In current judicial practice at the Court, only males are prosecuted for the Crime of Rape. Thus, under the current legal provisions, can a woman be a subject of the crime of rape?
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The Criminal Code 1999 (amended and supplemented in 2009) stipulates in Clause 1, Article 111 as follows:
"Any person who uses force, threatens to use force, or exploits the victim’s inability to self-defend, or employs other means to have intercourse with the victim against their will, shall be sentenced to imprisonment for two to seven years."
Regarding the subject of the crime "any person," it means that regardless of gender, as long as the person engages in conduct of "using force, threatening to use force, or exploiting the victim’s inability to self-defend, or employing other means to have intercourse with the victim against their will," they shall qualify as having committed the crime and shall bear criminal responsibility.
Women can become subjects of the crime of rape in the following cases:
Firstly, it is unlikely for a woman to use force, threaten to use force, or exploit a man's inability to self-defend to forcibly have intercourse with him, but "other means" to have intercourse against the victim's will can be employed by women. For instance, administering aphrodisiacs, using sedatives... Hence, this possibility cannot be excluded in practice, and this is the conduct where a woman uses "other means" to have intercourse with the victim against the victim's will.
Secondly, a woman can be prosecuted for rape in the case of complicity. Even if she is not the principal perpetrator (typically a man), a woman can be considered to have committed the crime by intentionally helping to commit rape with the principal perpetrator. Specifically, a woman can be the organizer, instigator, or accomplice (Clause 1, Clause 2, Article 20 of the Criminal Code) assisting others in committing the act of raping the victim.
Thus, it can be affirmed that women can also be subjects of the Crime of Rape as stipulated in Article 111 of the 1999 Criminal Code.
However, in judicial practice, the subject of the crime of rape is usually men, specifically because men are the principal perpetrators in rape crimes while women primarily participate as accomplices for the following reasons:
Firstly, regarding the conduct of using force, threatening to use force, or exploiting the victim’s inability to self-defend, these are usually performed by men, as women are generally physically less capable of using or threatening to use force compared to men.
Secondly, considering the physical and mental recovery ability, the consequences of such acts are more severe for women.
Up to now, men are predominantly prosecuted and judged for rape crimes, and very few cases involve women as the perpetrators or being prosecuted for the Crime of Rape. However, determining that the subjects of the crime of rape in trials are solely men may not be entirely accurate, as men are also legally protected regarding their honor, dignity, and reputation.
Linh Trang
