Crimes against sexual integrity and sexual freedom of the individual have existed at all times. They are well studied by legal science and criminology. This category of crimes includes: Art. 131 of the Criminal Code of the Russian Federation - rape, Art. 132 of the Criminal Code of the Russian Federation - violent acts of a sexual nature, Art. 133 of the Criminal Code of the Russian Federation - coercion to acts of a sexual nature, Art. 134 of the Criminal Code of the Russian Federation - sexual intercourse with a minor and Art. 135 of the Criminal Code of the Russian Federation - indecent acts. These crimes are condemned in society and are seriously punished by law. People are ready to tear the accused to pieces, law enforcement officers and judges are determined to harshly punish criminals, and many criminal lawyers do not take on such cases. Being suspected of such a crime, a person risks facing a biased investigation and being left without the services of a lawyer and qualified legal assistance. What to do with suspects of sexual crimes: protect, punish or deal with?
What does judicial practice show under the article?
Alas, in practice this article appears very often. Seducers are persons engaged in professional activities, step-parents, close relatives, friends, neighbors.
Examples of cases:
- Citizen Sh. was married to a woman with a child. The girl was 12 years old, she developed as a girl early. Sh. was sexually attracted to her, which he regularly showed by exposing his penis in front of her and showing pornography. The girl complained to her mother, but she did not react, then she turned to her grandmother for help, and she filed a statement with the police. It turned out that Sh. was indeed guilty. He was sentenced to 8 years in prison and banned from working at school for 10 years.
- Citizen P. was involved with social networks at work. He found teenagers there, corresponded with them, sending first innocent pictures, and then pornographic images. He once sent a 15-year-old girl an image of his genitals. The girl's mother saw this and contacted the police. P. was quickly found. The court took into account that his actions were minor in severity, and besides, he repented of what he had done. As a result, he received 350 hours of compulsory labor and a fine.
- Citizen F. worked as a coach in a youth basketball team. After training, she repeatedly communicated with some boys on sexual topics and showed them explicit images. She chatted with one of them and sent images of her genitals. The boy turned to the police for help because he was afraid of further developments. The court found F. guilty, sentenced her to 4 years in prison and correctional labor, and deprived her of her position.
What decisions are made under Article 135?
The article makes guilty decisions more often than acquittals, since in most cases the adult, and not the child, is found guilty. In 2021, almost 400 cases were processed under it, of which the majority (171) were under the first part, and the smaller part (6) were under the fifth part. 1 person was acquitted, almost 250 went to prison, 18 were given suspended sentences, 509 received restrictions of liberty, 1 received a fine, 77 received compulsory labor. 24 people were declared insane.
What are aggravating and mitigating circumstances?
Aggravating circumstances are indicated in the text of the article: committing a recidivism, in relation to 2 or more persons, committed by conspiracy, in relation to persons 12-14 years old. At the same time, the punishment for the act increases. If the culprit admits to his crime, repents, and compensates for the damage, then this may, although slightly, soften the measure of responsibility chosen by the court.
Outcome of the case
Based on the results of the investigation, the investigation decided not to initiate a criminal case. The guy was brought to administrative responsibility for petty hooliganism, and the parents finally calmed down. For them, their son's suspicion of a crime was a serious shock. The parents of the schoolgirls also calmed down, making sure that the guy did not harass their children. In this situation, the peculiarity of sexual crimes was especially clearly manifested: adults, acting with the best intentions, under the influence of imagination and fear, formed a distorted picture of the incident. Their initial testimony gave the investigators grounds to open a criminal case, detain the guy and take him into custody, and only then figure out what happened. Fortunately, the defense acted quickly and managed to convince investigators that the circumstances required additional verification. The investigators showed high professionalism and did not give in to emotions. Thanks to the professional interaction between the defense and the prosecution, the truth triumphed. Unfortunately, this is not always the case. Often the prosecution and eyewitnesses stigmatize the suspect in advance and act under the influence of emotions and are sincerely mistaken about what is happening, which can break the fate of a decent person. In such situations, the answer to the question is what to do with sexual crime suspects: protect, punish or deal with? - there can only be one... Figure it out! Just figure it out!
Attention! This example does not reflect the entire practice of considering cases of this category and does not guarantee a positive outcome of the case in such situations. Each situation is unique and requires an individual approach and personal interaction between the client and the lawyer. This material is the intellectual property of the author. Any use of the material is possible only with reference to the source of information and its author.
Verdict 135 of the Criminal Code of the Russian Federation
In the first part, the sanction for committing the crime in question is of an alternative and partially cumulative nature. The norm, therefore, provides for punishment in the form of:
- Mandatory work up to 440 hours.
- Restrictions on freedom up to 3 years.
- Forced labor for up to 5 years.
- Imprisonment up to 3 years.
In the last two cases, the court may additionally prohibit the offender from carrying out certain activities or holding any positions for 3 (in the third case) or 10 (in the last) years. According to Part 2 of the article in question, imprisonment for 3-8 years is imposed with or without a ban on carrying out certain activities or holding certain positions for up to 15 years, as well as with or without restriction of freedom for up to 2 years.
Based on the qualifying criteria, this crime is assessed as an act of moderate gravity. Part three provides for imprisonment for 5-12 years with or without a ban on certain types of activities or holding a number of positions for up to 20 years. By its characteristics, this composition refers to serious crimes. Part 5 establishes 10-15 years of imprisonment with a ban on holding specific positions or carrying out certain types of activities for up to 20 years. This crime is characterized as particularly grave.
What is considered lewd acts
The concept of indecent acts is disclosed in Resolution of the Plenum No. 16 “On the application of legislation by courts when considering cases related to establishing the origin of children.” Paragraph 17 states that all actions, except sexual intercourse, sodomy, lesbianism, directed against children 12-16 years old, in order to satisfy their sexual desire, as well as aimed at arousing interest in sexual contact, are considered depraved actions.
Such actions occur without sexual violence. To be more specific, the following actions can be classified as depraved actions:
- sexual intercourse performed in front of a teenager;
- demonstration of genitals;
- showing sexual poses to a child;
- tangential movements of the genitals of parts of the teenager’s body;
- showing photos and videos of sexual scenes;
- Conducting conversations on sexual topics that may arouse interest in sexual intercourse.
Criminal acts subject to criminal punishment are acts of a depraved nature directed against a teenager 12-16 years old.
The criterion by which such actions are qualified is actions directed against 2 or more teenagers. If the result of the crime committed is sexual intercourse and this is confirmed by an examination, then it is considered as rape. Responsibility for this is provided for in Art. 134 of the Criminal Code of the Russian Federation.
Comments
Depraved acts directed at 2 or more persons can be committed simultaneously or at intervals. In this case, such behavior does not act as a set of crimes. Such acts are qualified under Part 3 of the article in question, and, if there are grounds, also under Parts 4-5, if the perpetrator has not previously been convicted of any such act. Committing a completed crime under Art. 135 in relation to one injured person and an attempt to violate the sexual integrity of another citizen cannot be regarded as a completed unlawful act. The sequence of actions in such cases is not taken into account. The crimes themselves are qualified under parts 1-2, 4-5 of the article in question, as well as under part 3 of Art. 30 and part 3 of Art. 135 of the Criminal Code.
Arbitrage practice
As an example of the article under consideration, we can cite the sentence passed by the court of the city of Naberezhnye Chelny.
During the court hearing, it was established that citizen N., with the goal of committing lewd acts, exposed his genitals in front of M., who at the time of the commission of this act had not reached the age of 12 years. Through this action, M. suffered moral harm.
N. admitted his guilt in full in court. Guilt was proven through the testimony of the victim, her legal representative, and witnesses. The judge qualified the act under Part 3 of Article 135 of the Criminal Code of the Russian Federation as the commission of indecent acts without the use of violence by a person who has reached the age of eighteen, committed against a person known to be under the age of twelve.
The sentence imposed a sentence of imprisonment for a period of 3 years to be served in a general regime correctional colony.
Commentary to Art. 135 of the Criminal Code of the Russian Federation
Commentary edited by Esakova G.A.
1. The characteristics of a victim in this crime are identical to the characteristics of a victim in Art. 134 CC.
2. The objective side is to commit depraved acts without the use of violence. Depraved acts include any actions, other than sexual intercourse, sodomy and lesbianism, that were aimed at satisfying the sexual desire of the perpetrator, or at causing sexual arousal in the victim, or at awakening his interest in sexual relations. Such actions may also be considered depraved in which there was no direct physical contact with the body of the victim, including actions committed using the Internet or other information and telecommunication networks (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 4, 2014 No. 16) .
The use of violence against the victim to commit depraved acts or the threat of violence turns the act into rape or violent acts of a sexual nature (Articles 131 - 132 of the Criminal Code). If the perpetrator, when committing depraved acts, takes advantage of the helpless state of the victim, who does not understand the nature and significance of the actions being performed, the act is qualified under Art. 135 of the Criminal Code only if the indecent acts are not associated with a violation of the bodily and, as a consequence, sexual integrity of the victim; any use of the victim’s body in such a situation turns the act into rape or sexual assault (Articles 131 – 132 of the Criminal Code). However, judicial practice qualifies all various indecent acts against persons under 12 years of age under Art. 132 of the Criminal Code, referring to the note to Art. 131 CC.
3. The crime is considered completed from the moment of committing depraved acts. Possible side effects of depraved acts (for example, tears of the hymen, scratches in the genital area or on the body) do not affect the recognition of the crime as completed. If indecent acts escalate into rape, sexual assault or sexual intercourse with a person under 16 years of age, the act is fully covered by Art. 131, 132 or 134 of the Criminal Code.
4. If depraved acts were accompanied by infection with a sexually transmitted disease or HIV infection, kidnapping, involvement in prostitution, illegal distribution of pornographic materials or objects, etc., the act is subject to qualification in conjunction with Art. 121, 122, 126, 240, 242, 242.1 or 242.2 of the Criminal Code.
5. The subject of the crime is a person of any gender who has reached 18 years of age.
6. The characteristics of qualified and especially qualified personnel are generally similar to the corresponding characteristics in Art. 134 CC.
Compound
The act in question is considered completed when the commission of actions of a depraved nature has begun. The crime is classified as a crime of medium gravity.
An object
The object of the crime under consideration is the normal sexual and moral development of persons under sixteen years of age. The face can be either female or male.
Objective side
The objective side is expressed in the form of active activity, which consists of committing acts of a depraved nature, without using violence against the victim who was under the age of 16 at the time of the commission of the act.
Depraved actions include those that are of a sexual nature and aimed at satisfying the sexual needs of the guilty person or arousing sexual passion in a minor. Actions under consideration could:
- involve physical contact, that is, when the perpetrator touches the victim’s genitals;
- be intellectual, that is, pornographic materials, cynical conversations, etc. are shown.
Subject
The subject is characterized as a physically sane person who has reached the age of eighteen. It is worth noting that the culprit can be either male or female.
Subjective side
The subjective side is characterized by direct intent. This means that the perpetrator is fully aware that he is committing depraved acts without the use of violence against a person who at the time of the commission was under the age of 16 years.
Also, the culprit wants to commit such actions.
Bibliography
- Pestereva Yu.S., Ganus A.Yu., Shkodunova M.V. Current problems of legal and social protection of minors from crimes that infringe on sexual freedom and sexual integrity // Bulletin of the Omsk Legal Academy. - 2009. - No. 10. - P. 70-74.
- Pestereva Yu.S., Siminenko A.N., Shaglanova A.N. Criminal-legal characteristics of non-violent sexual crimes against minors: educational and practical manual. - Omsk: Omsk Law Academy, 2012. - 100 p.
- Pestereva Yu.S., Shaglanova A.N. Features of the motivation of persons who have committed depraved acts // Psychopedagogy in law enforcement agencies. — 2013. — No. 4(55). — P. 89–93.
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Crime concept
So, indecent acts are a criminal offense during which the offender commits a series of physical or moral actions towards another person, which are aimed at creating sexual desire in the victim or inducing him to engage in sexual intercourse.
It should be understood that under Article 135 of the Criminal Code of the Russian Federation, punishment cannot be imposed for committing direct sexual intercourse, including sodomy, as well as lesbianism. It should also be understood that depraved acts occur without violence - this is a distinctive criminal law characteristic of the crime.
Important
When considering this category of atrocities, the presence of family ties between the perpetrator and the minor is decisive. If it turns out that they are husband and wife and are in a registered marriage, this will mean that there is no corpus delicti. If the depraved acts were committed before the official marriage, then the perpetrator is subject to prosecution.
In addition, the marriageable age in many regions of our country has been reduced to 14 years. This is allowed in cases where a woman is expecting a child. In some regions the age has been reduced to fifteen years. In the case where two people, sixteen and eighteen years old, are officially married, there can be no talk of criminal liability here. In this case, it is necessary to take into account the fact that Article 135 of the Criminal Code of the Russian Federation establishes the age of the victim to sixteen years. This means that once achieved, the perpetrator is not liable.
Distinction from other crimes
Article 135 of the Criminal Code of the Russian Federation provides for liability for committing indecent acts without the use of violence. In practice, depraved actions include:
- aimed at demonstrating genitals in front of minors;
- touching the organs of the child’s reproductive system;
- engaging in sexual intercourse or masturbation in the presence of a minor.
If a situation occurs when the hymen is ruptured while touching the child’s genitals, the offense falls within this category and is not subject to additional assessment under other provisions of the Criminal Code of the Russian Federation.
Important! If indecent acts were committed before rape, sexual assault, sexual intercourse or other sexual acts with a person under 14 years of age, the assessment is given under other articles of the Criminal Code of the Russian Federation.
A significant difference between indecent acts against a minor and other criminal acts of a sexual nature is that there is no violence against the injured party. In addition, the victim may express consent to commit such actions.
This is due to the fact that children are naturally curious about the world around them. This circumstance may push a teenager to participate in the actions in question.
Actions can progress from simply observing such actions being performed to touching the genitals of the person committing seductive acts, stroking and touching the genitals. This can end in full sexual intercourse, with no violence.
Depraved acts Art. 135 CC
Unlike Art. 120 of the Criminal Code of 1960, which provided for liability for indecent acts against minors, Art. 135 of the Criminal Code of 1996 provides for liability for committing indecent acts without the use of violence against a person known to be under 14 years of age.
Of all sexual crimes, indecent assault is the third most common crime after rape and sexual assault. The number of crimes qualified under Art. 135 of the Criminal Code, is characterized by the following data: in 1997, 1169 such crimes were committed, which amounted to 7.5% of the total number of sexual crimes, in 1998 - 1653 (9.3%) * (312).
The object of the crime is the normal physical and moral development of minors. The victims, just as under Art. 134 of the Criminal Code, there can be male and female persons.
The objective side of the crime is expressed in depraved acts against a minor. By the nature of expression, these actions are physical and intellectual. Physical actions aimed at corrupting minors are, for example, sexual intercourse in the presence of a minor, and intellectual actions aimed at corrupting minors are the display of pornographic publications (qualified in conjunction with Article 242 of the Criminal Code), stories of such content that are aimed at sexual arousal .
The crime is considered completed from the moment of committing depraved acts; Whether the corruption of a minor actually occurred is irrelevant for the crime. If indecent acts immediately preceded rape, sexual assault, voluntary sexual intercourse, sodomy or lesbianism with a person under 14 years of age, the actions of the perpetrator are qualified in terms of intent to commit a crime, which is the final result of his activities, i.e. according to paragraph “c” of Part 3 of Art. 131, paragraph “c”, part 3, art. 132 or Art. 134 CC.
The subjective side of the crime is direct intent: the perpetrator is aware that he is committing indecent acts against a minor and wants to commit them. If a person made a mistake in good faith regarding the age of a minor, liability is excluded.
The subject of the crime can be persons of both sexes who have reached the age of 16. However, the Plenum of the Supreme Court of the Russian Federation, in its resolution of April 22, 1992 “On judicial practice in cases of rape,” noting that a person over 16 years of age can be the subject of indecent acts, at the same time indicated that when deciding on the criminal liability of persons who have not reached the age of majority for this crime, it is necessary in each specific case to take a strictly differentiated approach to resolving the issue of responsibility and punishment for the perpetrator, taking into account the age of both minors, data characterizing their personality, the severity of the consequences and other circumstances of the case.
It should be noted the inconsistency of the legislator, who provided as the subject of a crime a person who has reached the age of 18 when committing more socially dangerous actions, such as sexual intercourse, sodomy with a person under 14 years of age (Article 134 of the Criminal Code), and left, as was the case under the Criminal Code of 1960, 16 years of age of the subject of the crime under Art. 135 of the Criminal Code of the Russian Federation * (313). One of the expressions of indecent acts is the commission of sexual intercourse in the presence of a person under 14 years of age. It turns out to be a paradoxical situation. If a person aged 17 years, in the presence of a person under 14 years of age, committed sexual intercourse with a third person, then the perpetrator may be held liable for indecent assault under Art. 135 of the Criminal Code. If this person committed sexual intercourse with the person himself, who has not reached the age of 14, then his actions do not constitute a crime under Art. 134 CC.
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Protection actions
First, a personal lawyer went to the scene to verify the boy's version. The lawyer retained the habit of inspecting the scene of an incident from his days as an investigator and allowed him to objectively formulate a picture of the incident. On site it turned out that the playground was located at a considerable distance from the sidewalk along which the schoolgirls were walking. In addition, there were buildings on the site (slides, ladders, a house, etc.) that blocked visibility from the sidewalk. It became clear that the girls could not see what exactly the boy was doing on the playground. The girls' parents also could not observe what was happening on the playground, since they were on the other side of the yard and knew about what happened from the words of their children. The inspection data were entered by the lawyer into the map of the place of occurrence.
Secondly, characteristics of the boy were collected from his place of residence, from his place of study and from the sections in which he studied. The performance was overwhelmingly positive. Medical documents were received from the hospital that confirmed the presence of kidney disease and the doctors’ recommendation to relieve natural needs more often. After analyzing his personality and health status, the boy was interviewed by a lawyer in the presence of his parents. The explanations reflected the true circumstances of the incident.
Thirdly, the materials of the lawyer's investigation were transferred to the investigation and a request was made to verify the explanations of all participants in the events at the scene. The request was granted. The evidence was verified at the scene. It turned out that neither the girls, nor especially their mothers, saw the guy commit lewd acts: he did not approach them, did not try to attract attention to himself, did not show his genitals. The defense's version was confirmed - the suspect relieved himself on the playground.
Commentary on Article 134 of the Criminal Code of the Russian Federation
1. In accordance with Federal Law No. 14-FZ of February 29, 2012, the commented article is presented in a new edition.
2. Victims of a crime can be persons of both sexes who have not reached the age of 16 years and puberty. An additional sign of the victim is failure to reach puberty, introduced by Federal Law No. 14-FZ of February 29, 2012. Unfortunately, it is not disclosed in the Law. The same Law excludes any indication of knowing the age of the victim. This novella should be understood this way: it is not necessary to know exactly the age of the victim; To bring criminal charges, it will be enough to prove that the perpetrator assumed that the victim was under 16 or 14 years old, respectively.
If a crime is committed against a victim who has reached the age of 12 years, but has not reached 14 years of age, then liability arises under Part 3 of Art. 134. The law does not link criminal liability to the attainment of puberty. If the victim is less than 12 years old, then committing sexual intercourse, sodomy or lesbianism with him or her entails criminal liability under Art. Art. 131 or 132 of the Criminal Code, respectively. The law classifies such persons as helpless (see note to Article 131 of the Criminal Code, introduced by Federal Law No. 14-FZ of February 29, 2012).
If there are two or more victims, liability arises under Part 4 of Art. 134. The qualifying feature was introduced by Federal Law No. 14-FZ of February 29, 2012.
3. The objective side of the crime consists of sexual intercourse (Part 1), sodomy or lesbianism (Part 2) (as amended by Federal Law No. 14-FZ of February 29, 2012).
On the content of the concepts of sexual intercourse, sodomy and lesbianism, see the commentary to Art. Art. 131 and 132 of the Criminal Code. A mandatory feature of crimes is the voluntariness of these sexual contacts.
4. The crime is completed from the moment of committing one of the actions specified in the law (parts 1 and 2 of Article 134).
5. The subjective side of the crime is characterized by guilt in the form of direct intent.
6. Sexual intercourse and other actions of a sexual nature committed by a group of persons, a group of persons by prior conspiracy or an organized group are covered by Part 5 of Art. 134.
7. Subject of crimes (parts 1 – 5) special; he is a person, male or female, who has reached the age of 18 according to the law.
8. On the basis of a special subject, a specially qualified staff has been identified (Part 6). Responsibility for this part lies with persons who have committed sexual intercourse, sodomy or lesbianism against a victim aged 12 to 14 years, who have a criminal record for a previously committed crime against the sexual integrity of a minor (Articles 131 - 135, 240 - 242.2 of the Criminal Code). The qualifying feature was first introduced into force by Federal Law No. 14-FZ of February 29, 2012.
9. In the note to Art. 134 of the Criminal Code provides for a special type of exemption from punishment due to changes in the situation. It applies if, firstly, the act was committed for the first time and is covered by Part 1 of Art. 134; secondly, the person and the crime he committed ceased to be socially dangerous due to marriage with the victim.
10. Federal Law No. 14-FZ of February 29, 2012 in Note 2 to Art. 134 formulates the rule for sentencing defendants whose age difference with the victim is less than four years. They are not subject to punishment in the form of imprisonment for a crime provided for in Part 1 of Art. 134.
Release from liability
The note to Article 134 of the Criminal Code of the Russian Federation states that if the age of the perpetrator and the victim differs by less than 4 years, the former is not subject to imprisonment.
This rule applies to the corpus delicti provided for in Part 1 of Article 135 of the Criminal Code of the Russian Federation. Also, the expiration of the statute of limitations serves as a basis for exemption from liability. They are enshrined in Article 78 of the Criminal Code of the Russian Federation.
Part 1 of Article 135 of the Criminal Code of the Russian Federation refers to crimes of minor gravity, the statute of limitations in this case is 2 years. Part 2 refers to moderate severity - the statute of limitations in this case is 6 years. Parts 3, 4 and 5 are particularly serious and the statute of limitations is fifteen years.
The specified period begins to run from the moment the unlawful act is committed and until the court verdict enters into legal force. When a person commits a new crime, the statute of limitations for it is considered separately.
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Article 134 of the Criminal Code of the Russian Federation “Sexual intercourse and other actions of a sexual nature with a person under sixteen years of age”
Article 78 of the Criminal Code of the Russian Federation “Exemption from criminal liability due to the expiration of the statute of limitations”
Important point
When qualifying crimes under Article 135 of the Criminal Code of the Russian Federation, it is necessary to find out whether the minor victim was married to a person over 18 years of age. In accordance with the law, in order to bring the perpetrator to justice, the citizen against whom the attack was committed must not be married. The possibility of minors to marry persons over 18 years of age is allowed in a number of regional federal laws. Thus, in the Kaluga, Samara, Vladimir, Vologda, Rostov and Moscow regions, the age for registering relationships has been reduced to 14 years, in the Ryazan, Murmansk and Tver regions - to 15, in the Oryol and Novgorod regions, as well as in Bashkortostan, no restrictions have been established. If persons are married, one of whom has reached the age of 16 and the other has reached the age of 18, then it is impossible to qualify the acts of an adult under Article 135 of the Criminal Code of the Russian Federation. In this case, they will not be considered a crime. This provision applies only to those actions committed after marriage. In this case, the spouse may be held accountable after marriage for assaults that occurred before the official registration of the relationship.
Types and characteristics
According to the same Article 135 of the Criminal Code of the Russian Federation, which is the main legal act for such a crime, two types are distinguished:
- Physical lewd acts – display of naked genitals, touching the victim’s genitals and similar actions.
- Moral or intellectual - watching porn videos and similar actions.
If the commission of indecent acts culminated in sexual intercourse, then the crime will be qualified under Article 134 of the Criminal Code of the Russian Federation.
Qualifying features
Qualifying characteristics are specified in parts 2-5 of Article 135 of the Criminal Code of the Russian Federation:
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- Part 2 – committing indecent acts against a person over 12 years of age but under 14 years of age.
- Part 3 – committing indecent acts towards 2 or more persons.
- Part 4 – commission of a crime by a group of persons by prior conspiracy.
- Part 5 – recidivism, that is, by a person who has previously been convicted under Article 135 of the Criminal Code of the Russian Federation.
But the evidence base for this crime is somewhat ambiguous - it is difficult to prove the presence of depraved actions.
