to kill; the perpetrator’s display of a weapon, knife, razor, and so on also falls within this category.

A threat to kill constitutes psychological violence that endangers the victim’s life and is used to overcome her resistance. Therefore, the threat must be genuine, real, and immediate. The question of whether the threat was sufficiently significant to restrict the victim’s freedom of action and break her resistance must be decided by the court in each specific case.

If a threat to kill is made after the rape in order to prevent the victim from reporting it, the perpetrator is liable under paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan and, additionally, under Article 112 of the Criminal Code for the threat.

Particular cruelty towards victims must be understood as torture, humiliation, and the infliction of numerous bodily injuries during the process of forced sexual intercourse. Particular cruelty towards other persons may, for example, take the form of raping a mother in front of her children or a wife in front of her husband.

3. Rape resulting in the victim contracting a venereal disease.

This circumstance exists where the perpetrator, knowingly aware that they are ill, nevertheless engages in sexual intercourse with the victim through the use of force, as a result of which the victim contracts a venereal disease.

For qualification under subparagraph “c” of paragraph 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan, it is immaterial which particular type of venereal disease the perpetrator transmitted to the victim.

4. The circumstance specified in subparagraph “d” of paragraph 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan.

Liability must be imposed on persons whose convictions for previously committed rape or violent acts of a sexual nature have not been expunged or removed in accordance with the procedure established by law, as well as on persons for whom the limitation period for bringing criminal charges for previously committed rape or violent acts of a sexual nature had not expired by the time of the commission of the most recent rape or violent act of a sexual nature.

In this regard, for the purpose of recognizing rape as repeated, it is immaterial whether the perpetrator previously committed a completed crime or attempted to commit one, or whether they acted as a perpetrator or another type of accomplice to the crime.

If the perpetrator acted with a single intent when committing several acts of sexual intercourse or violent acts of a sexual nature against the same victim, separated by short intervals of time, the crime must be regarded as a continuing crime. In this case, multiple acts of forced sexual intercourse or violent acts of a sexual nature with one victim do not constitute a repeatedly committed crime.

Where two or more acts of rape or violent acts of a sexual nature are committed for which liability is provided for in different parts of Articles 120 or 121 of the Criminal Code of the Republic of Kazakhstan, in accordance with the requirements of paragraph 5 of Article 11 of the Criminal Code of the Republic of Kazakhstan, these acts must be qualified under the part of the Article providing for the more severe punishment, indicating all qualifying circumstances of the crime established in the case, including those provided for in other parts of Articles 120 or 121 of the Criminal Code of the Republic of Kazakhstan.

For example, where a victim whom the perpetrator knowingly knows to be under fourteen years of age is raped by a group of persons, the act must be qualified under subparagraph “c” of paragraph 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan, indicating the qualifying circumstance of commission by a group of persons provided for in paragraph 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan.

Where an attempt to commit rape or violent acts of a sexual nature occurs in one case and completed rape or a completed violent act of a sexual nature occurs in another, or where the perpetrator acts as the perpetrator in committing one crime and as an organizer, instigator, or accomplice in committing another, the actions of the perpetrator must be qualified as a combination of crimes.

5. Rape of a person knowingly known to be a minor.

Rape of a minor must be understood as sexual intercourse committed through the use of force with a person between the ages of 14 and 18. In this regard, the perpetrator must be aware that they are engaging in forced sexual intercourse with a minor.

Intent in the rape of a minor consists of the perpetrator’s awareness that they are engaging in sexual intercourse through the use of force with a minor and their desire to do so.

The particularly aggravated forms of the crime under consideration (paragraph 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan) include the following:

a) Rape resulting in the death of the victim through negligence.

In order to qualify the act under this circumstance, it is necessary to establish that the victim’s death was directly caused by the forced sexual intercourse committed against her, that is, that there is a causal relationship between the rape and the victim’s death. If there is no causal relationship, this particularly aggravated form of rape is also absent.

Causing the victim’s death through negligence as a result of rape is fully covered by subparagraph “a” of paragraph 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan and does not require additional qualification under Article 101 of the Criminal Code of the Republic of Kazakhstan.

If, during the process of rape, the perpetrator intentionally deprives the victim of her life, the act must be qualified as a combination of crimes provided for in subparagraph “k” of paragraph 2 of Article 96 and paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan.

If the killing is committed after the rape or attempted rape for the purpose of concealing the crime or out of revenge for the resistance offered, the perpetrator’s actions must be qualified as a combination of crimes provided for in subparagraph “k” of paragraph 2 of Article 96 and the relevant parts of Article 120 of the Criminal Code of the Republic of Kazakhstan.

b) Rape resulting through negligence in grievous bodily harm to the victim, the victim contracting HIV/AIDS, or other grave consequences.

In this case, three independent aggravating circumstances are provided for, and the perpetrator’s guilt in relation to these consequences must take the form of negligence.

These three circumstances may be recognized as particularly grave consequences of rape only where the necessary causal relationship between the fact of rape and the infliction of grievous bodily harm has been established.

Grievous bodily harm to the victim may be inflicted during the rape or may arise later as a result of injuries sustained during the commission of this crime.

The concept of “causing harm to human health” itself is formulated on the basis of forensic medical rules and must be understood as bodily injuries, a disruption of the anatomical integrity of organs and tissues or their physiological functions, or illnesses or pathological conditions.

Grievous harm primarily means harm that, at the time it is inflicted, is dangerous to the victim’s life and may result in death.

The victim contracting HIV/AIDS must be understood as cases where, as a result of rape, the victim contracts HIV infection or develops AIDS.

Other grave consequences include, in particular, the suicide of the victim or one of the victim’s relatives.

The infliction of grievous bodily harm (including injuries sustained by victims as a result of a method of protection from the crime that they themselves have chosen, for example, by jumping from a high building, a moving car, or a train), contracting HIV/AIDS, as well as the occurrence of other grave consequences, are respectively covered by paragraph 3 of Articles 120 or 121 of the Criminal Code of the Republic of Kazakhstan and do not require additional qualification.

c) Rape of a victim knowingly known to be under fourteen years of age.

The law classifies persons under the age of 14 as young children, that is, persons who are considered not to have developed sufficiently, either physically or mentally.

The sexual maturity of girls under the age of 14 is not determined by forensic medical experts, since, from a physiological point of view, they are in all cases considered not to have reached sexual maturity.

In order to establish the elements of rape of a victim knowingly known to be under fourteen years of age, it is necessary, from the subjective standpoint, to establish that the perpetrator was aware that they were engaging in sexual intercourse through the use of force with a minor under the age of fourteen.

Where the perpetrator has honestly been mistaken about the victim’s age, based on her appearance or information she provided about herself, this aggravating circumstance may not be attributed to the perpetrator.

N. lived in the same house as the minor M. N. developed an intention to rape her. For this purpose, under the pretext that the house was cold, he had her sleep in his bed at night to keep warm and, knowingly aware that M. was only 8 years old, took advantage of her helpless condition due to her young age and engaged in forced sexual intercourse with her. Thus, N.’s actions were qualified under subparagraph “c” of paragraph 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan.

Where, during rape, the perpetrator has honestly been mistaken about the victim’s actual age and, in view of all the circumstances of the case (based on her appearance, false information she provided about her age, and so on), believed her to be an adult, the perpetrator’s actions must be qualified under paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan, provided that there are no other qualifying circumstances specified in paragraphs 2 and 3 of this Article. Otherwise, this would constitute objective imputation.

Where rape of a minor has occurred, subsequent sexual intercourse with the minor by consent does not exclude the perpetrator’s liability under Article 120 of the Criminal Code of the Republic of Kazakhstan.

In such cases, if the minor victim is under the age of 16, the perpetrator’s actions must be qualified as a combination of crimes provided for in Articles 120 and 122 of the Criminal Code of the Republic of Kazakhstan.

If the rape is connected with involving a minor in the use of narcotic drugs or other intoxicating substances for non-medical purposes, or in the systematic consumption of alcoholic beverages, the perpetrator’s actions in such cases must be qualified under subparagraph “d” of paragraph 2 of Article 120 and Article 132 of the Criminal Code of the Republic of Kazakhstan.

d) Rape committed by taking advantage of conditions of a public disaster or during mass riots.

Taking advantage of conditions of a public disaster and mass riots, on the one hand, facilitates the perpetrator’s implementation of their criminal intent and, on the other hand, strengthens their confidence that they will go unpunished for their unlawful actions.

Public disasters and mass riots do not themselves cause the commission of crimes; rather, they create favorable conditions for committing them.

The crime provided for in paragraph 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan belongs to the category of crimes of medium gravity.

The crime provided for in paragraph 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan belongs to the category of serious crimes.

The crime provided for in paragraph 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan belongs to the category of especially serious crimes.

Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007, by I.Sh. BORCHASHVILI, Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.

Date of amendment of the Act: 02.08.2007

Date of adoption of the Act: 02.08.2007

Place of adoption: NONE

Body that adopted the Act: 180000000000

Registration number assigned by the body issuing regulatory legal acts: 167

Status of the Act: new

Sphere of legal relations: 028000000000

Form of the Act: COMMENTARY

Legal force: 1900

Language of the Act: Russian

Criminal Code, Commentaries to the Criminal Code, Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, Criminal Legislation, Regulatory Legal Acts of the Republic of Kazakhstan.

Align the terminology throughout the commentaryUse neutral, consistent victim terminology

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