【Disclaimer】The article is edited and produced by the lawyer team, and is only for teaching and research, reading, and communication, and plagiarism is not allowed.
Xu and Xiaolan were originally netizens who met through online games and chats.
The girl next door
Xu is an executive of a large company with a wealthy family. Xiaolan is a flight attendant who has just joined the company, and her parents are private owners. Xu is good-looking, Xiaolan is sweet and pretty, lively and cute, and is a typical "first love" girl.
The two chatted for a few months and had a lot in common, so they made an appointment to meet. The meeting place is usually at the MixC, Starbucks, IFC, Hang Lung Plaza...... Xu made a generous move, and Xiaolan began to refuse the gift from Xu, but after coming and going, she also had a little good feeling.
One day, Xu and Xiaolan went to the beach together, and Xiaolan wore a blue bikini, and her white glowing skin could be broken. Coupled with decent and generous conversation, Xu seems to be in a fairyland.
In the evening, while eating together, Xu put sleeping pills in Xiaolan's coffee ☕......
At the seaside hotel, while Xiaolan was asleep, he had sex with Xiaolan.
After crying for a long time, Xiaolan wanted to call the police, but Xu kept begging her, and knelt on the ground to confess that he wanted to marry Xiaolan as his wife, and he only loved Xiaolan alone in his life. In this way, Xiaolan's heart softened...... Agree that the two people will continue to interact.
The two became boyfriend and girlfriend, and they had sex again for the next two months. It wasn't until later that Xiaolan became pregnant.
Xiaolan's parents found out that something was wrong, and under the questioning of her parents, Xiaolan confessed everything. But when Xiaolan proposed to Xu to go to see her parents together, Xu put on a different face, saying that Xiaolan's family background was generally not worthy of his identity as a young master.
Xiaolan's family immediately called the police and asked the public security organs to investigate Xu's criminal responsibility.
Xiaolan stated in the transcript that the first time she was raped, she had no choice but to agree to have a relationship with Xu, and the next few times there was no coercion, and the two had sexual relations voluntarily.
The public security organs arrested Xu and interrogated him about the facts and circumstances of the rape crime, and the context of Xu's confession was basically the same as Xiaolan's statement, but denied the fact that the first sexual act was rape.
So the question is, Xiaolan had sexual relations voluntarily several times later, can it be presumed that Xu's first rape was not established? Does the subsequent voluntariness mean that Xiaolan has consented to and recognized the legality of Xu's first sexual act? Does Xu constitute the crime of rape?
The following is a summary of the basic case files of the first instance:
1. Suspect statement
Xu believes that he and Xiaolan are in a free relationship, he has never forced each other, and the two of them have sex voluntarily every time. Later, because the protective measures were not done, Xiaolan became pregnant, which led to the exposure of their relationship, and under the pressure of her parents, Xiaolan complained that she had been raped. In fact, they are normal sexual relations that occur between lovers and do not constitute a crime.
2. Defense opinions
The defense argues that the available evidence is insufficient to conclude that Xu used violence, coercion, or anesthesia to forcibly have sexual relations with a girl, and that the facts of the alleged crime of rape are unclear and the evidence is insufficient. Moreover, judging from the fact that they had consensual sex many times later, the two should be in a real relationship.
The available evidence cannot rule out the possibility that the two had consensual sexual relations from beginning to end. Therefore, there is no doubt about the guilt, and it cannot be determined that Xu X has constituted a crime, and he should be acquitted on the basis of insufficient evidence.
3. Victim statements
Xiaolan believes that when she was first offended, she was violently assaulted, and she was completely unable to resist at that time, and she was raped by Xu. Later, it was also based on Xu's confession and considering his innocence that he endured humiliation and continued to date.
Although he had sexual relations several times voluntarily later, the fact that he was raped by Xu using narcotic means at the beginning cannot be denied.
4. The Public Prosecutor's Opinion
The prosecutor in this case believes that the statements of Xiaolan and the suspect Xu are basically the same, and the available evidence is sufficient to determine the fact that Xu used anesthesia to forcibly have sex with Xiaolan. In addition, there were also heinous circumstances that led to Xiaolan's miscarriage, and the suspect should be investigated for criminal responsibility for the crime of rape.
5. Opinions of the collegial panel of the court of first instance
The trial committee of the court of first instance held that:
1. Xu and Xiaolan had sexual relations voluntarily many times, and the fact that they forcibly had sexual relations for the first time cannot be denied.
2. After the case was discovered, Xu's family compensated Xiaolan for medical expenses such as miscarriage, and there were circumstances where the victim and his family were forgiven for the civil compensation, and may be given a lighter punishment as appropriate.
3. Where the two of them voluntarily had sexual relations multiple times later, it may also be found to be a discretionary mitigating circumstance.
In view of this, the court of first instance found that Xu had committed the crime of rape and sentenced him to four years in prison.
In this regard, Xu expressed dissatisfaction, arguing that apart from Xiaolan's accusations, the court had no other evidence to prove that he used violence, coercion, or narcotics and other means to forcibly have sex with Xiaolan.
Therefore, on the grounds that the judgment was not supported by corresponding factual evidence, he appealed to the higher court to revoke the first-instance judgment and requested the second-instance court to change the verdict to not guilty.
After trial, the court of second instance held that in this case, the first instance trial found that Xu's first sexual relationship with Xiaolan constituted rape, and that there were the following problems:
1. The facts supporting the crime of rape are unclear and the evidence is insufficient.
2. A few months after the first sexual relationship, the woman claimed to have been raped, and before that, the parties had had had sexual relations voluntarily several times, and the above experience was mutually agreed by both parties.
3. After the first sexual act, the woman's expression of intent to have sexual intercourse voluntarily has a deterrent effect on the accusation that the previous sexual act was against the woman's will.
Therefore, it cannot be determined that the woman's claim that the first sexual act was against her will.
In view of this, the court of second instance held that the court of first instance in this case found that Xu had insufficient evidence to constitute the crime of rape, so it revoked the original judgment and declared Xu not guilty.
Lawyer's statement
With regard to the circumstances of multiple consensual sexual relations after the first rape, the team of lawyers believes that:
1. For the first sexual act, if there is evidence that it is clearly against the will of the girl, forcibly have sex with her. That is, the illegality of his actions cannot be denied.
2. The subsequent expression of intent of the parties to have sexual intercourse does not contradict the previous involuntary expression of true intent, and there is no effect between the two to affect the authenticity of each other.
3. From the perspective of protecting women's rights and interests, it is appropriate to strictly apply the principle of modesty in the criminal law to prudently determine the crime of false accusation and framing by the woman or for this reason.
4. Special reminder that women should not stand under the wall with gentlemen, and do not travel, eat and engage in other too intimate activities with people who do not know each other very well.
*What do you think about this case and the views of this article? *
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