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.
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.
