Crime of rape of people under 16 years old from the practice of Soc Trang province

Third, if both the accused and the victim cannot determine the date and month of birth, applying Clause 2, Article 417 of the 2015 Criminal Procedure Code will basically ensure objectivity and fairness (although it cannot be considered completely fair) for both the victim and the accused.

Thus, in some cases, if applying Clause 2, Article 417 of the 2015 Criminal Procedure Code, it is necessary to accept that the benefits and disadvantages will be slightly tilted towards the accused or the victim. To solve this problem, according to the author, in the first case, it is necessary to consider the option of forcing the accused to compensate and compensate the victim in terms of material and spiritual matters. In the second case, it is possible to consider reducing the sentence for the accused.

Therefore, the author finds it necessary to conduct an appraisal of the real age of the victim and the offender. This will help to identify the crime and determine the crime accurately, in accordance with the law, limit the omission of criminals, and not wrongfully convict innocent people. At the same time, in the case of a person under 18 years of age who commits a crime, they will enjoy the provisions for people under 18 years of age who commit a crime.

Regarding the age of the victim, the investigation agency itself cannot determine the age of the victim and must rely on a specialized agency to determine the age of the victim. Therefore, for the defendant to determine that the victim is under 13 years old is a very difficult problem, as in the actual case.

For example: In criminal judgment No. 13/2020/HS-ST dated August 31, 2020 of the People's Court of Soc Trang province.

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Between March 2020 and March 27, 2020, defendant Phan Thanh Vi, born in 1999, had sexual intercourse five times with the victim Huynh Thi Thuy Ngan. Born on December 21, 2007; Residence: No. 233/4D/1, Nam Ky Khoi Nghia Street, Hamlet 5, Ward 7, Soc Trang City at two vacant lots in alley 897, Tran Hung Dao Street, Hamlet 1, Ward 10, Soc Trang City, Soc Trang Province. Specifically, each time is as follows:

The first time: Around mid-March 2020, I don't remember the exact date, around 11 p.m., Vi came home from a walk at the beginning of alley 897, Tran Hung Dao street, Hamlet 1, Ward 10, Soc Trang city, Soc Trang province and saw Ngan sitting alone, so Vi went to sit and talk with Ngan for about 30 minutes. Vi invited Ngan to the empty lot next to alley 897. When they arrived, Vi took off Ngan's pants, lay on top of Ngan, held her penis in her left hand and inserted it into Ngan's vagina to have sex with Ngan...

On the day of the sexual assault, victim Huynh Thi Thuy Ngan was only 12 years, 3 months and 6 days old.

In the conclusion of the forensic psychiatric examination according to the request No. 136/2020/KLGD dated June 19, 2020 of the Southwest Regional Forensic Psychiatric Center of the Ministry of Health, it was concluded that Pham Thanh Vi had limited ability to perceive and control behavior due to mental illness. [59] .

The content of the case shows that the subject of the impact in this case is a person under 13 years old. However, even the prosecution agency cannot determine the age of the victim and relies on a specialized agency for an assessment, so it is very difficult to require the defendant to know that the victim is under 13 years old. From the above case, it can be seen that the defendant has limited awareness and the victim has consented to the defendant's sexual intercourse and the defendant himself cannot determine the real age of the second victim. In this case, the prosecution agency is only interested in the subject, the victim under 13 years old, to investigate, prosecute and try the defendant. According to the author, it is necessary to amend the provision in Point b, Clause 1, Article 142 of the 2015 Penal Code so that the person who commits the crime of sexual intercourse or other sexual acts with a person who knows the victim is under 13 years old shall be prosecuted for the crime of Rape of a person under 16 years old.

2.2.3 Solutions on legal application guidance

Regarding the application of the law: The author's assigned penalty framework is unreasonable in terms of the framing circumstance of "Committing a crime against a person under 10 years old". Because

Clause 1, Article 142 of the 2015 Penal Code, amended and supplemented in 2017, stipulates that the age of sexual abuse against the victim's will is from 13 to under 16 years old or any act of sexual abuse against a victim under 13 years old. However, the legislator ignored Clause 2, Article 142 of the 2015 Penal Code, amended and supplemented in 2017, and stipulated the sentencing circumstance "Committing a crime against a person under 10 years old" in Clause 3, Article 142 of the 2015 Penal Code, amended and supplemented in 2017 with a sentence of 20 years in prison, life in prison or death penalty. Creating a huge gap with the provisions in Clause 1, Article 142 and Clause 3, Article 142 of the 2015 Penal Code, amended and supplemented in 2017. According to the author, the framing circumstance of "Committing a crime against a person under 10 years old" should be moved to Clause 2, Article 142 of the 2015 Penal Code, amended and supplemented in 2017, which will be consistent with the differentiation of crimes.

Regarding the penalty framework as prescribed in Article 142 of the 2015 Penal Code, amended and supplemented in 2017, there should be more appropriate guidance on applying specific penalties.

Currently, the provisions in Clause 1 and 2, Article 142 of the 2015 Penal Code have overlapping penalties, Clause 1 " from 7 to 15 years " Clause 2 " from 12 to 20 years ", so when applied when the offender has many mitigating circumstances when committing the crime, it leads to the case that the offender in Clause 1 may have a higher sentence than the offender in Clause 2. In terms of legal science, there is nothing wrong, but from a social perspective, there is something that feels disproportionate and raises negative issues in the prosecution agency.

2.2.4 Solution on trial capacity

Trial practices in recent times have shown that the prosecuting agencies have promptly and strictly tried many cases of child sexual abuse in accordance with the law, thereby gradually preventing this type of crime. The penalties that the Court applies to this type of crime are very severe.

In the process of trying and resolving child abuse cases, it can be said that the People's Court of Soc Trang province has always adhered to the principles of child protection.

The legitimate rights and interests of citizens in general, and the protection of the legitimate rights and interests of women and girls in particular, are stipulated in criminal law documents, marriage and family law, gender equality law, and domestic violence prevention and control law. This is the combination and synchronous implementation of measures to prevent and control sexual violence, with prevention as the main focus, focusing on propaganda and education on gender equality and children's rights; acts of domestic violence in general and sexual violence in particular must be detected, prevented and handled promptly in accordance with the provisions of law; victims of sexual violence must be protected by law and promptly assisted in accordance with their circumstances and the socio-economic conditions of the country; Prioritize protecting the legitimate rights and interests of children, while promoting the role and responsibility of individuals, families, communities, agencies and organizations in preventing and combating violence in general and sexual violence against women and girls in particular.

In the process of adjudicating criminal cases in general and adjudicating criminal cases of child sexual abuse in particular, the People's Court of Soc Trang province has proactively coordinated with the prosecution agencies to ensure that cases are resolved in the most reasonable and reasonable manner, especially major and important cases that are of public interest. Up to now, the People's Court of Soc Trang province has developed a coordination regulation between the prosecution agencies, periodically exchanging and agreeing on issues with different opinions on evidence assessment and law application to limit the omission of criminals or the wrongful conviction of innocent people, and also to limit the situation of returning files for additional investigation requests multiple times between the prosecution agencies when there are still many different opinions on evidence assessment and criminal acts.

Identifying sexual abuse cases all leave very serious consequences, the victims are not only physically injured but also always live in fear and obsession; at the same time, the victims, especially young girls, find it very difficult to reintegrate into the community, living isolated in a separate world. Therefore, to contribute

In order to prevent sexual abuse, the People's Court of Soc Trang province has implemented the Directive Document of the Supreme People's Court to proactively work with the police and the Procuracy at the same level to grasp the situation and have a plan to coordinate right from the investigation stage to quickly prosecute and try those who sexually abuse children; punish them severely with high penalties within the penalty framework in the applicable laws to prevent crimes of sexual abuse against children.

Implementing the direction of the Supreme People's Court, in recent times, the People's Court of Soc Trang province has urgently studied the files to promptly and strictly try child sexual abuse cases, meeting the political requirements of the locality. For cases where the defendant or the victim is eligible for legal aid, the Court has proactively contacted the Soc Trang Provincial Legal Aid Center to assign people to protect the rights and legitimate interests of the victim and a defense attorney for the defendant. In organizing trials of criminal cases of sexual abuse against women and girls, the Court has carefully considered, ensuring that the details of the case are disclosed, while ensuring good customs and cultural factors; protecting human dignity and not causing negative impacts on the psychology of the victim, especially children. The punishments that the Courts apply to defendants who commit crimes related to sexual violence against children are basically strict, in accordance with regulations, commensurate with the nature and level of the defendant's criminal acts, meeting the requirements of the fight against crime in general and crimes of sexual violence in particular in the current situation. At the trial, in addition to questioning to reveal the defendant's criminal acts and determine the objective truth, the Trial Panel always focuses on legal education through explaining the law to the defendant and the participants in the trial to understand the consequences and implications.

consequences arising from child sexual abuse. Thereby, contributing to raising awareness of the harmful effects of child sexual crimes.

Through the practice of criminal trials, it can be seen that all child abuse cases are actively and closely coordinated by the prosecuting agencies right from the time of reporting to discuss solutions to quickly resolve child abuse cases. In the past, cases related to child abuse were brought to trial promptly, strictly, and in accordance with the law, ensuring deterrence and education for criminals as well as deterrence, education, and general prevention in society.

Strengthen coordination to promote propaganda and education work to raise awareness and promote the responsibility of the social community in the fight against crime in general and sexual assault crimes in particular.

To carry out the trial with better results in Soc Trang province in particular, according to the author, it is necessary to:

- Recommend the Government to promote the implementation of the National Crime Prevention Program, including the Project on combating crimes related to abuse of women and children.

- Regularly organize training and foster to improve capacity and skills in handling sexual assault cases, meeting the requirements of the fight against crime in general and the fight against sexual assault crimes in particular in the new situation.

- The professional competence and moral qualities of the person determining the crime are among the important factors and conditions. In a criminal case, the most important thing is to determine the crime, but determining the correct crime to avoid wrongful convictions and letting criminals escape is always a concern of competent authorities. Therefore, to determine the correct crime, the person conducting the trial must have high professional competence and good moral qualities, and must regularly train and improve their professional skills. In addition,

The source of selecting people to conduct proceedings through degrees and certificates of professional expertise is necessary and always maintained throughout the system. In reality, in society, there have been cases of using illegal degrees or in other words, fake degrees to work in agencies conducting proceedings.

- The judge conducting the trial is of course a person with professional expertise and experience in the work. However, it is also necessary to regularly cultivate ethics because the balance of justice is in the hands of the judge, so if it is corrupted, it can easily lead to negativity in the process of resolving the case. Besides, it is also inevitable that there are some cases with low capacity and professional expertise who use all means to achieve important positions for personal gain. Therefore, when selecting a judge, it is necessary to carefully consider the work process as well as the person's style during the time working at the unit.

- People's Jury: Practice shows that there is little attention paid to the professional expertise of People's Jury, especially district-level People's Jury. Some Jury members only represent organizations, most of them do not have legal expertise and have a short time participating in legal work and practice, but because they meet the needs of the law, they are elected as Jury members. This makes the role of the People's Jury a formality. When questioning at court, they often ask for the sake of it, without focusing on or not related to the details of the case, and often use words that accuse the defendant during the questioning phase. This is not in accordance with the spirit of the Constitution " The accused is considered innocent until proven guilty according to the procedures prescribed by law and there is a judgment of conviction by the Court that has come into legal effect ") and the basic principle of criminal law is the presumption of innocence " The accused is considered innocent until proven guilty according to the procedures prescribed by this Code and there is a judgment of conviction by the Court that has come into legal effect". When

Insufficient and unable to clarify the basis for the accusation and conviction according to the procedures prescribed by this Code, the competent agency or person conducting the proceedings must conclude that the accused is not guilty . Moreover, in practice, the author also found that the People's Assessors are often guided by the Judge when deciding on the sentence. When there is a conflict in the sentence, the majority of the votes are in favor of the Judge, so the independence is not high, making the verdict unfair and objective. Therefore, especially in the current period, it is necessary to choose People's Assessors who are courageous and decisive. Although People's Assessors are non-professionals, they often raise social issues, but they must have courage and maintain their viewpoint when voting with the Judge.

- In addition, the rotation of judges must be regular, not allowing one person to work for more than 5 consecutive years at an agency (if necessary, not more than 10 years), not arranging judges to work in their hometowns (including their spouse's hometown), not arranging relatives to work in the same agency, which will lead to factionalism and group interests.

Crime of rape of people under 16 years old from the practice of Soc Trang province - 10

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