Victim Consent In Rape

From the perspective of modern legislation,the crime of rape is fundamentally different from other crimes that violate personal rights and property rights,that is,the crime of rape attaches great importance to the expression of the will of the victim.Due to the particularity of the environment in which the rape occurs,when the case occurs,there is generally only the presence of both the victim and the perpetrator,and the evidence materials available are usually only the statements of both parties,which adds many obstacles to the judge’s substantive judgment,especially in some atypical rape situations where the perpetrator does not use violence,coercion and other means,and the traditional theory of coercive means and against the will of women is even more inadequate.With the continuous development of the feminist movement,countries around the world have changed the legislative model of rape crime,China has made a certain explanation of rape in the "Answers to Several Questions about the Specific Application of Law in Current Handling of Rape Cases",although the provision is now invalid,but the current theoretical circles and practice in China in dealing with rape cases still first consider whether the occurrence of sexual acts"against the will of women”is the situation.China’s current relevant judicial rules based on "against the will of the victim",because of the limitations of subjective judgment,in the handling of some atypical rape cases,it is easy to provide sufficient objective evidence to determine whether there is "against the will",resulting in the dilemma that such cases cannot be properly judicial,which is increasingly unable to meet the development trend of atypical rape cases.Looking at the theoretical research on the crime of rape outside the region,few countries or regions directly regard it as the constituent elements of the crime of rape,but more directly define the crime of rape as an act of illegal sexual intercourse without the consent of the other party.The elements for the establishment of the crime of rape are expressed as "lack of the victim’s consent" is more suitable for social reality than "against the will of the victim",and the specific meaning and judgment standards of the victim’s consent in the context of the crime of rape should be clarified,so that the victim’s consent theory is compatible with China’s traditional criminal law system.Consent in the crime of rape shall be defined as the consent given by a person with the capacity to consent himself,on the basis of his or her own free will,to have a specific form of sexual intercourse with the other party,and shall have only one-time effect,without the presumption that the subsequent sexual acts have been given general consent.The requirement for the content of consent should mainly depend on the closeness of the social relations between the parties,as long as the expression made by the actor is sufficient to let the other party know that he intends to have sexual intercourse,and the other party makes a corresponding indication of whether or not to agree based on a correct understanding of the intention and free will.The way in which the victim agrees to dispose of his rights and interests as a victim is not an absolute right,and its exercise is also limited to a certain extent by legal paternalism,and the consent that does not have the ability to consent and expresses untrue intentions will be regarded as invalid consent."Victim consent",as a justification cause to prevent the criminality of the perpetrator’s behavior,has a broad application space in the judicial determination of the crime of rape.China can learn from the theory of rape in the common law system,and use the affirmative model in the victim’s consent theory as the judgment model and criminalization standard for the crime of rape.Whether it is "coercive and violent means" or the victim’s "irresistibility and dare not resist",it is only a means or method for the purpose of providing evidence to prove the consent of the victim,and cannot be regarded as the essence of the crime of rape.As a crime to protect the right to sexual autonomy,the crime of rape should give priority to the effective protection of the interests of the victim,that is,regardless of whether there is objectively violence,coercion or other acts,as long as sexual intercourse is not obtained by the consent of the victim,it should constitute the crime of rape.This is not only to comply with the need to change the constituent elements of rape worldwide,but also to implement the theory of consent in private interest crimes,and it is also a requirement to adapt to the trend of deepening the concept of sexual rights.