Raped Girl Crime

Crime of raping underage girls refers to a criminal act which often happens, and its nature is very vile and its social impact is serious. Crime of raping underage girls has been strongly concerned by criminal laws of the world, but in our criminal theoretical field, there are different views about the subject of this crime. Over the years, although the diverse views have always been existed, whether in the criminal theory or in the criminal judicial practice, the focus of discussion is the subjective aspect of the crime that a person is whether to "clearly know" a girl under the age of 14 when he has sexual intercourse with the girl. In the January 17th, 2003, the Supreme People's Court, with respect to crime of raping underage girls, made the new judicial interpretation, namely, Reply on Whether it Constitutes Crime of Rape When a Man Has Sexual Intercourse With a Girl Voluntarily Once He Does Not Clearly Know That the Girl is Under the Age of 14, which brings the question into the social vision again and arouses the new controversy.Through analysis on the content and the reason for promulgation of this judicial interpretation and through comparing and analyzing the two sides of controversial views and reasons, this article denies the principle of "strict liability" of Anglo-American law system applicable to the criminal theoretical system of our country, and insists on the application of the criminal theoretical principle of unification of subjective and objective, and seeks a balance between the special policies of protection of underage girls and the rights of protection of the accused. This article suggests that, while disposing the crime of raping underage girls, "truth inference"--- a means of burden of proof --- should be applied in light of the relevant provisions of china's criminal procedure law and properly deals with this type of crime.This article includes the following six sections:Part I: bringing forward questions. This part outlines the content of Reply on Whether it Constitutes Crime of Rape When a Man Has Sexual Intercourse With a Girl Voluntarily Once He Does Not Clearly Know That the Girl is Under the Age of 14 (hereinafter referred to as "Reply") promulgated by the Supreme People's Court in January 17th, 2003 and the relevant background reasons for promulgation of the Reply, and analyzes the both sides' views and reasons for supporting and objecting the Reply.Part II: concretely analyzing of the relevant stipulation of China's Criminal Law concerning "clearly knowing" from the clauses in China's Criminal Law and the relevant criminal theory. Firstly, part II analyzes the relationship of "clearly knowing" in general provisions of criminal law and in specific provisions of criminal law; secondly, this part outlines that, in the crime of raping underage girl, the current social development of our country brings social impact to traditional "clearly knowing" and thereby brings difficulties of the burden of proof to judicial practice, which will cause the special policies of protection of underage girls difficult to be executed in our country.Part III, introducing the concept of "strict liability" system of Anglo-American law system and analyzing the pros and cons of the system. Through analyzing the characteristics of the system, I think that the system may, to a certain extent, solve some question of the crime of raping underage girls, but it conflicts with Article 16 of the China's Criminal law. Meanwhile, this part analyzes the development course for the principle of unification of the subjective and objective and its main content, namely: 1. unification of subjective and objective of the constitutive facts of crime; 2. unification of subjective and objective of awareness activity. In addition, the part analyses the reasons as follows that the principle of unification of subjective and objective must to be carried out in our country: 1. the principle is a conclusion based on historical experience and lesson; 2. the principle is of great guiding significance to judicial practice in our country; 3. the principle has been clearly reflected in Article 14, 15 and 16 of China's Criminal Law. Therefore, we can be sure that this principle has been one of legal principles of criminal law. China's Criminal Law must adhere to the principle of unification of subjective and objective, and the criminal judicial interpretation and the criminal judicial practice must also adhere to the scientific and correct principle. Part VI, analyzing the criminal principle and relevant criminal theory applicable to deal with the crime of raping underage girls outside our country in hope of giving us enlightenment.In the basis of crime of raping underage girls seriously harming to mankind common good emotion, this kind of crime is also regarded as a serious criminal act in foreign criminal laws like our country, and every country in the world has special stipulations regarding the kind of crime in legislation. However, because of different courses of law, social political and economical development levels, cultural traditions and other aspects in different countries, the stipulations regarding crime of raping underage girls in legislation are naturally different. Although difference in dealing with the crime, the Civil Law countries mainly stick to the principle of unification of subjective and objective and the Anglo-American law system countries deal with the crime basically from the both sides of subjective and objective. However, our criminal law on subjective and objective is different from the Anglo-American law system countries which primarily stick to the principle of "strict liability".Part V, the balance between the policies of protection of underage girls and protection of the accused rights China, like other countries of the world, has historically attached importance to the special protection of underage girls, but we should not deny protecting the criminal's human rights because of this reason. Social protection and human rights protection are the two most important functions of criminal law. The conflict between the function of human rights protection and the function of social protection is the most concentrated area of criminal law value conflicts, which could cover the form of value conflicts of general and individual justice, security and flexibility and so on. The value orientation of social protection should not be given up in any case, but protecting one side should not be at the expense of punishing another side. Over the years, in the criminal legislation and judicial practice, the function of Criminal law emphasizes more on the social protection, and pays more attention to fighting against crime, but the protection of human rights were relatively neglected. However, establishment of country ruled by law, especially construction of modernization of criminal law of rule, must seek a balance between the social protection and human rights protection.Part IV After analyzing of the above content, we find that the main focus of dispute is the conflicts between the protection of underage girls and the protection of the accused human rights. Therefore, I suggest, in dealing with the crime of raping underage girls, to be treated discriminatingly and the following special circumstances should be treated specially:The stipulations of Interpretation by the Supreme People's Court on the Relevant Issues Regarding Rape Trials which is entered into force in February 24th, 2000 shall be applicable to deal with the case of sexual intercourse between underage girls and boys. The stipulations of this Interpretation provides: "if a person who has reached the age of 14 but not the age of 16 has sexual intercourse with a underage girl and such act constitutes crime, he is to be deemed have committed rape and is to be given a heavier punishment according to Article 17 and Clause 2 of Article 236; if the circumstances are obviously minor and the harm done is not serious while having sexual intercourse with a underage girl, the act shall not be considered a crime."Unmarried boys have sexual intercourse with underage girls who mature early and are seemingly like adult in the course of falling in love, which shall be treated as follows: in the process of falling in love, if the man does not know the true age of the underage girl indeed and under the situation both the man and the girl have sexual relations voluntarily, such act may not be regarded as crime of raping underage girl, but it should be strictly controlled.Boys have sexual relations with underage girls with lascivious habits, which shall be treated as follows: after the boys have sexual relations with such kind of underage girls (referred to the girls who initiatively have sexual relations with many men), if the circumstances are obviously minor and the harm done is not serious, such acts may not be considered crime, but may be punished by public security organs for other proposals.Suggestions for dealing with the general issue regarding crime of raping underage girls: I suggest that, in light of the provisions of Criminal Procedure Law concerning burden of proof, the principle of "truth inference" may apply to deal with the crime of raping underage girls. Namely, we firstly infer from foundational facts that criminal suspects are intentional or negligent to commit crime. If we are able to infer that criminal suspects have the criminal intention or negligence, the suspects shall take the burden of proof for they do not have the criminal intention or negligence; if they can provide evidences to prove that they don't have criminal intention or negligence, we may be sure that their acts don't constitute crime of raping underage girl and their acts may constitute crime depending on concrete circumstances. However, application of the principle shall be strictly controlled. Getting the principle concretely in the cases of raping underage girls, application of "truth inference" must meet the following conditions:1. Foundational facts must be true and reliable;2. There must be logical and inevitable link between the foundational facts and the inferred facts, and which must exclude reasonable doubt; and3. We must guarantee that the accused who may be convicted of guilty for inference obtain the adequate right to defense so as to rebut truth inference.