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of September 27, 2012 No. 7

About court practice on cases on crimes against sexual integrity or sexual freedom (the Art. of Art. 166 - 170 UK)

Having discussed practice of consideration by courts of cases on crimes against sexual integrity or sexual freedom (the Art. of Art. 166 - 170 UK), for the purpose of ensuring the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus decides:

1. Draw the attention of courts that object of each of the crimes provided by the Art. of Art. 166-170 of UK is sexual integrity or sexual freedom. On criminal cases about such crimes courts should find out carefully nature of actions and the person accused relations with the injured person, orientation and content of intention, the fault form, nature, the purposes and motives of use of violence and other circumstances important for the correct permission of case and the resolution of sentence.

2. Explain to courts that rape (Art. 166 of UK) is understood as the sexual intercourse with the woman which had using violence or threat of its application to the victim or her relatives (against its will) or with use of its helpless condition (without volition of the victim).

The sodomy, lesbianism, and also any other, except sexual intercourse, the actions directed to satisfaction of sexual need of the subject of crime (the man or the woman), made concerning persons of any floor against or in addition to their will using violence or threat of its application or with use of helpless condition of the victim (victim) are recognized violent acts of sexual nature (Art. 167 of UK).

The behavior preceding crime execution, conduct of life, availability of the marriage relations with the person accused and other data on the personality do not exclude recognition of person by the victim for this category.

3. By hearing of cases about rape (Art. 166 of UK), violent acts of sexual nature (Art. 167 of UK) courts should mean that violence or threat of its application as signs of the objective party of the specified crimes are performed accused 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 or other actions of sexual nature.

4. It is necessary to understand as violence, in particular, application to the injured person (close to the victim on cases on rape) 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.).

Under the threat of use of violence it is understood (injured) intention person accused expressed in specific words, gestures, actions or in other form obvious to the victim to do harm to health or life of the injured person (close to the victim on cases on rape).

Actions of person who achieved from the victim (victim) of consent to making of sexual intercourse, other actions of sexual nature by nonviolent method including by deception or confidence abuse (for example, promises to get married, pay sexual service) cannot be qualified according to Art. 166 or Art. 167 of UK.

5. Courts should mean that the helpless condition of the victim (victim) as sign of the objective party of the crimes provided by the Art. of the Art. 166, 167 UK takes place when these persons owing to the juvenile age, disorder of mental activities, loss of consciousness, alcoholic, drug intoxication, other reasons could not understand nature or value of the actions made with them or owing to physical defects, disease, other reasons could not counteract the person accused or lost physical capacity to show it resistance. In particular, such condition caused by alcohol intake, drugs, medicines, psychotropic, toxic agents which deprived the injured person of opportunity to understand surrounding situation, to understand value of the actions made with it or to show resistance to the person accused can be recognized helpless.

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