RESOLUTION

GUIDING THE APPLICATION OF A NUMBER OF REGULATIONS OF ARTICLES 141,142,143,144,145, 146 AND 147 OF THE CRIMINAL CODE AND SETTLEMENT OF CASES OF SEXUAL EXPLOITATION AND ABUSE OF PERSONS UNDER 18

COUNCIL OF JUSTICES 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 Criminal Code and settlement of cases of sexual exploitation and abuse of 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

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Article 2. Definitions

1. “sexual exploitation or abuse of 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 exploitation or abuse 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. “reproductive organ” means a male or female reproductive organ. The male reproductive organ is the penis; the female reproductive organs 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 reproductive organs and private parts (e.g. arm, leg, mouth, tongue, nose, nape, neck, abdomen, etc.).

5. “sex aid” 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 Criminal Code means the penetration of a male reproductive organ into a female reproductive organ regardless of the depth of penetration.

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

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a) Insertion of a male reproductive organ 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 aid into a female reproductive organ or the anus of another person.

3. “molestation” in Clause 1 Article 146 of the Criminal Code means an act committed by a person against another person of different or the same sex that involves direct or indirect physical contact via clothing with a reproductive organ, 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 reproductive organ or private part to touch (e.g. groping, rubbing, etc.) a reproductive organ, 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 reproductive organ or private part of a person under 16;

c) Using a sex aid to touch (e.g. groping, rubbing, etc.) a reproductive organ 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 Criminal Code means using gestures, actions, words, writing, symbols, pictures and sound to sexually stimulate a person under 16; exposing a reproductive organ or private part, completely or partially undressing or committing other acts that imitate sexual activities (including sexual intercourse, masturbation and other sexual activities) in any shape or form.

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6. “participate in a pornographic performance or watch a pornographic performance” in Clause 1 Article 147 of the Criminal 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 reproductive organs 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 Criminal Code means the offender takes advantage of one of the following situations to engage in sexual intercourse or other sexual activities with the victim:

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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. “otherwise” in Clause 1 Article 141 and Clause 1 Article 142 of the Criminal 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 other sexual activities; promising to allow the victim to graduate, attend school, participate in an overseas performance or competition to engage in sexual intercourse or other sexual activities.

9. “non-consensual” in Clause 1 Article 141 and Point a Clause 1 Article 142 of the Criminal 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. “care-dependent” in Clause 1 Article 143 and Clause 1 Article 144 of the Criminal 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. “person in extreme need” in Clause 1 Article 143 and Clause 1 Article 144 of the Criminal 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. The offence is “of an incestuous nature” 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 Criminal 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

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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. The offence is “committed more than once” in Point c 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 Criminal 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. The rape is “committed by more than one person against one person” in Point c Clause 2 Article 141 and Point b Clause 3 Article 142 of the Criminal 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 rape.

The rape is not “committed by more than one person against one person” if 02 or more people jointly aid and abet 01 person to commit it. This case is considered as complicity.

4. The sexual abuse is “committed by more than one person against one person” in Point a Clause 2 Article 143 and Point a Clause 3 Article 144 of the Criminal 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.

The sexual abuse is not “committed by more than one person against one person” if 02 or more people jointly aid and abet 01 person to commit it. This case is considered as complicity.

Article 5. Exemption from criminal prosecution

1. The following cases are exempted from criminal prosecution according to regulations of Article 146 of the Criminal Code:

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b) A health professional; or a person providing emergency aid or first aid to an injured person touches a reproductive organ, 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. Criminal prosecution as prescribed in Article 147 of the Criminal Code is exempted for the cases where an educator or a health professional describes a human reproductive organ or private part for the purposes of education and medical examination, treatment and care.

Article 6. Principles of prosecution against 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 exploitation and abuse of persons under 13.

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

Article 7. Organization of settlement of a sexual exploitation or abuse case whose victim is under 18

1. Regarding the time limit for settlement of a sexual exploitation or abuse 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;

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2. Regarding the hearing of a sexual exploitation or abuse 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 settlement 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 exploitation or abuse 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.

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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 exploitation or abuse 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;

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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 Council of Justices of the Supreme People’s Court on September 20, 2019 and comes into effect from November 05, 2019.

2. If an offender has been tried 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 reopening or cassation procedures.

ON BEHALF OF THE COUNCIL OF JUSTICES
THE CHIEF JUSTICE




Nguyen Hoa Binh