Using other tricks: the perpetrator uses tricks to give the victim sleeping pills, beer, alcohol, anesthetics... causing them to lose their ability to perceive, their ability to resist, to have sexual intercourse or perform other sexual acts against their will.
+ For the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old: the objective behavior has only one sign, which is that the offender has sexual intercourse or other sexual acts with the consent of a person from 13 to under 16 years old without using force, threatening to use force or taking advantage of the victim's defenselessness as in the crime of raping a person under 16 years old. This is the fundamental difference between these two crimes.
- Regarding the subject: The subject of the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old must be a person 18 years of age or older (an adult) with the capacity to bear criminal responsibility. However, the subject of the crime of raping a person under 16 years of age must be a person 14 years of age or older with the capacity to bear criminal responsibility.
- Subjectively: the fault of the person committing the crime is intentional. This is a similarity in terms of fault when comparing the crime of raping a person under 16 years old with the crime of sexual intercourse or performing other sexual acts with a person from 13 years old to under 16 years old.
1.1.2.2. Distinguishing between the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old (Article 145) and the crime of rape of a person from 13 to under 16 years old (Article 144)
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“Raping a person from 13 to under 16 years old is the act of using any means to make a person from 13 to under 16 years old who is dependent on you or is in a desperate situation have to reluctantly have sexual intercourse with you or have other sexual relations with you ”[27, p.271]
The crime of raping a person from 13 to under 16 years old (Article 144) and the crime of sexual intercourse or performing other sexual acts with a person from 13 to under 16 years old (Article 145) have similar and different criminal signs as follows:
- Regarding the object: Rape of a person from 13 to under 16 years old and the crime of sexual intercourse or performing other sexual acts with a person from 13 to under 16 years old both violate the object of honor, dignity, and health of a person, the subject of the impact is a child from 13 to under 16 years old.
- Objectively : These two crimes differ mainly in the objective behavior of the criminals. Specifically:
For the crime of raping a person from 13 to under 16 years old: the objective act is the act of the offender taking advantage of the victim who is dependent on him (for example, between a teacher and a student, the victim is an employee of the offender, the victim is a person being raised by the offender...) or the victim is in a difficult, desperate situation (for example, the victim is someone who owes money to the offender, the victim is having financial difficulties to treat a relative...) and cannot overcome it by themselves but needs the help of the offender, forcing them to reluctantly have sexual intercourse or reluctantly perform other sexual acts.
For the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old: the objective act is that the offender has sexual intercourse or other sexual acts with the consent and voluntariness of the victim without taking advantage of the victim being dependent on him or being in a desperate situation where the victim has to reluctantly have sexual intercourse or reluctantly perform other sexual acts as in the crime of rape with a person under 16 years old. This is the fundamental difference between these two crimes.
- Regarding the subject: The subject of the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old must be a person 18 years of age or older.
up (adult), has the capacity to bear criminal responsibility. However, the subject of the crime of rape of a person under 16 years old is a person from 14 years old and has the capacity to bear criminal responsibility.
- Subjectively: the fault of the person committing the crime is intentional. This is the similarity in terms of fault when comparing the crime of raping a person from 13 to under 16 years old with the crime of sexual intercourse or performing other sexual acts with a person from 13 to under 16 years old.
1.1.2.3. Distinguishing between the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old (Article 145) and the crime of indecent assault against a person under 16 years old (Article 146)
“Indecent acts with a person under 16 years of age are acts of a person 18 years of age or older against a person under 16 years of age to satisfy his or her sexual desires but not for the purpose of sexual intercourse or other sexual acts” [27, p.271]
The crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old (Article 145) and the crime of indecent assault against a person under 16 years old (Article 146) have similar and different criminal signs as follows:
- Regarding the object: both of these crimes violate the object of honor, dignity, and health of children under 16 years old.
Both of these crimes have children as their target, but differ in age limits: For the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old, the target is a child in this age group, while the target of the crime of indecent assault with a person under 16 years old is a child under 16 years old.
- Objectively: These two crimes differ mainly in the objective behavior of the criminals, which is the sign to distinguish between the two crimes. Specifically:
Regarding the crime of indecent assault against people under 16 years old: According to author Dinh Van Que: "Indecent acts are expressed in many ways such as: touching, kissing genitals, etc.
"The victim's genitals are used to rub the victim's genitals, or to force the victim to touch or kiss his genitals to satisfy his lust but without the intention of having sexual intercourse or performing other sexual acts with the victim" [27, p.292]. This is an act of sexual stimulation but without the intention of having sexual intercourse by the offender and the victim may be forced, sometimes agreeing with the offender to perform the obscene act or performing the act herself to satisfy the offender.
In the crime of sexual intercourse or other sexual acts, the offender and the victim both consensually engage in sexual intercourse or other sexual acts.
- Regarding the subject: both of these crimes have subjects who are 18 years of age or older and have criminal responsibility.
- Regarding subjective consciousness: The offenders of these two crimes both commit crimes with direct intent .
1.2 Provisions of Vietnamese criminal law on the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old
1.2.1. Overview of the history of the provisions on the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old in Vietnamese criminal law from 1945 to before the promulgation of the 2015 Penal Code
1.2.1.1. Regulations in the period from after the August Revolution in 1945 to before the promulgation of the 1985 Penal Code
On September 2, 1945, President Ho Chi Minh read the Declaration of Independence, giving birth to the Democratic Republic of Vietnam. The newly established government faced many difficulties. In that situation, our people had to carry out three major tasks: to eradicate hunger, illiteracy and foreign invaders.
Therefore, our country does not have enough conditions to build a complete legal system. Therefore, crimes against human dignity and honor are not regulated by any criminal law document.
In the report summarizing experiences in the trial of rape crimes from 1961 to 1966, the Supreme People's Court provided guidance on handling the crimes of indecent assault and rape... which had not been mentioned before.
Based on the experience gained from the practice of adjudicating sexual assault crimes, in 1967 the Supreme People's Court passed Summary 329/HS2 dated May 11, 1967, which comprehensively mentioned four forms of crime: Rape, forced sexual intercourse, sexual intercourse with a person under 16 years old and indecent assault with a person under 16 years old. Thus, according to this Summary, the crime of sexual intercourse with children is recognized as one of the crimes of sexual assault against children. This is the first criminal law document mentioning the act of sexual intercourse with children. The birth of Summary 329 marked a step forward in the legislative history of our State, although the provisions on the behavior and methods of committing sexual assault crimes were still very simple, only listing, but it was the premise for the following provisions on crimes of sexual assault, including the crime of sexual intercourse with a person under 16 years old.
On March 15, 1976, the Provisional Government Council of the Republic of South Vietnam issued Decree 03/SL. This Decree stipulates crimes against the body and dignity of a person but does not specifically stipulate the crime of sexual intercourse with a person under 16 years old. To guide the implementation of the above Decree, in April 1976, the Ministry of Justice issued Circular No. 03/BTP, which specifies acts of sexual abuse including: rape, forced sexual intercourse, adultery with minors, obscenity... It can be seen that the act of adultery with minors is quite similar to the act of child sexual abuse later stipulated in our country's Penal Code.
1.2.1.2. Provisions in the 1985 Penal Code
On June 27, 1985, the National Assembly passed the 1985 Penal Code. The 1985 Penal Code was promulgated on the basis of codifying previous legal documents. This is the only source that regulates crimes and penalties.
In the 1985 Penal Code, the crime of sexual intercourse with children under 16 years old is regulated in Article 114, Chapter 2 of crimes against human life, health, dignity and honor with the following content: "Any adult who has sexual intercourse with a person from 13 years old to under 16 years old shall be subject to non-custodial reform for up to one year or imprisonment from three months to three years". After nearly 15 years of application, the 1985 Penal Code was amended four times in 1989, 1991, 1992 and 1997. Through four amendments, the title of Article 114 was changed to "Crime of sexual intercourse with children" with 03 penalty frames, the basic frame was amended in the direction of increasing severity from "three months to three years" to "from one year to five years". The second penalty frame "having sexual intercourse with many people or causing serious consequences" is changed to "Committing a crime in one of the following cases: a) Committing the crime many times; b) Being of an incestuous nature; c) Making the victim pregnant; d) Causing harm to the victim's health", increasing the penalty from "two to seven years" to "five to ten years" and stipulating the third penalty frame from "ten to fifteen years" for cases with many circumstances specified in Clause 2 of this Article.
1.2.1.3. Provisions in the 1999 Penal Code
In nearly 15 years of existence, the 1985 Penal Code with four amendments has made an important contribution to the fight against crime. However, to adapt to the situation of national renewal, the National Assembly passed the 1999 Penal Code. The 1999 Penal Code was built on the basis of inheriting the reasonable and positive contents of the 1985 Penal Code. Compared to the 1985 Penal Code, the 1999 Penal Code has relatively comprehensive fundamental changes that demonstrate the new development of Vietnam's Penal Law. Crimes of
Many sexual crimes have been amended and supplemented by the Penal Code, including the crime of having sex with children. The crime of having sex with a person under 16 years old stipulated in Article 114 of the 1985 Penal Code was amended to Article 115 under the name of the crime of "having sex with children", stipulating three penalty frames, the lowest penalty is one year in prison and the highest penalty is up to 15 years in prison, adding some circumstances to increase the penalty frame in Clause 2 "for many people" and replacing the circumstance of "causing serious harm to the victim's health" with the circumstance of "causing harm to the victim's health with a disability rate of 31% to 60%", removing the circumstance of "having many circumstances" in Clause 3, adding the circumstances of "Knowing that one is infected with HIV but still committing the crime" and "Causing harm to the victim's health with a disability rate of 61% or more". In 2009, the 1999 Penal Code continued to amend and supplement a number of articles. However, the crime of sexual intercourse with children stipulated in Article 115 still retains its original name.
1.2.2. Provisions of the 2015 Penal Code (amended and supplemented in 2017)
Although the 1999 Penal Code was amended and supplemented to suit the country's renovation situation. However, through those amendments, the viewpoints, guidelines and policies of our Party and State have not been institutionalized. Therefore, the 2015 Penal Code continues to inherit and promote the advantages and progress of the 1999 Penal Code and adds a number of new provisions and new crimes suitable for the current stage of social development, and one of those additions is the crime of sexual intercourse or other sexual acts with a person from 13 to under 16 years old. Compared with the content of the provisions on the crime of sexual intercourse with children (Article 115) of the 1999 Penal Code (amended and supplemented in 2009), the crime of sexual intercourse or performing other sexual acts with a person from 13 to under 16 years old (Article 145) of the 2015 Penal Code has been changed and supplemented in accordance with the actual situation and nature of the crime.
This is to handle the right person, the right crime, ensuring the strictness of the law. Specifically:
Firstly , regarding the name of the law and the crime: The name was changed from the Crime of having sexual intercourse with children to “ Crime of having sexual intercourse or performing other sexual acts with a person from 13 to under 16 years old ”. This change helps to clearly show the legal signs of the crime right in the name of the law. This is a favorable condition for law enforcement and judicial agencies to investigate and handle the right behavior and crime, ensuring the strictness and deterrence of the law.
Second: specifying some other phrases such as: "person" instead of the phrase "child" identifies and specifies the protected subjects of this Law as children from 13 years old to under 16 years old and regardless of whether they are boys or girls, they are protected by law, thus avoiding the understanding of some previous views that only considered children in Article 115 of the 1985 Penal Code as girls; the word "adult" is replaced by "person 18 years old or older"; "many people" is replaced by "from 02 people or more"; "many times" is replaced by "from 02 times or more"... This change ensures consistency in the understanding and application process of competent authorities.
Third, the additional criminal act is defined as "Other sexual acts" . This is a new act added to the objective aspect of sexual assault crimes in general as well as the crime of sexual intercourse or performing other sexual acts with people from 13 to under 16 years old, in order to avoid missing criminal acts, which is consistent with current practical conditions. However, the legislator does not specify which acts include other sexual acts in the law. In order to unify the handling of cases of this type of crime, the Council of Judges of the Supreme People's Court issued Resolution No. 06/NQ-HDTP dated October 1, 2019 on guiding the application of provisions from Articles 141 to 147 of the Penal Code and the trial of sexual assault cases.