Man is not only a biological being, but also a social one. That is, each of us cannot be outside of society, completely alone. Through social interaction, people create amazing things. In fact, it was the consolidation of society that led to the technological evolution that continues in the world to this day. But the social character of a person is also determined by the presence of certain powers, which are the basis of the legal regime of each individual. Such legal freedoms allow us all to implement certain actions in one or another sphere of life. However, the legal basis of social interaction is structured in such a way that the freedoms of each person should not be violated by other persons. Fundamental freedoms include the right to sexual integrity. This term has extensive legal meaning, which indicates its importance. Along with this, sexual integrity very often becomes the object of sexual crimes, which confirms the importance of this category.
Sexual integrity: concept
As we indicated earlier, the legal policy of each person is characterized by the presence of certain rights and obligations. In this case, we are interested in the first category. Therefore, sexual integrity of the individual is an integral element of the constitutional status of each person individually. This freedom is enshrined in the constitutions of many states, and, in particular, the Russian Federation. This fact allows us to say that sexual integrity is not only sanctioned by the state at the highest level, but is also protected by it. That is, for any violation of this freedom, the guilty person will bear legal responsibility. It should be noted that sexual integrity ensures the normal functioning of a particular person. The content of this freedom ensures a person’s free choice in the process of organizing his sexual life and in other related areas.
Characteristics of sexual freedom from the perspective of criminal law
The category mentioned in the article is affected not only within the framework of the Constitution. Sexual freedom and sexual integrity of the individual is one of the objects of criminal law of the Russian Federation. This means that all social relations arising on the basis of this category are protected by the norms of this industry. Therefore, any negative actions that violate sexual freedom and sexual integrity of the individual will entail criminal sanctions against the perpetrator. This factor is extremely important, because attacks on people in this area of their freedoms have extremely negative consequences. They are usually expressed in the form of mental and physical harm. In the first case, a person receives psychological trauma due to attacks on his integrity. Physical harm may result from violent acts used in violation of freedom. It follows that we can talk not just about the existence of legal protection of sexual freedom and inviolability, but also about a whole system of socially dangerous acts that are provided for by the Criminal Code of the Russian Federation. They help protect people and their specific freedom from illegal actions that could cause significant harm.
Depraved acts of a sexual nature (Article 135 of the Criminal Code of the Russian Federation)
Each person has his own sexual preferences, but not everyone has them that are adequate and, most importantly, legal. The defendants can be charged with prostitution, exhibitionism, and forced viewing of pornographic films. The following types of indecent acts are distinguished:
- showing the public one's genitals;
- performing sexual acts with adults in front of minors;
- inducing the victim to engage in solitary sexual intercourse;
- showing pornography to others.
In our country there is criminal liability for such depraved acts, from compulsory labor to restriction and imprisonment. A lawyer has the power to reduce the sentence of the accused by proving violations in the mental state of the accused. In cases where sexual abuse of minors occurs, the lawyer can petition the court for a psychological examination of both the accused and the victim, which will most likely be ordered. It will show whether there were illegal actions with minors or whether the accused has a chance to clear his good name before the public.
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Sex crimes
If we abstract from Russian criminal law, we can see that in almost every state there are a number of actions against human freedoms that have the status of socially dangerous. Crimes against sexual integrity in this case are no exception. In almost all modern states, any kind of encroachment on this object is punishable by law. Based on this, we can identify their most “classical” concept. Thus, crimes against sexual integrity are gross, dangerous violations of established social rules in the field of sexual relations and morality.
The object of these crimes, as a rule, is complex. This is not only sexual integrity in its classical form, but also moral social norms, human health, and the development of minors of a mental and physical nature. Thus, such crimes in most cases encroach on several fairly important social categories at once.
How are they investigated?
The classification of violations of the law on sexual grounds is carried out based on the totality of data on the act. To determine a criminal offense, only a statement from the victim (or his parents) is not enough. The main evidence for the prosecution and trial is the medical examination of the victim. Attention: an important element of the evidence base is the testimony of witnesses.
Forensic-medical examination
The victim of violence must be examined. It is carried out by gynecologists. Analysis of the state of the body allows you to quite accurately determine:
- whether the act was committed;
- whether it was the result of violence;
- whether the victim was subjected to physical violence;
- other.
During the research, tests are taken from the victim's vaginal area. Sperm remain in its mucous tissues for up to five days. This material provides the basis for identifying the rapist by blood type. In addition, the expert examines the victim's body. It leaves bruises and abrasions (sometimes bites and scratches). All this proves the violence of the act.
For the record, another important element of evidence collection is examining the crime scene. Microparticles of blood, semen, saliva and other secretions remain on surfaces.
Signs of sexual crimes
Taking into account the legislative enshrinement and the specific nature of the acts of increased danger mentioned earlier in the article, we can highlight their most “bright” signs. It should be noted that scientists in the field of criminal law have an ambiguous approach to the issue of considering crimes against sexual integrity and sexual freedom of the individual. Nevertheless, a number of classic signs that characterize these acts should be mentioned, for example:
- crimes against sexual freedom always have a sexual orientation;
- they violate the way of sexual relations between people established in society;
- these crimes are always committed with intent;
If we analyze the presented signs, the question arises about the normal structure of sexual relations. What is this category? Again, there is no consensus among scholars about this category. A similar problem arises due to the fact that sexual relations are largely regulated not by legal, but by moral norms that have been established in society over a certain period of time. If we analyze the legislative framework, only a few acts contain the concept of “sexual relations”. However, its meaning is not revealed. If we analyze sexual relations from the standpoint of morality and common sense, then the normal way of life in this category is characterized by the following features:
- the person has reached the age from which he can be a normal participant in sexual intercourse;
- the person is aware of the physiological and social aspects of sexual relations;
- sexual relationships arise exclusively on a voluntary basis and cannot be realized under coercion;
- the normal way of life of the presented category is characterized by a natural mechanism of intercourse;
- The mandatory absence of family ties between partners plays a significant role in the sexual relations of our state.
It is on the basis of these characteristics that many norms of the Criminal Code are built, which establish crimes against sexual freedom and sexual integrity of the individual.
Criminal law of Russia and the place of sexual crimes in it
In such a legislative act as the Criminal Code of the Russian Federation, there are a number of rules that establish legal protection of the relations specified in the article of the sphere. Crimes against sexual integrity and sexual freedom constitute an entire chapter of the Criminal Code. Thus, the legislator most fully regulates these legal relations in order to bring to justice persons who want to violate them or actually implement their plans. Crimes against sexual integrity and sexual freedom include five main acts, namely:
- rape;
- coercion to perform sexual acts;
- violent sexual acts;
- intercourse with minors;
- lewd acts.
The rules establishing responsibility for these actions are found in Chapter 18 of the Criminal Code.
general information
The legislator took into account that sexual crimes can be aimed at:
- women;
- persons of both sexes;
- minors.
Any illegal act contains elements of violence or coercion. That is, the essence of the crime comes down to forcing a person to have sexual intercourse. This does not take into account the previously established relationship between the rapist and his victim.
Information: the maximum penalty for violating the law related to sexual inviolability reaches 20 years in prison.
Criminal acts of a sexual nature mean actions directed against a person’s sexual integrity. They are associated with effects on the physical body and disruption of the victim’s peace of mind. In addition, such violation of the law is often aggravated by:
- causing harm to health;
- infection with sexually transmitted and other diseases;
- molestation.
Attention: violation of the law on sexual grounds always involves physical contact between the offender and the victim.
The absence of such in the case of obvious depraved actions is classified under other articles of the Criminal Code. Download for viewing and printing: Article 22 of the Constitution of the Russian Federation
Chapter 18 of the Criminal Code of the Russian Federation
Sexual integrity of minors
Previously, the author examined general trends in the inviolability of relationships in the sphere of human sexual contacts. That is, the most standard characteristic of this category was presented. But in the modern world, one can very often come across such a concept as sexual freedom of minors. In general, this category meets all the principles and features of the classical one. However, its characteristic feature is the fact that the defendant is a minor. This can be called any person under the age of 16, if we are talking about the legislation of the Russian Federation. Minors have a specific legal status. It is generally subject to stricter legal frameworks. They are manifested in the fact that full-fledged persons cannot enter into sexual relations with minors under any circumstances. Because it will be punishable by law.
Specifics of the status of a minor
There are many quite interesting points that characterize the legal regime of persons under 16 years of age. The specificity of legal protection in this case is determined, first of all, by the lack of puberty in such persons. This thesis characterizes the stage of ontogenesis, when a person receives a real opportunity to reproduce. In other words, before the onset of puberty, a person cannot fully enter into relationships of the same name with anyone. At the same time, the legislator has built a fairly strict framework for such contacts. Sexual relations with minors have become the object of the criminal branch of law. This indicates the presence of the most significant legal consequences for violators of the regime of sexual freedom of minors.
Crimes against sexual integrity of minors
Intentional especially dangerous acts against persons who have not reached the maturity to enter into sexual contacts are strictly punished by criminal law. In certain states, actions of this kind are classified completely differently. In this case, everything will depend on the specific legislation. For example, in some countries, acts of increased social danger of a sexual nature aimed at teenagers and children are separately identified. As for the Russian Federation, crimes against the sexual integrity of minors are acts that are recognized as criminal offenses in accordance with Article 134 of the Criminal Code of the Russian Federation. It, in turn, contains the rule that any actions with a person who has not reached the age of 16 are punishable by law. In this case, the age of a person is of fundamental importance for legal qualification. After all, it is he who will influence whether Article 134 will be used specifically or not.
Sexual integrity of minors
In the paragraphs of the Criminal Code, criminal actions are differentiated by activity and result.
Thus, an act against an adult that leads to sexual intercourse is punishable. Child molestation is described quite differently. Thus, a criminal offense is one in which the offender committed violence against a minor that did not result in intercourse. These are described as follows:
- touching or exposing intimate parts;
- obscene gestures and words;
- inclination to masturbation or masturbation.
Important: the essence of the act is to obtain satisfaction or arouse an unhealthy interest in a minor.
Specifics of the child's status
Paragraphs 134 and 135 of the Criminal Code describe the acts of adult criminals against children who have not celebrated their 16th birthday (within parts 1, for the rest - victims under 14, but over 12 years old). The legislator made the age distinction based on medical indications. So, according to statistics, until the age of 16, young people have not yet reached maturity, that is, the ability to reproduce without compromising their health.
And this is also associated with mental instability in relation to abnormal actions of adults. That is, the teenager suffers much more deeply from violence. The consequences of a crime are felt by the victim for the rest of his life.
For information: more than two thirds of offenders punished for sexual assault suffered from childhood abuse from adults.
Composition of a crime against a child
Within the framework of the above paragraphs of the Criminal Code, any indecent acts with children under 16 years of age are punishable. The object of the criminal offense is the sexual integrity of the child, as well as his physical and mental health.
The subject is a 16-year-old person of any gender. A subjective sign is the presence of intent. Most often it lies in the desire to achieve satisfaction. But there may be other options. The objective side has a complex design. So, active actions can be:
- physical, even violent;
- moral pressure;
- seduction;
- coercion through blackmail and others.
Hint: a criminal offense is considered completed from the moment the debauchery begins. Intellectual actions that have corresponding intent are also recognized as such.
Composition of a crime against a minor
Article 134 of the Criminal Code has its own internal structure. It is this that allows us to highlight the actual commission of a crime. As we know, the corpus delicti of any crime consists of the following elements, namely: subject, object, subjective and objective sides. When analyzing each part, you can see the specifics of crimes against sexual freedom and sexual integrity of minors. The object of the crime is relations in the sphere of protecting puberty of persons who have actually not reached 16 years of age. In addition, this element of a socially dangerous act covers the process of normal physiological and mental development of a person. An optional subject, as a rule, is the health of a minor. Therefore, during sexual intercourse before reaching maturity, quite serious physiological harm is caused.
As for the objective side of the crime, this element covers acts characterized as sexual intercourse. It should be noted that in this case, we are talking about sexual contact between a man and a woman. However, in Part 2 of Article 134 of the Criminal Code of the Russian Federation we also found manifestations of norms characterizing unnatural types of intercourse, for example, sodomy or lesbianism. At the same time, acts of this nature are a qualifying feature of the crime. That is, they aggravate the very fact of violation of the sexual freedom of a minor. It should be noted that such an element as the objective side of the crime exists regardless of whether sexual intercourse was carried out under threat or without it. That is, even if the initiator of the connection was a minor, liability for a full-fledged person will still occur.
The subject of a crime against sexual integrity and personal freedom under the age of 16 will always be an adult. However, he must not be married to a minor. The subjective side in all cases without exception is characterized by the presence of direct intent. But in this case, judicial practice plays a significant role in qualifying the act. The sexual integrity of a 16-year-old person is violated in any case. However, there are situations when, due to the physiological characteristics of the victim, the attacker may not be aware of his real age. Therefore, investigative authorities must necessarily ascertain the fact that the offender understands that a particular person is a minor.
Text of the book “Sexual crimes as an object of criminology”
The most successful is to change the term “satisfaction of sexual passion” with the more semantically defined concept of “actions of a sexual nature.”
Article 119 of the Criminal Code of the RSFSR “Sexual intercourse with a person who has not reached puberty” is comparable to Art. 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,” but the latter has been significantly expanded and a clearer qualifying principle has been introduced into it. Instead of the concept of “puberty,” the age criterion of 16 years is introduced, and the concept of “sexual intercourse” is replaced by the expanded term “actions of a sexual nature.”
The objective side of the crime provided for in Part 1 of Art. 119 of the Criminal Code of the RSFSR, consists of sexual intercourse with a person who has not reached puberty; Part 2 Art. 119 spoke about the same actions, but associated with the satisfaction of sexual passion in a perverted form.
The subject of a crime under Art. 134 of the Criminal Code of the Russian Federation, there can only be a person who has reached the age of 18, which causes our strong disagreement.
Article 120 of the Criminal Code of the RSFSR was called “Indecent acts against a minor.” This article corresponds to Art. 135 of the Criminal Code of the Russian Federation “Depraved acts committed without the use of violence against a person known to be under sixteen years of age.” The object of the crime is the normal sexual development of a person under 16 years of age. Depraved acts are understood as any actions of a sexual nature aimed at satisfying the sexual passion of the perpetrator or pursuing the goal of arousing or satisfying the sexual instinct of a minor with his voluntary consent to commit them.[356] 356
Commentary on the Criminal Code of the Russian Federation / Ed. V. I. Radchenko, A. S. Milekhina. – M., Spark, 2000. – P. 276.
[Close]
Article 132 of the Criminal Code of the Russian Federation “Violent acts of a sexual nature” is a novelty; it provides for liability for any acts of a sexual nature committed with the use of violence, threats of violence or taking advantage of the helpless state of the victim. The object of the crime is sexual freedom, and when violent acts of a sexual nature are committed against the victim using his mental helplessness, sexual integrity.
The following is a brief comparative legal analysis of the codes of 1960 and 1996. allows us to say that, despite the change in the priority of values with the adoption of the Criminal Code of the Russian Federation and the focus on individual rights and freedoms, the sanctions of articles relating to sexual integrity and sexual freedom of citizens are significantly lower compared to its predecessor - the Criminal Code of the RSFSR, which directly indicates a change normative and value attitudes of the state towards criminal sexual behavior and sexual morality. Now a person is less protected by law from attacks on his sexual freedom and sexual integrity.
d) Norms for the regulation of sexual behavior in the era of postmodernism
The term “postmodernism” is rather vague, reflecting the specifics of the cultural and historical understanding of ongoing processes in post-industrial societies. At the same time, it plays a significant role in issues of law and personality theory, theories of human sexual behavior.[357] 357
Honest I. L. Legal understanding in the postmodern era. – St. Petersburg, 2002.
[Close] Pos,” wrote one of the ideologists of this trend, Jean-François Lyotard.[358]358
Lyotard J.-F. Post-modern condition // Culturology. – Rostov n/d, 1995. – P. 528.
[Close] Postmodernism is presented as a complex phenomenon of socio-spiritual nature, combining the ongoing changes in the worldview and worldview of modern man in general and in relation to the values of previous eras.[359]359
Volkov Yu. G. Sociology: lectures and tasks. – M., 2003. – P. 297.
[Close]
Personality as a personalistic individuality is absent in postmodernity, and at the same time the death of the “subject of law” is affirmed. The lack of individual integrity, the "I", and the "diffusion of identity" accordingly call into question rights based on free will in behavior, instead positing the possibility of "multiple identities" or multiple personalities. In the era of modernism, the problem of identity was the need to acquire a certain social position or status. To achieve this goal, first of all, identity was needed as a desired model, the so-called “life project”, in the terminology of J.-P. Sartre, who defined the essence of human personality. In postmodernism such a project has become unnecessary. The terms “multiple personality” and “diffuse identity” have become widespread in Anglo-American psychology and psychiatry and are reflected in the International Classification of Diseases, Tenth Revision, adopted in Russia, but have not been implemented in practice. The famous 1991 “postmodern criminal trial” in Wisconsin dealt with criminal sexual behavior. The defendant was accused of raping a woman who suffered from having multiple personalities in one body.[360] 360
The description of the process is given according to: Moiseev S.V. Philosophy of Law. – Novosibirsk, 2003. – P. 191.
[Close] It was possible to talk about rape only in relation to one of the individuals; the rest would, in principle, give voluntary consent to sexual contact. Moreover, the injured “person” also agreed in principle, but was too immature or not entirely healthy for her consent to be considered genuine. Thus, the very concept of personality and a number of other concepts underlying law were called into question.
The social structure of postmodernity is represented by hyperreality or multiple reality. The classical social institutions of family and marriage practically cease to play a regulatory role in relation to sexual behavior, and they themselves are transformed. Thus, there is a widespread spread of civil marriages, which are practically of a legitimate nature, same-sex marriages are possible in a number of countries, etc. Feminist movements are a new moment for the social dynamics of postmodernity, which are trying to shift the emphasis of power relations and priorities in gender relations, but they do not remove binary opposition of male and female, since sexuality, noted by M. Foucault, served as a mechanism of power and social control only in the era of modernism.
The concept of sexual behavior and the norms of its regulation in the era of postmodernism are also undergoing significant changes. The very concept of a norm as such ceases to exist, and its place is taken by the concept of consensus, which “is a never-reached horizon line,” in the words of J.-F. Lyotard, and, accordingly, the place of the invariant is taken by discourse, which will never become final due to moral relativism and the consensual nature of norms. The freedom to seek sexual pleasure for its own sake rises to the level of a cultural norm as a continuation of individual freedoms. The norm, which in the modern era was the main strategy for maintaining social order and in the field of sexual behavior was based primarily on the concept of sexual health as opposed to illness, has practically ceased to work. The medical concept of health implied a certain stable state, homeostasis, a certain pattern, in postmodernism it is replaced by the concept of fitness, implying constant dynamics, readiness to move, the ability to absorb increasingly large volumes of stimuli and irritations.[361] 361
Bauman Z. Individualized society. – M., 2002. – P. 283.
[Close] If the binary opposition of health was disease, then conformity is opposed to incongruity. Thus, any forms of sexual behavior that find conformity and consensus are automatically excluded from being painful, and subsequently criminal.
Another feature of postmodernism is the erasing of demarcation lines of criminality of sexual behavior, following the blurring of the boundaries of norm and pathology. Most legal terms that qualify sexual criminal behavior are too broad in scope and do not have a clear logical explanation. Thus, I have already cited the opinion of A. Kovler that American courts are inundated with claims of sexual harassment by word, gesture or look.[362] 362
Kovler A.I. Anthropology of Law. – M., NORMA, 2002. – P. 418.
[Close] Many foreign researchers on this issue share a similar opinion. Suzanne Moore writes that "the term 'sexual seduction' is so overused today that almost any situation can be construed as harassment."[363] 363
Moore S. For the good of the children – and us. Guardian. 1995. June 15.
[Close] at the same time, it concerns the interpretation of harassment no longer in relation to adult heterosexual relationships, but in relationships with children. Another English postmodern family researcher, M. Freely, writes: “If you are a man, you will most likely think twice before approaching a crying lost child to offer your help... If Lolita had been first published in 1997, No one would dare classify it as a classic.”[364] 364
Freely M. Let girls be girls. Independent on Sunday. 1997. March 2.
[Close]
Other postmodern innovations in matters of legal regulation of sexual behavior that should be noted are the increasing spread of the concept of “marital rape”, the possibility of claims by illegitimate children against their biological fathers for compensation for moral damages in connection with violence against their mothers, as a result of which these children were born because this method of conceiving them violates their dignity.[365]365
Kovler A.I. Anthropology of Law. – M., NORMA, 2002. – P. 418.
[Close]
The specific features of sexual behavior in its criminal and non-criminal forms in the postmodern era can be the subject of a special study; here is a general outline that gives an idea of the state of affairs in this area and serves as the finishing touch within the framework of the civilizational approach.
Chapter 3 Criminal legal and criminological analysis of crimes against sexual freedom and sexual integrity of the individual
Sexual crimes are crimes directed against sexual freedom and integrity, enshrined in Chapter 18 “Crimes against sexual integrity and sexual freedom” of the current Criminal Code of the Russian Federation. The actual range of crimes committed for sexual reasons is much wider. These may include: murder associated with rape or violent acts of a sexual nature (clause “k” of Part 2 of Article 105 of the Criminal Code of the Russian Federation), intentional infliction of harm to health of varying degrees of severity (Articles 111, 112, 115 of the Criminal Code of the Russian Federation) , beatings and torture (Articles 116, 117 of the Criminal Code of the Russian Federation), kidnapping, involvement of minors in committing antisocial acts, involvement in prostitution, distribution of pornographic materials, desecration of the bodies of the dead, cruelty to animals, etc.
The identification and consideration of sexual crimes as a separate category is based on the commonality of the motive - “it is the motive that reveals the reason why a certain subject began to commit criminal acts.”[366]366
Kudryavtsev V.N. Lectures on criminology. – M., 2005. – P. 110.
[Close] Accordingly, the modern criminological classification of crimes given by V. N. Kudryavtsev (2005) consists of four groups, one of which is sexual crimes.[367]367
Right there. – P. 111.
[Close] In the psychological aspect, any crime is a private type of human activity, and, accordingly, the criminal law and criminological concept of motive for a crime should be based on the concept of motive.[368]368
Criminology / Ed. B.V. Korobeinikov, N.F. Kuznetsova, G.M. Minkovsky. – M., 1988. – P. 87.
[Close]
The bulk of criminal sexual behavior is represented by various forms of violent behavior, rape (Article 131 of the Criminal Code of the Russian Federation), violent acts of a sexual nature (Article 132 of the Criminal Code), including coercion, exploitation of the dependent position of the victim(s). Violence, including sexual violence, being a purely social phenomenon, is associated with biological factors of human nature, primarily with aggression, and in the psychological aspect is aimed at the freedom of expression of the individual.
The connection between sexual behavior and criminal forms has been repeatedly noted by many authors. In this regard, E. A. Pozdnyakov wrote: “Sex is not just a carnal pleasure given to a person by nature... Sex is also a whole system of relationships: intimate, family, related, service, property, material, monetary, moral and others. It is not surprising, therefore, that all kinds of fraud, deception, theft, betrayal, and murder are certainly associated with sex.”[369] 369
Pozdnyakov E. A. Philosophy of crime. – M., 2001. – P. 295.
[Close]
The criminal legal and criminological taxonomy of sexual crimes and criminal sexual behavior has been repeatedly proposed by various authors. Thus, Ya. M. Yakovlev (1964) divided all sexual crimes into four groups: 1) crimes against sexual freedom; 2) crimes against the sexual integrity of adults; 3) crimes against sexual integrity and normal sexual development and sex education of children and adolescents and 4) crimes encroaching on normal sexual relations between a man and a woman.[370] 370
Yakovlev Ya. M. Sexual crimes. – Dushanbe, 1964. – P. 82.
[Close] N.D. Durmanov (1971) identified three groups of criminal behavior associated with sexual motivation: 1) crimes that infringe on the freedom, health and honor of a woman; 2) crimes that infringe on the freedom, sexual integrity and normal physical, mental and moral development of a minor and 3) sodomy.[371] 371
Durmanov N.D. Soviet criminal law. A special part. – M., 1971. – P. 183.
[Close] In the classification proposed by A. N. Ignatov (1974), the following groups are distinguished: 1) encroachments on the sexual freedom of citizens; 2) attacks on sexual integrity and normal sexual development of minors and 3) attacks on the basic principles of morality, excluding manifestations of depravity in any form.[372] 372
Ignatov A.N. Qualification of sexual crimes. – M., 1974. – P. 13.
[Close] These classifications have one significant drawback - the absence of a single feature on the basis of which the classification itself is built and objects are grouped. The primary task is to develop a list of criteria according to which sexual crimes should be classified.[373] 373
Antonyan Yu. M., Tkachenko A. A., Shostakovich B. V. Criminal sexology. – M., 1999. – P. 44.
[Close] Such signs may include the age of the victim, the method and nature of the crime, the consequences of criminal actions, the gender of the victim, etc.
In this study, the classification is based on the generic object of the crime - sexual freedom and sexual integrity, according to which criminal sexual behavior can be conditionally considered in violent and non-violent forms. The criterion for the criminality of non-violent forms will be the age of the victim. Sexually motivated crimes of involvement in prostitution and illegal distribution of pornography, the generic object of which is public morality, will be considered together with the background socially negative phenomena of prostitution and propaganda of sexual violence in the media.
3.1. Violent sexual crimes: a criminal legal and criminological study
“Sexual freedom, sexual liberation.
The deception of our days. We are hierarchical animals. Destroy one hierarchy, and another, perhaps even worse than the first, will take its place. There are natural hierarchies and social hierarchies. In nature, brute force is the law. In society, the weak are protected. Society is our fragile defense against nature. When the prestige of the state and religion is low, people are free, but they find freedom unbearable and look for new ways of enslavement: drugs or depression. I believe that immediately following the desire for sexual freedom and the achievement of sexual freedom comes the turn of sadomasochism.” Camilla Paglia
Sexual integrity and sexual freedom as an object of crime
Considering sexual freedom as an object of crimes provided for in Art. 131–133 of the Criminal Code of the Russian Federation, it is necessary to determine the logical content of this concept and the generic concept of “freedom”, provided for in Section VII “Crimes against the Person” of the Criminal Code of the Russian Federation. Initially, the legal definition of the concept of “freedom” was opposed to the concept of slavery as a description of the legal status of an individual and was understood precisely as physical freedom. The definition of personal freedom given in Art. 22 of the Constitution of the Russian Federation states: “Everyone has the right to freedom and personal integrity.” It determines the generic object of crimes against the individual, where the category of “freedom” is used to define human and civil rights in the field of spiritual, creative activity and personal integrity. At the same time, physical freedom is a priority in Chapter 16 “Crimes against life and health”, with which the Special Part of the Criminal Code begins. However, according to the apt expression of V. S. Nersesyants, freedom, despite all its apparent simplicity, is a complex subject both for understanding and, even more so, for practical implementation in the forms, norms, institutions, procedures and relations of public life.[374] 374
Nersesyants V.S. Philosophy of law. Textbook. – M., Norma, 2001. – P. 23.
[Close] The Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms defines freedom in Art. 5 (the right to freedom and personal integrity) as a legal category that can only be limited in accordance with the procedure established by law.[375] 375
Convention for the Protection of Human Rights and Fundamental Freedoms. – M., Yurlit, 2001. – P. 5.
[Close]
Along with the legal definition of freedom, we can talk about at least two more definitions of this term - philosophical and commonly used, the scope and content of which do not coincide both with each other and with the legal understanding of this term. The Encyclopedic Dictionary (1990) defines freedom as “a person’s ability to act in accordance with his interests and goals, to make choices, while a person has specific and relative freedom when they retain the opportunity to choose goals or means of achieving them sanctioned by the norms and values of a given society.” [376] 376
Large encyclopedic dictionary. – M., 1990. – P. 872.
[Close] According to V. Dahl’s explanatory dictionary, freedom is the absence of constraint, bondage, slavery, the ability to act at one’s own discretion, while the concept of “freedom” is considered both in relation to certain boundaries of varying degrees of spaciousness, and as the possibility of complete, unbridled arbitrariness.[Close] 377]377
Dal V.I. Explanatory dictionary of the Russian language. – M., Russian language, 1996. – P. 815.
[Close] In the dictionary of S. I. Ozhegov and N. Yu. Shvedova, freedom is defined as the possibility of a subject expressing his will on the basis of consciousness of the laws of development of nature and society.[378]378
Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. – M., Russian language, 1994. – P. 523.
[Close]
As follows from the above definitions, there is practically no unity in the understanding of freedom. Although one point notes the similarity of the authors’ position: the interpretation of freedom as “freedom from something” does not reflect the main feature that “the concept of freedom is a purely human concept in the sense that it is used to characterize certain actions only by humans. In the literal sense of the word, freedom is inherent only in man.”[379] 379
Nikonov K. M. Freedom and its contents // Freedom and its contents. – Volgograd, 1972. – P. 4–5.
[Close] Thus, the awareness of freedom and the possibility of its realization appear in the individual only in the system of social relations and connections. Therefore, it is inappropriate to talk about the freedom of children, as well as adults who are in a helpless state, and in relation to sexual crimes we talk about sexual integrity. A person who is in a helpless state “due to his physical or mental condition (dementia or other mental disorder, physical disabilities, other painful or unconscious state, young or old age, etc.) is not able to understand the nature and significance of what is being done to him criminal actions and/or resist the perpetrator”[380] 380
Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2004 No. 11 “On judicial practice in cases of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation”, paragraph 3 / Reference and legal system “ConsultantPlus”.
[Close] and is not free.
E. Fromm noted that the concept of freedom appears to us in two ways - as a mental, internal phenomenon, and external, social.[381]381
Fromm E. Flight from freedom. – M., ACT, 2004. – P. 114–134.
[Close] Such a division in relation to law is of fundamental importance and correlates, first of all, with the categories of natural and positive, public and private law. In both English and Russian, there are two terms to denote the phenomenon of freedom - “liberty”, “freedom”, respectively, the Russian concepts “freedom” and “will”. Their meanings in some cases only partially coincide, and sometimes do not correspond to each other at all.[382] 382
Understanding Cultures through their keys words: English, Russian, Polish, German, Japanese. – New York, Oxford University Press, 1997. – P. 430.
[Close] In English, the word “liberty” is limited only to political discourse and is an abstract concept that does not apply to a specific person. The word “freedom” can be applied to a specific person in an exalted sense and carry a socio-legal connotation guaranteed by political structures.[383] 383
Melnikova A. A. Language and national character. – St. Petersburg, 2003. – pp. 156–158.
[Close] The word “freedom” semantically reflects the rights of an individual, but it does not imply the ability to “do whatever you want, because in this context, on the one hand, the personal rights of the individual are inextricably linked, on the other, the personal rights of other people.”[Close] 384]384
Fedotov G. Russia and freedom: Collection of articles. – New York, Chalidze, 1981. – P. 177.
[Close] The concept of “will” reflects “unfettered by any social ties. The will triumphs either in withdrawal from society or in power over society, in violence over people; freedom is unthinkable without the freedom of others, will is always for oneself.”[385] 385
Right there. – P. 183.
[Close]
In the philosophical aspect, the understanding of freedom reaches its greatest development in the philosophy of existentialism by M. Heidegger, J.-P. Sartre, K. Jaspers, A. Camus, E. Fromm. The discourse about freedom within the framework of existentialism is initially conflicting and paradoxical. The reason for this internal contradiction is that freedom is achieved only in relation to another, but it is impossible to fully realize it due to his objective existence.[386] 386
Markov B.V. Existentialism and freedom in the philosophy of J.-P. Sartre from a comparative perspective // History of modern foreign philosophy: a comparative approach. – St. Petersburg, Lan, 1997. – P. 190–194.
[Close] The conflict drama of freedom in existentialism determines the very understanding of the “other” as a subject, and comprehension of the other becomes a necessary condition for the ability to construct oneself, one’s own mental world. In J.-P. Sartre (1988) a person, torn from the world of traditional society, becomes an individual doomed to responsibility and freedom.[387] 387
Sartre J.-P. Primary attitude towards another: love, language, masochism // The problem of man in Western philosophy / Ed. Yu. N. Popova. – M., 1988. – P. 228.
[Close] Thus, a person becomes responsible for himself and for others, and his freedom becomes a fundamental condition for the existence of being.
Positive freedom according to E. Fromm is an active, critical and responsible personality.[388]388
Fromm E. Flight from freedom. – M., ACT, 2004. – P. 118.
[Close] Thus, the boundaries, the framework for the manifestation of individual freedom are determined by the degree of moral development of the individual and responsibility. The understanding of freedom and its marked division make it possible to approach the distinction between the categories of law and morality, which, when considering issues regarding sexual freedom, acquire paramount importance. Law acts as a regulator of external freedom of the individual, while morality and morality are regulators of internal, mental freedom. Various aspects of external freedom, manifested in the behavior of an individual, are regulated by natural and positive branches of law.
Natural law is aimed at regulating the external freedom of behavior of people in relation to each other and provides equal freedom to the subjects of legal relations. Natural law is based on moral foundations that connect it with the values of culture, including world culture. Natural law, being a derivative of the natural order of the universe, the history of its existence, proves that a person cannot exist in a world created only by consensus, where everything is relative. Natural law allows an individual to rely on the cultural and historical roots of morality and form ethical self-determination.
Positive law is a legislatively formalized and state-sanctioned opportunity for the manifestation of freedom, the border of these freedoms. The morality of positive law is a system of norms and values on the basis of which an individual identifies himself with a certain social community - a country, a nation, a state.
There must be a balance between natural and positive morality. With the predominance of positive morality, the process of leveling individuality and narrowing the boundaries of freedom will take place; with the priority of natural morality, the boundaries of identity are erased and responsibility is lost. An imbalance towards the priority of natural law and morality inevitably leads to outbreaks of spontaneous “anomie” and social chaos. In such a situation, the imperative becomes the slogan: “Everything is permitted that is not prohibited.” In such conditions, individual values will be leveled down to the norms of group morality, which are always significantly lower. A typical example of such situations on a local scale are group crimes, accompanied not only by the priority of group norms, but also by the loss of identity and responsibility of the individual in the group, its regression to the individual level. A clear illustration of this is gang rape and sexual assault.
In conclusion of the consideration of the issue of understanding freedom in human society, we recall two famous dystopias of the 20th century: “1984” by George Orwell and “Brave New World” by Aldous Huxley.[389]389
Orwell J. 1984. – M., 1989; Huxley O. Brave New World. – M., 1993.
[Close] "Brave New World" is built without violence, because "violence gets you little," sex is pleasant and always available, there is a ministry that ensures that the time between the appearance of desire and its satisfaction is reduced to a minimum. Bioethicist L. Kass wrote: “...unlike people oppressed by disease or slavery, those dehumanized by the Brave New World type are not unhappy; they don't know that they are dehumanized, and worse - if they knew, they wouldn't care. These are happy slaves with slavish happiness.”[390] 390
Kass L. Toward a More Natural Science: Biology and Human Affairs. New York, Free Press, 1985. – P. 35.
[Close] J. Orwell, in his book “1984,” wrote that “freedom is the ability to say that two and two make four.”[391]391
Orwell J. 1984. – M., 1989. – P. 47.
[Close] As N. Pos rightly noted.[392]392
Quote in: Culture of the Apocalypse / Ed. A. Parfeya. – Ekaterinburg, 2005. – P. 449–450.
[Close]
As the experience of the recent past has shown, in general both writers turned out to be right, but O. Huxley’s assumptions were more justified.
Sexual freedom is a specific concept in relation to personal freedom. As S.V. Borodin notes, “sexual freedom and sexual inviolability of the individual are part of the rights and freedoms of the individual established and guaranteed by the Constitution of the Russian Federation.”[393] 393
Borodin S.V. Crimes against sexual integrity and sexual freedom of the individual // Criminal law of Russia. Special part / Ed. V. N. Kudryavtseva and A. V. Naumova. – M., Yurist, 1999. – P. 93.
[Close] Sexual freedom in legal literature is understood ambiguously. Thus, A. B. Melnichenko, M. A. Kochubey, S. N. Radachinsky define sexual freedom as “the right of a person to decide for himself in what form and with whom to satisfy his sexual needs and desires.”[394] 394
Melnichenko A. B., Kochubey M. A., Radachinsky S. N. Criminal law. A special part. Textbook. – Rostov n/D, Phoenix, 2001. – P. 79.
[Close] In our opinion, such a definition cannot be called successful, since the term “freedom”, even in a narrow legal aspect, is incomparable with the concept of “satisfaction of sexual needs” - a concept that is more biological than legal. Moreover, the concept of need contradicts the concept of freedom. P. V. Simonov defines need as “a specific (essential) force of living organisms, ensuring their connection with the external environment for self-preservation and self-development.”[395] 395
Simonov P.V. Motivated brain. – M., Nauka, 1987. – P. 43.
[Close] In the world of living beings, including humans, as shown in the studies of P. V. Simonov, there is nothing independent, free from needs; the independence of action from needs is illusory, “since action continues to be driven by a transformed, derivative need - secondary, tertiary and similar in relation to the original one.”[396] 396
Right there. – P. 46.
[Close] The manifestation of human freedom, including sexual freedom, is, first of all, conscious behavior.
V. S. Egorov defines sexual freedom as “the ability of a person to independently, regardless of external coercion, lead a sexual life.”[397]397
Egorov V.S. Special part of criminal law. A series of lectures. – M.; Voronezh, Modek, 2001. – P. 61.
[Close] N.K. Semernoeva (1997) understands sexual freedom as the right of a person to independently, without any coercion, decide with whom and in what form to satisfy his sexual interests.[398]398
Semernoeva N.K. Crimes against sexual integrity and sexual freedom of the individual // Criminal law. A special part. Textbook for universities / Ed. I. Ya. Kazachenko, Z. A. Neznamova, G. P. Novoselova. – M., 1997. – P. 121.
[Close] These definitions take the absence of coercion, i.e., external influence, as the basis for sexual freedom, but from the understanding of freedom discussed above as the totality of internal
(
mental
)
and external
(
behavioural
)
sexual freedom can be defined as the sexual behavior of an individual with the possibility of fully understanding its actual nature and social meaning, based on free expression of will without any external forms of coercion or internal factors limiting such behavior.
This formulation of sexual freedom, as determined by a complex set of factors, is universal both in relation to the perpetrator and the victim. Freedom is not only opposed to violence (the threat of violence) or any external forms of coercion, the dependent state of the victim, but is also determined by the degree of mental and moral development of the individual, his ability to understand and implement the characteristics of sexual behavior.
Thus, the generic object of the crimes provided for in Chapter 18 of the Criminal Code of the Russian Federation is social relations aimed at ensuring the right to freedom and personal integrity, enshrined in the Constitution of the Russian Federation and under the criminal legal protection of the state. The specific object of these crimes is sexual freedom and sexual integrity. The direct object of Art. 131–133 of the Criminal Code advocate sexual freedom in relation to adults and sexual integrity of persons in a helpless state, minors and minors under 16 years of age. Direct object of Art. 134 and 135 of the Criminal Code – sexual integrity and normal mental and psychosexual development of the personality of minors and minors.
Sexual crimes around the world
In almost all modern states there are frameworks that protect human sexual freedom. Of course, the legislation of each state has its own vision of the problems of the crimes mentioned. In addition, there is no general agreement among scientists from different countries about the place of socially dangerous acts of a sexual nature in criminal law and acts of this nature. For example, in countries such as Vietnam, Kazakhstan, China and Slovakia, there is no separate institution of sexual crimes. As a rule, such acts are included in the sections where attacks on the person are established. This factor plays a fairly significant role. After all, the existence of a separate section on sexual crimes indicates the presence of an effective legal mechanism for preventing and suppressing such phenomena. In other words, identifying socially dangerous acts in this industry makes it possible to more fully control them and bring to justice those responsible for their commission.
However, in some countries there is a big problem with the development of legal protection for crimes of a sexual nature. For example, in Turkey, or more precisely, in the criminal legislation of this power, the concept of “sexual freedom” still does not exist. Because many people, influenced by conservative tendencies, equate this legal term with promiscuity. That is, for the population of Turkey, an attack on sexual freedom is unthinkable, since it is initially something negative. There is no such pronounced conservatism in the legislation of European countries. Therefore, crimes against sexual freedom in most cases are classified equally. For example, according to the generic object, a special part of the criminal legislation contains a separate section of the mentioned socially dangerous acts in countries such as Spain, Denmark, Italy, Greece, Poland, Ukraine, etc.
Thus, we examined the concept of sexual integrity, as well as the features of crimes that encroach on the presented object. It should be noted that this kind of dangerous acts cause great harm not only to specific people, but also to the moral foundations of society. Therefore, the effectiveness of the legal regime for applying responsibility to persons who have committed sexual crimes must be monitored and modernized everywhere.
Forensic characteristics
When determining the penalty for a crime of a sexual nature, the judge must take into account the following factors:
- behavior of the attacker and the victim;
- mental, physical, mental state of the victim;
- the lifestyle of the victim;
- circumstances of the crime;
- whether the victim knew the offender before the incident;
- whether the victim resisted;
- whether the rapist had a weapon;
- whether the attacker tried to put the victim into a helpless state.
When determining the subjective side of a crime, it is necessary to take into account the following:
- whether the offender has committed similar acts in the past;
- what events led to the commission of the crime;
- whether the attacker tried to avoid punishment;
- physical and mental state of the offender and the victim;
- whether the attacker was aware that he was committing violent acts;
- how the crime was carried out.
