Determining the Objective Side of the Crime of Rape of a Person Under 16 Years Old.

The crime of raping a person under 16 years old is regulated in Article 142, Chapter XIV of the Penal Code: Crimes against human life, health, dignity, and honor. The object of the crime of raping a person under 16 years old is the right to protection of the body, health, honor, dignity, and healthy development of children. Acts that infringe upon the rights to protection of the body, health, honor, dignity, and healthy development of children are strictly prohibited by law and condemned by society because they affect the normal psychological and physiological development of children, social order, go against the customs and culture of Vietnamese people, leaving bad consequences for the victims and their families as well as other bad consequences for society.

The age of the victim is a mandatory sign that must be proven to constitute the crime of rape of a person under 16 years old. However, in reality, determining the age of the victim is also a difficult problem in the process of proving by the prosecuting agencies. Determining the age is first based on the timely birth certificate, and if the birth certificate is overdue, it is based on the birth certificate. In case there is no birth certificate, birth certificate or loss of the above documents, the prosecuting agencies must apply all possible measures to determine the real age of the victim.

1.2.1.2 Determine the objective aspect of the crime of rape of a person under 16 years old.

Crime is a unity of subjective and objective elements. If the subjective aspect of a crime is the internal psychological state of the criminal, the objective aspect of a crime is the external aspect of the crime, including the manifestations of the crime that take place and exist outside the objective world.

Objective signs of crime include: socially dangerous behavior; socially dangerous consequences; the relationship between behavior and consequences; external conditions of committing the crime such as: time, means, tools, circumstances of the crime...

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Objective criminal behavior is human behavior expressed in the objective world in certain forms, causing damage or threatening to cause damage to social relations protected by Criminal Law.

- Objective behavior has the following characteristics:

+ The objective behavior of the Crime of Rape of a person under 16 years old must be significantly dangerous to society. The social danger of the criminal act is shown in the fact that the criminal act must cause damage or threaten to cause damage to social relations protected by the Penal Code.

+ The objective behavior of a crime must be a conscious and intentional activity of the offender.

+ The objective behavior of a crime must be an illegal criminal behavior: The objective behavior of a crime must be an act prohibited by the Penal Code and defined as a crime. This characteristic comes from one of the contents of the legal principle of the Criminal Law and the illegality of crimes.

- The objective act of raping a person under 16 years old can be through the following forms:

+ Criminal act: Is a form of expression of criminal behavior that changes the normal state of the affected object, causing damage or threatening to cause damage to the object through the subject doing something prohibited by law.

+ Non-committal act: is a form of expression of criminal behavior that changes the normal state of the affected subject, causing damage or threatening to cause damage to the subject through the subject not doing something that the law requires to be done even though he has the conditions to do it.

- The objective behavior of the Crime of Rape of a person under 16 years old includes the following specific behaviors:

+ Acts of violence: are acts of using physical force to impact the victim's body such as tying hands, feet, gagging, strangling, punching, pushing, holding, tearing clothes, etc. mainly to paralyze the victim's resistance so that the offender can have sexual intercourse against the victim's will.

+ Threatening to use force: this is the act of a person using words or actions to mentally intimidate a person under 16 years old, causing the threatened person to be afraid such as: threatening to kill, threatening to beat, threatening to shoot... causing the victim to be afraid to let the offender have sex against their will. When determining the crime of rape of a person under 16 years old, investigators, prosecutors, judges, and jurors need to pay attention, this trick must be strong enough to completely paralyze the will to resist of a person under 16 years old, making the victim afraid to let the offender have sex against their will. The assessment of threatening to use force also depends on many factors such as the behavior of the offender, the severity of the behavior and the psychology of the victim at that time... to have enough basis for assessment.

+ The act of taking advantage of the victim's defenseless state is when the victim falls into a state where if another person has sex with them, they cannot resist. This situation can be caused by the offender himself to have sex with the victim against the victim's will. There are also cases where the victim falls into a state of defenselessness due to other objective reasons not caused by the offender, but the offender takes advantage of that situation to have sex with the victim against their will.

- Taking advantage of the defenseless state of a person under 16 years old is when the offender takes advantage of the victim's situation in one of the following situations to have sexual intercourse or perform other sexual acts:

+ The victim cannot resist (for example: the victim has an accident, faints, is tied up, is disabled... resulting in the victim being unable to resist);

+ The victim has limited or lost cognitive ability and ability to control behavior (for example: the victim is drunk on alcohol, beer, sleeping pills, anesthetics, drugs, sedatives, stimulants, other stimulants, has a mental illness or other illness... leading to limited or lost cognitive ability and ability to control behavior)

- Behavior using other tricks. This is an open regulation to meet the requirements of crime prevention and control. Behavior using other tricks such as: poisoning the victim; giving the victim sleeping pills, anesthetics, alcohol, beer or other strong stimulants that cause the victim to lose the ability to perceive, the ability to control behavior to have sex or perform other sexual acts; promising to graduate, to go to school, to compete, to perform abroad to have sex or perform other sexual acts.

- Other sexual acts are acts by people of the same or opposite sex using male genitals, other body parts (for example: fingers, toes, tongue, etc.), or sexual instruments to penetrate the female genitals, mouth, or anus of another person with any degree of penetration, including one of the following acts:

+ Inserting male genitals into another person's mouth or anus;

+ Using other body parts (eg fingers, toes, tongue, etc.) or sex toys to penetrate another person's genitals or anus.

Compared with the process of amending and supplementing the content of the Articles in our country's Penal Code over the periods, the objective behavior of the Crime of Rape of a person under 16 years old has been increasingly amended, supplemented and perfected with regulations on objective behavior in constituting this type of crime. The amendment, supplementation and completion of regulations on objective behavior in constituting the crime helps to

The perception and application of the law by investigators, prosecutors, judges and juries is more unified, easier and more convenient, without changing its nature.

- Sexual intercourse against the will of a person under 16 years of age:

+ Intercourse is the act of penetration of the male genitals into the female genitals, with any degree of penetration.

+ Sexual intercourse with a person under 10 years old is considered to have occurred regardless of whether penetration has occurred or not.

- Against the will of a person under 16 years old: the sign of being against the will of a person under 16 years old is a mandatory sign of the crime, but this sign is only meaningful in cases where the victim is 13 years old or older, and in cases where the victim is under 13 years old, whether against their will or not, the person who has sexual intercourse with them is committing a crime. The fact that the lawmaker stipulates that a person under 13 years old, if they agree to let the offender have sexual intercourse, this sexual intercourse is still considered a crime of rape of a person under 16 years old comes from the argument: people under 13 years old are not fully developed in terms of psychology and physiology, are not aware of their behavior and actions, are a group of subjects that are easily seduced, bribed, and enticed, so they need to be protected in a special way to ensure their normal, healthy development and need to strictly punish abusive behavior.

- The consequences of the act of Rape of a person under 16 years old are the damages that the perpetrator causes to the victim. Physically: It is the change in the normal state of the natural entity of a human being (human body). Physical damage is damage to life and health caused by the crime to the victim. Non-material damage: is damage to the honor, dignity, and psychology of the victim. Because the victim is a child, the consequences of this crime are especially serious.

- The causal relationship is understood as the connection between a phenomenon that is an objective behavior that is dangerous to society acting as a cause and a phenomenon that is a dangerous consequence to society acting as a result. The criminal act occurs before the dangerous consequence to society in terms of time. Between the act of raping a person under 16 years old and the consequence that occurs, there must be an intrinsic, inevitable relationship. In order for the process of determining the crime to be correct, avoiding wrongful convictions and avoiding letting criminals escape. In the process of applying criminal law, in order to force a subject to bear criminal responsibility for the dangerous consequences to society for the act of raping a person under 16 years old, the prosecuting agencies must prove that the consequence is a dangerous act to society that they cause.

1.2.1.3 Identify the subject of the crime of rape of a person under 16 years old.

The subject of the crime of Rape of a person under 16 years old is a person with criminal responsibility capacity, reaching the legal age and committing the specific crime of Rape of a person under 16 years old. The subject of the crime is a specific person who has committed an act violating criminal law. The subject of the crime must be a person with criminal responsibility capacity and of the age of criminal responsibility. Criminal responsibility capacity and the age of criminal responsibility are two mandatory signs of all subjects of crime in general and rape of a person under 16 years old in particular. The subject of the crime is one of the four elements constituting a crime, with the role of the person committing the act described in the objective aspect of the crime. Therefore, if there is no subject of crime, there will be no objective behavior of crime, no psychological state of the person committing that behavior and no violated social relationship or in other words, if there is no subject, there will be no objective side, subjective side of crime and no object of crime. Therefore, accurately determining the subject of crime is important in determining the crime.

In addition to the two signs of age of criminal responsibility and criminal responsibility capacity, the subject of the crime also has other social, psychological, and biological characteristics (such as: occupation, gender, educational level, work attitude, community relations, legal awareness, religion, criminal record, etc.). If these characteristics are meaningful in properly resolving the issue of criminal responsibility of the offender, the synthesis of those signs becomes the personal characteristics of the offender. Some personal characteristics of the offender are prescribed as signs for determining the penalty framework such as the sign of "dangerous recidivism", some personal characteristics of the offender are aggravating or mitigating circumstances: recidivism, the offender is an elderly person, etc., the personal characteristics of the offender are the basis for deciding on the penalty, the personal characteristics of the offender is also a factor to consider when considering criminal handling measures for the offender such as applying suspended sentences, applying non-custodial reform, applying lighter penalties than prescribed by the Penal Code, applying life imprisonment, death penalty for minors who commit crimes... The personal characteristics of the offender help us accurately determine the fault, motive, and purpose of the offender...

Based on the crime composition of the Crime of Rape of a person under 16 years old, any person who is of age of criminal responsibility and has full criminal responsibility capacity can be the subject of this crime. According to the provisions of Article 12 of the Penal Code on the age of criminal responsibility, a person from 16 years old or older must bear criminal responsibility for the Crime of Rape of a person under 16 years old. A person from 14 years old but under 16 years old must also bear criminal responsibility for the Crime of Rape of a person under 16 years old.

The 2015 Penal Code stipulates the expansion of the subject of sexual intercourse: The 1885 Penal Code and the 1999 Penal Code previously stipulated that the subject of the crime of rape is understood to be only men, women cannot become the subject of the crime of ordinary rape because it goes against the nature of sexual intercourse. Women can only become the subject of the crime of rape.

Rape in the case of an accomplice in the role of an accomplice. However, the 2015 Penal Code, by recognizing other sexual acts, the subject of the crime of rape in general and of people under 16 years old in particular is not only men but also women. Thus, women can also become the subject of the crime of rape in the following cases:

Firstly, it is unlikely that women will use force, threaten to use force or take advantage of men's defenselessness to have sexual intercourse or have sex against their will. However, the act of using "other means" to have sexual intercourse or have sex against the victim's will can be an act performed by women. For example, giving the victim aphrodisiacs, etc. Therefore, in this case, the woman's act can be considered a crime and must bear criminal responsibility according to the provisions of the law.

Second, a female subject may be prosecuted for rape in the case of an accomplice. Even if she is not the perpetrator, a female may be considered guilty if she intentionally co-commits rape as an organizer, instigator or accomplice.

1.2.1.4 Determine the subjective aspect of the crime of rape of a person under 16 years old.

If the objective side of a crime is the external manifestation of the crime, then the subjective side of a crime is the internal psychological activity of the offender related to the commission of the crime. In fact, the subjective side of a crime does not exist independently but is always associated with the objective side of the crime, demonstrating the unified connection between the two sides of the crime problem. The subjective side of the crime of raping a person under 16 years old is the internal side of the crime, including: fault, motive, purpose. In which fault is a mandatory sign (sign of conviction). The motive for committing the crime and the purpose of committing the crime are signs of conviction in the composition of this type of crime.

Fault is a person's psychological attitude towards his socially dangerous behavior and towards the consequences caused by that behavior, expressed in the form of intention or negligence. In principle, a person's psychological attitude can be set