Basis for Determining Penalties for Sexual Offences

as well as the specific circumstances of the offender to decide on an appropriate penalty. However, this does not mean that the Court can decide on a penalty arbitrarily, ignoring the general provisions of the Penal Code on penalties and deciding on penalties. The application of the humanitarian principle in deciding on penalties for sexual offenses must still strictly comply with the provisions of the Penal Code. For example, when a person commits the crime of raping a person under 16 years old as prescribed in Point c, Clause 3, Article 142 of the 2015 Penal Code "rape of a person under 10 years old" , he/she shall be sentenced to 20 years in prison, life imprisonment or death. However, if the offender has at least two mitigating circumstances, he/she is eligible to apply Clause 1, Article 54 of the Penal Code: "The Court may decide on a penalty below the lowest level of the applicable penalty range but must be within the adjacent lighter penalty range of the law" . That is, the Court can apply Clause 1, Article 54 of the Penal Code to decide on a sentence for the defendant of less than 20 years in prison, but it must be between 12 and 20 years (the lighter adjacent penalty of the article), but in this case, for humanitarian purposes, it cannot apply to the defendant a sentence of less than 12 years in prison or another lighter penalty.

In some cases, such as the offender voluntarily stops committing the crime halfway, attempts to commit a crime, or the person who commits a sexual offense is under 18 years old... when deciding on the penalty, the Court must also consider applying appropriate humanitarian provisions to them. Typically: regulations on deciding on penalties in cases of preparing to commit a crime, attempting to commit a crime (Article 57); regulations on principles for handling people under 18 years old who commit crimes (Article 91)... The comprehensive application of these provisions when deciding on penalties for sexual offenses not only ensures the humanitarian principle but also contributes to realizing the legal principles of the criminal law sector.

1.3.4. Principle of individualization of punishment

The principle of individualization of punishment is also known as the principle of differentiation of criminal responsibility. This principle is a basic principle expressed in both the construction and application of criminal law. The differentiation of criminal responsibility in law is the legal basis for the individualization of punishment when applied.

In the Penal Code, the principle of individualization of punishment is expressed through the division of crimes into different groups of crimes with diverse systems of punishment; sanctions for each crime are also divided into many different penalty frameworks. For example, in addition to the provisions on the principle of humanity as analyzed in section 1.2.3, the Penal Code also has principled provisions on the policy of severe punishment for masterminds, leaders, commanders, stubborn opponents, thugs, dangerous recidivists, those who abuse their positions and powers to commit crimes; or criminals who use cunning, organized, professional tricks, intentionally causing particularly serious consequences (points c, d, clause 1, Article 3 of the Penal Code). These specific provisions have created optimal conditions for the individualization of punishment.

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In practice, the principle of individualization of punishment requires the Court, when deciding on punishment, to base its decision on the nature and level of danger to society of the criminal act, the personal characteristics of the offender, and mitigating and enhancing circumstances to choose the specific type and level of punishment so as to achieve the purposes of punishment and create conditions for promoting the effectiveness of criminal law.

For sexual offenses, the differentiation of criminal responsibility is not only reflected in the signs of the penalty framework for each crime based on the nature and level of danger of the crime; the personal characteristics of the offender, but is also specified through the provisions on mitigating and aggravating circumstances. Compared to the 1999 Penal Code, the 2015 Penal Code has made remarkable progress in expressing the principle of individualizing penalties for sexual offenses. Specifically, the maximum specification of the circumstances that define the framework for each crime, for example: Causing mental disorders and behavior

the victim's behavior... from 31% to 60% (Article 142, Article 144, Article 146); For people under 10 years old (Article 142); For people that the offender is responsible for caring for, educating, or treating (Article 145);... In addition, the 2015 Penal Code (amended and supplemented in 2017) also specifies and details more aggravating circumstances such as committing a crime against many people to become a crime against 02 or more people, committing a crime many times to become a crime 02 times or more [15, p.178].

Thus, the principle of individualization of punishment as expressed in the law is the basis and condition for the Court to consider and decide on punishment for each specific criminal case in practice. However, these provisions cannot cover all the diverse circumstances and circumstances of each specific crime as well as the personal characteristics of each specific criminal. Therefore, when deciding on punishment, in addition to complying with the general provisions, the Court also considers other specific characteristics of the crime and the criminal as well as the mitigating circumstances in the case to choose the type of punishment and the specific level of punishment to achieve the purposes of the punishment. In other words, the more clearly criminal responsibility is differentiated in the law, the more basis there is for individualizing punishment in practical application.

1.4. Basis for deciding on penalties for sexual offenses

Currently, in criminal law science, there are different understandings of the basis for deciding on punishment. In a broad scope, author Dinh Van Que believes that "the basis for deciding on punishment is the basic requirements (the basis) that the Court must comply with when deciding on punishment for criminals" [21]. Author Duong Tuyet Mien has a different explanation when she believes that "the basis for deciding on punishment is the legal basis prescribed in the Penal Code that the Court must comply with when deciding on punishment for criminals to ensure that the announced punishment achieves the purpose of the punishment" [18, p.120]. Another point of view gives a definition of the basis for deciding on punishment in the direction that "the basis for deciding on punishment is the basic requirements of principle due to

Criminal law stipulates or interprets the law which the Court must follow when deciding on the punishment for a person who commits a crime” [43, p.27].

From a legal perspective, adopting the spirit of Article 45 of the 1999 Penal Code, the 2015 Penal Code continues to acknowledge and develop the provisions on the basis for deciding on penalties in Article 50. Accordingly, Clause 1, Article 50 of the 2015 Penal Code stipulates that “when deciding on penalties, the Court shall base itself on the provisions of this Code, consider the nature and level of danger to society of the criminal act, the personality of the offender, and the mitigating and aggravating circumstances of criminal responsibility” . The decision on penalties for sexual offenses must also be based on these grounds.

Thus, the grounds for deciding on penalties for sexual offenses according to current law include:

- Provisions of the Penal Code;

- The nature and level of danger to society of the criminal act;

- The offender's identity;

- Mitigating and aggravating circumstances of criminal liability.

Each of the above bases plays an important role in the Court's decision on punishment. In practice, the perception and assessment of the role of each base may not be completely consistent among members of the Trial Panel. However, most Judges and People's Assessors acknowledge that the provisions of the Penal Code are the basic basis and premise to ensure the correct decision on punishment.

1.4.1. Based on the provisions of the Penal Code

The provisions of the Penal Code are the first and most important basis for deciding on penalties in general and deciding on penalties for sexual offenses in particular. This basis is considered “a premise to ensure that the decision on penalties is correct” [18, p.120].

When deciding on penalties for sexual offenses, the Court must first base itself on the provisions of the Penal Code, including considering the provisions on

Penalties and decisions on penalties in the General Part (from Article 30 to Article 45, from Article 50 to Article 59...) and especially the provisions on sexual offenses from Article 141 to Article 147 of the 2015 Penal Code. Based on these provisions of the Penal Code, the Court determines which crime the offender commits in the group of sexual offenses? Which Article, Clause, or Point of the Penal Code has the crime violated and what is the specific penalty prescribed for that crime? The basis for deciding on penalties based on the provisions of the Penal Code is also the basis for the Court to consider and evaluate the mitigating and aggravating circumstances of criminal liability for those who commit sexual offenses. Because the mitigating and aggravating circumstances of criminal liability are currently specifically prescribed in Articles 51 and 52 of the 2015 Penal Code.

The recognition of “the provisions of the Penal Code” as the first basis among the bases for deciding on penalties demonstrates the role and importance of this basis in deciding on penalties. This mandatory recognition in the Penal Code helps the Court avoid arbitrariness when deciding on penalties, helping to make the decision on penalties accurate and consistent. This basis contributes to realizing the principle of legality in deciding on penalties in general and deciding on penalties for sexual offenses in particular.

1.4.2. Based on the nature and level of danger to society of the crime

In fact, each criminal act can be committed with different nature and level of danger to society. Therefore, in order to accurately choose the specific penalty to be applied to the offender, the Court, in addition to basing on the "provisions of the Penal Code", must also consider "the nature and level of danger to society of the criminal act". This is the second basis in the grounds for deciding on the penalty stipulated in Clause 1, Article 50 of the 2015 Penal Code.

The nature and level of danger to society of criminal acts in sexual crimes is the level of violation of the inviolable right to sex. That level depends on factors such as: tricks, tools, methods

means, form of committing the crime; consequences of damage caused or threatened to be caused; nature of motive, determination to commit the crime; circumstances of the crime [8, p.320]. For example, the higher the rate of bodily injury to the victim caused by the crime, the more severe the penalty. Therefore, basing on the "nature and level of danger to society of the crime" will help the Court to accurately choose a specific penalty within the scope of the determined penalty framework to apply to the offender.

As analyzed in section 1.1.3, deciding on the penalty for sexual offenses is essentially the choice of the type of penalty and the specific penalty level within the prescribed penalty framework. The specific penalty is decided, although only within the scope of the permitted penalty framework, but must be commensurate with the nature and level of danger of each crime in comparison with other crimes. For sexual offenses, based on the provisions of the Penal Code, the Court can determine which crime a person has committed among the sexual offenses. Which corresponding article or clause from Article 141 to Article 147 of the 2015 Penal Code is that crime regulated in and how is the penalty regulated? However, if only based on the provisions of the Penal Code without considering the nature and level of danger of the crime, it will be difficult for the Court to decide the penalty accurately.

For example, Nguyen Van A (20 years old) used force to have sexual intercourse against the will of Nguyen Thi B (19 years old). During the act, because B resisted, A's rape also caused injury to B. In this case, if based on the provisions of the Penal Code, it can be easily determined that A's act committed the crime of Rape as prescribed in Article 141 of the Penal Code 2015. However, if the nature and level of danger of A's act through the rate of bodily injury to B are not considered, the Court will not be able to determine which point or clause of Article 141 of the Penal Code 2015 belongs to this crime. Because, based on point h, clause 2, Article 141 of the Penal Code 2015, the act of rape causes injury and harm to the health of the victim.

A person whose bodily injury rate is from 31% to 60% shall be sentenced to imprisonment from 07 years to 15 years. However, if the bodily injury rate is 61% or more, the person committing the crime shall be sentenced to imprisonment from 12 years to 20 years or life imprisonment as prescribed in Point a, Clause 3 of Article 141. Therefore, deciding on the penalty in this case without considering the nature and level of danger of the act cannot determine the penalty framework that needs to be applied.

Therefore, “the nature and degree of danger to society of the crime” is a very important basis when deciding on punishment in general and deciding on punishment for sexual offenses in particular. When deciding on punishment for sexual offenses, the Court needs to objectively and accurately assess this basis to give a punishment commensurate with the offender’s behavior in each specific case.

1.4.3. Based on the criminal's identity

The criminal's personality is understood as "the sum of the individual characteristics of the criminal that are significant for the proper resolution of the issue of their criminal responsibility" [36, p.97]. Those characteristics can be age, occupation, work attitude, cultural level, lifestyle, family and economic circumstances, political attitude, legal awareness, religion, criminal record, etc. These are characteristics belonging to the individual criminal, which have a certain influence on the criminal behavior and on the ability to reform and educate that person.

In Vietnamese criminal law, the personal background of the offender is a basis for expressing the principle of individualization of punishment. When deciding on punishment, the Court must base on the personal background of each offender to ensure that the punishment decided achieves the purpose of punishing and educating the offender. This issue has been specified in the Penal Code through provisions that clearly state the personal characteristics of the offender that are considered conditions allowing or limiting the application of punishment. For example, Article 39 of the 2015 Penal Code stipulates "Life imprisonment shall not be applied to persons under 18 years of age who commit crimes" ; Clause 3, Article 40 of the 2015 Penal Code stipulates "The death penalty shall not be executed on a convicted person if

in the following cases: a) Pregnant women or women raising children under 36 months old; or b) People aged 75 years or older”. In addition, there are personal circumstances that also affect the level of danger of the crime [37, p.91]. Therefore, the basis of “provisions of the Penal Code” and the basis of “the nature and level of danger to society of the crime” already contains part of the content of the basis of “personality of the offender”. However, the personal character of the offender is still considered an independent basis that must be considered when deciding on the penalty. In addition, some personal characteristics of the offender are also stipulated as mitigating or aggravating circumstances of criminal responsibility (Article 51, Article 52 of the Penal Code 2015).

In the process of deciding on a sentence, not all personal circumstances of the offender are considered, but the Court only considers circumstances directly related to the crime and the ability to achieve the purpose of the sentence. These may be personal characteristics of the offender reflecting the level of danger to society of the crime such as: first-time offender, recidivist, dangerous recidivist or professional crime...; personal circumstances reflecting the offender's ability to reform and educate such as: repentance, surrender, self-confession, making merit to atone for the crime...; or personal circumstances reflecting the special circumstances of the offender such as: elderly, seriously ill, person responsible for care, education, treatment,...

For example, Nguyen Van B is a teacher at K district high school. Once, B and some friends went out drinking and on the way home, they met Vu Thi C, an 11th grade student at the school. B's friends teased C and together with B dragged C to a secluded place to commit rape. When they had sex, B found out that C was his student. In this case, although B and C had a teacher-student relationship, B's crime was not due to taking advantage of education to rape the person being educated. Therefore, the personal factor

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