According to the laws of ancient Rome, the crime of rape was directly regarded as "property theft" by one man to another, and the perpetrator only needed monetary compensation to make amends, but the victim's husband or father was not the victim.
According to the Tang law, sexual crimes, including rape, are listed as "ten evils" in the name of "civil strife". Among them, the penalty for raping married women is heavier than that for raping unmarried women. Later, the criminal code of the Song Dynasty and the written law of the Ming and Qing Dynasties generally followed this pattern.
There are two crimes in Article 236 1 of China's criminal law: rape and sexual assault by a person with care responsibility, all of which are sexual crimes. The essence of sexual crime is to have sex with women against their will. Then, how is the crime of rape "against women's will" recognized? What does the determination of "against women's will" mean for non-prosecution and innocent defense? This paper analyzes its identification rules in combination with judicial practice to provide effective reference for criminal defense.
First, using a special identity to "cheat" and "rape against women's will".
"Deception" is not a concept of criminal law. Cheating is not rape, but only cheating against women's will is rape.
For example, in the erotic news in the film and television circle, Zhang lied that she was a director and auditioned for the heroine of a movie. The eighteen-line female star mistakenly thought that she could be elected as the No.1 female in a movie and had a sexual relationship with Zhang Fa. Can this situation be considered as "against women's will"?
Another example: male leaders cheat female subordinates to have sex with them on the grounds of helping them get promoted, but the result does not help them get promoted. Can it be considered as "against women's will"?
For another example, using superstitious means to trick women into having sex can achieve the purpose of treating diseases, exorcising evil spirits and keeping peace. Can it be considered as "against women's will"?
1. "Cheating" without misunderstanding about the nature of the behavior cannot be regarded as "against the will of women" and does not constitute rape.
Whether the above two situations can be regarded as "against women's will" depends on whether the man's behavior makes women misunderstand having sex and thus do not know how to resist. If a woman has sex with a man in order to get the role or promotion opportunity of No.1 female, even if she feels cheated afterwards, she has not got the role or promotion opportunity of No.1 female, which cannot be considered as "against the will of women". Because this kind of behavior belongs to the so-called "sexual bribery" in society, it occurs on the premise of immorality and illegality, and the purpose of women having sex with men is to gain vanity or professional interests. Even if the man fails to fulfill this promise afterwards, the woman does not misunderstand the nature of the behavior, so it cannot be regarded as "against the will of women".
2. If there is misunderstanding about the nature of the behavior, it can be considered as "against the will of women".
Using superstitious means such as secret societies and cult organizations to have sex with women will be considered as "against women's will" in judicial practice. The reason why it is considered to be "against women's will" is mainly to make women mistakenly think that sex is a kind of treatment, and even mistakenly think that it can exorcise evil spirits and keep peace, so that they don't know how to resist.
Second, the woman loses consciousness after drinking or taking drugs, and has sexual relations ≦ "rape against the will of women".
In order to achieve the purpose of adultery, it is "against women's will" for a man to drink, persuade a woman to drink, or induce or force her to take drugs and have sex with her after she loses consciousness. Or, after the woman loses consciousness because of drinking or taking drugs, the man "takes over" and takes the opportunity to have sex with her, which is "against the will of women". In practice, there is little controversy about the determination of "against women's will" in the above two cases.
If there is evidence to the contrary, "against women's will" can be ruled out, if women express their willingness to have sex with men before being drunk or unconscious.
If the woman takes the initiative to invite the man to drink or take drugs together, it does not mean that the woman has the psychological expectation of having sex. In this case, it is necessary to comprehensively judge whether it is against the "woman's will" by combining the intimacy of the relationship between the two parties, the location of the date, the woman's reaction before, during and after the event.
If the woman has an ambiguous chat with the man, or the woman reveals the idea of having sex to the man, and the dating place is in a closed place such as a rental house, residence, hotel, etc., the woman has certain psychological expectations for having sex, and it is less likely to "go against her will".
If the woman and the man date in public places such as bars, cinemas and cafes, and have never revealed the idea of having sex to the man, the woman has less psychological expectation of having sex and is more likely to "go against the will of women".
Third, the crime of "half-pushing" sexual relations ≦ "against women's will"
In judicial practice, it is not uncommon for men and women to have sexual relations in the case of ambiguous relationship or behavior, or to have sexual relations in the case of reluctance. Later, because the woman's family, husband or boyfriend found out, they called the police and said they were raped by the man.
The author has handled many cases of alleged rape caused by ambiguous relationships, and finally obtained the innocent results that the suspects and their families are satisfied with. Therefore, for such cases, how to judge whether it is "against women's will" is the key to getting rid of the charges.
If both men and women have an ambiguous chat and intimate interaction in advance, both men and women will date together in a hotel or go to one's residence or rental house many times to have sex. Subjectively, this situation makes people tend to believe that the woman has agreed, and objectively it is reasonable to exclude "against the will of women". In the "semi-delayed" sexual relationship, within a reasonable limit, there are cases where men mistakenly think that women agree to have sexual relations, rather than "against women's wishes".
If the woman is conscious, and there is definite evidence to prove that when she has sex, she calls for help conditionally rather than verbally, and the man does not resort to violence or coercion, then "against the will of women" can be ruled out.
If the woman is delirious or makes a strong resistance, leaving traces or scars of strong struggle, it is enough for ordinary people to think that the woman does not agree to have sexual relations, which is "against the will of women".
In practice, some detailed behaviors will also weaken the "violation of women's will". For example, in the middle of the night, the woman deliberately left the man at the residence, and the woman took the initiative to book a hotel. When she had sex, the woman took the initiative to change her posture. The active behavior of these women will affect the "evaluation process" of judicial investigators. Of course, every detail should be analyzed in combination with the background of the whole case, and can not be concluded in isolation from the specific environment of the behavior.
In addition, gang rape is a statutory aggravating circumstance of rape. If we can find the above details as evidence to exclude "violation of women's will", we can strive for an innocent defense idea.
Fourth, the crime of "luring" and "coercing" the woman to have an interest relationship ≠ "against the will of women"
1. Interests "seduce" sexual relations, which cannot be regarded as "against women's will".
The perpetrators of rape cases are generally ordinary people. Whether it is "against women's wishes" often needs to consider the relationship between the two sides, the background information of having sex, and the attitude of the woman afterwards. However, the law protects women's sexual freedom and choice. If the man "lures" women to have sex with benefits, and women exchange sex for fame and fortune, this behavior should not be considered as "against women's will".
2. Interests "coerce" sexual relations and need to be carefully identified as "against women's wishes".
"Coercion" refers to mental intimidation or coercion of women to force them not to resist. Interest "coercion" refers to the choice between interest and sexual freedom, which may have an impact on women's existing interests and status quo. Women still have the choice of refusing and resisting under the "coercion" of interests, so the "coercion" of interests cannot be directly equated with the "coercion" of rape.
If the man uses his influence in entertainment, business, politics, academia or leadership positions to "intimidate" the woman, as long as the woman is willing to have sex with him, the man will provide benefits for her promotion in entertainment, business, politics or positions. If you don't obey the "coercion" of the man's interests, the woman's present situation will not be worse than now, or it will not cause substantial damage to her present situation or future interests, or she is subjectively worried that her future may be affected.
Innocent case 1: The perpetrator really "didn't know" the victim's real age and didn't have the subjective intention of raping a young girl. The victim voluntarily had sex without causing other serious consequences, and it was not recognized as a crime according to law (20 15) Shancheng Law Punishment No.58, Zi Chu.
Li Moumou and Shen Moumou met through QQ and developed into a lover relationship, and they had a relationship in the process of love. Although Shen was under 14 years old when he had sex, it can be seen from Shen's speech logic and way that he is mature, leaving home alone at night and carrying his mobile phone with him every day. Judging from his physical development, manners and daily routine, it is impossible to judge that he is a young girl. Moreover, there is no evidence that the defendant Li Moumou knows or may know Shen's real age. Therefore, the basis for accusing rape is insufficient.
Innocent case 2: only the victim stated that there was no other evidence to prove that the sexual relationship between the two sides violated the will of women and could not prove the fact of rape. (20 15) Shen punished Chu Zinuo. 178
The fact that the victim mentioned in his statement that he wanted to bite each other does not mean that it is against the will of women to have sex with each other. Only the victim stated that the sexual relationship between the two sides was against the will of women, and there was no other evidence to prove it. The evidence accusing the defendant Zhang Mojia of committing rape was insufficient and the charge was not established.
Innocent case 3: Only the victim's statement, many of which are inconsistent, contradictory and lack objectivity, and are not supported by other objective evidence. According to the principle that the suspect evidence is beneficial to the defendant, it is impossible to accuse the defendant of committing a crime. (20 18) No.324 at the beginning of line 0322 in Ji.
The location and specific circumstances of the victim's statement of sexual relations are obviously inconsistent with other evidence in this case, and the motive of the statement is doubtful. Although the diagnosis certificate issued by the hospital showed that the vulva of the young girl was slightly congested at 5 o'clock outside the vagina, no fresh cracks were found in the hymen. The doctor said that it is impossible to determine what caused Liu's mucosal congestion at 5 o'clock, and it is impossible to determine when it was formed. The doctor refused to testify to the public security organ. The fact that the comprehensive appraisal agency did not detect the human semen composition from the vaginal secretion of the victim who sent the sample for inspection, the evidence accusing the defendant of committing rape could not be closed, and the only criminal evidence proof standard for the conclusion could not be reached.
Innocent case 4: The evidence can't reach the exact and sufficient proof standard, and the only conclusion that the defendant used violent means to have sex with the victim against the will of women can't be drawn. (20 18) Chu Qin hei 0604 No.310.
Even though the suspicious spots on the toilet paper on the bedroom floor, the toilet paper in the toilet trash can, and the suspicious spots on the sanitary towel used by the victim Yang were all identified as human sperm spots, and the 15 STR type was the same as that of the defendant, the above evidence could not prove that the victim was subjected to violence during sexual intercourse, and when the victim returned to the victim's house for underwear for the second time, the victim took the initiative to open the door for him and stayed together until 5 am before leaving again. During this period, the victim did not call the police or mention it to his family. Although the police were reported afterwards, the crime of rape was not mentioned in the first two times. The third alarm said that the evidence was insufficient and the psychological state of sexual intercourse was forced, which was not supported by objective evidence. The fact that the defendant committed rape was unclear and the evidence was insufficient, so the accused charges could not be established.
Innocent case 5: Because the facts are unclear and the evidence is insufficient, it can't reach the proof standard of criminal conviction and sentencing, so it doesn't constitute a crime. Deep light not to prosecute [202 1] No.217
When the victim was drunk, the defendant vomited and lost consciousness. He took off all Wang's clothes, underwear and underwear, touched Wang's nakedness and body, kissed Wang's chest, and then wanted to have sex with Wang. Although the defendant confessed the above situation, there is no other evidence to prove that the defendant and the victim did have a sexual relationship. Therefore, the facts of accusing the defendant of rape are unclear and the evidence is insufficient, which does not meet the conditions for prosecution.
Conclusion: Lawyer Wu Bin believes that the key to judging whether it is against women's will lies in accurately judging whether women agree to have sex. Whether men use violence, coercion and other means to suppress women's resistance and whether they use women's unconsciousness, unconsciousness or sexual relations is an important basis for judgment. Therefore, whether it is "against women's will" is an important factor in the innocence defense and exemption of rape cases.