Viewpoint | Effective Defense of a Case of Compulsory Indecency and Insult-Whether the Original Match Catches Rape, Beatings Naked "Little Three" and Videotapes Constituting Crime

Published:

2022-04-06

Brief of the case Bai (female) and Wang (male) have been married for many years, and have a daughter, Xiao Wang, who is an adult. Bai and Wang have a bad relationship in recent years and often quarrel. Later Bai went to her daughter's home to live because she took care of her children for her daughter Xiao Wang. In early 2020, Bai learned that her husband, Wang, was outside and often took the woman to spend the night at home. On the evening of April 1, 2020, after confirming that Wang and "small three" were sleeping at home, Bai, in order to collect evidence of her husband's marital infidelity, contacted her daughter Xiao Wang and nephew Li and other relatives and friends 4 men and 4 women to catch rape at home. Xiao Wang climbed into the room from the balcony of his neighbor's house to open the door without using the key. Nine people rushed into the room. Bai and Xiao Wang beat the "mistress" and prevented him from putting on clothes and blocking his private parts to keep him naked all the time. Li recorded the whole process of nudity and humiliation of the "mistress" for about 30 minutes, the rest are responsible for controlling Wang mou to prevent him from resisting and for the whole process. Video recording. Xiao Wang and others took the initiative to call the police in order to leave smoothly, considering that Wang had a tendency to violence. After forensic identification, "Xiao San" suffered facial contusion, soft tissue swelling caused by external force, accompanied by scattered skin scratches on the face and trunk, and the degree of injury was minor. The public security organ filed a case for investigation on suspicion of compulsory indecency and insult by Bai, Xiao Wang and Li, and then transferred the case to the procuratorate for examination and prosecution. Case handling results The author accepted the entrustment at the stage of examination and prosecution. After reading the papers, the author thinks that the behavior of Bai and others does not constitute the crime of compulsory indecency or compulsory insult. Although the public security organ can accept the alarm affairs, it should not put the case on file for investigation as a criminal case. Based on the above analysis, after forming a written defense opinion, the author communicated with the undertaking prosecutor many times and submitted a legal search report on similar cases. Finally, the undertaking prosecutor adopted the above opinions of the author, believing that Bai and others did not constitute the crime of compulsory indecency and insult, and returned the case to the public security for withdrawal. 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 principle of "taking facts as the basis and the law as the criterion" and fairness and justice is the ultimate fairness of Bai and others. The fundamental guarantee for handling. defense thinking The news that the original match took people to catch rape and beat "mistress" in public often appeared on the Internet. The author conducted legal searches through big data and found that the judicial practice was not the same for this kind of behavior. Some courts believed that violence was used. The method openly insulted women in public, and the circumstances constituted a crime of compulsory insult; some courts believed that the act constituted a crime of insult and was a private prosecution case; some courts believed that this act was a crime of compulsory indecency. The public security organ transferred the case to the procuratorate for examination and prosecution on suspicion of compulsory indecency and insult. The author believes that the crime of compulsory indecency and insult is a selective crime, and Bai's behavior involved in the case is neither compulsory indecency nor compulsory insult. Looking at the whole process of the incident, we can see that Bai was very angry about her husband Wang's infidelity during his marriage and wanted to sue for divorce. He gathered his daughter and others to collect divorce evidence by catching rape in bed. At the time of the incident, someone was responsible for controlling Wang, and someone was responsible for filming the entire process. Bai beat the "little three" in anger 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 compulsory indecency and insult depends on whether Bai and others subjectively have the criminal intention of "pursuing sexual stimulation and sexual satisfaction" and objectively Whether it infringes on the sexual autonomy of the "little three. Analysis of the charges involved According to the provisions of Article 237 of the Criminal Law of our country, the crime of compulsory indecency and insult refers to the act of forcibly molesting others or insulting women by violence, coercion or other means against the will of the victim. The object of the crime of compulsory indecency and compulsory insult is the victim's right to decide on sexual freedom. The crime of compulsory indecency and insult is a selective crime in form. In theory, it can be identified as a complete crime, and the "compulsory indecency" and "compulsory insult" can be convicted separately. However, the author believes that there is a certain rank relationship between "compulsory indecency" and "compulsory insult". Of course, indecency hurts women's sexual shame and personal dignity in sexual health, so it must "insult" women at the same time. For those whose behavior means and circumstances are related to "indecency" but slightly lower than "compulsory indecency", the "crime of compulsory insult" can be determined separately ". Although it is not stated in the law that the crime should be constituted "for the purpose of pursuing sexual stimulation and sexual satisfaction", both in theory and in practice, it is required that the crime should be constituted subjectively "for the purpose of pursuing sexual stimulation and sexual satisfaction", that is, the actor has a specific stimulation and the tendency to satisfy sexual desire is a necessary condition for the crime. analysis of the case (I) Bai and others entered the house to "catch rape" in order to collect evidence of divorce, the various acts involved in the case were to vent their anger, did not have the purpose of pursuing sexual stimulation and sexual satisfaction, and did not meet the constitutive elements of the crime of compulsory indecency. The cause of this case is that Bai mou wanted to collect evidence of her husband's infidelity for divorce because her husband had an extramarital affair with the victim. considering that her husband was irritable and had committed domestic violence against him, Bai mou found his daughter Xiao Wang and other relatives to help "catch rape" and collect evidence. At the time of the crime, Bai saw her husband sleeping naked with the victim in his own home. Bai opened the quilt, and then controlled the victim with Xiao Wang and others, abused, pulled, prevented him from wearing clothes, and arranged for someone to take nude photos of the naked victim. This case is dominated by Bai. Xiao Wang is his daughter. He participated in the case out of the motive of helping his mother teach the "little three". The other people present were Bai's relatives and friends, and the victim was taught out of the idea of helping Bai. Although Li was a male, he was only responsible for taking photos and videos at the time of the crime, and did not have physical contact with the victim. "Indecency" is interpreted as "promiscuous and indecent actions" in the "Modern Chinese Dictionary". Compulsory indecency emphasizes personal contact to a certain extent. Judging from the course of the case, it is mainly Bai who has physical contact with the victim in this case. In this case, the closest action to "indecency" is Bai's "grabbing the lower body" and "touching the breast" of the victim. However, Bai, as a derailed woman, did not allow the naked victim to wear clothes, abuse, beat, grab the lower body, touch the breast and other acts at the scene of "catching rape", which was motivated by anger and subjective purpose. It is to derogate the victim's personality and reputation. No matter Bai himself or Xiao Wang and other criminal suspects had no sexual thoughts about the victim at the time of the crime, and subjectively did not have the intention to satisfy the obscene and shameless hooligan psychology. Therefore, the behavior of Xiao Wang and others does not meet the constitutive elements of the crime of compulsory indecency. (II) the behavior of Bai and others does not meet the constitutive elements of the crime of compulsory insult. In the "Modern Chinese Dictionary", the word "insult" has only one meaning, that is, "to damage the personality or reputation of the other party and suffer shame", but "insult" is given a different meaning in the criminal law. The "insult" in the crime of insult in Article 246 of the Criminal Law uses the general meaning of the term, that is, the infringement of citizens' general personal dignity, focusing on the protection of citizens' right of 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 whole criminal law system, it can be seen that the crime of compulsory insult belongs to the crime of infringing on sexual rights and sexual health, focusing on the personal interests and dignity of women's right to decide on their own sex, the "insult" in the count of the crime should be understood as being related to "indecency" or at least equivalent and equivalent in guilt. Different from the insult in the crime of insult, the act of compulsory insult will of course damage and humiliate the other party's personality or reputation, but the crime is limited to the behavior of the perpetrator related to the right to sexual health for the purpose of sexual stimulation and sexual satisfaction. From the point of view of the object of the crime, the crime of compulsory insult is that the perpetrator commits a crime out of hooligan motive, and its object is an unspecified woman, who is randomly selected in the commission of the crime. In this case, Bai and others collected evidence of her husband's infidelity for the purpose of "catching rape", and the object of the violation was specific. From the subjective aspect of the crime, Bai did not insult the victim out of a hooligan motive seeking stimulation. The location of the crime was Bai's own home, which objectively did not endanger the social management order. Bai's purpose was not to accomplish his own hooligan purpose, but only to derogate the victim's personality, venting anger. Therefore, in this case, the behavior of Bai, Xiao Wang and others is based on venting revenge and insulting the victim, making him embarrassed, damaging his reputation and lowering his social evaluation. The object of this behavior is specific. Bai, Xiao Wang and others subjectively do not have the hooligan motive and purpose of pursuing sexual stimulation and sexual satisfaction, and their behavior does not meet the constitutive requirements of the crime of compulsory insult. (III) the behavior of openly insulting others must reach the degree of seriousness to constitute the crime of insulting. The behavior of Bai and others has not reached the degree of seriousness and does not constitute the crime of insulting. According to Article 246 of China's Criminal Law, the crime of insult "refers to the use of violence or other means to openly derogate the personality of another person, damage the reputation of another person, and the circumstances are serious. The crime of the preceding paragraph shall be dealt with only if told, except for those that seriously endanger social order and national interests." The crime of insult violates the object of abstract human dignity and reputation right; the subjective aspect of the perpetrator is generally motivated by revenge, jealousy, and anger, with the purpose of belittling the personality of others and destroying their reputation. Although there is an act of blatant insult to others, it does not belong to the serious circumstances, but only belongs to the general civil tort, that is, the act of blatant insult to others must reach the serious degree to constitute the crime of insult. The so-called serious circumstances, mainly refers to the means bad, serious consequences and other situations. In this case, Bai witnessed her husband sleeping naked with the victim on the spot, and his behavior was out of control. He carried out various humiliating behaviors to the victim. Subjectively, he wanted to make the victim make a fool of himself, mainly out of anger and revenge. The victim in this case knew that Wang was married and still had an improper relationship with him for a long time, destroying other people's families, and had a major fault for the occurrence of this case. Moreover, the case occurred in Bai's own home, which was a closed space. Although Bai and others took photos and videos of the incident, they did not upload the photos and videos to the Internet or forward them to social platforms, it did not cause the victim's social evaluation to be reduced on a large scale, nor did it cause consequences that harmed the public order and national interests. In addition, although Bai and others have beaten the victim, they only cause the harmful consequences of minor injuries to the victim. After the incident, Bai took the initiative to contact the victim, actively compensated the victim and obtained understanding. This case was caused by the intensification of marriage and family conflicts. Bai was unable to correctly handle the marriage crisis. In order to vent his anger and retaliate, the act of "catching rape" violated the law. Considering the circumstances of this case and the victim's own fault, the behavior of Bai and others has not yet reached The degree of seriousness should not be recognized as constituting a crime of insult.

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