Criminal law measures of counteraction to sexual violence in the family
Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016
Author: Alembayev Kairat, Kazakh-American Free University, Kazakhstan
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 . 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
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
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
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
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 .
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,
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
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
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” . 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
- 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.
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Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016