On Sexual Consent Of Psychiatric Women In Criminal Law

In order to protect the legitimate rights and interests of psychiatric women, the judicial interpretation defined the behavior that having sex with psychiatric women as rape. Associated with the content of criminal law and criminal law theory, we can find that the judicial interpretation is of a certain rationality, but in judicial practice, the inadequacies of this judicial interpretation will appear. From the cases introduced, it can be seen that the judiciary defined this behavior as rape, not only violated the intention of protecting the women's legal rights and interests, but also violated the public's general values. In the view of the conflict between the intention of judicial interpretation and the effect of practice, this paper attempts to resolve this problem and under framework of criminal law and criminal law theory, basing on sexual consent mental capacities of women , there are three treatments of non-criminal cases, Finally, under the existing criminal law, raising the corresponding solution, that is, resolve this problem and under framework of criminal law and criminal law theory, basing on sexual consent mental capacities of women , there are three treatments of non-criminal cases, that is, if the victim is a psychiatric women who have certain capacity of sexual consent, the validity of the consent will be comfirmed according to the theory, not be deemed as a crime; if the victim's is a women who don't have capacity of sexual consent, but the behavior is not harmful to the society according to the case, presumed consent can be introduced, presumed the validity of the consent, also not be deemed as a crime; if the victim's is a women who don't have capacity of sexual consent,, although with a certain degree of social harm, but the circumstances are obviously minor, there is little risk, according to the provisions of Article 13 in criminal law, finds that behavior is not a crime .This paper includes following sections:The first part of the introduction. By listing a few typical cases, illustrating that current judicial explanation the behavior of having sex with psychiatric women are unreasonable, that does not meet the interests of victims protection principles, meet the principle of suppression of criminal law, meet the general public values, so as to further discussion of this paperThe second part of the problem in criminal law and judicial practice .first, summarizing our criminal law norms and judicial interpretation related with the case. The theoretical basis of the consent of the victim theory with its rationality; Second, analyzing the problem existing in regulate and practice of criminal law , specifically including two aspects: Firstly, determine the unscientific nature of consent capacity, mainly for the ability to determine the criteria for sexual consent and confusion of sexual consent capacity level; Secondly, the court did not distinguish between the actual situation of the cases. Finally, under the existing criminal law, raising the corresponding solution, that is, resolve this problem and under framework of criminal law and criminal law theory, basing on sexual consent mental capacities of women , there are three treatments of non-criminal cases.The third part of the theoretical basis of the solution. Criminal justice practice requires the guidance of criminal law theory, so we must find a solution of this problem in theory, the theoretical basis. Specifically, the theoretical basis to solve the problem are the victim consented to theory, theory of presumed consent, and Article 13 of the Criminal Law.The fourth part of the solution to these cases. Firstly, capacity of women's sexual consent. Introducing the basic theory of consent of the victim, on basis of understanding of sexual consent psychiatric women, make this in the scientific determination. The extent of sexual consent capacity should be divided in three standard , and should be decided by judgments. Secondly, presumption of psychiatric women 's sexual consent. Agreed to act on the presumption described the basic theory, clearly the introduction of presumed consent law on the theoretical basis of the principles of equity and social benefits the general public values, and on this basis type of women will be raped rape and mental rape young girls to distinguish between type , clear criteria for presumed consent as to whether the theory of mental illness benefit women, and specify the applicable theory of presumed consent should be taken into account. Thirdly, applying section13 of the Criminal Code. Introducing the Criminal Law Article 13, then finding out the difference of the presumption of consent and application of criminal law applicable to Article 13 treatment of non-criminal, that is, the difference in requirements of social harm. At last, making clear application of criminal law provisions of Article 13 will be considered, noting that the determination of the degree of social harmfulness should be a comprehensive judgments, the perpetrator should be integrated performance, behavior and other factor to make comprehensive investigation.