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Sexual Assault

L-attentat għall-pudur bi vjolenza jeskludi reati sesswali oħra bħal stupru jew korruzzjoni ta’ tfal ta’ taħt l-età. Dan ir-reat iseħħ meta min iwettaq ir-reat jagħmel atti vjolenti li jkunu ta’ natura sesswali. Dawn l-atti ta’ natura sesswali mhumiex reati kriminali ta’ natura sesswali li jinstabu fil-kodiċi kriminali.

Għalhekk, ir-reat ta’ attentat għall-pudur bi vjolenza jseħħ meta l-attentat ma jkunx biżżejjed biex jikkostitwixxi korruzzjoni ta’ tfal taħt l-età, jew stupru, jew kwalunkwe reat sesswali ieħor skont il-Kodiċi Kriminali. Għaldaqstant, jekk reat sesswali ma jaqax taħt il-kategoriji ta’ reati sesswali oħra taħt il-Kodiċi Kriminali, tali reat jista’ jiġi kklassifikat taħt attentat għall-pudur bi vjolenza. Il-liġi trid tikkastiga l-att vjolenti u mhux it-telfien tal-purità tas-suġġett passiv.

Facts and information: sexual assault

The elements required for this offence to subsist are 'Lewd acts accompanied with violence' -  this refers to any act that is sexual in nature accompanied by violence, by which the act offends the sense of decency of the victim, and which does not amount to rape. The sexual act does not need to involve either passive or active subject’s genital organs.

With reference to violence, this does not need to be of a high degree of physical or moral violence - what is required is that the passive subject is subjected to something against their will. Examples include pulling down the victim’s skirt, inappropriate touching, and non-consensual kissing.

Such indecent acts need not be committed on the person of the passive subject. There need not be physical contact between the active subject and passive subject. An example would be to undress in front of the passive subject against the latter’s will to the point of offending his or her sense of decency.

Only the generic intent is required, no specific intent is required. Thus what is required is that there is the conscious and free will to commit a lewd act with violence offending the morality of another person. It is no defence for the active subject to plead that although he was aware that his actions were lewd, he did not intend to offend the morality of another person. The fact that he committed the actions with violence is sufficient.

Active subject refers to the offender whilst the passive subject refers to the victim.
Whilst both active and passive subjects may be of any age and either sex. However if the passive subject a minor, the one may also be found guilty of defilement of minors rather than this particular offence.

As with rape, there are a number of aggravations under Article 202 which increases punishment by one degree:

  • When the offender has availed himself of his capacity of public officer, or when the offender is a servant of the injured party, with salary or other remuneration;
  • When the crime is committed by an ascendant, tutor, or institutor on any person under 18 years of age;
  • When the crime is committed on any prisoner by the person charged with the custody or conveyance of such prisoner;
  • When the offender has, in the commission of a crime, been aided by one or more persons;
  • When the offender has, in the commission of the crime, made use of any arms proper.
  • When the person on whom the crime is committed, or any other person who has come to the assistance of that person, has sustained any bodily harm.
  • When the person carnally known has not completed the age of nine years.
  • When the crime is committed on the person of:
    •  the spouse; or
    •  the brother or sister; or
    • A natural ascendant or descendant; or
    • Another person having or having had a child in common with the offender; or
    • Another person living in the same household as the offender or who had lived with the offender within a period of one year preceding the offence; or
    • Another person who is or had been formally or informally engaged with a view to get married; or
    • Other persons who are related to each other by consanguinity or affinity up to the third