September 15, 2023
Ukraine’s leniency towards sexual assault is irreconcilable with our nation’s European aspirations
A recent crime in the Zakarpattya region of Ukraine has proven once again how prevalent the problem with punishment for sexual violence is in the Ukrainian legal system.
On August 24, three teenage boys aged from 14 to 15 encaptured a young girl, physically assaulted her and committed sexual acts against her. The crime was also shot on video for the purpose of blackmailing the victim afterwards.
Questioned by the police, the girl stated that she was raped. Later, during the trial, her testimony was challenged with the medical expertise results and the prosecution altered the indictment.
“We received a conclusion of a court approved medical expertise, which didn´t show any signs of rape taking place. But the fact of the sexual assault without penetration was still quite in place” said Kateryna Hyzhnyak, the representative of the Zakarpattya prosecutor´s office in a interview with Suspilne magazine.
To be precise: the materials of the case state that the girl’s hymen was found intact – and this the prosecutor interpreted as a proof that the girl could not have been raped.
The wording used in the statement is vitally important, because the Criminal Code of Ukraine lists rape and sexual assault as two different crimes, carrying radically different punishment.
While article 152 of Ukraine’s Criminal Code states that “rape conducted by a person or a group of persons” is punished with up to 12 years of imprisonment when committed against a minor, the teenagers were charged under article 153 for ‘ Violent unnatural gratification of sexual desire’ which carries just 3 to 7 years of imprisonment in regards to minors.
These three sexual predators sleep soundly in their beds — the court sentences them to five years’ probation time.
In Ukraine, probation is called a “umovne pokarannya”. It is, simply put, a period of time assigned by the court during which the accused prove their “improved behaviour” – if the sentenced person does not commit the crime again, the punishment will be dropped, without the perpetrator ever seeing the inside of the prison cell.
In this case, probation means also that the girl will continue to live in the same town, go to school and encounter her assaulters in her everyday life.
The court had taken into account the reported positive characteristics of the defendants by their family with one mother stating how her son had “never shown an inclination to illegal actions” alongside the fact that they had all “repented” and “admitted their guilt.”
While the community supported the perpetrators, the girl did not have a lawyer in court, she was represented by a local service concerning the issues involving children, in which, according to a Ukrainian Magazine Bukvy, one of the assaulters mother is a secretary.
This is not a one-off situation – what happened in Zakarpattya is not a blatant miscarriage of justice but a significant part of Ukraine’s judicial line which is not challenged by the government in Kyiv.
For example: In April of 2020, a court in Uzhgorod sentenced a member of the military to five years’ probation time after, under the influence of alcohol and drugs, he held an underage woman captive and sexually assaulted her — “without penetration.”
According to the BBC, since Article 153 was introduced in 2019, a majority of assaulters prosecuted under its specified wording received imprisonment but a third of convicts were released from prison.
Lawyer and women’s rights advocate Khrystyna Kit exemplifies numerous people in Ukraine who are campaigning against sexual assault charges being effectively dismissed on the “trial period” basis.
Furthermore, in a recent Facebook post, Kit argued that the courts should be barred from taking under consideration the behaviour of the accused.
“Even exemplary students, quiet and polite people can commit sexual assault and it should not affect the punishment, considering the consequences this crime has,” argued the head of Ukrainian Women Lawyers Association, “JurFem”.
Tragically, the person leading the committee tasked with reforming the Criminal Code, Professor Mykola Havronyuk, has completely opposite views.
Interviewed by the BBC, Havronyuk rejected the idea that sexual assault could be excluded from probation sentencing – like is the case in regard to corruption, where the rules were changed a couple of years ago, so it is not possible for the court to sentence people found guilty of corruption to “trial period”. According to Haveonyuk, it would result in “too harsh” a punishment.
“It’s one thing when there is penetration into the body, it’s another when there is not. Even when there is penetration, there are many aspects: intensity, group mode of action or one person, even certain provocative behaviour of the victim must be taken into account, who first says that she seems to want [sexual relations], and then changes her mind.”
He also went on to express support for the Zakarpattya case ruling stating that “In this situation, I am more inclined to defend this judge than to be outraged by this decision.”
One does not really explain why court decisions like these mentioned above and statements like what Havrenyuk said create an unsafe environment. The message is clear: in Ukraine, the future of the assaulters is more important than the suffering of the victims. And: corruption is a serious crime, but imprisoning, sexually assaulting and blackmailing underage girls is, uhm, not that much.
As a young Ukrainian woman, I’m appalled and shocked. Is this truly the kind of European mentality we as a country want to present to the world?