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. Scopeof 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).

4.“pornographic performance”in Clause 1 Article 147 of the Penal Code means using gestures, actions, words, writing, symbols, pictures and sound to sexually stimulate a person under 16; exposing a genitals parts or private part, completely or partially undressing or committing other acts that imitate sexual activities (including sexual intercourse, masturbation and another sexual act) in any shape or form.

5.“directly witness pornographic performance”in Clause 1 Article 147 of the Penal Code means the case where a person under 16 watches another person giving a sexual performance in any shape or form.

6.“stage or directly witness pornographic performance”in Clause 1 Article 147 of the Penal Code include:

a)  Giving a pornographic performance to a person under 16 or enticing a person under 16 to participate in a pornographic performance;

b) Showing a pornographic performance involving a person under 16;

c) Enticing, persuading or forcing a person under 16 to photograph or record their pornographic performance and distributing such photo or video;

d) Enticing, persuading and forcing a person under 16 to undress completely and live stream;

dd) Showing pornographic contents involving a person under 16 or running simulation of a person under 16 (animated works or digitally-created characters);

e) Description of human genitals parts and private parts, excluding the cases provided for in Clause 2 Article 5 herein;

g) Other forms of pornographic performances or watching of pornographic performances.

7.“take advantage of the victim’s defenselessness”in Clause 1 Article 141 and Clause 1 Article 142 of the Penal Code means the offender takes advantage of one of the following situations to engage in sexual intercourse or another sexual act with the victim:

a) The victim is defenseless (e.g., the victim has an accident, is unconscious, tied, disabled, etc.);

b) The victim partially or completely loses awareness or control over their acts (e.g. the victim is under influence of alcohol, sleeping pills, anesthetics, narcotic substances, tranquilizers or other stimulants, is mentally incapacitated or suffers from another disease, etc. leading to partial or complete loss of awareness or control over their acts).

8.“another trick”in Clause 1 Article 141 and Clause 1 Article 142 of the Penal Code refers to situations in which the offence involves actions such as poisoning the victim; drugging the victim with sleeping pills, anesthetics, alcohol or other strong stimulants that make the victim loses awareness or control over their acts to engage in sexual intercourse or another sexual act; promising to allow the victim to graduate, attend school, participate in an overseas performance or competition to engage in sexual intercourse or another sexual act.

9.“against the latter’s will”in Clause 1 Article 141 and Point a Clause 1 Article 142 of the Penal Code refers to situations in which the victim does not consent or is unable to consent to the offender’s deliberate act of sexual intercourse, or is indifferent towards such act.

10.“dependent”in Clause 1 Article 143 and Clause 1 Article 144 of the Penal Code means a person who is financially dependent on the offender (e.g. the victim is under the offender’s care; the offender provides living expenses to the victim; etc.) or mentally, professionally, educationally or religiously dependent on the offender (e.g. the victim works for the offender; the offender is the victim’s homeroom teacher or subject teacher; etc.).

11.“a person being in dire straits”in Clause 1 Article 143 and Clause 1 Article 144 of the Penal Code means a person who is in an extremely difficult or urgent situation that cannot be relieved without the assistance of another person (e.g. lack of money to treat a fatal disease; lack of money to pay for ransom for child; etc.).

Article 4. Penalty determination circumstances

1.“In an incestuous manner”in Point e Clause 2 Article 141, Point a Clause 2 Article 142, Point d Clause 2 Article 143 and Point a Clause 2 Article 144 of the Penal Code means the offence is committed against: 

a) A person related to the offender by consanguinity, blood sibling or half-sibling; or

b) The offender’s aunt, uncle, niece or nephew; or

c) The offender’s adopted child or adoptive parent; or

d) The offender’s step-child or step-parent; or

dd) The offender’s daughter-in-law, son-in-law or parent-in-law.

2.“Committing the offense twice or more”in Point d Clause 2 Article 141, Point dd Clause 2 Article 142, Point b Clause 2 Article 143, Point d Clause 2 Article 144, Point a Clause 2 Article 145, Point b Clause 2 Article 146 and Point b Clause 2 Article 147 of the Penal Code means the offender has committed the offence more than once but has yet to face a criminal prosecution and the prescriptive period for criminal prosecution remains effective.

3.“Against 2 or more persons”in Point dd Clause 2 Article 141 and Point b Clause 3 Article 142 of the Penal Code means the case where 02 or more people rape 01 person, including the case where 02 or more people discuss and reach an agreement on taking turns to rape 01 person but, due to reasons not intended by the offenders, only 01 person successfully commits the crime.

The crime shall not be“Against 2 or more persons”if 02 or more people jointly aid and abet 01 person to commit it. This case is considered as complicity.

4.Forcible sexual intercourse that“Against 2 or more persons” in Point a Clause 2 Article 143 and Point a Clause 3 Article 144 of the Penal Code means the case where 02 or more people sexually abuse 01 person, including the case where 02 or more people discuss and reach an agreement on taking turns to sexually abuse 01 person but, due to reasons not intended by the offenders, only 01 person successfully commits the sexual abuse.

Forcible sexual intercourse is not“Against 2 or more persons”if 02 or more people jointly aid and abet 01 person to commit it. This case is considered as complicity.

Article 5.Exclusion of penal liability

1.The following cases are excluded from penal liability as prescribed in Article 146 of the Penal Code in the following cases:

a) A caretaker of a person under 10, a patient or a disabled person touches their genitals parts or private part without sexual intention (e.g. a parent bathing or cleaning for a child under 10; a preschool teacher bathing or cleaning for a preschool student; etc.);

b) A health professional; or a person providing emergency aid or first aid to an injured person touches a genitals parts, a private part or one of the other body parts of a person under 16 without sexual intention (e.g. a doctor examining or treating a patient; emergency aid or first aid provided to an injured person, a drowning victim, etc.).

2.To exclude the penal liability as prescribed in Article 147 of the Penal Code for the cases where an educator or a health professional describes a human genitals parts or private part for the purposes of education and medical examination, treatment and care.

Article 6. Principles of handling sexual offenders

1.Comply with basic principles of the criminal law and law on criminal procedures

2.Impose strict penalties for violations against social norms and morals; abuse of position and power; abuse of profession; and assault against persons under 13.

3.Impose additional penalties of the highest level according to the Penal Code and other relevant legal provisions. If necessary, prohibit the assumption of positions or jobs relating to persons under 16. 

Article 7. Organization of the trial of a sexual assault case whose victim is under 18

1.Regarding the time limit for the trial of a Sexual assault case whose victim is under 18:

a) Summary procedures shall be implemented for the cases that satisfy the requirements prescribed in the law on criminal procedures;

b) Other cases shall be brought to trial within ½ of the time limit permitted by the law for the corresponding cases.

2.Regarding the trial of a sexual assault case whose victim is under 18, the Court shall:

a) Conduct a secret trial and pronounce the sentence publicly according to regulations of Article 327 of the Criminal Procedure Code. When pronouncing the sentence, the trial panel shall read only the ruling section of the sentence document;

b) Assign a judge who possesses knowledge or experience in the trial of cases related to persons under 18;

c) The Judge shall adopt the workplace dress code of the People’s Court, excluding the robe, when hearing the case;

d) Hear the case in a friendly courtroom as prescribed in the Circular No. 01/2017/TT-TANDTC dated July 28, 2017 and Circular No. 02/2018/TT-TANDTC dated September 21, 2018 by the Chief Justice of the Supreme People’s Court;

dd) Ensure the participation of a representative, guardian or person protecting the legitimate rights and interests of the person under 18.

3.Regarding the hearing of a Sexual assault case whose victim is under 18, depending on specific conditions and situations, the Court shall follow these instructions:

a) Avoid summoning the victim if the case could be settled via other measures (e.g. using the victim’s testimony from the investigation or prosecution stage; inviting the victim to the Court or another lawful location to give a testimony in writing or have the testimony recorded by a sound recorder, camcorder, etc.).

b) If the victim has to be summoned to the hearing, the Court shall assist the victim in becoming acquainted with the Court s environment and the proceedings; and provide a separate room and electronic devices (e.g. microphone, loudspeaker, television, camera, etc.) to protect the victim’s mental state when they give a testimony or participate in the hearing; if a separate room could not be arranged, the victim may be seated in the courtroom and separated from the defendant by a screen, and the distance between the trial panel and the victim shall not exceed 03 meters.

c) Questions for the victim shall be suitable for their age, development stage, education level and knowledge. The questions shall be concise, clear, simple and comprehensible; not involve too many matters at the same time; serve to clarify the case’s facts and not to draw up a discussion. A question for a victim under 10 shall not exceed 10 words and each questioning time shall not exceed 01 hour.

d) Use a diagram or model of the human body with its parts numbered for the victim to identify the body parts involved in the offence.

dd) Any question from the defendant to the victim must be transferred to the defense counsel or trial panel and be asked by such defense counsel or trial panel.

4.Regarding the hearing of a sexual assault case whose victim is under 18, the Court shall not:

a) Request the victim to describe the crime in details;

b) Ask any question that is of a criticizing, threatening, shaming or offending nature to the victim;

c) Permit conversation between the victim and the defendant in the hearing;

d)  Identify the body part(s) involved in the offence by asking the victim to directly point at the body part(s) of themselves or another person;

dd) Permit the defendant to directly question the victim;

e) Force the victim to stand in the hearing;

g) Publicize the sentence document or the Court’s decision relating to the case on the Court’s portal.

5.The Court shall consider and request competent authorities and persons to implement appropriate protective measures according to regulations of Chapter XXXIV of the Criminal Procedure Code at the request of the victim, the victim’s family or a competent authority/organization to protect the life, health, honor, dignity, belongings and other legitimate rights and interests of the victim and/or the victim’s family.

6.Other regulations of Chapter XXVIII of the Criminal Procedure Code; guidelines in the Circular No. 02/2018/TT-TANDTC dated September 21, 2018 by the Chief Justice of the Supreme People’s Court; Joint Circular No. 06/2018/TTLT-VKSNDTC-TANDTC-BCA-BTP-BLDTBXH dated December 21, 2018 by the Supreme People’s Procuracy, Supreme People’s Court, Ministry of Public Security, Ministry of Justice and Ministry of Labor, War Invalids and Social Affairs and other relevant guiding documents shall be complied with.

Article 8. Effect

1.This Resolution was passed by the Judicial Council Of The Supreme People’s Court on September 20, 2019 and takes effect from November 05, 2019.

2.If an offender has been convicted before the effective date of this Resolution according to previous regulations and guidelines and a Court s effective conviction has been passed, the Court’s judgment and ruling shall not be appealed according to this Resolution through the cassation or re-opening procedures.

On behalf of the Judicial Council of the Supreme People’s Court

Chief Justice

NGUYEN HOA BINH