Commentary on Article 120. Rape of the Criminal Code of the Republic of Kazakhstan

Rape, that is, sexual intercourse involving the use of violence or the threat of its use against the victim or other persons, or taking advantage of the victim’s helpless condition, shall be punishable by deprivation of liberty for a term of five to eight years.

Rape: committed by a group of persons or by a group of persons acting upon prior conspiracy; accompanied by a threat of murder, as well as committed with particular cruelty towards the victim or other persons; resulting in the victim contracting a sexually transmitted disease; committed repeatedly; committed by a person in the performance of official duties, shall be punishable by deprivation of liberty for a term of nine to twelve years.

Acts provided for in Parts One or Two of this Article, if they: were excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019; negligently caused grievous bodily harm to the victim, infected her with HIV, or resulted in other grave consequences; were excluded by Law of the Republic of Kazakhstan No. 240-VI dated 1 April 2019; were committed under a state of emergency or during mass riots; were excluded by Law of the Republic of Kazakhstan No. 240-VI dated 1 April 2019; were excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020, —

shall be punishable by deprivation of liberty for a term of twelve to fifteen years, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of ten years.

3-1. Acts provided for in Parts One, Two or Three of this Article, if they: were committed against a minor; were excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020; were committed by a criminal group, —

shall be punishable by deprivation of liberty for a term of fifteen to seventeen years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

3-2. Acts provided for in Parts One, Two, Three or 3-1 of this Article, if they: were committed against two or more minors; were excluded by Law of the Republic of Kazakhstan No. 393-VI dated 30 December 2020; were committed against a minor by her parent, stepfather, teacher or another person upon whom the laws of the Republic of Kazakhstan impose responsibilities for her upbringing, —

shall be punishable by deprivation of liberty for a term of seventeen to twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or life imprisonment.

Acts provided for in Parts One, Two, Three, Paragraph 3) of Part 3-1 and Part 3-2 of this Article, if they were committed against a young child or resulted in the victim’s death through negligence, —

shall be punishable by deprivation of liberty for a term of twenty years, with lifelong deprivation of the right to hold certain positions or engage in certain activities, or life imprisonment.

Rape is one of the most serious infringements upon a woman’s sexual freedom and sexual inviolability.

The public danger of this crime is determined by the fact that it entails grave consequences, adversely affects the victim’s psyche and health, negatively affects offspring, frequently leads to the dissolution of marriages, and contributes to the spread of sexual promiscuity.

The object of this crime is a woman’s sexual freedom. This means that a woman has the right to decide for herself whether to enter into sexual relations with men. The absence of a woman’s consent to sexual intimacy may be evidenced by her clearly and unequivocally expressed refusal and active resistance. Only a female person may be a victim of rape. The victim’s moral character is irrelevant to the offence of rape, including her improper conduct; moreover, liability for raping a prostitute, cohabiting partner or wife is not excluded. The criminal legislation of Kazakhstan protects the sexual freedom of every person, regardless of how that person exercises such freedom.

An additional object of rape is human health.

Sexual freedom is understood as an integral component of a person’s personal freedom, expressed in the fact that the person independently determines how to satisfy their sexual needs. It is possessed by a mentally healthy person who has reached the age of 16. Persons who have not reached this age, as well as mentally ill persons, do not possess sexual freedom. Therefore, in cases of voluntary or forcible sexual intercourse with a person under the age of 16, as well as with a mentally incapacitated person who has reached the age of 16, criminal liability arises under Articles 120–122 of the Criminal Code. In such cases, the object of the crimes provided for in Articles 120, 121 and 124 of the Criminal Code is sexual inviolability. Consequently, the object of rape may only be such sexual freedom where a person’s sexual conduct does not violate the interests of other persons or public interests.

The objective element of rape consists of sexual intercourse with the victim through the use of violence or the threat of its use against the victim or other persons, or through taking advantage of the victim’s helpless condition. Criminal law does not contain its own legal definition of sexual intercourse. Its definition is provided in Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, “On Certain Issues Concerning the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature”, which states that rape should be understood as sexual intercourse in the natural form with a female person against or without her will, committed through the use of violence or the threat of violence against the victim or other persons, or by taking advantage of the victim’s helpless condition.

Acts committed for the purpose of satisfying sexual desire and, under the same circumstances, in an unnatural form with persons of either female or male sex (lesbianism, sodomy, etc.) should be regarded as other violent acts of a sexual nature.

The term “sexual intercourse” is a medical term and must be understood in the manner in which this concept is interpreted by forensic medicine and sexology. Sexual intercourse is a physiological act aimed at procreation and consisting of the introduction of the male sexual organ into a woman’s vagina, regardless of the depth of penetration and the physiological completion of the sexual act.

Sexual intercourse is recognized as rape if the perpetrator engages in it against the woman’s will by using physical violence, threatening the victim or other persons, or taking advantage of her helpless condition. Violence is any physical impact on a person. Physical violence in rape consists of causing bodily harm of varying degrees, ranging from beatings to causing moderate bodily harm. It may be expressed in causing pain, restricting freedom, tying up, squeezing the victim’s neck, that is, in any physical violence that helps overcome the woman’s resistance or creates an inability to resist.

According to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues Concerning the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature”, violence should be understood as the commission of actions aimed at overcoming the resistance of the victim, whether female or male, for example, striking blows, constricting the respiratory tract, holding the victim’s arms or legs, tearing off clothing, etc. Intentional infliction of minor or moderate bodily harm on victims during rape, the commission of other violent acts of a sexual nature, or attempts to commit such acts is covered by the disposition of Article 120 or Article 121 of the Criminal Code and does not require additional qualification.

If moderate or grievous bodily harm is inflicted on the victim after rape or the commission of other violent acts of a sexual nature, this constitutes a concurrence of crimes.

Intentional infliction of grievous bodily harm on the victim during rape or the commission of other violent acts of a sexual nature should be qualified, respectively, under Paragraph 2) of Part 3 of Article 120 of the Criminal Code as rape resulting in other grave consequences, or under Paragraph 2) of Part 3 of Article 121 of the Criminal Code as the commission of other violent acts resulting in grave consequences. The severity of the bodily harm caused shall be established on the basis of an expert opinion.

The unlawful causing of the death of the victim, whether female or male, during rape or other violent acts of a sexual nature, or an attempt to commit the said crimes, as well as after their completion, when committed for the purpose of concealing the act or out of revenge for the resistance offered, shall be qualified under Paragraph 10) of Part 2 of Article 99 and the relevant parts of Articles 120 or 121 of the Criminal Code.

When qualifying the said actions of the perpetrators, the body conducting the criminal proceedings must indicate all established qualifying elements provided for both in Paragraph 10) and in other paragraphs of Part 2 of Article 99 of the Criminal Code, as well as in the relevant parts of Articles 120 or 121 of the Criminal Code.

Physical violence in rape may be exercised not only through mechanical means but also through chemical and biological воздействия.

It should be borne in mind that where a woman simulates rape for the purpose of obtaining material gain, there can be no question of rape. Thus, R., having met L. at one of the city’s nightclubs, invited her to his home. R. lived in a house located in one of the city’s prestigious districts. Having seen the luxury of the house and R.’s prosperous financial circumstances, L., without any persuasion or use of threats or violence, induced R. to engage in sexual intercourse. In the morning, L. called a taxi and, while R. was asleep, went to the police department and reported that in the evening, while at one of the city’s nightclubs, she had met R., who had invited her to his home, and that R., being intoxicated, had initially asked her and subsequently threatened her and used violence against her, as a result of which he had raped her. L. also stated that she had resisted and shouted for help, but nobody had heard her. On this fact, a criminal case was initiated against R. under Part 1 of Article 120 of the Criminal Code. By a judgment of the district court, R. was convicted under Part 1 of Article 120 of the Criminal Code of the Republic of Kazakhstan, and subsequently this conviction was upheld by the regional court. However, when examining this criminal case, the Supreme Court of the Republic of Kazakhstan established the following: in her testimony, the victim L. had indicated that the perpetrator R. had used violence against her, and had also stated that she had actively resisted him, shouted and called for help. However, the forensic medical examination report and a number of other expert examination reports established no visible signs of injury on the body of the victim L.; no micro-particles of the perpetrator R. were found in the victim L.’s fingernail clippings; and no visible damage was found on the victim’s clothing. An analogous expert conclusion was also issued in respect of the perpetrator R. As for the victim L.’s statement that she had shouted and called for help, the testimony of the neighbours indicated that they had heard no screams or calls for help during the period when the rape allegedly took place. In this regard, the Supreme Court of the Republic of Kazakhstan found no evidence of the said crime in R.’s actions and, having concluded that R. had not committed rape, overturned the judgments of the lower courts and acquitted R. of the said charge. A criminal case was initiated against L. in connection with defamation and knowingly giving false testimony against R.

At the same time, it should be noted that active resistance by the victim to the rapist is not required for an act to be recognized as rape. It is sufficient for her to say a firm “no”. In practice, there are situations in which fear of the rapist paralyses the victim’s will to such an extent that she is deprived of the ability to resist or oppose him. If the victim asks not to be touched, asks to be released, and does not offer actual active resistance because she considers her strength unequal to that of the perpetrator and understands that resistance may lead to more aggressive actions on his part, rape is present.

Legislation also equates the threat of using violence, that is, psychological violence, with violence as a method of committing rape. Part 1 of Article 120 of the Criminal Code provides for the use of psychological violence, that is, threats, as one of the methods of committing rape. Such threats may be expressed both verbally and through actions. A threat as a means of suppressing the victim’s resistance means intimidating her through statements, gestures, the demonstration of weapons, etc., from which the perpetrator’s intention to use violence immediately follows.

A threat in the commission of rape or other violent acts of a sexual nature should be understood as intimidating victims for the purpose of suppressing their resistance through actions or statements expressing the perpetrator’s real intention to use physical violence against the victims themselves or their close relatives. Since a threat is one of the methods of suppressing resistance in rape and other violent acts of a sexual nature specified in the dispositions of Articles 120 and 121 of the Criminal Code, additional qualification of the perpetrator’s actions under Article 115 of the Criminal Code is not required.

A threat to murder, cause grievous bodily harm, commit other serious violence against a person, or destroy property by arson, explosion or another generally dangerous method, expressed after the commission of rape or other violent acts of a sexual nature for the purpose, for example, of intimidating the victims and preventing disclosure of what occurred, where there are sufficient grounds to fear that the threat will be carried out, is subject to independent qualification under Article 115 of the Criminal Code, while the act as a whole is qualified cumulatively under the said provision and the relevant part of Articles 120 or 121 of the Criminal Code.

Psychological violence causes a person moral suffering and a feeling of fear. Emotions caused by threats adversely affect a person’s health: they oppress and weaken the person. Modern medicine and psychology have established that fear is the most harmful emotion for a person, manifesting itself in the form of stressful conditions or as a persistent mood of depression and anxiety.

A threat in rape must be real, that is, it must contain an immediate danger and involve the commission of a specific act immediately, rather than in the future. The nature of the threat is assessed taking into account how it was perceived by the victim herself, and it is irrelevant whether the perpetrator intended to carry out the threat.

The disposition of the commented Article does not disclose the nature and content of the threats used in the commission of rape. Previously, an opinion was expressed in criminal law scholarship that a threat to disseminate certain defamatory information about the victim was entirely sufficient to break her resistance and could be recognized as a method of rape.

Modern judicial practice and criminal law theory adhere to the justified position that, in this corpus delicti, only threats of the immediate use of physical violence against the victim or other persons are at issue.

For a long time, legal literature debated whether an impact on internal organs without damage to a person’s external tissues (poisoning, getting someone intoxicated, etc.) could be classified as physical violence. Some scholars did not regard the introduction of intoxicating substances against or without a person’s will as physical violence. In the opinion of others, such actions should be classified as a form of physical violence because poisonous and intoxicating substances have a harmful effect on the human body.

Intoxicating substances should be understood to include narcotic drugs, psychotropic, poisonous and potent substances, the introduction of which into the human body may result in an unconscious state.

The introduction of intoxicating substances into the victim’s body may be regarded as the use of physical violence only on the condition that these substances were administered against her will (through the use of physical force or the threat thereof) or without her will (for example, through deception). Voluntary consumption of intoxicating substances (narcotic drugs, toxic substances, alcoholic beverages, etc.) cannot be regarded as the use of physical violence.

If the victim was rendered unconscious by introducing intoxicating substances into her body for the purpose of subsequently engaging in sexual intercourse with her, it would be more appropriate to indicate both mandatory elements: the use of physical violence and taking advantage of the victim’s helpless condition.

Violence or the threat of its use may be directed not only against the victim but also against other persons. The other persons referred to in Articles 120 and 121 of the Criminal Code should be understood as relatives of the victim, as well as persons against whom the perpetrator uses violence or threatens to use it for the purpose of overcoming the victim’s resistance. Therefore, violence against third parties is included in the objective element of rape only in cases where its purpose is to suppress the victim’s will to resist. For example, the victim’s consent to sexual intercourse obtained under the threat of murdering her mother falls within the elements of rape. In all other cases, the use of violence must be qualified under other Articles of the Criminal Code where the relevant elements are present. Thus, violence used against persons who obstruct the implementation of a criminal intent does not form part of the objective element of rape, and such persons cannot be recognized as victims of this act.

Deception of a woman, misleading her, and various promises made for the purpose of obtaining intimate relations do not fall within the category of violence. In this regard, the actions of a person who obtains a woman’s consent to sexual intercourse through deception or abuse of trust (for example, by knowingly making a false promise to marry her) cannot be regarded as rape.

For example, in the United States, rape by deception constitutes a separate offence. The Criminal Code of Japan provides for punishment for inducing a person to engage in sexual intercourse not only through violence or threats but also through deception.

The concept of rape encompasses not only sexual intercourse involving the use of violence or the threat thereof but also sexual intercourse involving the exploitation of the victim’s helpless condition.

In accordance with Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues Concerning the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature”, a helpless condition should be understood as the absence, due to the victim’s physical or mental condition, of the ability to resist the perpetrator (minor age, advanced age, physical disabilities, mental disorder, another illness-related or unconscious condition, etc.), where the perpetrator, while committing rape or other violent acts of a sexual nature, is aware that the victim is in such a condition. In accordance with Article 23 of the Civil Code, young children as victims should be recognized as children who had not reached the age of fourteen at the time the crime was committed.

Rape involving the exploitation of the victim’s helpless condition means that, due to her physical or mental condition, she does not understand the nature of the actions being committed against her or is unable to resist the rapist.

Physical helplessness is recognized as a condition in which the victim is deprived of the ability to resist the rapist due to physical weakness caused by illness, blood loss, fatigue, as well as advanced age, etc., that is, as a result of certain physical deficiencies.

Mental helplessness is обусловлена by a particular mental condition in which a woman does not realize that violence is being committed against her. This condition may include sleep, fainting, severe narcotic or alcohol intoxication, mental deficiency, minor age, or an illness-related or unconscious condition.

Alcohol intoxication is officially recognized by law as a helpless condition where it deprives a person of the ability to offer actual resistance to the perpetrator. Thus, according to Paragraph 5 of the said Resolution, the victim’s state of intoxication may be recognized as a helpless condition if the degree of intoxication was such that it deprived the victim of the ability to resist the perpetrator. In this regard, it is irrelevant whether the perpetrator brought the victims into such a condition or whether the onset of their helpless condition was independent of his will.

Where there is information that the perpetrator used medicines, narcotic drugs, potent or poisonous substances to render the victim helpless, measures must be taken to establish the properties of the substances used and the nature of their effect on the human body by ordering an expert examination, questioning specialists, etc.

In a number of states, sexual intercourse with persons suffering from mental illnesses and being in a helpless condition for other reasons is treated as a separate corpus delicti (the Netherlands, Australia, Japan).

To establish the helpless condition of a young child (under 14 years of age), it is necessary not only to establish the victim’s actual age but also to determine whether she understood the factual aspects of relations between a man and a woman, to establish her level of development, awareness of sexual relations and their social significance. Establishing whether the young victim had previous sexual experience is also of substantial importance.

By its legal structure, the corpus delicti of this crime is formal. Rape should be considered a completed crime from the moment the sexual act begins, regardless of its completion and the consequences that follow. Thus, completion of the sexual act by the perpetrator in the physiological sense is not required.

If the perpetrator, having used violence or threats, or having taken advantage of the victim’s helpless condition, attempted to commit rape but failed due to circumstances beyond his control (for example, because of resistance offered by the victim or the arrival of third parties), the act should be qualified as attempted rape under Part 3 of Article 24 and Article 120 of the Criminal Code. According to Paragraph 6 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan: “An attempt to commit rape or other violent acts of a sexual nature consists of actions committed with direct intent aimed at forcible sexual intercourse with the victim or the commission of other violent acts of a sexual nature, which did not lead to the desired result due to circumstances beyond the perpetrator’s control.” Therefore, in cases of attempted rape, it is necessary to establish whether the perpetrator acted with the purpose of engaging in sexual intercourse and whether the violence or threats used by him constituted a means of achieving that purpose. If the perpetrator used violence against a woman without the purpose of engaging in sexual intercourse with her, his actions, depending on the consequences of the act and the circumstances of the crime, are subject to qualification under the Articles of the Criminal Code establishing liability for crimes against the person or public order.

At the same time, it is necessary to distinguish attempted rape from violent acts of a sexual nature, as well as attempts to commit crimes provided for in Articles 120 and 121 of the Criminal Code from completed crimes falling under other Articles of the Criminal Code that provide for liability for crimes against the person.

An attempt to commit rape should be distinguished from persistent proposals by a man to engage in sexual intercourse with him, which infringe upon a woman’s freedom, honour, dignity and inviolability (insult, hooliganism, intentional bodily harm, etc.).

Attempted rape must be distinguished from voluntary abandonment of the commission of a criminal offence (Article 26 of the Criminal Code), which excludes criminal liability. If a person realized that it was possible to bring the criminal acts to completion but voluntarily, that is, not as a result of circumstances arising independently of his will, and finally abandoned the commission of rape, the act committed by him, regardless of the motives for abandoning it, is qualified according to the actions actually committed, provided that they contain the elements of another criminal offence. Voluntary abandonment (provided that the conditions specified in Article 26 of the Criminal Code are met) is possible before the beginning of the natural physiological act. Abandonment cannot be considered voluntary if, having overcome the victim’s resistance, the perpetrator was unable to continue his actions for physiological or other reasons unrelated to his will (for example, loss of erection).

If the actions actually committed by the perpetrator contain the elements of another criminal offence (insult, hooliganism, causing bodily harm to the victim), the act is qualified under the relevant Articles of the Criminal Code.

Our position on all these issues is consistent with the position of the Supreme Court of the Republic of Kazakhstan. Thus, in its opinion, when distinguishing attempted rape or attempted commission of other violent acts of a sexual nature from other crimes, it is necessary to establish whether the perpetrator acted with the purpose of committing sexual intercourse or other sexual acts against the will of the victims and whether the use of violence was a means of achieving that purpose. In the absence of these circumstances, the person cannot be held liable for attempted rape or the commission of other violent acts of a sexual nature.

Actions of a person who, through harassment, deception or another similar method, induced victims to engage in sexual intercourse or other sexual acts without using violence or the threat thereof and without taking advantage of the victim’s or male victim’s helpless condition cannot be qualified as an attempt to commit the crimes provided for in Articles 120 or 121 of the Criminal Code (Paragraph 6 of the Regulatory Resolution of the Supreme Court).

In accordance with Paragraph 7 of the Regulatory Resolution: “Where a person, having the opportunity to complete a crime provided for in Article 120 or Article 121 of the Criminal Code, voluntarily ceases his actions at the stage of attempted rape or attempted commission of other violent acts of a sexual nature, this constitutes voluntary abandonment of the crime.

Socially dangerous acts (infliction of beatings, bodily harm, tearing off clothing, damaging clothing and other similar actions) committed before voluntary abandonment of rape or the commission of violent acts of a sexual nature are qualified, depending on the consequences and other circumstances, under the Articles of the Criminal Code providing for liability for intentional bodily harm, intentional damage to or destruction of property, etc.

A person who does not possess the physiological ability to engage in sexual intercourse and knowingly understands this cannot be held liable under Article 120 of the Criminal Code for committing actions that outwardly resemble an attempt to commit rape. Depending on the specific circumstances, such actions may be qualified under the Articles of the Criminal Code providing for liability for the commission of other violent acts of a sexual nature, hooliganism, insult, etc.”

If the commission of several sexual acts was covered by the perpetrator’s intent, the act should be qualified as a single continuing crime. The unity of intent may be evidenced by such circumstances as the commission of several sexual acts without interruption or with a short interval between them. At the same time, a single crime exists only where identical acts are committed. Therefore, if the person’s intent encompasses the commission of rape and violent acts of a sexual nature against one and the same victim, the act should be qualified as a concurrence of crimes provided for in Articles 120 and 121 of the Criminal Code.

In this regard, for the qualification of the act, it is irrelevant whether there was a time interval between the rape and the violent acts of a sexual nature committed against the victim.

Subjectively, rape is always committed with direct intent. In committing rape, the perpetrator is aware that sexual intercourse is taking place as a result of violence or the threat thereof, or as a result of taking advantage of the victim’s helpless condition, and nevertheless desires to engage in sexual intercourse. The principal motive for committing rape is the satisfaction of the perpetrator’s sexual needs or those of other persons. Secondary motives may include hooligan motives, the desire to disgrace or take revenge, etc. The purpose of committing rape is for the perpetrator or another person to obtain sexual gratification.

The subject of rape is a person who commits forcible sexual intercourse with a woman, as well as persons who directly assist them at the moment of the rape of the victim. A woman may also be a co-perpetrator of rape. Criminal liability for rape arises from the age of 14.

Part 2 of Article 120 of the Criminal Code provides for the following qualifying elements:

committed by a group of persons or by a group of persons acting upon prior conspiracy;

accompanied by a threat of murder, as well as committed with particular cruelty towards the victim or other persons;

resulting in the victim contracting a sexually transmitted disease;

committed repeatedly;

committed by a person in the performance of official duties.

Rape may be recognized as having been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior conspiracy.

Rape is recognized as having been committed by a group of persons acting upon prior conspiracy if persons who had previously agreed to commit the crime jointly participated in it.

A person who did not personally commit forcible sexual intercourse or other violent acts of a sexual nature but assisted others in committing such acts by using violence against the victim is a co-perpetrator. An accomplice who did not personally commit or attempt to commit rape or other violent acts of a sexual nature but organized the commission of such a crime, induced other persons to commit it, or assisted them through advice, instructions, provision of conditions or removal of obstacles is, respectively, an organizer, instigator or accessory, whose actions are qualified with reference to Article 28 of the Criminal Code.

Rape and other violent acts of a sexual nature should be recognized as having been committed by a group of persons both in cases where such acts are committed by several persons against one individual and where, as a result of coordinated actions by the perpetrators who used violence or threatened to use it, each of them committed or had the opportunity to commit sexual intercourse or other sexual acts against one or several victims.

Where one of the co-perpetrators of rape or other violent acts of a sexual nature cannot be held liable due to insanity or because they have not reached the age at which criminal liability is established, the actions of the other participant in the crime cannot be regarded as having been committed by a group of persons.

A woman and a person who does not intend to personally engage in sexual intercourse may also be co-perpetrators of a group crime where these persons used violence or threats against the victim. In such cases, for the purpose of charging a person with group rape, it is sufficient to perform one of the two elements of the objective side: either the use of violence (threats) or the commission of sexual intercourse. Therefore, if one of two persons uses physical violence and the other, taking advantage of that violence, engages in sexual intercourse, the rape is considered completed. Since two persons participated in carrying out the objective element of the crime, they must be held liable for rape committed by a group of persons.

Specialized legal literature also expresses a different point of view on this matter, according to which women may participate in rape only as organizers, instigators and accessories, since a woman is biologically unable to engage in sexual intercourse with the victim. The same applies to impotent men. This point of view cannot be accepted, since, in fact, although such persons may be unable to engage in sexual intercourse, they should nevertheless be recognized as co-perpetrators of rape.

Group rape is considered completed from the moment the first participant begins the sexual act. Therefore, if one of the perpetrators, for example, was unable to engage in sexual intercourse for physiological reasons or failed to do so as a result of actions aimed at stopping the crime, that person’s actions must be qualified as a completed crime committed by a group of persons upon prior conspiracy or by a criminal group.

Paragraph 2) of Part 2 of Article 120 of the Criminal Code provides for criminal liability for rape accompanied by a threat of murder, as well as rape committed with particular cruelty towards the victim or other persons.

A threat in the commission of rape or other violent acts of a sexual nature should be understood as intimidating victims for the purpose of suppressing their resistance through actions or statements expressing the perpetrator’s real intention to use physical violence against the victims themselves or their close relatives. It should be borne in mind that a threat of murder is not associated with the perpetrator’s actual desire to carry out that threat. A threat of murder should be understood to include not only direct statements expressing an intention to immediately use physical violence against the victim or other persons but also such threatening actions by the perpetrator as, for example, demonstrating weapons or objects that may be used as weapons (a knife, an axe, etc.).

Liability for rape involving a threat of murder arises only in cases where such a threat served as a means of overcoming the victim’s resistance and there were grounds to fear that the threat would be carried out. In such cases, additional qualification of the act under Article 115 of the Criminal Code is not required. If the threat of murder was expressed not for the purpose of suppressing the victim’s resistance but after the rape, for example, to prevent the victim from telling anyone what had happened, the perpetrator’s actions are additionally subject to qualification under Article 115 of the Criminal Code.

Where murder is committed during rape, the act is subject to qualification as a concurrence of crimes provided for in Paragraph 10) of Part 2 of Article 99 and Part 1 of Article 120 of the Criminal Code, or under the relevant parts of these Articles if the rape was committed, for example, against a minor or a young child, or by a group of persons, a group of persons acting upon prior conspiracy, or a criminal group.

Particular cruelty should be understood as abuse and mockery of victims, torture inflicted on them during rape or other violent acts of a sexual nature, as well as the intentional infliction of bodily injuries on them for the purpose of causing pain, torment and suffering. Under this qualifying element, liability is imposed on perpetrators who desire to cause torment and suffering to victims or consciously allow the victims or other persons to experience physical or moral suffering and shock. Rape may be recognized as having been committed with particular cruelty towards other persons, for example, where a mother is raped in front of her children, or violent acts of a sexual nature are committed against a woman in the presence of her spouse, etc. Cruelty may be displayed by the perpetrator both before the sexual act and during its commission.

Rape resulting in the victim contracting a sexually transmitted disease occurs where the perpetrator knowingly had the disease and nevertheless engaged in forcible sexual intercourse, which resulted in the victim contracting a sexually transmitted disease. For qualification under Paragraph 3) of Part 2 of Article 120 of the Criminal Code, the type of sexually transmitted disease with which the perpetrator infected the victim is irrelevant.

Under the qualifying element of rape committed repeatedly, liability is imposed on a person who has committed two or more acts provided for in Article 120 of the Criminal Code, for none of which the person has been convicted or released from criminal liability on grounds established by law. At the same time, rape is recognized as having been committed repeatedly if an earlier act constituted either completed rape or an attempt to commit rape, co-perpetration, or participation in this crime in another form.

Several sexual acts committed at insignificant intervals against the same person do not constitute the element of repetition, and the crime should be regarded as continuing if the perpetrator acted with a single intent.

Where two or more rapes are committed, liability for which is provided for in Parts 1 and 2 of Article 120 of the Criminal Code, these acts, in accordance with the requirements of Part 4 of Article 12 of the Criminal Code, must be qualified under Paragraph 4), and, where grounds exist, under other relevant paragraphs of Part 2 of Article 120 of the Criminal Code. The commission by a person of rape and violent acts of a sexual nature does not constitute repetition of criminal offences but rather a concurrence of crimes, each of which is subject to independent qualification under the relevant parts of Articles 120 and 121 of the Criminal Code.

Criminal liability for rape committed by a person in the performance of official duties is provided for in Paragraph 5) of Part 2 of Article 120 of the Criminal Code. The introduction of this element is unreasonable and unjustified, and its application will lead to considerable difficulties in law enforcement practice. In particular, the meaning of the phrase “in the performance of official duties” will be interpreted ambiguously. This, in turn, will lead to numerous violations of legality. The legislator should abandon this element.

The particularly qualified corpus delicti contained in Part 3 of Article 120 of the Criminal Code establishes liability for acts provided for in Parts 1 and 2 of this Article, if they:

“1) excluded by Law of the Republic of Kazakhstan dated 27 December 2019;

negligently resulted in grievous bodily harm to the victim, infection with HIV, or other grave consequences;

excluded by Law of the Republic of Kazakhstan dated 1 April 2019;

were committed under a state of emergency or during mass riots;

excluded by Law of the Republic of Kazakhstan dated 1 April 2019;

excluded by Law of the Republic of Kazakhstan dated 30 December 2020.”

Rape resulting through negligence in grievous bodily harm to the victim, infection with HIV, or other grave consequences occurs where the said consequences were not covered by the perpetrator’s intent, that is, where the perpetrator did not foresee them or foresaw them but carelessly expected to prevent them (the concept of grievous bodily harm is provided in the commentary to Paragraph 11) of Article 3 of the Criminal Code). At the same time, there must be a causal link between the consequences that occurred and the rape. Negligent infliction of grievous bodily harm on the victim during rape is covered by Paragraph 2) of Part 3 of Article 120 of the Criminal Code and does not require additional qualification under Part 3 of Article 114 of the Criminal Code.

The perpetrator’s actions are subject to qualification under Paragraph 2) of Part 3 of Article 120 of the Criminal Code both in cases of negligent and intentional infection of the victim with HIV.

Other grave consequences of rape are consequences that are not related to the negligent infliction of grievous bodily harm on the victim or her infection with HIV. Such consequences may include, for example, the onset or termination of pregnancy, the victim’s suicide, mental illness resulting from the crime, etc. The occurrence of other grave consequences is covered by Paragraph 2) of Part 3 of the commented Article and does not require additional qualification.

A perpetrator who knew that, at the time of committing rape or other violent acts of a sexual nature, he had a sexually transmitted disease or HIV infection shall be liable not only under Articles 120 or 121 of the Criminal Code but also, where the relevant consequences occur, for transmitting these diseases, as well as for knowingly placing another person at risk of HIV infection (Articles 117 and 118 of the Criminal Code).

Criminal liability for rape committed under a state of emergency or during mass riots is provided for in Paragraph 4) of Part 3 of the commented Article. In accordance with Paragraph 66) of Article 1 of the Law of the Republic of Kazakhstan dated 11 April 2014 “On Civil Protection”, a state of emergency should be understood as a situation in a particular territory arising as a result of an accident, fire, harmful effects of hazardous industrial factors, dangerous natural phenomena, catastrophe, natural or other disaster, which may result or have resulted in human casualties, harm to human health or the environment, significant material damage and disruption of people’s living conditions. Mass riots should be understood as actions provided for in Part 1 of Article 272 of the Criminal Code.

Part 3-1 of the commented Article, containing particularly qualifying elements, establishes liability for acts provided for in Parts 1, 2 or 3 of this Article, if they:

“1) were committed against a minor;

excluded by Law of the Republic of Kazakhstan dated 30 December 2020;

were committed by a criminal group.”

Rape of a minor occurs where it is committed against a person aged from 14 to 18 years. Sexual assaults threaten a child’s health, affect the child’s psyche and harm the child’s upbringing.

As judicial and investigative practice demonstrates, minors and young children very often become victims of sexual crimes. In this regard, the legislator has increased penalties for crimes against the sexual inviolability of minors and provided for a number of restrictions on release from criminal liability and punishment for these crimes. Thus, according to Part 6 of Article 63 of the Criminal Code, suspended sentences are not applied to persons who have committed crimes against the sexual inviolability of minors. Such persons are not subject to release from criminal liability in connection with active repentance (Part 2 of Article 65 of the Criminal Code); upon fulfilment of the terms of a procedural agreement (Part 2 of Article 67 of the Criminal Code); in connection with reconciliation (Paragraph 2) of Part 4 of Article 68 of the Criminal Code); due to the expiration of the limitation period (Part 6 of Article 71 of the Criminal Code); in connection with an amnesty act (Paragraph 2 of Part 2 of Article 78 of the Criminal Code). They may not be released from punishment in connection with the establishment of personal surety (Part 6 of Article 69 of the Criminal Code); parole (Part 8 of Article 72 of the Criminal Code); replacement of the unserved part of the sentence with a milder type of punishment (Paragraph 2 of Part 2 of Article 73 of the Criminal Code); postponement of serving the sentence for a period of up to three months (Part 2 of Article 76 of the Criminal Code); or expiration of the limitation period for an enforceable conviction (Part 5 of Article 77 of the Criminal Code).

According to Paragraph 42) of Article 3 of the Criminal Code, crimes against the sexual inviolability of minors are acts provided for in Articles 120, 121, 122, 123, 124, 134, 144 and 312 of the Criminal Code.

According to the legislator, the tightening of punishment for rape of minors consists in the exclusion, by the Law of the Republic of Kazakhstan dated 27 December 2019, of “actual knowledge” as a mandatory condition for criminal liability under this qualifying element. Does this mean that, in order to hold the perpetrator criminally liable under Paragraph 1) of Part 3-1 of Article 120 of the Criminal Code, it is irrelevant whether the perpetrator knew before committing the crime that she was a minor?

How should the actions of persons who were genuinely mistaken about the victim’s actual age be qualified?

My analysis of the Special Part of the Criminal Code revealed inconsistency in the legislator’s position: in some provisions, “actual knowledge” is specified as a mandatory condition for criminal liability for crimes committed against minors, while in others it is not, which gives rise to problems in law enforcement practice.

Thus, for example, “actual knowledge” is specified in relation to crimes committed against minors in Paragraph 14) of Part 2 of Article 99; Paragraph 11) of Part 2 of Article 106; Paragraph 8) of Part 2 of Article 107; Paragraph 1) of Part 2 of Article 110; Paragraph 2) of Part 2 of Article 116; Part 2 of Article 117; Part 3 of Article 118; Part 1 of Article 122; Part 1 of Article 124; Paragraph 5) of Part 2 of Article 125; Paragraph 5) of Part 2 of Article 126; Paragraph 3) of Part 2 of Article 127; Paragraph 5) of Part 2 of Article 261; Paragraph 5) of Part 2 of Article 153 of the Criminal Code.

An indication of “actual knowledge” is absent from the following provisions of the Special Part of the Criminal Code: Part 3 of Article 105; Paragraph 1) of Part 3-1 of Article 120; Paragraph 1) of Part 3-1 of Article 121; Part 2 of Article 123; Paragraph 4) of Part 2 of Article 146; Part 2 of Article 259 of the Criminal Code.

“Actual knowledge” is also absent from the Articles directly devoted to minors: Articles 132, 133, 134, 135, 143, 144 and 153 of the Criminal Code. Such a dual approach by the legislator to crimes committed against minors cannot be considered justified or permissible. The exclusion of “actual knowledge” from Articles 120 and 121 of the Criminal Code and its absence from the above-mentioned criminal law provisions leads to objective imputation, which contradicts the principles of criminal legislation.

Establishing age is a mandatory condition for a comprehensive, complete and objective examination of the circumstances necessary and sufficient for the proper resolution of a case (Part 1 of Article 24, Articles 113 and 531 of the Criminal Procedure Code) in relation to the said qualifying element, and for imposing a fair punishment (Article 52 of the Criminal Code). The perpetrator may know the victim’s age due to various circumstances, for example, because the victim herself informed him that she was a minor, because of her outward appearance, height, acquaintance, studying together, etc.

Paragraph 2 of Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues Concerning the Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature” reasonably emphasizes: “Liability for rape of a young child or a minor, or for the commission of other violent acts of a sexual nature against persons of the same age, arises only in cases where the perpetrator was aware of the victims’ age before committing the crime. A discrepancy between the victims’ physical development and appearance and their actual age must be assessed in conjunction with other information indicating the perpetrator’s awareness of the victims’ true age.”

The Supreme Court imposes the same requirements in another of its Regulatory Resolutions. Thus, Paragraph 2 of Paragraph 23 of the Regulatory Resolution dated 11 April 2002 “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts” emphasizes: “... it should be assumed that criminal liability arises on the condition that the perpetrator reliably knew that the person being induced was a minor.”

The legislator has much to think about.

Paragraph 2) of Part 3-1 was excluded by the Law dated 30 December 2020.

Liability for rape committed by a criminal group is established in Paragraph 3) of Part 3-1 of Article 120 of the Criminal Code (see the commentary to Paragraph 15) of Part 2 of Article 99 of the Criminal Code).

Criminal liability is increased under Part 3-2 of the commented Article if the acts provided for in Parts 1, 2, 3 or 3-1 of Article 120 of the Criminal Code:

“1) were committed against two or more minors;

excluded by Law of the Republic of Kazakhstan dated 30 December 2020;

were committed against a minor by her parent, stepfather, teacher or another person upon whom the laws of the Republic of Kazakhstan impose responsibilities for her upbringing.”

The basis for qualifying rape under Paragraph 1) of Part 3-2 of Article 120 of the Criminal Code is the perpetrator’s intent to engage in sexual intercourse with two or more minors. The act may be committed within a short period of time, which indicates the unity of the perpetrator’s intent. Rape of two or more minors presupposes the commission of a single crime aggravated by the rape of several persons.

Where the perpetrator’s intent is directed at raping two or more minors, but the result of the criminal intent — the rape of several persons — is not achieved due to circumstances beyond the control of the perpetrator, the rape of one person and the attempt to rape another cannot be regarded as a completed crime — rape of two minors.

In the Regulatory Resolution “On the Qualification of Certain Criminal Offences Against Human Life and Health”, the Supreme Court, with regard to the murder of two or more persons (Paragraph 1) of Part 2 of Article 99 of the Criminal Code), suggests qualifying such actions of the perpetrator as a concurrence of crimes under Part 3 of Article 24 and Paragraph 1) of Part 2 of Article 99 of the Criminal Code, as well as under Part 1 or 2 of Article 99 of the Criminal Code, depending on whether qualifying elements are present or absent. I have expressed my disagreement with this approach — see the commentary to Paragraph 1) of Part 2 of Article 99 of the Criminal Code.

I adhere to an analogous position with regard to the act provided for in Paragraph 1) of Part 3-2 of the commented Article. Consequently, under such circumstances, the act committed by the perpetrator should be qualified as an attempt to commit the crime that the perpetrator intended to commit, namely, under Part 3 of Article 24 and Paragraph 1) of Part 3-2 of Article 120 of the Criminal Code, that is, as attempted rape of two or more minors.

Paragraph 3) of Part 3-2 of the commented Article establishes increased liability for acts provided for in Parts 1, 2, 3 or 3-1 of Article 120 of the Criminal Code if they were committed against a minor by her parent, stepfather, teacher or another person upon whom the laws of the Republic of Kazakhstan impose responsibilities for her upbringing. It appears that expanding the range of persons subject to liability for rape to include the said individuals is entirely justified. Judicial and investigative practice contains numerous cases in which sexual acts against young children and minor children (girls) are committed by parents, stepfathers, teachers and other persons upon whom the law imposes the duty of their upbringing. The mass media regularly report such acts, which attract widespread public attention. In such cases, the greatest harm is caused to the normal moral, spiritual and physical development of young children and minors.

Other persons upon whom the laws of the Republic of Kazakhstan impose responsibilities for their upbringing include, for example, educators at boarding schools, coaches of adolescents attending sports clubs, heads of art groups, etc. The increased criminal liability for rape of a minor committed by such persons is also обусловлена by the fact that the commission of this crime is facilitated by the trusting relationships that develop between the perpetrator and the victim, by circumstances conducive to the commission of the crime, and by the additional moral harm inflicted on the minor victim by the crime committed by such persons.

Part 4 of Article 120 of the Criminal Code establishes liability for acts provided for in Parts 1, 2, 3, Paragraph 3) of Part 3-1 and Part 3-2 of this Article, if they were committed against a person known to be a young child or resulted in the victim’s death through negligence.

Legislation classifies persons under the age of 14 as young children, that is, persons who cannot be considered sufficiently developed physically and mentally. Before the age of 14, the sexual maturity of girls is not determined by forensic medical experts, since, from a physiological point of view, they are in all cases considered not to have reached sexual maturity.

For the corpus delicti of rape of a victim under the age of fourteen, it is necessary, from the subjective perspective, to establish that the perpetrator was aware that he was engaging in forcible sexual intercourse with a young child under the age of 14. Where the perpetrator is genuinely mistaken about the victim’s age on the basis of her outward appearance or information she provided about herself, this aggravating circumstance is not attributed to him. For example, N. lived in the same house as the young child M. N. developed the intent to rape her. For this purpose, under the pretext of getting warm because the house was cold, he would take her into his bed at night and, knowing that M. was only 8 years old, would take advantage of her helpless condition due to her young age and commit forcible sexual acts with her. N.’s actions were reasonably qualified as rape committed against a young child.

Rape resulting in the victim’s death through negligence, as provided for in Part 4 of the commented Article, occurs where death results from the perpetrator’s immediate negligent actions, that is, where the perpetrator’s intent did not encompass the occurrence of death. For example, wishing to suppress the victim’s resistance, the perpetrator strangles her, seeking not to cause death but merely to stop her resistance.

For qualification under Part 4 of Article 120 of the Criminal Code, there must be a causal link between the perpetrator’s criminal acts and the victim’s death, that is, death through negligence must result from actions aimed at committing rape or committed in the course of violence. If the victim’s death does not result from rape but from leaving her in danger, the actions of the perpetrator are qualified cumulatively under Part 3 of Article 119 and Article 120 of the Criminal Code, depending on the presence of qualifying elements. If the perpetrator’s intent to cause the victim’s death is established (for example, the rapist strangled the victim until she stopped breathing), the perpetrator’s actions fall within the elements of Articles 120 and 99 of the Criminal Code.

The negligent causing of the victim’s death by the perpetrator is covered by Part 4 of the commented Article and does not require additional qualification under Article 104 of the Criminal Code.

The acts provided for in Parts 1 and 2 of Article 120 of the Criminal Code are classified as serious crimes. The acts provided for in Parts 3, 3-1, 3-2 and 4 of Article 120 of the Criminal Code are classified as especially serious crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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