The USA Journals Volume 03 Issue 11-2021
112
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
November 30, 2021 |
Pages:
112-121
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-16
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‘
ABSTRACT
This article deals with the qualification of the crime of premeditated murder in connection with rape
or sexual assault in an unnatural manner. This article also addresses the objective and subjective signs
and responsibilities of premeditated homicide in connection with rape or unnatural sexual
exploitation. In this regard, the views of scholars were analyzed, and appropriate suggestions and
recommendations were made to improve the legal norms for which responsibility is established.
KEYWORDS
Intentional Homicide, Rape, Revenge, Qualification, Punishment, Crime, Responsibility, Violence,
Method.
INTRODUCTION
The most important of human rights is the right
to life. For the first time in history, the human
right to life was enshrined in the 1776 US
Declaration of Independence. An impression
for two centuries. Only its international
recognition in the 1948 Universal Declaration
of Human Rights served as the impetus for
including this right in the Constitutions of a
number
of
countries,
including
the
Constitution of the Republic of Uzbekistan. In
particular, Art. 24 of the Constitution as one of
the fundamental rights of the individual
enshrines the right to life, an inalienable right
of every person. In order to fulfill the task of
Qualification Problems Of Premeditated Murder, Conjugated
With Rape
Salomat Saparovna Niyozova
Doctor of Law, Acting Professor of the Department of Criminal Law, Criminology and Anti-
Corruption, Tashkent State University of Law S.S.Niyozova, Uzbekistan
Dr. Kalpeshkumar L Gupta
Associate Professor of Law Parul University | Founder ProBono India, Legal Startups | Former
Associate IIM Ahmedabad | Former Faculty GNLU, Gandhinagar | Startup Mentor | Social
Entrepreneur | Law Teachers India
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 11-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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November 30, 2021 |
Pages:
112-121
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-16
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protecting human life, Uzbekistan needed, first
of all, to create a powerful regulatory
framework, to form a powerful normative
function of protecting human rights and
freedoms.
It is known that the most important means and
conditions for the implementation of the tasks
set are to ensure the rule of law, strengthen
the protection of the rights and interests of the
individual, family, society and the state,
increase the legal culture and legal awareness
of citizens. Moreover, achieving the ideals of
democracy, justice and humanism is impossible
without a commitment to human rights. The
advancement of this group of crimes to the
first place corresponds to the most important
conceptual idea underlying the reform of
criminal legislation, namely, the priority
protection of human life and health, his rights,
freedoms and legal interests. A significant role
in this is played by the norms of criminal law.
Today, the Criminal Code solves the problem of
protecting human life by its specific methods,
forming the signs of crimes against life and
establishing
strict
sanctions
for
their
commission.
To translate into reality the protection of the
right to life of a person who is under the
protection of criminal law, it is necessary to
determine the time limits of a person's life.
There are no serious disagreements regarding
the moment of death, the termination of life in
the scientific literature; most authors associate
the termination of human life with biological
death. Nevertheless, despite a fairly deep
study of this issue in the theory of criminal law,
there are still difficulties in the activities of the
judicial and investigative bodies in the criminal-
legal assessment of the actions of doctors to
establish the death of a person and to solve
other related problems (termination of
resuscitation measures, the legality of the
removal
of
organs
or
tissues
for
transplantation, scientific research, etc.)[1].
Biological death is understood as the death of
the central nervous system, complete
cessation of heartbeat and respiratory arrest.
The biological death of the human div is
undeniably ascertained after thirty minutes,
from the moment the above signs are
detected[2]. Biological death occurs, as a rule,
with the inevitable natural aging of the human
div. At the same time, the onset of a situation
of pathological death is also possible. In this
case, the aforementioned signs occur as a
result of the development of any disease[3].
Today, along with the concept of biological
death, the signs of which are indicated above,
the existence of the so-called brain death
(brain
death)
is
recognized.
This
is
substantiated by the fact that the human div
is not just a collection of organs and tissues,
but a system that is complexly arranged and
functions according to certain biological laws
and is controlled by the brain. By the way, in a
natural course, brain death very quickly leads
to the death of all other organs and systems of
the human div. Thus, according to a number
of scientists, in connection with the obvious
successes of biomedical sciences, in particular
resuscitation, it is brain death, and not
biological death, that should be considered
from the standpoint of criminal law as the
moment of the end of a person's life[4].
We agree with the last opinion that "brain
death is the already occurring death of a
person as a person, even as a biological
individual, since his brain, an organ of
integration of the physiological systems of the
div, has died"[5].
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However, in order to establish the time limits
for the beginning of the operation of criminal
law norms for the protection of human life, its
beginning should be clearly defined, that is, the
moment from which a person can be
considered a full-fledged member of society.
Some authors, for example S.V.Borodin,
suggest that the beginning of life be
understood as the moment of complete
separation of the baby from the mother's div
and the beginning of the ability of his div to
function independently[6]. In our opinion, it is
difficult to agree with this opinion, since in this
case, the murder of an infant who has emerged
from the mother's womb, but whose umbilical
cord has not yet been cut off, or the murder of
an infant during childbirth, when his head has
already appeared outside the mother's womb,
in a criminal in the legal sense would not be
recognized as the murder of a person. In this
regard, one can agree with the following idea
of B.Saryev: “From the criminal-legal point of
view, the beginning of a person's life should
not be recognized as the moment of the onset
of labor, but the moment the baby leaves the
mother's womb (from this moment there is a
possibility of encroachment on him). From this
moment on, any actions aimed at taking the life
of an infant are recognized as premeditated
murder of a person"[7].
Also in this regard, F.T.Takhirov argues that
"the opinion that a person's life begins from
the moment any part of the baby's div
emerges from the womb should be recognized
as correct." It is worth noting that in Soviet
criminal law, the beginning of the moment of
human life from a criminal legal point of view
was given just such an interpretation[8].
However, Art. 5 / 9-2.1 The US Criminal Code of
Illinois takes a different position, according to
which it is premeditated murder to take the life
of an infant in the womb, unborn, but capable
of life[9]. In our opinion, this approach is
incorrect, since it unreasonably expands the
concept of a victim of a given crime. From a
moral, religious, ethical, scientific and medical
point of view, a living being in the womb is a
fetus (embryo), which is not yet capable of a
full and independent life. An encroachment
directly on him is physically impossible, in
essence, the deliberate murder of an unborn
baby is a legal paradox, a relic of the Anglo-
Saxon system of law, where some curious,
nevertheless,
existing
laws
are
still
preserved[10].
In the scientific literature, you can find a fairly
wide variety of definitions given to the concept
of murder. For example, according to
M.Kh.Rustambaev, premeditated murder is the
unlawful deprivation of the life of another
person by intent or negligence[11]. F.T.Takhirov
and a number of representatives of the Soviet
criminal law also put forward similar ideas [12].
In this definition, the meaning of the concept
of
unlawfulness
remains
undisclosed.
Ultimately, this makes it possible even to
recognize a terrorist act as murder. In addition,
the introduction of signs of intent or
negligence into the concept of murder
contradicts the norms of Article 7 of the
Criminal Code of the Republic of Uzbekistan
(the principle of humanism).
In practice, certain difficulties arise in
connection with the qualification of a murder
committed with particular cruelty. Although
the Plenum of the Supreme Court of the
Republic of Uzbekistan pays a lot of attention
to clarifying the qualifications of this act, the
cases of incorrect qualifications are not
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decreasing. For example, mistakes often occur
when qualifying murders with multiple wounds
or by arson, when the mental and physical
condition of a person, in general, the situation
when the crime was committed is not taken
into account. Arbitrary interpretation and, as a
result,
incorrect
qualification
entails
undermining confidence in the judicial
authorities and affects the fairness of the
punishment.
In practice, the qualification of premeditated
murder associated with rape or other sexual
crimes is even more difficult. Unfortunately,
law enforcement officers do not always take
into account the competition of motives, the
genesis of the development of a crime, not to
mention the criminological or victimological
aspect of committing a crime. At the same
time, the materials of the judicial and
investigative practice of cases of premeditated
murder, which we conducted, as well as the
results of criminological surveys, studied by us
during the study, confirmed our expectations
about the presence of a significant number of
factors and directions, work on which will
provide an opportunity for improvement as
national legislation. and improving law
enforcement practice, introducing modern
criminological and victimological mechanisms
for early warning of such particularly serious
crimes as murder.
A deeper scientific knowledge of the nature of
the murders, the factors that feed their
growth, the circumstances under which it was
committed, the method, the environment of
the crime is needed.
In accordance with the norms of international
law, the Constitution of Uzbekistan proclaimed
a person, his rights and freedoms as the
highest value of society, his rights and
freedoms.
The
protection
of
these
constitutionally
guaranteed
rights
is
recognized as the primary responsibility of the
state. This task is provided by various
measures, including criminal law norms. But
the measures taken still do not provide
adequate protection of citizens from criminal
attacks against life. To this end, it is proposed
to consider some of the criminal law provisions
related to criminal attacks on life..
If we take into account the position of the
legislator, then the increased degree of public
danger of murders associated with rape or
forcible satisfaction of sexual desire in an
unnatural form is seen in the ability and the
possibility of causing harm to several objects of
criminal law protection at the same time - the
perpetrator not only humiliates human dignity,
violates the right to sexual freedom, sexual
inviolability, but also directly encroaches on
human life.
Competition between the direct objects of
crime is generated by the complexity of social
life. The general interconnection of the
phenomena of reality leads to the fact that
many criminal acts cause harm in the sphere of
a number of related social relations.
Establishing criminal liability for a certain crime,
the legislator takes this circumstance into
account. The design of the corpus delicti, its
assignment to a specific chapter in the Criminal
Code system is made taking into account the
harm caused by the act in the sphere of all
social relations - to all direct objects. However,
the decisive object here is the main immediate
object, that is, the object for the sake of which
the corresponding norm is issued and the
infliction of harm to which constitutes the
social essence of the given crime. At the same
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time, causing harm in the sphere of an
additional, secondary object is relegated to the
background, but such consequences of the
crime are not overlooked.
The selection of the main and additional (or
optional) crime from the number of several
competing direct objects of the crime greatly
facilitates the problem of qualifying the act,
but does not completely solve it. For this
purpose, it is still necessary to clarify the role of
an additional or optional direct object in the
mechanism of committing a crime. At the same
time, it is found that in many cases, causing
harm to an additional object is a method, an
integral part of causing harm to the main one.
Sometimes damage to the main object can only
be caused by causing harm to the additional
object.
At the same time, the problem of an additional
object of murders of the corresponding type
from the standpoint of the theory of criminal
law touches upon the problem of the legal
nature of such crimes. If murders associated
with rape and (or) forcible satisfaction of
sexual desire in an unnatural form have, in
addition to the main and additional object,
then they must be recognized as constituent
crimes with all the ensuing consequences.
M.Kh.Rustambaev also speaks about the same,
in his opinion, the murder associated with rape
or forcible satisfaction of the sexual need in an
unnatural
form
covers
the
deliberate
deprivation of the victim's life in the process of
sexual violence, namely with the aim of
suppressing the victim's resistance, based on
revenge for resistance, or for the purpose of
necrophilia, characteristic of the so-called
sexual maniacs who prefer to have sexual
intercourse with an agonizing victim or with a
corpse[13].
In such cases, the perpetrator is charged with
a combination of crimes: clause "z" part 2 of
article 97 of the Criminal Code and the
corresponding part of article 118 of the Criminal
Code or article 119 of the Criminal Code,
depending on the circumstances of the case.
In addition, it should be borne in mind that
criminal acts, defined in judicial and
investigative practice as “sexual murders” or
“murders for sexual reasons”, “murders on
sexual
grounds”,
represent
a
very
heterogeneous set of behavioral acts that
differ, primarily, criminal motivation. Cruelty
during sexual intercourse, as its own
personality trait, may not be reflected by the
subject. In addition, "... There is no need to
prove that sexual perversion in murder should
be qualified as an aggravating circumstance
due to a particular public danger"[14].
In our opinion, it is necessary to adjust the
approach to the criminal-legal protection of a
person from this kind of encroachment. In view
of this, it is necessary to define the crime itself,
provided for in paragraph "z" of Part 2 of Art.
97 of the Criminal Code. So, this point qualifies
a murder associated with rape or satisfaction
of a sexual urge in an unnatural form. The
perpetrator in these cases may commit murder
in the process of rape itself or in satisfying a
sexual urge in an unnatural form in order to
paralyze the resistance of the victim (victim),
or out of sadistic motives. This should include
cases of revenge homicide for resistance
shown in the commission of these sexual acts.
The victim of this type of murder can be both
the victim (victim) of rape or satisfaction of
sexual urge in an unnatural form, as well as
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other persons who were killed in connection
with the commission of these crimes (for
example, witnesses).
Such a murder can also be committed after
rape or by satisfying a sexual urge in an
unnatural form in order to conceal the crime
committed and avoid responsibility. However,
if premeditated murder was committed with
the aim of concealing another crime against
sexual freedom, sexual inviolability, then there
can be no question of applying paragraph "z"
of Part 2 of Art. 97 of the Criminal Code, the
actions of the perpetrator will be qualified
according to the aggregate of Article 118 of the
Criminal Code and clause "o" part 2 of Art. 97
of the Criminal Code.
Thus, according to clause "z" h. 2, Art. 97 of
the Criminal Code of the Republic of
Uzbekistan. it is necessary to qualify the cases
when, along with premeditated murder, the
perpetrator commits rape (Article 118 of the
Criminal Code) or satisfying the sexual need in
an unnatural form (Article 119 of the Criminal
Code).
If we talk about the mechanism of murder
itself, then we are talking about the
deprivation of life, which is committed in the
process of rape or satisfaction of a sexual need
in an unnatural form, in connection with the
rupture of organs and tissues, as a result of
asphyxiation, as a result of internal trauma,
etc[15].
The above aspects are also confirmed by the
ambiguous understanding of the practice of
the judiciary. So, according to clause 13 of the
Resolution of the Plenum of the Supreme
Court of the Republic of Uzbekistan "On
judicial practice in cases of premeditated
murder" sexual freedom.
Considering that in this case two independent
crimes are committed, the deed should be
classified under clause "z" of the second part
of Article 97 of the Criminal Code and,
depending on the specific circumstances of the
case, according to the relevant parts of Articles
118 or 119 of the Criminal Code "[16].
Considering that in this case two independent
crimes are committed, the deed should be
classified under clause "d" of the second part
of Article 97 of the Criminal Code and,
depending on the specific circumstances of the
case, according to the relevant parts of Articles
118 or 119 of the Criminal Code"[17].
It seems that the shortcomings in the
interpretation of the understanding of the
qualifications
of
premeditated
murder
associated with rape in accordance with
paragraph 13 of the Resolution of the Plenum
of the Supreme Court of the Republic of
Uzbekistan No. 13 of 24.09.2004 "... depending
on the specific circumstances of the case
..."[18] consists in the fact that it focuses on the
unjustified an expanded understanding of the
concept in question, which can be interpreted
in different ways.
In this regard, we believe it is possible to state
paragraph 13 of the resolution of the Plenum of
the Supreme Court of Uzbekistan dated
September 24, 2004. No.13 "On judicial practice
in cases of premeditated murder" as follows:
"Under the premeditated murder associated
with rape or forcible satisfaction of sexual
desire in an unnatural form, one should
understand the deprivation of life of the victim
in the process of committing crimes against
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sexual freedom, accompanied by rupture of
organs and tissues victims, asphyxiation,
various serious injuries, etc., as well as murder
motivated by revenge for resistance when
committing an encroachment on sexual
freedom or sexual inviolability of the victims.
Considering that in this case two independent
crimes are committed, the deed should be
classified under clause "z" of the second part
of Article 97 of the Criminal Code and,
depending on the specific circumstances of the
case, according to the relevant parts of Articles
118 or 119 of the Criminal Code".
Speaking
about
the
qualification
of
premeditated murder, associated with rape or
forcible satisfaction of the sexual need in an
unnatural form (clause "z" part 2 of article 97
of the Criminal Code), one should come to the
conclusion that there is always a combination
of crimes provided for in clause "z" Part 2 of
Art. 97 of the Criminal Code and the
corresponding article (paragraph, part of the
article) 118 or 119 of the Criminal Code. This
decision is justified by the fact that when a
murder is committed involving rape or forcible
satisfaction of a sexual need in an unnatural
form, competing objects (life and sexual
freedom or sexual inviolability) are not in the
close connection that exists, for example, in
robbery or hooliganism. Murder is not a
method of rape or forcible satisfaction of an
unnatural sexual urge, just as rape or forced
satisfaction of a sexual urge in an unnatural
form is not part of murder. This act causes
harm to two objects independently, therefore
it is necessary to qualify these encroachments
each separately. None of these acts covers the
other, is not a way of committing another,
which means that they are qualified only under
clause "z" of Part 2 of Art. 97 of the Criminal
Code will be incomplete and, therefore,
incorrect[19].
The solution to this practically important
problem is possible only through the
application of uniform rules for the
qualification of crimes in the competition of
direct objects. The application of such rules will
contribute to the elimination of fruitless
disputes about the coverage of some acts by
others and the reduction of errors in the
classification of crimes.
All of the above can be expressed in the form
of a general rule for qualifying crimes in the
competition of direct objects: a) an act in which
causing harm to an additional direct object of
encroachment is a method, an integral part of
causing harm to the main object, forms a single
crime; b) an act in the commission of which
harm to an additional object is inflicted
optional, forms a set of crimes.
It seems that the application of these rules in
rule-making and law enforcement will
significantly ease the complex problem of
qualification of crimes and will allow to resolve
many controversial provisions of the science of
criminal law about the totality of crimes and
their qualifications. From these positions, it
becomes possible to construct correct
recommendations for qualifying such an act as
murder associated with rape or forcible
satisfaction of a sexual need in an unnatural
form.
Taking into account the above circumstances
and in connection with the special danger of
acts committed on "sexual grounds", we
propose in all cases to classify the actions of
the perpetrator according to the aggregate of
crimes, i.e. according to clause "z" part 2 of Art.
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97 of the Criminal Code of the Republic of
Uzbekistan and according to the relevant parts
of Articles 118 or 119 of the Criminal Code. It
seems that this will make it possible to more
specifically qualify the actions of the offender
and uniformly apply judicial practice, which will
create fewer questions both in theory and in
practice.
A murder involving rape or forcible satisfaction
of a sexual urge in an unnatural form can also
be committed with direct intent, for example,
out of revenge for resistance or an intention to
report violence to the criminal justice
authorities. Rape killings are also committed
with direct intent, when the perpetrator kills
the victim or her relatives some time after the
rape in connection with their intention to file a
complaint or in connection with filing a rape
complaint with the authorities in order to hide
the traces of the crime. With direct intent,
murders involving rape are also committed by
various kinds of sexual maniacs, for whom the
very murder under these circumstances is a
pleasure.
Rape-related murders, which are committed
while overcoming the victim's resistance, are
of a somewhat different nature. In these cases,
the murder, as a rule, turns out to be
committed with indirect intent, when the
perpetrator strangles the victim or hits her on
the head. There are known murders when the
offender, squeezing the victim's neck, brings
her into an unconscious state, and then carries
out his intention[20].
In addition, clause "z" of part 2 of article 97 of
the Criminal Code is also applicable in the case
when the murder was committed by one of the
persons who participated in the rape or
forcible satisfaction of the sexual urge in an
unnatural form. If there is a conspiracy to
commit
murder,
responsibility
for
its
commission comes under the rules of
complicity. If there is an excess of the
performer, the actions of the participants in
the murder are qualified taking into account
this circumstance.
The legislator, having noted the sign of the
contingency
of
premeditated
murder,
nevertheless refers to it not only murder in the
process of rape itself, but also murder
committed, for example, in revenge for
resisting rape. It is sometimes argued that only
a murder committed during the rape itself
should be considered a rape-related murder.
One cannot agree with this. This last murder is
specially highlighted in paragraph "z" of Part 2
of Art. 97 from among other types of murders,
and therefore, from our point of view, it is the
special part of the norm that is subject to
application in all indications of cases. In
addition, the very wording “murder associated
with rape” does not provide grounds for such
a narrow understanding of this type of
murder[21].
As a result of the analysis of the norms
provided for in paragraph "z" of Part 2 of Art.
97 of the Criminal Code, we suggest that under
premeditated murder associated with rape or
forcible satisfaction of a sexual need in an
unnatural form, we understand the actions of a
person consisting in the intentional unlawful
deprivation of the victim's life in the process, as
a result of rape or forcible satisfaction of a
sexual need in an unnatural form, and equal to
immediately after or in connection with it.
The murder we are investigating is often
associated with both rape and, at the same
time, the forcible satisfaction of the sexual
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urge in an unnatural form. Therefore, the
current edition of clause "z", part 2 of Art. 97 of
the Criminal Code should be changed and use
the transcription "and (or)". Then the indicated
sign will look as follows: "... associated with
rape and (or) forced satisfaction of sexual
desire in an unnatural form".
In practice, rape or forcible satisfaction of
sexual urges in an unnatural form is quite often
accompanied by premeditated murder in order
to conceal and conceal the fact that these
crimes have been committed. Moreover, in
fact, murder associated with rape or forcible
satisfaction of a sexual urge in an unnatural
form is a frequent case of murder in order to
facilitate or conceal another crime. It can be
committed both after and during the rape.
O.G.Krutko also draws attention to this fact.
So, she writes that if a person loses his life who
is not a victim of rape or forcible satisfaction of
sexual desire in an unnatural form, but could
know about the crime and report it to law
enforcement agencies, the deed must be
qualified under paragraph "o" of Part 2 of Art.
... 97 of the Criminal Code.
Otherwise, the murder must be qualified
under clause "z" of Part 2 of Art. 97 of the
Criminal Code. At the same time, the author
argues that in order to qualify a murder on the
basis of the indicated criterion (clause "z"), it is
necessary that it be committed in a relatively
short passage of time, if the murder was
committed much later than the rape or
satisfaction of a sexual urge in an unnatural
form, as well as in relation to a person who is
not a victim of crimes against sexual freedom,
Rustambaev M.Kh., O.G.Krutko proposes to
qualify the offense under the totality of Art.
Art. 118 or 119 and clause "o" part 2 of Art. 97 of
the Criminal Code[22].
In this regard, it is proposed to state paragraph
"z" of Part 2 of Art. 97 of the Criminal Code, as
follows:
з) associated with rape and (or) forcible
satisfaction of sexual desire in an unnatural
form, or committed with the aim of
concealing another crime or facilitating its
commission.
Naturally, clause "o" on part 2 of Art. 97 of the
Criminal Code will need to be excluded.
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