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Barbarian Diordieva - the lawyer, an analyst.
If you had legal issues, the problems connected with realisation of your rights, and also the questions, concerning legislations, write.
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The rights of women in Ukraine
Legal basis of struggle against violence
The legal aid to persons, подвергшимся to sexual violence, is carried out within the limits of the current legislation and on its legal basis.
Article 152 УК of Ukraine provides the criminal liability for rape, that is the sexual intercourse with the woman contrary to its will and the consent, made with application of physical or mental violence. Specified article has four parts, in each of which the rape, differing is considered by certain set of qualifying signs. They are located in process of increase of public danger of the committed crime.
Regarding 1 specified article criminal punishment for such violent sexual intercourse which is carried out with application of physical violence, threats or with use of a helpless condition of the victim is provided. In this respect articles 152 УК of Ukraine are qualified encroachments in which for realisation of the criminal plan the criminal beats the victim, connects it, etc. (the physical violence), threatens it with beating (mental violence) or uses a helpless condition of the victim who does not have real possibility to show resistance to the tyrant. This helpless condition can be result of illness of the victim (a heat, a postoperative condition, a hypertensive crisis, etc.) . Strong degree of alcoholic intoxication concerns a helpless condition, одурманивание drugs also. Thus from the point of view of the law has no value, whether the criminal has taken advantage of a situation or has intentionally created it, having given to drink the victim, a deceit having entered it soporific, etc. that it could not render it resistance. The rape considered regarding 1 article 152 УК of Ukraine, is punished by imprisonment from 3 till 5 years.
As action of the person which committed earlier similar crimes are qualified. Thus it is meant, that such person is the subject as earlier судимый for rape, and the one who has made similar grave crime, but to responsibility has not been involved. Punishment as regards 2 articles 152 УК of Ukraine is defined in the form of imprisonment for the term from 5 till 10 years. Even more severe punishment - regarding 3 articles 152 УК of Ukraine providing responsibility for rape, made by a group of persons, and also rape of the minor (from 7 till 12 years of imprisonment). And, at last, the part of 4 articles 152 УК of Ukraine provides responsibility for the rape which has entailed especially heavy consequences, rape of the juvenile. This kind of rape is punished by imprisonment for the term from 8 till 15 years. Especially heavy consequences according to specified article suicide, sincere illness, etc. admit, for example, The victim, grown out of the encroachment made concerning it.
As questions of qualification of rapes are within the competence of law enforcement bodies, we will be limited to the told. For the victim it is important to know the following. Rape such sexual intercourse which is made against its will and desire admits. Sometimes absence of the consent of the woman on fulfilment with it of sexual intercourse obviously, for example an attack in the street, etc. the unknown person etc. But other cases are frequent also. Frequently the victim brings an attention to the question on responsibility for rape of the person familiar to it. In a similar situation to admit the rape fact it is more difficult: it is necessary to be assured, that the victim has unambiguously declared the disagreement to enter sexual relations and that for suppression of its will the encroaching used physical or mental violence.
At use by the criminal of the physical or mental violence provided by a part of 1 article 152 УК of Ukraine, criminal case about rape is raised only under the complaint of the victim. The statement of the victim for rape can be written or oral. Such statement in police station or Office of Public Prosecutor in a place of fulfilment of a crime is handed in. At an oral statement in law enforcement bodies the report signed by the victim should be made. All data informed by it are brought in it. Under the statement of the victim the decision on excitation of criminal case or on refusal in excitation of criminal prosecution can be accepted. It is necessary to remember, that after the made decision on excitation of criminal case it cannot be stopped on motives of reconciliation of the victim and guilty. Besides, addressing with the statement for rape fulfilment, the victim should know, that it bears responsibility for reliability of data informed by it.
Interests of the victims who are in a helpless condition, depending on accused or for other reasons not having possibilities to protect the rights and legitimate interests, are defended by the public prosecutor who has the right to bring action and in the absence of the complaint of the victim (for example, in case of fulfilment of a crime concerning aged, the invalid, etc.). Similar practice is rare enough. Basically an occasion to criminal case excitation to signs of a part of 1 article 152 УК of Ukraine is the statement (complaint) of the victim.
The reference in law enforcement bodies - the right of the victim. Sometimes women, owing to set of the reasons, prefer not to declare about made concerning their encroachment. It would be desirable, that at acceptance of such decision of the woman remembered: impunity of the criminal leads to fulfilment of new encroachments by it, and their cynicism and impudence grow off and on. It is necessary to consider also, that the law does not connect with will suffered excitation of criminal prosecution in parts 2 - 4 articles 152 УК of Ukraine. Such affairs are raised and in the absence of the complaint.
Disclosing of rapes, especially when the criminal was not familiar earlier with the victim, represents considerable difficulties. Here much depends on behaviour of the suffered. It is very important, that the victim of violence has as soon as possible addressed in law enforcement bodies. Before it will be examined by the doctor, it is impossible to make actions in which result crime traces can be destroyed: to wash or take a shower, erase, clean clothes, i.e. it is necessary to refuse everything, that it would be desirable to make first of all. On survey by the medicolegal expert the victim can receive a direction in police station on a residence. If there is a possibility to keep in inviolability conditions in which the crime (when it is made on a residence of the victim, etc.) is committed It is necessary to make it till the moment of survey of a scene workers of law enforcement bodies. It is important to keep in inviolability and to transfer to law enforcement bodies all clothes which were on the victim at the moment of crime fulfilment. Modern криминалистическая the science possesses a rich arsenal of techniques. By means of expert research the proofs exposing the criminal can be received.
The woman, подвергшаяся to rape and handed in the statement in law enforcement bodies, at criminal case excitation should be recognised by the victim. The inspector has not the right to postpone acceptance of such decision for finishing stage of investigation. The person to whom the crime does moral, physical or property harm admits to victims. The law gives suffered following rights: to give evidences on business, to show proofs, to get acquainted with all materials of business from the moment of the preliminary investigation termination, to participate in judicial session, to declare taps. Victims can bring also complaints to actions of the person making inquiry, the inspector, the public prosecutor, vessels, on a sentence or definitions of court and on decisions of the national judge.
On affairs about the crimes which consequence was the death of the woman, one of its near relations admits to victims. As representatives of victims in business lawyers, near relations and other persons can participate. Owing to the law they are competent to represent legitimate interests of victims, the civil claimant and the civil respondent.
The victim can declare the civil suit compensation property and mental cruelty. The property damage can be defined proceeding from cost of necessary treatment and the subsequent rehabilitation, etc. For civil suit giving it is expedient to monetary indemnification for the damaged clothes to keep documents (receipts, checks), confirming additional expenses.
Article 153 УК of Ukraine provides responsibility for violent satisfaction of sexual passion in the unnatural way.
Other kind of sexual violence the criminal law recognises “compulsion of the woman to the introduction into sexual relations or to satisfaction of sexual passion in other form the person in which relation the woman was financially or on service dependent” (article 154 УК of Ukraine). In these cases the mental violence over the woman is carried out. It is put before a choice: performance of sexual requirements or deterioration of material or other parties of existence (salary decrease, award deprivation, transfer into heavier work, etc.). The Career dependence within the limits of this article understand widely enough. Under it fall not only sexual harassments of officials and officials, but. For example, the corresponding behaviour of the trainer of a command, the persons who are carrying out tutorial duties, with whom the woman constantly or temporarily lives, etc. For approach of responsibility is enough, the fact of rendering of mental violence in the purposes specified above.
Declining the woman to the introduction into sexual relations or to satisfaction of sexual passion into other form, the criminal can mean sexual relations not only with it, but also with other persons. It does not release it from the criminal liability under article 154 УК of Ukraine. When in the purposes specified above various kinds of encouragement (gifts, salary increase, etc.) are used Responsibility under article 154 УК of Ukraine does not come. After all in this case for the woman it is necessary - to concede a freedom in choosing or not to sexual harassments. The sense of article 154 УК of Ukraine consists that the woman is in desperate position and is deprived the option of the sexual partner. Under given article punishment in the form of the penalty to fifty free minima of incomes of citizens or arrest on lines about six months is provided. For this structure of a crime rendering on women only mental pressure is characteristic. If for achievement of the sexual harassments the criminal uses physical violence its actions fall under rape signs.
Under article 155 operating УК the sexual intercourse with the person who has not reached a sexual maturity is punished. The sexual maturity is defined on a number of medical criteria, and its approach is usually connected with achievement of 18 years. Responsibility under given article comes even when concerning the victim was not used neither mental, nor physical violence if the criminal understood or could understand, that deals not reached sexual maturity. Achievement of the victim of age of 18 years on what its partner has been informed, excludes responsibility approach under given article УК. When the victim was not agree the introduction into sexual relations and concerning it violence any kind has been applied, responsibility comes under article 152 УК of Ukraine. As the question is solved and at the consent of the victim if she owing to the early childhood or other reasons could not understand character of actions made with it. Specified article of the Criminal code is caused by the raised care of the legislator of normal sexual development and health of teenagers.
At the same time intimate relations between minors not necessarily involve punishment under article 15 УК of Ukraine.
Judiciary practice considers the person and age of both minors, consequences, and also other concrete circumstances of business and often prefers not to use a measure of criminal punishment, being limited to educational actions. Usually such affairs arise at the initiative of parents of minor victims.
One more kind of sexual violence dissolute actions concerning minors that involves imprisonment for the term up to 3 years admit. Not encroaching on sexual inviolability of the victim, such actions are directed on satisfaction of sexual passion of the criminal. If the violence was thus applied, the criminal is made answerable and under other articles УК (for example, for threat by murder, causing of physical injuries, etc.). On affairs of the given category the initiative of excitation of criminal case, as a rule, proceeds from parents of victims or persons, their replacing.
The short review of the current legislation directed on protection of women from sexual encroachments, shows, that it comprehensively enough regulates these правоотношения. A problem, most likely, not in defects of a law in force, and in lacks of practice of its application.
Regarding 1 specified article criminal punishment for such violent sexual intercourse which is carried out with application of physical violence, threats or with use of a helpless condition of the victim is provided. In this respect articles 152 УК of Ukraine are qualified encroachments in which for realisation of the criminal plan the criminal beats the victim, connects it, etc. (the physical violence), threatens it with beating (mental violence) or uses a helpless condition of the victim who does not have real possibility to show resistance to the tyrant. This helpless condition can be result of illness of the victim (a heat, a postoperative condition, a hypertensive crisis, etc.) . Strong degree of alcoholic intoxication concerns a helpless condition, одурманивание drugs also. Thus from the point of view of the law has no value, whether the criminal has taken advantage of a situation or has intentionally created it, having given to drink the victim, a deceit having entered it soporific, etc. that it could not render it resistance. The rape considered regarding 1 article 152 УК of Ukraine, is punished by imprisonment from 3 till 5 years.
As action of the person which committed earlier similar crimes are qualified. Thus it is meant, that such person is the subject as earlier судимый for rape, and the one who has made similar grave crime, but to responsibility has not been involved. Punishment as regards 2 articles 152 УК of Ukraine is defined in the form of imprisonment for the term from 5 till 10 years. Even more severe punishment - regarding 3 articles 152 УК of Ukraine providing responsibility for rape, made by a group of persons, and also rape of the minor (from 7 till 12 years of imprisonment). And, at last, the part of 4 articles 152 УК of Ukraine provides responsibility for the rape which has entailed especially heavy consequences, rape of the juvenile. This kind of rape is punished by imprisonment for the term from 8 till 15 years. Especially heavy consequences according to specified article suicide, sincere illness, etc. admit, for example, The victim, grown out of the encroachment made concerning it.
As questions of qualification of rapes are within the competence of law enforcement bodies, we will be limited to the told. For the victim it is important to know the following. Rape such sexual intercourse which is made against its will and desire admits. Sometimes absence of the consent of the woman on fulfilment with it of sexual intercourse obviously, for example an attack in the street, etc. the unknown person etc. But other cases are frequent also. Frequently the victim brings an attention to the question on responsibility for rape of the person familiar to it. In a similar situation to admit the rape fact it is more difficult: it is necessary to be assured, that the victim has unambiguously declared the disagreement to enter sexual relations and that for suppression of its will the encroaching used physical or mental violence.
At use by the criminal of the physical or mental violence provided by a part of 1 article 152 УК of Ukraine, criminal case about rape is raised only under the complaint of the victim. The statement of the victim for rape can be written or oral. Such statement in police station or Office of Public Prosecutor in a place of fulfilment of a crime is handed in. At an oral statement in law enforcement bodies the report signed by the victim should be made. All data informed by it are brought in it. Under the statement of the victim the decision on excitation of criminal case or on refusal in excitation of criminal prosecution can be accepted. It is necessary to remember, that after the made decision on excitation of criminal case it cannot be stopped on motives of reconciliation of the victim and guilty. Besides, addressing with the statement for rape fulfilment, the victim should know, that it bears responsibility for reliability of data informed by it.
Interests of the victims who are in a helpless condition, depending on accused or for other reasons not having possibilities to protect the rights and legitimate interests, are defended by the public prosecutor who has the right to bring action and in the absence of the complaint of the victim (for example, in case of fulfilment of a crime concerning aged, the invalid, etc.). Similar practice is rare enough. Basically an occasion to criminal case excitation to signs of a part of 1 article 152 УК of Ukraine is the statement (complaint) of the victim.
The reference in law enforcement bodies - the right of the victim. Sometimes women, owing to set of the reasons, prefer not to declare about made concerning their encroachment. It would be desirable, that at acceptance of such decision of the woman remembered: impunity of the criminal leads to fulfilment of new encroachments by it, and their cynicism and impudence grow off and on. It is necessary to consider also, that the law does not connect with will suffered excitation of criminal prosecution in parts 2 - 4 articles 152 УК of Ukraine. Such affairs are raised and in the absence of the complaint.
Disclosing of rapes, especially when the criminal was not familiar earlier with the victim, represents considerable difficulties. Here much depends on behaviour of the suffered. It is very important, that the victim of violence has as soon as possible addressed in law enforcement bodies. Before it will be examined by the doctor, it is impossible to make actions in which result crime traces can be destroyed: to wash or take a shower, erase, clean clothes, i.e. it is necessary to refuse everything, that it would be desirable to make first of all. On survey by the medicolegal expert the victim can receive a direction in police station on a residence. If there is a possibility to keep in inviolability conditions in which the crime (when it is made on a residence of the victim, etc.) is committed It is necessary to make it till the moment of survey of a scene workers of law enforcement bodies. It is important to keep in inviolability and to transfer to law enforcement bodies all clothes which were on the victim at the moment of crime fulfilment. Modern криминалистическая the science possesses a rich arsenal of techniques. By means of expert research the proofs exposing the criminal can be received.
The woman, подвергшаяся to rape and handed in the statement in law enforcement bodies, at criminal case excitation should be recognised by the victim. The inspector has not the right to postpone acceptance of such decision for finishing stage of investigation. The person to whom the crime does moral, physical or property harm admits to victims. The law gives suffered following rights: to give evidences on business, to show proofs, to get acquainted with all materials of business from the moment of the preliminary investigation termination, to participate in judicial session, to declare taps. Victims can bring also complaints to actions of the person making inquiry, the inspector, the public prosecutor, vessels, on a sentence or definitions of court and on decisions of the national judge.
On affairs about the crimes which consequence was the death of the woman, one of its near relations admits to victims. As representatives of victims in business lawyers, near relations and other persons can participate. Owing to the law they are competent to represent legitimate interests of victims, the civil claimant and the civil respondent.
The victim can declare the civil suit compensation property and mental cruelty. The property damage can be defined proceeding from cost of necessary treatment and the subsequent rehabilitation, etc. For civil suit giving it is expedient to monetary indemnification for the damaged clothes to keep documents (receipts, checks), confirming additional expenses.
Article 153 УК of Ukraine provides responsibility for violent satisfaction of sexual passion in the unnatural way.
Other kind of sexual violence the criminal law recognises “compulsion of the woman to the introduction into sexual relations or to satisfaction of sexual passion in other form the person in which relation the woman was financially or on service dependent” (article 154 УК of Ukraine). In these cases the mental violence over the woman is carried out. It is put before a choice: performance of sexual requirements or deterioration of material or other parties of existence (salary decrease, award deprivation, transfer into heavier work, etc.). The Career dependence within the limits of this article understand widely enough. Under it fall not only sexual harassments of officials and officials, but. For example, the corresponding behaviour of the trainer of a command, the persons who are carrying out tutorial duties, with whom the woman constantly or temporarily lives, etc. For approach of responsibility is enough, the fact of rendering of mental violence in the purposes specified above.
Declining the woman to the introduction into sexual relations or to satisfaction of sexual passion into other form, the criminal can mean sexual relations not only with it, but also with other persons. It does not release it from the criminal liability under article 154 УК of Ukraine. When in the purposes specified above various kinds of encouragement (gifts, salary increase, etc.) are used Responsibility under article 154 УК of Ukraine does not come. After all in this case for the woman it is necessary - to concede a freedom in choosing or not to sexual harassments. The sense of article 154 УК of Ukraine consists that the woman is in desperate position and is deprived the option of the sexual partner. Under given article punishment in the form of the penalty to fifty free minima of incomes of citizens or arrest on lines about six months is provided. For this structure of a crime rendering on women only mental pressure is characteristic. If for achievement of the sexual harassments the criminal uses physical violence its actions fall under rape signs.
Under article 155 operating УК the sexual intercourse with the person who has not reached a sexual maturity is punished. The sexual maturity is defined on a number of medical criteria, and its approach is usually connected with achievement of 18 years. Responsibility under given article comes even when concerning the victim was not used neither mental, nor physical violence if the criminal understood or could understand, that deals not reached sexual maturity. Achievement of the victim of age of 18 years on what its partner has been informed, excludes responsibility approach under given article УК. When the victim was not agree the introduction into sexual relations and concerning it violence any kind has been applied, responsibility comes under article 152 УК of Ukraine. As the question is solved and at the consent of the victim if she owing to the early childhood or other reasons could not understand character of actions made with it. Specified article of the Criminal code is caused by the raised care of the legislator of normal sexual development and health of teenagers.
At the same time intimate relations between minors not necessarily involve punishment under article 15 УК of Ukraine.
Judiciary practice considers the person and age of both minors, consequences, and also other concrete circumstances of business and often prefers not to use a measure of criminal punishment, being limited to educational actions. Usually such affairs arise at the initiative of parents of minor victims.
One more kind of sexual violence dissolute actions concerning minors that involves imprisonment for the term up to 3 years admit. Not encroaching on sexual inviolability of the victim, such actions are directed on satisfaction of sexual passion of the criminal. If the violence was thus applied, the criminal is made answerable and under other articles УК (for example, for threat by murder, causing of physical injuries, etc.). On affairs of the given category the initiative of excitation of criminal case, as a rule, proceeds from parents of victims or persons, their replacing.
The short review of the current legislation directed on protection of women from sexual encroachments, shows, that it comprehensively enough regulates these правоотношения. A problem, most likely, not in defects of a law in force, and in lacks of practice of its application.