Lawyer Daria Lopashenko about sexual abuse and self-defense
Material prepared: Maria Servetnik
A new round of discussion of the case of Tatiana Andreeva, the champion of Russia in powerlifting, sentenced to 7 years in prison for murdering a man who tried to rape her, was launched in society. Elena Pogrebizhskaya will make a documentary film about the girl who is serving a prison sentence, and the crowdfunding campaign to raise funds for the shooting ended prematurely - more than three million rubles were collected in a week.
The situation has once again worked as a litmus test for clarifying attitudes in society: comments on violence in general sound the most polar and often incompetent, while others around you have an opinion on whether the girl is guilty or not. But few people can clearly explain how the law looks at rape and self-defense. We asked the lawyer Daria Lopashenko about how a woman can resist violence and where the limit of necessary defense from the point of view of Russian legislation ends.
Daria Lopashenko lawyer
The case of Tatiana Andreeva is not the first high-profile criminal case related to the necessary defense in an attempt to rape. About ten years ago, the public and academics hotly discussed the case of Alexandra Ivannikova, who was first convicted of murder (albeit in a state of affect) S. Bagdasaryan, who had attempted rape against her, and then, under public pressure, was acquitted.
Externally, the affairs of Ivannikova, Andreeva, and many others seem similar. Why, in some cases, the court recognizes the right of the victim to the necessary defense and justifies it, and in others - condemns it? The fact is that in order to prove that the killing of the assailant was a necessary defense, it is not enough to bring evidence that the assailant wanted to rape the victim. It is necessary to prove that he infringed not only on her sexual freedom, but also on her life.
Currently, the Criminal Code of the Russian Federation actually provides for two types of necessary defense. The first one is unconditional, connected with encroachments on a person’s life: if the initial violence creates a danger to the life of the defender or contains a real threat of such violence, then even the killing of the assailant cannot be considered a crime. To put it simply, if you are trying to be killed — precisely to kill, and not just harm your health — then you can answer with the death of the attacker and your actions will not be recognized as a crime. Of course, only if you can prove that the attacker was trying to take your life. Evidence may be, for example, the use of weapons or damage to vital organs.
It is very difficult to prove that the threat to life took place and could be carried out.
In cases of necessary defense in the event of rape, as a rule, this is not an attempt to cause death, but the threat to do so by the perpetrator. Such a threat can be the basis for the necessary defense - killing the attacker. However, in reality, it is very difficult to prove that this threat has taken place and could be carried out. As a rule, this is precisely the reason for the emergence of numerous high-profile cases of the excess of the necessary defense in the event of rape.
The second type of necessary defense depends on the nature of the initial encroachment: if it does not create a danger to the life of the defender, then the necessary defense must correspond to the character and danger of the attacker's actions and cannot exceed them. Rape in most cases does not contain such violence, which is dangerous for life, and not for the health of the injured woman. Therefore, more often than not, in order to justify a woman who has harmed a rapist, it is necessary to prove that the actions of the defender did not create more harm than rape itself could have created. Deciding on the presence or absence of the necessary defense in such cases, the court actually weighs two encroachments: the initial attack and the subsequent defense. If defense is harder than the attack itself, then it cannot be considered necessary.
In cases of rape, everything is decided depending on the circumstances of the particular case. As a rule, causing grievous bodily harm is considered a necessary defense. Specific qualifications often depend on how much the victim can prove the fact of the initial assault, as well as its limits. The use by the perpetrator of a weapon, injury to the victim’s health, her abduction or restriction of her freedom may indicate the seriousness of the attack.
Responsibility of the rapist is also provided for by the Criminal Code - Articles 131 (“Rape”) and 132 (“Violent acts of a sexual nature”). Their sanctions are the same. In the case of the usual infringement without aggravating circumstances, the punishment will vary from three to six years in prison. If the rape was committed by a group of persons, then the punishment can reach ten years. In the event of causing the victim death by negligence, the guilty person may be sentenced to a term of up to twenty years in prison. All these situations, in fact, run into proof, that is, not so much in criminal law, as in the criminal process.
Photo: cover photo Women's aid act