Commentary on Article 123. Compulsion to Engage in Sexual Intercourse, Sodomy, Lesbianism or Other Acts of a Sexual Nature of the Criminal Code of the Republic of Kazakhstan

1. Compelling a person to engage in sexual intercourse, sodomy, lesbianism or to commit other acts of a sexual nature by means of blackmail, threats to destroy, damage or seize property, or by taking advantage of the material or other dependence of the victim — shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or correctional labor in the same amount, or restriction of liberty for a term of up to three years, or deprivation of liberty for the same term.

2. The same act committed against a minor — shall be punishable by deprivation of liberty for a term of up to five years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of the crime lies in exerting psychological pressure on the victim as a means of forcing the victim to yield to sexual advances, thereby violating the individual's right to sexual freedom.

The protected legal interest is the sexual freedom of a woman — in cases of compulsion to engage in sexual intercourse or lesbianism; the sexual freedom of a man — in cases of compulsion to engage in sodomy; and the sexual freedom of a woman or a man — in cases of compulsion to commit other acts of a sexual nature.

Victims may be both women and men, including minors who have reached the age of 16.

If sexual intercourse, sodomy, lesbianism or other acts of a sexual nature are committed without the use of violence or the threat of its use against persons who have not reached the age of 16, liability arises under Article 122 of the Criminal Code.

The objective element of the offense consists in compelling a person to engage in sexual intercourse, sodomy, lesbianism or to commit other acts of a sexual nature by means of blackmail, threats to destroy, damage or seize property, or by taking advantage of the material or other dependence of the victim.

Compulsion should be understood as psychological influence exerted on the victim for the purpose of forcing him or her to enter into sexual contact with the perpetrator against his or her will. Psychological influence in the form of a threat to use violence against victims is not covered by the elements of the crime under consideration and is subject to qualification under Articles 120 or 121 of the Criminal Code. Compulsion may be committed in various forms: by addressing the victim directly, orally or in writing, through third parties, or by using means of communication.

To compel means to place someone under the necessity of doing something. First and foremost, compulsion involves psychological pressure on the victim as a means of forcing the victim to yield to sexual advances.

Compulsion may manifest itself in creating an unbearable environment for a woman at her workplace through unfair harassment and disciplinary sanctions, or through threats to worsen her employment status (dismissal, demotion, etc.).

Compulsion may be expressed both through actions and through the passive conduct of the perpetrator. It may consist in placing the victim in circumstances under which she is forced to enter into sexual contact in order to prevent harm to her legitimate interests. This is most clearly manifested in cases of compulsion through the use of material or other dependence.

The methods of compulsion are: 1) blackmail; 2) threats to destroy, damage or seize property; 3) taking advantage of the material or other dependence of the victim.

Compulsion by means of blackmail consists in a person's demand that the victim engage in sexual relations with that person or another person, accompanied by a threat to disclose information that discredits the victim or other persons whose reputation is important to the victim.

Disclosure is understood as an action resulting in compromising information being communicated to at least one third party. Moreover, such information may be either genuine or false (for example, information about an alleged sexually transmitted disease or HIV infection). The victim must have reasonable grounds to fear that the information will actually be disseminated. In this regard, it is irrelevant whether the perpetrator intended to actually carry out the threats made. If information constituting personal and family secrets, the confidentiality of correspondence, etc., is disseminated, additional qualification under Articles 147 and 148 of the Criminal Code is required.

Compulsion through the use of the victim's material or other dependence occurs only where the perpetrator threatens to take certain actions against a person who is materially, professionally or otherwise dependent on him or her, which would result in the infringement of that person's legitimate rights and interests.

Compulsion through threats to destroy, damage or seize property involves psychological influence and may concern either part of the property or the entirety of the property. However, in order to constitute a sufficiently serious argument for exerting psychological pressure, the threat must affect the victim's significant material interests. It should be borne in mind that carrying out any of the aforementioned threats is subject to separate qualification under the articles concerning crimes against property (Articles 191 or 202), in conjunction with Article 123 of the Criminal Code.

Compulsion through a threat to seize property means an explicitly expressed promise by the perpetrator to commit, in the event of refusal to comply with the sexual demands, any of the crimes against property (robbery, assault with intent to rob, intentional destruction or damage of property).

The victim's material dependence on the perpetrator may be обусловлена by full or partial maintenance, residence in the perpetrator's living space, or a situation in which the improvement or deterioration of the victim's financial position depends on the perpetrator, etc. Situations of material dependence may arise from relationships between a debtor and a creditor, or an heir and a testator.

Professional dependence means that the victim is subordinate to the perpetrator in the workplace, where the perpetrator may dismiss the victim, reduce his or her salary, deprive the victim of bonuses, benefits, etc.

Other dependence encompasses all other forms of one person's dependent position in relation to another. This may include the dependent position of a citizen in relation to a representative of the authorities, children in relation to adults, athletes in relation to a coach, a student in relation to a teacher, etc.

The methods of compulsion under Article 123 of the Criminal Code are exhaustively specified in the disposition of the article and are not subject to expansive interpretation. Therefore, the elements of this crime are not constituted by every proposal to engage in sexual contact, commit an act of sodomy or lesbianism, or perform other acts of a sexual nature, but only by a proposal made through the methods specified in the disposition of the article being commented upon.

An open proposal by a person to engage in sexual relations with that person or to commit other acts of a sexual nature, which may subjectively be perceived as rude, cynical or indecent, does not constitute a crime in the absence of blackmail, threats or dependence. The giving of gifts or provision of benefits accompanied by hints that sexual interaction is desirable also does not constitute a crime.

If the perpetrator uses such methods as physical violence or a threat to use physical violence in order to compel the victim to engage in sexual contact, liability arises under Articles 120 or 121 of the Criminal Code.

Paragraph 14-2 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” also emphasizes that, unlike rape (Article 120 of the Criminal Code) and violent acts of a sexual nature (Article 121 of the Criminal Code), in cases of compulsion to engage in sexual intercourse, sodomy, lesbianism or other acts of a sexual nature (Article 123 of the Criminal Code), the methods of influencing the victim for the purpose of obtaining forced consent to commit the aforementioned acts are blackmail, threats to destroy, damage or seize property, or the use of the victim's material or other dependence.

Compulsion to perform acts of a sexual nature is considered completed from the moment the relevant demand is expressed in any form, regardless of whether the victim consents or refuses to perform such acts, or whether they are actually carried out.

The actions of a person who has obtained the victim's consent to engage in sexual intercourse or perform acts of a sexual nature through deception or abuse of trust (for example, a knowingly false promise to enter into marriage, etc.) cannot be regarded as compulsion to perform acts of a sexual nature.

The subjective element is characterized by direct intent. The perpetrator is aware that he or she is compelling another person to perform the acts specified in Article 123, using blackmail or threats, etc., foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence. The motive is generally the desire to satisfy one's sexual passion. Other motives are also possible.

The subject of the crime under consideration may be a person of either male or female sex who has reached the age of 16.

The aggravated form of the crime is the commission of compulsion to perform acts of a sexual nature against a minor.

Victims under Part 2 of the article being commented upon may be persons of either male or female sex aged between 14 and 18 years. In this regard, the legislator does not specify “knowledge” as a mandatory condition for criminal liability under Part 2 of the aforementioned article. The commission of such acts against a person who has not reached the age of 14 should be qualified under Articles 120 or 121 of the Criminal Code.

The acts provided for in Parts 1 and 2 of Article 123 of the Criminal Code are classified as crimes of medium gravity.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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