TO THE QUESTION OF THE NECESSARY DEFENSE IN CASE OF RAPE
Saint Petersburg university of the Ministry of internal affairs of Russia, (Saint Petersburg, Russia), Professor of the Department of Criminal Law, Doctor of Law, Associate Professor.
In this paper, analyzes the content of article 37 of the criminal code of the Russian Federation (“Necessary defense”). At the same time, the author relies on two groups of signs of the legitimacy of necessary defense developed in the doctrine of criminal law: signs related to socially dangerous encroachment and signs related to defensive actions. Special attention is paid to the proportionality of the defensive actions of the defender to the public danger of an assault during rape. In judicial practice, many questions arise concerning the legality of the necessary defense in repelling the mentioned crime. The reason for this state of affairs lies in the lack of evidence of the nature of violence when the sexual freedom of the victim is violated. The victim can not always objectively determine whether there is a threat to her life or health in such an attack with a non typical public danger. On the basis of the considered specific court decisions, gaps in the criminal legislation related to the research topic are identified. At the same time, the author offers a solution aimed at overcoming them.
self-defense; rape; proportionality; public danger of an encroachment.