Lawyer Yan Xu's analysis of the constitutive elements of rape is as follows:
1, Object Elements This crime violates women's inviolable rights (also known as chastity rights), that is, women's right to decide proper sexual behavior according to their own will. The target of the crime is a woman.
2, objective elements (1) The crime of rape must objectively have the use of violence, coercion or other means, so that women can't resist, dare not resist, don't know how to resist, or use women's ignorance and inability to resist to commit adultery. The so-called violent means refers to the means of illegally exercising tangible power over the victim's body, that is, the measures taken directly against the victim, such as beating, binding, gagging, choking, pressing, etc. Endanger personal safety or personal freedom, so that women dare not resist.
The so-called coercive means refers to the means of threatening and intimidating the victimized women to achieve mental coercion so that they dare not resist. The core of coercion is enough to arouse the fear of the victimized women, so that they dare not resist, thus realizing the intention of forced adultery. Women may be threatened verbally or in writing directly or through a third party, may be threatened by violence, such as holding a knife, or may be threatened by nonviolence, such as exposing privacy and damaging reputation. It should be pointed out that sexual relations with women by taking advantage of upbringing, subordination and position rights cannot be regarded as rape. The crux of the problem lies in whether the actor used this specific relationship to intimidate women, not in whether this specific relationship exists.
The so-called other means refers to the use of means other than violence or coercion, which makes the victimized woman irresistible or irresistible and has the same coercive nature as violence and coercion. Other common means in judicial practice are: raping women by means of drunkenness or drug anesthesia; Rape by taking advantage of women's sleeping; Rape by pretending to be a woman's husband or lover and using a woman's serious illness to commit rape; Causing or taking advantage of women's isolation to commit rape; Fake medical treatment and rape of women; Organizations use church doors, cult organizations or superstitions to rape women and so on.
(2) It must be against the will of women.
Contrary to women's will is the essential feature of rape, but women's inability to resist cannot be regarded as the basic feature of rape. Judging whether it is against women's will is only one of the objective conditions. Because the means used by criminals to commit rape and the objective conditions caused by it are different, the degree of coercion to the victim women is also different, so the forms of resistance and other manifestations of the victim women to criminal acts are also different: some are despair and violence; Some struggle or beg with trepidation, and the resistance is not obvious; There are people who look forward and don't resist, and so on. Therefore, it is not a necessary condition to determine the crime of rape simply by whether the victim resisted at that time. If there is no resistance to women or the resistance is not obvious, it is necessary to look at the whole case, analyze it in detail and distinguish it carefully.
Whether it is against women's wishes cannot be divided by the style of the murdered women. If the perpetrator uses violence or coercion to force sexual relations with women with poor lifestyles, it should still be punished as rape.
3. Subject Elements The subject of this crime is a special subject, that is, a man who has reached the age of 14 and has the ability of criminal responsibility. However, under the same criminal circumstances, whoever instigates or helps a man to rape other women shall be punished as the * * * offender of rape.
4. Subjective elements This crime is subjectively intentional and has the purpose of adultery. It means that the criminal intentionally has sexual relations with the victimized woman. If the offender does not have the purpose of adultery, but satisfies his sexual desire through acts other than sexual intercourse, it does not constitute the crime of raping women such as touching and cuddling, and if it constitutes a crime, it will be punished as compulsory indecency. Anyone who knowingly has sex with a woman is a mental patient or a person with severe dementia who can't correctly express his will, regardless of the means adopted by the criminal and whether the victim agrees or resists, should be regarded as violating the will of the woman and constituting the crime of rape; Women with intermittent mental illness who agree to have sex with them before the onset of mental illness do not constitute rape; For those who really don't know that women are adolescent mental patients and have sex with them under the temptation of women, it is generally not appropriate to be punished as rape; Having sex with a woman who really doesn't know that she has mild dementia, whether voluntarily or actively, should not be regarded as a crime.