Murder and Sexual Assault: Key Elements & Classifications
Murder – Article 139 CP
Legally Protected Right: Life.
Perpetrator: Any person who kills.
Victim: Any person who dies.
Typical Behavior: The result is the same as murder (death of a person), but in this case, the action is performed by means that are especially dangerous or evil.
Circumstances Qualifying Murder:
- With malice
- For payment, reward, or promise
- With malice, deliberately and inhumanly increasing the pain of the offended.
Homicide Common Elements:
- The occurrence of any of the circumstances of No. 139. Unlike homicide, murder. But both offenses have some common characteristics. So apart from the equality of the legally protected (life), subjects match assets and liabilities, the material object and the problems of causation.
- In the subjective exists, however, one fundamental difference: while in the commission include reckless homicide, not murder can be committed recklessly and that the nature of the circumstances of section 139 is opposed to this idea
- Even in the murder may be the commission by default, the conduct must be accompanied by at least one of the circumstances referred to article No. 139.
But this does not mean that murder is merely a qualified homicide. Actually, murder is a separate crime, homicide independent and autonomous, so that those circumstances are elements of crime with its own regime.
The Participation
The second circumstance Art No. 139 (for hire, reward or promise) is the concurrence of at least two people. First, the consumer pays the price, grants or promises of reward and, secondly, who accepts such offer and decides, based on her conduct directly the fact.
Both are responsible for murder, and that offered the reward is always a participant in the act committed by the person receiving it. The intervention of paying or offering the reward in the act committed by the other can be described as participation in the killing or induction of necessary cooperation, but the fact as such only affects, being of a personal nature, which kills by price , reward or promise.
The circumstances qualifications of art º 139, when they function as elements of the offense of murder, must be met, therefore, the author strictly, ie that kills.
Participation in each one to respond to the circumstances which are liable to each.
Sexual Assault
Basic Type: Art # 178 CP
“Which seeks to undermine the sexual freedom of another person through violence or intimidation shall be punished as sexual assault charge….”.
Target Type:
Conduct Typical:
- Attack against sexual freedom
- With violence or intimidation.
Subject:
Any
Subjective Type:
DOLO
From this base rate excluding sexual intercourse.
Qualified Type of Sexual Assault: Art # 179 CP: Rape
“When sexual assault is to carnal vaginal, anal or oral, or introduction of bodily members or objects for any of the first two routes, the offender shall be punished as guilty of rape”
The 1999 reform has re-introduced in the Criminal Code the concept of rape, treating it as a special qualified course sexual assault, characterized by:
- Access carnal-vaginal, anal or oral.
- Introduction of bodily members or objects for anus or vagina.
Before the 1999 reform, the woman could not be considered biologically as guilty of rape. With the replacement of penetration by sexual intercourse and consideration of the term introduction of bodily members or objects opens the possibility for women to be active participants in the crime of rape.
Unqualified Type of Sexual Assault: Art 180. Aggravating Specific:
- Violence and intimidation degrading or humiliating.
- Perpetrator: More than two people
- Victim especially vulnerable (and in any case where under 13 years).
- Préval on kinship relationship of superiority or
- Use of weapons or dangerous means.