If you live together after divorce and have sex voluntarily many times, can you refer to whether marital rape does not constitute a crime?

Guide:

According to the criminal justice practice in the mainland, under normal circumstances, "marital rape" will not be prosecuted for the crime of rape, that is, the husband in the legal sense cannot be the subject of the crime of rape. However, if the marriage is not in normal existence, i.e., during divorce proceedings, separation, or other periods of extreme emotional instability, the husband cannot completely rule out the possibility of establishing the crime of rape.

However, if the parties are divorced, but still live together and raise children together, or even if the parties have had sexual intercourse several times after the divorce and before the crime, can a de facto marital relationship be established, that is, the marital relationship between the parties is still in the sense of the criminal law, can it be evaluated and handled with reference to "marital rape"?

Today, the editor brings a case of rape in which people still live together and have sex after divorce, and see how the court evaluates it in practice?

1. Documents

Trial court: Gushi County People's Court of Henan Province

Case No.: (2016) Yu 1525 Xingchu No. 509

Subject matter: Rape, trespass

Date of adjudication: 09.11.2016

Collegial panel: Presiding Judge Feng Gang, Judge Liu Kangxue, Judge Yuan Congbing, and Clerk Li Min

2. The basic circumstances of the prosecution and defense

Public Prosecution Organ: People's Procuratorate of Gushi County, Henan Province.

Defendant Kang XX, male, was born on January 9, 1982 in Shou County, Anhui Province, X ethnicity, graduated from junior high school, engaged in business, and lived in Shou County, Anhui Province. He was sentenced to three months' detention and fined 2,000 yuan on April 9, 2015 for dangerous driving, and is now criminally detained by the Gushi County Public Security Bureau on April 20, 2016 on suspicion of rape, and arrested by the Gushi County Public Security Bureau on May 3, 2015.

Defender: Chen Moumou, lawyer of Henan Liyang Law Firm.

3. Trial procedures

On September 12, 2016, the People's Procuratorate of Gushi County, Henan Province, charged the defendant Kang Moumou with the crimes of rape and illegal invasion of a house in the indictment [2016] No. 379 of the Gushi County Public Prosecution of the Solid Procuratorate, and filed a public prosecution with the Gushi County People's Court of Henan Province on September 12, 2016. After accepting the case, the Gushi County People's Court of Henan Province formed a collegial panel in accordance with the law and tried the case in closed court. The Gushi County People's Procuratorate appointed procurator Zhou Xuelian to appear in court to support the prosecution. Defendant Kang XX and his defender Chen XX appeared in court to participate in the proceedings. The trial has now been concluded.

4. The opinions of the prosecution and defense

The People's Procuratorate of Gushi County, Henan Province alleges that after the defendant Kang XX and Li XX divorced in 2008, they illegally invaded Li's home on the third floor of Unit 4, Building 1, Building 1, Longxing Garden, Chengguan, Gushi County, Henan Province, without the permission of Li, and forcibly had sexual relations with Li X at about 2 a.m. on March 30, 2016. The public prosecution believes that the defendant Kang XX forcibly had sexual relations with women against their will and illegally invaded other people's homes, and that his conduct has violated the provisions of Article 236, Paragraph 1 and Article 245, Paragraph 1 of the Criminal Law of the People's Republic of China, and that he should be investigated for criminal responsibility for the crimes of rape and illegal home invasion.

Copy and paste the URL cqzhihaolaw.com

Enter the official website of Zhihao Law Firm

Focus on criminal cases, we are more professional

Defendant Kang Moumou defended in court that he did not think he constituted rape, they had lived together for so many years, and many people who came in and out knew that they had been together for a long time. For the matter of changing the lock, because the two children also have the key at home, he changes the lock every time they lose the key.

His defender argued: (1) marital rape is not a crime. According to the theory of criminal law, the constitutive elements of the crime of bigamy and the type of crime (legal marriage first and de facto marriage later) are compared. Kang and the victim Li belong to the relationship between husband and wife in criminal law. This case is a de facto marriage, and there is also the fact that there is a son and a daughter, and there is also the witness testimony of a neighbor Zhang1 who confirms that the two have been living together in the name of husband and wife. There is also Kang Moumou who invested in the purchase of a house, and the two parties lived together. Because of the existence of a legal and de facto marital relationship, one party has the right to demand that the other party perform the obligation of sexual conduct (cohabitation obligation), even if the husband's behavior infringes on the wife's right to sexual freedom, it does not constitute a crime, and the husband does not regard forcing his wife to have sexual intercourse as a crime of rape. Therefore, Kang Moumou did not constitute the crime of rape. ...... (3) Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Rape Cases by the Supreme People's Court and the Supreme People's Procuratorate and the Ministry of Public Security Kang XX does not constitute the crime of rape: from the testimony of witnesses, it can be proved that Kang XX and Li XX are husband and wife, and that Li's statement did not call or resist, and it is not the first time that he has had sex with her like this, and the description of Kang's behavior and actions in the process of having sex does not see Kang XX's violence and the so-called victim Li's resistance. In this case, the parties had sex multiple times before March 30, 2016, or again after March 30, 2016, at 10 p.m. on April 16, 2016. Throughout the case, there is no evidence to prove that Kang XX used any violent means in the course of having sexual relations with Li, and there is no evidence to prove that Li XX carried out acts of resistance. Li accused Kang of raping him. Whether it is from the perspective of the criminal composition of the crime of rape or the legal basis, the facts are unclear and the evidence is insufficient, and Kang XX does not constitute a crime.

5. The court ascertains the facts

After trial, it was ascertained that in March 2005, the defendant Kang XX and the victim Li XX registered their marriage. A girl was born after marriage. On February 28, 2008, the parties divorced by mutual agreement due to emotional incompatibility, and the parties continued to live together after the divorce. On November 21, 2008, Li purchased a house on the third floor of Unit 4, Building 1, Longxin Garden, Gushi County, at a price of 220,000 yuan, and handled the house ownership certificate with Li as the owner of the house. On 5 January 2009, the parties gave birth to a boy. On October 26, 2012, the parties agreed to dissolve the illegal cohabitation relationship, and agreed that the husband would not disturb the woman's independent living order and not enter the house where the woman lived for any reason. On March 8, 2016, Kang changed the door lock of the house and handed over the key to Li through his children. At about 2 a.m. on March 30, 2016, Kang Moumou forcibly had sex with Li Moumou against Li's will at Li's home.

6. The court's determination

The court held that the defendant Kang XX forcibly had sexual relations with women against their will, and his conduct constituted the crime of rape.

Copy and paste the URL cqzhihaolaw.com

Enter the official website of Zhihao Law Firm

Focus on criminal cases, we are more professional

The public prosecution's accusation that defendant Kang XX committed the crime of trespassing into a residence is not established, and this court does not support it. Defendant Kang XX defended in court that he did not believe that he constituted rape, that they had lived together for so many years, and that many people who had been in and out knew that their opinion that they had been together for a long time was inconsistent with the facts ascertained in this case, and that this court would not accept them; His defender submitted, 1. Regarding the crime of rape. (1) Marital rape is not a crime. Kang and the victim Li belong to the relationship between husband and wife in criminal law. Therefore, Kang Moumou did not constitute the crime of rape. (2) The evidence on which the verdict is based has been verified through legal procedures and is not true. (3) Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Rape Cases by the Supreme People's Court and the Supreme People's Procuratorate and the Ministry of Public Security Kang XX does not constitute the crime of rape: from the testimony of witnesses, it can be proved that Kang XX and Li XX are husband and wife, and that Li's statement did not call or resist, and it is not the first time that he has had sex with her like this, and the description of Kang's behavior and actions in the process of having sex does not see Kang XX's violence and the so-called victim Li's resistance. Whether it is from the perspective of the criminal composition of the crime of rape or the legal basis, the opinion that the facts are unclear and the evidence is insufficient, and that Kang XX does not constitute a crime is inconsistent with the facts already ascertained in this case, and this court will not accept it; In accordance with the provisions of Article 236, Paragraph 1 and Article 61 of the Criminal Law of the People's Republic of China, the judgment is as follows:

Source: Alpha Database