RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of October 17, 2024 No. 26

About court practice on cases on crimes against sexual integrity and sexual freedom

For the purpose of the correct application by courts of the legislation on responsibility for crimes against sexual integrity and sexual freedom, forming of uniform court practice and prevention of emergence of miscarriages of justice by hearing of cases of this category Plenum of the Supreme Court of the Kyrgyz Republic, being guided by articles 18 and 19 of the constitutional Law "About the Supreme Court of the Kyrgyz Republic and Local Courts" of November 15, 2021 No. 134, decides to make to courts the following explanations:

Motive of making of the specified crimes (satisfaction of sexual requirement, revenge; national or religious hatred, desire to degrade the injured person, etc.) for qualification of deeds does not matter.

The male responsible person who reached by the time of crime execution of 14-year age can only be the subject of criminal encroachment as the direct contractor. However in case of group rape it is optional that in group there were only males and everyone had with injured sexual intercourse. Rape is group and in that case when sexual intercourse is had by one person, and the others helped it. Also women can carry out similar role. In particular, the woman can act as the organizer, the instigator or the helper of the considered crime. If she participates in overcoming resistance of the victim, it is necessary to recognize her as the collaborator of rape.

The list of wrongful acts which cause the rape fact is exhaustive. Therefore actions of person who achieved consent to sexual contact in a different way, for example, to enter sexual connections by importunate offers or by deception or confidence abuse (declaration of love, obviously false promise to get married, pay for sexual service and so forth) cannot be qualified as rape.

4. The child is the most vulnerable victim of crimes against sexual integrity as the perpetrator use that owing to the age the child does not understand the events yet, it is easier to intimidate, incline it to that he spoke to nobody about the event. Therefore for the crimes against sexual integrity and sexual freedom made against the child more strict liability is provided.

Criminal liability for sexual connection and other actions of sexual nature with person which did not reach sixteen-year age comes also in cases when sexual connection and other actions of sexual nature with person which did not reach sixteen-year age are made without use of violence or threat of its application, and the injured person understood nature and value of the made actions.

If the injured person as a result of the intellectual lagging or juvenile age could not understand the nature and value performed with it actions, sexual connections with such person need to be regarded as rape with use of helpless condition of the injured person.

6. If rape is sexual intercourse between the man and the woman in natural form, then other actions of sexual nature are represented as satisfaction of sexual requirement with other methods, including compulsion by the man's woman to making of sexual intercourse by use of violence or threat of its application.

Thus, crime components differ in subjects of crimes.

So, if the male, and affected party only female can only be the direct subject of rape, then person of any floor can be the subject and the victim of violent acts of sexual nature.

7. Courts should mean that sodomy the violent satisfaction of sexual passion by the intercourse of the man with the man, by means of introduction of penis of the active partner in back pass of the passive partner is considered.

Other forms of satisfaction of sexual passion as, for example, introduction of genital in mouth, are not sodomy, but can be considered as other actions of sexual nature.

Some forms of sexual contact of the man with the woman, in particular, such as oral, anal sex, penetration by hand or any subject in genital, etc. also belong to other actions of sexual nature.

Lesbianstvo - type of the female homosexuality representing violent satisfaction of sexual passion by making by women concerning each other of actions of sexual nature (imitation of sexual intercourse, oral and genital contacts, masturbation, etc.).

8. It is necessary to consider that violence is expressed in making of such actions which are directed to overcoming resistance of the injured person, in particular, in application to the injured person of the physical impact which is expressed in breaking of clothes, drawing beating, causing physical pain, bodily harms, squeezing of airways, introduction in organism against or without volition of alcohol, medicines, psychotropic, toxic agents, drugs, etc., and also in deprivation or restriction of its freedom (deduction of hands, binding, locking indoors, etc.).

If damnification happened after rape, making of violent acts of sexual nature, the real cumulative offenses take place.

Weight of the harm done to health is established based on the expert opinion.

9. The threat applied as means of suppression of resistance of the injured person is understood as threats to apply physical abuse to the victim or other persons.

The form of expression of threat can be different and consist in specific words, gestures, actions, demonstration of weapon or objects which can be used for infliction of bodily injury of objects which imitate weapon and the injured person perceives them for this weapon.

The threat shall be real, that is not giving the grounds to doubt that in case of failure to carry out of the imposed requirements it will be realized.

At the same time courts need to consider that such threat can be perceived by the injured person as real, proceeding from time, the place and situation which developed (environment group of persons, the deaf and deserted place, night time, etc.).

The threat of murder, causings severe harm to health, and equally other heavy personal violence after making of rape or other violent acts of sexual nature for the purpose of intimidation of the victim and suppression of publicity of the incident, in the presence of good causes to be afraid of reduction of this threat in execution is subject to qualification independently under article 139 UK KR, and in general deeds - on set of the specified regulation and the corresponding part of articles 154-155 UK KR.

10. By hearing of cases about rape (Article 154) and about violent acts of sexual nature (Article 155) courts should mean that violence or threat of its application as signs of the objective party of the specified crimes, are performed guilty of quality of means (method) of overcoming or exception of resistance of the injured person for direct making of sexual intercourse, acts of sodomy, lesbianism, other actions of sexual nature.

11. Draw the attention of courts that actions of the perpetrator should be qualified as made with use of helpless condition of injured person when this person owing to the physical condition (weak-mindedness or other mental disturbance, physical defects, other painful or unconsciousness, juvenile or old age, etc.) could not understand nature and value of the actions made with it or to show resistance to the guilty person who, in turn, realized that the victim (victim) is down and out.

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