Crime of Rape

Article 141 of the Penal Code 2015 (as amended and supplemented by the Law amending and supplementing a number of articles of the Penal Code 2017) provides as follows:

1. Any person who uses force, threatens to use force, takes advantage of the victim’s inability to resist, or employs other methods to have sexual intercourse or engage in other sexual acts against the victim’s will shall be sentenced to imprisonment from 02 to 07 years.

2. The offender shall be sentenced to 07 to 15 years’ imprisonment if the crime falls under any of the following circumstances:
   a) Committed in an organized manner;
   b) Committed against a person for whom the offender is responsible for care, education, or medical treatment;
   c) Two or more persons raping one person;
   d) Committed two or more times;
   đ) Committed against two or more persons;
   e) Having an incestuous nature;
   g) Causing the victim to become pregnant;
   h) Inflicting injury, harm to health, or mental and behavioral disorder with a bodily harm rate of 31% to 60%;
   i) Dangerous recidivism.

3. The offender shall be sentenced to 12 to 20 years’ imprisonment or life imprisonment if the crime falls under any of the following circumstances:
   a) Inflicting injury, harm to health, or mental and behavioral disorder with a bodily harm rate of 61% or more;
   b) Committing the crime knowing that he/she is HIV positive;
   c) Causing the victim’s death or suicide.

4. Committing the crime against a person aged 16 to under 18 years shall be sentenced to 05 to 10 years’ imprisonment.
   If the crime falls under the circumstances specified in Clauses 2 or 3 of this Article, the penalty shall apply according to those provisions.

5. The offender may also be prohibited from holding certain positions, practicing certain professions, or performing certain jobs for 01 to 05 years.

Resolution No. 06/2019/NQ-HĐTP

Guiding the application of several provisions in Articles 141–147 of the Penal Code and the trial of sexual abuse cases involving persons under 18 years of age.

Article 3 – On Certain Constituent Elements

1. “Sexual intercourse” under Clause 1 of Articles 141–145 of the Penal Code means 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.

2. “Other sexual acts” under Clause 1 of Articles 141–145 of the Penal Code include acts by persons of the same or different sex using the male genital organ, other body parts (e.g., fingers, toes, tongue), or sexual devices to penetrate another person’s female genital organ, mouth, or anus at any level, including:
   a) Penetrating another person’s mouth or anus with the male genital organ;
   b) Penetrating another person’s female genital organ or anus with other body parts (e.g., fingers, toes, tongue) or sexual devices.

3. “Taking advantage of the victim’s inability to resist” under Clause 1 of Articles 141 and 142 means exploiting situations where the victim falls into one of the following conditions:
   a) The victim cannot resist (e.g., due to accident, unconsciousness, being tied up, or disability);
   b) The victim is limited in or deprived of cognitive ability or ability to control behavior (e.g., intoxicated by alcohol, drugs, sedatives, stimulants, or suffering from mental illness).

4. “Other methods” under Clause 1 of Articles 141 and 142 include such acts as poisoning, giving sleeping pills, anesthetics, alcohol, strong stimulants, or making promises of graduation, overseas study, competitions, or performances to induce sexual intercourse or other sexual acts.

5. “Against the victim’s will” under Clause 1 of Article 141 and Point a Clause 1 of Article 142 means the victim does not consent, submits passively, or is unable to express his/her will regarding the offender’s intentional sexual act.

Article 4 – On Certain Aggravating Circumstances

1. “Incestuous nature” under Point e Clause 2 of Article 141 and related provisions means committing the crime against:
   a) Direct blood relatives, siblings of the same parents, or half-siblings;
   b) Uncles, aunts, nephews/nieces;
   c) Adoptive children, adoptive parents;
   d) Stepchildren, stepparents;
   đ) Parents-in-law, children-in-law.

2. “Two or more times” means the offender committed the crime on two or more occasions but has not yet been prosecuted or the statute of limitations has not expired.

3. “Two or more persons raping one person” under Point c Clause 2 of Article 141 refers to two or more persons committing rape against one person. It is also deemed such if two or more persons agree to take turns raping one person, but only one manages to do so for reasons beyond their control.

(If two or more persons conspire to assist one person in committing rape, this is treated as accomplice liability, not “two or more persons raping one person”).

Article 6 – Principles of Handling Sexual Abuse Offenders

1. Comply with fundamental principles of criminal law and criminal procedure law.

2. Apply strict penalties to acts violating morality, abusing authority or occupation, or committing offenses against persons under 13 years of age.

3. Apply the maximum additional penalties permitted by the Penal Code and other relevant laws, including prohibiting the offender from holding positions or practicing professions related to persons under 16 years of age.

Article 7 – Trial of Sexual Abuse Cases Involving Victims Under 18 Years of Age

1. Time limits:
   a) Apply summary procedures where legally permitted;
   b) Other cases must be tried within half the statutory time limit.

2. When trying such cases, the Court must:
   a) Hold closed hearings but pronounce judgments publicly;
   b) Assign judges with expertise or experience in juvenile cases;
   c) Judges wear administrative attire instead of robes;
   d) Hearings held in child-friendly courtrooms as per relevant regulations;
   đ) Ensure participation of legal representatives/guardians and legal aid for the under-18 victim.

3. Protective measures for under-18 victims include:

• Limiting court summons where possible, using recorded testimony instead;

• Providing isolation rooms and electronic communication devices;

• Age-appropriate and simple questioning methods;

• Using body diagrams/models for victims to indicate affected body parts;

• Ensuring defendants cannot directly question the victim.

4. Prohibited practices during trial include:

• Forcing victims to recount the crime in detail;

• Asking humiliating or intimidating questions;

• Face-to-face confrontation with the offender;

• Requiring victims to directly identify body parts;

• Publicizing judgments online.

5. The Court must request protective measures for victims and their relatives under the Criminal Procedure Code.

6. Comply with other applicable laws and inter-ministerial circulars guiding the handling of sexual abuse cases.