Tài liệu Prevention and combat rape against children in vietnam and sweden

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Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS Prevention and Combat Rape against Children in Vietnam and Sweden : SUPERVISORS: Prof. Dr. Helén Ornemark Hansen Dr. Nguyen Duy Hung Preface and Acknowledgements In the completion of this thesis, firstly I would like to appreciate Dr. Nguyen Duy Hung, and would gratefully express my obliged to Prof. Ornemark Helen Hansen, who are my supervisors without whom this work may not be completed. Secondly I would like to express my deep thanks to Prof. Mai Hong Quy and Prof. Bengt Lundell as well as lecturers of the two Universities, University of LawHCMC and Lund University- Sweden who contribute to the teaching in the Universities and had helped us a lot during the time we were studying in Ho Chi Minh city and completing the short course in Lund city, Sweden sucessfully. I would lastly have my obligation to all the staff members of the two Universities who were in sourse of help and encouragement with which I have surplus materials useful for my work, as a result I could finish my thesis on time. Thank you all ! 1 Table of Contents Table of Contents ......................................................................................................... 2 Executive Summary ..................................................................................................... 3 Abbreviations ............................................................................................................... 4 1. Introduction.................................................................................................... 6 1.1 1.2 1.3 1.4 1.5 1.6 Grounds for Selecting the Topic .................................................................... 6 Scope and Object of study: ............................................................................ 7 Purposes for the Study ................................................................................... 8 Methology ...................................................................................................... 8 New Scientific Points..................................................................................... 8 Thesis Structures ............................................................................................ 9 2. Rape against children and the phenomenon in Vietnam and Sweden in recent years .................................................................................................. 10 2.1 Rights of the child in the United Nations Charter, Vietnmese Laws and Swedish Laws .............................................................................................. 10 Vietnam and Sweden Criminal Laws on Rape against Children ................. 16 Legal Characteristics of Rape against Children ........................................... 20 Components of Rape against Children.................................................... 20 Consequences created by rape against children ...................................... 23 2.2 2.3 2.3.1 2.3.2 2.4 2.4.1 2.4.2 2.4.3 Real state and characteristics of the State of rape against Children in Vietnam and Sweden recent years ............................................................... 24 Common geographical, economical, social and cultural characteristics of Vietnam and Sweden............................................................................... 24 Real State of Rape against children in Vietnam and Sweden ................. 25 Some Characteristics of Rape against Children in Vietnam and Sweden28 2.5 Causes of State of Affairs of Rape against Children in Vietnam and Sweden ...................................................................................................................... 31 3. Prevention and Combat against Child Rape in Vietnam and Sweden ......... 34 3.1 3.2 3.3 Real State of Affairs of Prevention and Handling with Child Rape in Vietnam and Sweden ................................................................................... 34 General Evaluating in Pevention and Combat Rape against Children ........ 43 Forecast of Rape against Children in Coming Years in Vietnam ................ 45 4. Proposals and Conclusion ............................................................................ 47 4.1 Some proposals for improving effective activities in prevention and combat rape against children in Vietnam ................................................................. 47 Conclusion ................................................................................................... 49 4.2 2 Executive Summary Every day, the world knows how many children are victims of forms of sexual violation. Each such a case happened which is a tragedy for the pain to the children and family members. Those Infringed acts have robbed away their old poetry and natural dreams of life and their pain remains refractory throughout the life of the children. Convention of the United Nations on the Rights of the Child has been approved and implemented by most countries in the world. In the spirit of this Convention, every child in the world even in any country or culture must be respected and protected against all forms of exploitation and sexual exploitation. All Member States of the Convention must implement all appropriate measures to ensure that children are not being violated on sex anywhere in life. Therefore, all countries in the world make efforts to implement variously different measures to prevent criminal sexual violation against children, to protect right to the sexual violation against the young best. Not outside that target, Viet Nam and Sweden, two countries have differences on many fields from economics, culture, society, etc and are also constantly implementing all measures to protect children before sexual exploitation and violation which are on the increase. Therefore, the research for the prevention measures appropriate for this offense is subject to many scholars of both countries concerned. In the scope of this work, the author concerns and researches the issues related to the outrage of my children and measures for prevention of this crime in particular as well as measures to room crimes against the sexual violation against children in general in Viet Nam and Sweden. Abbreviations CRC ILO UN ECPAT UNICEF CBSS BRIS of Sweden the International Convention on the Rights of the Child the International Labour Organization The United Nation End Child Prostitution Child Pornography and Traffickinh in Chidren United Nations International Children Education and Fund the Council of Baltic Sea States Barnens Rätt I Samhället 4 1. Introduction 1.1 Grounds for Selecting the Topic Children are the objects need care and special protection in all countries in the world. Today, before the development in all areas of social life, children in many countries, especially the developing countries face the risk of infringement against them physically and mentality. Deadly sexual violation against children, trafficking children for sexual purposes, etc. and the problem is that all countries must be especially interested in finding preventive solutions to protect the future generations of the country. Vietnam has become a country with market economy, the actual process of transition from centralized economy to the level of market economy has been in Vietnam for the great achievements in economy, society and tourism. People's living conditions are increased and a high awareness and action in the protection, care and education of children of the society has strong changes. The supervision of child protection by the National Assembly strengthened. The United Nations Convention on the Rights of the Child Protection Law on the care and education of children are penetrating into life. Living Environment and development of children has been improved. However, although the care and education of children in recent years has gained important achievements but the challenges for the protection of children is in the first place complex on all 3 levels: -Protecting Children who are being violated -Protecting children at risk of being violated, and - Protecting children in communities A number of children who are at risk of being sexually violated and who have difficult situations are increasing. Social class division, a gap between rich and poor, pressure of an increase in population and disadvantages in the process of international integration are affecting the child’s development. Appear new issues with complicated changes difficult to control such as children are mentally and physically violated, children break laws, children are infected with HIV/AIDS, children are addicted with drug and children are trafficked, etc. According to the General Directorate of Police of Vietnam, there are more than 800 cases on sexual abuse against children yearly in recent years. They made up more than 50% of cases related to child abuse. Doctor Jim Gamble, an expert in combating sexual violation against children via travel and internet, says: “This is an unacceptable number” in which it is worth noticing that mainly rape against children always appears with haigh rate and with an increasing in level with more sophisti6 cated nature. In many circumstances, at any place and any time, sometimes cases of rape against children are serious, intricate and increasing suddenly creating urgent controversial among community. In the past, this rape situation usually happened in the thinly populated and remote areas where people were mostly illiterate or they were with low educational level. But nowadays this has happened much even in large and developed cities, urban areas and the rape criminals belong to all social backgrounds even some are officers, teachers. At present, with development of tourism, Vietnam is standing in front of danger of child sexual abuse with a commercial purpose. Children are seduced to be given with money to have sexual intercourse with foreigners. This subject is the foundling, and waif children who have difficult lifes ….But, according to social researchers, the statistical data of rape against children and sexual intercourse with children of some appropriate authorities is not an exact figure because in fact rape against children are one of crimes which has highest implicit rate in Vietnam. This is because the victim and its family are afraid of reporting crime to the police for fear of making dirty to their honour. Therefore, many cases of crime are not discovered and the offenders are not strictly punished. Moreover, due to many subjective and objective reasons initiative protection, timely discovery and handling with this kind of crimes in Vietnam have various difficulties. With the expectations to study appropriate and useful solutions to prevent, combat, and handle with rape against children to minimize the rate of this kind of crime in Vietnam, the author has chosen Sweden for studying. Sweden is a country locating in North Europe with different geographical, economical, and social conditions from Vietnam. It is one of the countries having developed and stable economy, and people’s living conditions are high. Also, this is one of the countries which has a best welfare system, social security and the protection and care of the people. Authors wishes to find out measures to combat and prevent crimes against children in particular and for sexual infringement against children in general in Sweden and Vietnam. Studying cases in Sweden will help the authors to have broader vision in this field to identify solutions for prevention on this type of crime in Vietnam 1.2 Scope and Object of study: The present work concentrates on the following issues: - Study to make clear regulations of the International Conventions and Treaties on the Rights of the child that Vietnam and Sweden have joined and regulations of Vietnamese law and Sweden law on the Rights of the child. - Research to clarify provisions of criminal law of Vietnam and the Penal Code of Sweden on violations against children. Compare similar points and different ones - Research in reality of rape aginst children in Vietnam and Sweden, analyze the causes and conditions arising types of crime under this angle specific crimeand forecast the crime of child abuse in Vietnam in the coming years. - Research in measures to prevent and fight with this type of crime in Vietnam and Sweden. On the strong points and disadvantages in the prevention and treatment. Since then make recommendations for the fight to prevent and handle the types of crimes in Vietnam. 1.3 Purposes for the Study Based on comparative research in rape against children in Vietnam and Sweden, the author tries to find down causes and conditions arising crime, and measures to prevent and combat in Vietnam and Sweden towards advance and improved theories and construct scientific measures to prevent, learning expensive and valuable experience in preventing and fighting crime of this type from Sweden, applicaple inheritance contributes in preventing and fighting crime in Vietnam. Also this is a reference and supplement for those interested. 1.4 Methology Based on the Mac-Lenin methology, this thesis applies some particular methologies: statictics, analyses, synthesis and comparison, etc. 1.5 New Scientific Points Combat and prevention from criminal violations against children are issues of news, hence there have been works of many well-known researchers worth interesteing in Vietn and Sweden and even in over the world. Studying the issues of child sexual abuse in various scope and dimensions. As a whole, studied materials have provided us with a common picture about state of child sexual abuse in general and rape against children in particular in recent years which appears quite complicated. However, in Vietnam basically the mentioned works studying issues of child sexual violation in general, have not yet deeply studied any particular crime, in specific and isolated circumstance. Moreover, there is no any work studied in comparison with measures of prevention of this crime with any country in the world. Hence, the present work studying and comparing the state and measures of prevention and com- 8 bat rape against children in Vietnam and Sweden is new as compared with the studied works This is a unique work studying rape agianst children, with the comparison at the international level. It studies and compares state of affairs between Vietnam and Sweden in order to propose new measures for this crime prevention and combat in Vietnam. 1.6 Thesis Structures The work is divided into four parts + Part 1: Introduction +Part 2: Rape against children and the phenonmenon in Vietnam in recent years + Part 3: Prevention and combat against child rape in Vietnam and Sweden + Part 4: Proposals and Conclusion List of Documents Reference 2. Rape against children and the phenomenon in Vietnam and Sweden in recent years 2.1 Rights of the child in the United Nations Charter, Vietnmese Laws and Swedish Laws Child notion is defined for those who are immature at physical, psychological and intellectual bases, therefore, children are those who are provied with special concerns by the society and many countries all over the world. However, in different country, the notion about children is also different. According to the International Convention on the Rights of the Child of the General Assembly of the United Nations officially passed on November 20, 1989 “children are considered those who are under the age of eighteen, except that the national laws recognizes the earlier age of maturity.”1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. In Vietnam, on the basis of this open regulation, Law of protection, care and education for children in 2004 stipulates “children prescribed in this Law are Vietnamese citizens aged below 16 years.”2 In contrast, according to Swedish law makers, in different conditions and situation correspondent regulations differently stipulate the age under which a person is considered an adolescent. Guided by Swedish Penal Code at chapter six stipulates about sexual crimes in these cases that children are those below 15 years.3 The International Declaration of Human Rights stipulate that “Everyone who was born enjoys liberal and equal rights and values” and “Everyone enjoys the rights and freedom given in this text”. The International Declaration of Human Rights not only considers children those who are enjoyed with the Human Rights but it also provided them with the protection and special care. Rights of the Child are understood as the rights that a child possesses, making sure the survival, protection, integration and growth of the child. The Rights of the Child can be understood more clearly in the Article 1, International Convention on Rights of the Child in 1989 See Article 1 of Law on protection, care and education on children in 2004 International Declaration on Human Rights in 1948 10 situation where there is what the society is implementing to make the child’s life better.4 Recently, cognition on the children and their protective problems are imposed on the relation with preservation of the human rights in general. The child is the owner and the person who makes a difference. Child protection is one of the methods ensuring that children are no longer passive, and dependent, but they are potential to generate and make their childhood meaningful. The Rights of the child in the United Nations Charter Child protection is to protect their lives, health, freedom, values and dignity. Child protection is mainly towards the human rights of the children which are recognized by the national and world laws. The first world legal text which has mentioned the Rights of the Child in the early Twenty Century mainly focused on preventing children from being exploited economically and sexually. During 1930s, the Twenty Century, the International Labour Organization (ILO) had passed a series of International Conventions, exposing the world standards on the child protection firstly i.e. the convention on suppression of women and children trafficking in 1921. Based on the charter about the Rights of the Child in 1923, the 2004 Geneva Declaration on the Rights of the Child for the first time officially recognizes the issues. One of the particular contents the Declaration displays is: The child must be put in a position to earn a livelihood, and must be protected against any form of exploitation.5 In 1959, the United Nations had passed another Declaration on the Rights of the Child with more advanced and full contents on the spirit that we shall preserve for them the best things we have. Under the ten principles given, the Declaration has determined: 6 - All the children enjoy rights given in the Declaration without any such discrimination as race, nationality, gender, etc. - They should be protected and provided with opportunities to develop their body, mentality, and intellectual. - They should have rights to register their names since birth and nationality. Rights of the child (Quyền Trẻ Em) Centtre of study the Human Rights- National Political Academy Ho Chi Minh: The Rights of the Child (Educational materials, spreading the Rights of the Child, 2000) Clause 4, Geneva Declaration on the Rights of the Child in 1924 See Ten principles of the 1959 Declaration of the Rights of the Child of United Nations - - - They should enjoy all the benefits and social security, for instance, rights to protect and specially care. They should be loved and looked after by their parents and the whole society in order to develop in a harmonious and healthy environment. They should enjoy free but obligatory education which must ensure the culture, their abilities, moral concerns and responsibility to the society in order - that they can become useful members who serve others. Disability children should have special treatment and education. Under any circumstances, they should be first protected and helped. They should be protected against any form of abandon, forgotten or neglect, bad treatment, being trafficked, or having to work at the early age, or being exploited, or working in hazardous, noxious, and dangerous environment which is harmful to their development. They should be protected against the discriminative customs and brought up in understanding, compassion and friendliness to serve others. With certain advances, the 1959 Declaration is broadly used to promote the interests in the issues involving children over the world. The International Convention on the Rights of the Child was signed on November 20, 1989 and has been effective since September 2, 1990. At present, there are 193 countries which are in the favour of this convention. However, only United States and Somilia did not approve it. The present convention consists of 54 articles, the most important world legal text on the Rights of the Child. This is one of the world texts full of humanity, in which it mentions and determines completely the legality of the Rights of the Child progressively on the basic principle that children should be protected, cared and given with special help. The Rights of the Child in the 1989 International Convention are divided into four groups: Rights to live, rights to grow and develope, rights to defend and rights to integrate. The Rights to defend consists of 22 sub-rights, including:7 - Anti-discriminate under any forms. - Prevent from oppression, abuse, and harm or injury either physically or psychologically. - Protect and look after without family members. - Prevent from kidnapping and exchanging or trafficking. See Acticles 2, 19, 20, 35, 39, 34 of The International Convention on the Rights of the Child in 1989 12 Recover the body and mentality and reunite the society if the victim is the result of abuse, exploitation, treating inhumanly or being affected by war. Protect children from being exploited and sexually abuse. The recognition on a series of the rights of the child belonging to the rights to defend in this Convention reflects centrally and throughout the highly human spirits to the child. These spirits need to be regulated and recognized under the law system of the country members, by the stipulation of law the child protection rights are undertaken effectively, ensuring the child to be safe and to grow wholesomely. The Rights of the child Under Vietnamese Law Protection, care and relief to weaker section of population including children are tradition of Vietnamese people. Right at the fifteen Century, the Hong Duc Laws contained a number of clauses and articles assigning the responsibilities of local people and government officials to help the handicapped, and poor children, or orphans and drifting children who were without family members to protect and care for. This law also stipulated and executed those who committed adulterous crime, trafficking women and children; commuted or postponed the execution for a woman who was pregnant or bringing up their children8. During his time, Ho Chi Minh president showed his affection and special interests in children. His ideas reflect a perspective to the future and revolutionary achievements of the people: “For the benefits of ten years growing trees. For the benefits of hundred years growing human beings”, “To foster the revolutionary generations for the posterity is very important and necessary.” Following the moral philosophy and tradition of the people and impregnating ideas of the former but first president towards care and foster for the latter generations of the country, our Party and government have paid attention to protection, care and education for children. The constitutional principles carry the spirits that children are determined to develop in Vietnam constitutions (Constitution in 1945, 1959, 1980, and 1992). Vietnam is the first country in Asia but the second in the world to ratify the 1989 Constitution about the rights of the child on February 20, 1990. After ratifying, Vietnam has started deploying to perform the convention, gradually forms and completes the laws regarding to the child protection. In 1991, the Congress passed two separated acts about the rights of the child i.e. Protection, Care, and Child Education Act and Elementary Universalized Education act. Hence, the latter, Vietnam laws The rights of the child – Vu Cong Giao (Communist magazine number 23 , in 2003) extract from criminal law Dynastry ( Hong Duc Law) Political Nation press, Ha Noi, 1995 more institutionalize the society and government’s guarantees for protection, care and education for children more popularly and effectively. Rights of the child are stipulated systematically from constitutional principles to framed regulations in the Protection, care, and Child Education act, Law on marriage and family, Criminal laws, Labour laws, Education laws, etc. The current texts not only recognize the protection rights but they also determine and establish mechanism to ensure the performance of those rights, and to assign responsibility to members of the society, offices, organisations, and the state in the protection and care for children. - The 1992 Constitutions which have been reformed and supplemented in 2001 are one of the highest legal texts, which are constitutional to recognize human rights, in accordance with the citizen rights. Thereby, the first sacred rights to children are right to live, right to exist, right to be cared for and brought up. This is the legal text reflecting centrally the regulations on the rights of the child and putting legal foundation for the child protection supported by laws.9 Protection, care and education for children laws in 2004 (being replaced by the same laws in 1991) stipulate on the legal status of the child, legal responsibility of the family, school, the government and the society in the protection, look after and training the child. The law particularly stipulates the prohibited behaviour towards concretization to make the basis for measures to handle those whose behaviour violate the rights of the child, ensuring for the child to live in a safe and healthy environment and to grow. Among these laws, non-violation of sex is recognized and prohibited “Seduction, cheat, direction, hiding and forcing the child into prostitution activities, and sexually encroaching the child, etc.”10. In order for the child protection, care and education rights to be effective, it stipulates the responsibilities of the government authority offices from the centre to the locality, the offices including11: - The government agrees on the state control about the child protection, care and education. - Population Committee, Family and Children help the government undertake the state administration appropriately on the child protection, care and education in accordance with its function, duty and authority; chairman, coordinate ministries and See article 50, 40, 63, 35, 36, 59, 65, 67, Constitution in 1992, reformed and supplemented in 2001 Clause 4, article 7 , Protection, care and education for children law in 2004 See article 8 , Protection, care and education for children law in 2004 14 offices at ministry, government offices, Vietnamese Fatherland Front and its members in the deed. - The Ministry of Education and Training, Ministry of public health, Ministry of Culture and Information, Sports Committee, Ministry of Labour, War invalids and Social welfare and other Ministries, Related Departments perform the state administrative function on the child protection, care, and education assigned by the government. - People’s committees at all levels implement the same rights assigned by the government. Besides, other regulations related to children, and their rights are stipulated in other texts such as: Criminal law in 1999, Civil law in 2005, Labour law in 2004, Family laws in 2000, and Education universal law in 1991, etc. The Rights of the child under Swedish Law To protect the Rights of the child is also to protect human rights in gerenal recognized by international laws as well as institutionalized in each country’s laws. In Sweden, these early rights are recognized under highest effective texts considered Swedish Constituions, including: the Instrument of Government; the Freedom of the Press Act andthe Fundamental Law on Freedom of Expression. To protect human rights is issues firstly concerned and recognized in the first two chapters of the Instrument of Government.The first of all stipulates that the government authority should equally ensure people’s values, freedom and dignity as well as right to work, housing, and education and improve social welfare and provide a healthy and safe evironment for the people to live in.12 Children are free to express their view under the Swedish child policy and they are considered vital source of knowledge in issues regarding them. Sweden has joint in the Convention on the Rights of the child, as well as it is one of the members positively supporting international regulations and convention regarding issues of child protection such as The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; the ILO Convention on the Prohibition of the Worst Forms of Child Labour and Immediate Action for their Elimination; with its optional protocol onchild trafficking, child prostitution and child pornography. The articles concerning protection and care for children in Sweden are stated in the Social Service Act, the Care of Young Persons, the Health and Medical Services Act on care. Moreover, Sweden has special provisions to closely test preschools, schools and individuals involving in these. See Huma Rights in Sweden, http://www.manskligarattigheter.se/extra/pod/ In March 2008, the Government presented a Communication to the Riksdag entitled Child policy – a policy for the rights of the child. The Communication presents the main priorities in the work of the Government concerning the implementation of the rights of the child during the following years. These are13: -Strengthening the strategic work for the implementation of the CRC -Providing better support to parents -Improving the psychological wellbeing of children -Combating violence against children Through a number of provisions of Swedish law, we can see the Swedish Government always has prior policies in protecting the rights of children and upgrading and further improve them. 2.2 Vietnam and Sweden Criminal Laws on Rape against Children Regulations of Vietnamese Criminal Law Among violations against children, child sexual violations are highly serious crimes, seriously injuring their health, dignity and values, even their lifes. Mr Vu Ngoc Binh claims that these evils in fact directly attack fundamental human rights: right to determine individual’s body, health and intellectual, i.e. the worst behaviour violating basic rights of the child. For these are the most ruthless forms of exploitation to adolescent, harmful directly to the future of the individual.14 According to regulations in Criminal Law of Vietnam in 1999, rape against children is one of the most serious crimes of child sexual abuse. Rape notion is understood as common rape in which the victim is an adult recognized in the article 111 of Criminal Law in 1999, i.e, a person “uses force or threatens by force, or take the advantages on a person who is in state of unable to defend, or other means to have sexual intercourse with the victim.”15 Rape against children is stipulated under clause 1 of article 122 of this law that a person who commits rape against children from full thirdteen years of age to sixteen years of age is sentenced between seven and fifteen years of imprisonment. In any caces, having sexual intercourse with a child under thirdteen years of age is convicted as rape against children, according to clause 41 article 112. See Child Policy of Sweden, http://www. Manskligarattigheta.se/extra/pod Things to know about the Rights of the Child (Những điều cần biết về quyền trẻ em) - Vu Ngoc Binh, National Political Press, 1997 Clause 1, Article 111, Vietnam Criminal Law in 1999 16 Signs of rape against children are basically similar to a rape case in which a victim is an adult in accordance with the stipulation in article 11116. However, rape against children has its own sign about the age of the victim, for a victim from full 13 years to below 16 years having sex with who is determined as one’s unwillingness. In case where a victim under 13 years, whether the victim is willing or not willing to have sex, a offender is still accused of criminal responsibility for rape against children. This is so because according to law makers under the age of 13, the child is extremely young, unable to express the right will, easily being lured, attracted, persuaded, and suborned, unable to self-defend, hence, it is necessary to protect the child especially, ensuring their normal and healthy development and violating behaviour regarding child abuses must be seriously punished. Regarding the aggravated crimes framing the criminal responsibility for these kinds of crime the clause 2 stipulates: “Committing crimes in any following cases the offender would be sentenced to imprisonment at least twelve years and at most twenty years: incestuous behaviour, making the victim pregnant, causing harms to the victim’s health with an infirmity rate between 31% and 60%; Against a person whom the offender has the responsibility to look after, educate or medically treat; dangerous recidivism”. Clause 3 stipulates: “Committing crime in one of the following circumstances, the offender shall be sentenced to imprisonment, from twenty years, of life term imprisonment or capital punishment: in a well organized manner, more than one person rapes a person, committing crime more than once, committing the crime against more than one person; causing harms to the victim’s health with an infirmity rate 61% or higher; committing the crime though the offenders know that they are infected with HIV; causing dead to the victim or causing the victim to suicide. Clause 4 stipulates: “All cases of having sexual intercourse with children under 13 years old are considered rape against children and the offender shall be sentenced to imprisonment between twelve and twenty years , life term imprisonment or capital punishment.” Hence, we find the punishment assigned to rape against children is divided into different frames carrying more aggravating nature for rape cases in which the victim is an adult; therefore, it is considered especially serious crime. In comparison with punishment of the normal rape cases stipulated at article 111 the punishment for rape against children under article 112 is much higher than that under article 111, this shows that the Vietnam government’s attitude is to punish strictly rape against children. See Article 111, Vietnam Criminal Law in 1999 Regulations of Swedish Penal Code Crimes regarding sex according to Sweden laws are stipulated at Chapter 6, Sweden Penal Code in 1999 including 13 articles. The rape notion is regulated at paragraph 1, article 1 of the chapter “A person who by violence or threat which involves, or appears to the threatened person to involve an imminent danger, forces another person to have sexual intercourse or to engage in a comparable sexual act, that having regard to the nature of the violation and the circumstances in general, is comparable to enforced sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years. Causing helplessness or a similar state of incapacitation shall be regarded as equivalent to violence ” 17. Regarding to the above stipulation of the Sweden Penal Code, we can understand that rape concept is the case that a person (male or female) by forces or threaten using forces immediately causing harm to another in order to force that person to have sexual intercourse with one’s unwillingness is considered committing rape. And this is considered a normal rape case, in which the victim is an adult. In order to understand the rape against children concept – (children are those who are below 15 years) we need to base on the article 4 of chapter 5. The paragraph 1, article 4, chapter 6 stipulates: “A person who engages in a sexual act with someone under eighteen years of age and who is that person's offspring or for whose upbringing he or she is responsible, or for whose care or supervision he or she is responsible by decision of a public authority, shall be sentenced for sexual exploitation of a minor to imprisonment for at most four years. This also applies to a person who, in circumstances other those mentioned previously in this Chapter, engages in a sexual act with a child under fifteen years ”.18 According to the stipulation of Sweden Penal Code, involving the victim is below fifteen years of age, in any circumstances all the acts of having sexual intercourse with those are considered illegal, regardless whether the offenders by violence to force the victim to have sexual intercourse. Under such circumstances, the offenders shall be sentenced for having sexual intercourse with the child or rape against children. When compare between Vietnam Penal Code and that of Sweden about the rape against children, we find it different. The child according the stipulation of Vietnam Penal Code is those below the age of sixteen, in comparison with that of Sweden it is one year higher. Regarding the sexual act against children, Vietnam Penal Code has divides the age of the victim into two levels i.e. having sexual intercourse with a per- See paragraph 1, Section 1, Chapter 6, Swedish Penal Code, (English Version) See paragraph 1, Section 4, chapter 6, Swedish Penal Code (English Version) 18 son below thirteen years of age is considered rape against children whereas in cases where the victim is from full thirteen to sixteen years of age the offender shall be sentenced for rape against children only when the offender has violent act or threat involves to force the victim to have sexual intercourse unwillingly; otherwise if the victim is from full thirteen to sixteen years of age with willingness to have sexual intercourse – the victim agrees to have sexual intercourse, the offender shall sentenced for another crime with the punishment lighter than that for rape against children, which is having sexual intercourse with children stipulated at article 115 Criminal laws in 1999. In contrast, according to the stipulation of Sweden Penal Code about rape against children, the offender shall be sentenced to imprisonment for four years19. If the offender performing the act with the aggravating nature shall be considered in order to increase the punishment. The paragraph 3, article 1 stipulates: “If the crime is gross, a sentence to imprisonment for at least four and at most ten years shall be imposed for gross rape. In assessing whether the crime is gross, special consideration shall be given to whether the violence involved a dander to life or whether the perpetrator caused serious injury or serious illness or, having regard to the method used or the victim’s youth or other circumstances, exhibited particular ruthlessness or brutality”.20(Law 1998:393) Besides, the clause 2 of article 4, chapter 6, Sweden Penal Code also stipulates: “ If the person who committed the act exhibited particular lack or regard for the minor or if the crime by reason of the minor’s youth age or otherwise is regarded as gross, imprisonment for at least two and at most eight years shall be imposed for gross sexual exploitation of a minor”.21 In addition, “New legislation on sexual crimes came into force on 1 April 2005. Among other things, its purpose was to highlight and strengthen protection for children and young people against sexual violation. A new penal provision on child rape, aimed at the most serious sexual crime against children, was introduced. Under this provision, it is no longer necessary to show that violence or threats were used in order for the crime to be treated as child rape. A person who engages in sexual intercourse or in a comparable sexual act with a child under 15 years of age is to be convicted of child rape. The provision also covers cases where children between See article 4 chapter 6, Sweden Penal Code (English Version) Artilce 1, Chapter 6, Swedish Penal Code in 1999, (English Version) Paragraph 3, Artilce 1, Chapter 6, Swedish Penal Code in 1999, (English Version)
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