Resolution No. 06/2019/NQ-HDTP guiding the application of Articles of the Penal Code

RESOLUTION

GUIDING THE APPLICATION OF A NUMBER OF REGULATIONS OF ARTICLES 141, 142, 143, 144, 145, 146 AND 147 OF THE PENAL CODE AND INSTRUCTION FOR THE TRIAL OF CASES OF SEXUAL ASSAULT AGAINST PERSONS UNDER 18

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on Organization of People’s Courts dated November 24, 2014;

For the purposes of proper and consistent application of a number of regulations of Articles 141,142,143,144,145, 146 and 147 of the Penal Code and instruction for the trial of cases of sexual assault against persons under 18;

At the request of the Director of the Supreme People’s Procuracy and the Minister of Justice,

HEREBY RESOLVES:

Article 1. Scope of regulation

This Resolution provides guidance on application of a number of regulations of Articles 141,142,143,144,145, 146 and 147 of the Penal Code and resolutions to difficulties encountered during the trial of cases of sexual assault against persons under 18.

Article 2. Interpret of terms

1. “Sexual assault against persons under 16” means using violence, threatening to use violence, forcing, persuading or enticing a person under 16 to participate in sexual activities, including rape, sexual abuse, sexual intercourse and molestation of a person under 16 and using a person under 16 for pornographic or prostituting purposes in any shape or form (e.g. Sexual assault committed with consent of a person under 13), via force or promises of financial interests (money or property) or non-financial interests (e.g. high grades, favorable evaluation, advancement opportunity, etc.).

2. “Genitals parts” means a male or female external organs of reproduction. The male genitals part is the penis; the female genitals parts include the vulva and vagina.

3. “Private part” means the scrotum, mons pubis, anus, crotch, thighs, buttocks or breasts.

4. “Other body part” means any body part beside the genitals parts and private parts (e.g. arm, leg, mouth, tongue, nose, nape, neck, abdomen, etc.).

5. “Sexual equipment” means an item specifically manufactured for the purposes of sexual activities (e.g. artificial penis, artificial vagina, etc.) or another object that is used for sexual activities.

Article 3. Crime determination circumstances

1. “sexual intercourse” in Clause 1 Article 141, Clause 1 Article 142, Clause 1 Article 143, Clause 1 Article 144 and Clause 1 Article 145 of the Penal Code means the penetration of a male genitals parts into a female genitals parts regardless of the depth of penetration.

Sexual intercourse with a person under 10 does not necessarily involve penetration.

2. “another sexual act” in Clause 1 Article 141, Clause 1 Article 142, Clause 1 Article 143, Clause 1 Article 144 and Clause 1 Article 145 of the Penal Code means the penetration of a male genitals parts, one of the other body parts (e.g. finger, toe, tongue, etc.) or a sex equipment into a female genitals parts or the mouth or anus of another person of the same sex or different sex regardless of the depth of penetration. To be specific:

a) Insertion of a male genitals parts into the mouth or anus of another person;

b) Insertion of one of the other body parts (e.g. finger, toe, tongue, etc.) or a sex equipment into a female genitals part or the anus of another person.

3. “obscenity” in Clause 1 Article 146 of the Penal Code means an act committed by a person against another person of different or the same genderz that involves direct or indirect physical contact via clothing with a genitals parts, private part or one of the other body parts of a person under 16 that is sexual in nature but is not committed with the intention to engage in sexual intercourse. To be specific:

a) Using a genitals parts or private part to touch (e.g. groping, rubbing, etc.) a genitals parts, private part or one of the other body parts of a person under 16;

b) Using one of the other body parts (e.g. finger, toe, tongue, etc.) to touch (e.g. caressing, groping, squeezing, pinching, kissing, licking, etc.) a genitals parts or private part of a person under 16;

c) Using a sex equipment to touch (e.g. groping, rubbing, etc.) a genitals parts or private part of a person under 16;

b) Enticing or forcing a person under 16 to use one of their other body parts to touch (e.g. caressing, groping, squeezing, pinching, kissing, licking, etc.) a private part of the offender or another person;

dd) Other acts that are sexual in nature but are not committed with the intention to engage in sexual intercourse (e.g. kissing the mouth, neck, ear, nape, etc. of a person under 16).

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