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

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(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

 

The Rape of Wang Weiming View of Judges

1. Wang Weiming has twice sued for divorce on the grounds that the relationship between husband and wife has indeed broken down. After the court's first-instance judgment granted the divorce, both parties had no objection to it. Although the first-instance judgment did not take effect, it shows that both parties approved the divorce judgment. At this time, the marital relationship of both spouses has been in an abnormal stage of disintegration, and the rights and obligations between husband and wife have changed from living together to their own re-choice of marriage.

 This is the inevitable result of both parties exercising their right to freedom of marriage in accordance with the law. It is also the need for the court to carry out the trial activities normally. 

If both parties are still required to perform their sexual obligations during the period, not only will the husband and the wife be emotionally unacceptable, but it will also be impossible to judge whether the relationship between the husband and wife has broken down, which brings chaos to the trial work.

 It is a sign of the normal existence of a husband and wife relationship. Based on this, it can be concluded that Wang Weiming no longer enjoys the right to have sex with his husband during the marriage relationship.

 

2. The crime of rape refers to the act of using violence, coercion or other means to force sexual relations with a woman against the will of a woman. my country’s “Criminal Law” clearly stipulates that the criminal subject of rape is a general subject, and does not exclude the husband. 

Moreover, my country’s “Marriage Law” only gives one party the freedom to have sex within marriage, and does not give one party the freedom to force another party during marriage. 

Freedom for one party to have sex. Women’s sexual inviolability rights cannot be forfeited by entering into a marriage relationship. Whether outside or inside marriage, this right is the same. 

(1) First part

 

1. Judgment font size

 

Shanghai Qingpu County People's Court (1998) Qing Xing Chu Zi No. 36

 

2. The cause of the case: rape case

 

3. Both parties

 

Public prosecutor: People's Procuratorate of Qingpu County, Shanghai, prosecutor: Chen Weiming; Acting prosecutor: Dong Guofang.

 

Defendant: Wang Weiming, male, born on May 20, 1970, Han nationality, from Qingpu County, Shanghai, and employee of Shanghai Xindu Plastic Products Co., Ltd.

 

Defenders: Liu Yulin and Zhou Bin, lawyers of the First Law Firm in Songjiang District, Shanghai.

 

4. Level of trial: first trial

 

5. Judicial organs and trial organizations

 

Judicial authority: People's Court of Qingpu County, Shanghai.

 

Members of the collegial panel: Chief Judge: Fei Xiongxiong; Judge: Li Huan; Acting Judge: Chen Xiaoxing.

 

6. Time of trial

Refer: Chinese Minor Girls 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.

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.