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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 4, 2014 No. 16

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

Due to the questions arising at courts in case of application of regulations of Chapter 18 of the Criminal Code of the Russian Federation and also for the purpose of forming of uniform court practice the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make to courts the following explanations:

1. Draw the attention of courts that sexual connection, sodomy, lesbianism and other actions of sexual nature concerning the injured person (the victim or the victim) who are made contrary to its will and consent and using violence or with threat of its application to the injured person or to other persons or with use of helpless condition of the injured person belong to the crimes provided by articles 131 and 132 Criminal Code of the Russian Federation. At the same time the 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.

2. In articles 131 and 132 Criminal Code of the Russian Federation it is necessary to understand violence, both dangerous, and harmless to life or health, as violence, including beating or making of other violent acts connected with causing to the injured person of physical pain or with restriction of its freedom.

If in case of rape or making of violent acts of sexual nature to the injured person harm was done easy or to average weight to health, the deeds are covered by dispositions of articles 131 and 132 Criminal Code of the Russian Federation; intentional causing severe harm to his health requires additional qualification by the corresponding part of article 111 Criminal Code of the Russian Federation.

Severe harm health of the injured person that entailed his death on imprudence, in the absence of other qualifying signs should qualify actions of person which intentionally caused in the course of rape or making of violent acts of sexual nature on cumulative offenses, provided by part 1 of Article 131 or part 1 of article 132 Criminal Code of the Russian Federation and part 4 of article 111 Criminal Code of the Russian Federation.

The murder in the course of making of rape or violent acts of sexual nature and also committed upon termination of these crimes based on revenge for the shown resistance or for the purpose of their concealment should be qualified on cumulative offenses, stipulated in Item "to" part 2 of article 105 Criminal Code of the Russian Federation and the corresponding parts of Article 131 or article 132 Criminal Code of the Russian Federation.

3. Responsibility for rape or making of violent acts of sexual nature with threat of use of violence comes only in cases if such threat was means of overcoming resistance of the injured person and it had bases to be afraid of implementation of this threat.

Under the threat murder or causing severe harm health (the Item of part 2 of Article 131 and the Item of part 2 of article 132 Criminal Code of the Russian Federation) should understand not only direct statements in which intention of application of physical abuse to the injured person or to other persons, but also such menacing actions of the guilty person as, for example, demonstration of weapon or objects which can be used as weapon was expressed.

If the threat of murder or causing severe harm to health was expressed after rape or making of violent acts of sexual nature with that purpose, for example, that the injured person reported to nobody the matter, such acts are subject to qualification on cumulative offenses, the stipulated in Article 119 Criminal Code of the Russian Federation and, in the absence of the qualifying signs, as regards 1 article 131 Criminal Code of the Russian Federation or part 1 of article 132 Criminal Code of the Russian Federation.

4. In sense of article 17 Criminal Code of the Russian Federation if in case of rape or making of violent acts of sexual nature for the purpose of overcoming resistance of the injured person violence was applied or the threat of use of violence to other persons was expressed (for example, the close relative of the victim), such actions require additional qualification under other Articles of the Special part of the Criminal Code of the Russian Federation.

5. It is necessary to recognize rape and violent acts of sexual nature committed with use of helpless condition of the injured person when it owing to the physical or mental condition (weak-mindedness or other mental disturbance, physical defects, other painful or unconsciousness), age (juvenile or aged person) or other circumstances could not understand nature and value of the actions made with it or to show resistance to the guilty person. At the same time person, committing rape or violent acts of sexual nature, shall understand that the injured person is down and out.

6. In case of qualification of rape and violent acts of sexual nature concerning the injured person who was in state of intoxication courts shall recognize that only such degree of the intoxication caused by alcohol intake, drugs or other stupefying (psychoactive) substances which deprived this person of opportunity to understand nature and value of the actions made with it can be recognized as helpless condition or to show resistance to the perpetrator. At the same time does not matter whether there was injured person it is brought to such state by the guilty person or was down and out irrespective of its actions.

7. Rape and violent acts of sexual nature should be considered ended according to the moment of the beginning of sexual connection, sodomy, lesbianism and other actions of sexual nature.

If person realized possibility of finishing criminal acts up to the end, but voluntarily and finally refused making of rape or violent acts of sexual nature (but not owing to the reasons which arose in spite of himself), the deeds irrespective of motives of refusal are qualified by it on actually committed actions provided that they contain structure of other crime.

The refusal of making of rape and violent acts of sexual nature is possible both at stage of preparation for crime, and at stage of attempt at it.

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