English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
Institution and termination of particular cases
It is suggested that rape and forcible sexual intercourse be taken off the list of crimes in Article
105 of the Criminal Procedure Code that can only be instituted at the victims request. An indispensable
measure to accompany this is putting in place specific procedures on handling victims
of rape, forcible sexual intercourse and other forms of sexual abuse. These procedures must be
victim-friendly, including measures to protect safety and privacy and to address other needs such
as medical treatment, counselling, legal assistance and rehabilitation. Procedures must also provide
counselling and advice to family members of the victim.
Confrontation
Article 138 of the Criminal Procedure Code provides that investigators will conduct confrontation
if there are contradictions in the statements of one or two persons in the course of their investigation.
In cases of confrontation, it is suggested that the Criminal Procedure Code require that
due diligence be exercised to ascertain the condition of the victim first. Where the victim is experiencing
trauma or fear on account of the alleged offence, alternatives to face-to-face confrontation
must be considered. They might include measures to separate the parties such as putting
them in different rooms or using screens to shield one party from another, as well as allowing the
presence of persons to support the victim.
Body searches and body examination
Articles 142 and 152 of the Criminal Procedure Code state that, in conducting body searches and
examination of the body for traces of matters significant to the case, the search/examination of a
person must be conducted by someone of the same sex and before a witness of the same sex.
It is recommended that the code be amended to specify the responsibility of the police officer or
examining physician to guarantee privacy in cases of examination. The code should provide that
it is the duty of the police officer or examining physician to ensure that, except for those who are
authorized to do the examination or reasonably expected to be present (for example, police
escorts of the same sex in cases of the accused), only persons expressly authorized by the person
being examined are allowed in the room where the examination is being conducted.
Custody
It is recommended that, in the case of pregnant women or a woman requiring special assistance
(for example, a woman suffering from serious illness), the period for custody in Articles 86 and
87 of the Criminal Procedure Code be shortened; that is, shortening the time for sending the custody
decisions to the procuracy and the maximum time of custody. Such cases should be given
priority in the determination of the lawfulness of the custody.
Non-execution of the death penalty
Article 35 of the Penal Code provides that the death penalty does not apply to women who, at the
time of committing crimes or being tried, are pregnant or nursing children aged up to 36 months.
In these cases, the death penalty must be converted into life imprisonment. This is reinforced by
Article 259 of the Criminal Procedure Code and Paragraph 3 of the Resolution on Penal Code.
With policies now focusing on encouraging fathers to participate in the care and rearing of their
children; and there are accused mothers who are non-nursing or replacing breast milk with milk
substitutes before their children reach the age of 36 months, a continuous review of the Penal
Code and Criminal Procedure Code must take place concerning the period of nursing that warrants
the commutation of the death penalty. In this regard, it is strongly suggested that Viet Nam
should review the possibility of abolishing the death penalty as a whole.
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Executive summary