RAPE COMMITTED BY MILITARY SERVANTS OF THE AGGRESSOR STATE: PROBLEMS OF CRIMINAL-LEGAL QUALIFICATION

Abstract

The scientific article examines the problematic issues of the criminal-legal qualification of rape committed by the military of the aggressor state on the territory of Ukraine. The author emphasizes the increased level of public danger of the analyzed criminal illegal acts and points to their prevalence in the occupied territories during the aggressive war. Undoubtedly, such illegal actions are war crimes. International legal acts were studied, on the basis of which it was concluded that all facts of sexual violence related to the russian-Ukrainian international armed conflict, applied to women, men, and children in the occupied territories, should be qualified as a violation of the laws and customs of war. The law-enforcement practice of criminal prosecution for the commission of rape by servicemen of the russian federation is analyzed, the inaccuracy of the wording used in the disposition and the imperfection of the sanction of Part 1 of Art. 438 of the Criminal Code of Ukraine. The author considers it more correct to classify the actions of military personnel of the aggressor country, who committed rape in the occupied territories, by the totality of crimes – Part 1 of Art. 438 and the corresponding part of Art. 152 of the Criminal Code of Ukraine due to the high public danger, the prevalence of rape, the imperfection and inaccuracy of the wording of the provisions of the disposition and sanction of Art. 438 of the Criminal Code of Ukraine, the blanket nature of the norm, the impossibility of taking into account aggravating circumstances that are characteristic of sexual crimes, etc. The author notes that the use of such an approach will create the problem of so-called «double incrimination», however, in this legal context, until appropriate changes are made to the current Criminal Code of Ukraine, this approach is optimal.