The Research On Judicial Determination Of Rape By Deception

Rape by deception, a sexual behavior which obtains the woman's consent by fraudulent means. The explanation published by the relevant departments in 1984 stipulated that very few behaviors by deception can be considered rape. But there are no new rules after that rule was abolished in 2013. In the realistic society,however, it appears more and more deceptive rape cases. The results of these cases handled by the judicial department are not unified, which lead to a mess of deceptive rape on judicial determination as well as make a serious damage to the victim's legitimate rights and interests. In addition, the issue of theoretical research has been still insufficient in our country. Therefore, it is necessary to card judicial status on the deceptive rape, explore the realistic dilemmas and causes of the judicial determination of the deceptive rape, reference the extraterritorial regulation and put forward suggestions.The full text total 43000 characters. In addition to the introduction and conclusion, the article is divided into four parts:The first part, outline the deceptive rape. The author concludes that the deceptive rape is a sexual behavior which obtains the woman's consent by fraudulent means. There are three characteristics including diverse manifestations, fixed pattern and different punishments in the deceptive rape. It finds that some countries and regions outside has stated rules on the deceptive rape by investigating the present regulations, however, there is no similar rules in our country.The second part, interpret the theory of imputation on the deceptive rape. In this section, culpability and objectivism are demonstrated so as to lay the foundation for imputation on the deceptive rape. Besides, the three theories of imputation on the deceptive rape are reviewed, namely the defendant self-responsibility, the mistake as to the fact and motives, the mistake as to law interest. Finally, it is suggested that the mistake as to the fact should be adopted as the theory of imputation on the deceptive rape.The third part, analyze the dilemmas and causes of the judicial determination of the deceptive rape. There exists three aspects of the dilemmas in judicial determination of the deceptive rape. Firstly, the qualitative problem of the deceptive rape is in doubt. Secondly, the internal connection between the deceptive rape and the acceptance of the victim is inaccurate. Thirdly, the “expansion” of rape leads to an identified deviation of the deceptive means. And there exists three reasons on the dilemmas of the judicial determination of the deceptive rape. Firstly, the limit of other means is unknown in rape. Secondly, the enforceable effectiveness of deception can hardly achieve self-consistency. Thirdly, the standard of justice about the deceptive rape is absent,which is recognized as a crime or not.The fourth part, explore the way to the judicial determination of rape by deception. Firstly, it is necessary to put forward the judicial determination of rape by deception from the perspective of principle of legality, the protection of human rights and the legal justice; Secondly, it is suggested that the principle of comprehensive evaluation and modest of criminal law in the judicial determination of rape by deception; Finally, it is proposed to distinguish the boundary of deception and other means of rape, implement the connection between rape by deception and acceptance of the victim, judge from three standards of the fact judgement, the value judgement and the law judgement to interpret strictly whether the rape by deception is rape or not in the way to the judicial determination of rape by deception. And the article makes the judicial determination of rape by deception to be typed as well as summarizes four typical types and four atypical types.