RAPE AND SEXUAL ABUSE WHEN HAVING SEX WITH A MINOR?

As far as I know, having sex with a minor (even if the person is voluntary) still be prosecuted for criminal liability. I want to ask the Ministry of Public Security, in the case of having sex with a minor, will be charged for rape or sexual assault? What are the elements of the crime of rape and sexual assault?

Answer

Firstly, pursuant to Article 21 of the 2015 Civil Code, a “minor” is defined as a person not enough 18 years of age; and according to the understanding of Article 417 of the 2015 Criminal Procedure Code, a “minor” is defined as a person under 18 years of age.

Secondly, if the offender has sex with a minor, even if the person is voluntary, he or she will still have liability depend on the elements of the crime. In the case of having sex with a minor, he or she will be prosecuted for rape or sexual abuse.

In the Penal Code 2015  (amended and supplemented in 2017), the act of “Rape” is regulated in Article 141, and “Rape of a person under 16” is regulated in Article 142; the act of “Rape” is regulated in Article 143 and “Rape of a person from 13 to under 16 years old” is regulated in Article 144.

For the act considered “rape of a person under 18 years old”, there are the following basic objective factors to identify:

– Using force or threatening to use force immediately to have sexual intercourse against the victim’s will, that is, the offender uses physical force such as hitting, kicking, hugging, holding, wrestling, pressing, holding, tying… to perform the act of sexual intercourse against their will; Threatening to use force immediately is an act of intimidation, threatening to use force to make the victim afraid, lose the ability to defend themselves, or force the subject to have sex because he or she is unable to defend himself or herself.

– Using other tricks such as taking advantage of the time when the victim is drunk, under the influence of alcohol, beer, stimulants, infected with toxic substances, or anesthetics; suffering from illness, mental retardation, weakness, or loss of cognitive ability, self-defense ability… Or the act of the offender giving or forcing the victim to use stimulants such as alcohol, beer, drugs, or putting aphrodisiacs, anesthetics in the victim’s food, drinks… to easily perform sexual intercourse is considered rape.

– Any act of sexual intercourse or other sexual relations with a person under 13 years old, even without using force, without using other tricks but with their voluntary consent, including the act of buying sex (including boys or girls), is considered a crime under Article 142 “Rape of people under 16 years old”.

For the act of “rape against a person under 18 years old”, the offender takes advantage of the victim’s material dependence on him, which can be a dependence on work, a dependence on beliefs, religion, or the offender knows a weakness of the victim. It threatens that if he does not have sex, it will spread because he wants to hide it, and the victim reluctantly allows the subject to have sex. The threat here is different from the immediate threat in the act of rape in that the victim still has a choice, but they have to reluctantly agree because otherwise they will be disadvantaged by the offender.

If the victim is from 13 to under 16 years old, it will be considered “rape against a person from 13 to under 16 years old” with a higher penalty, but if they are under 13 years old, it will be considered rape according to Article 142 “Rape of a person under 16 years old”.

From the above analysis, we can conclude the distinction between rape and sexual assault as follows:

– Rape is the use of force or taking advantage of the victim’s defenseless state to have sexual intercourse or perform other sexual acts against their will.

– Rape is the use of tricks to force another person to have sexual intercourse or perform other sexual acts against their will.