Plea of not guilty in rape case.

Dear presiding judge and judge, entrusted by the relatives of the defendant, with the consent of the defendant, this law firm appointed me as the defender of the second instance of A rape case to defend it. Before the trial, the defender met with the defendant according to law and consulted the case materials. I hereby express the following defense opinions. I hope my following defense can play a role in court. The defender's general defense opinion is that the fact that defendant A constitutes rape in the first instance is unclear and the evidence is insufficient, so defendant A should be acquitted according to law. The judgment of the court of first instance only lists the transcripts of public security investigations. There is no question of proof at all. How clear is the fact that defendant A was found to constitute rape in the first instance? Do not participate. The first instance found that the evidence was true, but it did not find that the evidence was sufficient. Judging from the evidence, it can be proved that the evidence is not mentioned. It can also be seen from the determination of the court of first instance. The court of first instance has reservations about its determination, and the court of first instance actually thinks that the evidence in this case is really insufficient. But the verdict was partly based on rape. According to Article 236 of China's Criminal Law and other laws and relevant judicial interpretations, rape refers to the act of forcing women to have sexual relations by violence, coercion or other means against their will. This shows that the crime of rape must meet two legal requirements at the same time, one is to have sex, the other is to go against the will of women, and the third is to use the threat of violence. To judge whether sexual intercourse is against women's will, we need to comprehensively analyze the previous communication between the defendant and the victim, the environment at the time of the crime, the personality, nature, psychological attitude of women after sexual intercourse, and under what circumstances to report the case. First of all, combined with the lack of evidence of whether the defendant had sex with the victim in this case, only the victim's own confession can directly prove that the defendant had sex with the victim. B (the victim's ex-boyfriend) and C (the victim's mother) are all talking about past evidence, but they are actually relaying what the victim said. Neither of them can prove the fact that they had sex. 2. D The diagnosis certificate of the Second People's Hospital can only prove that the victim's hymen rupture is legal and cannot prove that it was caused by sexual relations with the defendant. There are many situations that lead to hymen rupture, not just sexual relations. Moreover, this diagnosis certificate has no outpatient and inpatient numbers, and its authenticity is doubtful. In addition, the certificate can't prove when and how the victim's hymen ruptured. According to the victim's statement, defendant A's penis has been inserted into the victim's vagina for two or three minutes, so both the defendant and the victim's genitals should have each other's secretions. As the prosecution, the secretion should be collected in time, and the secretion and residue should be detected by DNA to identify the defendant. It is entirely possible to draw a conclusion about whether there is physical evidence of sexual relations. Only in this way can the evidence be sufficient and convincing. However, the prosecution has no such evidence. Therefore, the defender believes that the fact that the defendant and the victim had sexual relations in this case is unclear and the evidence is insufficient. The court of first instance found that it was obviously wrong. In this case, there is no evidence that the defendant had sexual relations with the victim. Secondly, the threat of violence was not used against the will of women in this case. In this case, according to the criminal law, there is no violent means in the crime of rape. It refers to the means by which criminals exercise tangible power over the victim's body, that is, directly beating, binding, gagging and gagging the victim. Neck, depression and other means that endanger personal safety or personal freedom and make women afraid to resist. The prosecution has no evidence or sufficient evidence to prove that the defendant used such violent means against the victim. The Supreme People's Procuratorate, the Supreme People's Procuratorate and the Ministry of Public Security also jointly explained that it is necessary to carefully examine and analyze the facts and circumstances, such as the usual relationship between the two sides, the environment and circumstances in which they had sex, the attitude of the woman after the crime, and the situation at the time of reporting the case. If it is not against the will of women, it cannot be punished as rape. "Half-assent" means that the woman asks the man for sexual intercourse, and her attitude is ambiguous, ranging from "pushing" to "agreeing". The defendant carried out sexual behavior when women were hesitant and psychologically contradictory. In general, women's sense of resistance is not strong. If \ ""shoving \ ""is only a manifestation of women's shame, and there is no obvious use of violence or coercion, it obviously does not conform to the characteristics of the crime of rape stipulated in Article 236 of the Criminal Law, and it is generally not appropriate to punish it as rape. Combined with this case: 1 The defendant forcibly carried the victim into the hotel room when the prosecution accused him of resisting. Through the audio-visual materials provided by the prosecution, it was indeed carried by the defendant, but it could not be proved that it violated the defendant's will. Because if the victim really wants to resist and refuses, The victim can call the police for help, because the hotel is a public place, not without others present. But the victim didn't shout. 2.a The act of carrying the victim upstairs is not a violent act required by the crime of rape. The violence required by the crime of rape cannot be resisted, nor can it be resisted. Because a few minutes after the defendant carried the victim upstairs, the defendant went downstairs for a few minutes. This can also be proved by the victim's confession. And the video of the defendant going downstairs in the evidence volume also shows. This evidence just proves that the victim didn't go upstairs out of reluctance. Has nothing to do with anything that happened later. If you really don't want to, the defendant can walk away during the downstairs. But the victim did not leave. As a normal woman, if she doesn't want to have sex with others, no one will wait for others to rape her. According to the confession of the victim, the defendant had sex with the victim with a condom and slapped the victim. Then there is no condom from beginning to end, and there is no indication on the identification of the residue in the condom. So if what the victim said is true, the defendant can't rape the victim with a condom. So if what the victim said is true, there should be residue in the victim's vagina. So if the victim tells the truth and the defendant slaps the victim, there will be soft tissue damage on the victim's face, but none of them. If the appellant really wants to rape the victim, the victim can call for help in the hotel. Because there are more people coming and going in the hotel. Not like the victim said. I can't resist. 4. Accusing Appellant A of rape still lacks necessary material evidence. In this case, only the statements and confessions of the parties. According to the Evidence Form System of Rape Litigation, the following key evidences still lack physical evidence; Whether there are signs of struggle, whether there are clothes torn, whether there are other acts of violence, etc. It can be seen from the confessions of the victim and E, F and G that the victim didn't go home until they all went back to the hotel to look at the cards for a while. The victim didn't show any feeling of being raped. As a woman, watching others play cards so calmly after being raped makes no sense to think that it is rape. 6. Judging from the time when the victim called the police, it didn't happen immediately. If it is rape, the victim will call the police at the first time. Moreover, the victim contacted the defendant by texting afterwards and finally reported to the police. Therefore, according to the principle of no doubt in China's criminal law, the court of second instance should declare the appellant innocent. The Criminal Procedure Law stipulates that "in all cases, evidence, investigation and research should be emphasized, and confessions should not be trusted. If only the defendant confesses and there is no other evidence, the defendant cannot be found guilty and punished; If there is no confession from the defendant and the evidence is sufficient and true, the defendant can be found guilty and punished. " The conclusions drawn from indirect evidence must be truly sufficient and unique, excluding other possibilities. "If there is insufficient evidence to exclude the defendant's reasonable defense, a judgment shall be made in favor of the defendant." "If the evidence is insufficient to prove the defendant's guilt, the accusation shall be deemed innocent, the evidence is insufficient, and the alleged criminal facts cannot be established." In this case, there is only the complaint of the victim, which is inconsistent with the confession of the defendant. The public prosecution agency has no other effective evidence to support it and cannot form an evidence chain. The conclusion is not unique, and the defendant should be acquitted. Finally, I want to say that the conclusion drawn by inference cannot be considered after all. Shen Deyong, vice president of the Supreme Court, wrote in the article "How to prevent unjust, false and wrong cases" that "it is better to misjudge cases than to misjudge them", so this case was merged. Therefore, in this case, no matter from the facts or from the evidence, the defendant can not be found to constitute rape. Defender: Testimony: The defendant was sentenced to five years' imprisonment in the first instance of this case, and the original judgment was hastily upheld in the second instance. At the trial of the second instance, the defender asked for intimate photos of the two in the hotel according to law, but was rejected. And said that this photo has nothing to do with rape. However, the defender has always believed that there are many doubts in this case and the defendant should be acquitted according to law. In this case, there is no evidence to prove whether there is sexual relationship or not, and there is evidence of coercion. In this case, it can be inferred that the defendant is guilty. "