Commentary on Article 122. Sexual Intercourse or Other Acts of a Sexual Nature with a Person Who Has Not Reached the Age of Sixteen of the Criminal Code of the Republic of Kazakhstan
- 1. Sexual intercourse, sodomy, lesbianism or other acts of a sexual nature with a person who is knowingly under the age of sixteen —
- shall be punishable by restriction of liberty for a term of up to five years or deprivation of liberty for the same term, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
- 2. The same acts committed against a person who has not reached the age of sixteen by a parent, stepfather, stepmother, teacher or any other person upon whom the laws of the Republic of Kazakhstan impose responsibilities for the upbringing of that person —
- shall be punishable by deprivation of liberty for a term of seven to twelve years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
- 3. The acts provided for in the first or second parts of this Article, committed:
- 1) repeatedly;
- 2) against two or more persons, —
- shall be punishable by deprivation of liberty for a term of twelve to fifteen years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
The public danger of the crime under consideration lies in the fact that premature entry into the sphere of sexual life has a negative impact on the development of an adolescent, the formation of their psyche, their health and the moral development of a minor.
This provision is aimed at protecting the interests of minors and is consistent with the approaches to addressing this issue developed by the international community. In particular, taking into account that the well-being of children and minors is a priority for every society, and that sexual experience, including experience associated with early sexual abuse, is harmful to the psychosocial development of a child and a minor, the Committee of Ministers of the Council of Europe, in Recommendation No. R (91) 11 of 9 September 1991, proposed that the national legislation of the member states of the Council of Europe be brought into conformity with this Recommendation.
Due to their psychological immaturity, the victim does not fully understand the nature of the acts committed against them or their physical, moral, psychological, social and other consequences and, accordingly, becomes the victim of the conscious and deliberate actions of an adult.
The object of this crime is the sexual inviolability, moral and physical health of persons who have not reached the age of sixteen. Victims of this crime may be persons of either sex: boys — in cases of sodomy; girls — in cases of sexual intercourse and lesbianism involving a person who is knowingly under the age of sixteen.
The objective elements of the crime under consideration consist of sexual intercourse, sodomy, lesbianism and other acts of a sexual nature committed by a person who has reached the age of eighteen with a person who is knowingly under the age of sixteen.
The definitions of the concepts of “sodomy”, “lesbianism” and “other acts of a sexual nature” are provided in the commentary to Article 121 of the Criminal Code of the Republic of Kazakhstan.
According to paragraph 14-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Qualification of Crimes Related to Rape and Other Violent Acts of a Sexual Nature”, criminal liability for sexual intercourse or other acts of a sexual nature with a person who has not reached the age of sixteen, as well as for committing lewd acts against young children (Articles 122 and 124 of the Criminal Code), arises in cases where sexual intercourse, sodomy, lesbianism or lewd acts were committed without the use of violence or the threat of its use, or without taking advantage of the victim's helpless condition.
The absence of voluntariness may be regarded either as aggravated rape or as the commission of violent acts of a sexual nature in the presence of aggravating circumstances. Cases in which the perpetrator obtains “voluntary” participation in sexual intercourse, sodomy or lesbianism with a female or male victim who, due to young age or a mental disorder, is incapable of properly assessing the acts being committed against them must be qualified in the same manner.
When distinguishing the elements of the crimes provided for in Articles 120 or 121 of the Criminal Code from the elements of the crime provided for in Article 122 of the Criminal Code, it should be borne in mind that criminal liability for sexual intercourse or other acts of a sexual nature with a person who has not reached the age of sixteen arises in cases where sexual intercourse and other acts of a sexual nature are committed without the use of violence or the threat of its use, and the victim understands the nature and significance of the acts being committed.
By its legal structure, the corpus delicti is formal. The crime shall be considered completed from the moment the sexual acts specified in the disposition of Article 122 of the Criminal Code commence.
The subjective element is characterized by the presence of direct intent. The perpetrator knowingly realizes that they are committing the sexual acts specified in the disposition of Article 122 of the Criminal Code with a person who has not reached the age of sixteen, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.
The subject of this crime may be both men and women who have reached the age of sixteen.
Part 2 of Article 122 of the Criminal Code provides for criminal liability for the same acts committed against a person who has not reached the age of sixteen by their parent, stepfather, stepmother, teacher or another person upon whom the laws of the Republic of Kazakhstan impose responsibilities for the upbringing of that person. This qualifying circumstance is examined in the commentary to subparagraph 3) of Part 3-2 of Article 120 of the Criminal Code.
Part 3 of Article 121 of the Criminal Code establishes liability for the acts provided for in Parts 1 or 2 when committed repeatedly or against two or more persons. A crime shall be considered repeated if the perpetrator has committed two or more acts provided for by the Article under commentary or a part thereof. Sexual intercourse, sodomy, lesbianism and other acts of a sexual nature committed by the perpetrator with a person who is knowingly under the age of sixteen shall not be considered repeated if the person was previously convicted for the earlier act or released from criminal liability on grounds established by law.
The element of repetition shall also exist where an earlier completed act of sexual intercourse, sodomy, lesbianism or other acts of a sexual nature with a person who is knowingly under the age of sixteen has taken place, as well as an attempt to commit such an act, joint perpetration or participation in this crime in another form. Several such acts specified in the disposition of Article 122 of the Criminal Code, committed against the same person at short intervals, do not constitute the element of repetition, and the crime should be regarded as a continuing offence if the perpetrator acted with a single intent.
Criminal liability for sexual intercourse or other acts of a sexual nature committed against two or more persons is provided for in subparagraph 2) of Part 3 of Article 122 of the Criminal Code.
The crime under consideration committed repeatedly must be distinguished from a crime committed against two or more persons on the basis of its subjective element. If each of the acts constituting repetition was covered by a separate intent, the acts shall be qualified under subparagraph 1) of Part 3 of Article 122 of the Criminal Code; where the perpetrator's intent was unified and initially directed at engaging in sexual intercourse, sodomy, lesbianism or other acts of a sexual nature with two or more persons who were knowingly under the age of sixteen, the acts shall be qualified under subparagraph 2) of Part 3 of Article 122 of the Criminal Code.
The act provided for in Part 1 of Article 122 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 2 of Article 122 of the Criminal Code is classified as a serious crime.
The act provided for in Part 3 of Article 122 of the Criminal Code is classified as an especially serious crime.
Commentary of 2021 on 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 the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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