What Article 138 of the Criminal Code Establishes
Article 138 of the Criminal Code of Georgia establishes liability for other acts of a sexual nature — acts which do not contain the signs of the gravest sexual crime provided for by another provision of the Code, but which are committed with violence, with the threat of violence, or by using the helplessness of the victim. The norm protects a person's sexual freedom and is characterised by severe penalties: the range of imprisonment spans from four to twenty years. An accusation under this article is a serious challenge for both the accused and the defence: everything here is decided by the exact establishment of the factual circumstances, which makes the role of an experienced lawyer especially important.
Elements of the Offence
The first part of the article describes the basic composition: an act of a sexual nature which does not contain the signs of the graver composition under other provisions of the Code, committed with violence, with the threat of violence, or by exploiting the victim's helpless state. For the qualification, one of three alternative circumstances must be present: actual violence, a threat of violence, or the use of the victim's helplessness. Both the sexual character of the act and its intentional commission must be proved. The boundary between this article and other sexual crimes is drawn by the corresponding signs in the Code, so the correct qualification of the accusation is often the most contested point of the case.
Sanctions Under Article 138
The law arranges the penalties across four levels, each defined separately:
- basic composition — with violence, threat of violence or use of helplessness — imprisonment from four to six years, with or without restriction of firearm-related rights;
- the same act committed repeatedly, through the use of an official position, by a group, knowingly against a person with disabilities or a pregnant woman, by a person previously convicted of a crime of this category, against a person under the offender's care, guardianship or supervision or against a family member, or causing grave bodily injury or another grave consequence — imprisonment from six to nine years, with or without restriction of firearm-related rights;
- the same act committed knowingly against a minor, against a minor using a relationship of trust, authority or influence, or causing the victim's death — imprisonment from eleven to fifteen years, with or without restriction of firearm-related rights;
- the same act committed knowingly against a person under fourteen years of age, or with special cruelty — imprisonment from fifteen to twenty years, with or without restriction of firearm-related rights.
The System of Aggravating Features
The second and third parts of the article describe the aggravating features in detail: repetition of the act, use of an official position, the group form, the victim's disability or pregnancy known in advance, commission against a dependent person, and a grave consequence. The case moves to the third level where the victim is a minor — particularly where a relationship of trust or influence was used — or where the consequence was death. The fourth level is the harshest: compositions connected with a person under fourteen years of age and special cruelty carry imprisonment from fifteen to twenty years. The failure to prove each of these features returns the case to a lower level, and it is precisely for this reason that verifying them is the central task of the defence.
Defence Work in Cases of This Category
In such cases the evidentiary system is usually built on the victim's statement, medical and psychological-psychiatric expert examinations, electronic correspondence and witness testimony. The defence verifies whether violence or a threat actually existed, whether the victim was truly in a helpless state, whether the accused acted with intent, and whether the qualification itself is correct. Compliance with the procedural rules for obtaining evidence is of exceptional importance: violations in this sphere create grounds for an independent challenge. The lawyer also exercises control over the expert conclusions and ensures the full realisation of the accused's rights at every stage.
Stages of the Case and the Time Factor
A case of this category develops through several stages: acceptance of the statement and initiation of the case, the investigation — appointment of examinations, interrogations, gathering of evidence — and then the trial. At each stage the accused has concrete rights: the right to defence, the right to familiarise with the evidence, the right to refuse to give testimony, and corresponding procedural guarantees. For the defence the time factor is critical: an expert conclusion that raises dispute must be examined precisely at the investigation stage, and the possibility of appointing an additional examination also exists at that time. Because the case is sensitive and demands confidentiality, every consultation and document exchange proceeds under a regime of secrecy — this is part of protecting the interests of the accused and the family.
The Legal.ge Approach
The Legal.ge team works on criminal cases of a sexual nature with maximum care and confidentiality. We analyse every document of the case, verify the qualification, assess the weaknesses of the evidence and build the defence strategy from the concrete circumstances. Contact us — the consultation is confidential and will give you a realistic assessment of the prospects.
One more point deserves emphasis: the boundary between the levels of this article is alive and is drawn only by documentary material. Different interpretations of one and the same episode of violence, threat or helplessness create differences of several years in the penalty, and it is precisely for this reason that the defence assembles every detail — by time, by location, by communication history — into a single chronology which either confirms the version of the prosecution or weakens it. Every stage of such a case demands precision, and it is on this precision that our work is built.