Helpless state of the victim in criminal law, concept, cases from judicial practice

A crime that was committed with aggravating circumstances will be punished more severely - often, according to the maximum possible sanction of the article. One of these circumstances is the helpless state of the victim, which is indicated in Article 63 of the Criminal Code of the Russian Federation.

By the helpless state of the victim we mean a state in which she could not fight back the criminal, call for help or avoid negative influence in any other way.

The categories of persons who, at the time of the commission of a crime against them, include:

• having physiological helplessness - congenital pathologies, current poor health, disability;
• having a psychiatric disorder - at the time of the commission of an unlawful act against them, they may simply not understand what is happening, what consequences it may have for them;
• persons who are heavily intoxicated with alcohol or drugs;
• in a state of helplessness due to shock or severe fear. For example, a girl was attacked by a rapist. She, frightened, simply lost consciousness, which the criminal took advantage of - he committed his heinous crime while the victim was unconscious.

What is the helpless human state?

A helpless state is a state in which a person, due to certain circumstances, was unable to resist the criminal or he did not understand the consequences of the attacker’s actions.

The category of persons who may be in a helpless state when a crime is committed against them includes:

• physiological helplessness (children, minors, and old people often cannot stand up for themselves or prevent crime);
• persons with existing mental disorders;
• persons under the influence of alcohol;
• persons who are in a helpless state due to severe fright and emotional shock. For example, a girl was attacked by a rapist. She was so afraid of what he could do to her that she lost consciousness. The rapist took advantage of this opportunity and raped her while she was unconscious.

Factors of helplessness

There are several factors that influence the ability to maintain resistance, including level of mental development and emotional state.

The level of mental development is that insufficient intellectual and personal development of the victim can lead to a violation of understanding at various levels.

If a low level of mental development is manifested due to natural age-related immaturity (primarily, this includes minor victims under the age of 9-10 years), then only an understanding of the external side of a legally significant event can be stated. In this case, there is no awareness of biological and social meaning.

Rape while the victim is helpless

Rape of a victim who was in a helpless state is regulated by Article 131 of the Criminal Code of the Russian Federation. The penalty in this case, since there is an aggravating circumstance, will be imprisonment for a term of 3 to 6 years.

But there is one nuance here. If the object of the crime is a girl under the age of 11-12, then there will certainly be an aggravating circumstance, since due to her age she may not even understand what is happening to her. A teenager aged 14-18 already knows well what threatens him, so it will be possible to talk about helplessness only if there are other objective or subjective reasons.

The same is true with alcohol intoxication. Such an aggravating circumstance will still need to be proven in court. The court may recognize it as such if the degree of intoxication was already such that the victim could not even understand what was happening to her.

Categories of helpless persons

A helpless state is a state in which a person, due to certain circumstances, was unable to resist the criminal or he did not understand the consequences of the attacker’s actions.

The category of persons who may be in a helpless state when a crime is committed against them includes:

• physiological helplessness (children, minors, and old people often cannot stand up for themselves or prevent crime);
• persons with existing mental disorders;
• persons under the influence of alcohol;
• persons who are in a helpless state due to severe fright and emotional shock. For example, a girl was attacked by a rapist. She was so afraid of what he could do to her that she lost consciousness. The rapist took advantage of this opportunity and raped her while she was unconscious.

Minor age

Determining the age at which a victim can be recognized as helpless is a fairly common topic for discussion among representatives of science and law enforcement. ktiki.

Study of criminal cases of private and private-public accusations initiated on the basis of Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, according to which a preliminary investigation was carried out in the Bryansk, Kalyga and Moscow regions, showed that in 89% of cases the victims under them were precisely imperfect noletnye.

For the purposes of criminal procedure law, in defining a minor as helpless, not only his ability to resist at the time of committing is relevant crimes, but also the opportunity to protect one’s rights and legitimate interests, and in criminal cases, private prosecution and his ability to act as a private prosecutor .

On the problem of determining the age of the victim as a circumstance determining his helplessness, various opinions were expressed.

As stated above, Russian criminal law treated children under 7 years of age as helpless victims, as well as minors over 7 years of age, but not yet reaching the same age as where they can earn food for themselves on their own.

The Commentary to the Criminal Code of the Russian Federation notes that minors should be understood as minors who have not reached the age of 144. "A. Simonenko, I. Kuznetsova draw attention to the fact that the status of a minor is determined precisely by its qualitative character: a person does not have legal subjectivity, a minor in age often results in a person's helpless state; it cannot independently exercise its right to protection from crime. A similar point of view is shared by O.C. Kapinys and V.N. Dodonov. The authors point out that a special type of helpless state of the victim is his young age”5.

A study of criminal cases about crimes against sexual inviolability and sexual freedom of minors, conducted by EB Topilskaya, showed that it is negative Children understand the actions committed against them by a criminal, starting, as a rule, from the age of four, and those under 4 years of age treat this indifferently, especially if the offender is an acquaintance or relative, that is, if they are not frightened by the very fact of a stranger communicating with them, and if they are not hurt. This suggests that until the age of four, children do not have life experience and knowledge sufficient to understand that they are being treated badly, because in their eyes the author The adult’s input is the key to the legality of his action. Older children are already able to differentiate the actions performed on them into right and wrong, although they still do not fully understand the nature and meaning of these actions, that is, to a certain extent. of a certain age limit, characterized by a certain level of physical and intellectual development, are in a helpless state6.

The absolute majority of the investigators and interrogators interviewed believe that in the event that a private or private-public accusation is committed against persons of an adult person, for application of Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, his age should be limited to 14 years. At the same time, according to the results of a survey of specialists in the field of criminal procedure law, the absolute majority of them noted 18 years of age, decree on the individual capabilities of each person.

L. Lobanova and D. Davdyan rightly note that in favor of the conclusion that persons under 14 years of age are recognized as minors in criminal law construction. First of all, historical traditions should be named. V. B. Khatyev also pointed out this: “At the criminal legal level, for the first time, the issue of the age threshold of the victim’s minority was transferred to the legislative framework ovy resolution of the Presidium of the Supreme Council of the CCCP dated 04/28/1980 “On the procedure for applying Article 1 of the Decree of the Presidium of the Supreme Council of the CCCP dated 15.02. 1962 “On strengthening criminal liability for rape,” which explained that a child should be understood as a girl under the age of 14 " Secondly, civil law associates the concept of “minor” with a person not reaching the age of 14 years7.

At the same time, if we return to the study conducted by EB Topilskaya, it can be noted that forensic investigative practice, which puts a sign of equality between When the victim reached the age of 14 and found him in a helpless state, the wrong path was not chosen. This practice contradicts not only the governing principles, but also common sense. The vast majority of criminal cases of rape are replete with cases where girls under 14 years of age, fully understanding the nature and significance of the actions taken against them, render such treatment to their rapists intense resistance, which an adult woman is not always capable of. At the same time, there are cases when a fully mature 17-year-old girl cannot answer the criminal8.

Of course, the life and health of children require special protection because this category of persons is more vulnerable. However, from our point of view, the question of whether the victim is in a helpless state should be considered in each case individually in relation to each person who has not reached o 18 years of age, and not just speculatively, taking into account the data of the study (mandatory in this cases) of preliminary verification, evidence of the personality of a minor, the conditions of his upbringing, state of health, general development, which can be obtained not only as a result of a psychological examination, which is impossible to carry out during the inspection period, but also during conversations with relatives, classmates, friends, teachers, treating doctors of the victim, on the basis of medical certificates, performance at school, etc. Indeed, not every person who has not reached the age of majority cannot You can exercise your rights yourself.

In accordance with Part 2 of Art. 21 of the Civil Code of the Russian Federation, minors who have entered into marriage are considered fully capable, including in the event of divorce (except for cases of recognition of the marriage as invalid).

Article 27 of the Civil Code of the Russian Federation allows a person who has reached the age of 16 to be considered fully capable if he works under an employment agreement, including under a contract, or by agreement and parents, adoptive parents or guardians are engaged in entrepreneurial activities (emancipation of minors)9. Such persons can fully independently exercise their rights not only within the framework of civil legal relations, but also within the framework of criminal proceedings.

Plenum of the Supreme Court of the Russian Federation in paragraph 21 of the resolution of June 29, 2010 No. 17 “On the practice of application by courts of the norms regulating the participation of the victim in criminal proceedings” hall, that if the owner of the stolen, destroyed or damaged property is a minor between the ages of fourteen and eighteen years or a minor summer who have entered into marriage or have been declared fully capable, such persons can be recognized as civil plaintiffs, since by virtue of Parts 2 and 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation, they have the right to personally defend their rights, freedoms and legitimate interests in court. In addition, Art. 20 of the Criminal Code of the Russian Federation connects the onset of criminal liability with the person reaching the age of 16, and for committing the crimes specified in Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, criminal liability begins at the age of 14. Therefore, it can be recognized that if such a person already bears criminal liability, then he should have the right to independent realization of both material assets and obligations as a victim and to have the full procedural status of a victim.

State of pregnancy

In the Criminal Code of the Russian Federation, in addition to references to helplessness and defenselessness, such a victim of crime as a pregnant woman is included in a separate category.

At the same time, a special part of the Criminal Code of the Russian Federation distinguished between the concepts of helplessness and pregnancy (this can be traced to the example of Article 105 of the Criminal Code of the Russian Federation, where paragraph “c” of Part 2 provides for the murder of a child him or another person, obviously for the culprit to be in a helpless state, and p. d" separately provides for the murder of a woman who is known to be pregnant for the perpetrator). On the other hand, the General Part of the Criminal Code of the Russian Federation has combined these conditions of victims into one rule, namely, the above-mentioned paragraph “h” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation, which provides that the commission of a crime against a woman is known to the offender who is pregnant, as well as against minors o, another defenseless or helpless person or a person who is dependent on the perpetrator is an aggravating circumstance. This allows us to conclude that a woman’s pregnancy can be attributed to a condition that determines the helplessness of such a woman as a victim of a complete crime.

According to medical criteria, pregnancy for a woman is a normal physiological process. However, during pregnancy, a woman’s body becomes more vulnerable and sensitive. Pregnancy is accompanied by enormous physical and emotional changes in the body of the expectant mother. Their essence is expressed in a significant increase in body weight, especially with an increase in pregnancy.

Even during a normal pregnancy, the demands on the work of the heart and blood vessels increase significantly. These changes are characterized by an increase in blood pressure, an increase in heart rate and a physiological increase in heart size. A whole series of changes are observed in pregnant women on the nervous system side. The legislator also agrees with the fact that a woman during pregnancy is in a different state from her usual state, highlighting the commission of a crime by a woman in a pregnant state. periodically as a mitigating circumstance (clause “c” of Part 1 of Article 61 of the Criminal Code of the Russian Federation). At the same time, many authors, without disputing the need for the existence of such a circumstance as a mitigating one, express different points of view only regarding the grounds for relating the condition pregnancy to mitigating circumstances. Most of these authors associate the recognition of pregnancy as a mitigating circumstance with the psychophysiological or psychophysical characteristics of pregnant women14.

In other words, during pregnancy a woman becomes more vulnerable and helpless, especially in the later stages. This is expressed in physiological changes occurring in the body, which do not allow her to provide adequate resistance to the criminal, as well as in emotional changes: a woman experiences t increased responsibility for the state of one’s health, because its correct behavior is influenced by both internal state and external influences, – the key to the successful completion of pregnancy and the birth of a healthy child.

It is worth noting that from the point of view of criminal law, pregnancy of a woman - a victim of crime is considered as a circumstance, aggravating punishment, or affects the qualification of crimes a completed crime, only if the perpetrator knew at the time of committing the crime that the victim was pregnant. The attacker’s awareness of the victim’s pregnancy and knowledge of such knowledge are mandatory conditions for the application of paragraph “h” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation. This knowledge can be evidenced by the presence of external signs of pregnancy or other factual data.

In our opinion, for criminal procedural law, the criminal’s awareness of the victim’s pregnancy does not have a decisive role, since here the highest priority the victim’s ability or inability to independently protect her rights and legitimate interests, as a participant in criminal proceedings, diminishes.

Some procedural scientists agree that a woman’s pregnancy is a state of insecurity. For example, according to AB Brilliantov, the concept of a defenseless person is mainly associated with age (elderly, young) and physiological condition (pregnancy, illness )15. This fact is also confirmed by the opinion of practitioners based on the results of a survey of investigators and interrogators conducted by the author.

As we have already noted earlier, during pregnancy a woman is primarily concerned about the state of her health and the health of the fetus. Due to fear of pressure on her from the side of the criminal, causing inconvenience to the child who has not yet given birth, and the possible inability to act as a private prosecutor in the case, the victim may not initiate criminal prosecution, which does not at all indicate her reluctance to bring the guilty person to criminal responsibility.

Thus, a woman’s pregnancy can determine her helplessness not only in the material, but also in the process aspect. The special helpless state of a woman, in the event of a crime being committed against her, requires, in our opinion, additional protection and a somewhat different type of criminal treatment production

Old age

The victim’s inability to understand the nature and significance of the guilty actions committed, the inability to resist and independently protect their rights and legitimate interests in the or age in most cases is considered in connection with failure to achieve any age barrier. However, these same signs are typical for people of advanced age or old people.

97% of the surveyed investigators, interrogators, as well as specialists in the field of criminal procedure law considered old age to be a determining factor We are in the helpless state of a crime victim.

In Russian dictionaries, the concepts of “elderly” or “old”10 are given the following definition - having lived to a ripe old age.

By old age, G. K. Pakhimzhanova understands decrepitude associated with a significant weakening of physical strength11.

In theory and practice, old age is traditionally associated with retirement.

In Russia, the pension threshold is 55 years for women and 60 years for men; the government is discussing the issue of increasing it12.

It should also be taken into account that for certain categories of persons the retirement age is slightly reduced. So, according to Art. 10 of the Federal Law of December 15, 2001 No. 166-F3 “On state pension provision in the Russian Federation” citizens who suffered as a result of radiation or other exogenous disasters may result in early retirement.

The maximum amount of actual reduction in the age of retirement is 10 years. This means that the retirement age for citizens who suffered as a result of the disaster at the Chernobyl nuclear power plant is 50 years for men and 45 for women.

In addition, there is a retirement option that is not related to reaching a certain age, but depends on years of service in some institutions (for example, the Ministry of Education , Ministry of Internal Affairs).

In most cases, at this age, people are quite active and capable, therefore, in our opinion, we should be guided by retirement age when determining helplessness , is inappropriate, and “old age” should be associated with more advanced age.

According to Art. 11 of the above Federal Law, permanent residents of the Russian Federation who have reached the age of 65 and 60 years (men, respectively) have the right to a social pension and women).

In order to strengthen the social security of disabled citizens, the Decree of the President of the Russian Federation dated December 26, 2006 No. 1455 established monthly compensation payments in the amount of 500 pyb. from 01.01.2007 to non-working persons who provide care for the elderly, who need permanent care after the conclusion of a medical institution, or who have reached the age a 80 years old.

In our opinion, the specified 80-year-old age should be the starting point in determining helplessness. However, taking into account the personal characteristics of the victim, its reduction is permissible, but not less than 65 years for men and up to 60 for women.

So, quite reasonably, on November 17, 2009, criminal case No. 1-25/2010 was opened against B., with the consent of the prosecutor, an inquiry was conducted, and then the case was sent to the d with an indictment for committing a crime under Part 1 of Art. 116 of the Criminal Code of the Russian Federation, in relation to N., born in 1933, who is also a group II disabled person.

Illiteracy and speech disorders

Another basis for recognizing a person as helpless is his illiteracy or the presence of serious speech disorders. However, such a person is recognized as helpless not at the moment of committing a crime against him, since, for example, being completely physically developed and sane, he can provide assistance obvious resistance, and then later, when the need arises to write a statement, reproduce what is happening, communicate with others participants in criminal proceedings, present evidence and participate in their study. Surely law enforcement agencies need to come to the aid of such a person.

It would seem that in the 21st century there should not be illiterate people. However, these still exist today.

Literacy is expressed in the degree to which a person has mastery of writing and reading skills in his native language.

Traditionally, the word “literate” means a person who can read and write or only read in any language. People who can only read are also called “semi-literate.” In statistics, literacy is understood as a person’s ability to read, understand and write short, simple text relating to his daily life.

We consider illiteracy in the traditional sense, when a person does not know how to read and write or only read in any language.

In the practice of the author of this article, there were cases when participants in criminal proceedings turned out to be illiterate people. As a rule, these were teenagers or the elderly, but there were also middle-aged people who, due to a number of circumstances, had not received any education. This is often found in Roma families living mainly in rural areas, where primary education is not considered a vital necessity, and also in many cases poor or disadvantaged families. A person’s lack of writing and reading skills has always made it difficult to conduct a preliminary investigation.

As we see it, serious speech disorders can also be identified as a factor influencing a person’s mental activity and, as a result, criminality. procedural capacity.

Speech is an exclusively human function, which is, on the one hand, a tool of thinking, intellectual activity, and on the other, a means of communication. In case of speech disorders, the possibility of using the rights provided to the victim to the required extent is limited.

In medicine, there are two groups of speech disorders: stuttering and speech disorders that arise from various diseases that affect the human brain - dysarthria and aphasia16.

Severe stuttering makes the victim helpless in the face of the circumstances that he will have to face in the process of criminal proceedings. And in cases of private prosecution, it actually excludes the possibility of acting as a private prosecutor, presenting evidence, participating in their research, and expressing one’s opinion on the merits of the accusation, file and maintain a civil claim, etc.

Speech disorders associated with damage to the human brain arise due to previous diseases (atherosclerosis, hypertension, headache brain), due to injuries sustained during wounds. At the same time, there are disturbances in the pronunciation of articulate speech, the correct selection of words and their constituent speech sounds. There may be a disorder in reading and writing, understanding the speaker’s speech. General thinking is not disturbed - patients understand their surroundings well and orient themselves correctly in it17.

Let us note that if muteness is to some extent compensated by the participation of an interpreter, then a person with the specified speech disorders, for obvious reasons, cannot use it services.

In criminal cases of private and private-public accusations, where the victim is a person suffering from speech disorders, preliminary investigations are required ania. In addition, as we imagine, when carrying out investigative actions with such a victim, the participation of a psychologist, neuropathologist or neuropsychologist is necessary .

Approaches to determining the state of helplessness

Researchers consider a helpless state to be such a physical or mental state of victims, upon the occurrence of which they are not able to understand the nature and meaning of the actions performed on them. In such a state, they cannot always properly resist the criminal.

Some researchers attribute the mental helplessness of victims only to painful changes in consciousness or conditions that are caused by an insufficient level of mental development.

Adherents of the other position believe that the inability of victims to understand the nature and role of the actions committed against them and their inability to provide appropriate resistance must be interpreted more broadly. Here it is important to point out not only mental helplessness, which manifests itself as a result of an unconscious state or the inability to understand the nature and role of the actions being performed, but also helplessness that arises due to fear, emotional shock, deception, etc.

Researchers who follow the second approach recognize the need to highlight formal requirements. They must correspond to methods of coercion, and physical violence must be harsh and intense, the threat must be direct and specific.

Different opinions regarding the content of the category “helpless state”, as well as the possibility of its double interpretation, often cause difficulties in law enforcement practice.

Thus, an analysis of archival materials was carried out, with the help of which significant problems were identified in the field of court decision-making in cases of rape. In particular, this applies to cases in which minor victims were forced into sexual contact using relatively mild pressure. Judges, when handing down guilty verdicts in such cases, most often did not mention the details of the crimes.

A closer study of these cases showed that the courts were forced to resort to such subterfuges due to a vague understanding of the content of the legal category “helpless state.”

Practitioners proceed from a narrower concept of mental helplessness, which is interpreted as a state of clearly expressed impairment of consciousness. They did not dare to include in this group those victims whose will to resist was suppressed by relatively mild measures of influence.

In these situations, the sense of justice did not allow the guardians of the law to consider the absence of harm in the actions of the criminal. They understood that the person was forced into sexual intercourse against his will and had virtually no psychological ability to resist. At the same time, it was impossible to justify one’s position and intuitive assessments.

Helpless state in criminal law

Thus, from the point of view of the etymology of the concept of “helpless state,” it can be defined as a position of a person in which, due to some circumstances, he cannot defend himself at the time of an attack on his life. The disposition of the law speaks of murder, it can be assumed that in relation to the corpus delicti provided for in Art. 105 of the Criminal Code of the Russian Federation, a helpless state is a position of a person in which, due to some circumstances, he cannot defend himself at the time of an attack on his life. I believe that a helpless state can be permanent or temporary, depending on the circumstances that caused it. For example, a serious illness causes a helpless state for the duration of the illness, and disability – possibly for the rest of one’s life. This should not affect the recognition of the presence of a state of helplessness at the time of causing the death of the victim. Also, the qualifications of the offense should not be influenced by the circumstances due to which the victim found himself in a helpless state. The culprit himself can bring the victim into a helpless state for the purpose of further murder or take advantage of circumstances that have arisen against his will. For the law, it should be indifferent to what reasons the victim found himself in a helpless state, the main thing is that the perpetrator, when committing the murder, deliberately took advantage of his helpless state.

Killing a helpless person

Responsibility for taking the life of another person is provided for in Article 105 of the Criminal Code of the Russian Federation “Murder”. The sanction of the article provides for punishment in the form of imprisonment for a term of 6 to 15 years. However, the punishment can be much more severe.

Thus, paragraph 2 “c” states that if a criminal committed a murder against a person who was in a helpless state (for example, a young child, a person whose arms and legs were bandaged, so he could not provide any resistance to the killer), then he faces one of the following punishments:

• imprisonment for a term of 8 to 20 years with restriction of freedom for a period of 1-2 years;
• life imprisonment.

Helpless state during rape

The Criminal Code has Article 131, which regulates the responsibility of a rapist.

Thus, paragraph 1 of this mentioned article states that rape using the helpless state of the victim entails the following punishment for the perpetrator:

• imprisonment for a period of 3-6 years.

A woman or girl is considered helpless during rape if, due to her physical or mental condition, she could not resist the perpetrator.

For example, an 11-year-old girl did not understand what was happening at all, did not know what they were doing to her, why they were undressing her. Or, for example, a girl suffering from cerebral palsy, due to her body characteristics, could not fight back the rapist.

If we are talking about teenagers aged 14-18 years, then there is no need to talk about a helpless state (if the victim does not have any physical or mental problems).

At the age of 14, girls already understand what sexual violence is, so they are not classified as a helpless person. For rape of minors aged 14 to 18 years, another liability is provided under the same 131 article of the Criminal Code of the Russian Federation.

If violent acts of a sexual nature were committed against a woman who was intoxicated, then such a state may not always be regarded by the judge as helpless.

A helpless state can only be recognized as the degree of intoxication of the victim in which the woman has already lost all ability to understand the meaning of what is happening or she can no longer resist the rapist.

Circumstances of helplessness

According to criminal law, a group of objective and subjective circumstances of the victim’s helplessness is distinguished:

• objective states are external reasons that the victim was in a helpless state. For example, she is in a state of shock, loss of consciousness from fright, severe alcohol or drug intoxication, she is tied, suspended, and so on;
• subjective states - due to the characteristics of the body or the age of the victim. For example, the presence of physiological defects, psychiatric disorders, young or old age.

Let's give an example. The victim had congenital cerebral palsy and used a wheelchair. The criminal inflicted grievous bodily harm on her and robbed her. In this situation, the victim understands what is happening to him, what the consequences will be, but cannot fight back the criminal due to the characteristics of his body. There are subjective circumstances here.

The second case: a woman, heavily intoxicated to the point of unconsciousness, was raped by her neighbor, with whom she had been drinking together that evening. There will be objective reasons here, since the victim’s helpless state is not caused by internal factors. But, in this case, the fact of the victim’s helplessness will need to be proven in court.

Murder

The murder of a person who was in a helpless state will be qualified under the same Article 105 of the Criminal Code of the Russian Federation, but with an aggravating circumstance. In this case, the punishment will be much more severe:

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• imprisonment for a term of 8 to 20 years with additional restriction of freedom for up to 2 years;
• life imprisonment.

For comparison: for “simple” murder, imprisonment is implied for a term of 6 to 15 years.

CRIMINAL LEGAL CRITERIA FOR ASSESSING THE HELPLESS STATE OF A VICTIM

Published in 2015, Issue July 2015, LAW | No comments yet

Shikula I.R.

Candidate of Legal Sciences, Associate Professor, Moscow Financial and Industrial University "Synergy"

CRIMINAL LEGAL CRITERIA FOR ASSESSING THE HELPLESS STATE OF A VICTIM

annotation

The article reveals the concept of the helpless state of the victim, analyzes the features of the criminal legal assessment of the helpless state of the victim

Key words: victim; crime; helplessness; victimization; qualification.

Shikula IR

Candidate of legal Sciences, associate Professor, Moscow financial-industrial University “Synergy”

CRIMINAL LAW EVALUATION CRITERIA RESPOSNIVE STATE OF THE VICTIM

Abstract

The article reveals the notion of the helpless state of the victim, analyzes the characteristics of criminal-legal assessment of a helpless condition of the victim

Keywords: the victim; crime; helplessness; victimization; qualification.

Due to the high crime rate in the country, the need for comprehensive protection of the rights and interests of victims is becoming more urgent.

In accordance with the data of the GIAC of the Ministry of Internal Affairs of Russia in 2014, more than 1.5 million Russians were recognized as victims of crimes, more than 70 thousand people went missing, material damage caused to victims amounted to about 550 billion rubles, which indicates a complex criminogenic situation, the presence of an alarming trend in Russian society, which is expressed in a high level of cruelty and human vulnerability from criminal violence [1].

Ensuring effective protection of the entire range of rights of crime victims is an important task of the state. Guarantees of the rights of victims must be unshakable, especially in cases where, due to their helplessness, they cannot independently exercise their rights and legal obligations. These are the most socially vulnerable citizens, which include persons suffering from physical or mental disabilities, any physical diseases, as well as minors and the elderly.

In the context of a falling standard of living in the country, cases of criminal disposal of helpless family members and criminal seizure of the property of helpless persons have become more frequent. The concept of helplessness of the victim has long gone beyond the scope of a certain element in the context of individual crimes, has acquired a global character, and affects not only substantive, but also procedural law. Despite the fact that the protection of the rights and freedoms of victims is one of the main supporting structures of the rule of law, many mechanisms that ensure effective protection of the rights of helpless victims operate unsatisfactorily, which justifiably gives rise to a feeling of hopelessness and distrust in law enforcement agencies among the latter. In addition, many provisions of criminal and criminal procedural legislation related to the protection of crime victims are declarative in nature and are not applied in practice.

In legal science, there is no clear and unambiguous concept of “the helpless state of the victim”, which has criminal legal and criminological significance, and the criteria for its assessment have not been defined.

Thus, in the Law of the Russian Federation of July 2, 1992 N 3185-1 (as amended on October 14, 2014) “On psychiatric care and guarantees of the rights of citizens during its provision,” the helpless state of the victim is interpreted as the inability of a person to independently satisfy basic life needs.

The current criminal legislation also does not define the concepts of “helpless person” and “person in a helpless state.” Therefore, it is not without interest to turn to the legislative experience of foreign countries, the criminal codes of which contain definitions of the relevant terms. So, in Art. 368 aleph of the Israeli Criminal Law, “helpless” is understood as “one who, due to his age, illness, physical or spiritual limitation, mental defect or any other reason, is unable to take care of his vital needs, his health or well-being." [2, p. 316]

In our opinion, establishing increased responsibility for an attack on the life of a person who is unable to take care of his vital needs, his health or his well-being is quite logical from a moral and institutional perspective.

The helpless state of a person, in whatever form it manifests itself (loss of consciousness during a diabetic coma, due to an attack of angina, epileptic seizure, etc.) or a fainting state (due to stress, heat stroke, etc.), and regardless from what provoked its occurrence and what period of time it lasted, completely deprives a person of the opportunity to express his will, and even more so to take measures for self-preservation, if during this period of time an encroachment of a criminal nature occurs. A person can regain consciousness on his own, but, as everyday (including everyday) practice testifies, most often a person who, due to some circumstances, has fallen into an unconscious state requires outside help, which alone can bring him out of this dangerous situation for him. a condition that is dangerous both in the sense of the possible occurrence of a natural death under these conditions, and from the point of view of the deliberate deprivation of his life. In this regard, the murder of a person who is known to be unconscious by the perpetrator is, as a rule, regarded as a murder committed against a helpless person. At the same time, in a review of judicial practice dated December 14, 2011[3], the Supreme Court explained that the loss of consciousness of a crime victim cannot be regarded as a helpless state. An example is given of a case in which a man killed a woman who was unconscious as a result of beatings. The judge who passed the verdict in this case qualified the killer’s actions under paragraph “c” of the second part of Article 105 of the Criminal Code of the Russian Federation, which determines that the person who was killed was in a helpless state for the perpetrator, considering that loss of consciousness is a helpless state. However, the Supreme Court expressed its point of view on this case: this paragraph of the article can be applied to the murders of persons who are unable to defend themselves and resist the criminal due to their physical or mental condition. Such victims include the elderly and seriously ill, children, and people with mental disorders. The panel of judges did not find in the case under consideration any signs of a crime under the article of knowingly helpless victim imputed to the killer and reclassified the actions of the criminal as murder on the basis of personal hostility.

In addition, in judicial practice a paradoxical situation has arisen in which the same sign - the helpless state of a person - has different interpretations in relation to various crimes, in particular murder and rape, therefore the state of sleep and severe alcohol intoxication during rape is recognized as a helpless state, and in case of murder - no [4, p. 41].

However, the reason for such a danger is not rooted, in our opinion, in the erroneous interpretation of the term “person in a helpless state” used in paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, in the mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation, and in the unlawful use of the corresponding term to describe the method of rape or violent acts of a sexual nature, because in this case, what is important is not how capable the victims are of independently satisfying their primary needs, but the fact that they do not have free will or freedom of expression.

Thus, the Presidium of the Supreme Court of the Russian Federation correctly, in our opinion, considered that the court erroneously recognized Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the use by the perpetrator of the helpless state of the victim. It was established that the convict, wanting the death of the victim, began to strangle her with his hands, and after she lost consciousness, he stabbed her several times in the heart. The Presidium of the Supreme Court of the Russian Federation reclassified the actions of the convicted person from paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on Part 1 of Art. 105 of the Criminal Code of the Russian Federation on the basis that the victim was brought to a helpless state by the perpetrator in the process of taking her life [5, p. 7].

It is quite reasonable, in our opinion, that in the theory of criminal law, a strong degree of intoxication (alcohol, drugs, toxic, etc.) is equated to the helpless state of a person, as a result of which he is unable to perceive a threat to his life or health (in case of murder - only life) danger, and therefore cannot independently avert this danger from himself. In our opinion, this understanding is quite justified, because when intoxicated, a person is in an unconscious state for a certain period of time (sometimes significant), he is just as defenseless as a person suffering from a mental disorder.

As one can see, the opinions of scientists and practitioners differ regarding both the types of manifestations of helplessness and the definition of the concept of “helpless state,” which requires taking into account the psychological, medical, demographic, legal and criminal content of this category.

The helpless state of the victim, in our opinion, should be considered as a physical, mental or psychophysiological state of a person in which he is deprived of the ability to take measures necessary for self-preservation at the time of a criminal attack on his life, which is due to a serious illness, mental disorder, age, mental underdevelopment or unconsciousness, other external factors.

In addition, specific recommendations on the classification of crimes committed against helpless victims, which can provide significant assistance to law enforcement officers in the investigation of this category of cases, are not fully developed at the legislative level, the poorly studied psychological characteristics of helpless victims, the mechanisms of influence of various sensory and mental defects on the behavior of the victim, the peculiarities of the victimization of helpless victims as a criminogenic factor influencing the increase in the degree of public danger of criminal attacks, actualize the need to improve the theoretical, legal and organizational foundations for the protection of the rights, freedoms and legitimate interests of helpless victims of criminal attacks.

Literature

1. Electronic resource: www.mvd.ru. URL: https://mvd.ru/request_main (access date: 03/26/2015)
2. Israeli Criminal Law / Ed. N.I. Matsneva. St. Petersburg: Legal Center Press, 2005. P. 316.
3. Electronic resource: www.vsrf.ru/ URL: https: // vsrf.ru / request_main (date of access: 03/26/2015)
4. Saleva N.N. The problem of taking into account the helpless state of the victim when qualifying the associated murder provided for in paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation // Criminal law. – 2006. – N 9. – P. 41.; Veselov, E.G. Physical or mental coercion as a circumstance excluding the criminality of an act: dis. ...cand. legal Sciences: 12.00.08 / Veselov Evgeniy Gennadevich. – Krasnodar, 2002. – 195 p.
5. Bulletin of the Supreme Court of the Russian Federation. – 2000. – N 1. – P. 7.

References

1. Jelektronnyj resources: www.mvd.ru. URL: https://mvd.ru/request_main (data obrashhenija: 03/26/2015)
2. Zakon ob ugolovnom prave Izrailja / Pod red. NI Macneva. SPb.: Juridicheskij centr Press, 2005. S. 316.
3. Jelektronnyj resurs: www.vsrf.ru/ URL: https: // vsrf.ru / request_main (data obrashhenija: 03.26.2015)
4. Saleva NN Problema ucheta bespomoshhnogo sostojanija poterpevshego pri kvalifikacii soprjazhennogo ubijstva, predusmotrennogo p. “k” ch. 2 st. 105 UK RF // Ugolovnoe pravo. – 2006. – N 9. – S. 41.; Veselov, EG Fizicheskoe ili psihicheskoe prinuzhdenie kak obstojatel'stvo, iskljuchajushhee prestupnost' dejanija: dis. ... kand. jurid. nauk: 12.00.08 / Veselov Evgenij Gennad'evich. – Krasnodar, 2002. – 195 s.
5. Bjulleten' Verhovnogo Suda RF. – 2000. – N 1. – S. 7.

Helpless state as a method of committing murder

Bibliographic description:

Muzaev, M. R. Helpless state as a method of committing murder / M. R. Muzaev. — Text: direct // Legal sciences: problems and prospects: materials of the IV International. scientific conf. (Kazan, May 2021). — Kazan: Buk, 2021. — pp. 237-239. — URL: https://moluch.ru/conf/law/archive/181/10389/ (access date: 12/21/2021).


The article is devoted to the problem of qualifying a crime using the helpless state of the victim. The question is raised as to what category of persons we can classify as victims, who are obviously in a helpless state for the perpetrator.

Key words: helpless state, murder.

At all times, murder was considered the most dangerous crime against a person. It remains so today, since the object of its influence is human life. An alarming phenomenon can be called the deliberate selection of victims who have signs of physical or mental limitations. It is alarming that the quantitative increase in crime, directing its criminal edge towards people in a helpless state, creates social tension in society that is dangerous in its consequences. Criminal organizations emerge that specialize exclusively in killing the elderly and other infirm people in order to seize property. Also in practice, problems arise related to the qualification of crimes committed against a person who is known to be in a helpless state by the perpetrator. This is due to the fact that the helpless state belongs to the category of evaluative signs, and in the Resolution of the Plenum of the Supreme Court of January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)” did not receive an unambiguous interpretation. The issue of qualifying the infliction of death on a person who has fallen into a helpless state as a result of the actions of the perpetrator also turned out to be difficult for the law enforcement officer.

In the doctrine of criminal law, there are several points of view regarding the definition of the category of persons who, at the time of their murder, can be recognized as being in a helpless state. Thus, some authors include minors, persons suffering from physical disabilities, mental disorders, other painful conditions, and, first of all, persons in an unconscious state, for example, in a state of sleep and intoxication. This position is supported by A. I. Ignatov, Yu. A. Krasikov and others. [1] N.K. Semerneva includes here victims who cannot be aware of what is happening to them due to being young, deep sleep, severe intoxication, or fainting. [2] L.V. Inogmanova-Khegai includes - seriously ill and elderly; young children; persons suffering from mental disorders; persons suffering from mental disorders; persons in a state of deep physical intoxication, under the influence of narcotic drugs or psychotropic substances, in a state of sleep deception, hypnosis, etc. [3] In paragraph 7 of the Resolution of the Plenum of the Supreme Court “On judicial practice in murder cases (Art. 105 of the Criminal Code of the Russian Federation)” On January 27, 1999, there is an explanation aimed at streamlining the application of the concept of “helpless state of the victim”: According to paragraph “c, part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder of a person known to the perpetrator to be in a helpless state) should qualify the intentional causing of death of a victim who is unable, due to a physical or mental state, to defend himself, to provide active resistance to the perpetrator, when the latter, while committing the murder, is aware of this circumstance. Other persons in a helpless state may include, in particular, seriously ill people, the elderly, and persons suffering from mental disorders that deprive them of the ability to correctly perceive what is happening. [4] Regarding the commission of a crime using hypnosis, the debate has been going on since the time of N. S. Tagantsev, who attributed the state of a hypnotized person to a temporary darkening of mental activity, a temporary unconscious state. [5] Of course, such a state prevents the victim, who is in the stage of somnambulism, from adequately perceiving the surrounding reality, as a result of which he is partially or completely unaware of the fact of the criminal attack. Hypnosis can itself become a method of murder or causing harm to health of varying degrees of severity. Defining the concept of a helpless state, the vast majority of authors who have devoted their scientific work to solving this problem reveal its content only by pointing out the categories of people who are in a helpless state: minors, the elderly, the seriously ill, people suffering from mental disorders. [6]

The jurisprudence on this issue is shaping up interestingly. At present, it cannot be argued that it is stable and consistent even in the decisions of the highest judicial panel. Thus, the Supreme Court of the Russian Federation found that the murder of a sleeping victim by striking him on the head three times with an ax was committed against a person who was known to be in a helpless state by the perpetrator. [7] In another case, the Presidium of the Supreme Court of the Russian Federation excluded from the verdict a conviction under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, recognizing that being in a state of sleep cannot be attributed to a helpless state of a person in the sense that is contained in the disposition of paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, since sleep is a vital and physiological condition of a person. [8] Thus, in the case of R.R. Khakimov, the Military Collegium of the Supreme Court of the Russian Federation indicated that the murder of a sleeping person cannot be recognized as the murder of a person in a helpless state. Khakimov R.R., in connection with the physical violence and humiliation of honor and dignity committed against him by Sergeant Klimov, decided to kill him. For this purpose, Khakimov dealt a strong blow to the sleeping Klimov with the sharp end of a metal pickaxe to the temporal region of his head, causing him harm to his health that was life-threatening at the time of infliction. The military board noted that the court, having found R.R. Khakimov guilty of murdering a person who he knew was in a helpless state, made a mistake in assessing the physical condition of the victim. According to the Supreme Collegium of the Supreme Court of the Russian Federation, such an interpretation of what happened contradicts the requirements of the law and the recommendations contained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 27, 1999 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)”, since in the said Resolution persons in a state of sleep are not referred to as being in a helpless state. Based on the above, the Military Collegium reclassified R.R. Khakimov’s actions from Part 3 of Art. 30 and paragraph “c”, part 2, art. 105 of the Russian Federation on part 3 of Art. 30 and part 1 art. 105 of the Criminal Code of the Russian Federation, and the punishment was softened. [9] Volgograd Regional Court in the case of the Fomins, convicted under paragraphs. “a” “d” “k” part of Art. 105 of the Criminal Code of the Russian Federation for the murder of his ex-wife, the Fomins, and her 8-year-old daughter, excluded from the charge the qualifying feature - the murder of a victim in a helpless state, citing the fact that at the moment of deprivation of life the victims woke up and were not in a helpless state. However, the judicial panel noted that the said court did not indicate in the verdict on what grounds it rejected the prosecution’s arguments that the 8-year-old Fomins were in a helpless state due to her young age. [10]

Possible grounds for recognizing a person as helpless are his illiteracy or the presence of serious speech disorders. However, such a person is recognized as helpless not at the moment a crime is committed against him, since, for example, being fully physically developed and sane, he can provide adequate resistance, and only later, when the need arises to write a statement, reproduce what is happening. As a rule, the illiterates are teenagers and the elderly, but there were also middle-aged people who, due to a number of circumstances, did not receive any education. This often occurs in Roma families living primarily in rural areas, where primary education is not considered a vital necessity, as well as in large or dysfunctional families. Serious speech disorders can also be identified as a factor influencing a person’s mental activity and, as a consequence, criminal procedural capacity. In medicine, there are two groups of speech disorders: stuttering and speech disorders. Severe stuttering makes the victim helpless in the face of the circumstances that he will have to face. It may be noted that judicial practice is ambiguous in a number of cases. In particular, affecting the victim’s sleep. According to the meaning of the law and common logic, a person who was in a dream is completely helpless and defenseless against the culprit at this time. There is a helpless state caused by fear and emotional shock, as a result of which the victim does not resist the perpetrator. Analysis of materials from investigative and judicial practice showed that this is typical for minors. In medicine, there are two groups of speech disorders: stuttering and speech disorders. Severe stuttering makes the victim helpless in the face of the circumstances that he will have to face.

Thus, the study of the helpless state as a method of committing murder allows us to draw the following conclusions:

1) in the science of criminal law and law enforcement practice, the concept of a victim in a helpless state is interpreted very ambiguously;

2) it is necessary to find an approach to a uniform understanding of the qualifying feature in question;

3) make additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation;

Based on the above conclusions, I propose to supplement clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” dated January 27, 1999 No. 1. The category of persons who are in a helpless state, persons who are in state of sleep or hypnosis, the presence of serious speech disorders, but only in the case when the victim cannot reproduce what is happening, a helpless state caused by fear, emotional shock, and also indicate that clause “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is subject to application if the victim was brought into a helpless state before the objective side of the murder began and if the helpless state of the victim occurred in the process of depriving him of his life, then the application of paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is excluded.

Literature:

1. Ignatov A. N., Krasikov Yu. A. Criminal law of Russia. Volume 1. General part. Moscow, 2005 P. 322
2. Semernyova N.K. “Qualification of crimes (General and Special parts): Scientific and practical manual,” ed. “Pospect” Ural State Law Academy, 2010. P. 67
3. Inogamova-Khegai L.V., Rarog A.I., Chuchaev A.I. Criminal law. General part: Textbook Second edition revised and expanded. M.: Legal 2008. P. 260
4. Resolution of the plenum of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 (as amended on April 3, 2014) “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)” // SPS Consultant Plus. (date of access: 04/11/2016)
5. Tagantsev N. S. Russian criminal law. The general part. Tula, 2001. T. 1. P. 389.
6. Doronina E. B. Helpless state of the victim in the structure of murder: theory, law, practice. Ekaterinburg 2004. P. 15
7. Review of judicial practice of the Supreme Court of the Russian Federation for the second quarter of 1997 // Bulletin of the Supreme Court of the Russian Federation. 1997. No. 12
8. Bulletin of the Supreme Court of the Russian Federation. 2000. No. 5
9. Determination of the Military Collegium of the Supreme Court of the Russian Federation No. 6–0136/99 dated February 29, 2000.
10. Bulletin of the Supreme Court of the Russian Federation 1999. No. 11.

Key terms
(automatically generated)
: helpless state, Criminal Code of the Russian Federation, judicial practice, Supreme Court of the Russian Federation, Resolution of the Plenum, person, sleep state, murder, culprit, murder of a person.

Helpless state of the victim

Other persons

Other serious consequences

Violence or the threat of its use - see also the material under Art. Art. 120, 131, 139, 203 of the Criminal Code of the Russian Federation

Particular cruelty - see also the material under Art. Art. 63, 105 of the Criminal Code of the Russian Federation

Helpless state of the victim

Scientific interpretation

The state of helplessness of the victim is a legal concept. In criminal law, a helpless state is understood as a physical or mental state of a person due to which he is deprived of the ability to independently (without the help of other persons) protect himself, his rights and legitimate interests from any danger, including crime. In Art. Art. 125, 131, 132 of the Criminal Code of the Russian Federation, the helpless state of the victim is directly provided for as a constitutive feature of these crimes, determining the situation or method of their commission, as well as as an aggravating circumstance, especially characterizing the victim of the crime (Sharapov R.D. Physical violence in criminal Law, St. Petersburg, 2001, p. 127).

The helpless state of the victim should be understood as her state when, due to objective conditions or subjective state, she cannot provide any real resistance to the rapist. The offender in this case, when committing rape, only ignores the will of the victim, but does not use either physical or mental violence against her (Dydo A.V. Rape: problems of criminal legal qualification: Dis. ... candidate of legal sciences. Vladivostok, 2006 77).

The helpless state of the victim is expressed in the inability to understand the nature and meaning of the actions performed on her or to resist the rapist. This condition can arise due to physical defects (disability), loss of consciousness, mental disorders, and also due to young age.

When assessing the circumstances of rape of a victim who was intoxicated, it is necessary to proceed from the fact that a helpless state in these cases can be recognized as such a degree of intoxication that deprives the victim of the opportunity to resist the perpetrator.

In conditions of a helpless state due to mental disorder, severe intoxication, and being a minor, the victim may not offer resistance, and outwardly the event looks like a voluntary sexual act (Commentary to the Criminal Code of the Russian Federation / Under the general editorship of V.M. Lebedev. M., 2007. P. 349 (author - A.N. Ignatov)).

Physical and mental helplessness have their own characteristics. In cases where we are talking about actions of a sexual nature using the state of physical helplessness of the victim, establishing this circumstance does not cause difficulties. This is usually either a case of illness that deprives the victim of the ability to resist, or old age, or the presence of physical disabilities such as deafness, blindness, absence of an arm, leg, etc. A state of physical helplessness can also arise in a healthy person as a result of the current situation (Poddubnaya E.V. Rape and sexual assault: criminal legal characteristics and qualifications: Dissertation ... candidate of legal sciences. M., 2008. P. 101 ).

Judicial practice often regards sexual intercourse with young girls (under 14 years of age) without the use of physical or mental violence as rape. Victims at this age, as a rule, do not reach a level of mental development that would allow them to correctly assess the nature and significance of the sexual acts performed on them. Because of this, they are actually in a helpless state. In each such case, it is necessary to carefully determine whether the victim, due to her age and development, could be aware of the nature and significance of the actions performed on her. If she understood the essence of what was happening (which is possible at the age of 12 - 14 years), there is no element of rape, and criminal liability should arise under Art. 134 of the Criminal Code (Special part of the Criminal Code of the Russian Federation. Commentary. Judicial practice. Statistics / under the general editorship of V.M. Lebedev; executive editor. A.V. Galakhov. M., 2009. P. 130 (author - E .F. Pobegailo)).

The victim's helpless state is characterized by two circumstances: 1) the victim's inability to understand the nature and significance of the actions being performed on her; 2) inability to resist the rapist. This condition can arise for a number of reasons: illness, including mental disorders; physical disabilities and childhood (Polkovnikov R.M. Criminal liability for rape: Dissertation ... candidate of legal sciences. M., 2010. P. 120).

The helpless state of the victim may also be a consequence of an illness with loss of consciousness (for example, diabetic coma, angina pectoris, epileptic seizure), fainting due to stress, heat stroke, etc.

The inability to provide physical resistance can be caused by old age, physical disabilities, illness associated with loss of motor functions (paralysis, osteochondrosis, arthrosis in acute form), etc., physical impact from the criminal or his accomplices (Commentary to the Criminal Code of the Russian Federation) Federation / Edited by A.V. Brilliantov. M., 2010. P. 490 (authors - A.V. Brilliantov, E.V. Peisikova)).

The presence of the victim in such a degree of intoxication (alcohol, drugs, etc.) that deprived her of the opportunity to resist the perpetrator can be regarded as a helpless state. In this case, it does not matter whether the woman brought herself into such a state, and the guilty person only took advantage of it, or whether the guilty person himself brought her to such a state, for example, he offered to use alcoholic beverages, drugs, toxic or other intoxicating substances, medications, provided their victim, etc.

A helpless state is excluded if the victim is conscious, understands what is happening to her, but does not resist due to the fact that her will is suppressed by the use of violence.

According to the note to Art. 131 of the Criminal Code of the Russian Federation, a victim who has not reached 12 years of age is, due to her age, in a helpless state, i.e. cannot understand the nature and significance of the actions performed on her (Commentary to the Criminal Code of the Russian Federation / Responsible editor: V.M. Lebedev. M., 2013. P. 335 - 336 (author - V.P. Stepalin)).

Judicial interpretation

Rape and violent acts of a sexual nature should be recognized as committed using the helpless state of the victim in cases where he, due to his physical or mental condition (dementia or other mental disorder, physical disabilities, other painful or unconscious condition, young or old age, etc.) .p.) could not understand the nature and significance of the actions performed on him or resist the perpetrator. At the same time, a person committing rape or violent acts of a sexual nature must be aware that the victim is in a helpless state.

When deciding whether the victim’s condition is helpless, courts should proceed from the available evidence in the case, including the relevant expert opinion, when a forensic examination is necessary to establish the mental or physical state of the victim (victim).

When assessing the circumstances of rape, as well as the commission of violent acts of a sexual nature against a victim who was intoxicated, the courts must proceed from the fact that a helpless state in these cases can only be recognized as such a degree of intoxication caused by the use of alcohol, drugs or other intoxicating substances, which deprived this person, for example the victim woman, of the opportunity to resist the rapist.

To recognize rape, as well as sodomy, lesbianism and other violent acts of a sexual nature committed using the helpless state of the victim, it does not matter whether he was brought into such a state by the perpetrator himself (for example, he gave him alcohol, gave drugs, sleeping pills, etc. .) or was in a helpless state, regardless of the actions of the person who committed the specified crime (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 15, 2004 N 11 “On judicial practice in cases of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation” ).

S. was convicted under Part 4 of Art. 117 of the Criminal Code of the RSFSR (clause “a”, part 3, article 131 of the Criminal Code of the Russian Federation). He was found guilty of raping 13-year-old G.

In the cassation appeal, S., without challenging the commission of sexual intercourse with the victim, denied the use of violence against her and asked to reclassify his actions under Art. 119 of the Criminal Code of the RSFSR (Article 134 of the Criminal Code of the Russian Federation). The judicial panel for criminal cases of the Armed Forces of the Russian Federation came to the conclusion that S. was guilty. As can be seen from the materials of the criminal case, while drinking alcohol, S. learned that the victim’s age was 13 years. In the evening, on the way home from the club, he took the victim into the territory of the kindergarten and performed sexual intercourse with her. From G.'s testimony it is clear that she drank a lot of alcohol that day. After which everyone went to the club. Due to memory loss, he does not remember further events. I woke up in the morning. According to the conclusion of the forensic psychiatric examination, G., as a person with increased suggestibility and without a strong-willed principle, could not resist due to imaginary or real violence. The lack of habit of drinking alcohol could increase her indecisiveness and passivity in a situation of violence.

Given such data, indicating the helpless state of the victim due to severe alcohol intoxication and age, the court’s conclusions that the convict committed rape, and not voluntary sexual intercourse, are legal and justified (BVS RF. 1997. N 9. P. 17).

G. came to the house of the elderly V. (born in 1914) and, with the aim of committing rape, struck her on the head and various parts of the body, causing her to lose consciousness. Taking advantage of the helpless state of the victim, G. committed rape and sexual assault. Then, in order to conceal the crimes committed, he killed the victim. G.’s actions were qualified by the court under Part 1 of Art. 131, part 1 art. 132 of the Criminal Code of the Russian Federation, which provides for liability for rape and violent acts of a sexual nature using the helpless state of the victim and the use of violence, as well as paragraphs “c”, “k”, part 2 of Art. 105 of the Criminal Code of the Russian Federation (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2010, M., 2010. P. 14).

Other persons

Scientific interpretation

The threat, like physical violence itself, involves implementation in relation not only to the victim, but also to other persons (for example, children, relatives, etc.). The law does not require that these persons must be close to the victim (for example, beating a stranger in front of her eyes) (Educational and practical commentary on the Criminal Code of the Russian Federation / Under the general editorship of A.E. Zhalinsky. M., 2006. P 398 (author - E.F. Pobegailo)).

Other persons can be not only relatives or friends of the victim, but also any persons, in particular strangers, who can only be saved from bullying by yielding to the harassment of the rapist (Dydo A.V. Rape: problems of criminal legal qualification: Dis. ... Ph.D. in Law Sciences, Vladivostok, 2006, p. 133).

Both physical violence and the threat of its use can be applied not only to the victim, but also to other persons. Such persons may include not only children or relatives of the victim, but also other persons in whose fate the victim is interested, for example, her pupils, students (Commentary to the Criminal Code of the Russian Federation / Responsible editor: A.I. Rarog. M., 2006. P. 227 (author - A.V. Korneeva)).

The threat can be addressed to the victim or other persons for the sake of whose salvation the woman is ready to sacrifice her sexual freedom, for example, her children, loved ones, relatives, or husband. In some cases, the threat may be directed at persons who are strangers to the victim. Thus, the threat of committing violence against children in a kindergarten can force a teacher to agree to have sexual intercourse with a rapist (Commentary to the Criminal Code of the Russian Federation / Under the general editorship of V.M. Lebedev. M., 2007. P. 349 (author - A N. Ignatov)).

Judicial interpretation

Under other persons specified in Art. Art. 131 and 132 of the Criminal Code of the Russian Federation, one should understand the relatives of the victim, as well as persons to whom the guilty person, in order to overcome the resistance of the victim (victim), uses violence or threatens to use it (clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 15, 2004 N eleven).

Other serious consequences

Scientific interpretation

Other grave consequences besides death, serious harm to health and HIV infection, theory and practice also include the suicide of the victim, which followed as a reaction to the abuse of her. The form of guilt is twofold (Article 27): intent to commit rape and negligence in relation to grave consequences. According to the meaning of the law, if the perpetrator acted with “end-to-end” (single) intent - both in terms of rape and in terms of causing grievous harm, Part 3 of Art. 131 of the Criminal Code of the Russian Federation cannot be imputed; Part 1 should be applied in the absence of other qualifying features. In this case, there is a failure in legislative technology. So, if grave consequences were the result of the deliberate actions of the rapist - the person wanted or allowed the victim to commit suicide, infect her with HIV, or cause her grave harm - then the punishment he faces turns out to be more lenient. Therefore, it would be more accurate to use in Part 3 the formula “rape, resulting intentionally or through negligence” grave consequences (Commentary to the Criminal Code of the Russian Federation / Responsible editor L.L. Kruglikov. M., 2005. P. 376 (author - L.L. Kruglikov)).

Other serious consequences include the occurrence of an ectopic pregnancy, mental illness or suicide of a woman in front of whose eyes her young daughter was raped, etc. (Commentary to the Criminal Code of the Russian Federation / Under the general editorship of V.M. Lebedev. M., 2007 355 (author - A.N. Ignatov)).

Other grave consequences of rape and sexual assault include consequences not related to the negligent infliction of death on the victim, grievous harm to the victim’s health, suicide of the victim, pregnancy (Poddubnaya E.V. Rape and sexual assault: criminal law characteristics and qualifications: Dissertation... Candidate of Legal Sciences. M., 2008. P. 163).

Other grave consequences mean suicide of the victim, mental illness due to rape, etc. Moreover, everything done is covered by Art. 131 of the Criminal Code of the Russian Federation and additional qualifications for other articles are not required (Commentary to the Criminal Code of the Russian Federation / Editor-in-chief V.I. Radchenko. M., 2008. P. 214 (authors - A.S. Mikhlin, V.A. Kazakova)).

Other grave consequences are any other consequences of this type that are not attributable to grave harm to health and HIV infection. This concept is evaluative. However, it must be borne in mind that the specified harm must occur directly from rape or attempted rape. A distant connection between the consequences of the crime (for example, the suicide of parents who learned about the incident, the victim herself due to a change in attitude towards her, etc.) excludes their imputation to the rapist. At the same time, as indicated in the literature, the suicide of a mother who failed to prevent the rape of her young daughter and jumped out of a window in order to draw people’s attention was rightly recognized as having grave consequences. The culprit foresaw the possibility of such a development of events (the girl’s mother warned him about this), but frivolously hoped that this would not happen.

The analyzed consequences also include pregnancy as a result of rape, etc.

Guilt in relation to the above consequences is also characterized by negligence (Commentary to the Criminal Code of the Russian Federation (article by article) / Edited by A.I. Chuchaev. M., 2010. P. 372 (author - A.I. Chuchaev)).

Judicial interpretation

Other grave consequences of rape or sexual assault should include consequences that are not associated with the negligent infliction of serious harm to the health of the victim or his infection with HIV. This can be recognized, for example, as the suicide of the victim (clause 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 15, 2004 No. 11).

The actions of I., convicted of raping the victim, which resulted in her death (jumped from the ninth floor balcony), were incorrectly classified under paragraph “a” of Part 3 of Art. 131 of the Criminal Code of the Russian Federation.

According to the meaning of the law, this qualifying feature presupposes the death of the victim directly during rape when overcoming resistance, or the occurrence of death due to an exacerbation of the victim’s illness.

The suicide of the victim resulting from rape should be considered as other grave consequences, which are specified in paragraph “b” of Part 3 of Art. 131 of the Criminal Code of the Russian Federation, in connection with which the verdict during the cassation hearing of the case was changed, I.’s actions were reclassified from paragraph “a” to paragraph “b” of Part 3 of Art. 131 of the Criminal Code of the Russian Federation (Review of judicial practice of the Armed Forces of the Russian Federation for the third quarter of 1998. Determination N 31-098-35 // ATP “ConsultantPlus”).

Violence or threat of violence

Scientific interpretation

Physical violence as a method of rape refers to the physical impact on the body of the victim herself. The mildest types of physical violence can be expressed in the impact on the bodily integrity of the victim and in depriving her of the ability to move and resist, for example, causing minor or moderate harm to health, tying up, restraining, etc. This violence does not require additional qualification under other articles of the Criminal Code. The purpose of using physical violence is to paralyze the existing or prevent possible resistance of the victim and commit sexual intercourse with her against her will (Dydo A.V. Rape: problems of criminal legal qualification: Dis. ... candidate of legal sciences. Vladivostok, 2006. P. 56).

Physical violence is expressed in beatings, infliction of bodily harm of varying degrees of severity, suffocation, blocking the respiratory tract with a hand or any object, etc. Violence can also be expressed in the use of physical force in order to overcome a woman’s resistance without causing her any harm (Commentary to the Criminal Code of the Russian Federation / Under the general editorship of V.M. Lebedev. M., 2007. P. 348 (author - A.N. Ignatov)).

The use of violence means the commission of actions involving physical impact on the victim or other persons and encroaching on their bodily integrity or health. By such actions, the perpetrator either overcomes the victim’s resistance or forces her to yield under the threat of causing more serious consequences. Provided for in Part 1 of Art. 131 of the Criminal Code of the Russian Federation, physical violence can be expressed in holding, tying up, beating, causing minor or moderate harm to health.

The threat of violence (mental violence) is also aimed at suppressing the victim’s resistance and consists of expressing the intention to use physical violence. Such a threat can be brought to the attention of the victim verbally, through gestures, or by displaying a weapon.

The threat must be perceived by the victim as real, regardless of whether the perpetrator intended to carry it out, and as significant, i.e. sufficient to suppress the victim’s resistance. When expressing a threat, the perpetrator often takes advantage of the current situation, a combination of circumstances (absence of strangers, darkness). The nature of the threat must be assessed taking into account the situation prevailing at the time the threat was expressed.

The threat of murder or grievous bodily harm during rape is not covered by Part 1 of Art. 131 of the Criminal Code of the Russian Federation and is subject to qualification under paragraph “b” of Part 2 of Art. 131 of the Criminal Code of the Russian Federation.

The threat of committing any other actions (destruction or damage to property) does not constitute a crime under Art. 131 of the Criminal Code of the Russian Federation.

Both physical and mental violence during rape is a way for the perpetrator to achieve his main goal - to commit sexual intercourse with the victim (Criminal law in the practice of the district court / Edited by A.V. Galakhova. M., 2010. P. 126 (author - S.V. Kuzmin)).

Violence is expressed in beatings, bodily harm, tying up and other actions involving the infliction of physical pain or restriction of freedom. Violence can be applied to the victim or to others, including strangers.

Rape or attempted rape, accompanied by beatings, causing minor or moderate harm to the health of the victim, is subject to qualification under Part 1 of Art. 131 of the Criminal Code of the Russian Federation. Additional qualifications for other articles on crimes against the person are not required.

If harm to health occurred after the commission of rape, there is a real set of crimes provided for in Art. 131 of the Criminal Code of the Russian Federation, and the corresponding crime against the person.

Rape involves the use of not only physical but also mental violence. Threats used as a means of suppressing the victim’s resistance are understood as threats to use physical violence against the victim or other persons. Threats of another kind do not form part of this crime.

The threat of violence is expressed in the threat of any violence - from beatings to murder. The form of expression of a threat can be different - words, gestures, demonstration of weapons, etc. In this case, the threat must be real, i.e. giving no reason to doubt that if the requirements are not met, it will be implemented. At the same time, it does not matter whether the perpetrator had the intention of carrying out the threat or was counting solely on psychological influence.

According to Part 1 of Art. 131 of the Criminal Code of the Russian Federation qualifies mental violence, which consists of a threat to cause beatings, light or moderate harm to the health of the victim or other persons.

The threat of murder or infliction of grievous bodily harm, which was a means of overcoming the victim’s resistance during rape, is qualified under paragraph “b” of Part 2 of Art. 131 of the Criminal Code of the Russian Federation and additional qualifications under Art. 119 of the Criminal Code of the Russian Federation does not require (Commentary to the Criminal Code of the Russian Federation / Edited by V.T. Tomin, V.V. Sverchkov. M., 2010. P. 429, 431 (author - Yu.V. Golovlev)).

Judicial interpretation

The threat of murder or infliction of grievous bodily harm (clause “c” of Part 2 of Article 131 and clause “c” of Part 2 of Article 132 of the Criminal Code of the Russian Federation) should be understood not only as direct statements expressing the intention to immediately use physical violence towards the victim or other persons, but also such threatening actions of the perpetrator, such as, for example, demonstration of weapons or objects that can be used as weapons (knife, razor, ax, etc.).

Responsibility for such actions occurs only in cases where such a threat was a means of overcoming the resistance of the injured person and there were grounds to fear that this threat would be carried out. At the same time, the specified actions of additional qualification under Art. 119 of the Criminal Code of the Russian Federation is not required (clause 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 15, 2004 No. 11).

Ts. was convicted under Part 1 of Art. 131 of the Criminal Code of the Russian Federation. During the rape of G., he deliberately struck her at least 20 blows to the head and at least 12 blows to other parts of the body, which resulted in short-term health disorder for a period of no more than 21 days, causing slight harm to the victim’s health (Rybinsk City Court of Yaroslavl region, case No. 1-20/2011).

R. was convicted under Part 1 of Art. 131, part 1 art. 132, part 1 art. 139 of the Criminal Code of the Russian Federation. The infliction of moderate harm to health by the victim during rape and sexual assault did not require qualification under a set of crimes under articles on intentional infliction of harm to health (Nizhneudinsky City Court of the Irkutsk Region, case No. 1-32/2011).

A. convicted under Part 1 of Art. 131 of the Criminal Code of the Russian Federation. In order to overcome the victim’s resistance, A. punched her several times in the head, from which the victim fell and lost consciousness. U. suffered the following bodily injuries: closed craniocerebral injury in the form of a concussion, which resulted in a short-term health disorder lasting up to three weeks, i.e. minor harm to health (Sernursky District Court of the Republic of Mari El, case No. 1-1046/2011).

Special cruelty

Scientific interpretation

In forensic psychiatry, sadism is understood as a mental disorder associated with sexual experiences that a person experiences while tormenting and torturing his victim. It is in this aspect that sadism is considered as one of the manifestations of special cruelty when committing crimes against sexual freedom and personal integrity (for example, rape) (Ivanova V.V. Criminal violence. M., 2002. P. 48).

Rape with particular cruelty should also include the infliction of moral suffering on the relatives of the victim, in whose presence the rape is committed, and they are deprived of the opportunity to provide assistance (Dydo A.V. Rape: problems of criminal legal qualification: Dis. ... Candidate of Legal Sciences. Vladivostok , 2006. P. 134).

Particular cruelty can be expressed in mockery and mockery of the victim, torture, infliction of bodily harm, rape or sexual assault in the presence of relatives or friends of the victim, as well as in a method of suppressing resistance that causes severe physical or moral torture and suffering. the victim himself or other persons. At the same time, the court should keep in mind that when qualifying such actions on the basis of special cruelty, it is necessary to establish the intent of the guilty person to inflict special torture and suffering on the victims (Poddubnaya E.V. Rape and sexual assault: criminal legal characteristics and qualifications: Dissertation...candidate of legal sciences. M., 2008. P. 139).

Particular cruelty can be shown towards the victim or other persons (beating one of them, raping a woman in the presence of her husband and children) (Commentary to the Criminal Code of the Russian Federation / Editor-in-chief V.I. Radchenko. M., 2009. P. 214 (authors: A.S. Mikhlin, V.A. Kazakova)).

Judicial interpretation

Rape or sexual assault should be considered committed with particular cruelty if in the process of these actions the victim or other persons are intentionally inflicted with physical or moral torture and suffering. Particular cruelty can be expressed in mockery and mockery of the victim, torture during rape, infliction of bodily harm, rape or sexual assault in the presence of relatives or friends of the victim, as well as in a method of suppressing resistance that causes severe physical or moral harm. torment and suffering of the victim himself or other persons. At the same time, the court should keep in mind that when qualifying such actions on the basis of special cruelty, it is necessary to establish the intent of the guilty person to inflict special torment and suffering on the victims (clause 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of June 15, 2004 No. 11).

Article 132. Violent acts of a sexual nature

Helpless state of the victim - see material to Art. 131 of the Criminal Code of the Russian Federation

Other persons - see material to Art. 131 of the Criminal Code of the Russian Federation