Article title The Concept of “Age of Sexual Consent” in International Criminal Law and Criminal Law of Ukraine
Authors

Doctor of Law, Professor, Honored Science and Technology Figure of Ukraine, Head of the Scientific Research Laboratory for the Study of Problems of Crime Prevention, Supreesion and Investigation by Territorial Bodies of the National Police of Ukraine (Sievierodonetsk, Ukraine) ORCID ID: https://orcid.org/0000-0003-4860-0681 o.o.dudorov@gmail.com

 

Ph. D. in Law, Associate professor, Associate professor, Department of Criminal Law and Criminology Taras Shevchenko National University of Kyiv (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0003-2362-7116 kostyantin.zadoya@gmail.com 

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 2/2020
Сторінки [184-197]
DOI https://doi.org/10.33498/louu-2020-02-184
Annotation

Criminalization of acts related to human sexual activity is influenced by many factors including those which require that the State comply with the international legal obligations assumed. In recent years, there has been a trend in the European legal space towards unification of legislation with regard to determining the causes for criminal liability for crimes in this area. The approaches developed by the Council of Europe within the Istanbul and Lanzarote conventions have been perceived by the national legislator, and this resulted in a major update of Section IV in the Special Part of the Criminal Code of Ukraine (Ukraine’s CC) in 2017–2018.

 The article is focused on critical reflections on how the Convention’s concept of “age of sexual consent” is implemented in Ukraine today, and aims at clarifying the prospects of this criterion for determining the boundaries of criminal behavior in the area of sexual activity, particularly, in the context of how the provisions of the mentioned conventions correlate.

It is proven that the method introducing the “age of sexual consent” concept which is inherent in the current Ukraine’s CC is characterized by a number of drawbacks, among them: 1) although the established gradation of victim’s age allows differentiating criminal liability for acts of sexual nature committed with regard to children, it does not stem from article 18 of the Lanzarote Convention; 2) the age of 14 prescribed by part 4, article 152 and part 4, article 153 of Ukraine’s CC does not look indisputably optimal. The 16-yearold age criterion, which appears in part 1, article 155 of Ukraine’s CC, also lacks proper substantiation; 3) the use of the term “natural or unnatural sexual intercourse” in part 1, article 155 of Ukraine’s CC not only breaches the rule of unity of legal terminology within section IV of the Special Part of Ukraine’s CC, but is also inconsistent with the Convention’s cross-cutting concept “sexual activities with a child”; 4) contrary to the opinion of developers of the respective bill, there is no reason to believe that the updated article 155 of Ukraine’s CC ensures implementation of article 18 of the Lanzarote Convention on the establishment of “the age of sexual consent”. Since the previous version of part 1, article 155 of Ukraine’s CC and the current version of this criminal law provision describe different types of behavior, there is no legal continuity between them; 5) although articles 152 and 153 of Ukraine’s CC, which have been updated according to the Istanbul Convention, embody the analyzed concept, they take no account of the requirement of part 3, article 18 of the Lanzarote Convention regarding the impact on criminal liability for sexual activity of the difference in age of participants in such activities.

It is established that according to the main trend observed in the area under study, which has been reflected in the Istanbul Convention as a more modern document as compared with the Lanzarote Convention, criminal liability is imposed for any sexual behavior in the absence of the victim’s voluntary consent. This makes it possible to put forward a doctrinal approach for professional discussion – the approach which consists in abandoning a direct (textual) reflection of the “age of sexual consent” concept in Ukraine’s CC. The point is that in this case the sense of the criminality-forming indicium is not that the victim is under a certain age determined by law, but that the victim’s voluntary consent is lacking, as is typical of sexual abuse in the meaning of the Istanbul Convention. The author shows that this would allow, inter alia, taking into account the legal assessment of sexual intercourse with a minor and other sexual penetration into the body of such a victim, which is traditional for the national judicial practice and is based on the use of the concept of mental helplessness.

 

Keywords Istanbul Convention; Lanzarote Convention; age; voluntary consent; sexual abuse; helpless state; minor person; child
References

Bibliography

Authored books

1. Dudorov O, Kryminalno-pravova kharakterystyka zlochyniv proty statevoi svobody ta nedotorkanosti osoby: naukovo-praktychnyi posibnyk [Criminal-Law Characterization of Crimes Against Sexual Freedom and Inviolability of a Person: Scientific and Practical Guide] (RVV LDUVS im E O Didorenka 2011) (in Ukrainian).

2. Sitkovskaja O, Ugolovnyj kodeks Rossijskoj Federacii: psihologicheskij kommentarij [Criminal Code of the Russian Federation: Psychological Commentary] (Volters Kluver 2009) (in Russian).

 

Edited books

3. Borysov V ta Zelenetskyi V (red), Teoretychni osnovy zabezpechennia yakosti kryminalnoho zakonodavstva ta pravozastosovnoi diialnosti u sferi borotby zi zlochynnistiu v Ukraini: monohrafiia [Theoretical Fundamentals for Ensuring the Quality of Criminal Legislation and Law Application Activity in the Area of Combating Crime in Ukraine: Monograph] (Pravo 2011) (in Ukrainian).

 

Dissertations

4. Chmut S, ‘Kryminalna vidpovidalnist za statevi znosyny z osoboiu, yaka ne dosiahla statevoi zrilosti’ [‘Criminal Liability for Sexual Intercourse with a Person Who Has Not Reached Puberty’] (dys kand yuryd nauk, 2010) (in Ukrainian).

 

Websites

5. Zaitseva O, ‘Vik seksualnoi zghody: koho i vid choho zakhyshchaiemo’ [‘Age of Sexual Consent: Who and Against What We Protect’] (Hender v detaliakh, 21.02.2018) <https://genderindetail.org.ua/season-topic/seksualnist/vik-sexualnoi-zgodi-kogo-i-vidchogozahischaemo-134383.html> (accessed: 31.01.2019) (in Ukrainian).