Point of View... Practical identification difficulties when committing rape.
Published:
2022-03-18
Rape cases, which can be said to be the simplest and most complex type of cases, have always attracted public attention more easily than other cases. Say it is simple, because you know a little about wind and moon; Say it is complicated, because you don't understand other people's wind and moon. In such cases, in addition to the typical situation of obvious violence, coercion or other methods against women, in many cases, how to determine whether sexual behavior is against the will of women or violates women's sexual autonomy is one of the most difficult proof problems in judicial practice. The crime of rape in our country is defined as: violence, coercion or other means, against the will of women, forced to have sexual intercourse with them. The most important point of knowledge in this definition is against the will of women. What is meant by going against a woman's will? Obviously, it's not easy to define. This is not only because women's will belongs to the content of people's inner world, belongs to the connotation of facts rather than external facts, it is difficult to prove by direct proof, generally only through objective evidence to infer the way to reflect. What is more complicated is that most of these crimes occur in private space, often with only the two parties involved and no third person, so it is difficult to obtain evidence. Moreover, due to the complexity, diversity and variability of human behavior, sometimes the external obedience or resistance is difficult to reflect the true psychological thoughts and subjective will of the parties. In this case, it is difficult to convince one party to be guilty by the confession of one party alone. What's more, violating the will does not mean disagreement, and the scene of violating the will is also more common in life. For example, students are unwilling to do their homework, but they choose to write under the pressure of teachers and parents. This is actually against the will; businessmen are unwilling to pay taxes, and eventually pay, which is also against the will. Therefore, to determine whether a person constitutes rape, in the absence of conclusive evidence to prove it, it is impossible to form a fair judgment only by violating the will. In most cases, the situation of Rashomon will occur. So, under what circumstances can rape be identified? It is generally believed that as long as there is evidence to prove that women do not know, can not or dare not resist, it can be identified as against the will of women, but in practice is not simple. The author believes that the following two aspects should be paid attention: First, the point in time to determine the violation of a woman's will should not be before or after the occurrence of sexual behavior, but should be when and during the occurrence of sexual behavior. Because sexual behavior is a continuous process, sexual autonomy belongs to personal rights rather than property rights, which is special. Consent before or at the beginning of sexual activity cannot be considered as a woman's approval of subsequent behavior. Because women have the right to claim sexual autonomy at any time, whether before or during the course of sexual behavior, once the woman is unwilling to continue the relationship, and the perpetrator chooses to continue against the will, it can be deemed to be against the will of the woman. Second, the criterion for violating women's will should not be whether women are willing, but whether women act or choose to make under the premise of free will. Against the will and against the will are two concepts. A woman's consent to have a relationship with the perpetrator may be against her will, not under the circumstances of her willingness, but as long as the sexual relationship with the perpetrator is a choice made under the circumstances of the freedom of the woman's will, it should be considered as not violating the will of the woman, otherwise, it should be considered as against the will of the woman. The real difficulty in practice lies in this. Not only because this is a connotative fact, under normal circumstances, the two sides will hold their own words, and the version of the story is completely opposite, but under what circumstances can it be determined that it is against the will of women, whether it is their voluntary choice or forced to do it? in fact, there is a lack of objective and unified judgment standards, and the different understandings between different judgment subjects will also cause great controversy. What should we rely on to judge? The author thinks that we should judge according to the objective evidence left before, at and after the crime, and rely on the proof method of inference. 1. Before the crime The review of almost every rape case starts from this part. At this stage, we should focus on the cognitive process of both parties before the crime, the length of time and the familiarity of both parties to judge women's cognitive ability of sexual relations. Whether the two parties have emotional foundation? Whether they can have sexual relations naturally? It is the key problem to be solved at this stage. "Logic is more credible than words", and some objective details may become the winner or loser of the case. 2. At the time of the crime The location selected at the time of the crime, the means taken by the perpetrator in the process, the situation of conversation, the way and frequency of sexual relations, the injury of women, the situation of calling for help and so on are important factors to judge the resistance ability of women in the process of sexual relations. All behaviors can be traced, and the performance of women in the process of the crime can best reflect the subjective mentality. The on-site investigation and the collection of material evidence at this stage are the top priorities in the case review. 3. After the crime After the incident, women's emotions, treatment methods, whether to call the police, through whom to call the police, the reaction time of the police, physical examination, etc., are the focus of judging women's psychology. Especially when the sexual relationship is known by a third person (husband, boyfriend), when judging the logic of women's statement, we should fully consider the factors that the psychological state of women who report to the police afterwards may be interfered and influenced by others. The above judgment method has its advantages, but it also has its defects. The reason why there is no unique standard to confirm the composition of rape is that human nature is too complex, especially human life. How should such cases be handled? The author believes that when handling such cases, especially judging whether the sexual relationship is a choice made by a woman under the free will of a woman, neither can it be judged completely from the standpoint of a woman, nor can it be replaced by the choice made by an ordinary person in this situation. The judgment of the will at that time should be comprehensively determined based on the evidence in the case, based on the overall process of the case, combined with the cognitive ability, resistance ability, past experience and other individual factors of the victimized women, judge whether the behavior of the perpetrator is enough to affect the freedom of will of the victimized women under the specific situation, so that they can make involuntary choices to have a relationship with the perpetrator under the situation of ignorance, inability and dare not resist. At the same time, refer to how ordinary people choose in similar situations to test and judge whether it conforms to the general rules of experience and common sense, this is to meet the standard of clear facts and sufficient evidence.
Rape cases, which can be said to be the simplest and most complex type of cases, have always attracted public attention more easily than other cases. Say it is simple, because you know a little about wind and moon; Say it is complicated, because you don't understand other people's wind and moon. In such cases, in addition to the typical situation of obvious violence, coercion or other methods against women, in many cases, how to determine whether sexual behavior is against the will of women or violates women's sexual autonomy is one of the most difficult proof problems in judicial practice.
The crime of rape in our country is defined as: violence, coercion or other means, against the will of women, forced to have sexual intercourse with them. The most important point of knowledge in this definition is against the will of women. What is meant by going against a woman's will? Obviously, it's not easy to define. This is not only because women's will belongs to the content of people's inner world, belongs to the connotation of facts rather than external facts, it is difficult to prove by direct proof, generally only through objective evidence to infer the way to reflect. What is more complicated is that most of these crimes occur in private space, often with only the two parties involved and no third person, so it is difficult to obtain evidence. Moreover, due to the complexity, diversity and variability of human behavior, sometimes the external obedience or resistance is difficult to reflect the true psychological thoughts and subjective will of the parties. In this case, it is difficult to convince one party to be guilty by the confession of one party alone. What's more, violating the will does not mean disagreement, and the scene of violating the will is also more common in life. For example, students are unwilling to do their homework, but they choose to write under the pressure of teachers and parents. This is actually against the will; businessmen are unwilling to pay taxes, and eventually pay, which is also against the will. Therefore, to determine whether a person constitutes rape, in the absence of conclusive evidence to prove it, it is impossible to form a fair judgment only by violating the will. In most cases, the situation of Rashomon will occur.
So, under what circumstances can rape be identified? It is generally believed that as long as there is evidence to prove that women do not know, can not or dare not resist, it can be identified as against the will of women, but in practice is not simple.
The author believes that the following two aspects should be paid attention:
First, the point in time to determine the violation of a woman's will should not be before or after the occurrence of sexual behavior, but should be when and during the occurrence of sexual behavior.
Because sexual behavior is a continuous process, sexual autonomy belongs to personal rights rather than property rights, which is special. Consent before or at the beginning of sexual activity cannot be considered as a woman's approval of subsequent behavior. Because women have the right to claim sexual autonomy at any time, whether before or during the course of sexual behavior, once the woman is unwilling to continue the relationship, and the perpetrator chooses to continue against the will, it can be deemed to be against the will of the woman.
Second, the criterion for violating women's will should not be whether women are willing, but whether women act or choose to make under the premise of free will.
Against the will and against the will are two concepts. A woman's consent to have a relationship with the perpetrator may be against her will, not under the circumstances of her willingness, but as long as the sexual relationship with the perpetrator is a choice made under the circumstances of the freedom of the woman's will, it should be considered as not violating the will of the woman, otherwise, it should be considered as against the will of the woman.
The real difficulty in practice lies in this. Not only because this is a connotative fact, under normal circumstances, the two sides will hold their own words, and the version of the story is completely opposite, but under what circumstances can it be determined that it is against the will of women, whether it is their voluntary choice or forced to do it? in fact, there is a lack of objective and unified judgment standards, and the different understandings between different judgment subjects will also cause great controversy. What should we rely on to judge? The author thinks that we should judge according to the objective evidence left before, at and after the crime, and rely on the proof method of inference.
1. Before the crime
The review of almost every rape case starts from this part. At this stage, we should focus on the cognitive process of both parties before the crime, the length of time and the familiarity of both parties to judge women's cognitive ability of sexual relations. Whether the two parties have emotional foundation? Whether they can have sexual relations naturally? It is the key problem to be solved at this stage. "Logic is more credible than words", and some objective details may become the winner or loser of the case.
2. At the time of the crime
The location selected at the time of the crime, the means taken by the perpetrator in the process, the situation of conversation, the way and frequency of sexual relations, the injury of women, the situation of calling for help and so on are important factors to judge the resistance ability of women in the process of sexual relations. All behaviors can be traced, and the performance of women in the process of the crime can best reflect the subjective mentality. The on-site investigation and the collection of material evidence at this stage are the top priorities in the case review.
3. After the crime
After the incident, women's emotions, treatment methods, whether to call the police, through whom to call the police, the reaction time of the police, physical examination, etc., are the focus of judging women's psychology. Especially when the sexual relationship is known by a third person (husband, boyfriend), when judging the logic of women's statement, we should fully consider the factors that the psychological state of women who report to the police afterwards may be interfered and influenced by others.
The above judgment method has its advantages, but it also has its defects. The reason why there is no unique standard to confirm the composition of rape is that human nature is too complex, especially human life.
How should such cases be handled? The author believes that when handling such cases, especially judging whether the sexual relationship is a choice made by a woman under the free will of a woman, neither can it be judged completely from the standpoint of a woman, nor can it be replaced by the choice made by an ordinary person in this situation. The judgment of the will at that time should be comprehensively determined based on the evidence in the case, based on the overall process of the case, combined with the cognitive ability, resistance ability, past experience and other individual factors of the victimized women, judge whether the behavior of the perpetrator is enough to affect the freedom of will of the victimized women under the specific situation, so that they can make involuntary choices to have a relationship with the perpetrator under the situation of ignorance, inability and dare not resist. At the same time, refer to how ordinary people choose in similar situations to test and judge whether it conforms to the general rules of experience and common sense, this is to meet the standard of clear facts and sufficient evidence.
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