Criminal law measures of counteraction to sexual violence in the family

Along with general social measures and special criminological measures of crime prevention an important role in this sphere of activity of the society and the state belongs to criminal law measures of influence on criminal offences. Hereby criminal law norms must be criminologically justified. According to S.F. Milyu-kov’s fair assertion, criminological justification of the criminal law eliminates non-conformity of legal establishments to criminological data on the reasons for crime, personality of a criminal and basic methods of crime prevention. The questions of criminalization and decriminalization of acts is a problem of both criminal law and criminology. They are even more urgent for law enforcement and legislative activity [1, p. 212].

In order to respond to negative changes in the society timely both criminal legislation and criminal law must be under the close attention of the legislator and the scientific world. Improvement of criminal legislation is one of the most important areas of establishment of control over crime. It should be noted that amendments and addenda, which take place in criminal legislation, are always indicative of changes in the state’s criminal policy. For a short period (from January 1, 2015), during which the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the CCoRK) of July 03, 2014 has been in effect, the elements of the acts, providing for criminal responsibility for crimes against sexual inviolability and sexual freedom of a person have been supplemented [2]. This indicates at the processes, taking place in the modern national state criminal policy and public opinion in the best possible way.

It should be noted that transformations of the elements of the reviewed crimes, implemented by the legislator, have great importance in the matter of counteraction to sexual violence crimes. This especially concern crimes, committed in respect of minor and young victims. At the same time, certain constituent elements of crimes against sexual inviolability and sexual freedom of a person, as well as the norms of the General Part of the CCoRK, regulating the measures of criminal law influence on the persons, committing reviewed crimes, cannot fully meet the needs within the criminal law counteraction to sexual violence in general, and in the family, in particular [3, p. 315].

It was established in the course of the research conducted by us that sexual violence crimes in the family differ from similar crimes, committed in respect of persons strange for the guilty person, higher level of social danger. Sexual violence crimes in the family not only undermine moral foundations of the family, but also, as a rule, inflict serious psychological traumas to such victims.

Family is a small group based on marriage and (or) blood relation (property), members of which are related with household community, live together and have joint household. Relations between the family members are built on the feelings of mutual love and esteem, mutual aid and responsibility to the family and to each other. There exist two types of relationship in the family – kinship, and living together and joint household relations. In accordance with this original provision, it should be noted that relatives and family members are not identic concepts. The norms of the family and criminal procedure legislation define the concepts of lineal descendant and ascendant, whole blood and half blood and close relatives. There is no concept of “relatives” in the family law. By relatives p. 50 of art. 7 of the Criminal Procedure Code of the Republic of Kazakhstan means all other persons, excluding close relatives, being in kinship relations, having common ancestors up to great grandfather and great grandmother.

There is no uniform concept of a “family member” which could be used in different branches of the legislation, in Kazakhstan law. There are grounds to assert that all persons, without exception, between whom there exist blood ties, belong to relatives. Hereby, irrespective of closeness of these ties. However, the legislator restricted kinship to great grandfather and great grandmother. And the family members include marriage partners, adoptive parents and adopted children, persons, being in actual marriage relations (cohabitees), actual fosterers and fosterlings (guardians and wards, stepsons, stepdaughters, stepmothers and stepfathers). The main feature of the family members is their living together and joint household relations. It can be concluded from the above that not always relatives live together and family members can be not relatives.

It is difficult to the full extent to agree with V.I. Shakhov’s opinion that “actual marriage relations (common law marriage) cannot be protected from the criminal law positions, since there is no legal relations, generating legal rights and duties of marriage partners, provided for by the law, between their participants” [4, p. 69]. Of course, if only violent (not sexual) acts are viewed in respect of cohabitees are considered, violence against actual marriage partners can be interpreted as common law crimes against person. Sexual violence, committed in respect of cohabitees, is not less hazardous and immoral, than the same actions in respect of registered marriage partners.

It should be noted that sexual crimes, must include acts, infringing not only sexual inviolability and sexual freedom, but also those, which are aimed at normal mode of sexual life and moral health of a person. Modern national criminal legislation includes crimes, belonging to different section and different chapters of the CCoRK, in these. For example, exploitation of man, provided for by art. 128, 135 of the CCoRK, for the purpose of forcing to prostitution or acts, provided for by art. 134, 308 of the CCoRK.

The history of development of criminal legislation, both of a number of foreign countries and Kazakhstan, shows that sexual moral and morality norms are demanded by the society as a social ground for criminal law prohibitions exactly to the extent, to which they concern vital interests of a person. This fact cannot be denied. So, A.B. Bekmagametov notes absolutely fairly that having placed sexual crimes in the section “Criminal offences against person”, the legislator thus determined the generic object of reviewed crimes [5, p. 36]. At present the essence of sexual crimes, their social danger are defined in the literature via infringement on interests of a person. It can be concluded from this that interests of a person applicably to sexual crimes are still considered with account of the sexual mode and sexual morality. This especially concerns sexual relations between relatives and other family members.

No doubt, relations in the family are and must be private relations. At the same time, when these relations grow into violence and touch interests of one family member to the detriment of its other member or other members, the state can and must interfere in the private family life and protect those, who cannot do it themselves for some reasons.

Norms of criminal legislation of foreign countries view the questions of responsibility for violations, committed within private, family in different ways. Of course, only acts of a special sort are subject to interference of the state, and, consequently, punishment. So, the Criminal code of Switzerland provides for responsibility for sexual actions; rape; sexual coercion, committed with dependent persons (including with the family members by relatives). At the same time, criminal responsibility cannot occur, if the person that committed an offence, registers marriage with the victim (art. 188). If the wife of the guilty person is a victim, proceedings can be initiated only upon her complaint (art. 189).

The Criminal code of the FRG also determines the need of interference into the family (private) life only in case, if sexual actions are committed in respect of the wards, who did not reach the age of sixteen or eighteen, as well as in respect blood or adopted children, who did not reach the age of eighteen (§174).

The Austrian Criminal code provides for responsibility for commitment of criminal offences in marriage or cohabitation (§203), incest (§211), abuse of parental and other rights (§212).

Criminal legislation of Kazakhstan does not expressly provide for protection of sexual inviolability and sexual freedom within family and kinship relations. In this connection we believe that within the researched subject it is required to review the very concept of the family sexual mode and sexual relations between relatives and other family members in more details.

Unlike religious commandments, which have not lost their significance today, moral and customs reflect only behavioral models, typical for the certain society, hereby, in the certain period of its development. These models are not constant, since their formation and change are established by daily needs of interpersonal communication. Total formalization of sexual relations is, of course, impossible, and even inexpedient.

The function of the criminal law and the task of the criminal statute consist in protection of public, i.e. significant, vital interests of the subjects of the criminal law relations (person, society and state). Instability of sexual moral, no doubt, affects criminalization (or decriminalization) of sexual delicts. The latest amendments in the legislation, namely adoption of the new Criminal Code of the RK on July 3, 2014, are the example thereof. In comparison with the previous CCoRK some amendments were made in the content of art. 120, 121, 122 and 124. At the same time, this influence is implemented in connection with occurring changes in sexual moral, which determine social demand on the essence of any criminal law norm.

Most scientists define sexual violence of a sexual crime absolutely fairly. At the same time, they view the social and legal nature of these crimes in different ways, and the single opinion on this subject has not been reached yes. So, D.B. Bugybay referred such deeds, which infringe the principle of sexual moral, to sexual offences. The indicated author defined sexual moral as a mode of sexual relations [6].

Despite the fact that the principles of Soviet sexual moral required establishment of sexual relations within the institute of marriage, there was not criminal responsibility for extra-matrimonial sexual relations. Consequently, definition of the social and legal nature of the subsume of sexual crimes via characteristic of the principles of sexual moral cannot be called absolutely accurate. Due to this D.B. Bugybay mentioned that interference of the state in the mode of sexual relations is limited to the most socially dangerous cases of its violation.

A.N. Ignatov’s opinion was somewhat different from the above, he supposed that sexual crimes are gross violations of moral norms, extreme forms of immoral behavior. Pointing out immorality of any crime, A.N. Ignatov distinguished as an essential characteristic of sexual crimes the fact that they are related to violation of foundations of moral principles in the essence. At the same time A.N. Ignatov determined a separate group of relations in the entire system of moral values, which he called sexual morality, and in which he included not only the rules of people's behavior in sexual relations, but also ethic and esthetic views, customs of the society, concerning the sex questions [7, p. 311]. Professor R.I. Lyublinsky also adhered to the opinion that sexual crimes should include procuration, maintenance of nests of vice, recruitment of women for prostitution and involvement in prostitution, pimping, distribution of pornographic works, arrangement of cynical shows, public impudence. This position was taken by many scientists [8, p. 277].

It can be concluded from the above opinions that the social nature of sexual crimes (especially crimes, related to sexual violence in respect of relatives and other family members) cannot be narrowed to crimes of exclusively sexual orientation, including violent ones. In our opinion, its adherents were more consistent than the scientists, that, relying on system-forming importance of sexual mode, limited the objects of sexual crimes only to sexual interests of a person. Those, who defended the role of sexual mode as a social basis of criminalization of sexual delicts inconsistently, came to the conclusion on the need of amendment of the structure of the special part of the Criminal Code of the RSFSR.

It seems that those scientists were governed by the social and legal nature of relations, put under the criminal law protection, who interpreted sexual mode not as rules of communication of sexual partners, but as socially specified and socially important system of ethical and moral values, performing the positive role a sort of social regulator of relations between people. This becomes especially important, if sexual violence acts are committed in respect of the family members and relatives. Within the researched criminal offences the family upbringing, based, first of all, on moral upbringing, including, sexual upbringing in the family from early childhood, is important, no doubt. This conclusion is confirmed by criminological research of the personality of criminals, committing sexual violence acts in respect of relatives and other family members.

Inclusion of obligatory absence of close kinship of sexual partners in the content of the requirements of normal sexual mode of the family life must be natural and legislatively registered, despite the fact that the content of sexual moral (sexual mode) is not formalized and is rather abstract, which is typical for ideas of moral and morality. The need, including express criminal law prohibition of any sexual relations between relatives and other family members, excluding marriage partners, arises from this.

Amendments and addenda to the elements of crimes, infringing sexual inviolability and sexual freedom of a person, proposed by us, prohibit violation of normal sexual mode of the family life. In this connection, a new additional immediate object of reviewed crimes arises – normal sexual mode of the family life, which means an aggregate of social relations, ruling out possibility of sexual ties between relatives and other family members (excluding marriage partners), as well as moral health of a person.

Viewing the features of the immediate object of sexual violence assaults, one should dwell specially on a minor victim. The legal status of a minor person includes its age criteria as an obligatory feature (age limit). By a minor person the civil and family legislation mean a person that did not reach the age of 18 years.

Criminal legislation operates another feature – young victim. A logical question arises. What is the age limit: is it a person that did not reach the age of 14 or 12 years, or does the term “young” contain another characteristic of a person along with the age?

Norms of the international law do not give the concept of young age and minority, but operate the concept of a “child”. So, the United Nations Convention on the Rights of the Child defines that “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” [9]. Consequently, there is no age restriction between minor persons, moreover, in some foreign countries majority occurs not at the age of 18 years old, but at other age – early or later.

Meanwhile, the status of a young person differs from the status of a minor person not so much by “quantitative” features, as by “quality” features. Very often young age causes helpless state of a person. In any case, a young person cannot implement his right for protection from crimes by himself, hereby, either physically, or legally. Consequently, the CCoRK must give the concept and age criteria of a young person, as a person that did not reach the age of 12 years old.

In our opinion, fixation of two independent criminal law concepts of a “young” and a “minor” victim will allow to reflect the essential, and not only age specific features of the legal status of persons, that did not reach the certain age. Consequently, it is required to establish the age of victims legislatively. A minor victim is a person that did not reach the age of eighteen years old, and a young victim is person that did not reach the age of twelve years old. Amendments made in the CCoRK, concerning the victim’s age will, no doubt, play their positive role – this will allow to avoid broad interpretation of the concept of a minor person and a young person.

It should be noted that in the General part of the CCoRK there exist provisions, concerning the subject immediately studied by us. Due to the need of improvement of the criminal law measures of counteraction to sexual violence in the family we propose to make amendments in the norms of the General part of the CCoRK.

It was established by the implemented research that alcoholism and drug addiction are the determining factors to sexual violence crimes in the family. Most of sexual violence crimes in the family are committed in the state of alcoholic or drug intoxication. As a rule, persons, committing them, are either alcohol or drug addicts (i.e. are registered in the narcological dispensaries) or abuse alcoholic drinks systematically. In this context we deem it correct to preserve in the new CCoRK compulsory treatment of alcohol or drug addition, applicably to the persons that suffered from them, and hereby committed crimes in the state of intoxication. This norm is provided for in p.4 part 1 of art. 91 of the CCoRK (Compulsory medical measures can be prescribed by the court to the persons: 4) that committed a criminal offence and are recognized to be in need of treatment from alcoholism, drug and toxic addiction).

In accordance with the legislation of the Republic of Kazakhstan compulsory treatment of persons, suffering from psychic diseases is possible only subject to certain conditions, one whereof is commitment of a socially-dangerous act by a mental patient. Professor Y.M. Antonyan calls fairly “to revise our attitude to mentally sick persons, if they commit socially-dangerous acts, so that reliably to protect people from aggressive offences of such persons. Hereby, of course, humane treatment of such patients is required, but under conditions of strict isolation” [10, p. 187].

One of the most disgusting and dangerous manifestations of a sexual crime is pedophilia. Not all people, suffering from pedophilia, are insane at the moment of commitment of a sexual act. At the same time, it should be noted that psychiatric help to pedophiles is necessary. It is established legislatively that enforcement actions can be applied to “persons at the age of over 18 years old, suffering from disorders of sexual preference (pedophilia), not ruling out mental capacity, that committed crimes against sexual inviolability of a minor person, a person that did not reach the age of fourteen years old. There are grounds to assert that wide use of this regulatory provision will, certainly, produce a positive effect on prevention of sexual violence crimes in the family.

We have come to the conclusion on the need to introduce the elements of criminal offences, determining direct criminal law prohibitions of sexual violence in respect of relatives and other family members, in the articles, providing for responsibility for sexual violence crimes. In this connection it seems expedient:

- to supplement part 2 of art. 120 of the CCoRK with p. “5” to read as follows: “5) committed in respect of an adult female relative or other female family member”; to supplement part 2 of art. 121 of the CCoRK with p. “5” to read as follows: “5) committed in respect of an adult relative or other family member”;

- to supplement part 3 of art. 120 of the CCoRK with p. “5-1” to read as follows: “5-1) are committed in respect of a minor person by a relative, other family member”; to supplement part 3 of art. 121 of the CCoRK with p. “5-1” to read as follows: “5-1) are committed in respect of a minor person by a relative, other family member”;

- to restate part 4 of art. 120 of the CCoRK to read as follows: “Acts provided for by parts one, two and three of the present article if they are committed in respect of a girl that knowingly did not reach the age of twelve”;

- to restate part 4 of art. 121 of the CCoRK to read as follows: “Acts provided for by parts one, two and three of the present article if they are committed in respect of a boy that knowingly did not reach the age of twelve”.

In accordance with the proposed amendments and for the purpose of uniform understanding of criminal law protection of relatives and other family members from sexual attacks it is required to supplement art. 123 of the CCoRK with part two to read as follows: “2. The same act, committed in respect of a minor person, as well as in respect of a minor relative or other family member”.

For art. 124 of the CCoRK we propose the following amendments:

- to restate part 1 of art. 124 of the CCoRK to read as follows: “Commitment of non-violent lecherous actions in respect of a girl (boy) that knowingly did not reach the age of twelve”;

- to restate part 2 of art. 124 of the CCoRK to read as follows: “The same act, committed in respect of a girl (boy) that knowingly did not reach the age of twelve, by a parent, teacher or other person, on whom duties of upbringing are imposed by the law of the Republic of Kazakhstan, as well as by a relative or other family member”.

Introduction of amendments and addenda in criminal legislation of the Republic of Kazakhstan is stipulated by weakening of ethical and moral criteria; scarce experience of sexual life; shortcomings in moral formation of a person; unfavorable mass culture with its violence and cruelty. The need in improvement of norms, providing for criminal responsibility for commitment of crimes against sexual inviolability and sexual freedom of a person is justified by the conducted criminological and criminal law analysis of characteristics of sexual violence crimes, committed in respect of relatives and other family members.

BIBLIOGRAPHY

1. Милюков С.Ф. Российское уголовное законодательство. Опыт критического анализа. – СПб.: Издательство «Лань», 2000. – 493 с.

2. Уголовный кодекс Республики Казахстан от 3 июля 2014 года // zakon.kz

3. Уголовное право Республики Казахстан. Особенная часть: Курс лекций. Кн. 1 /Под общ.ред. И.Ш. Борчашвили.- Алматы: Жетижаргы, 2010. – 656 с.

4. Шахов В.И. Насилие в семье: Уголовно-правовое и криминологическое значение. – Ижевск, 2003. – 197 с.

5. Бекмагамбетов А.Б.Новшества Уголовного кодекса Республики Казахстан. Краткий анализ. – Алматы: Жеті Жарғы, 2015. – 74 с.

6. Бұғыбай Д.Б. Уголовное право Республики Казахстан. // www.enu.kz

7. Уголовное право России: Учебник для вузов: В 2-х т. / Под ред. А.Н. Игнатова и Ю.А. Красикова. Т. 2. Особенная часть. – М.: ТК Велби, Изд-во Проспект, 2005. – 843 с.

8. Люблинский П.И. Преступления в сфере половых отношений. – М. – Л., 1925. – 316 с.

9. Конвенция ООН о правах ребенка 20 ноября 1989 года // www.un.org

10. Антонян Ю.М., Ситковский А.Л., Гусева О.Н., Орлова Ю.Р. Педофилия: природа, причины, предупреждение: Аналитический обзор. – М.: Юрлитинформ, 2009. – 287 с.