Rape of under-age girls, Article 236, Paragraph 3 (1) of Criminal Law, China

 

Rape of under-age girls is bad stipulates in Article 236, Paragraph 3 (1) of the Chinese Criminal Law

Other criminal administrative appeals, letters and visits, bail pending trial, criminal defense, national compensation administrative litigation

(The names of the characters in the article are all pseudonyms)

 

How to use the quantitative analysis method to determine that the "rape of women, rape of under-age girls is bad" as stipulated in Article 236, Paragraph 3 (1) of the Criminal Law?

 

Key Tips 

In some rape cases, there are differences in the trial practice whether to directly consider rapes more than three times (not reaching three persons) as "bad circumstances".

If using a combination of qualitative analysis and quantitative analysis, the starting point of sentencing is determined based on the fact that the rape of a woman or the rape of an under-age girl is the basic fact of the crime, and then the number, frequency, means, and consequences of the rapes will affect the composition of the crime.

The criminal facts increase the penalty amount to determine the benchmark penalty, and adjust the benchmark penalty based on the sentencing circumstances such as the attempted rape and the role of the joint crime.

Comprehensively evaluate the specific situation of the whole case, comprehensively evaluate the social harm of the defendant in all rape crimes, and calculate it Quantify the sentencing results, and draw a qualitative analysis result of whether the rape case is a “bad circumstances” rape.

 

CRIMINAL CASE INDEX

First instance: The People's Court of Yiyuan County, Shandong Province (2010) Yi Xing Chu Zi No. 52 Criminal Judgment (May 24, 2010).

 

Second instance: Zibo City Intermediate People’s Court of Shandong Province (2010) Zi Xing Yi Zhong Zi No. 58 Criminal Judgment (November 3, 2010).

 

RAPE CASE

Public prosecution agency (resistance agency): People's Procuratorate of Yiyuan County, Shandong Province.

 

Defendant (appellant): Fang Hongbiao.

 

The court of first instance found that at noon one day in the summer of 2007, the defendant Fang Hongbiao took his daughter Fang Moumou (born February 21, 1999) to take a bath in the pool at the "Wolf's Nest" in Nanshan of the village. A machine for scrubbing and washing his back commits adultery to Fang.

 From the summer of 2007 to the summer of 2008, the defendant Fang Hongbiao raped Fang three times in his home while his daughter Fang was sleeping. 

On March 5, 2010, the People's Procuratorate of Yiyuan County, Shandong Province filed a public prosecution with the Yiyuan County People's Court for the rape of defendant Fang Hongbiao.

 

Underage Girls Rape Case Trial

The People's Court of Yiyuan County held that the defendant Fang Hongbiao repeatedly raped his daughter under the age of 14, and his behavior constituted a crime of rape, and he should be investigated for criminal responsibility and severely punished according to law. 

In accordance with the provisions of Article 236, Paragraph 1, Article 61, Article 45, and Article 47 of the Criminal Law of the People’s Republic of China, the judgment is as follows:

 

The defendant Fang Hongbiao committed rape and was sentenced to six years in prison

After the verdict of the first instance was pronounced, the public prosecution agency stated that "Fang Hongbiao’s behavior falls within the “criminal law” Article 236, paragraph 3, item (1) of the “rape of women, rape of underage girls, the circumstances are bad, and the punishment shall be ten years.

The above-mentioned fixed-term imprisonment, life imprisonment or death sentence. The first-instance judgment was wrongly applied to the law and the sentence was improper”. The defendant Fang Hongbiao filed an appeal on the grounds of “not committing rape”. The defender of the defendant Fang Hongbiao put forward a defense opinion that "there is insufficient evidence to prove that Fang Hongbiao constituted rape."

 

The Zibo City Intermediate People's Court held that after trial, the appellant Fang Hongbiao repeatedly raped his eight- or nine-year-old daughter. 

The circumstances were bad and his behavior constituted the crime of rape and should be severely punished according to law. 

In this case, Fang Moumou’s knowledge and judgment of appellant Fang Hongbiao’s rape behavior were consistent with his actual age and mentality, and it was consistent with appellant Fang Hongbiao’s confession in the public security organs and the circumstances of his own confession.

The inspection records of Fang Moumou Hospital confirmed each other to confirm. Therefore, the appellant Fang Hongbiao’s grounds for “not guilty” and the defender’s defense of “without sufficient evidence to prove that Fang Hongbiao constituted the crime of rape” could not be established. 

The court rejected it. The appellant Fang Hongbiao violated ethics and morality. He repeatedly raped his own young daughter and caused him to urinate incontinence. 

His behavior complies with the provisions of Article 236, Paragraph 3 (1) of the Criminal Law of the People’s Republic of China.

The situation of adultery of underage girls is bad. The reason for the protest of the protest organ is established and accepted by this court.

 The facts ascertained in the original judgment were clear, the evidence was reliable, sufficient, and the qualitative accuracy was accurate.

 The trial procedures were legal, but the law and sentencing were improper. In accordance with Article 236, Paragraph 2, Article 3, Item (1), Article 61, Article 62, Article 45, and Article 47 of the Criminal Law of the People's Republic of China, "The Criminal Procedure Law of the People's Republic of China" Article 189 (1), (2), the judgment is as follows:

 

1. Uphold the conviction of the appellant Fang Hongbiao in the Yiyuan County People’s Court (2010) Yixingchuzi No. 52 Criminal Judgment, that is, the defendant Fang Hongbiao guilty of rape.

 

2. To revoke the sentencing part of the Yiyuan County People's Court (2010) Yi Xing Chu Zi No. 52 Criminal Judgment on the appellant Fang Hongbiao, that is, he was sentenced to six years in prison.

 

3. Fang Hongbiao, the appellant, committed rape and was sentenced to 11 years in prison.

 

Comment and Analysis of Article 236 of the Chinese Criminal Law

The third paragraph of Article 236 of the Criminal Law stipulates five statutory aggravated penalties for the crime of rape. Among them, the provisions of the second to fifth items, as long as the facts of the case are clear and the evidence is sufficient, there are more controversies in judicial practice regarding the application of law.

However, there are big differences in practice as to how to grasp the first item of "rape women and rape of under-age girls with a bad plot".

 

1. The legislative evolution of the aggravated circumstances of rape

On April 26, 1984, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued "Answers to Several Questions Concerning the Specific Application of Laws in the Current Rape Cases" (hereinafter referred to as "Answers") on what is meant by "particularly serious circumstances" "Explained that the "extraordinarily serious circumstances" in the crime of rape mainly include the following situations:

(1) Rape of women or rape of underage girls is cruel

 (2) Rape of women or rape of underage girls or multiple persons or multiple times.

 (3) Gang-raping women, especially the chief elements of gang rape of underage girls.

(4) Suicide, mental disorders, and other serious consequences caused by rape of women or under-age girls.

(5) Abduction and rape of women in public places

(6) More The use of obscene materials, black lantern dances and other methods to lure young women into rape has caused very bad social effects and great harm.”

When the Criminal Law was revised in 1997, the contents of this answer were used for reference, and the content of the answer was adopted in the Criminal Law.

The provisions expressly stipulate the particularly serious circumstances of the crime of rape, and treat them as statutory aggravating circumstances.

The third paragraph of Article 236 of the Criminal Law stipulates five statutory aggravating circumstances:

1.  Rape of a woman or rape of a young girl with a bad circumstance
2.  Rape of a woman or rape of a young girl with multiple persons
3.   Rape women in public in public places
4.  Gang-rape more than two persons.
5.  Cause the victim to be seriously injured or killed or cause other serious consequences.”

From the perspective of the structure of this paragraph, the first item is a general provision. Because there are so many situations in reality, it is impossible for the law to list particularly serious circumstances.

 Therefore, using "bad circumstances" to regulate particularly serious rape circumstances leaves the judge with a certain degree of discretion.

 

Compared with the Criminal Law of 1997 and the 1984 "Answers", an obvious change is that the cases of rape of women and rape of underage girls multiple times are not separately listed as aggravating circumstances.

In this regard, a reasonable explanation can only be that this situation is different from other situations that should be aggravated in the crime of rape, and cannot be regarded as an aggravated situation in the crime of rape. 

Therefore, judging from the legislative evolution of the crime of rape, the rape of women and the rape of underage girls many times cannot be regarded as "evil circumstances".

In the absence of express provisions in the current criminal law and judicial interpretation, whether the rape of a woman or rape of an under-age girl many times is deemed to be a bad circumstance.

 There is considerable controversy in judicial practice as to what constitutes a "bad circumstance" behavior. Some believe that rape Women or underage women have been raped more than three times.

Some believe that the methods of raping women or underage women are cruel, and some believe that the same woman has been illegally detained for a long time and raped many times, etc.

 In this case, the procuratorial organs filed a protest on the grounds that "rapeing an underage girl was repeatedly a bad act"

 

2. Using quantitative analysis methods to identify the "evil circumstances" of rape

In standardized sentencing, quantitative analysis methods can be used to send sentencing to rape cases involving rape of women and under-age girls more than once, so as to accurately determine the “evil circumstances” of rape.

 

First, determine the starting point for sentencing. The "Guiding Opinions on Sentencing by the People's Courts (Trial)" (hereinafter referred to as the "Guiding Opinions on Sentencing") stipulates that if a woman is raped or an underage girl is raped once. The criminal circumstances and consequences are general, the starting point for sentencing is three to five years in prison." 

The Implementing Rules of the Provincial Higher People’s Court "Guiding Opinions on Sentencing of the People's Court (for Trial Implementation)" (hereinafter referred to as the "Sentencing Rules") stipulates that if one person commits adultery with an underage girl once, the starting point for sentencing is fixed-term imprisonment of four years and six months to five years-this case.

In the case, the defendant Fang Hongbiao raped his daughter under the age of 14, causing Fang to sometimes suffer from urinary incontinence. Therefore, the Zibo City Intermediate People’s Court determined that the sentence should be five years in prison.

 

Second, determine the benchmark penalty. The "Guiding Opinions on Sentencing" stipulates that on the basis of the starting point of sentencing, the penalty can be increased based on the number of rapes, the number of times, the consequences of causing injuries and deaths and other criminal facts that affect the composition of the crime, and the benchmark penalty is determined. No casualties were caused. 

However, the number of times was four, and the penalty was increased. 

According to the "Sentence Implementation Rules", for each additional time of adultery of the same young girl, one year and six months to two years can be added to determine the benchmark sentence. 

The Zibo City Intermediate People's Court decided to increase the sentence by five years (a year and eight months multiplied by three times) based on the facts of the case and the number of rapes, so the benchmark sentence is ten years in prison.

 

Third, the scale of punishment is adjusted based on the penalty, and the sentence to be pronounced is determined. In this case, the defendant Fang Hongbiao refused to plead guilty. 

He did not have the 14 sentencing circumstances stipulated in the "Guiding Opinions on Sentencing", nor did he have the 25 sentencing circumstances stipulated in the "Sentencing Implementation Rules", so the benchmark sentence is the intended sentence.

 

Fourth, confirm the sentence. The "Guiding Opinions on Sentencing" stipulates: "According to the specific circumstances of the case, a single judge or a collegiate panel may adjust the proposed sentence within a 10% range." "Sentencing Implementation Rules/Regulations:

 "According to the circumstances of the whole case, sole The judge or the collegiate panel may adjust the proposed sentence within a range of 10% and generally not less than one month.” 

The collegial panel held that the defendant Fang Hongbiao, as the guardian of the victim, knew that his daughter was under 14 years old and imposed it four times. 

Adultery, and refused to plead guilty after returning to the case, the subjective malignancy is deep, and should be punished severely as appropriate. 

The collegiate panel's discretion is 10%, that is, 12 months, so the collegiate panel determined that the sentence was eleven years in prison.

 

One of the biggest characteristics of the reform of the standardization of sentencing is that it has changed the previous empirical sentencing law that mainly relied on judges’ personal training and practical experience to “evaluate” sentencing. 

The method of quantitative analysis was introduced into sentencing, the sentencing steps were unified, the sentencing procedures were standardized, and the sentencing procedures were ensured. 

Achieve balanced and fair sentencing. In the sentencing of this case, the Zibo City Intermediate People’s Court did not simply rely on trial experience and directly identified the rape of women and rape of under-age girls as "abominable circumstances" and sent sentences within the range of more than ten years of fixed-term imprisonment, life imprisonment or death penalty. 

Instead, it makes full use of quantitative analysis methods to determine the starting point of sentencing by taking adultery of an underage girl once as the basic fact of the crime, and determining the benchmark sentence based on the increase in the number of rapes, etc., and then considering what sentencing circumstances the defendant has, and combining the specific circumstances of the case, according to law.

The fixed term of imprisonment shall be eleven years in prison. That is to say, after taking into account the number of rapes of the defendant in this case, the object of adultery, the consequences of the crime, the special status relationship between the defendant and the victim, etc., it is determined that the defendant belongs to the “evil circumstances” of the rape crime. The qualitative analysis is based on quantitative analysis.

 

 

Refer: Rape Case Li XX