English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
against children and the offender is sentenced to between 12 and 20 years imprisonment, life
imprisonment or capital punishment.
Forcible sexual intercourse
Article 113 of the Penal Code states that “those who employ trickery to induce persons
dependent on them or persons being in dire straits to have sexual intercourse with them
against their will shall be sentenced to between six months and five years of imprisonment.”
The imposable penalty is increased in the following particular circumstances: (a) being of an
incestuous nature; (b) making the victim pregnant; and (c) committing the crime where the
offenders know that they are living with HIV/AIDS.
Forcible sexual intercourse with children
Article 114 of the Penal Code states that those who have forcible intercourse with children
aged 13-15 years will be sentenced to 5-10 years imprisonment. The imposable penalty is
increased in particular circumstances: (a) being of an incestuous nature; (b) making the victim
pregnant; and (c) committing the crime where the offenders know that they are living with
HIV/AIDS.
Having sexual intercourse with children
Article 115 of the Penal Code states that any adult having sexual intercourse with children
aged 13 up to 16 years will be sentenced to one to five years imprisonment. The imposable
penalty is increased in the following particular circumstances: (a) being of an incestuous
nature; (b) making the victim pregnant; and (c) committing the crime where the offenders know
that they are living with HIV/AIDS.
Obscenity against children
Article 116 of the Penal Code provides that adults who commit obscene acts against children
will be sentenced from six months to three years imprisonment.
As for the crime of rape, one of the circumstances for its commission is that the victim
is in a state of unable to defend themselves. This language is awkward, so it is preferable to
use the phrase ‘unable to give consent’. This shifts the focus from defence to consent, since
lack of consent is the crucial factor in the crime of rape and not lack of defence. Lack of
defence is simply a manifestation of lack of consent.
Recommendation: It is recommended that in relation to Article 111 of the Penal
Code (Rape) the phrase where the victim is ‘unable for self-defense’ be revised to read
where the victim is ‘unable to give valid consent’, thus emphasizing that lack of consent
is the deciding factor in prosecutions for rape and not lack of self defence.
It is also obvious that Vietnamese law rape and other forms of sexual assault focuses
only on the following elements: (a) sexual intercourse, which is the act involved in Articles 111-
115 of the Penal Code; and (b) obscene acts against minors, which is in Article 116 of the
Penal Code. There is no definition or explanation provided as to what ‘sexual intercourse’ is,
and if it includes not only the insertion of a penis into a vagina but also the following acts: (a)
inserting a penis into a mouth or anal orifice; or (b) inserting an instrument or object into the
genital or anal orifice of another person. Further, obscene acts committed against adults are
not penalized.
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General undertakings to eliminate discrimination and ensure equality (Articles 1-3 of CEDAW)