of May 30, 2008 No. 5
About court practice on cases on crimes against sexual freedom and sexual integrity of person
Generalization of court practice on cases on crimes against sexual freedom and sexual integrity of person demonstrates that by hearing of cases of this category courts generally correctly apply the current legislation, however still take place and shortcomings.
For the purpose of identical and correct application by courts of the legislation on responsibility for crimes against sexual freedom and sexual integrity of person, prevention of emergence of miscarriages of justice by consideration of such cases the Plenum of the Supreme Court of Ukraine DECIDES to make to courts such explanations:
1. On contents of article 152 of the Criminal code of Ukraine (further UK) should understand natural sexual connections between persons of different floor as rape contrary to or with ignoring of will of injured person using physical abuse, threat of its application or with use of helpless condition of injured person.
The list of wrongful acts which the rape fact makes a reservation is exhaustive. Therefore actions of person who tried to obtain the consent of person of opposite sex on sexual the intercourse in a different way, for example, by persistent offers to enter sexual connections or by deception or confidence abuse (declaration of love, obviously inveracious promise to get married, pay for sexual service and so forth) cannot be qualified under article 152 UK.
Person both women's, and male, irrespective of his behavior before crime execution, method of life, the previous relations with the subject of crime, in particular stay with it in the registered scrap, accommodation by one family and so forth can be injured person from rape.
2. The violent satisfaction of sexual addiction with unnatural method (article 153 UK) excludes natural sexual intercourse and can consist in making of the act of sodomy, lesbianism, and also in other actions of sexual nature directed to satisfaction of sexual addiction of the subject of crime (the man or the woman) unnatural method, using physical abuse, threat of its application or with use of helpless condition of injured person.
Violent introduction in openings of body of injured person of different objects (stick, bottle and so forth) can be qualified by the corresponding part of article 153 UK only under condition if the intention of the perpetrator was directed to satisfaction in such a way of sexual addiction by unnatural method. In case of lack of such intention these actions in the presence of the signs provided by the penal statute shall be qualified under the relevant articles of the Criminal Code which provide responsibility for crimes against life and health of person or as hooliganism and so forth.
3. The physical abuse provided by dispositions of Articles 152, 153 UK should be considered deliberate external negative impact on organism of injured person or on its physical will, made for the purpose of overcoming or the prevention of resistance of injured person or its reduction in helpless condition. Such influence can be expressed in striking blows, beating, infliction of bodily injury, squeezing of airways, deduction of hands or legs, restriction or deprivation of personal liberty, introduction in organism of injured person against its will of drugs, psychotropic, toxic, strong substances and so forth.
Causing to injured person in case of rape or violent satisfaction of sexual addiction with unnatural method or attempt at these crimes of deliberate slight injury is covered by the corresponding part of Article 152 or article 153 UK and additional qualification under article 125 UK does not require as damnification to health in such borders is covered by disposition of the law on responsibility for rape or violent satisfaction of sexual addiction with unnatural method. In case of combination of violent satisfaction of sexual addiction with unnatural method to causing the injured person of deliberate bodily harm of average weight of action of the perpetrator needs to qualify on cumulative offenses, provided by the corresponding part of article 122 UK and the corresponding part of Article 152 or article 153 UK.
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