Research On Judicial Precedent Of Rape Crime

The rape crime is closely related to civil rights and social harmony,and it is necessary to study its theory and judicial practice.The Supreme People's Court has published a series of "Reference to Criminal Trial" to provide a unified guidance for multiple or revelatory cases in judicial practice.However,the theoretical basis of the case and the legitimacy,unity and universal applicability of the judicial determination rules need to be further clarified.It has strong practical significance to be guided by the issue of rape crime involved in the case of Reference to Criminal Trial.The first part deals with the nature of the mandatory intercourse in marriage.The theoretical basis of discriminatory theory asserted by guiding case doesn't have the legitimacy,the distinction standard whether the marriage is normal or not is lack of reasonable basis and maneuverability,misreading the principle of restraining criminal law and infringes the legal interest protecting of women's sexual autonomy.The mandatory intercourse should constitute the rape crime,the husband can't exempt due to their marriage,it conforms the trend of the times identifying the mandatory intercourse as rape crime.However,if the wife refused to her husband's request without any reason for a long time,the judge can punish leniently the husband by taking into consideration the circumstances.The case can apply the procedure of private prosecution in the condition that the husband may be sentenced to fixed-term imprisonment of not more than three years due to mitigating reasons.The second part deals with the coexistence of rape and indecency.The condition coexisting rape and indecency constitutes absorbable offence need to meet the following requirements: first,the rape and indecency can constitute the rape crime and compulsory indecency crime independently because they have reached the extent of the criminal law;Second,rape and indecency are carried out by the same subject;Third,the two act infringes on the sexual autonomy of the same victim;Fourth,the two acts should be carried out under the same criminal intent generated before the act,and the purpose of the crime is not limited to the purpose of satisfying sexual desire;Fifth,the law interest infringed by the two act should be integrated;Sixth,the two act should be in the same criminal process and have the supervenience in the nature.The third part involves the related problem of fornication with an underage girl.Most of issues in the guiding cases concerning the identification of fornication with an underage girl have a distinct historical background,which should be understood combining with the legislation at that time.The Ninth Amendment to Criminal law has abolished crime of whoring girls under the age of 14,the act of whoring girls under the age of 14 refers that the actor pays money for whoring girls under the age of 14 by sexual intercourse or similar sex behavior,it should constitute the rape crime and compulsory indecency crime respectively.The actor of fornication with an underage girl must know that the object is a girl under the age of 14.After the abolition of crime of whoring girls under the age of 14,the crimes related to prostitution of girl under the age of 14,such as crime of compelling others to prostitute and crime of inducing an infant girl to prostitute,have a competition and cooperation relationship with the rape crime.The fourth part deal with the affirmation of causing serious injury,death or other serious consequences to the victim.The rape causing serious injury,death or other serious consequences to the victim is aggregated consequential offense.First,aggravated consequences should be over the basic results,in addition to basic component elements of crime and prevented by the regulations.Second,the basic behavior of the actor should have a causal relationship with serious injury,death or other serious consequences,and the aggravated consequences is direct actualization of a highly dangerous embedded in the basic behavior.Third,the aggravated consequences should have a unified object with basic behavior,and it must be the victim who is in danger of the basic act of rape.Forth,the subjective fault of the actor for serious injury,death or other serious consequences can be either intentional or negligent,and should be judged according to the criterion of the punishment.The distinction between rape causing death to the victim and crime of intentional homicide is whether the aggravated consequences stems from the intention of rape.The condition that the actor chasing the victims due to the intention of rape,don't salvage after the victim fell down and leads to the victim death by drowning,does not constitute aggregated consequential offense of rape crime,but crime of intentional homicide.The fifth part is the identification of gang rape.Gang rape should meet the following requirements: First,the gang rape should be based on common crime and doesn't require all the actors have the capacity for criminal responsibility.Second,the several acts of rape constituting gang rape should go against the will of victim,infringe the same victim,have continuity in time or space(that is,the victim has been in the control of the actor),and need more than two persons complete adultery.Third,several actors should commit the act of gang rape under the intentional of gang rape.When there is a unilateral mental connection,only the actors have liability of principal offender for the adultery of other persons and conduct adultery personally,can constitute one-sided accomplice.In regard to the determination of responsibility of the person unfinished their adultery,if no one succeeds or only one succeeds,it is still a common crime of rape,but it does not constitute gang rape.If more than two people succeed,the person unfinished their adultery also constitutes gang rape;If all the actor is attempted,then the whole behavior is attempted,if more than one person has accomplished,the person unfinished their adultery also constitute the accomplished offences.