Commentary on Article 308. Involvement in Prostitution under the Criminal Code of the Republic of Kazakhstan
1. Involvement in prostitution through the use of violence or the threat of its use, taking advantage of a dependent position, blackmail, destruction of or damage to property, or deception —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with confiscation of property.
2. The same act committed by a group of persons pursuant to a prior conspiracy or repeatedly —
shall be punishable by imprisonment for a period of three to six years, with confiscation of property.
3. The acts provided for in Parts One or Two of this Article, committed by a criminal group —
shall be punishable by imprisonment for a period of five to seven years, with confiscation of property.
The public danger of this crime lies in undermining the moral foundations of society.
Prostitution is an ancient phenomenon that was widespread in Ancient Egypt, Ancient Greece and Ancient Rome. In Greece, as early as the 6th century BC, the law of Solon authorised the establishment of brothels and legalised prostitution, while the brothels themselves were under state supervision. Prostitution reached its greatest prevalence in Ancient Rome. There, it was one of the sources of state revenue.
Criminal liability for prostitution is also established for the purpose of preventing the negative consequences of prostitution in general, as one of the principal sources of the spread of sexually transmitted diseases and HIV. In this respect, this corpus delicti is aimed not only at protecting public morality but also at protecting public health.
Involvement in prostitution is a type of international crime provided for by the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
For the purpose of consolidating international efforts to combat this criminal offence, the Republic of Kazakhstan, by the Law of the Republic of Kazakhstan dated 14 December 2005, ratified the aforementioned Convention and the Final Protocol, concluded in New York on 21 March 1950.
In accordance with the Law of the Republic of Kazakhstan dated 29 June 1998, the Republic of Kazakhstan acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979.
The object of the crime is public morality. The additional objects are the health, honour and dignity of the victim.
Victims may be persons of either female or male sex who have reached the age of 18, since liability for involving a minor in prostitution is provided for under Article 134 of the Criminal Code.
Taking into account the need to protect women's rights, the international community adopted the Declaration on the Elimination of Violence against Women by UN General Assembly Resolution 48/104 of 20 December 1993.
The objective element of the crime under consideration consists of involving a person in prostitution through the use of violence or the threat of its use, taking advantage of a dependent position, blackmail, destruction of or damage to property, or deception.
Prostitution is repeated sexual intercourse with different persons in exchange for remuneration. Prostitution itself, although it is an occupation that is considered immoral and condemned by everyone, is not criminally punishable. Prostitution presupposes not isolated sexual contacts but repeated contacts with different partners, referred to in the law by the term “engagement”.
Involvement in prostitution should be understood as any actions capable of arousing in the person being involved a desire to engage in prostitution.
An essential condition for criminal liability under the Article in question is that the involvement in prostitution must have been carried out through the use of violence or the threat of its use, taking advantage of a dependent position, blackmail, the threat of destruction of or damage to property, or deception.
If a woman voluntarily agrees to engage in prostitution, the actions of the person who made such an offer to her do not contain the elements provided for in the disposition of Article 308 of the Criminal Code of the Republic of Kazakhstan.
Violence constitutes physical influence exerted on the victim in the form of beatings, restriction of liberty, infliction of physical pain, and causing minor or moderate harm to the victim's health. Causing grievous bodily harm in the course of involving a person in prostitution is not covered by Article 308 of the Criminal Code and requires additional qualification under Article 106 of the Criminal Code.
A threat to use violence is a form of psychological violence in which the perpetrator threatens to use physical violence against the victim. A threat to cause harm to health of varying degrees, up to and including grievous bodily harm, may be expressed verbally, in writing, through actions, intimidation, or the demonstration of certain objects. For the corpus delicti to be established, it is necessary to determine that the threat was genuine and real.
Involvement in prostitution through the use of a dependent position means involving a person who is in a material, official or other form of dependence on the perpetrator. For example, a creditor involving a debtor, a supervisor involving a subordinate, a teacher involving a school student, and so forth.
Blackmail is a threat to disclose or disseminate information that discredits a person (for example, information about marital infidelity, unlawful acts, etc.). This method of involving a person in prostitution does not constitute violence.
Destruction of or damage to property means rendering the victim's belongings and items completely or partially unusable (for example, money, jewellery, furniture, a car, etc.). If significant damage is caused through the destruction of or damage to property in the course of involving a person in prostitution, such actions do not require additional qualification.
At the same time, the commission of the specified actions resulting in large-scale or particularly large-scale damage to the victim's property requires additional qualification under Parts 2 or 3 of Article 202 of the Criminal Code.
Deception as a method of involving a person in prostitution entails misleading the victim regarding the purpose of entering into sexual relations. In this case, the perpetrator conceals the fact that payment is being made for the victim's services.
The crime is deemed completed from the moment the perpetrator commits the specified actions, regardless of whether the victim was successfully persuaded to engage in prostitution.
Subjectively, the crime is committed with direct intent: the perpetrator is aware that, through the use of violence or the threat of its use, taking advantage of a dependent position, blackmail, destruction of or damage to property, or deception, they are involving another person in prostitution, and they desire to do so.
The subject of the crime may be a sane natural person who has reached the age of 16.
The qualified corpus delicti of the crime (Part 2 of Article 308 of the Criminal Code) establishes criminal liability for involvement in prostitution committed by a group of persons pursuant to a prior conspiracy or repeatedly.
Part 3 of Article 308 of the Criminal Code provides for a particularly qualifying circumstance — involvement in prostitution committed by a criminal group. The characteristics of the elements specified in Parts 2 and 3 of Article 308 of the Criminal Code are set out in the commentary to Parts 3 and 4 of Article 297 of the Criminal Code.
In law enforcement practice, difficulties may arise in distinguishing crimes provided for in Article 308 from the crimes under Articles 128 and 135 of the Criminal Code, which establish liability for trafficking in persons and trafficking in minors. These difficulties are associated with the fact that the objective elements of these crimes partially overlap. In accordance with Articles 128 and 135 of the Criminal Code, trafficking in persons and minors means the purchase and sale of a person or a minor, or their recruitment, transportation, transfer, harbouring or receipt for the purpose of exploitation. According to the second paragraph of subparagraph 1) of Article 3 of the Criminal Code, exploitation means the use by the perpetrator of another person's engagement in prostitution or other services provided by that person for the purpose of appropriating the income received, as well as compelling a person to provide services of a sexual nature without the perpetrator pursuing this purpose. As noted above, the objective elements of the crime provided for in Article 308 of the Criminal Code consist of involving a person in prostitution through the use of violence or the threat of its use, taking advantage of a dependent position, blackmail, destruction of or damage to property, or deception.
It is obvious that, for example, recruiting a person for the purpose of using that person in prostitution may simultaneously be regarded as an integral part of the criminal-law prohibitions provided for in Articles 128, 135 and 308 of the Criminal Code. This constitutes a conflict of criminal-law provisions. However, it should be noted that the rule for resolving this conflict provided for in Part 3 of Article 13 of the Criminal Code does not fully apply (this issue requires further research), since Articles 128, 135 and 308 of the Criminal Code do not clarify or specify the prohibitions formulated therein. Consequently, their conflict cannot, in this respect, be regarded as a conflict between general and special provisions.
The distinction between these crimes is considered to lie in the object of the crime. Trafficking in persons (Article 128 of the Criminal Code) and trafficking in minors (Article 135 of the Criminal Code) have individual liberty as their object. The object of Article 308 of the Criminal Code is public morality and public health. Accordingly, even the recruitment of a person for the purpose of their sexual exploitation constitutes the crime of trafficking in persons if such an act is accompanied by an infringement of the liberty of the person concerned, for example, if they are deprived of their liberty (locked in premises, deprived of their documents, etc.). In this case, Articles 128 and 135 of the Criminal Code may be regarded as specific provisions in relation to Article 126 of the Criminal Code, “Unlawful Deprivation of Liberty”, and the act must be classified under Article 128 or Article 135 of the Criminal Code.
If the recruitment of a person for prostitution is not associated with deprivation of that person's liberty, the act should be classified under Article 308 of the Criminal Code as involvement in prostitution.
The act provided for in Part 1 of Article 308 of the Criminal Code is classified as a crime of medium gravity.
The acts provided for in Parts 2 and 3 of Article 308 of the Criminal Code are classified as serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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