On The "Violation Of Women’s Will" In The Crime Of Rape

In recent years,different from traditional rape cases,non-traditional rape cases with significantly weakened violence,weakened victim resistance,urban location of the case,and familiarity of the relationship between the parties have become the New Normal.There are some problems in the criminal trial process involving such cases,especially focusing on the identification of rape and non crime.The reason for this lies in the fact that "violating women’s will" has not been thoroughly improved in the past 40 years,making it difficult to adapt to constantly changing social practices.Whether it is still a necessary requirement for rape has become a key issue in controversy.In theory,there are three main views on this issue: negation,affirmation,and compromise.Different theories actually reflect different interpretations of the essential elements of the crime of rape.From this perspective,taking violation of women’s will as a necessary element is of great significance for the crime of rape,mainly reflected in the following aspects: firstly,"violation of women’s will" as a necessary element can directly demonstrate the legal benefits of rape infringement;Secondly,"violating the will of women" as a necessary requirement is conducive to the definition of other means in the crime of rape;Thirdly,the requirement of "violating women’s will" is in line with the development trend of the legislative model for rape crime;Fourthly,"violating the will of women" as a necessary requirement is conducive to a more accurate grasp and understanding of the crime of rape in practice.The crime of rape requires the requirement of "violating the will of women",and its constituent elements naturally include the violation of women’s will.In theory,there is controversy over which constituent element the violation of women’s will should belong to.The objective elements will be examined by combining the violation of women’s will with coercive measures,with the former being the internal criterion for evaluating the latter,which can more accurately characterize rape behavior.There are also theoretical disputes about the essence of violating women’s will and how to understand it.There is a close relationship between the female sexual autonomy as the legal benefit of the crime of rape and the violation of women’s will as the essence of the crime of rape.Taking this as a theoretical premise,the connotation of violating women’s will can be interpreted as not obtaining women’s consent.The understanding of women’s consent includes at least the following basic elements: 1.The preconditions for consent;2.The cognitive possibility of consent;3.Agreed convertibility;4.Voluntary consent;5.Agreed scope.The prerequisite for consent is that the consent subject must have the right to dispose and have the corresponding capacity to agree.The cognitive possibility of consent refers to the fact that consent must be expressed in a certain way and known to others.Generally speaking,consent should be made explicitly,but if the parties can accurately interpret each other’s body language in accordance with past practices and relationships,it can also be made through implicit body language.The transformative nature of consent refers to the fact that consent is generally valid only at the time of the sexual act,and subsequent ratification is invalid.However,consent can also be converted under certain conditions.The voluntary nature of consent refers to the fact that consent is a voluntary act that must emanate from the true will of the subject.The scope of consent means that consent is valid only within the scope of consent.After theoretically defining the essence of violating women’s will,it is necessary to explore its identification path and find the optimal solution to the problem in practice.The four types of identification models are only specific explanations of the objective manifestations of violating women’s will.However,the complexity of judicial practice and the sexual and moral color inherent in the crime of rape require that the identification of violating women’s will not be generalized,and a complex identification path should be constructed,which should be applied to different situations: when the perpetrator uses severely coercive means,Applying the standard of combining reasonable resistance and negative mode;When the perpetrator uses coercive means that are not obvious,the standard of combining reasonable resistance and affirmative mode is mainly applicable.