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The article presents a comprehensive scientific and legal analysis of the issues related to establishing criminal liability for spiking, understood as the intentional covert administration of intoxicating or psychoactive substances without a person’s voluntary and informed consent. It examines the socio-legal nature of this act, its social danger, and its infringement upon bodily and mental integrity, as well as freedom of will.

Based on an analysis of the criminal legislation of the Republic of Kazakhstan, the study identifies gaps and inconsistencies in legal regulation, as well as difficulties in legal qualification and proof in law enforcement practice. Spiking is considered both as an independent socially dangerous act and as a method of committing other crimes, with particular attention paid to its underestimation in the absence of serious consequences.

A comparative legal analysis of foreign models demonstrates a trend toward expanding criminal law protection of the individual. The article substantiates the need to recognize spiking as a separate corpus delicti and formulates proposals for improving criminal legislation in light of international experience.

Keywords: spiking, criminal liability, intoxicating substances, freedom of will, bodily integrity, criminalization.

Introduction

In accordance with Article 1 of the Constitution of the Republic of Kazakhstan, the recognition of the individual, his or her life, rights, and freedoms as the highest value of the state serves as a fundamental guideline of state legal policy and determines the priority of protecting the individual within the system of public interests. This constitutional provision presupposes the development of effective criminal law mechanisms capable of counteracting any form of unlawful interference with the person [1].

As stipulated in Article 16 of the Constitution of the Republic of Kazakhstan, everyone is guaranteed the right to personal liberty and personal inviolability, while Article 17 of the Constitution of the Republic of Kazakhstan establishes the prohibition of cruel or degrading treatment. Taken together, these provisions exclude the possibility of lawful physical or psychological interference in an individual’s sphere of personal autonomy without his or her voluntary and informed consent, including through the covert administration of intoxicating substances [1].

The current stage of development of criminal legislation is characterized by the emergence and spread of latent socially dangerous acts that infringe upon the individual and are marked by significant difficulties in detection and proof [2]. Among such acts is spiking, which has become increasingly widespread in the context of urbanization, the transformation of leisure environments, and the active use of digital communications. At the same time, the absence of its explicit recognition as an independent criminal offense prevents the full implementation of constitutional guarantees for the protection of victims’ rights and freedoms [3].

The relevance of this study is обусловed by the need for a comprehensive scientific analysis of spiking as a specific form of unlawful interference with the individual, affecting not only physical health but also the freedom of will. Such actions undermine the foundations of personal autonomy and contradict the constitutionally enshrined principles of protecting human and civil rights and freedoms, as well as contemporary doctrinal approaches to criminal law protection of the individual [4].

The object of the study is the social relations arising in the sphere of criminal law protection of the individual from unlawful interference associated with the covert administration of intoxicating substances without the victim’s consent.

The subject of the study comprises the norms of the criminal legislation of the Republic of Kazakhstan, the practice of their application, as well as doctrinal approaches that determine the criminal law assessment of spiking and the issues of establishing criminal liability for this act.

Research Methodology

The methodological basis of this study consists of a combination of general scientific and special legal methods of inquiry. Their selection is determined by the complex nature of the issue of establishing criminal liability for spiking, which lies at the intersection of criminal law, criminology, and law enforcement practice.

In the course of the research, general scientific methods such as analysis and synthesis, induction and deduction, abstraction and generalization were applied. These methods made it possible to determine the socio-legal nature of spiking, identify its key characteristics, and substantiate its social danger as an independent infringement upon the individual, affecting both a person’s physical condition and the sphere of free will.

Among the special legal methods employed were the formal-legal and system-structural approaches, through which the provisions of the Constitution of the Republic of Kazakhstan, the criminal legislation, and other normative legal acts aimed at protecting personal integrity, health, and freedom of will were examined. The application of these methods made it possible to identify gaps and shortcomings in the current legal regulation, обусловed by the absence of a specific criminal law provision establishing liability for spiking, as well as to determine its place within the system of crimes against the individual.

To analyze the practical aspects of the issue under study, the method of examining judicial and investigative practice was employed, which made it possible to identify typical difficulties in the legal qualification and proof of cases involving the covert administration of intoxicating substances. In addition, the case study method was applied to determine common methods of committing spiking and the specific features of concealing its consequences.

For the purpose of developing proposals to improve criminal legislation, a comparative legal method was applied. Within this framework, foreign models of criminal law assessment of similar acts were examined, which made it possible to identify potential directions for the development of national criminal legislation in light of international experience.

The application of the above-mentioned methods ensured the comprehensive and systematic nature of the study, contributed to the formulation of well-grounded scientific conclusions, and facilitated the development of proposals aimed at improving the criminal law regulation of liability for spiking.

Results and Discussion

The conducted analysis of the criminal legislation of the Republic of Kazakhstan, as well as materials from law enforcement practice, allows for the conclusion that acts qualified in legal doctrine as spiking have not been explicitly codified as a separate corpus delicti within criminal law. Within the current model of criminal law regulation, acts classified in doctrine as spiking are generally assessed functionally — through the prism of the method of committing other crimes, including offenses against sexual freedom and integrity, property crimes, as well as acts involving the infliction of harm to health. This approach has necessitated their analysis through the application of both formal-legal and empirical methods. The application of these methods made it possible to generalize typical situations arising in the activities of pre-trial investigation bodies and courts, and to identify characteristic problems in the criminal law assessment of spiking. The results obtained in the course of analyzing law enforcement practice were summarized and structured in Table 1 — “Analysis of Law Enforcement Practice in the Qualification of Spiking.” This made it possible to clearly demonstrate the correlation between the factual circumstances of cases, the approaches used in criminal law qualification, and the identified gaps in the system of criminal law regulation.

Table 1 — «Analysis of Law Enforcement Practice in the Qualification of Spiking»

As a result of this approach, the criminal law assessment of the covert administration of intoxicating substances is made directly dependent on proof of a subsequent criminal outcome or the occurrence of materially manifested consequences, which significantly limits the scope of criminal law protection of the individual. It has been established that in situations where the offender’s intent was not carried through to completion, or where subsequent violence or another offense did not receive proper procedural confirmation, the independent harm manifested in the impairment of the victim’s ability to freely comprehend and exercise volitional control over their own behavior effectively remains outside the scope of criminal law protection [5].

The existing normative framework indicates the presence of a significant gap in criminal law regulation, which does not correspond to contemporary scholarly understandings of the social danger posed by covert forms of psychophysical influence on the individual and reduces the effectiveness of the protective function of criminal law.

The existing normative framework indicates the presence of a significant gap in criminal law regulation, which does not correspond to contemporary scholarly understandings of the social danger posed by covert forms of psychophysical influence on the individual and reduces the effectiveness of the protective function of criminal law. The identified differences indicate an unequal level of criminal law protection of the individual and varying preventive capacities of criminal legislation, which necessitated their systematic and clear comparison.

Comparative analysis demonstrates that foreign approaches to the criminal law assessment of spiking are characterized by a shift in emphasis from the consequences to the very fact of unlawful interference with a person’s psychophysical condition, thereby ensuring a higher level of criminal law protection. The distinctions identified in the course of the comparative legal analysis were systematized and presented in tabular form (Table 2 — Comparative Analysis of Criminal Law Regulation of Spiking (Republic of Kazakhstan and Foreign Jurisdictions)) for clear and structured comparison.

Table 2. Comparative Analysis of Criminal Law Regulation of Spiking (Republic of Kazakhstan and Foreign Jurisdictions)

The comparative legal analysis demonstrates that in a number of foreign jurisdictions, including United Kingdom [6], France [7], and certain jurisdictions of Australia [8], the covert administration of intoxicating substances without the victim’s consent is regarded as an independent criminal offense, the legal assessment of which is not contingent upon the occurrence of additional consequences.

By contrast, the criminal legislation of the Republic of Kazakhstan retains a derivative model of qualification of spiking, whereby the criminal law characterization of the conduct is determined through its connection with other corpus delicti or the occurrence of materially manifested harm. This reflects fundamental differences in conceptual approaches to the criminal law protection of the individual.

In this regard, the establishment of criminal liability for spiking appears justified and necessary, as the conduct in question does not involve the voluntary consumption of narcotic substances, but rather a covert and coercive interference with an individual’s psychophysical state aimed at suppressing freedom of will and the ability to freely determine one’s behavior. The very fact of such interference constitutes an independent criminal law harm, which cannot be reduced to consequences in the form of bodily injury or the commission of other offenses.

Taking the foregoing into account, it appears possible to propose the following wording of a criminal law provision:

«Article 299-2. Administration of Narcotic Drugs, Psychotropic Substances or Their Analogues to a Person without His or Her Knowledge and Consent (Spiking)

1.                  The administration of narcotic drugs, psychotropic substances or their analogues to a person without his or her knowledge and consent, including by mixing such substances into drinks, food, or by any other means,
— shall be punishable by …”

2.                  The same act, committed:

1.                  against a person known to be a minor;

2.                  against two or more persons;

3.                  repeatedly;

4.                  by a group of persons acting in prior conspiracy;

5.                  with the use of an official position,

- shall be punishable by …»

The conducted research has demonstrated that spiking, understood as the covert administration of intoxicating or psychoactive substances without the victim’s consent, constitutes an independent socially dangerous act that infringes upon personal autonomy, as well as mental and bodily integrity. Unlike the voluntary consumption of narcotic substances, spiking is characterized by its covert and coercive nature and is aimed at suppressing the victim’s freedom of will.

The comparative legal analysis of foreign criminal law systems indicates the predominance of an approach under which the covert administration of substances is recognized as a completed offense from the moment of the act itself, irrespective of the occurrence of materially manifested consequences. Such an approach is oriented toward the preventive protection of the individual against covert forms of violence and manipulative influence and is implemented even in legal systems that do not contain a specific provision on spiking.

In the criminal legislation of the Republic of Kazakhstan, a derivative and consequence-oriented model of assessing spiking is preserved, whereby the covert administration of substances does not acquire independent normative significance and is qualified only as a method of committing other offenses. In this regard, the establishment of criminal liability for spiking as an independent corpus delicti appears both theoretically justified and practically expedient, as it would eliminate existing gaps in legal regulation and strengthen the criminal law protection of the individual.