Research Into The Circumstance Identification Of Gang-rape

Gang-rape belonging to the crime of rape is a circumstance for death punishment inChina’s current Criminal Law which seriously violates the victims’ physical right. Thecircumstance identification of the gang-rape in case trial is related to not only theimplementation of the basic principles of Criminal Law, but also the life and death ofcriminals. In the judicial practices, though there are no disputes about the aggravatedpenalty for raping a woman with more than two persons in succession, the judicial field hasnot reached an agreement about the identification of circumstance in which more than twopersons conspire to rape, but only one commits the rape, and others not due to some otherreasons rather than will.The author thought that the solution of the problem comes down to the identificationof gang-rape as an aggravated circumstance, whether the aggravated circumstance offenderhas accomplished the offense or not and whether the crime of rape belongs to personallycommitting crime or is applicable to the doctrine of liability fixation, namely“implementing partly but all liability.”This article is divided into four parts:Part One summarizes the concept of gang-rape based on ideas of various parties,introduces the legislation evolution of the crime in the gang-rape and analyzes theconstitutive requirements of the gang-rape.Part Two introduces the basic theories and analyzes the nature of the aggravatedcircumstance offense, explores the relationship between the aggravated circumstanceoffense and the fundamental offense and concludes that gang-rape belongs to theaggravated circumstance offense of rape.In Part Three, this paper firstly lists two cases same to each other but with differentidentification and adjudication of the same criminal facts to show the disagreementexisting in the judicial practice in which more than two persons conspire to rape, but onlyone commits the rape, and others not due to some other reasons rather than will. Following that, based on the theories of attempted crime and joint offense, the author put forward theidea that the hand-made theory is not applicable to gang-rape in the crime of rape; underthe circumstance of joint offense, the doctrine of “implementing partly but all liability”should be adopted; under the circumstance that one commits rape but other not, the otherpeople should also be regarded as committing rape, and the facts of not succeeding incommitting rape can only serve as circumstance to a lighter punishment.In Part Four, this article discusses and explores the issues of whether gang-rapecommitted by some with persons who are exempted from the criminal liabilities constitutesgang-rape how to define the nature of whoring with a girl under the age of14by turns orforcing a girl under the age of14to engage in prostitution after raping her in turns.Concerning these issues, the author concluded that: persons exempted and not exemptedfrom criminal liabilities can be identified as gang-rape circumstances, and the crime ofwhoring with a girl under the age of14by turns or forcing a girl under the age of14toengage in prostitution should be identified as rape and is applicable to the legal aggravatedcircumstances of the gang-rape.