prevention and combat rape against children in vietnam and sweden

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 bet

Joint Swedish-Vietnamese Master’s Programme

MASTER’S THESIS

Prevention and Combat Rape against Children in Vietnam and Sweden

:

S UPERVISORS : 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 DuyHung, 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 andProf Bengt Lundell as well as lecturers of the two Universities, University of Law-HCMC and Lund University- Sweden who contribute to the teaching in the Universi-ties and had helped us a lot during the time we were studying in Ho Chi Minh cityand completing the short course in Lund city, Sweden sucessfully

I would lastly have my obligation to all the staff members of the two Universitieswho were in sourse of help and encouragement with which I have surplus materialsuseful for my work, as a result I could finish my thesis on time

Thank you all !

Table of Contents

Table of Contents 2

Executive Summary 3

Abbreviations 4

1 1.1 1.2 1.3 1.4 1.5 1.6 2 2.1 2.2 2.3 2.3.1 2.3.2 2.4 2.4.1 2.4.2 2.4.3 2.5 3 3.1 3.2 3.3 4 4.1 4.2 Introduction 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

Rape against children and the phenomenon in Vietnam and Sweden in recent years 10

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

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 Causes of State of Affairs of Rape against Children in Vietnam and Sweden 31

Prevention and Combat against Child Rape in Vietnam and Sweden 34

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

Proposals and Conclusion 47

Some proposals for improving effective activities in prevention and combat rape against children in Vietnam 47

Conclusion 49

2

Executive Summary

Every day, the world knows how many children are victims of forms of sexualviolation Each such a case happened which is a tragedy for the pain to the childrenand family members Those Infringed acts have robbed away their old poetry andnatural dreams of life and their pain remains refractory throughout the life of thechildren Convention of the United Nations on the Rights of the Child has been

respected and protected against all forms of exploitation and sexual exploitation. AllMember States of the Convention must implement all appropriate measures to ensurethat children are not being violated on sex anywhere in life Therefore, all countries

in the world make efforts to implement variously different measures to preventcriminal sexual violation against children, to protect right to the sexual violationagainst the young best Not outside that target, Viet Nam and Sweden, two countrieshave differences on many fields from economics, culture, society, etc and are alsoconstantly implementing all measures to protect children before sexual exploitationand violation which are on the increase

Therefore, the research for the prevention measures appropriate for this offense issubject to many scholars of both countries concerned In the scope of this work, theauthor concerns and researches the issues related to the outrage of my children andmeasures for prevention of this crime in particular as well as measures to roomcrimes against the sexual violation against children in general in Viet Nam and Swe-den

The United Nation

End Child Prostitution Child Pornography and Traffickinh

1.1

Introduction

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 tion from centralized economy to the level of market economy has been in Vietnamfor the great achievements in economy, society and tourism People's living condi-tions are increased and a high awareness and action in the protection, care and edu-cation of children of the society has strong changes The supervision of child protec-tion by the National Assembly strengthened The United Nations Convention on theRights of the Child Protection Law on the care and education of children are pene-trating into life Living Environment and development of children has been im-proved

transi-However, although the care and education of children in recent years has gainedimportant achievements but the challenges for the protection of children is in the firstplace 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 ficult situations are increasing Social class division, a gap between rich and poor,pressure of an increase in population and disadvantages in the process of interna-tional integration are affecting the child’s development Appear new issues withcomplicated changes difficult to control such as children are mentally and physicallyviolated, children break laws, children are infected with HIV/AIDS, children are ad-dicted with drug and children are trafficked, etc

dif-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 upmore than 50% of cases related to child abuse Doctor Jim Gamble, an expert incombating sexual violation against children via travel and internet, says: “This is anunacceptable number” in which it is worth noticing that mainly rape against childrenalways appears with haigh rate and with an increasing in level with more sophisti-

cated nature In many circumstances, at any place and any time, sometimes cases ofrape against children are serious, intricate and increasing suddenly creating urgentcontroversial among community In the past, this rape situation usually happened inthe thinly populated and remote areas where people were mostly illiterate or theywere with low educational level But nowadays this has happened much even inlarge and developed cities, urban areas and the rape criminals belong to all socialbackgrounds 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 givenwith 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 ofsome appropriate authorities is not an exact figure because in fact rape against chil-dren are one of crimes which has highest implicit rate in Vietnam This is becausethe victim and its family are afraid of reporting crime to the police for fear of makingdirty to their honour Therefore, many cases of crime are not discovered and the of-fenders are not strictly punished Moreover, due to many subjective and objectivereasons 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, bat, and handle with rape against children to minimize the rate of this kind of crime

com-in Vietnam, the author has chosen Sweden for studycom-ing

Sweden is a country locating in North Europe with different geographical, nomical, and social conditions from Vietnam It is one of the countries having de-veloped and stable economy, and people’s living conditions are high Also, this isone of the countries which has a best welfare system, social security and the protec-tion and care of the people Authors wishes to find out measures to combat and pre-vent crimes against children in particular and for sexual infringement against chil-dren in general in Sweden and Vietnam Studying cases in Sweden will help the au-thors to have broader vision in this field to identify solutions for prevention on thistype of crime in Vietnam

eco-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 ofVietnamese 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 thecauses and conditions arising types of crime under this angle specific crimeand fore-cast 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 ofcrimes in Vietnam.

1.3 Purposes for the Study

Based on comparative research in rape against children in Vietnam and Sweden, theauthor tries to find down causes and conditions arising crime, and measures to

prevent and combat in Vietnam and Sweden towards advance and improved theoriesand construct scientific measures to prevent, learning expensive and valuable

experience in preventing and fighting crime of this type from Sweden, applicapleinheritance contributes in preventing and fighting crime in Vietnam Also this is areference 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 inVietn and Sweden and even in over the world Studying the issues of child sexualabuse 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 yearswhich appears quite complicated

However, in Vietnam basically the mentioned works studying issues of child ual violation in general, have not yet deeply studied any particular crime, in specificand isolated circumstance Moreover, there is no any work studied in comparisonwith measures of prevention of this crime with any country in the world Hence, thepresent work studying and comparing the state and measures of prevention and com-

sex-bat rape against children in Vietnam and Sweden is new as compared with the ied works

stud-This is a unique work studying rape agianst children, with the comparison at theinternational level It studies and compares state of affairs between Vietnam andSweden in order to propose new measures for this crime prevention and combat inVietnam

Gen-For the purposes of the present Convention, a child means every human being low the age of eighteen years unless under the law applicable to the child, majority isattained earlier

be-In Vietnam, on the basis of this open regulation, Law of protection, care and

edu-cation for children in 2004 stipulates “children prescribed in this Law are

Vietnam-ese 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 sidered an adolescent Guided by Swedish Penal Code at chapter six stipulates aboutsexual crimes in these cases that children are those below 15 years.3

con-The International Declaration of Human Rights stipulate that “Everyone who wasborn enjoys liberal and equal rights and values” and “Everyone enjoys the rights andfreedom given in this text” The International Declaration of Human Rights not onlyconsiders children those who are enjoyed with the Human Rights but it also providedthem with the protection and special care Rights of the Child are understood as therights that a child possesses, making sure the survival, protection, integration andgrowth of the child The Rights of the Child can be understood more clearly in the

1

2

3

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 lifebetter.4

Recently, cognition on the children and their protective problems are imposed onthe relation with preservation of the human rights in general The child is the ownerand the person who makes a difference Child protection is one of the methods en-suring that children are no longer passive, and dependent, but they are potential togenerate 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 Childprotection 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 earlyTwenty Century mainly focused on preventing children from being exploited eco-nomically and sexually

During 1930s, the Twenty Century, the International Labour Organization (ILO)had passed a series of International Conventions, exposing the world standards on thechild protection firstly i.e the convention on suppression of women and childrentrafficking in 1921

Based on the charter about the Rights of the Child in 1923, the 2004 Geneva laration 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 aposition to earn a livelihood, and must be protected against any form of exploitation.5

Dec-In 1959, the United Nations had passed another Declaration on the Rights of theChild with more advanced and full contents on the spirit that we shall preserve forthem the best things we have Under the ten principles given, the Declaration hasdetermined: 6

They should have rights to register their names since birth and nationality

4 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)

5

6

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 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 ture, their abilities, moral concerns and responsibility to the society in orderthat they can become useful members who serve others

cul-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 beingexploited, or working in hazardous, noxious, and dangerous environmentwhich 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 ests in the issues involving children over the world

inter-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 193countries which are in the favour of this convention However, only United Statesand Somilia did not approve it The present convention consists of 54 articles, themost important world legal text on the Rights of the Child This is one of the worldtexts full of humanity, in which it mentions and determines completely the legality ofthe Rights of the Child progressively on the basic principle that children should beprotected, cared and given with special help

The Rights of the Child in the 1989 International Convention are divided into fourgroups: Rights to live, rights to grow and develope, rights to defend and rights tointegrate 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 chologically

psy-Protect and look after without family members

Prevent from kidnapping and exchanging or trafficking

7 See Acticles 2, 19, 20, 35, 39, 34 of The International Convention on the Rights of the Child

in 1989

-Recover the body and mentality and reunite the society if the victim is the sult of abuse, exploitation, treating inhumanly or being affected by war

re-Protect children from being exploited and sexually abuse

The recognition on a series of the rights of the child belonging to the rights to fend in this Convention reflects centrally and throughout the highly human spirits tothe child These spirits need to be regulated and recognized under the law system ofthe country members, by the stipulation of law the child protection rights are under-taken effectively, ensuring the child to be safe and to grow wholesomely

de-The Rights of the child Under Vietnamese Law

Protection, care and relief to weaker section of population including children aretradition of Vietnamese people Right at the fifteen Century, the Hong Duc Lawscontained a number of clauses and articles assigning the responsibilities of localpeople and government officials to help the handicapped, and poor children, ororphans and drifting children who were without family members to protect and carefor This law also stipulated and executed those who committed adulterous crime,trafficking women and children; commuted or postponed the execution for a womanwho 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 ments of the people: “For the benefits of ten years growing trees For the benefits ofhundred years growing human beings”, “To foster the revolutionary generations forthe posterity is very important and necessary.”

achieve-Following the moral philosophy and tradition of the people and impregnatingideas of the former but first president towards care and foster for the latter genera-tions of the country, our Party and government have paid attention to protection, careand education for children The constitutional principles carry the spirits that chil-dren 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 1989Constitution about the rights of the child on February 20, 1990 After ratifying,Vietnam has started deploying to perform the convention, gradually forms and com-pletes the laws regarding to the child protection In 1991, the Congress passed twoseparated acts about the rights of the child i.e Protection, Care, and Child EducationAct and Elementary Universalized Education act Hence, the latter, Vietnam laws

8 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, careand education for children more popularly and effectively Rights of the child arestipulated systematically from constitutional principles to framed regulations in theProtection, care, and Child Education act, Law on marriage and family, Criminallaws, Labour laws, Education laws, etc.

The current texts not only recognize the protection rights but they also determineand establish mechanism to ensure the performance of those rights, and to assignresponsibility to members of the society, offices, organisations, and the state in theprotection and care for children

- The 1992 Constitutions which have been reformed and supplemented in 2001 areone of the highest legal texts, which are constitutional to recognize human rights, inaccordance with the citizen rights Thereby, the first sacred rights to children areright to live, right to exist, right to be cared for and brought up This is the legal textreflecting centrally the regulations on the rights of the child and putting legal founda-tion for the child protection supported by laws.9

Protection, care and education for children laws in 2004 (being replaced by thesame laws in 1991) stipulate on the legal status of the child, legal responsibility ofthe family, school, the government and the society in the protection, look after andtraining the child The law particularly stipulates the prohibited behaviour towardsconcretization to make the basis for measures to handle those whose behaviour vio-late the rights of the child, ensuring for the child to live in a safe and healthy envi-ronment and to grow Among these laws, non-violation of sex is recognized andprohibited “Seduction, cheat, direction, hiding and forcing the child into prostitutionactivities, and sexually encroaching the child, etc.”10 In order for the child protec-tion, care and education rights to be effective, it stipulates the responsibilities of thegovernment authority offices from the centre to the locality, the offices including11:

- The government agrees on the state control about the child protection, care andeducation

- Population Committee, Family and Children help the government undertake thestate administration appropriately on the child protection, care and education in ac-cordance with its function, duty and authority; chairman, coordinate ministries and

9 See article 50, 40, 63, 35, 36, 59, 65, 67, Constitution in 1992, reformed and supplemented

in 2001

10

11

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

offices at ministry, government offices, Vietnamese Fatherland Front and its bers in the deed.

mem The Ministry of Education and Training, Ministry of public health, Ministry ofCulture and Information, Sports Committee, Ministry of Labour, War invalids andSocial welfare and other Ministries, Related Departments perform the state adminis-trative function on the child protection, care, and education assigned by the govern-ment

- People’s committees at all levels implement the same rights assigned by thegovernment

Besides, other regulations related to children, and their rights are stipulated inother 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 consideredSwedish Constituions, including: the Instrument of Government; the Freedom of thePress Act andthe Fundamental Law on Freedom of Expression

To protect human rights is issues firstly concerned and recognized in the first twochapters of the Instrument of Government.The first of all stipulates that the

government authority should equally ensure people’s values, freedom and dignity aswell 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 theyare 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 garding issues of child protection such as The UN Protocol to Prevent, Suppress andPunish Trafficking in Persons, especially Women and Children; the ILO Convention

re-on the Prohibitire-on of the Worst Forms of Child Labour and Immediate Actire-on fortheir Elimination; with its optional protocol onchild trafficking, child prostitution andchild pornography

The articles concerning protection and care for children in Sweden are stated inthe Social Service Act, the Care of Young Persons, the Health and Medical ServicesAct on care Moreover, Sweden has special provisions to closely test preschools,schools and individuals involving in these

12 See Huma Rights in Sweden, http://www.manskligarattigheter.se/extra/pod/

In March 2008, the Government presented a Communication to the Riksdagentitled Child policy – a policy for the rights of the child The Communicationpresents 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 ernment always has prior policies in protecting the rights of children and upgradingand further improve them

Gov-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 Binhclaims that these evils in fact directly attack fundamental human rights: right todetermine 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 dren is one of the most serious crimes of child sexual abuse Rape notion is under-stood as common rape in which the victim is an adult recognized in the article 111 of

chil-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 aperson who commits rape against children from full thirdteen years of age to sixteenyears of age is sentenced between seven and fifteen years of imprisonment In anycaces, having sexual intercourse with a child under thirdteen years of age is con-victed as rape against children, according to clause 41 article 112

13

14

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

15

Clause 1, Article 111, Vietnam Criminal Law in 1999

Signs of rape against children are basically similar to a rape case in which a tim is an adult in accordance with the stipulation in article 11116 However, rapeagainst children has its own sign about the age of the victim, for a victim from full 13years to below 16 years having sex with who is determined as one’s unwillingness.

vic-In case where a victim under 13 years, whether the victim is willing or not willing tohave sex, a offender is still accused of criminal responsibility for rape against chil-dren This is so because according to law makers under the age of 13, the child isextremely young, unable to express the right will, easily being lured, attracted, per-suaded, and suborned, unable to self-defend, hence, it is necessary to protect thechild especially, ensuring their normal and healthy development and violating behav-iour regarding child abuses must be seriously punished

Regarding the aggravated crimes framing the criminal responsibility for thesekinds of crime the clause 2 stipulates: “Committing crimes in any following cases theoffender would be sentenced to imprisonment at least twelve years and at mosttwenty years: incestuous behaviour, making the victim pregnant, causing harms tothe victim’s health with an infirmity rate between 31% and 60%; Against a personwhom the offender has the responsibility to look after, educate or medically treat;dangerous recidivism” Clause 3 stipulates: “Committing crime in one of the follow-ing circumstances, the offender shall be sentenced to imprisonment, from twentyyears, of life term imprisonment or capital punishment: in a well organized manner,more than one person rapes a person, committing crime more than once, committingthe crime against more than one person; causing harms to the victim’s health with aninfirmity rate 61% or higher; committing the crime though the offenders know thatthey are infected with HIV; causing dead to the victim or causing the victim to sui-cide 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 capitalpunishment.”

Hence, we find the punishment assigned to rape against children is divided intodifferent 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 111the punishment for rape against children under article 112 is much higher than thatunder article 111, this shows that the Vietnam government’s attitude is to punishstrictly rape against children

16 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, den Penal Code in 1999 including 13 articles The rape notion is regulated at para-

Swe-graph 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 hav- ing regard to the nature of the violation and the circumstances in general, is compa- rable 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 citation shall be regarded as equivalent to violence ” 17

incapa-Regarding to the above stipulation of the Sweden Penal Code, we can understandthat rape concept is the case that a person (male or female) by forces or threaten us-ing forces immediately causing harm to another in order to force that person to havesexual 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 whoare 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 ing he or she is responsible, or for whose care or supervision he or she is responsible

upbring-by decision of a public authority, shall be sentenced for sexual exploitation of a nor 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

mi-According to the stipulation of Sweden Penal Code, involving the victim is belowfifteen years of age, in any circumstances all the acts of having sexual intercoursewith those are considered illegal, regardless whether the offenders by violence toforce the victim to have sexual intercourse Under such circumstances, the offendersshall be sentenced for having sexual intercourse with the child or rape against chil-dren

When compare between Vietnam Penal Code and that of Sweden about the rapeagainst children, we find it different The child according the stipulation of VietnamPenal Code is those below the age of sixteen, in comparison with that of Sweden it isone year higher Regarding the sexual act against children, Vietnam Penal Code hasdivides the age of the victim into two levels i.e having sexual intercourse with a per-

17

18

See paragraph 1, Section 1, Chapter 6, Swedish Penal Code, (English Version)

See paragraph 1, Section 4, chapter 6, Swedish Penal Code (English Version)

son below thirteen years of age is considered rape against children whereas in caseswhere the victim is from full thirteen to sixteen years of age the offender shall besentenced for rape against children only when the offender has violent act or threatinvolves to force the victim to have sexual intercourse unwillingly; otherwise if thevictim is from full thirteen to sixteen years of age with willingness to have sexualintercourse – the victim agrees to have sexual intercourse, the offender shall sen-tenced for another crime with the punishment lighter than that for rape against chil-dren, 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 againstchildren, the offender shall be sentenced to imprisonment for four years19 If theoffender 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 considera- tion 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 sex-ual 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 dren and young people against sexual violation A new penal provision on child rape, aimed at the most serious sexual crime against children, was introduced Un- der 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 sex- ual intercourse or in a comparable sexual act with a child under 15 years of age is to

chil-be convicted of child rape The provision also covers cases where children chil-between

19

20

21

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)

the ages of 15 and 18 are exploited by people with whom they have a close ship or other persons with special responsibility for them” 22

relation-Hence, if compare between the punishment for rape against children under theSweden Penal Code and that of Vietnam, we find that the punishment stipulated un-der Vietnam Penal Code is much higher

The stipulation of criminal laws of Vietnam, the punishment for rape against dren is divided into three frames: the first frame has the punishment from seven tofifteen years of imprisonment; the second from twelve to twenty years; and the thirdfrom twenty, life term of imprisonment or capital punishment Moreover, in cases ofhaving sexual intercourse with a person below thirteen years of age are consideredaggravating nature and the offender shall be sentenced to imprisonment from twelve

chil-to twenty years, life term imprisonment, or capital punishment, along with the plemented punishment that the offender is prohibited to be in charge of posts, career

sup-or wsup-orking at least from one year to five years.23

Hence, the punishment for this crime is at least seven years of imprisonment and

at most capital punishment Interestingly, there is no death penalty for this kind ofcrime in Sweden Law as compared to that in Vietnam

In view of aggravating nature of the crime committed there are differences tween the two According to article 112 laws list particular different aggravating cir-cumstances While, article 1 and 4 chapter 6 of Sweden Penal Code only stipulateabout the aggravating signs, without listing significantly as is the case of Vietnam

be-2.3

2.3.1

Legal Characteristics of Rape against Children

Components of Rape against Children

- Subject: under the stipulation of Vietnam criminal laws subject of the crime is

individuals who are competent for criminal responsibility and reach the age offourteen or older assigned by criminal laws and have performed violent crime24 Forrape against children, the subject is the same as that of the general crimes and thelaws do not have any particular stipulation on this kind of crime However, there aremany different points of view about the subject of rape case in general and rapeagainst children in particular according to article 111-Criminal laws in 1999

The first viewpoint says that the subject of rape case is the exceptional one andcould only be male and the victim is a female Because they say that, starting from

22 Page 10 in National Action Plan for Safeguarding Children from Sexual Exploitation, by Göran Hägglund, http:// www.sweden.gov.se/publications

23

24

See Article 112, Vietnamese Criminal Law, in 1999

See article 12, Vietnamese Criminal laws in 1999

characteristic creator along with the physiological structures as well as physiologicalmechanism function of male and female, only male can perform rape act In con-trast, due to the structure of private parts, female can never perform successfully thesexual intercourse if male is not willing to do so Nonetheless, another viewpointsays that the subject of rape case can be anyone, either male or female This view isbased on the stipulation in the law “whoever…” therefore researchers claim that fe-male can possibly be the subject of rape case or rape against children.

In view of the reality as so far, all the cases of rape in general and rape againstchildren in particular in Vietnam which is being judged have no cases in which thesubject of the offender is female This demonstrates that the first viewpoint with theclaim that the subject of rape against children is exceptional – can only be male isfundamental However, through the survey of the present situation, the reality is thathomosexual relation has appeared recently in Vietnam society, especially for gaymale can be the subject of the rape case, and the victim can be male too, particularly

in case of rape against children For an adult male can use materials, sweet speech topersuade a young male, even forcing him to have sexual intercourse, threaten him tohave homosexual relationship These forcing and lure behaviours can be composed

of rape against children

However, according to the Sweden Penal Code, the subject of rape in general andrape against children in particular may either be male or female25 and the victim alsocan be either male or female The age responsible for punishment is full fifteen years

or older when performing the violent crime, “no sanction shall be imposed upon aperson for a crime committed before attaining the age of fifteen”.26

- Object: the object of the offender is relation defended by criminal laws Object

is one of the four factors composing a crime We can say that, the object of the rapeagainst children is what laying under the group of child sexual abuse and rape ingeneral That is inviolatable right of the child (A child is one under sixteen years ofage according to Vietnam Criminal Law, but guided by Sweden Penal Code it is un-der fifteen years of age)

- Objective points of view: “Objective points of view of violent crime are its

ex-ternal appearance, including manifestation of the offender displaying or existing side the objective world.”27

out-25

26

27

See Preface of Sweden Penal Code in 1999, English version

See Article 6, chapter 1, English version of Sweden Penal Code in 1999

Page 91of Vietnam criminal law Curriculum– volume 1 Hanoi University of Law –

People’s Police Security Press – Hanoi 2006

Rape against children is one’s act by violence or threat using force or taking vantage that the victim is unable to self-defence or using other methods to have sex-ual intercourse with a person below sixteen years of age.

ad-Signs of rape against children according to the Vietnam Penal Code are basicallysimilar to that in which the victim is an adult stipulated at article 111, Vietnam PenalCode in 199928

Characteristics of objective points of views of crime include the following:+ Acting by force: Acting by force is how to do or manage so that the victim has

to let the offender have sexual intercourse such as wrestling, keep the body not moving, shutting somebody up, fastening,

beating, etc these behaviours are to make the harmed person unable to defence so that the offender easily performs the sexual

intercourse in case if the result of rape leads to the death of the victim, the offender is sentenced for killing.

Article 1, chapter 6 of Sweden Penal Code stipulates: “causing helpless or a similar state of incapacitation shall be regarded

as equivalent to violence”

+ Threat by using force: Threat by using force is one’s act using one’s words or one’s action to overwhelm the other’s

men-tality, making the threatened person frighten such as threat of killing, threat of beating, so that the harmed person fells frighten

and unwillingly lets the offender have sexual intercourse driven by his will.

Article 111 of Vietnam Penal Code does not stipulate the imminent threat by using violence, thereby we can understand

that it includes imminent threat by using force as well as threat using force latter 29

But article 1, chapter 6 ofSweden Penal Code stipulates threat by violence must be immediately committedcrime.30

+ Taking advantage on the state of incapacitation: Taking advantage on the state

of incapacitation is that for any reason the victim falls into the state of helplessness

or similar state of non-self-defence on which the offender takes advantage to rapeagainst that person

According to the advocate lawyers of Vietnam, this situation may be the offenderhimself creates for the victim in order to perform sexual intercourse with the latter.However, it may be the case that the victim falls into the state of incapacitation due

to other objective points of view without involving the offender, but he takes thatadvantage to have sexual intercourse with the victim without her will

+ Act by other means: other methods are one which are not mentioned above i.e by

violence, threat using force, taking advantage on the state of incapacitation Thesemethods may be attraction, persuasion, cheating, using sweet words or materials tolure and tempt child victims or the act that giving aphrodisiac to the victim in order

to perform sexual intercourse

28

29

30

See article 111, Vietnamese Criminal Law, 1999

See Article 111, Vietnamese Criminal Law, 1999

See Article 1, Chapter 6, Swedish Penal Code, in 1999, English version

+ Sexual intercourse without one’s will: when examining these signs according to the

stipulation of Vietnam Penal Code, we need to examine the victim’s age Regardingthe victim from full thirteen to below sixteen years of age, it is necessary to deter-mine the sexual intercourse without one’s will, then the offender shall be accused ofcriminal responsibility for rape against children In case where the victim is belowthirteen years of age whether the victim agrees or not, the offender is still accused ofcriminal responsibility for this crime It means regardless “the signs of the victim’sunwillingness” as in case where the victim is from full thirteen years of age or older.Meanwhile, according to the stipulation of Sweden Penal Code as mentioned, all theacts of sexual intercourse with a person below fifteen years of age shall be consid-ered illegal, regardless whether the offender by violence to force the victim to havesexual intercourse Such cases, the offender shall be sentenced for having sexualintercourse with children or rape against children

- Subjective points of view: Subjective points of view are internal signs of the

crime manifesting psychological attitude of the committing person towards his lent behaviour and the consequence generated by one’s violent crime Acording toviewpoints of the Vietnam advocates rape in general and rape against children inparticular is performed intentionally- it is committed by intention but not otherwise

vio-2.3.2 Consequences created by rape against children

Regarding the nature, rape against children is one of the extremely serious crimesstipulated in the criminal laws of Vietnam and Sweden and is the most serious crime

of child sexual abuse, molestation and rape

Consequences of the crime are very serious and gross both physically and tally Its impact is usually lasting for the whole life of the victim, even threatens tothe victim’s health and life Regarding the mental, those who are raped must surferfrom complex impression, discriminative attitudes, being abandoned by the commu-nity, the children fall into the shocking, scare, ashamed states, they live complexly,and do not want to communicate with anyone, their health is decreased, feel beinglooked down, abandoned, want to commit suicide However, these may have differ-ent impacts on children in different cultures i.e Vietnamese and Swedeish cultures

men-In Vietnam, due to the influences of Oriental cultures which are very strict, in manycases, children feel so inferiority complex that they leave their schools, seriouslyinfluencing their healthy development and normal relation with the community.Physically, children are easily infected with diseases spreading through sex organs,many are pregnant, even pregnant more than once so that they have to make an abor-tion, which influences seriously their health, their reproductive ability as well as get-ting marriage later Many circumstances throw the child into social evils such asdrugs, prostitution, etc

Besides, the government has to spend a large amount of money on expenditure forinvestigation, prosecution, judging activities of this kind of crime We must preservelarge expenditure on medical examination, treatment, improving both mental andphysical for the victim For the society, the evils of child sex abuse in general andrape against children in particular make the moral values and national cultural tradi-tions erode, tread on human rights of children, and negatively impacts on the soci-ety’s order and security The worst thing is the infection of HIV/AIDS influencingthe national race, and deteriorating the country’s future.

Vietnam is situated in the east of the Indochinese Penisular with the area of 331.114

km2, in the north it shares the same border with China, in the west with Laos andCombodia, in the east with the sea, in the southeast with the Pacific Ocean Theweather is tropical and monsoon

Vietnam has about 80 million of population with 54 ethnic groups in which themajority of the population is called “người Kinh” and the official language is Viet-namese There are many religions in Vietnam but only some are prominent, i.e.Buddhism, Christainity and Confucianism

Vietnam is one of the countres following socialism governed by CommunistParty, people living in peace and stability At present it has 64 provinces and cityand its capital is Hanoi

Ronnovation “Đổi mới” has been initiated since 1986 which brought about siderational achievements of the economy of Vietnam With an increase in econ-omy, living condition of the people is improved considerably In 1995, Vietnambecame one of the members of ASEAN, and in 1996 a member of WTO These areadvantages which make Vietnam develop it economy and trade as well as integrateinto the region and the world

con-Nowadays, Vietnam economy develops in many sectors, from public to privatesector, attractive to foreign investment, export and international tourists Industryand agriculture continue to develop and stabilize According the World bank’s re-port, November 19, 2004, rate of increase in economy is about 7,2%, rank the fourth

in the world Main products for exporting are rude oil, garments, seafood, rice, fee, etc Its per capita income in 2003 was $ 485

cof-However, generally Vietnam is one of the poorest countries in the world, the nomic structure is still mainly agricultural development, people's intellectual level is

eco-low, the majority, with the influence of cultural background of the East which ismuch backward wiht factors influencing direct to many areas of the society, espe-cially the exchanges and integration of the country with the world today.

Sweden is located in the Scandinavian Penisular of North Europe, with the sameboder with Norway in the west, with Danmark in the south, and with Poland in theeast It has the area of 450 km2, ranking the fifth in the world One fourth of the area

is plain and midland and more than half of its area is surrounded by high forest.Sweden has a coast long 2.700 km Its big cities and centers are mainly in the southwith the capital known as Stockholm Gothenburg and Malmo are big cities of Swe-den with the population of 262.000 At present, Sweden has high rate of immigrants,around 10% mainly from Asia

About 94% of the population follow Adventism belonging to religious sect of ther and 1,5 % are christains, 1% Pemecost and others 3,5% Most of the populationare literate.31

Lu-Sweden is one of the countries has the oldest democracy in the world with tutional monarchy It has been independent more than two hundred years Its econ-omy highly develops with per capita income of $29.800 The economy concentrates

consti-in highly technical consti-industry, consti-informational technology and medical and biologicalscience Main products for export are electrical goods, computers, machines, chemi-cals, medicine, steel, wood products and food

Hence, Sweden is one of the countries which have the best system of social fare in Europe The prosperity of Sweden is equally distributed among its people inthe form that there is no other European country has The system of social welfare

wel-is so rich and surplus that everybody in Sweden enjoys system of school, system ofhealth and medical care, system of health and medical care for old people funded bythe government Hence the longevity, living condition of a person and per capitaincome in Sweden are highest in the world

2.4.2 Real State of Rape against children in Vietnam and

Swe-den

Along with a general increase in many types of crime in the country, the state ofsexual violation to adolescent in general and rape against children in particular inVietnam is more and more complicated During 1980 – 1985 a number of sexual

31 An overview on Sweden country, (Khái quát chung về đất nước Thụy Điển) http:// www Hoinhap.gov.vn