Bai Mou (female) and Wang Mou (male) have been married for many years, and have a daughter, Xiao Wang, who is an adult. Bai Mou and Wang Mou have had a bad relationship in recent years and often quarreled. Later, Bai Mou went to live with his daughter Xiao Wang to take care of the children. At the beginning of 2020, Bai learned that her husband Wang was outside, and often took the woman to stay at home for the night. On the evening of April 1, 2020, after confirming that Wang and "Little San" were sleeping at home, Bai, in order to collect evidence of her husband's derailment in marriage, contacted relatives and friends such as daughter Xiao Wang and nephew Li to come home. catch rape. Without using the key to open the door, Xiao Wang climbed into the room from the neighbor's balcony and opened the door. 9 people rushed into the room. Bai and Xiao Wang beat "Xiao San" and prevented him from wearing it. Clothes and covering his private parts to keep him naked all the time, while Li recorded the whole process of nudity and humiliation of "Little San", which lasted about 30 minutes. >

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Considering Wang's tendency to be violent, Xiao Wang and others took the initiative to call the police in order to leave smoothly. After the forensic identification, "Little San" suffered facial contusion, soft tissue swelling, and scattered skin scratches on the face and trunk due to external force. The degree of damage was minor.

The public security organs filed a case for investigation on Bai, Xiao Wang, and Li suspected of forced indecency and insult, and then transferred the case to the procuratorate for review and prosecution.

The author accepted the entrustment during the review and prosecution stage. After reviewing the file, the author believes that the actions of Bai and others did not constitute a crime of forced indecency or forced insult. Although the public security organs can accept the police affairs, they should not file this case as a criminal case for investigation. Based on the above analysis, after forming a written defense opinion, the author communicated with the prosecutor in charge many times, and submitted a legal search report for similar cases. In the end, the prosecutor in charge accepted the author's above opinion and believed that Bai and others did not constitute For the crime of forced indecency and insult, the case will be returned to the public security and suggested to be withdrawn.

Of course, the author's defense point of view will only play a role if it is adopted and accepted by the undertaking prosecutor, and the undertaking prosecutor's adherence to the "fact-based, law-based" principle and fairness and justice is what Bai et al. Fundamental guarantee for the final fair treatment.

The news that the original partner brought someone to arrest the rape and beat the "little three" in public often appeared on the Internet. The author conducted a legal search through big data and found that this kind of behavior is handled differently in judicial practice. Some courts believe that violent methods are used. Publicly insulting a woman in a public place constitutes a crime of forced insult; some courts consider the act to be a crime of insult, which is a case of private prosecution; some courts consider this act to be a crime of forced indecency.

The public security organ transferred the case to the procuratorate for review and prosecution on the basis that Bai was suspected of forced indecency and insult. The author believes that the crime of forced indecency and insult is a selective crime. . Throughout the entire process of the incident, it can be seen that Bai was very angry about her husband Wang's infidelity in marriage, and wanted to sue for divorce, gathering her daughter and others to collect evidence of divorce by catching the rape in bed. At the time of the incident, someone was in charge of controlling Wang, and someone was in charge of filming the whole process. In anger, Bai beat up "Little San" and prevented him from wearing clothes and kept him naked for about half an hour. It can be said that the basic facts of this case are relatively clear. The author believes that whether Bai and others constitute the crime of forced indecency and insult, the key is to see whether Bai and others subjectively have the criminal intention of "pursuing sexual stimulation and sexual satisfaction". And whether it has objectively violated the sexual autonomy of "Little San".

According to Article 237 of the Criminal Law of my country, the crime of forced indecency and insult refers to the act of violating the will of the victim, forcibly molesting others or insulting women by violence, coercion or other methods. sexual freedom. The crime of forced indecency and insult is a selective crime in terms of form. In theory, the complete crime can be identified, and the "forced molestation" and "forced insult" can also be convicted separately. However, the author believes that "forced molestation" and "forced humiliation" have a certain rank relationship, and molestation certainly hurts women's sexual shame and personal dignity in terms of sexual health, so it must be at the same time "Insulting" women, and for acts related to "obscenity" but slightly lower than "forced molestation", the "forced insult crime" can be identified separately.

Although it is not stated in the law that this crime is constituted by "pursuing sexual stimulation and sexual satisfaction", both in theory and practice, it is required that constituting this crime subjectively needs to satisfy "the pursuit of sexual stimulation and sexual satisfaction". Purpose", that is, the perpetrator has a specific tendency to stimulate and satisfy sexual desires is a necessary condition to constitute this crime.

The cause of this case is that Bai wanted to collect evidence of her husband's derailment to sue for divorce because her husband had an extramarital affair with the victim. Considering that her husband was irritable and had domestic violence against him, Bai found his daughter Xiao Wang and other relatives to help" ; catch a rape" to collect evidence.

At the time of the incident, Bai saw her husband and the victim sleeping naked together in her own home. Bai lifted the quilt, and then, together with Xiao Wang and others, controlled the victim, abused, pulled, prevented him from wearing clothes, and arranged for someone else. Take nude photos of naked victims. This case is dominated by Bai, and Xiao Wang is his daughter. He participated in this case with the motive of helping his mother teach "Little San". . Although Li was a male, he was only responsible for taking pictures and videos at the time of the incident, and did not have physical contact with the victim.

"Indecent" is explained in the "Modern Chinese Dictionary" as "promiscuous and obscene actions", and forced indecency emphasizes personal contact to a certain extent. It was mainly Bai, and in this case the closest thing to "lewdness" was Bai's actions such as "grabbing the lower body" and "touching the breast" on the victim. However, as a derailed woman, Bai did not let the victim wear clothes, abused, beaten, grabbed the lower body, touched the breasts, etc. at the "catch the rape" scene, which was motivated by venting anger and subjective. The purpose is to degrade the victim's character and reputation. Whether it was Bai himself or Xiao Wang and other criminal suspects, they had no sexual thoughts about the victim at the time of the crime, and subjectively did not have the intention to satisfy the bastard and shameless hooliganism. Therefore, the behavior of Xiao Wang and others did not meet the criminal elements of the crime of compulsory indecency.

In the "Modern Chinese Dictionary", the word "insult" has only one meaning, that is, "injuring the personality or reputation of the other party, and suffers humiliation", but in the criminal law "insult" is given a different meaning. meaning. The "insult" in Article 246 of the Criminal Law of the crime of insult uses the general meaning of the term, that is, the infringement of the general personal dignity of citizens, and focuses on the protection of citizens' right to reputation. The crime of compulsory insult stipulated in Article 237 of the Criminal Law is separated from the crime of hooliganism in the Criminal Law of 1979. From its historical evolution and its position in the entire criminal law system, it can be seen that it is stipulated in the same article as compulsory indecency. The crime of compulsory insult is a crime related to sexual rights and sexual health. It focuses on the violation of women's personal interests and dignity in terms of sexual autonomy. The "insult" in this crime should be understood as "indecent". ; related or at least somewhat equivalent and equally culpable. Different from the insulting behavior in the crime of insulting, the compulsory insulting behavior will of course damage the personality or reputation of the other party, and suffer humiliation, but the crime is limited to the perpetrator for the purpose of sexual stimulation and sexual satisfaction. associated behavior.

From the point of view of the object of crime, the crime of compulsory insult is the perpetrator committing the crime with hooligan motives, and its object is an unspecified woman who is randomly selected in the implementation of the crime. In this case, Bai and others were collecting evidence of her husband's derailment in order to "catch the adulterer", and the object of the violation was specific; from the subjective point of view of the crime, Bai did not insult the victim out of a hooligan motive to seek excitement. The crime took place in Bai In one's own home, there is no objective damage to the social management order. Bai's purpose is not to complete his hooliganism, but to simply degrade the victim's personality and vent his anger.

Therefore, in this case, the behavior of Bai, Xiao Wang and others was based on revenge, insulting the victim, making him embarrassed, damaging his reputation and lowering his social evaluation. Subjectively, Wang et al did not have the hooligan motive and purpose of pursuing sexual stimulation and sexual satisfaction, and their behavior did not meet the criminal elements of the crime of compulsory insult.

According to Article 246 of my country's Criminal Law, "the crime of insult" refers to the use of violence or other methods to openly degrade the personality of others, damage the reputation of others, and the circumstances are serious. The crimes in the preceding paragraph shall be dealt with only if they are notified, except those that seriously endanger social order and national interests. ” The object violated by the crime of insult is an abstract human dignity and the right to reputation; the perpetrator is generally motivated by revenge, jealousy, and venting his anger, and the purpose is to degrade the personality of others and damage the reputation of others. Although there is an act of openly insulting others, it does not belong to serious circumstances, but is only a general civil tort, that is, the act of openly insulting others must reach the level of serious circumstances to constitute the crime of insult. The so-called serious circumstances mainly refer to the circumstances of bad means and serious consequences.

In this case, Bai witnessed her husband sleeping naked with the victim on the spot, out of control, and carried out various humiliating behaviors to the victim, subjectively trying to make the victim look ugly, mainly out of anger and revenge. The victim of this case knew that Wang was married and still had an improper relationship between men and women for a long time, destroying other people’s families, and was at fault for the occurrence of this case, and this case happened in Bai’s own home, which was a closed space. Although Bai and others Taking photos and videos of the incident, but did not upload the photos and videos to the Internet or forward them to social platforms, which did not cause the victim's social evaluation to be lowered in a large range, and did not cause harm to the public order. and national interests. In addition, although Bai and others had beaten the victim, they only caused the victim to be slightly injured. After the incident, Bai took the initiative to contact the victim, actively compensated the victim and obtained understanding. This case arose due to the intensification of conflicts between marriage and family. Bai could not properly handle the marital crisis. In order to vent his anger and revenge, the act of "catching an adulterer" violated the law. Considering the circumstances of the case and the victim's own fault, the behavior of Bai and others has not yet been taken into account. To the extent that the circumstances are serious, it should not be considered as a crime of insult.