When a male technician massages a woman, she stimulates female desire and has a relationship, is it rape?

I. Brief introduction of the case

　　Zhang was introduced to Wang's barber shop as an apprentice, just arrived at the barber shop at more than 9 o'clock that night, Wang wanted to teach Zhang to do foot therapy, he took Zhang to a house on the third floor, Wang saw Zhang wearing jeans, on the grounds that the clothes were too tight to teach him to do foot massage, let him change into loose pajamas, and then let Zhang lie on the massage bed. Wang touched Zhang's legs, abdomen, and back and massaged them, and Zhang was dazed. After that, Wang took the opportunity to take off Zhang's clothes and stroked and kissed Zhang's breasts. Zhang Mou felt dizzy and had no strength to resist. Later, Wang took the opportunity to have sex with Zhang. A few minutes later, Zhang suddenly woke up, scolded Wang mou as a sex wolf, and called his parents to explain the matter, and his parents immediately called the police.

　　(Criminal suspect Wang Mou, male, 40 years old, barber shop owner, victim Zhang Mou, rural girl, 15 years old, simple life experience, asexual experience, and Wang's wife is related)

　　2. Focus of dispute

　　In this case, a debate between guilt and non-crime was formed.

The first view is that Wang's behavior does not constitute the crime of rape, the reason is that Wang's behavior did not violate Zhang's will, in the process of implementing foot therapy, Zhang developed sexual desire, and then the two wanted to have sex, which is a very normal fact, Wang did not go against the will of women, nor did he use the rape means stipulated in the criminal law to achieve the purpose of sexual relations, should not be treated as a crime, most of the participants in the discussion supported this view;

The second view is that Wang's behavior constitutes the crime of rape, on the grounds that Wang's previous acts of touching, massage and other acts have caused the young and ignorant Zhang to naturally lose the ability to resist due to physiological reasons, and cannot resist, and then have sexual relations. Wang's behavior went against the woman's will and also met the requirements of "other means" of the way the crime of rape was conducted. A small number of those who participated in the discussion supported this view.

　　3. Comments

　　The author agrees with the second view, arguing that Wang's conduct in this case constitutes rape. Wang's conduct meets both the requirements of "going against the will of women" and the elements of "other means" of violence, coercion or other means in the crime of rape.

　　In this case, there were two main points of contention, one of which was how to understand the crime of rape in criminal law as "against the will of women"; The second is how to understand the manner of conduct in the crime of rape by "violence, coercion or other means", especially "other means". The author believes that these two issues are essentially two sides of the same coin. The reason is that the violation of women's will is a crucial element of the crime of rape provided for in the criminal law, the difficulty in determining the crime of rape in judicial practice, and the necessary element for determining the crime of rape in judicial practice, while violence, coercion or other means are specific forms against women's will and are objective manifestations of going against women's will. In addition, article 236 of the Criminal Code stipulates that whoever rapes a woman by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and whoever rapes a minor girl under the age of 14 shall be punished with a heavier punishment if he rapes her. Judging from the legal interests that criminal legislators want to protect by establishing the crime of rape, what the crime is to protect is the woman's sexual freedom and sexual inviolability, so that acts against the will of women's sexual freedom are the acts to be prohibited by the crime. Thus, the manner in which the crime of rape is committed is a concrete form contrary to the sexual free will of women. Thus, the manner in which the crime of rape was found to be committed was equivalent to the determination of a woman's will.

　　Judging from the provisions of article 236 of the Criminal Code, the way of acting against women's will under the Criminal Law mainly relies on violent means to prevent the other party from resisting and forcibly having sexual relations with women; Make the other party dare not resist through coercion and achieve sexual relations with women; The third mode of conduct is a kind of bottom-up rule that the other party uses other means to make the other party unresponsive and have sex with women. These three modes of behavior respectively make the violated women unable to resist, dare not resist, and do not know how to resist.

　　As mentioned above, all three modes of behaviour are specific forms against the will of women. Among them, adultery committed through violent means, contrary to the will of the woman, is generally not controversial; However, sexual relations with women through coercion and other means often give rise to controversy as to how to determine that it is against the will of women.

　　Judging from the facts of this case, Wang's behavior is obviously not an act of violence or coercion, and the question that needs to be answered is whether Wang's behavior belongs to the rape committed "by other means" in the crime of rape. As I have already mentioned above, the act of going against the will of women in the crime of rape and the manner of conduct of the crime of rape are essentially two sides of the same coin. Therefore, the issue to be solved in this case is whether Wang's massage, touching and kissing Zhang in the name of teaching Zhang to do foot therapy caused Zhang to have sexual desire based on physiological reasons, and whether Wang took the opportunity to have sexual relations with Zhang is against the will of women (Zhang).

　　The author believes that Zhang is only 15 years old, is a minor, his sense of sexual defense is weak, after Wang X implemented the so-called foot therapy behavior, Zhang X, based on natural physiological reasons, produced sexual impulses, completely lost sexual defense ability, Wang took the opportunity to have sexual relations with Zhang X, Wang X's previous acts can be identified as "other means" in the crime of rape, which goes against Zhang X's will. Because the 15-year-old Zhang went to Wang's barber shop to learn technology on the night, Wang claimed to teach him to do foot therapy, Zhang came to learn on the one hand, on the other hand, because he was related to Wang's wife and was still young, in summary, Zhang lacked the ability to understand the nature of Wang's behavior at that time and lacked the awareness of defending Wang. After Wang's massage, touching and kissing, the young Zhang mou entered a state of unconsciousness, completely lost the ability to resist, did not know how to resist, And Wang took the opportunity to have sexual relations with Zhang. Therefore, Wang's previous behavior was against the woman's will, etc., Wang's previous behavior can be regarded as "other means" in the crime of rape in article 236 of the Criminal Law.

　　It should be noted that the presence of a sense of sexual defense is a prerequisite for judging whether it is against the will of women. Article 236 of the Penal Code directly stipulates that sexual intercourse with a girl under the age of 14, whether or not the woman is voluntary, constitutes the crime of rape. With regard to the rape of young girls, it is not that there is no requirement to be against the will of women, but because adolescent girls under the age of 14 lack a sense of sexual defence, legislators directly presume that having sex with a girl under the age of 14 is against the will of the woman. This is because the legislator, from the fundamental standpoint of protecting young girls, believes that sexual relations with under the age of 14 are violations and harm to young girls.

　　Since legislators believe that under the age of 14 lack sexual defense awareness, it is acceptable for ordinary people to think that girls who have just reached the age of 15 and have a simple life experience lack sexual defense awareness. Therefore, it can be considered that Zhang Mou is relatively lacking in sexual defense awareness.

　　If Wang's massage and touching behavior is aimed at women over the age of 18, or women over the age of 14 who have sexual experience, then before or when Wang commits his act, the other party has a sense of sexual defense, if Wang's behavior is opposed at the time, at this time, if Wang forcibly has sexual relations with the other party, it constitutes rape. If the other party does not object, although the woman may also enter the state of not knowing the resistance based on physiological reasons after Wang's touching and other acts, she has a correct understanding of the nature of Wang's previous behavior, so the acts previously committed by Wang cannot be identified as "other means" in the crime of rape, and Wang does not constitute a crime. There is no doubt about either conclusion.

　　The fact of this case is that Wang's behavior was carried out on Zhang Mou, who had a simple life experience of only 15 years old and lacked sexual defense awareness, Zhang could not understand the nature of Wang's behavior, and the massage, touching and other acts carried out by Wang caused Zhang to be in a situation of not knowing how to resist, so Wang's previous behavior put Zhang in a state of ignorance of resistance, which can be identified as "other means" in the crime of rape. In summary, Wang's behavior conforms to the characteristics of the crime of rape and also violates Zhang's sexual free will. Therefore, Wang's behavior constitutes the crime of rape.