The first day of July of that year shall be the date of birth of the victim to consider criminal liability of the accused . In special cases, if the year of birth of the victim cannot be determined, an expert examination may be requested to determine the victim's age.
This provision of the Vietnamese criminal law is completely consistent with the international treaties that Vietnam has signed as well as the criminal laws of countries around the world. For example, in the 1998 Criminal Code of the Russian Federation, in Clause 3, Article 122, which regulates the crime of transmitting AIDS, the crime committed against a minor is also included as an aggravating circumstance:
“2. A person who knows he is infected with AIDS and transmits the disease to another person shall be sentenced to up to five years in prison;3. The act specified in Clause 2 of this Article, if committed against two or more people or against a person who is clearly a minor, shall be sentenced to up to eight years in prison” [40, p.278].
One issue is whether the offender must know that the subject is a minor or not. Nowadays, due to the increasingly improved living standards and early development of children, it is very difficult to determine whether the child is a minor or not. It is only possible to base on the birth certificate or documents recording the child's date of birth. For example, in some rape cases, after committing the crime, through the investigation process of the investigating agency, the offender only knows that the victim is only 12 years old, but if looking at the appearance, she looks like a grown woman. According to the author, it is not necessary for the offender to be aware that the subject is a minor because, based on the dangerous nature of the act of trying to transmit HIV to others, the offender must be aware that the act he/she is performing is extremely dangerous. The sign that the victim is a minor only means a circumstance that increases the penalty. Therefore, just by identifying the victim as a minor, the offender is prosecuted for criminal liability.
according to point b, clause 2, Article 117, and does not depend on the subjective consciousness of the offender. This case is similar to the case of committing a crime under point d, clause 2, Article 104 on the crime of intentionally causing injury or harm to the health of another person.
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- Crime committed against a physician or medical staff directly treating the offender (Point c, Clause 2, Article 117 of the 1999 Vietnamese Penal Code). In case the offender intentionally transmits HIV from himself to the physician or medical staff directly treating him, he will be subject to increased punishment according to the provisions of Point c, Clause 2, Article 117 of the 1999 Vietnamese Penal Code. The physician or medical staff directly treating the offender may be a doctor, physician, nurse, nursing assistant or other medical staff.
Doctors or medical staff who directly treat criminals may be treating AIDS caused by the HIV virus. In addition, they may also be treating other opportunistic diseases in the body of people infected with HIV such as tuberculosis, typhoid, abdominal lymph nodes, etc. In this case, if the criminal intentionally transmits HIV, he or she will still be prosecuted for criminal liability according to Point c, Clause 2, Article 117 of the 1999 Penal Code. The reason why lawmakers consider this an aggravating circumstance is because the level of danger of the crime in this case is significantly increased and it is necessary to bear higher criminal liability than in normal crimes because doctors and medical staff are those who are in frequent contact with HIV-infected subjects, have a large workload, and are easily exposed to HIV. Committing a crime against doctors or medical staff who directly care for them demonstrates the despicable motives of the criminal. Because these are the people that the criminals need to respect and be grateful to because they are the ones who contributed to curing their illness. Moreover, this is a dangerous disease, treating HIV patients is not a job that everyone can do. Treating and caring for these people
This phenomenon requires great determination and a noble heart of a doctor. The offender realized that it was very easy and easy to commit a crime against the doctors or medical staff who directly cared for him, so he took advantage of the victim's care to commit the crime. This is a condemnable act and should be considered a circumstance to increase the penalty.
According to the provisions of the Law, only when the offender intentionally transmits HIV to the doctor or medical staff who directly treats him/her, and the motive for transmission is related to the victim's treatment, will the provisions of Point b, Clause 2, Article 117 be applied. If the offender transmits HIV to the doctor or medical staff, but these people do not directly treat the offender, the offender will not be subject to this aggravating circumstance.
One issue is whether it is required that at the time the offender intentionally transmitted HIV to a doctor or medical staff, they were under the care and treatment of the victim. This issue also needs detailed guidance. For example: C is a drug addict, infected with HIV, being cared for at the rehabilitation center of K province. Doctor N - a doctor at the rehabilitation center, directly cares for C. Through investigation, C learns that Doctor N is a former friend of his father, who accidentally crashed into C's father's car while driving to work, seriously injuring him, and is now bedridden. C thinks that Doctor N has caused disaster to his family, and now taking care of him is just a way to make up for what he has caused, so he is extremely indignant. After returning home from treatment, when Doctor N came to visit, C used a needle containing his own blood to stab Doctor N. The incident was discovered, C was sent back to the rehabilitation center, Doctor N had his blood tested and the result was positive for HIV.
- Cases of committing crimes against people performing official duties or for the victim's official duties (Point d, Clause 2, Article 117 of the 1999 Vietnamese Penal Code). Transmission of HIV to people performing official duties is a case where the victim is a person performing official duties assigned by a State agency or social organization for the common benefit of the State and society, such as a teacher giving a lecture, an officer invigilating an exam, a tax officer collecting taxes, a forest ranger protecting the forest, a police officer guarding a prison or arresting a drug user, etc. Transmission of HIV to others for their official duties shows that the task assigned to the victim has a direct impact on the offender, so they have actively transmitted the disease to the victim, which may occur before or after performing official duties. The offender's motive may be to prevent the victim from performing official duties or to take revenge on the victim because the victim is performing that official duty. In the case of the crime of transmitting HIV to others as prescribed in Point d, Clause 2, Article 117, the offender commits the crime with the motive of obstructing a person performing official duties, and when committing the crime, it can be due to any motive such as self-interest, hatred, jealousy towards the victim...
The aggravating circumstances prescribed in Article 118 include: “a) Organized; b) Against many people; c) Against minors.
minors; d) Against a person performing official duties or for the victim's official duties; e) Taking advantage of the profession". Specifically, the aggravating circumstances prescribed in Article 118 include the following circumstances.
- Organized crime (point a, clause 2, Article 118). Similar to organized crime in other crimes, it is a case where many people intentionally discuss and collude closely with each other, and plan to intentionally transmit HIV into another person's body, under the unified control of the leader. When determining this crime, it is necessary to pay attention to distinguish it from the usual case of complicity involving two or more people.
They intentionally transmitted HIV to others without discussion or close collusion; there was no division of roles for each person, no planning, and no leader.
- Committing a crime against many people (point b, clause 2, Article 118). This crime is similar to the crime specified in point a, clause 2, Article 117 of the Penal Code, the only difference is that the offender in this case is not the person who transmits HIV in his body to another person, but transmits another person's HIV to many other people. For example: A knows that B is infected with HIV. Because he is an addict, A often asks C and D for money to buy drugs to inject, but C and D do not give it to him. A tries to get revenge on C and D. One day, while A is injecting drugs for B, C and D come. B sees C and D come and has also injected drugs with B many times, so B tells C and D: "If you want to inject, tell A to inject you, I still have drugs to buy". Hearing B say that, C and D agreed. Taking advantage of this opportunity, A used the needle and syringe that had injected drugs into B to inject drugs into C and D with the intention of infecting C and D with HIV from B's body.
- Committing a crime against a minor (point c, clause 2, Article 118). This crime is similar to the crime specified in point b, clause 2, Article 117 of the Penal Code, the only difference is that the offender in this case is not the person who transmits HIV in his body to another person, but transmits another person's HIV to a minor. For example: H and K are both 17 years old, 11th grade students, but both are drug addicts and both love T, their classmate. H knows that her brother B has contracted HIV because of drug injection. One day, while H was injecting drugs for B, K came to visit. Because he wanted to take revenge on K, H said to K: "Want to do something?". Being in a drug addiction, K agreed to let H use a needle and syringe.
Lanh injected drugs into his brother to inject drugs into K with the hope that K would be infected with HIV like his brother.
- Committing a crime against a person performing official duties or for the victim's official duties (Point d, Clause 2, Article 118). This crime is similar to the crime specified in Point c, Clause 2, Article 117 of the Penal Code, the only difference is that the offender in this case is not the person who transmits HIV in his/her body that has been infected to the person performing official duties or for the victim's official duties, but rather transmits HIV from another person to the person performing official duties.
- Taking advantage of a profession to commit a crime (Point d, Clause 2, Article 118). Taking advantage of a profession to intentionally transmit HIV to others is a case where the offender has taken advantage of his or her profession, which has the ability and favorable conditions for intentionally transmitting HIV to others, such as taking advantage of treating a victim to transmit HIV to the person he or she is treating. For example: Vu Thi C is a nurse at a drug rehabilitation center. C knows that H is infected with HIV. Due to a conflict with K, her ex-lover who was also sent to a drug rehabilitation center, C intended to take revenge on K. Once, Vu Thi C was assigned to work and saw that K and H both had a fever. According to the doctor's instructions, K and H both had to be injected with fever-reducing drugs. Taking advantage of this opportunity, Vu Thi C used a needle and syringe to inject H with drugs to inject K with the intention of K also being infected with HIV.
Crimes committed in the following cases: organized; against many people; against minors; against people performing official duties or for the victim's official duties; taking advantage of a profession to commit a crime, the offender will be prosecuted under Clause 2, Article 118 of the Penal Code with a penalty of ten to twenty years in prison or life imprisonment. This is an especially serious crime, so when trying the case, the Court will consider the nature.
The level of danger to society of the criminal act, the personality of the offender, the mitigating circumstances and the aggravating circumstances of criminal responsibility to apply a specific penalty level commensurate with the crime committed by the defendant. If the offender has many mitigating circumstances, has not caused consequences (the person infected with HIV has not been infected with HIV), then a penalty of less than ten years in prison can be applied. If the offender has many circumstances that are signs of the penalty framework prescribed in Clause 2, Article 118 of the Penal Code, but has many aggravating circumstances prescribed in Article 48 of the Penal Code, the consequences caused the person infected with HIV infected with HIV and there are not many mitigating circumstances, then a high penalty within the penalty framework must be applied (twenty years or life imprisonment).
In addition to the main penalty, the offender may also be banned from holding a position, practicing a profession or doing certain jobs for one to five years according to Clause 3, Article 118 of the Penal Code. In addition, Article 118 also stipulates additional penalties for offenders who intentionally transmit HIV to others. Accordingly, the offender may also be banned from holding a position, practicing a profession or doing certain jobs for one to five years. This is a special provision that does not exist in Article 117, because the subjects of this crime are sometimes people who have responsibilities or practice a profession but intentionally transmit HIV to others, causing danger to society. Therefore, the offender must be banned from practicing a profession or holding a position for a certain period of time to prevent them from continuing to take advantage of their position or profession to commit crimes.
1.3. Distinguishing between HIV-related crimes and the aggravating circumstance of “knowing one is infected with HIV and still committing a crime”
Due to the dangerous nature of the act of intentionally transmitting HIV to others, in addition to the two new crimes of transmitting HIV to others (Article
117) and the crime of intentionally transmitting HIV to others (Article 118), the 1999 Penal Code added a new aggravating circumstance, "Knowing that one is infected with HIV but still committing a crime" in a number of sexual crimes such as: rape (point b, clause 3, Article 111), child rape (point e, clause 3, Article 112), rape (point b, clause 3, Article 113), child rape (point d, clause 3, Article 114), sexual intercourse with children (point b, clause 3, Article 115)...
The most obvious difference between the crime of transmitting HIV to others and some sexual offenses in cases where there are aggravating circumstances of “ Knowing one is infected with HIV and still committing the crime” is that only the crime of transmitting HIV to others can be committed through blood. Because the above crimes can all be committed through sexual intercourse, it is necessary to distinguish between the crimes.
Sexual offenses manifest their dangerous nature through the violated social relationship of the right to respect and sexual freedom, with specific sexual offenses that should be defined as independent crimes.
For example, using force, threatening to use force or taking advantage of the victim's defenselessness or other means to have sexual intercourse against the victim's will is the crime of rape (Article 111). If using any means to force a person who is dependent on you or in a desperate situation to have sexual intercourse, it is the crime of rape (Article 113)... The nature and level of danger in sexual assault crimes are significantly increased in cases where the offender knows he is infected with HIV but still commits the crime. Therefore, this circumstance is defined as an aggravating circumstance.
The question is whether the circumstance of “ Knowing one is infected with HIV but still committing the crime” , with the meaning of increasing the penalty in these sexual crimes, can be considered independently from the circumstance of knowing one is infected with HIV but still intentionally transmitting it to others in the crime of transmitting HIV to others? Or in other words, when determining the crime of rape, the crime of rape, the crime of child rape