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Source: Criminal Practice, Judgment Documents Network
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Deep-sea fish press: In addition to violent and coercive means in the crime of rape, "other means" include "not knowing how to resist", "not being able to resist", and "not daring to resist". For example, if some victims drink too much, after reaching a certain level, although they are not completely asleep, their sleepy brains are already in a confused state, and their sexual defense ability is very weak, close to the degree of "no resistance" in the sleeping state. Although some victims are very conscious after drinking too much and know that they cannot have sexual relations with each other, their bodies are unable to resist, and their verbal expressions cannot be expressed clearly and loudly, and they can only express their unwanted views in a soft voice, which can be considered as "cannot resist". In this case, it is not possible to determine whether the crime of rape is committed entirely based on the objective state of the victim, and it is also necessary to examine from the overall perspective whether the victim is "half pushing and half doing" and whether the defendant feels that the victim is "half pushing and half doing" or is really powerless to resist.
To comprehensively investigate the facts of the case, we can make a comprehensive judgment from the degree of the usual relationship between the two parties, the time and place of the sexual act, the environmental conditions, the attitude and reaction of the victim afterwards, the victim's usual moral conduct, life style, etc. Of course, there is also a very important point, other conditions for the victim to react afterwards, whether there are factors that make the victim lose face and have no choice but to accuse others of rape, such as the victim let his boyfriend, family, and friends know afterwards, and admit that his voluntary words are detrimental to his face.
The following case is a relatively good case study: other means in the crime of rape do not necessarily have to confirm the victim's state of sleep or complete unconsciousness to be able to determine, as long as there are weakening factors in sexual defense ability, resulting in the victim's inability to express the will of sexual freedom well, of course, it is also necessary to deny the existence of the situation of "half pushing and half giving", which depends on the comprehensive judgment of the entire case, and the defendant's understanding of the victim's attitude is also determined according to the comprehensive situation. It is not an objective imputation nor can it be easily let go because the defendant has raised a defense.
Jingyu County People's Court of Jilin Province
Criminal judgment
(2012) JingXing Chuzi No. 53
The Jingyu County People's Procuratorate, the prosecuting organ.
Defendant Yu Moujia, born in Jingyu County, Jilin Province, is an individual owner and currently resides in Jingyu County, Jilin Province. He was criminally detained by the Jingyu County Public Security Bureau on March 20, 2012, on suspicion of rape, arrested on April 2 of the same year, and is now detained in the Jingyu County Detention Center.
After trial, it was ascertained that defendant Yu X A (screen name: Zhen Cheng Honest Man) and victim Tang X (screen name: Zhen Cheng Rabbit God) met online in early March 2012. At about 18:00 on March 19, 2012, Yu X A and Tang X met to eat in the private room of Four Seasons Fat Cow 219 in Jingyu County, and Yu X drank about six or seven bottles of beer, and Tang X drank five or six bottles of beer, and the two drank a total of twelve bottles. At about 21:00, the two left the hotel and went to the defendant's home. At this time, the victim, Tang Moumou, was delirious and confused, said, "I drank too much," and leaned on the defendant's shoulder and closed his eyes, as if asleep. The defendant let the victim lie down to sleep, and took off Tang's shirt, and then the two had sexual relations. At about 23:00 that night, the victim received a call from his mother, Sun X, so he asked the defendant To drive him home. After Yu X A sent Tang X home, he returned home. In the early morning of March 20, Yu X A found that there was a missed call from Tang X in his mobile phone, so he drove to Tang X's home. When walking to the intersection, just in time to meet the victim and his mother, Tang X's mother and the defendant had a dispute with Yu X A, and in the case of fruitless disputes, the defendant yu X A proposed to call the police to settle. Then Tang Moumou's mother dialed the police, and a few minutes later the police arrived at the police station, briefly inquired, and took several people back to the police station. On July 16, 2012, defendant Yu X's sister Yu X xia reached a mediation agreement with Tang X X, compensating Tang X X for economic losses, and the victim Tang X issued a letter of understanding indicating that X A's conduct would not be pursued, and requested the judicial organ to exempt X A from criminal punishment.
The above facts are evidenced by the following evidentiary materials submitted by the public prosecution organs and cross-examined and certified by the court:
1. Defendant Yu X's confession and defense proves that defendant Yu X A (screen name: Zhen Cheng Honest Man) and the victim Tang X X (net name: Zhen Cheng Rabbit God) are netizens, the two met online in early March 2012, and in mid-March 2012, they met and drank alcohol with two other netizens of the "Jingyu Zhen Cheng Dating QQ Chat Group" (net name: "Zhen Cheng Li Beauty", net name: "Please stop, forbidden area") at the Han XiangGe Hotel in Jingyu County, and Tang X drank six or seven bottles of beer at that time, and was in a sober state. At about 18:00 on March 19, 2012, Yu X A and Tang X met to eat in the private room of Four Seasons Fat Cow 219 in Jingyu County, and Yu X drank about six or seven bottles of beer, and Tang X drank five or six bottles of beer, and the two drank a total of twelve bottles. The two mentioned the relationship between lovers during the meal, and Yu A promised to give Tang a golden cat. At about 21:00, Yu X A went to the bar to check out, and Tang X stood by his side. Then the two discussed going to a certain jia's house to get the gold cat. In the home of A,000, Yu X took out the golden cat and handed it to Tang X, who carried the cat in his coat pocket, and then Tang X leaned on the defendant's shoulder, looking confused, and said, "I drank too much", and then closed his eyes, as if he were going to sleep. The defendant let the victim lie down to sleep, and took off Tang's shirt, and then the two had sexual relations. After that, Tang received a call from his mother and asked Yu A to send him home. After sending Tang X to his home, Yu X drove back home. In the early hours of the morning, Yu X A found that there was a missed call from Tang X on his mobile phone, so he drove to Tang X's home. When the vehicle drove near Tang's home, it met Tang, a middle-aged woman (Tang's mother) and a man. Tang's mother said that Yu A drugged Tang X and raped Tang X. Yu X A defended that there was no drugging and no rape, and the two had a dispute on the street, and Tang X's mother snatched Yu X A's mobile phone. After being persuaded by the man who came with Tang X's mother, Yu X, Tang X, Tang X's mother, and the man came to the beauty salon opened by Tang X to clarify the matter, tang X's mother and Yu X A argued, and Yu X A raised the police. Then Tang Moumou's mother called the police, and a few minutes later, the police at the police station arrived, briefly inquired, and took several people back to the police station.
2. The statement of the victim Tang XX proves that the victim Tang XX and the defendant Yu xxx are netizens of the A family, and in mid-March 2012, the two had met and drank alcohol with two other netizens at the restaurant. On March 19, 2012, yu A and Tang X chatted on the Internet about coming out to dinner, and the two met at 18:00 on the same day to eat in Room 219 of the Four Seasons Fat Cow, and the two of them drank a total of twelve bottles of snowflake beer during the meal, and each person drank five or six bottles. At about 21:00, Tang Went to the bathroom, came back and drank a beer, and then he was completely unimpressed by what happened after that. When there is another impression, Tang Moumou found that he was on the sofa or bed in the living room of a certain jia's house, and his naked body was having sex with Yu A, and he pushed Yu A with his hand, and there was no impression again. When he was sober again, Tang X went to the bathroom naked, came out of the bathroom and lay down on the sofa, Yu X A went to his side to kiss her, Tang X said he wanted to go home, Yu X A handed the clothes to Tang X, and put on pants for Tang X, and drove Tang X home. Tang Moumou said that the two did not mention Qi Qi during the meal. It was also proved that Tang X had no impression of whether he had acts of resistance or whether he had violent threats when he had sex with Yu A.
3. The testimony of witness Sun XX proves that Sun XX is the mother of the victim Tang XX, and at about 18:00 on March 19, 2012, Tang XX and Sun XX said that they wanted to go out to dinner, and said that there were "Yu Brother" and two other girls who ate together. At about 23:00 that night, Tang xxx returned home, pale, covered with hair (before leaving home was tied), Sun xxx asked Tang xxx what happened, Tang xx said that when eating at night, he ate until more than 20 o'clock and did not know anything, when he got up at 23:00 at night to go to the toilet, he did not wear anything, knowing that he was a man with the "surname Yu" he knew on the Internet, he asked to go home, and then the "surname Yu" sent Tang xxx home. Then Sun sent Tang to the hospital for examination, and after returning from the hospital, Sun took the beige underwear that Tang was wearing when the case occurred and kept the toilet paper that wiped Tang's private parts. Then Sun used Tang's mobile phone to dial the "surname Yu" phone, and no one answered. Sun Moumou used his mobile phone to dial again and no one answered. Just when Sun X and his neighbor (a man surnamed Chen) took Tang X out to prepare to report the case, they met the car of "surnamed Yu" head-on, and Sun X had a dispute with "surnamed Yu". Under the persuasion of the man surnamed Chen, Sun xx, Tang xx, chen surnamed man, and "surnamed Yu" came to Tang XX's beauty salon together, and after the two argued fruitlessly, they called the police.
...... (Other evidence omitted)
The above evidence was cross-examined in court, and the defendant Yu X A and his defender had no objection, but the defendant Yu X A's defender said that the above evidence presented by the public prosecution organ could prove that the victim had a good amount of alcohol on weekdays, drank five or six bottles of beer in a sober state, and the appraisal conclusion of this case confirmed that the victim was not drunk at the time of the crime and did not take sleeping pills. Therefore, the victim Tang XX and the defendant were sober and voluntary when they had sexual relations with xxx.
The Court held that whether the victim was "drunk" when he had sex with the defendant was the core issue of the case. "Drunkenness" is a mental state, with the specificity of the environment and the particularity of the state, so it is necessary to combine the time, place, environment and victim's performance before and after the incident, as well as the whistleblowing situation and other evidence. The defendant's repeated confessions by the investigating organs showed that in the defendant's home, the victim, Tang X, leaned on the defendant's shoulder, was unconscious, confused, and said, "I drank too much," and then closed his eyes as if he were going to sleep. The defendant let the victim lie down to sleep, and took off Tang's shirt, and then the two had sex. The victim, Tang X, said after the incident that he was delirious after drinking with the defendant, and his memory of what happened in the defendant's home was fragmentary, and he reported the case to the public security organ after the incident, clearly indicating that he did not have the will to have sex. It can be seen that when the victim had sex with the defendant, he showed a drunken state of slow response after drinking, weakening his judgment ability, delirium, and vague memory, and his sexual defense ability was significantly weakened.
Therefore, the defendant and his defender used the victim's usual amount of alcohol to make the presumption of his sober willingness at the time of the crime, and the court did not confirm it.
This Court held that the defendant had committed rape by the victim in disregard of national law and when the victim was drunk and his sexual defense ability was weakened, and his conduct constituted the crime of rape, and the facts and charges of the public prosecution accusing the defendant of committing rape against A were confirmed by this court. The facts and reasons for the defendant and his defender's defense of the defendant's innocence in A are not established, and this court does not accept it. Defendant Yu X A had a dispute with the victim's mother X B after the incident, and in the case of fruitless dispute, he took the initiative to call the police and waited at the scene. After the public security organs arrive, cooperate with the investigators to make a record, and accompany the investigators to the police station, their behavior conforms to the provisions of the "Supreme People's Court's Several Specific Opinions on Handling Voluntary Surrender and Meritorious Service" and "knowing that others have reported the case and waiting at the scene, without arrest at the time of arrest, and confessing to the facts of the crime", which is an automatic surrender. Although the defendant did not admit to the rape victim after he arrived at the public security organ, according to the "Reply of the Supreme People's Court on Whether the Defendant's Defense of the Nature of the Act Affects the Establishment of Voluntary Surrender", "the defendant's defense of the nature of the act does not affect the establishment of the voluntary surrender", so the defendant's act constitutes voluntary surrender and may be mitigated in accordance with law. After the incident, the defendant's family actively compensated the victim for economic losses on behalf of the defendant and obtained the victim's forgiveness. Based on the facts, circumstances, attitude of admitting guilt, and degree of harm to society of the defendant, and in accordance with the provisions of articles 236 and 67 of the Criminal Law of the People's Republic of China, the judgment is as follows:
The defendant committed rape and was sentenced to 10 months' imprisonment.
(The sentence is calculated from the date of execution of the judgment.) Where the sentence is taken into custody prior to enforcement, one day of detention is offset by one day of the sentence, that is, from March 20, 2012 to January 19, 2013. ）
If you are not satisfied with this judgment, you may appeal through this court or directly to the Intermediate People's Court of Baishan City, Jilin Province, within 10 days from the second day of receiving the judgment. Where an appeal is made in writing, one original and two copies of the appeal shall be submitted.
Chief Judge Li Zuojun
Judge Du Li
Acting Judge Li Zhihui
November 30, 2012
Scribe Zhang Yuan
The Public Account focuses on transmitting judicial interpretations of laws and regulations, as well as trial guidance issued by courts, sharing classic cases and practical articles, and introducing and promoting the study of hot laws and regulations.