Evidence Standard of People's Court of China Trial of Rape


The Proof Standard of the People's Court of China in Trial of Rape

Tags: Rape Crime Proof Standard Evidence System Reasonable Suspicion Category: Criminal Defense Practice

1. The evidence system of rape cases.

   Whether the results of criminal cases in the people's courts can withstand the test of law and time depends on whether the judges can correctly ascertain the facts, that is, whether the process of reviewing, analyzing and judging evidence is rigorous and reliable. 

This process can be divided into two levels: the first is to review its evidence ability, that is, to solve the problem of the eligibility of evidence, only legally obtained evidence can be qualified as evidence and can be used as the basis for restoring and confirming the facts of the case.

 The probative power of the evidence refers to whether the evidence in the case has a proving effect on the facts of the case and to what extent the probative power can be achieved. 

The two complement each other, and both are an organic part of the proof standard of the evidence system in my country's criminal proceedings. In other words, the process of reviewing, analyzing, and judging evidence by the judges is the process of practicing the standard of proof and realizing and morphing it.

 The transition from the evidence framework provided by the prosecution to the evidence system based on the conviction and sentencing by the people's court is a journey of improvement and leap forward. 

Specific to rape cases, the author believes that an evidence system that meets the certification standards must include the following core elements:

 1. The defendant's confession and defense

 2. The victim’s statement and identification transcript

 3. Witness testimony that can prove whether the defendant has used violence, coercion or other means to intimidate the victim

 4. Witness testimony that can prove whether the victim has passed the distress information to the outside world by making phone calls, sending text messages and WeChat.

 5. Surveillance videos of crime scenes (such as hotel entrances and aisles) that can prove whether the victim has signs of resistance or persecution.

 6. Vaginal swab examination, underwear semen spot examination and related DNA identification opinions that can prove whether the two parties have had sex.

 7. If the victim alleges that the defendant has committed violence to him, he is subject to injury identification and physical examination, with corresponding identification opinions, examination transcripts and photos.

8. Records and photos of inspections at the crime scene;

   Only with these eight elements can the prosecution construct a strong evidence system. 

On the premise that there are still gaps in the evidence system, how can we achieve the proof standard of "the crime facts are clear and the evidence is reliable and sufficient"?

 At the same time, in general rape cases, we find that the comprehensive evidence in the whole case cannot be ruled out reasonable doubt. 

However, in view of the particularity of the case, the proof standard applied by the court is more similar to the principle of "high probability" in civil litigation, rather than a criminal procedure. What is required is far more stringent and prudent certification standards. 

Since such a situation exists in trial practice, how to deal with this kind of downgrading of the standard of proof and make timely adjustments and improvements has become the focus of our thinking.



2. Combination of evidence and analysis of the probative power of evidence

    We know that in the eligible evidence in the same case, evidence that is favorable to the defendant and evidence that is unfavorable to the defendant often coexist at the same time.

 Even in the same piece of evidence, there are situations where it contains both beneficial and unfavorable content. Under this circumstance, the judges should comprehensively, prudently and objectively analyze the probative power of the evidence. 

If only unilaterally adopting the evidence proving the defendant's guilt or innocence, it is easy to lose an objective position and inevitably be biased. As far as rape cases are concerned, due to the particularity of the evidence, that is, the direct evidence to prove the existence of rape is often only the defendant’s confession and the victim’s statement. 

Therefore, in this “1V1” situation, only one party’s evidence is accepted. Verbal evidence is often prone to misjudgment of the character of the case.

    The author believes that the defendant’s confession and the victim’s statement should be combined with other indirect evidence, and comprehensively judged after analysis, comparison and integration. 

Specifically, it is necessary to first compare and consider the defendant’s confession and the victim’s statement in detail, and find contradictions and doubts, which will be further investigated as facts to be proved. 

Second, the defendant’s confession and the victim’s statement and Other indirect evidences are compared and analyzed, the facts to be proved discovered in the previous step are confirmed, corresponding doubts are eliminated, and a truly complete and credible evidence system is constructed. 

Combining the previous relevant cases, we found that in practice, the fact that the defendant had a sexual relationship with the victim is often recognized by both parties, and other indirect evidence such as expert opinions can also confirm this. 

Therefore, the key to hearing a rape case is to find out whether the sexual act occurred out of the victim's true will or whether the defendant used forceful means to facilitate it against his will.

 Regarding the evidence in this regard, as mentioned earlier, direct evidence is often only two categories: the defendant’s confession and the victim’s statement, but indirect evidence is numerous and scattered but not systematic.

Rape Case related Criminal Law in China

Among them, the victim's statement generally indicated that the defendant used violence, coercion or other means, and the defendant denied it. 

Therefore, analyzing and judging the probative power of the victim's statement has become the core of the evidence review of rape cases. 

The author does not pretend to be superficial, and drafts the following four processes to analyze and judge the probative force of the victim’s statement for reference by practical operators:

    (1) Make detailed comparisons and considerations between the victim's statement and the defendant's statement, and discover contradictions and doubts, which will be further investigated as facts to be proved;

    (2) Examine the content of the victim's statement. The analysis of the probative power of the victim’s statement should be based on objective evidence such as the time, place, conditions, and environment of the incident, and pay attention to the analysis of the details, and examine whether the details are clearly stated and whether they are logical, and pay special attention to the previous and subsequent several times. Whether there are contradictions between the statements. 

According to the law of memory, under normal circumstances, the closer the statement is to the time of the crime, the clearer the memory, the stronger the truthfulness. Our judgment on the victim’s statement should generally be based on chronological order.

    (3) Examine the corroborative power of indirect evidence to the victim's statement.

    (4) To examine the defendant's confession and compare the defendant's confession with indirect evidence. If the defendant’s confession and the victim’s statement differ significantly in details, consideration should be given to whether their descriptions of the differences can be confirmed by circumstantial evidence. Far more than the other side, then the rank of the two is self-evident.

3. Judging whether the evidence is authentic and sufficient from the three dimensions of positive, negative and supplementary

    When judging whether the evidence of a rape case meets the proof standard of "reliable and sufficient evidence", we can also judge from the three dimensions of positive, negative and supplementary. 

The first is a positive argument, that is, whether the evidence to prove that the defendant used violence, coercion, or other means is sufficient. 

In other words, it is to examine whether the victim’s statement, the defendant’s confession and other indirect evidence are sufficient to prove that the defendant committed the act of violence. Whether a complete chain of evidence can be formed between the various pieces of evidence. 

The second is the negative argument, that is, whether the evidence in the case can be ruled out of reasonable doubt, for example, in case 5, why did the defendant pay the victim early in the morning? 

Cost or prostitution: Again, it is a supplementary argument, that is, to determine whether the defendant can be ruled out by coercion or other means, so that the victim cannot resist or dare not resist the existence of such facts. 

Only an evidence system that can withstand such a comprehensive assessment and approval can be used as the basis for conviction and sentencing of the defendant in criminal proceedings.



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