On The Criteria For Women's Recognition In The Crime Of Rape In China

In the case of rape of persons with anomalous gender,whether the sexual assault of criminals can be regarded as rape often depends on whether or not the persons with abnormal gender can be identified as "women" in Article 236 of Chinese Criminal Law.However,in the current judicial practice and the theoretical doctrine,there is no consensus on the recognition of women in the sense of criminal law.In view of this,this thesis explores the criteria for identifying women in rape in China,which is divided into three parts:The first part is the current status of standards of identifying women in the crime of rape.Although there are six crimes involving 'women' in our country's criminal code,they do not include the definition of women and only distinguish women from young girls from the perspective of age.In judicial practice,the main point of the court is to include bisexual people who have female physical characteristics and female social relations into women in the crime of rape in criminal law.However,in academic circles,some scholars believe that the inclusion of the bisexual into women of rape crimes would be contrary to the possibility of national prediction.Some scholars believe that any person who has sex with the actor can be defined as women in rape.From a worldwide perspective,many countries have extended the crime of rape to others.Take Korea for example.Before Korea expands the object of rape,it has already considered transsexuals who have female physical characteristics and appearance signs with female social status as women in the crime of rape.The second part is the evaluation of women's recognition standards in rape.People with abnormal gender include bisexual people and transgender people.It is crucial to determine their gender when they become the targets of rape.At present,there are three mainstream gender classification standards,which are biological standards,physiological characteristics standards and social identity standards.Although these three standards have their own advantages,it is defective to use only one of these standards to identify women in rape.The single-picking biology standard has the disadvantages of complex and unchangeable sex chromosomes that make transgenders unable to be included in the women's category;the single-picking criteria for physiological characteristics still fails to identify the bisexuals with bisexual genitals;the single-picking criteria for social identity will include persons who live as females while showing no female physical characteristics into the category of women.The third part is a new thinking of the criteria for definition of women in rape.The comprehensive standard proposed in this thesis is that the definition of women shall be ones who have both women's physiological characteristics and female social identity in the crime of rape,and these two elements should have a hierarchy of judgments.First of all,only when the social identity of the criminal target is a woman and she can be judged by the actor as a woman,the actor may conduct rape.Secondly,the law of rape crime protects women's sexual autonomy.This legal interest is based on women's unique physical characteristics.Therefore,persons who show both female physical characteristics and social gender are women in rape.This comprehensive standard is proposed on the premise of following the principle of legally prescribed punishment for crimes and not violating the possibility of national prediction.On the one hand,it can respond to real-life cases,and on the other hand,it can maximize the protection of sexual rights of anomalous groups.In addition,under the comprehensive standards there are still some special situations that require discussion.