Decision of the Plenum of the Supreme Court No. 7 dated 27 September 2012 on Judicial Practice in Cases involving Crimes against Sexual Inviolability or Sexual Freedom (Arts. 166-170 of the Criminal Code)

The Plenum of the Supreme Court explained (i) that rape (Art. 166 of the Criminal Code) can be committed against women only, while violent sexual acts (Art. 167 of the Criminal Code) can be committed against both women and men, and (ii) that the victim’s circumstances, for example previous commission of a crime, lifestyle, or marital relationship to the offender, do not prohibit conviction of the offender for these crimes. The Plenum further held that “violence,” which is one of the conditions for commission of rape or violent sexual acts, shall be understood as a physical act against the victim (or relatives of the victim in case of rape). Examples of violence include tearing the victim’s clothes, causing physical pain, beating, strangulation, making the victim take alcohol or drugs against his or her will, restricting the victim’s freedom by tying, or locking the doors. Threat of violence shall be understood as specific words, actions, or gestures showing the intention of the offender to harm the victim. The Plenum noted that non-violent acts, such as obtaining consent by deception or abuse of trust (such as the promise to marry or to reward sexual favors) do not qualify under Arts. 166-167 of the Criminal Code. The Plenum further explained that “using the helpless state of the victim,” which is the alternative condition to violence or threat of violence for the commission of rape or violent sexual acts, shall mean that the victim due to young age, mental disorder, loss of consciousness, alcohol or drug intoxication could not understand the nature of actions performed with him or her or that due to a physical disability could not oppose it. The Plenum noted that it does not matter whether the offender made or witnessed the victim take alcohol or drugs or other intoxicating substances, rather the offender simply has to be aware of the intoxication that renders the victim helpless. The Plenum also explained that a person is not guilty of attempted rape or commission of violent acts of sexual nature if that person voluntary abandons the commission of the crime. Abandonment caused by circumstances beyond the control of the offender, such as resistance by the victim, third party interference, or physiological inability to commit the crime is not voluntary.