25SOME ISSUES OF QUALIFICATION OF THE RAPE CRIME
Uralov Sarbon Sardorovich,
Lecturer of the Criminal Procedure Law Department of Tashkent State University of Law E-mail: richmond0770@gmail. com)
A R T I C L E I N F O
A B S T R A C T
Keywords: sexual violence, sexual
satisfaction in an unnatural way, sexual freedom, sexual integrity, defloration signs, sexual aggression.
The article describes the issues that need to be addressed in the investigation of crimes against sexual freedom. Problems and shortcomings in the detection of the crime, evaluation of the evidence, qualification are described, as well as practical proposals and recommendations for their elimination are developed. In addition, both practical and theoretical views were discussed in order to ensure a full, impartial and comprehensive review of the case in the pre-trial investigation, preliminary investigation and trial.
Due to the liberalization of criminal penalties in our country, it should be noted that in our national legislation, rape and unnatural satisfaction of sexual needs have a place in criminal law as a separate crime. The Resolution of the President of the Republic of Uzbekistan "On measures to radically improve the system of
criminal and criminal procedure legislation" refers to "international unification". The purpose of the revision of the Criminal Code is based on a radically new form and the procedure is also the international unification of criminal law. As proof of our opinion, we can say that if a person commits these two types of crime for the first time
together, the person's criminal liability and punishment are determined on aggravating grounds. Therefore, the crime of rape and unnatural satisfaction of sexual needs should be reduced to a single article. Because there is no separate motive and purpose for committing these two types of crimes. Based on the inner experiences of the person, one is connected to the other based on membership. Therefore, foreign experiments found it expedient to form a single content. As a result of our study of foreign law, we have found that in most countries of the world, "rape" and "unnatural sexual gratification" are considered as one-off crimes, and their names are common in criminal codes.
In particular, Article 178 of the Criminal Code of the Spanish state is called "sexual aggression". Article 22223 of the French Criminal Code is also called "sexual aggression". In the Criminal law of the Federal Republic of Germany, rape and unnatural sexual gratification are also criminal offenses and are referred to as "sexual abuse".
Therefore, based on international experience, we should combine Articles 118 and 119 of the Criminal Code and name its disposition as follows: "intimidation and aggression". The object of the crime is the sexual freedom of the
individual and the objective side must be the use of force, the use of vulnerability, or a real threat sufficient to intimidate. The subject of the crime is a sane individual of 14 years of age. Subjectively, it is intentional. At the same time, we must not ignore the fact that, according to the form of revenge, it is committed intentionally.
There are many problems in theory and practice in prosecuting and punishing a person who has committed a crime of rape. One of the shortcomings of the crime of rape is that it is a lack of qualification. If the revenge by the person is aimed solely at rape, but the victim died during the rape, how was the issue of his qualification resolved? Paragraph 13 of the Plenum of the Supreme Court on the Judicial Practice of Intentional Murder states that intentional homicide in connection with rape or unnatural satisfaction of sexual needs by sexual means the deprivation of life of the victim in the process of committing crimes against liberty should be understood. However, in the case of premeditated murder, in a sense, there must be intent. In this case, too, the social status and responsibility of the accused were assessed as an aggravating circumstance. Practical investigations are qualified by a combination of Articles 97 and 118 of
the Criminal Code if the victim dies as a result of rape by the accused. Such a qualification of an act can be found to be an error. Since revenge is aimed at rape, Article 118, Part 3 of the Criminal Code requires the addition of a separate clause "d1) in the event of the death of the victim."
In most cases, the crime of rape is latent, making it difficult to study the causes and circumstances of such crimes. Nevertheless, due to the general nature of the crimes committed, the lack of comparisons based on the general nature of the crimes committed in neighboring countries, and the forecasting and prevention of rape soon, the weakness of preventive measures.
There are differing views on what gender the victim of rape should be. It has not been decided which gender will be the victim. It is necessary to explain why such an act is called "rape", and the word "honor" is mainly a phenomenon of which gender. The victim of a rape offense can only be a woman, and neither her moral image nor her relationship with the offender is relevant to qualifying the offense as rape [1]. Such theoretical knowledge is reflected in the legislation of many countries. In particular, the decision of the Plenum of the Supreme Court of the Republic of Uzbekistan "On case law on cases of rape and sexual
abuse" emphasizes a woman as a victim. However, the Criminal Code of the Republic of Uzbekistan does not specify whether the victim is a woman or a man. Conflicts in such legislation preclude the qualification of a socially dangerous act and require action based on legal analogies.
The qualification of a crime is always related to the selection and application of a norm of criminal law. As a result of the qualification, the correspondence between the signs of the act and the signs of a specific crime is determined. Another group of scholars, pointing out the specific criminal legal significance of the optional features of the objective aspect of the crime, call them a "trinity" with a specific criminal significance. They are:
a) is directly provided for in the norms of criminal law as a necessary feature of the crime;
b) the aggravating part of the article of the Special Part of the Criminal Code as an aggravating circumstance of the crime;
c) "mitigating or aggravating circumstances" in sentencing [2].
It is known that the composition of a crime consists of a set of necessary and sufficient signs to identify a person as having committed a crime. Therefore, the fact that the method of committing a
crime is directly specified in the disposition of the article indicates that it is a necessary sign of the crime.
A criminal case shall be instituted upon written and oral applications. If the victim gives false testimony, he/she will be warned that he/she will be prosecuted and if he/she agrees to withdraw the application, he/she will be reminded that no case will be initiated. This is stated in the concluding part of the application. Usually, the crime committed will be covered in detail in the application. In particular, the victim reports traces of violence. In this case, a criminal case is initiated only if there is no doubt about the truth of what the victim said. If the victim and the perpetrator have previously been in a friend, relative, or other relationship, it is required to verify that this may be revenge or a personal account. In this case, the nature of the relationship between the victim and the suspect is determined. The 'victim' often tries to blame one person to hide the premarital pregnancy in front of family members. If a long time has elapsed between the use of force and the application, if the victim speaks of circumstances far removed from reality, if there is any doubt as to the veracity of these claims, the investigator shall order an
expert examination to clarify these circumstances. It should be noted that the investigation of the crime of rape has several specific features. They are, first of all, reflected in the fact that criminal proceedings under Part 1 of Article 118 of the Criminal Code are initiated only at the request of the victim. Such restrictions on the initiation of criminal proceedings make it difficult to testify in the circumstances of the case, to interrogate the victim and the suspect, and to conduct investigative actions that may be carried out after the initiation of a similar criminal case. On the contrary, in the presence of the qualifying features provided for in parts 2, 3, and 4 of Article 118 of the Criminal Code, criminal proceedings are instituted regardless of the will of the victim.
As for the qualification of the crime:
Conditions for instituting criminal proceedings regardless of part 1 of Article 118 of the Criminal Code;
Transfer of rape from "part 3" to part 2 of Article 118 of the Criminal Code "concerning a close relative" (the purpose of which applies more to the relationship between spouses);
It is expedient to qualify the crime of rape of a person under 14 and 18 years of age and sexual
intercourse with a person under 16 years of age in one article, with Article 128 of the Criminal Code being called "violation of the sexual integrity of a person incapable of full legal capacity". will be. In this case, the qualification shall not be affected by the fact that it is not clear to the accused whether the person has reached the full legal capacity or not.
The qualification for rape offenses must specify the following:
1) whether the rape was committed (whether the sexual need was forcibly satisfied, if so, whether it was natural or unnatural, whether the rape was not instigated;
2) what method was used by the offender to have sex with the victim woman. The law defines three types of sexual violence, and it is recognized that sexual intercourse is committed with the use of force: physical violence, intimidation, use of the victim's helplessness;
3) against whom the crime of rape was committed (a woman, a minor), whether she had a physical or mental disability;
4) who committed the rape, whether he has committed such crimes before, whether he is a very dangerous recidivist (if the rape was committed by a group of individuals, what is the role and degree of guilt of each of them;
5) what are the consequences of rape, whether they are very serious (death of the victim, unwanted pregnancy, infliction of serious bodily injuries, the origin of mental illness, skin-genital disease, etc.);
6) what is the level of material and moral damage caused to the victim as a result of rape;
7) determination of intent to commit a crime of rape;
8) what circumstances led to the commission of the crime.
Therefore, once a case of rape has been established, the investigator must determine:
a) what exactly is physical violence;
b) the form and content of intimidation;
c) on what the victim's helplessness is based on and what it is expressed.
According to the jurisprudence, physical violence in the form of rape can be manifested in the twisting of the hands, strangulation of the throat, infliction of bodily injuries, the use of painkillers, and so on. Overcoming the victim's resistance through psychological violence can be expressed primarily through intimidation with the use of a weapon, blackmail, or pressure using the victim's service or another dependency. The victim's debilitating
condition may be due to his or her physical disabilities, mental disorder, illness, or inability to control himself or herself as a result of drinking alcohol or taking drugs [3]. It is advisable to distinguish the following typical situations that occur at the initial stage of qualification in cases of rape:
1) the perpetrator and the victim knew each other before;
2) the victim recognizes one participant in the rape as a group;
3) the perpetrator is not familiar with the victim, but can see him and recognize him by the appearance of the offender;
4) the victim has not seen the offender (s) due to a sudden attack or helplessness, and therefore cannot recognize them.
Special emphasis should be placed on the qualification of crimes against sexual freedom, ie when examining the suspect's involvement in the case, if the suspect states that sexual intercourse is voluntary, two issues should be addressed:
a) whether there was violence by the suspect and whether the victim resisted those actions;
b) whether the relationship between the suspect and the victim was by mutual consent.
As a result of the resistance, there are traces of violence and resistance on the clothes and body of
the suspect and the victim. Witness testimony is also important for the proper resolution of the case. Witnesses testify that they heard or saw the victim's voice, screams, and forced the girl to the crime scene.
It is also important to determine how long after the crime was committed, the victim contacted law enforcement. The investigation examines the relationship between the victim and the suspect, how long they have known each other, which of them is more prone to intimacy, and how the victim behaves with the suspect or other men if he or she is familiar with the suspect. In this case, it is determined what factor caused the formation of the motive. In the meantime, it should also be checked that he was in a close relationship with someone. It is determined who arranged the meeting between the suspect and the victim on the day of the crime, and whether the victim concealed the situation, and if so, for what purpose. If the suspect confirms the meeting but denies having sex, then the traces of sexual intercourse, ie the presence of traces of sperm on the victim's body, clothing, damage to clothing (signs of defloration) are checked.
At times, the victim may testify boldly about the suspect's clothing and individual characteristics. If the suspect is familiar with the victim and
admits that he or she did not meet that day and has an alibi, then the case is investigated as a crime committed by a stranger. If the crime was committed in the suspect's house or the house of his acquaintances, relatives, the condition of the equipment in this house is asked to determine whether the victim was in this house (the victim was not able to know in advance about the suspect's house). If the suspect admits that the sex was voluntary and that there was a warm relationship between them, the correspondence between them, the diary, the photos, and people who have known the relationship for a long time ask how their relationship was in practice. If the warmth of the relationship between them is detected, it is asked why these cases are hidden. This leads to the conclusion that the testimony of the suspect is correct. There may be some conflicting facts in qualifying the crime of rape. In this case, the following versions are referred.
Prosecution version: the defendant violated his will against the will of the victim; the version that the accused was at the scene is claimed.
Defensive version: the accused was not present at the scene, did not have sex, or had sexual intercourse at the request of
the applicant, the victim erroneously or intentionally misrepresented the culprit, the applicant was allegedly not raped.
The following facts must be proved in qualifying rape offenses:
- whether there are signs of
rape;
- when, where and in what circumstances the rape took place, if there is a sign of rape;
- whether the rape has a physical or mental appearance;
- whether the victim is in serious condition, what it is;
- What is the condition of the victim, his age, health, the general attitude to men (women);
- description of the accused, age, attitude to the victim, mental state, state of conviction;
- the role of each in the case of rape by a group;
- what were the consequences of the rape;
- the cause of bodily injuries;
-pregnancy status;
- is not infected with venereal disease;
- material and moral damage;
- The cause and circumstances of the crime.
When qualifying crimes against sexual freedom, special attention should be paid to their criminal nature. In other words, it is determined whether the victim had
sexual intercourse before the rape, and if so, when the fetus or menstruation was present or not. Detailed information will also be obtained as to whether the victim's clothing was preserved during the assault. Otherwise, no consensus can be reached on the composition of the crime. The jurisprudence shows that the majority of rape crimes are the result of alcohol consumption. To determine whether the victim was helpless, whether he understood the incident, whether he had the opportunity to resist, whether he had consumed alcohol (before the incident), if so, how much and what kind of drink is determined. The initiation of criminal proceedings against this socially dangerous act and its qualification is a very sensitive issue. The version that the person may be slandering should be checked separately. The delay in
applying based on such a version, the influence of close relatives, the approximate description of the time and place of the aggression, the existence of serious discrepancies between the victim's testimony and the information gathered on the case, cases where the instructions are incorrect, free, careless talk about the incident are taken. Besides, to check this version, the following questions were asked: how was it known to the close relatives that the victim had been raped, whether he filed the complaint voluntarily or under the influence of other persons, whether there were any signs of aggression, his instructions whether there is a conflict between them, the relationship between the victim and the suspects before the incident, how they met, whether there is a motive for slander (provocation).
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2. Уголовное право. Научно-практический журнал. РФ.:№1/2019г.;
3. Nomusga tegish jinoyatini tergov qilish amaliyoti: O'quv-metodik qo'llanma / SH.T.Ikramov, D.M.Mirazov, B.B.Murodov, B.F.Alimov va boshq. - T.: O'zbekiston Respublikasi IIV Akademiyasi, 2012. - 80 b.;
