What are the criminal penalties for gang rape in Vietnam? Shall criminal prosecution against rape only be pressed at the requests of victims?
What are the criminal penalties for gang rape in Vietnam?
Pursuant to Clause 2, Article 141 of the 2015 Criminal Code (amended by Clause 23, Article 1 of the 2017 Law on Amendments to Criminal Code) as follows:
Rape
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2. This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:
a) The offence is committed by an organized group;
b) The offence is committed against a person for whom the offender is responsible for providing care, education or medical treatment;
c) The offence is committed by more than one person against one person;
d) The offence has been committed more than once;
dd) The offence is committed against more than one person;
e) The offence is of an incestuous nature;
g) The offence results in the victim's pregnancy;
h) The offence results in damage to physical or mental health of the victim and the victim’s WPI is assessed as 31% - 60%;
i) Dangerous recidivism.
Accordingly, a person who commits an act of gang rape may face a penalty from 07 years to 15 years’ imprisonment in case he/she satisfies the constituents of this crime and does not have the framing circumstances specified in Clause 3, Article 141 of the 2015 Criminal Code (amended by Clause 23, Article 1 of the 2017 Law on Amendments to Criminal Code).
In case the offence has the circumstances specified in Clause 3, Article 141 of the Criminal Code 2015 (amended by Clause 23, Article 1 of the Law on Amendments to Criminal Code 2017), he/she may face a penalty from 12 years to 20 years’ imprisonment or a maximum penalty of life imprisonment if the constituents of this crime are satisfied.
The framing circumstances specified in clause 3 include:
Rape
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3. This offence committed in any of the following circumstances carries a penalty of 12 - 20 years' imprisonment or life imprisonment:
a) The offence results in damage to physical or mental health of the victim and the victim’s WPI is assessed as ≥ 61%;
b) The offender commits the offence in the knowledge of his HIV infection;
c) The offence results in the death or suicide of the victim.
In addition, in case the victim of gang rape is a person under 16 years of age, the offender may face a penalty of 20 years’ imprisonment, life imprisonment, or death under Clause 3, Article 142 of the 2015 Criminal Code (as amended by Clause 24, Article 1 of Law on Amendments to Criminal Code 2017).
Which agency has the authority to conduct adjudication against a person committing gang rape in Vietnam?
Pursuant to Clause 1, Article 9 of the 2015 Criminal Code (amended by Clause 2, Article 1 of Law on Amendments to Criminal Code 2017) as follows:
Article 9. Classification of crimes
1. Crimes defined in this Code are classified into 04 categories according to their nature and danger to society:
a) Less serious crime means a crime whose danger to society is not significant and for which the maximum sentence defined by this Code is a fine, community sentence (non-custodial), or 03 years' imprisonment;
b) Serious crime means a crime whose danger to society is significant and for which the maximum sentence of the bracket defined by this Code is from over 03 years' to 07 years' imprisonment;
c) Very serious crime means a crime whose danger to society is great and for which the maximum sentence of the bracket defined by this Code is from over 07 years' to 15 years' imprisonment;
d) Extremely serious crime means a crime whose danger to society is enormous and for which the maximum sentence of the bracket defined by this Code is from over 15 years' to 20 years' imprisonment, life imprisonment, or death.
According to the above provisions, gang rape is classified as an extremely serious crime.
Pursuant to Clause 1, Article 268 of the Criminal Procedure Code 2015 provides as follows:
Jurisdiction of a Court
1. A district People’s Court or local military Court hears criminal cases of misdemeanors, felonies and horrific felonies at first instance, except for the following crimes:
a) Breach of national security;
b) Sabotage of peace, crimes against humanity and war crimes;
c) Crimes as defined in Article 123, 125, 126, 227, 277, 278, 279, 280, 282, 283, 284, 286, 287, 288, 337, 368, 369, 370, 371, 399 and 400 of the Criminal Code;
d) Crimes committed outside the territories of the Socialist Republic of Vietnam.
Thus, District People's Courts do have the authority to conduct adjudication in this case.
Therefore, based on Clause 2, Article 268 of the Criminal Procedure Code 2015 as follows:
Jurisdiction of a Court
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2. A provincial People’s Court or military Court of a military zone hears following cases at first instance:
a) Criminal cases beyond the jurisdiction of a district People’s Court or local military Court;
b) Criminal cases related to defendants, crime victims or litigants who live abroad or in connection with property involved in other lawsuits occurring on foreign territories;
c) A criminal lawsuit, though within the jurisdiction of a district People’s Court or local military Court, comprise complex facts making it hard to assess or reach unanimity upon the properties of the case or is involved in various sectors and levels of authority or is brought against a defendant who is a judge, procurator, investigator, primary governmental leaders in district, township, provincial city or city of a centrally-affiliated city, religious dignitary or individual having high prestige in a community of minority.
According to the above provisions, a provincial People’s Court or military Court of a military zone shall have the jurisdiction to conduct adjudication against a person committing gang rape that results in the suicide of a victim.
Shall criminal prosecution against rape only be pressed at the requests of victims in Vietnam?
Pursuant to Clause 1, Article 155 of the Criminal Procedure Code 2015 (amended by Clause 3, Article 1 of the Law amending and supplementing a number of Articles of the Criminal Procedure Code 2021) as follows:
Filing of criminal charges as per the crime victim’s petitions
Only criminal charges against offences as defined in Section 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155 and 156 of the Criminal Code can be pressed at the requests for the crime victim or the representative of the crime victim less than 18 years of age or having mental or physical defects or passing away.
Accordingly, criminal prosecution at the request of the victim only may be pressed in case of offenses as defined in Section 1 of Article 141 of the 2015 Criminal Code (as amended by Clause 23, Article 1 of the 2017 Law on amendments to Criminal Code). In remaining cases, a person committing gang rape may be prosecuted without the victim's request.
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