| Rape crime is considered as a serious violation of personal rights.We should be strict when it's applied in the criminal law and punishment.And it's very important for us to grasp the essential characteristics of rape.Through the comparison of various theories,the victims' willingness of the occurrence of sexual intercourse is the fundamental feature,which is be used to judge the crime of rape.That is,the nature of the rape crime should be analyzed from the perspective of the woman's desire of sexual intercourse.So if the sexual intercourse violates the woman's inner consent attitude,it would be judged as “the violation of woman's will”,then the crime of rape is established.In the judicial practice,there is almost no controversy when the crime,which may be carried out by using the violence,coercion and other forms,is determined as rape.However,it is more complicated to judge the rape crime when the sexual intercourse due to the misunderstanding of victim or perpetrator.The sexual intercourse,which is caused by misunderstanding,should be presumed afterwards whether it violates woman's willingness or not.This problem has always been a difficult problem in the judgement of rape in judicial practice.The paper will use the classification standard of wrong facts' understanding and illegal misunderstanding to judge the misunderstanding in the criminal law.Because of the illegal misunderstanding,(even if)the perpetrator doesn't know the sexual intercourse that violates the woman's will is a crime,as he doesn't stop but implement the offence deliberately,it doesn't affect the conviction and measurement of penalty of rape.But in the case of wrong facts' understanding,the sexual intercourse could be stopped but still be carried out deliberately,such as the perpetrator mistakes others for their own wife,girlfriend,lover,or the woman regard the actor as her husband by mistake.Whether the perpetrator constitutes the rape crime,it should be discussed according to different situation. |
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