The Determination On The Nature Of Forcing Others To Have Sexcual Intercourse And Molest

Crime of rape refers to the sexual assault of the doer who initiates sexual contact with the victim woman without her consent,frequently manifesting itself as the directly sexual intercourse of the doer with the victim woman.However,in real life,there are some cases where the doer forces others to have sexual intercourses so that he can seek for a kind of spiritual stimulation by watching.Disputes have occurred in judicial practices regarding the determination of the nature of such crimes,especially in circumstances where there is a certain relation between mutual parties who are forced to perform sexual activity.Some courts hold that crime of rape is convicted under the condition of both “on purpose” and “intent of rape”.In the above circumstance,the doer has intent of obscenity rather than “rape”.Moreover,when there is a certain relation between two persons forced to perform sexual intercourses,for instance,lovers who once had sexes,there are some doubts in identifying that this behavior has truly violated the victim woman’s will.So they consider that it is more appropriate to punish such behavior as the crime of compulsory indecency.While some other courts maintain that the doer who in such circumstance has intent of rape and certainly violates the victim woman’s will should be convicted of the crime of rape.Therefore,how to understand “intent of rape” and “violation of woman’s will” seems of great importance here.In addition,crime of rape is usually accompanied by compulsory indecency,which will be disposed based on the theory of absorbable offence in juridical practices.It ascertains that behaviors of rape in such circumstance absorbing acts of compulsory indecency should be punished as the crime of rape,without separately evaluating acts of compulsory indecency.Different opinions have been proposed specific to this practice,maintaining that it does not make sense from perspectives of theory and laws to judge and sentence someone who simultaneously commits acts of rape and indecency as the absorbable offence.Instead,this person should be punished according to provisions of combined punishment for several crimes.Based on the above problems,this article will take the case of rape and indecency by Tan and other people to carry out analysis and discussion,for the purpose of proposing some helpful suggestions for dealing with such cases.This article,about 24,000 words,can be divided into the following four parts except the preface.The first part illustrated basic conditions of the case,including cause of action,process of the case and the trial as well as divergences occurred during the course of the trial.Finally,according to the above divergences,three dispute focuses of this case were summarized.The first dispute is whether Tan and other people subjectively had any intent of rape.The second one is whether the sexual activity forced to perform between lovers violated woman’s will.The third dispute is whether there was an absorbable relationship between acts of indecency committed after the attempted compulsory sexual intercourse.The second part,also the emphasis of this article,analyzed related jurisprudential problems.Firstly,by introducing the definition of “intent of rape”,this article made an analysis on the word “intent” for the phrase “criminal intent”.It maintained that the “criminal intent” can be divided into two categories.One is the will factor included in the on-purpose crime,that is the purpose in a general meaning;while the other is the intent for the purposive criminal,which is a “certain specific purpose” beyond the intent,also known as the subjective extra factor.It is actually a motive.After illustrating the standard to distinguish these two intents,the article pointed out that “intent” in the “intent of rape” is the will factor of the on-purpose rape rather than the “certain specific purpose” beyond the intent.As long as there is an on-purpose rape,there is“intent of rape”.Secondly,by studying the “violation of the woman’s will” in the crime of rape,it maintained that although relations between litigants and whether litigant had shown resistance would affect the identification of this issue to some extent,such influences from the perspective of law of evidence would not substantially hold back the conviction of crime of rape.Once the objective violence,means of threat or other factors can prove that acts of the doer indeed violated the woman’s will and harmed her sexual autonomy rights,the crime of rape is convicted.Consequently,the problem regarding the quantity of crimes was discussed since there were acts of compulsory indecency after the attempted rape.It deemed that there was no absorbable relationship between the attempted rapeand the subsequent acts of compulsory indecency,so they should be punished for the combination of crime of rape and crime of compulsory indecencyin accordance with laws.The third part is analyses and conclusion of this case.In this section,the nature of Tan and other people’s acts were determined based on thejurisprudence analyses illustrated before.Firstly,it pointed out Tan and other people’s acts of forcing others to perform sexual activities constituted the crime of rape.They were the indirect principle offenders for the crime of rape because Tan and other people had intentsof rape from the subjective view.Objectively,they made use of others as guilty tools to commit the crime.Furthermore,in this case,facts that Meng and Qu kept a relationship as lovers and Qu’s failure to resistwill not affect the constitution of the crime of rape.Secondly,the article maintained that there was no absorbable relationshipbetween Tan and other people’s acts of attempted rape and subsequent acts of compulsory indecency.Therefore,they should be punished for plural crimes combining the crime of rape(attempted)and the crime of compulsory indecency.The fourth part is the studyrevelation of this case.Two suggestions were proposed by analyzing the case.One is to correctly understand the “intent of rape” for the crime of rape and make corresponding evaluations on the act of indecency for the crime of rape.The other is to expand the scope for the crime of rape.