Legal Provisions Relating to Sexual Offenses Against Persons Under 18 Years of Age
(Rape; Rape of persons under 16; Coercive sexual intercourse; Coercive sexual intercourse with persons aged 13 to under 16; Sexual intercourse or other sexual acts with persons aged 13 to under 16; Acts of sexual molestation against persons under 16; Use of persons under 16 for pornographic purposes)
Some Terms to Note:
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Sexual abuse of persons under 16 means the use of force, threat of force, coercion, enticement, or inducement of a person under 16 to participate in sexual acts, including rape, coercive intercourse, sexual intercourse, molestation of a person under 16, or use of a person under 16 for prostitution or pornography in any form (e.g., sexual acts carried out on the basis of purported “consent” with a person under 13; by coercion; by promising material benefits such as money, property; or non-material benefits such as higher grades, favorable evaluations, career advancement opportunities, etc.).
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Genital organs include male and female genitalia. Male genitalia refers to the penis; female genitalia includes the vulva and vagina.
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Sensitive body parts include the scrotum, pubic area, anus, groin, thighs, buttocks, and breasts.
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Other body parts mean any body part other than genital organs and sensitive body parts (e.g., hands, feet, mouth, tongue, nose, nape, neck, abdomen, etc.).
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Sexual devices are tools specifically manufactured for sexual activity (e.g., artificial penis, artificial vulva, artificial vagina), or other objects used for sexual purposes.
Certain Circumstances Defining Sexual Offenses
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Sexual intercourse as provided in Clause 1, Article 141; Clause 1, Article 142; Clause 1, Article 143; Clause 1, Article 144; and Clause 1, Article 145 of the Penal Code refers to penetration of the male genital organ into the female genital organ, regardless of the degree of penetration.
Sexual intercourse with a person under 10 years old is deemed to have been committed regardless of whether penetration occurred. -
Other sexual acts as provided in Clause 1, Article 141; Clause 1, Article 142; Clause 1, Article 143; Clause 1, Article 144; and Clause 1, Article 145 of the Penal Code refer to acts, between persons of the same or different sex, involving the use of the male genital organ, other body parts (e.g., fingers, toes, tongue), or sexual devices to penetrate the female genital organ, mouth, or anus of another person, regardless of the degree of penetration, including:
a) Penetration of the male genital organ into another person’s mouth or anus;
b) Penetration of the female genital organ or anus of another person using other body parts (e.g., fingers, toes, tongue) or sexual devices. -
Sexual molestation as provided in Clause 1, Article 146 of the Penal Code refers to acts, between persons of the same or different sex, of direct or indirect physical contact (through clothing or otherwise) with the genital organs, sensitive body parts, or other body parts of a person under 16, for sexual purposes but not intended as sexual intercourse, including:
a) Contact using genital organs or sensitive body parts (e.g., touching, rubbing, grinding) with the genital organs, sensitive body parts, or other body parts of a person under 16;
b) Contact using other body parts (e.g., hands, feet, mouth, tongue) (e.g., caressing, stroking, squeezing, pinching, kissing, licking) with the genital organs or sensitive body parts of a person under 16;
c) Contact using sexual devices (e.g., touching, rubbing, grinding) with the genital organs or sensitive body parts of a person under 16;
d) Inducing or coercing a person under 16 to use their own body parts to contact (e.g., caressing, stroking, squeezing, pinching, kissing, licking) the sensitive body parts of the offender or of another person;
đ) Other acts of a sexual nature not intended as sexual intercourse (e.g., kissing the mouth, neck, ears, or nape of a person under 16). -
Pornographic performance as provided in Clause 1, Article 147 of the Penal Code refers to acts using gestures, actions, words, writing, symbols, images, or sounds to sexually arouse persons under 16; displaying genital organs or sensitive body parts; nudity, striptease, or acts simulating sexual activities (including intercourse, masturbation, and other sexual acts) in any form.
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Directly witnessing pornographic performance as provided in Clause 1, Article 147 of the Penal Code means a person under 16 directly witnessing others performing pornographic acts in any form.
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Forms of pornographic performance or direct witnessing of pornographic performance under Clause 1, Article 147 of the Penal Code include:
a) Directly performing pornographic acts before a person under 16, or inducing a person under 16 to perform such acts;
b) Broadcasting live pornographic acts involving a person under 16;
c) Inducing, luring, or coercing a person under 16 to record or photograph their own pornographic performance and disseminating it;
d) Inducing, luring, or coercing a person under 16 to appear nude and transmit audio/visual material via the internet (livestream);
đ) Displaying pornographic publications using persons under 16 or depictions resembling persons under 16 (including animations or digitally generated characters);
e) Describing human genital organs or sensitive body parts, except where permitted for educational purposes under Clause 2, Article 5 of Resolution No. 06/2019/NQ-HĐTP;
g) Other forms of pornographic performance or direct witnessing thereof. -
Exploiting the victim’s inability to resist as provided in Clause 1, Article 141 and Clause 1, Article 142 of the Penal Code means the offender exploits situations in which the victim falls into one of the following circumstances to engage in sexual intercourse or other sexual acts:
a) The victim is unable to resist (e.g., injured, unconscious, tied up, disabled, etc.);
b) The victim is limited in or deprived of cognitive capacity or ability to control behavior (e.g., due to intoxication with alcohol, sleeping pills, anesthetics, narcotics, sedatives, stimulants, mental illness, or other conditions). -
Other means as provided in Clause 1, Article 141 and Clause 1, Article 142 of the Penal Code include means such as poisoning the victim; giving the victim sleeping pills, anesthetics, alcohol, or strong stimulants, thereby rendering them incapable of perception or control, in order to commit sexual intercourse or other sexual acts; or making promises of graduation, overseas study, competitions, or performances to induce sexual acts.
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Against the victim’s will as provided in Clause 1, Article 141 and Point a, Clause 1, Article 142 of the Penal Code means the victim does not agree, resigns themselves, or is incapable of expressing their will regarding the offender’s intentional sexual act.
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Dependent person as provided in Clause 1, Article 143 and being in a state of dependence as provided in Clause 1, Article 144 of the Penal Code means the victim is materially dependent (e.g., supported financially or provided with daily living expenses by the offender) or dependent in terms of spirit, employment, education, or religion (e.g., the victim is a worker employed by the offender; the victim is a student in a class where the offender is the homeroom teacher or subject teacher).
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Person in a state of extreme hardship as provided in Clause 1, Article 143 and Clause 1, Article 144 of the Penal Code means the victim is in a difficult and pressing situation which they cannot overcome without assistance from others (e.g., unable to afford treatment for a serious illness; unable to pay ransom for a kidnapped child).
On Certain Aggravating Circumstances
1. Incestuous nature as prescribed 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 Penal Code shall fall under any of the following circumstances:
a) Committing the offense against a person of direct bloodline, siblings of the same parents, siblings of the same father but different mothers, or the same mother but different fathers;
b) Committing the offense against a paternal aunt, maternal aunt, paternal uncle, maternal uncle, or a niece/nephew of the offender;
c) Committing the offense against an adoptive child, adoptive father, or adoptive mother;
d) Committing the offense against a stepchild, stepfather, or stepmother;
dd) Committing the offense against a daughter-in-law, father-in-law, mother-in-law, or son-in-law.2. Commission of the crime two or more times as prescribed 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 Penal Code refers to cases where the offender has committed the criminal act two or more times but has not yet been prosecuted for criminal liability and the statute of limitations for criminal prosecution has not expired.
3. Multiple offenders committing rape against one person as prescribed in Point c Clause 2 Article 141 and Point b Clause 3 Article 142 of the Penal Code refers to cases where two or more persons rape one victim. It shall also be deemed “multiple offenders committing rape against one person” if two or more persons plan and agree to take turns raping one victim, but due to circumstances beyond their control, only one manages to commit the act.
It shall not be considered “multiple offenders committing rape against one person” if two or more persons conspire, organize, or assist one person in committing rape (this is considered accomplice liability).
4. Multiple offenders committing sexual assault against one person as prescribed in Point a Clause 2 Article 143 and Point a Clause 3 Article 144 of the Penal Code refers to cases where two or more persons sexually assault one victim. It shall also be deemed “multiple offenders committing sexual assault against one person” if two or more persons plan and agree to take turns sexually assaulting one victim, but due to circumstances beyond their control, only one manages to commit the act.
It shall not be considered “multiple offenders committing sexual assault against one person” if two or more persons conspire, organize, or assist one person in committing sexual assault (this is considered accomplice liability).
Circumstances Excluded from Criminal Liability
1. No criminal liability under Article 146 of the Penal Code shall apply in any of the following cases:
a) A person directly caring for or educating a child under 10 years old, or a sick or disabled person, who touches their genitals or sensitive body parts without sexual intent (e.g., parents bathing or cleaning their child under 10; kindergarten teachers bathing or cleaning preschool children, etc.);
b) A person engaged in medical examination, treatment, or care; or a person providing emergency aid who touches the genitals, sensitive body parts, or other body parts of a person under 16 years of age without sexual intent (e.g., doctors treating patients; rescuers administering first aid to accident or drowning victims, etc.).2. No criminal liability under Article 147 of the Penal Code shall apply to cases where educators, medical practitioners, or caregivers describe human genitals or sensitive body parts for purposes of education, medical examination, treatment, or healthcare.
Trial of Sexual Abuse Cases with Victims Under 18 Years of Age
1. Time limit for trial of sexual abuse cases with victims under 18 years of age shall be as follows:
a) Summary procedures shall be applied where conditions prescribed under the Criminal Procedure Code are met;
b) Other cases shall be brought to trial within a period not exceeding one-half of the statutory time limit applicable to the corresponding cases.2. When trying sexual abuse cases involving victims under 18 years of age, the Court shall:
a) Conduct closed hearings and publicly pronounce the judgment in accordance with Article 327 of the Criminal Procedure Code. When pronouncing the judgment, the Trial Panel shall only read out the operative part of the judgment;
b) Assign Judges who have knowledge or experience in adjudicating cases involving persons under 18 years of age;
c) Judges participating in trial shall wear administrative attire of the People’s Court, not judicial robes;
d) Hearings shall be held in a child-friendly courtroom in accordance with Circular No. 01/2017/TT-TANDTC dated 28 July 2017 and Circular No. 02/2018/TT-TANDTC dated 21 September 2018 of the Chief Justice of the Supreme People’s Court;
dd) Ensure participation of representatives, guardians, and protectors of lawful rights and interests of the victim under 18 years of age.3. When adjudicating sexual abuse cases involving victims under 18 years of age, depending on specific conditions and circumstances, the Court shall:
a) Minimize summoning victims under 18 years of age to court hearings if the case can be resolved by alternative measures (e.g., use of their statements given during investigation or prosecution; taking statements in writing, audio-recorded, or video-recorded with sound at the Court or other lawful premises);
b) Where victims under 18 years of age must be summoned to court, the Court shall facilitate their familiarization with the courtroom environment and procedures; arrange for them to sit in a separate room and use electronic devices (e.g., microphones, speakers, monitors, cameras) to avoid psychological distress while testifying. Where a separate room cannot be arranged, victims shall sit in the courtroom with a screen separating them from the defendant, and the distance between the Trial Panel and the victim shall not exceed 3 meters;
c) Questions to victims under 18 years of age must be age-appropriate, tailored to their development level, education, and understanding. Questions must be short, clear, simple, and easy to understand; not combine multiple issues at once; only clarify facts of the case; not aim for argument. Questions to victims under 10 years old shall not exceed 10 words each, and questioning shall not last continuously for more than 1 hour;
d) Use anatomical charts or body models with numbered parts for victims under 18 years of age to identify body parts that were assaulted;
dd) Where the defendant requests to question the victim under 18 years of age, questions must be relayed through defense counsel or the Trial Panel.4. When adjudicating sexual abuse cases involving victims under 18 years of age, the Court shall not:
a) Require victims under 18 years of age to recount details of the criminal act;
b) Use offensive, threatening, shaming, or humiliating questions toward the victim;
c) Conduct confrontation between the victim and the offender at trial;
d) Require victims under 18 years of age to identify body parts by directly pointing to their own or others’ bodies;
dd) Permit the defendant to question the victim under 18 years of age directly;
e) Require victims under 18 years of age to stand while participating in trial proceedings;
g) Publicize judgments or decisions of the Court relating to such cases on the Court’s electronic portal.5. The Court must consider and recommend competent authorities or persons to apply appropriate protective measures under Chapter XXXIV of the Criminal Procedure Code where the victim or their relatives so request, or where competent agencies/organizations petition for protection of the life, health, honor, dignity, property, and other lawful rights and interests of the victim or their relatives.
Legal Basis:
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Articles 141, 142, 143, 144, 145, 146, 147 of the Penal Code 2015;
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Resolution No. 06/2019/NQ-HĐTP guiding the application of certain provisions of Articles 141, 142, 143, 144, 145, 146, 147 of the Penal Code and the adjudication of sexual abuse cases involving victims under 18 years of age.
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