On some issues of qualification of crimes related to rape and other violent acts of a sexual nature
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 4.
The footnote. The title has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The footnote. The entire text has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to develop unified approaches to the investigation and consideration of criminal cases related to rape and other violent acts of a sexual nature, the plenary session of the Supreme Court of the Republic of Kazakhstan
The footnote. The preamble has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
p o s t a n o v l I e t:
Rape should be understood as sexual intercourse in a natural form with a female person against or against his will, committed with the use of violence or with the threat of violence against the victim or other persons, or using the victim's helpless state.
Acts committed for the purpose of satisfying sexual passion and committed under the same circumstances in an unnatural form with persons of the female or male sex (lesbianism, sodomy, etc.) should be considered other violent acts of a sexual nature.
For the qualification of rape and other violent acts of a sexual nature, the moral character, social status, behavior of the victim (victim), and the previous relationship between the perpetrator and the victim (victim) do not matter.
Violence should be understood as committing such actions that are aimed at overcoming the victim's (victim's) resistance, for example, striking, squeezing the respiratory tract, holding hands, feet, tearing off clothes, etc.
Intentional infliction of minor or moderate harm to the health of victims during rape, other violent acts of a sexual nature, or an attempt to commit them is covered by the disposition of articles 120 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) or 121 of the Criminal Code and does not require additional qualifications. If the victim(s) suffered moderate or serious harm to health after being raped or committing other violent acts of a sexual nature, then there is a combination of crimes.
Intentional infliction of serious harm to the health of victims during rape or other violent acts of a sexual nature should be qualified, respectively, under paragraph 2) of part three of Article 120 of the Criminal Code as rape, which entailed other grave consequences, or paragraph 2) of part three of Article 121 of the Criminal Code as committing other violent acts, which entailed other grave consequences.
The severity of the damage caused to health is established on the basis of an expert opinion.
Unlawful infliction of death to the victim(s) in the process of rape or other violent acts of a sexual nature or attempted commission of these crimes, as well as after their completion, committed with the aim of concealing the deed, or motivated by revenge for resistance, should be qualified under paragraph 10) of the second part of Article 99 of the Criminal Code and the relevant parts of Articles 120 of the Criminal Code or Criminal Code 121.
When qualifying these actions of the perpetrators, the body conducting the criminal process must indicate all the established qualifying criteria provided for in paragraph 10), as well as other paragraphs of the second part of Article 99 of the Criminal Code, the relevant parts of articles 120 of the Criminal Code or 121 of the Criminal Code.
The footnote. Paragraph 3, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The threat of rape or other violent acts of a sexual nature should be understood as intimidation of victims in order to stop their resistance by such actions or statements that express the real intention of the perpetrator to use physical violence against the victims themselves or their loved ones. Since threatening is one of the ways to suppress resistance during rape and other violent acts of a sexual nature specified in the dispositions of Articles 120 of the Criminal Code and 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, causing serious harm to health, as well as other serious violence against a person or destruction of property by arson, explosion or other generally dangerous method, expressed after committing rape or other violent acts of a sexual nature with the aim, for example, of intimidating victims and suppressing publicity of what happened, if there are sufficient grounds to fear that this threat will be carried out, is subject to qualifications independently under Article 115 of the Criminal Code, but in general, the act - according to the totality of this norm and the relevant part of Article 120 of the Criminal Code or 121 of the Criminal Code.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of official publication); the amendment was made in Kazakh, the text in Russian is not changed by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 11, 2020 No. 6 (effective from the date of the first official publication).
A helpless state should be understood as the victim's (victim's) lack of ability, due to her physical or mental condition, to resist the perpetrator (juvenile, elderly, physical disabilities, mental disorder, other painful or unconscious state, etc.), who, while committing rape or other violent acts of a sexual nature, is aware that the victim (the victim) is in this condition. In accordance with article 23 of the Civil Code of the Republic of Kazakhstan, minor victims should be recognized as children who had not reached the age of fourteen at the time of the commission of the crime.
Responsibility for the rape of a minor or a minor, or for the commission of other violent acts of a sexual nature against persons of the same age, occurs only in cases where the perpetrator was aware of the age of the victims before committing the crime. The discrepancy between the physical development of the victims' appearance and their actual age must be assessed in conjunction with other data indicating that the perpetrator is aware of the true age of the victims.
The presence of victims in a state of intoxication may be recognized as their helpless state if the degree of intoxication was such that it made it impossible to resist the perpetrator. At the same time, it does not matter whether the perpetrator brought the victims into such a state or whether the onset of their helpless state did not depend on his will.
If there is evidence of the use of drugs, drugs, potent or poisonous substances by the perpetrators to bring the victims into a helpless state, it is necessary to take measures to clarify the properties of the drugs used and the nature of their effects on the human body by appointing an expert examination, questioning specialists, etc.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Attempted rape or other violent acts of a sexual nature are acts committed with direct intent aimed at forced sexual intercourse with the victim, the commission of other violent acts of a sexual nature, but did not lead to the desired result due to circumstances beyond the control of the perpetrator.
Rape is considered over from the moment of the beginning of sexual intercourse in the physiological sense.
Other violent acts of a sexual nature are considered to be over from the moment the commission of sexual acts begins.
When distinguishing attempted rape or other violent acts of a sexual nature from other crimes, it should be established whether the perpetrator acted in order to commit sexual intercourse or other acts of a sexual nature against the will of the victims and whether the use of violence was a means to achieve this goal. In the absence of these circumstances, a person cannot be held responsible for attempted rape or other violent acts of a sexual nature.
The actions of a person who, through harassment, deception or other similar means, induced victims to engage in sexual intercourse or other sexual acts without the use of violence or threat of violence, or using the victim's helpless state, cannot be qualified as an attempt to commit crimes provided for in Articles 120 or 121 of the Criminal Code.
The footnote. Paragraph 6 has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In the event that a person, having the opportunity to complete the crime provided for in Article 120 of the Criminal Code or 121 of the Criminal Code, voluntarily stops his actions at the stage of attempted rape or other violent acts of a sexual nature, there is a voluntary renunciation of the crime.
Socially dangerous acts (beatings, injury to health, tearing off clothes, damaging them, and other similar actions) committed before voluntarily renouncing rape or committing violent acts of a sexual nature are qualified depending on the consequences and other circumstances under articles of the Criminal Code providing for liability for intentional injury, intentional damage, or destruction. property , etc .
A person who does not possess the physiological ability to perform sexual intercourse and is knowingly aware of it, cannot be held responsible under article 120 of the Criminal Code for committing acts that superficially resemble attempted rape. His actions, depending on the specific circumstances, may be qualified under articles of the Criminal Code, which provide for liability for committing other violent acts of a sexual nature, hooliganism, insult, etc.
Rape and other violent acts of a sexual nature can be recognized as committed by a group of persons when there were joint actions of two or more persons who participated in the crime without signs of prior collusion.
Rape and other violent acts of a sexual nature are recognized as committed by a group of persons by prior agreement if the crime involved persons who had previously agreed to commit it.
When the above actions are committed by a stable group of persons who have previously united to commit one or more crimes provided for in Articles 120 of the Criminal Code or 121 of the Criminal Code, such actions are qualified as committed by a criminal group.
A person who has not personally committed a violent sexual act or other violent acts of a sexual nature, but who has assisted others in committing these acts by using violence against victims, is a co-perpetrator. An accomplice who has not personally committed or attempted to commit rape or other violent acts of a sexual nature, but who has organized the commission of such a crime or persuaded others to commit it, or assisted them in doing so with advice, instructions, provision of conditions or removal of obstacles, is, respectively, the organizer, instigator or accomplice of an action that qualifies with the application of article 28. UK.
Rape and other violent acts of a sexual nature should be recognized as committed by a group of persons both in cases where these acts are committed by several persons against one person, and when, as a result of the coordinated actions of the perpetrators who used violence or threatened to use it, each of them committed, had the opportunity to commit sexual intercourse or other acts of a sexual nature. in relation to one (one) or several victims.
In the event that one of the co-perpetrators of rape or other violent acts of a sexual nature cannot be brought to justice due to insanity or due to not reaching the age from which criminal responsibility has been established, the actions of the other participant in this crime cannot be considered as committed in a group of persons.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
Special cruelty should be understood as bullying and mocking victims, torturing them in the process of rape or other violent acts of a sexual nature, as well as intentionally inflicting bodily harm on them in order to cause pain, torment and suffering. According to this qualifying feature, perpetrators who wish to inflict torment and suffering on victims or deliberately allow victims or other persons to experience physical or moral suffering and shocks are liable. For example, the rape of a mother in front of her children, sexual violence against a woman in the presence of her spouse, etc., may be considered to have been committed with particular cruelty against other persons.
The footnote. Paragraph 1 has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
According to the qualifying criterion – rape committed repeatedly – a person who has committed two or more acts provided for in Article 120 of the Criminal Code, for none of which he has not been convicted or released from criminal liability on the grounds established by law, is liable. At the same time, rape is recognized as having been committed repeatedly if there has previously been both completed rape and an attempt on it, co-execution or complicity in this crime in another form.
Several sexual acts committed at short intervals against the same person do not constitute a sign of repetition, and the crime should be considered as ongoing if the perpetrator acted with a single intention.
If two or more rapes are committed, the responsibility for which is provided for in the first and second parts of Article 120 of the Criminal Code, these acts, in accordance with the requirements of the fourth part of Article 12 of the Criminal Code, should be qualified under paragraph 4), and if there are grounds – and other relevant paragraphs of the second part of Article 120 of the Criminal Code.
When committing rape and attempted rape, the actions of the perpetrator are subject to qualification, taking into account the explanations of paragraph 19 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of repeated and cumulative criminal offenses.
The footnote. Paragraph 10 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
10-1. According to the qualifying criterion – violent acts of a sexual nature committed repeatedly – a person who has committed two or more acts provided for in Article 121 of the Criminal Code, for none of which he has not been convicted or has not been released from criminal liability on the grounds established by law, is liable.
The commission of rape and violent acts of a sexual nature by a person does not constitute a repetition of criminal offenses, but forms a set of criminal offenses, each of which is subject to independent qualification in accordance with the relevant parts of articles 120 and 121 of the Criminal Code.
The footnote. The resolution was supplemented by paragraph 10-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); the amendment was made in Kazakh, the text in Russian is not It is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
Negligent infliction of death or serious harm to the victims' health (including as a result of the victim's chosen method of protection from a crime, for example, by jumping out of a high-rise building, a moving car, or a train), and infection with HIV/AIDS, as well as the onset of other serious consequences, are covered by part three of Article 120 or 121 of the Criminal Code, respectively, and do not require additional qualifications.
Other grave consequences provided for in part three of Article 120 of the Criminal Code and part three of Article 121 of the Criminal Code should be understood as the onset or termination of pregnancy, suicide of the victim(s), mental illness resulting from a crime, etc.
The perpetrator, who knew that he had a sexually transmitted disease or HIV at the time of the rape or other violent acts of a sexual nature./AIDS is subject to liability not only under Articles 120 of the Criminal Code or 121 of the Criminal Code, but also, if there are appropriate consequences, for contracting these diseases, as well as for knowingly putting another person at risk of HIV infection./AIDS.
13-1. In accordance with paragraph 66) of Article 1 of the Law of the Republic of Kazakhstan dated April 11, 2014 No. 188-V "On Civil Protection", the conditions of an emergency situation should be understood as the situation in a certain territory resulting from an accident, fire, harmful effects of hazardous production factors, a dangerous natural phenomenon, disaster, natural disaster or other disaster, which may or have caused human casualties, harm to human health or the environment, significant material damage and disruption of human living conditions. Mass riots should be understood as the actions provided for in the first part of Article 272 of the Criminal Code.
The footnote. The regulatory resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
If the body conducting the criminal process comes to the conclusion that it is necessary to reclassify the act to part one of Article 120 of the Criminal Code or part one of Article 121 of the Criminal Code, it can make such a decision only if there is a written statement by the victims on bringing the perpetrator to justice or on the basis of their oral statement at a court hearing.
14-1. Criminal liability for sexual intercourse or other acts of a sexual nature with a person under the age of sixteen, as well as for committing indecent acts against minors (Articles 122 and 124 of the Criminal Code) occurs in cases where sexual intercourse, sodomy, lesbianism or indecent acts were committed without the use of violence or threat of its use, or without exploiting the victim's helpless state.
The footnote. The regulatory resolution was supplemented by paragraph 14-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
14-2. Unlike rape (Article 120 of the Criminal Code) and violent acts of a sexual nature (Article 121 of the Criminal Code), when forced to have sexual intercourse, sodomy, lesbianism or other acts of a sexual nature (Article 123 of the Criminal Code), methods of influencing the victim in order to obtain forced consent from him to commit these acts are blackmail, threat of destruction, damage or seizure of property , or the use of material or other dependence of the injured person.
Coercion to acts of a sexual nature is considered to be over from the moment the relevant requirement is expressed in any form, regardless of the consent or refusal of the injured person to commit such acts or their actual implementation.
The actions of a person who has obtained the victim's consent to engage in sexual intercourse or commit sexual acts through deception or abuse of trust (for example, a deliberately false promise to marry, etc.) cannot be considered as coercion to sexual acts.
The footnote. The regulatory resolution was supplemented by paragraph 14-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication)
To invalidate the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 23, 1993 "On the practice of courts applying legislation regulating responsibility for rape" (as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 12 dated December 25, 2006).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
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