Commentary on Article 121. Violent Acts of a Sexual Nature of the Criminal Code of the Republic of Kazakhstan
1. Sexual intercourse between men, lesbian acts, or other acts of a sexual nature committed through the use of violence or the threat of its use against the victim or other persons, or through taking advantage of the helpless condition of the victim —
shall be punishable by deprivation of liberty for a term of five to eight years.
2. The same acts:
1) committed by a group of persons or by a group of persons acting in prior conspiracy;
2) accompanied by a threat of murder, or committed with particular cruelty towards the victim or other persons;
3) resulting in the victim becoming infected with a venereal disease;
4) committed repeatedly;
5) committed by a person while performing official duties, —
shall be punishable by deprivation of liberty for a term of nine to twelve years.
3. Acts provided for in Parts One or Two of this Article, if they:
1) excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019;
2) through negligence resulted in the infliction of grievous bodily harm upon the victim, infection of the victim with HIV, or other grave consequences;
3) excluded by Law of the Republic of Kazakhstan No. 240-VI dated 1 April 2019;
4) were committed during a state of emergency or in the course of mass riots;
5) excluded by Law of the Republic of Kazakhstan No. 240-VI dated 1 April 2019;
6) excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020, —
shall be punishable by deprivation of liberty for a term of twelve to fifteen years, with deprivation of the right to hold certain positions or engage in certain activities for a period of ten years, or without such deprivation.
3-1. Acts provided for in Parts One, Two or Three of this Article, if they:
1) were committed against a minor;
2) excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020;
3) were committed by a criminal group, —
shall be punishable by deprivation of liberty for a term of fifteen to seventeen years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
3-2. Acts provided for in Parts One, Two, Three or 3-1 of this Article, if they:
1) were committed against two or more minors;
2) excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020;
3) were committed against a minor by their parent, stepfather, teacher, or another person upon whom the laws of the Republic of Kazakhstan impose duties relating to the minor's upbringing, —
shall be punishable by deprivation of liberty for a term of seventeen to twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or by life imprisonment.
4. Acts provided for in Parts One, Two and Three, Paragraph 3) of Part 3-1, and Part 3-2 of this Article, if committed against a young child or if they negligently resulted in the death of the victim, —
shall be punishable by deprivation of liberty for a term of twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or by life imprisonment.
The public danger of this crime lies in the fact that the satisfaction of sexual desire is achieved through violence, the threat of its use, or by taking advantage of the helpless condition of the victim. The law does not provide for criminal liability for consensual sexual intercourse between men, lesbian acts, or other acts of a sexual nature between consenting adult persons of either sex.
The object of the crime under consideration is the sexual freedom and sexual inviolability of a man in cases of sexual intercourse between men; of a woman in cases of lesbian acts; and of a woman or a man in cases of other sexual acts.
Pursuant to Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, “On Certain Issues Concerning the Qualification of Crimes Related to Rape or Other Violent Acts of a Sexual Nature,” acts committed for the purpose of satisfying sexual desire and carried out under the same circumstances in an unnatural form with persons of either the female or male sex (lesbian acts, sexual intercourse between men, etc.) should be regarded as other violent acts of a sexual nature.
For the qualification of other violent acts of a sexual nature, the moral character, social status, conduct of the victim, and the previous relationship between the perpetrator and the victim are irrelevant.
The objective element of the crime consists of sexual intercourse between men, lesbian acts, or other acts of a sexual nature committed through the use of violence or the threat of its use against the victim or other persons, or through taking advantage of the helpless condition of the victim.
Homosexuality is the satisfaction of sexual desire by a man with a man, as well as by a woman with a woman. Accordingly, there is male homosexuality (sexual intercourse between men) and female homosexuality (lesbianism).
Sexual intercourse between men is sexual intercourse between two men in which the penis of the active partner is inserted into the anal opening (rectum) of the passive partner. Other homosexual acts between men do not constitute sexual intercourse between men in this sense. In cases of forcible sexual intercourse between men, only a man may be the victim. Sexual intercourse between men is also referred to as pederasty.
Lesbianism is female homosexuality, in which sexual desire is satisfied between women through the performance of various acts of a sexual nature. Lesbianism (sapphism, tribadism, corophilia) consists of the satisfaction of sexual desire through interaction between women, involving stimulation of the partner's erogenous zones, simulation of sexual intercourse, and other lascivious acts (oral-genital contacts, satisfaction of sexual needs using various devices — artificial phalluses, vibrators, masturbation, petting, orrotage, etc.). In cases of forcible lesbian acts, only a woman may be the victim.
Other acts of a sexual nature, apart from sexual intercourse between men and lesbian acts, include all other violent acts between a man and a woman or between men. Such acts include the forcible satisfaction of sexual desire through oral or anal means in perverted forms, which more frequently occurs between a man and a woman.
Violence should be understood as the commission of acts aimed at overcoming the victim's resistance, for example, striking blows, constricting the respiratory tract, restraining the victim's arms and legs, etc.
If bodily injury of moderate severity or grievous bodily harm is inflicted upon the victim after the commission of other violent acts of a sexual nature, there is an aggregate of crimes.
Intentional infliction of grievous bodily harm upon victims during the commission of violent acts of a sexual nature should be qualified under Paragraph 2) of Part 3 of Article 121 of the Criminal Code as the commission of other acts of a sexual nature resulting in other grave consequences.
A threat in cases of violent acts of a sexual nature should be understood as intimidating victims for the purpose of suppressing their resistance through acts and statements expressing the perpetrator's genuine intention to use physical violence against the victims themselves or other persons. Since a threat constitutes one of the methods of suppressing resistance during the commission of other acts of a sexual nature specified in the disposition of Article 121 of the Criminal Code, additional qualification of the perpetrator's actions under Article 115 of the Criminal Code is not required.
A threat of murder, infliction of grievous bodily harm, or other serious violence against a person, as well as destruction of property by arson, explosion, or another generally dangerous method, expressed after the commission of violent acts of a sexual nature for the purpose, for example, of intimidating the victims and preventing disclosure of what occurred, where there are sufficient grounds to fear that the threat will be carried out, is subject to independent qualification under Article 115 of the Criminal Code. The act as a whole shall be qualified under the aggregate of the said provision and the relevant Part of Article 121 of the Criminal Code.
A helpless condition should be understood as the victim's inability, due to their physical or mental condition, to resist the perpetrator (minor age, physical disabilities, another illness-related condition), where the person committing violent acts of a sexual nature is aware that the victim is in such a condition.
It should be noted that during the period when the Criminal Code of the Kazakh SSR of 1959 was in force, violent acts of a sexual nature were recognized as rape in a perverted form, since there was no special provision (corresponding to Article 121 of the Criminal Code) establishing liability for such acts.
Necrophilia (sexual intercourse with a corpse) does not fall within the category of sexual crimes and is subject to qualification under Article 314 of the Criminal Code (desecration of the bodies of deceased persons and their burial places).
The actions of a person who, through harassment, deception, or another similar method, attempted to persuade victims to engage in other acts of a sexual nature without the use of violence, the threat of its use, or taking advantage of their helpless condition cannot be qualified as an attempt to commit violent acts of a sexual nature.
By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment the sexual acts begin.
From the subjective standpoint, the crime presupposes guilt exclusively in the form of direct intent. The perpetrator is aware that they are engaging in sexual intercourse between men (lesbian acts) or other acts of a sexual nature through the use of violence, the threat of its use, or by taking advantage of the helpless condition of the victim, and desires to commit these acts.
The primary motive for violent acts of a sexual nature is the satisfaction of sexual desire, although other motives are also possible: revenge, humiliation of the victim's human dignity, the pursuit of new sensations, etc.
The subject of this crime may be a person who has reached the age of fourteen. In cases of sexual intercourse between men, the subject may only be a man; in cases of lesbian acts, only a woman; and in cases of other acts of a sexual nature, the subjects may be either a man or a woman.
Persons of the other sex who participate in violent acts of a sexual nature (women in cases of sexual intercourse between men, and men in cases of lesbian acts) shall bear liability as accomplices: organizers, instigators, or accessories.
The qualifying elements of violent acts of a sexual nature are provided for in Parts 2, 3, 3-1, 3-2 and 4 of Article 121 of the Criminal Code. These elements are examined in the analysis of the corpus delicti provided for in Article 120 of the Criminal Code.
It should be borne in mind that, with regard to the qualifying element of repeated violent acts of a sexual nature (Paragraph 4) of Part 2 of the Article under consideration), criminal liability applies to a person who has committed two or more acts provided for in Article 121 of the Criminal Code, none of which has resulted in a conviction or exemption from criminal liability on grounds established by law.
“The commission by a person of rape and violent acts of a sexual nature,” as stated in the second paragraph of Paragraph 10-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues Concerning the Qualification of Crimes Related to Rape or Other Violent Acts of a Sexual Nature,” “does not constitute repetition of criminal offenses, but rather constitutes an aggregate of crimes, each of which is subject to independent qualification under the relevant Parts of Articles 120 and 121 of the Criminal Code.”
Acts provided for in Parts 1 and 2 of Article 121 of the Criminal Code are classified as serious crimes.
Acts provided for in Parts 3, 3-1, 3-2 and 4 of Article 121 of the Criminal Code are classified as especially serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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