First Instance Court Judgment in Rape Case of Li XX and Others

 

First Instance Judgment in the Rape Case of Li XX and others in China

The highly-regarded rape case of Li Moumou and others was sentenced in the Haidian District Court of Beijing this morning of September 26. The court sentenced the defendant Li Moumou to 10 years in prison for rape.

Adult 12 years imprisonment, deprivation of political rights for 2 years

 Wei XX (brother) fixed-term imprisonment of 4 years

 Zhang XX fixed-term imprisonment of 3 years, suspended for 5 years; Wei XX (brother) fixed-term imprisonment of 3 years, suspended for 3 year.


The following is the full text of the judgment of Haidian Court:

 

   1. Facts ascertained by the trial

At about 0:00 on February 17, 2013, the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, Wei Moumou (brother) and Li Mo went to Chengfu Road, Haidian District. This city Drinking and consumption in the "Scorpio" private room of the night bar in Beijing. The bar waiter surnamed Zhang arranged for the victim Yang Moumou and Xu Moumou to drink, sing, and play games together in the private room.

At about 3:30 in the morning, Yang Moumou was supported by a waiter surnamed Zhang to walk out of the private room with Li Moumou and others.

 

   At this time, Yang XX was unable to walk normally and was in a drunk state. Yang Moumou, accompanied by a waiter surnamed Zhang, boarded a black Audi 07 off-road vehicle driven by Wei Moumou (brother), and arrived at the Jindingxuan restaurant in Jinyuan Times Shopping Center in Haidian District. 

Soon after they were seated, Li and others had disputes with other customers over trivial matters, and were persuaded to leave the restaurant after being persuaded to open.

Yang followed to leave the restaurant and boarded the Audi off-road vehicle driven by Wei XX (brother) with the waiter named Zhang. Li Moumou, Wei Moumou (brother), and Li Mou drove to the underground garage of Renji Villa in Haidian District to meet.

Later, Li and the waiter surnamed Zhang left first for some reason, and the others took the Audi off-road vehicle driven by Wei (brother) to leave into the Jishan Villa.

 

   In the car, Wei XX (brother) is in the passenger seat, and from left to right in the back row are Zhang XX, Li XX, Yang XX, and Wang XX. 

On the way, Yang found that the waiter surnamed Zhang was not there, so he asked to get off and leave, shouting, kicking and struggling after being rejected. Li Moumou, Wang Moumou, Zhang Moumou and others then forcibly suppressed and controlled Yang Moumou. Li XX repeatedly slapped Yang on the face, and Wang also beat Yang XX.

 

   around 5:50 in the morning. The five defendants took Yang XX to the Hubei Building in Haidian District. Wei Moumou (brother) and Zhang Moumou got off the car first to the hotel front desk.

Wei Moumou (brother) checked in using other people's ID cards and entered the hotel room with Zhang Moumou first. Then Li, Wang and Wei (brother) led Yang to enter the elevator through the hotel lobby. 

During this period, Li held Yang's right arm tightly with his left hand, pinching Yang forward, and Wang assisted in control on Yang's left side.


 In the elevator, Li You slapped Yang's head in facial movements. After exiting the elevator, Yang was dragged into the hotel room by Li. Li Moumou and others asked Yang to take off his clothes, but Yang refused, so Li, Wang and others slapped and kicked Yang and forcibly took off Yang’s clothes. 

Subsequently, Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou (brother) and Wei Moumou (brother) forcibly had sex with Yang Moumou in turn.


During the period, some defendants committed obscene acts. Later Li Moumou and Wei Moumou (brother) gave 2,000 yuan to Yang Moumou. 

At about 7:30, the five defendants took Yang Moumou away from the Hubei Building and put Yang down on the way.

 

   On February 17 and 18, Yang went to Beijing Jinghua Friendship Hospital and Peking University Third Hospital successively, and was diagnosed with head and face trauma, concussion, etc.

On February 19, Yang XX, accompanied by others, went to the public security organ to report the case. 

Appraised by the judicial appraisal department according to law, Yang Moumou saw flaky subcutaneous hemorrhage on the upper left eyelid

 

(Absorption period), flaky subcutaneous hemorrhage in the back of the nose (absorption period, size of 2 cm x 2 cm), flaky subcutaneous hemorrhage in the left temporal and left zygomatic area (absorption period, size of 6 cm x 3 cm), physical injury The degree is a minor injury.

 

   On February 21st, 1 attached Xu, Li XX, Wang XX, Wei XX (brother), and Wei XX (brother) were arrested by the public security organs. At 2 o'clock that day, with the assistance of Wei XX (brother), the public security organs captured Zhang XX.

 

   2. Facts of the allegations and convictions

  The objective manifestation of the crime of rape is the use of violence, coercion or other means to force sexual intercourse with a woman, and what it violates is the right of women to determine sexual behavior according to their own will. 

Therefore, the willingness of the victim is a key element in judging the conviction of rape. 

Throughout this case, the contact between the defendant and the victim began at the bar at midnight on February 17 at midnight, and ended at about 7:30 on the same day when he left the Hubei Building. 

He experienced three stages of drinking at the bar, looking for a hotel, and committing rape. In the first stage, the victim and the defendant drank, sang, and played games. 

By the time they left the bar at about 3:30, the victim was in a state of drunkenness and needed assistance to walk. There is no evidence that anyone asked the victim if he agreed to "launch." 

Therefore, it cannot be determined that the victim followed the crowd to leave the bar to eat out is to agree to "promulgation".

 From the defendant's dispute with others at Jindingxuan to the bar waiter named Zhang left into the Jishanzhuang, the victim was able to walk on his own, but in the process, there was no evidence.

It is confirmed that one of the defendants indicated to the victim the intention of having sex. In the second stage, the five defendants took the victim to search for the hotel. 

On the way, the victim found that the waiter surnamed Zhang was absent and asked to get off the bus. After being refused, he shouted and struggled, but was accused and beaten by Li XX and Wang XX. In a state of "cannot resist". In the third stage, the victim was held hostage to the Hubei Building. Before getting off the vehicle, he was threatened by Li and others. 

After getting off the vehicle, he was pulled forward by Li and Wang, passing through the lobby and entering the elevator until he reached the hotel room.

 

   Surveillance video showed that the victim was dragged and slapped. There was no “voluntary” behavior in his posture. In the hotel room, the victim was beaten again because he refused to undress. He was in a state of “dare not to resist” and was later gang-raped. 

The facts of this case show that the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, and Wei Moumou (brother) violated women's will and jointly used violent means to rape women, and their actions constituted the crime of rape.

 The facts that the People’s Procuratorate of Haidian District of Beijing charged the defendants Li, Wang, Wei (brother), Zhang, and Wei (brother) of rape are clear, the evidence is indeed sufficient, and the charges are convicted. 

The actions of the five defendants were gang rapes, which caused physical and psychological harm to the victims. They were of a bad nature and caused great social harm and should be punished according to law.

 

   3. Combining evidence to evaluate the defense opinions

The defense and defense opinions of the defendant, legal representative, and defender on the facts of the case, the crime and innocence, and the severity of the crime can be summarized into the following four points:

 1. Whether there is illegal evidence 

2. Whether the five defendants and the victim Sexual relations have occurred

 3. Whether the defendant has committed violence to the victim

 4. Whether the defendant has had a sexual relationship with the victim, and whether it is against the wishes of the victim.

 

In response to the defense’s request for the exclusion of illegal evidence, our court found that the five defendant's

Criminal Law, China: Chinese Rape Cases
Criminal Law

confessions during the investigation stage had synchronized video recording certificates, and the legal representatives or adult relatives were present and signed for confirmation when the minor defendants confessed.


 The investigative agency’s procedures for obtaining evidence are legal, and there is no illegal evidence collection such as torture.

As for investigators’ quoting of legal provisions, explaining policies, generalizing statements, clarifying facts, and other sentences during the interrogation process, they are not extortion or inducement. 

There is no reason for the exclusion of illegal evidence in this case, so the defense's application for exclusion of illegal evidence is not supported. 

Regarding the defense's application to view the synchronized video data of the defendant's confession that was not presented in court, our court believes that the content of the application does not fall within the scope of examination for the exclusion of illegal evidence, and there is no need to extract it for examination.

 

   The evidence in this case is sufficient to prove that all the five defendants had sex with the victim. 

(1) The victim Yang Moumou made multiple statements clearly alleging that the five defendants had sexual relations with him.

 (2) The physical evidence appraisal report confirmed that the mixed semen spots of Wei (brother) and Wang were detected in multiple places on the victim's underwear. 

(3) Li's testimony confirmed that Li described the fact that the five defendants gang-raped the victim on the phone after the incident. This plot was also confirmed by Wei's (brother) confession in court. 

(4) The five defendants all confessed to seeing other co-defendants having sex with the victim during the investigation stage, and some of the defendants acted indecently. 

The guilty confessions of the five defendants presented by the public prosecution agency were clear and specific in content, not only corroborating each other, but also consistent with other evidence, and were sufficient for determination. 

Regarding the opinion of the defendant Li Moumou and his defender in court that Li Moumou did not have sexual relations with the victim, our court believes that although the investigative agency did not detect Li Moumou's semen speckles from the victim’s underwear.

But combined with other defendants’ confession and evidence in court, the victim’s statement, and the description of the facts that the witness Li heard from Li’s mouth, it clearly and stably proved the fact that Li was the first to have sex with the victim. And the guilty confession in the investigative stage is mutually corroborated, which is sufficient to confirm. 

Li Moumou's defense that he "fell asleep shortly after entering the room and did not have sex with the victim" did not match the evidence in the case and our court rejected it.

 

   The evidence in this case is sufficient to prove that multiple defendants jointly committed violence to the victim Yang XX. (1) The victim stated that he was pressed and assaulted by Li Moumou, Wang Moumou and others in the car, was pulled by Li Moumou while going to the hotel room, and was beaten by multiple defendants in the room. Among them, Li whipped his head and face several times, Wang kicked his head, and was forcibly stripped naked by several defendants. 

(2) The surveillance video of Hubei Building showed that when passing through the lobby, the victim was not holding Li Moumou, but while Li Moumou held his right arm and pulled it forward, while Wang Moou held his left side on the other side. Arm, in line with the characteristics of the forced state: In the elevator, when Li Moumou slapped the victim's head and face, he raised his hand and paused before shooting. 

This is a violent act: Li Moumou was in the process of walking to the room. When the victim leaned backward and did not want to move forward, he made obvious pulling actions. 

(3) Witnesses such as Song and Yue confirmed that they saw injuries on the victim's face afterwards: The testimony and diagnosis certificate of the doctor from Peking University Third Hospital confirmed that the victim had bruises on his face when he went to see a doctor, and the consequences confirmed the victim's statement The fact of being beaten and raped.

 (4) Combining the victim's injury photos, public security forensic examination and identification report analysis, it can be ruled out that it was caused by another person's or self-attack afterwards, and it can be determined that the victim's injury was caused by the defendant in this case.

 (5) The witness Li certifies that after the incident, Li told him that he had beaten the victim.

 (6) On the way to find the hotel, Li and Wang sat on both sides of the victim. At that time, the victim struggled fiercely, and there was a strong reaction from kicking the driver. The two defendants exercised strong control over the victim. 

Most of the defendants had confessed that Li and Wang had performed violent acts such as slaps, kicks and kicks on the victims. Zhang Moumou and Wei Moumou (brother) once confessed to seeing the victim had redness and swelling on his face after being beaten. 

The above confession not only confirms each other, but also basically coincides with the victim's statement. There is objective evidence to support it, which is sufficient to confirm.

 

   The evidence in this case is sufficient to prove that the defendant’s sexual relations with the victim violated the victim’s true wishes.

(1) The victim clearly stated on many occasions that he was unwilling to open a room with the five defendants. 

On the way to the hotel, during the process of getting off the car and entering the room, and in the hotel room, he asked the other party to let him leave. 

(2) The surveillance video showed that the victim was dragged into the hotel lobby, elevator and walked to the room. 

He leaned backwards in the corridor and did not want to go forward, which confirmed the victim's statement.

 (3) The confessions of the five defendants, the testimony of the waiter surnamed Zhang, Mr. Li and the bar surveillance video showed that the victim was drunk when he walked out of the bar room. He found that the waiter surnamed Zhang had a huge contrast in his behavior after leaving, which confirmed his unwillingness to be alone with him. The mentality of the five defendants traveling.

 (4) The defendants have all confessed to the fact that in the hotel room, the victim was unwilling to undress and was forcibly undressed after hiding in a corner.

 (5) The action of the victim hitting the TV cabinet or wall with his head is in line with the response characteristics after being forced to have sex.

 (6) Li’s testimony proved that when he asked the victim afterwards whether he was willing to have sexual relations, Li said, “If you don’t let it go,” he also said that Wang and others beat the victim. 

Combining the above facts, it is sufficient to prove that the victim has a subjective state of will for sexual relations against his will.

 

   Regarding the defense's claim that the victim was autonomous and willing to follow several defendants, and the subjective mentality of seduce minor defendants, proactively "promulgated", and voluntarily have sex with the defendant, our court believes that there is a lack of evidence support. 

There is no evidence that the victim had a clear intention to agree to have sex with the five defendants. As for whether the victim and the bar staff contacted Li's family, it was a post-event behavior and did not affect the subjective will of the victim at the time of the incident. Identified. 

"Accompanying wine" and prostitution belong to two different types of behavior, and there is no necessary connection between the behavior of accompanying wine and prostitution. Women have equal sexual rights. 

When they are reluctant, any use of force to force sexual relations is a rape against their will. Identity or personal living habits are not sufficient to infer the subjective mentality of the behavior. 

Therefore, the defense uses the victim's identity and life experience to presume his subjective mentality, which lacks objectivity.

 

   4. Sentencing opinions

In this case, the five defendants actively and directly committed adultery against the victim. Wei XX (brother), Zhang XX, and Wei XX (brother) did not only play a secondary or auxiliary role in the joint crime.

 The defense opinions of the three defendants being accomplices were not accepted by our court. However, the role of each defendant in a joint crime is indeed different. The court comprehensively considers the circumstances of the whole case and the specific circumstances of each defendant's crime. 

According to the criminal policy of both leniency and strictness, it is differentiated when sentencing.

 

   Defendant Li Moumou was the offender and the main violent perpetrator in the joint crime, and his status and role were obviously greater than that of other defendants, and he had no repentance.

 In view of the fact that at the time of the crime he had reached the age of 16 but not the age of 18, he was a minor school student, and based on the principle of education and correction in favor of minor criminals, he was given a lighter punishment according to law.

 

   Defendant Wang is the only adult among the five defendants. He is second only to Li in joint crimes. He is the main perpetrator of violent acts, and the violent acts hurt the victims more and are subjectively malignant.

 In view of the fact that he respected the defender's guilty defense opinions before the end of the court trial, he had certain regrets, and he could consider it when sentencing.

 

The defendant Wei XX (brother) drove a car and opened a house in the joint crime, and was an active perpetrator, but his role was smaller than that of the defendants Li XX and Wang XX. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student.

 After arriving in the case, he actively assisted the public security organs in arresting the accomplices. 

He has made meritorious deeds: He has a good attitude of pleading guilty and can apologize to the victim in court and sincerely repent. 

Actively compensate the victims for their damages, and the victims also recommend that they be given a lighter punishment. 

Therefore, in accordance with the principle of education and correction in favor of juvenile offenders, the punishment shall be reduced in accordance with the law.

   Defendant Zhang Moumou mainly followed other defendants in the joint crime, and had shown mercy to the victim, and his effect was relatively smaller than the first three defendants. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student: he can truthfully confess his and his co-convict's main crimes after arriving in the case and in the court trial, and he has a good guilty plea attitude. Take the lead in paying compensation and before the court. Proactively write an apology letter to the victim, apologize to the victim in court, and actively compensate the victim for his losses. 

The repentance is obvious. The victim also recommends a lighter punishment: and his usual performance is good, subjectively malignant and personal danger is small, so it is beneficial to the principle of education and correction for juvenile offenders shall be mitigated in accordance with the law and suspended sentences shall be applied.

The defendant Wei Moumou (brother) mainly followed other defendants in the joint crime, did not directly commit violence to the victim, and had shown mercy to the victim, which was less effective than the other defendants. 

Given that he had committed fourteen at the time of the crime he is the youngest underage student who is under the age of 16, and is the youngest school student in this case.

 He can basically confess his crimes truthfully after arriving in the case and during the court trial, with a good confession attitude: Able to apologize to the victim in court and actively compensate the victim for his losses. 

The victim is also recommended to be punished lightly if he has a performance of repentance: and his previous performance is good, subjectively malignant and personal danger is small, so in line with the principle of education and correction in favor of juvenile offenders, he shall be given a lighter punishment according to law, and shall apply probation.

  Combine the above opinions. In accordance with the relevant provisions of the Criminal Law, the court sentenced defendant Li Moumou to 10 years imprisonment for rape. 

The court sentenced defendant Wang Moumou to 12 years imprisonment, deprived of political rights for two years: sentenced defendant Wei Moumou (brother) to fixed-term imprisonment of four years.

The defendant Zhang XX was sentenced to three years imprisonment with a five-year probation; the defendant Wei XX (brother) was sentenced to three years imprisonment with a three-year probation.

   When the sentence was pronounced, our court informed the right of appeal according to law. After the verdict was pronounced, the collegiate panel gave the defendant a post-sentence interpretation and court education based on the verdict and the circumstances of the trial, and arranged a family meeting between the minor defendant and his relatives.


Refer:

  1. China Rape cases studies
  2. Rape of Minor Girl China






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