Analysis Of The Difficult Problems Of Crime Of Rape

With the development of the times, the progress of the society, especially the rise ofthe feminist movement, the protection of women’s sexual self-determination rights hasbecome one of the important tasks of modern criminal law, which reflected in thelegislation is the criminal laws of most countries. They stipulate that the behavior ofinfringing women’s sexual self-determination rights or raping the youngest girl is crime.Article236of the criminal law in our country stipulates the aggravating punishment of theseveral serious circumstances of rape, when it stipulate that the behavior of infringingwomen’s sexual self-determination rights or raping the youngest girl is crime. In theory, thestructure and application of rape crime is generally not in dispute. But for the "gang rape"cognizance of the crime of rape, the common form of judgment, marital rape treatment,and the problem of having sexual relationship with psychiatric wife, there are alwaysdifferent views, which affected the unity of judicial operation to a certain extent. Based onthe awareness of the problem, in this paper, several difficult problems in the determinationof rape crime is discussed, in order to benefit China’s criminal judicial practice.This paper is divided into four parts. The first part mainly discusses about the judicialcognizance of "gang rape". The author thinks that the "gang rape" belongs to the jointcrime. The condemnation of "gang rape" just requires an joint illegal act other than takingthe responsibility of the accomplice into consideration; it is regarded as "gang rape" only iftwo or more persons have the intention and action of the joint rape whether or not theycommit the crime successfully; In the common rape occasion, the crime form shouldadhere to the principle of "part behavior, full responsibility"(one accomplished, the overallcompletion), but if the partial accomplice cut the causal relationship between behavior andthe consequences of their own, it will lead to the departure from the relationship of jointcrime, and the partial accomplice will form the discontinuance of crime and attemptedcrime according to the specific situation. The obligation of cohabitation because of themarriage relationship does not mean that wife can be forced to fulfill sexual obligation. So if accused, the marital rapist should be punished according to the offense of rape. Maritalrape should adhere to the principle of acceptance at complaint only in the legislation. butthe issue of having sex with the psychotic wife should not be handled as crime. The secondpart will mainly focus on the analysis of the marital rape and the special stipulations inhaving sex with the psychotic wife. The third part is to analyze the statutory rape, whichmainly focuses on the identification of scienter and the judicial application between thecrime of whoring with a girl under the age of14and the statutory rape. Should definite theidentification of "knowingly" and if someone whore with a girl under the age of12regardless of whether is the "knowingly", he will be regarded as "knowingly". If thebehavior of whoring with a girl under the age of14does not have the statutory aggravatingcircumstances, it belongs to statutes’ joinder of offenses, oppositely, it belongs toimaginative joinder of offences.The fourth part mainly focuses on the judicial applicationof "raping women in public" and having sexual relations with little girls in public. Theauthor acknowledges that "raping young girls in public" belongs to " the plot of raping theyoungest girl badly".