Judicial Translation of the Supreme Court Rape Case, China

 

Judicial Interpretation of the Supreme Court Rape Case, China

From a broad perspective of society, any act in which one party uses violence or threats to force the other party to have sex with him is considered rape (that is, if a woman forces a man to have sex with him, it is also rape in the eyes of most people). When the victim is unable to refuse to have sex because of alcohol, drugs, or religious influence, having sex with him is also considered rape. Women who abet and help men rape women can also become accomplices in the crime of rape.

 

Q. What are the judicial interpretations of rape?

Ans. The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security "Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Rape Cases" (1984.4.26 [1984] Fa Yan Zi No. 7)

 

1. How to determine the crime of rape?

The crime of rape refers to the act of forcibly having sexual intercourse against a woman by violence, coercion or other means.

 

Knowing that a woman is a mentally ill person or a person with dementia (to a serious degree) and has sex with her, no matter what methods the criminals take, they should be punished as rape. 

Sexual behavior with a patient with intermittent mental illness during the period before the onset of the disease does not constitute the crime of rape if the woman agrees.

 

When determining whether it is against the will of a woman, it cannot be divided by the style of the victimized woman.

 

Forcing a woman who has sex with a woman with a bad style should also be convicted of rape.

 

The determination of rape cannot be based on whether the victimized woman has shown resistance as a necessary condition. 

For women who have not made any expressions of resistance, or the expressions of resistance are not obvious, specific analysis and careful distinction should be made.

 

2. How to identify the violence, coercion and other means in the crime of rape?

"Violent means" refers to the methods that criminals directly use against the victim by beating, binding, choking, or pressing down, etc. that endanger personal safety or personal freedom and make women irresistible.

 

"Coercive means" refers to the means used by criminals to threaten and intimidate the victimized woman to achieve mental coercion. Such as: threatening to retaliate, expose privacy, and harm relatives.

 

Use superstitions to intimidate and deceive, and use parenting, affiliation, power, and isolation and helpless environmental conditions to coerce, persecute, etc., to force women to endure humiliation and surrender, and dare not resist.

 

Cultivation, affiliation, and use of power to have sex with women cannot all be regarded as rape. 

The perpetrator used the specific relationship between him and the victim to force submission, such as the elder father used to torture or deduct the living expenses to force the elder to tolerate the adultery, or the perpetrator used his power to take advantage of the danger to adulterate the woman. Both constitute rape.

 The perpetrator used his power to lure the woman, and if the woman used each other to have sex with him, it would not be a crime of rape.

 For those who have used their power to rape many women and the circumstances are bad, they can be sentenced to hooliganism.

 

"Other means" refers to criminal elements using means other than violence and coercion to make the victim women irresistible. 

For example: using the opportunity of a woman to be seriously ill and sleeping to commit adultery. Using drunkenness, drug anesthesia, and using or counterfeiting to treat diseases.

 

3. What crime and non-crime, and the boundary between this crime and technical crime should be strictly distinguished when handling rape cases?

1. Make a distinction between rape and unmarried sexual misconduct that unmarried men and women commit voluntarily in the course of love.

 

2. How to distinguish between rape and adultery?

 To be careful of:

(1) Some women commit adultery with others, and once they turn their faces, their relationship deteriorates, or after the matter is exposed, they fear losing face, or shirk responsibility or put blame on others, etc., who describe adultery as rape and cannot be criminalized as rape.

 

In handling the case, with regard to the so-called half-push and half-implementation issues, it is necessary to know the usual relationship between the two parties, the circumstances and circumstances under which the sexual behavior occurred, what was the attitude of the woman after the incident, and under what circumstances the facts and circumstances were reported.

 A careful review and a thorough analysis are not against women's will, and it is generally not appropriate to be punished as rape. If it is against a woman’s will, he shall be punished with rape.

 

(2) The first sexual act violated the will of the woman, but it was not reported afterwards. Later, if the woman voluntarily had sex with the man many times, it is generally not appropriate to be punished as rape.

 

(3) After a criminal has raped a woman, he threatens the victim mentally, forcing him to continue to endure humiliation and submission, he shall be punished as rape.

 

(4) Both the man and the woman commit adultery at first, and then the woman is unwilling to commit adultery, and the man entangles and coerces him with violence or corrupt reputation. 

Forcibly having sex with the woman, he shall be punished as rape.

 

3. How to Distinguish between gang rape and messing about sex between men and women?

When some gangsters commit crimes, they both engage in messes between male and female gangsters and kidnap young women for rape. The latter should be convicted of rape.

 

4. How to penalize women who instigate or help men rape?

A woman who instigates or assists a man in committing a rape crime is a joint crime, and should be determined as an abettor or an accomplice according to her role in the rape crime, and be punished in accordance with the relevant provisions of the Criminal Law.

5. What is the judicial interpretation of rape by the Chinese Supreme Court?

"In order to punish the crime of rape in accordance with the law, according to the relevant provisions of the Criminal Law, the judicial interpretation of the crime of rape by the Supreme Court is as follows:

Article 17 and Article 236, paragraph 2 of the Criminal Law

For a person who has reached the age of 14 but not the age of 16, who has sex with an underage girl constitutes a crime, he shall be convicted and punished for rape in accordance with the provisions of Article 17 and Article 236, paragraph 2 of the Criminal Law.

 Sexual relationships are not considered a crime if the circumstances are minor and have not caused serious consequences.

If the perpetrator has committed both the rape of women and the rape of an underage girl, he shall be punished severely for rape in accordance with the provisions of Article 236 of the Criminal Law.

What is the judicial interpretation of the Supreme Court's surrender and meritorious service?

"In order to correctly identify surrender and meritorious service, criminals who have surrendered or meritorious service shall be subject to penalties in accordance with the law, and the specific application of the law is explained as follows:

Article 1 According to the first paragraph of Article 67 of the Criminal Law:

After committing a crime, he voluntarily surrenders to the crime and truthfully confess his crime is to surrender.

(1) Automatic surrender means that the facts of the crime or the suspect has not been discovered by the judicial organ, or although the suspect has been discovered, but the suspect has not been interrogated or has not taken compulsory measures, take the initiative and directly report to the public security organ, the people’s procuratorate or The people's court surrendered.

Criminal suspects surrender to their unit, urban and rural grass-roots organizations, or other relevant persons in charge.

 The criminal suspect entrusts others to surrender to the case due to illness, injury, or in order to reduce the consequences of the crime, or surrender to the case by letter or power, the crime has not yet been judicially established.

The agency found that, only because of suspicious behavior, after being cross-examined and educated by the relevant organization or judicial agency, they voluntarily confessed their crimes. They fled after committing a crime, and voluntarily surrendered in the process of being wanted or pursued; after investigation, they are indeed ready to commit crimes. 

Or if they are caught by the public security organ while they are surrendering, they shall be deemed to have surrendered automatically.

It is not because the criminal suspect takes the initiative, but is persuaded and accompanied by relatives and friends to surrender; if the public security organ informs the suspect’s relatives or friends, or sends the criminal suspect to surrender after reporting the crime, it shall also be regarded as automatic surrender.

If a criminal suspect voluntarily surrendered and then fled, he shall not be deemed to have surrendered.

(2) A truthful confession of one's own crimes means that after the criminal suspect voluntarily surrendered to the crime, he truthfully confessed his main crime facts.

If a criminal suspect who has committed multiple crimes only truthfully confessed part of the crimes committed, only the act of truthfully confessing part of the crime is deemed to be surrendered.

In a joint crime case, the criminal suspect should not only truthfully confess his crimes, but also the known co-criminals, and the principal should confess the co-criminal facts known to other co-criminals before they can be deemed to have surrendered.

A criminal suspect who voluntarily surrenders and truthfully confessed his crime and then retracts his confession shall not be deemed to have surrendered; but if he can truthfully confess before the first instance judgment, he shall be deemed to have surrendered.

Article 2 According to the second paragraph of Article 67 of the Criminal Law, criminal suspects, defendants and sentenced criminals who have been subjected to compulsory measures shall truthfully confess crimes that the judicial organs have not yet grasped, and that they are not consistent with those already grasped or sentenced by the judicial organs. If the confirmed crimes belong to different kinds of crimes, surrender is considered.

Article 3 According to the first paragraph of Article 67 of the Criminal Law, criminals who surrender can be given a lighter or mitigated punishment; those who commit a lesser crime can be exempted from punishment. 

The specific determination of lighter, reduced or exempted punishment should be based on the severity of the crime and the specific circumstances of the surrender.

Article 4 Criminal suspects, defendants, and sentenced criminals who are subjected to compulsory measures may truthfully confess crimes that the judicial organ has not yet grasped, and which are of the same kind of crimes as those already grasped by the judicial organ or confirmed by the verdict, may be lightened as appropriate. 

Punishment: If the same kind of crimes truthfully confessed are more serious, they should generally be given a lighter punishment.

Article 5 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported and exposed other criminal acts after they arrived in the case, including criminals in joint crime cases who reported other crimes other than the co-criminal crimes, which were verified to be true. 

Provide important clues to the investigation of other cases, which are verified to be true.

 prevent others' criminal activities; assist judicial organs in arresting other criminal suspects (including co-convicts).

Those with other outstanding performances that are beneficial to the country and society should be deemed to have performed meritorious service.

Article 6 After the criminals in a joint crime case come to the case and expose the facts of the joint crime, they may be given a lighter punishment as appropriate.

Article 7 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported or exposed other people's major crimes, which are verified to be true, provide important clues for the detection of other major cases, which are verified to be true.

Prevent others from major criminal activities.

Assist judicial organs in arresting other major criminal suspects (including co-convicts).

Those who have made other major contributions to the country and society shall be deemed to have performed major meritorious service.

The standards for "major crimes", "major cases", and "major criminal suspects" mentioned in the preceding paragraph generally refer to criminal suspects or defendants who may be sentenced to life imprisonment or more or the case is in the province, autonomous region, municipality, or nationwide. There are situations such as greater influence.

The above is the judicial interpretation of the Supreme Court’s surrender and meritorious service. Hope you will be satisfied.

Whether the defendant who has surrendered or made meritorious service is to be punished with lenient punishment and the extent of the lenient punishment shall be considered by the facts of the crime, the nature of the crime, the circumstances of the crime, the harmful consequences, social influence, the defendant's subjective malignancy and personal danger, etc.

 Those who surrender should also consider the initiative to surrender, the timeliness and stability of the confession. Those who have done meritorious service should also consider the severity of the reported crime, the possible or sentenced penalties of the reported and exposed person, and the extent to which the clues provided can play a role in detecting the case or assisting in the arrest of other criminal suspects.

 

　　Those who have surrendered or made meritorious services shall generally be given a lighter and mitigated punishment in accordance with the law. 

If the crime is less serious, the punishment may be exempted. In similar circumstances, the margin of leniency for defendants who have surrendered should be appropriately wider than defendants who have meritorious services.

 

Although there is a circumstance of surrender or meritorious service, but the circumstances of the crime are particularly bad, the consequences of the crime are particularly serious, the defendant is subjectively malignant, and the personal danger is high, or the person is prepared to surrender and meritorious service in order to evade the law or evade punishment before committing the crime. Leniency punishment.

 

According to the Supreme People’s Court’s judicial interpretation on surrender and meritorious service, if the defendant has a circumstance of surrender and meritorious service, as well as recidivism, drug recidivism and other statutory severe punishment circumstances, it is necessary to consider the specific circumstances of surrendering and meritorious service and the defendant’s circumstances. 

Subjective malignancy, personal danger and other factors shall be analyzed and judged comprehensively, and a leniency or severe punishment shall be determined. 

If the former crime of the repeat offender is a non-violent crime, he can generally be punished with leniency. If the former crime is a violent crime or the former and subsequent crimes are similar crimes, he may not be punished with leniency.

Refer:

Under-age Girl Rape China