Information about the parties
The former public prosecution organ, the People's Procuratorate of Changzhi City.
The appellant (defendant in the original trial) is Feng, male. He was criminally detained on suspicion of rape on 9 July 2015 and arrested on 24 July 2015. He is currently detained in the Changzhi City Detention Center.
The trial took place
On January 28, 2016, the Changzhi City Urban District People's Court of Shanxi Province heard the case of the Changzhi City Urban District People's Procuratorate accusing the defendant Feng X of committing the crime of rape, and rendered the (2015) Cheng Xing Chu Zi No. 436 Criminal Judgment. On December 6, 2016, the Changzhi Municipal District People's Court rendered the (2016) Jin 0402 Xingchu No. 277 Criminal Judgment. After the verdict, the defendant Feng appealed. After this court accepted the case, it formed a collegial panel in accordance with law, tried the case in closed court, and the Changzhi Municipal People's Procuratorate appointed procurators to appear in court to perform their duties. The defendant in the original trial, Feng, and his defender appeared in court to participate in the proceedings. Upon approval in accordance with law, the trial time limit is extended by two months. The trial has now been concluded.
The court of first instance ascertained
The original judgment found that: On June 17, 2015, the defendant Feng, who went by the online name "It Doesn't Matter", met the victim Li XX through the Momo chat software and began chatting. At about 10 o'clock on June 18, 2015, Feng took the initiative to chat with Li Moumou on Momo, and proposed to meet with Li Moumou, after the two parties agreed to meet near Lijiazhuang Village, Changzhi City, Feng took Li Moumou to his own home in the ** community of Lijiazhuang Village, and the two chatted in the living room of his home, and then Feng forcibly took off Li's clothes on the sofa in the living room, touched and kissed Li, and forcibly had sex with Li.
The evidence for the original judgment to determine the above facts includes: Li's report materials, interrogation records and in-court statements, identification records, identification photos, identification statements, identification statements, surveillance video and surveillance video descriptions, call records, on-site inspection work records and on-site photos of the Criminal Technology Brigade of the Changzhi City Public Security Branch [2015] No. 201, chat records, and defendant Feng's confession and defense.
The court of first instance held that:
The original judgment held that the defendant Feng had forcibly had a relationship with the victim Li against the woman's will, and that his conduct constituted the crime of rape, and that the public prosecution's accusation that the defendant Feng had committed the crime of rape was established and supported.
With regard to the defense opinions of defendant Feng X and his defender, the following determinations are made.
First, the defendant Feng and the victim met through Momo software, and before they met, they were strangers to each other, and it can be seen from the chat records that the two met only to know each other, and did not propose to have sex;
Second, when the victim repeatedly pointed out in the chat records that he was unwilling to have sexual relations with the defendant Feng, and that the defendant Feng's behavior was rape, the defendant Feng did not refute it, but only said that he "did not restrain himself, everything was done, what do you want to do", and the victim chose to call the police shortly after having sexual relations with the defendant Feng, it can be seen that the defendant Feng X approved of the occurrence of sexual intercourse, and the occurrence of the act was against the victim's will;
Third, as long as the violence in the act of rape is sufficient to put the woman in a state where she does not dare to resist, cannot resist, or does not know how to resist, it is not necessary to use violent acts such as beating and binding that seriously threaten the personal safety of the victim woman;
Fourth, the defendant Feng X claimed that he had taken drugs during the period of his relationship with the victim and was unable to get an erection, and that the victim gave him an erection with both hands, and the victim denied this statement, and there was no other relevant evidence to support it.
Fifth, the development and popularization of modern smartphones have made it possible for the public to quickly browse the web and copy and paste relevant content, and it is reasonable for the victim to type out 300 words in a short period of time about the punishment for the crime of rape, and the defendant Feng X discussed the price with the victim after the fact in order to obtain the victim's forgiveness, so it cannot be proved that the victim Li XX was premeditated.
In summary, the defense opinions of defendant Feng and his defender have no factual and legal basis and are not to be accepted. In accordance with the provisions of Article 236, Paragraph 1 of the Criminal Law of the People's Republic of China, the judgment is that the defendant Feng X committed the crime of rape and was sentenced to three years imprisonment.
Second-instance requests
After the verdict, the defendant Feng X was dissatisfied and appealed, requesting that the second-instance people's court change the verdict to not guilty in accordance with law, on the grounds that:
1. His sexual conduct with Li XX did not violate the subjective will of the victim Li XX;
2. He did not have any violent threats against Li;
3. The victim's description of the rape process did not match the time, but the appellant's description matched the time;
4. At the time of the sexual intercourse with the appellant, Li did not say that he did not agree to the appellant, and when Feng could not satisfy his desire to ask for money, he reported to the public security organ on the grounds that he did not agree, so as to pursue the criminal responsibility of the defendant Feng;
5. Sexual activity between Li XX and him is a kind of sex trafficking and should not be the object of legal protection.
Second-instance defense
The defender's arguments:
1. In cases remanded for retrial on the grounds that "the facts are unclear and the evidence is insufficient", it is wrong to make the same judgment in the second instance trial as the first one, even though there is no change in the facts and evidence. Where the evidence is insufficient and the defendant cannot be found guilty, a not-guilty verdict shall be made where the evidence is insufficient and the alleged crime cannot be established.
2. The judgment and admissibility of evidence must be made without other reasonable doubts. Evidence in rape cases is of special nature, and the direct evidence is often only the defendant's confession and the victim's statement, and it is easy to wrongfully accuse the innocent by simply adopting the victim's statement.
It is impossible to explain the following points: the victim knew in advance that there was no one in the defendant's house, that there was no damage to the victim's clothes or body, why the woman did not rush to call the police afterwards but asked for money, and why the woman did not cry out for help. I hope to return the defendant's innocence.
The prosecutor's opinion: The victim did not have an emotional basis for sexual relations with the defendant, nor did he express his intention to have promiscuous sex with the defendant. Moreover, the defendant's chat records prove that he mainly wanted to get acquainted, and that before the incident, the defendant took the initiative to ask the victim and invited him many times. The meeting between the victim and the defendant was based on the subjective intention of knowing, and there was no hint of sexual relations. The chat records at the time of the incident confirmed that the defendant forcibly had sexual relations with the victim, and according to common sense, the defendant would not agree to the victim's unreasonable request if it was not rape. The victim's wiping in the elevator indirectly proved that he was unwilling. Whether or not the victim's resistance is strong is not a constitutive element of the crime of rape, and whether or not the clothes are damaged or not should be found to be the crime of rape.
This court ascertained
After the trial, it was ascertained that on June 17, 2015, the appellant (defendant in the original trial), Feng, who was known as "Indifferent" on the screen, met Li Moumou (the victim of the original trial) through the Momo chat software and began chatting. At about 10 o'clock on June 18, 2015, Feng took the initiative to chat with Li on Momo, and proposed to meet with Li, and the two parties agreed to meet near the ** community where Feng lived in Lijiazhuang Village, Changzhi City. At about 13 o'clock, Li Moumou took a taxi to the vicinity of the entrance of the ** community, and after the two met, Feng proposed to go to his home, and Li Moumou agreed, and the two of them chatted in the living room first, and then had sex on the sofa in the living room.
The above facts are proved by the following evidence presented and debated at court:
1. The case acceptance registration form proves: "110" instructions were received at about 17 o'clock in the afternoon of June 18, 2015.
Li Moumou's report materials (victim of the original trial): On the morning of June 18, 2015, Feng asked me to meet, I have not agreed, after repeated requests, I agreed, the meeting place is in Lijiazhuang ** community, he said that he just knew each other and made friends, so I didn't think much about it, so I agreed, I didn't expect this kind of thing to happen. I went to their house, chatted, watched TV, and chatting was quite normal, and I didn't talk about it, and I didn't feel anything. After chatting for about half an hour, he began to move his hands and feet to me, hugging me, and then undressing me, pressing me down on the sofa, forcing me to have a relationship with him, I refused to cooperate, I cried, I pushed him hard, he still continued to force me like this, he was a man after all, I could only cry, he didn't pay attention to my feelings, and it was like this, and after that, I ran out crying, and he didn't come out, and then about 20 minutes later, Momo threatened me, so I couldn't stand such a blow, and I was sad.
2. Transcript of Li's interrogation
(1) Transcript of Li's first interrogation (June 18, 2015): At around 2 a.m. on June 17, 2015, a Momo named "It Doesn't Matter" The man added me through Momo, we talked for a while and I fell asleep, and then we chatted through Momo for about two days, June 18, 2015 at 10 o'clock in the morning The man took the initiative to chat with me, saying that he wanted to ask me to meet and chat, I said I didn't agree, I still have something to go out shopping for a while, he said you come to me, let's get to know each other, and we chatted until about 1 o'clock in the afternoon, this online name is "It doesn't matter" The man asked me if you came out, I said I came out, he said you come to Lijiazhuang to find me, I said yes, at the same time we left each other's phone on Momo, and then I took a taxi from my house (slightly) to Lijiazhuang** community, when I was about to arrive at the door of **community, at this time Momo named "It doesn't matter" The man called me and asked me where I was, I said I arrived, I am now opposite the entrance of the community, Momo's name is "It doesn't matter" The man asked me about a black shirt you were wearing, I said yes, and then he came to me, this strange man was wearing a yellow T-shirt and light blue jeans, and he said to me to go to my house for a meeting, I said okay, and then I went with him to a room in the Lijiazhuang ** community in Changzhi City (I can't remember the building), at about 2 o'clock in the afternoon. After entering the room, we sat on the sofa and chatted and watched TV, and chatted for more than half an hour. The strange man began to move his hands and feet on me, he hugged me and began to kiss me on the mouth and face and began to undress me, this strange man directly lifted my half sleeve from my waist and took it off with my underwear (bra), I said what are you doing here, said okay I just came here to chat, if you want to do this I will leave, he did not speak and continued to take off my pants, this strange man grabbed my hands with one hand and pressed them on the sofa (I can't remember whether it was my left hand or right hand), the other hand directly took off my pants and underwear, I pushed him with both hands but did not push away, at this time the strange man stood up and took off his half sleeve first, and then took off his pants and underwear, I quickly stood up and went to get my clothes while he was undressing, then this strange man came and snatched my clothes from my hands and threw them aside and pressed me on the sofa with his hands, and pressed me with his body, held my arms with both hands, and kissed my mouth, face, neck, he touched my chest and lower body with his hands, and then this man named "It Doesn't Matter" inserted my genitals with his genitals, about 5, 6 minutes this strange man ejaculated into my body, and then the man named "Doesn't Matter" wiped his genitals with paper, and I also wiped my lower body with toilet paper, and then I quickly got dressed and ran out crying, and after coming out of the community, I took a taxi home, and after returning home, this Momo was named "It Doesn't Matter" The man chatted with me on Momo again and asked me what I meant, what was this doing, I said I didn't want to do these things (sex), I knew it would be like this, I wouldn't come to see you, he said how do you want to solve it, I said there are three ways to solve it, 1, I will call the police, 2, you give me 20,000 yuan for a private chat, 3, I told my husband to let my husband find you, and then the man named "It doesn't matter" said I'll give you 10,000 yuan to solve it, I said forget it, I'd better call the police, and then this Momo name " It doesn't matter" man threatened me that if you don't look for me, I will look for you, I felt a little scared and thought that this man was unreasonable, so I called 110 to call the police.
(2) Transcript of Li's second interrogation (June 19, 2015): When a man named "Nothing Matters" in Momo forcibly had sex with me, I pushed his shoulder with my hand, cried and asked him what he was doing, and said that he would talk for a while, but he ignored it and continued to forcibly have sex with me. I was afraid that others would be embarrassed when they heard it, after all, I was in his house, I had no way to protect myself, I was in a vulnerable position, I thought he was quite strong, I was afraid that he would pose a threat to my personal safety, so I didn't shout or call for help at that time. I asked the other party for 20,000 yuan as my mental compensation, and I didn't want to make things bigger, I didn't want my family to know that I was private with the other party, and I also wanted the other party to pay some price for what they did.
(3) Transcript of Li's third interrogation (July 15, 2015): I took a taxi to the ** community, and then Feng came out to pick me up, and the two of us went to his house with each other, and after I got to his house, I chatted with Feng for a while and then he poured me a cup of yogurt, and then Feng turned on the TV, and we chatted while watching TV on the sofa, and we watched TV and chatted for about 40 or 50 minutes, and then Feng had sex with me, and after having sex, I left without staying at his house. In the middle of my sexual relationship with Feng, he didn't have a situation where he couldn't get an erection. After having sex, I didn't ask him for 500 yuan.
(4) Transcript of Li's fourth interrogation (August 18, 2015): Feng and I never talked to me about money from the time we met to the time we had sex, and I didn't ask him for 500 yuan. Feng forcibly took off my clothes when I took them off, and they were not torn or torn when I took them off.
(5) Testimony at the second trial of the first instance: The purpose of going to his house was to get acquainted, he said that we had a meal together at noon, and walked under his house, and he said that he would go up and sit down, and I went to his house, and he did not force me. When I went to his house, I asked if his wife was at home, and I made sure that his wife was not at home, and when I went to his house, I was basically sure that he was the only one. I took the initiative to change my shoes, and I offered to watch a horror movie, and I watched it for forty or fifty minutes. He didn't say anything, didn't threaten me, didn't use violence against me during sex.
(6) Testimony at this trial: I met Feng through Momo chat, Feng asked me a few times, I said no, they were all dates, and I knew that men were not good people. It happened that I went that afternoon, I didn't say that I would go to Feng's house before, but I didn't know to go to his house when I arrived. When I had sex I said no, I cried, I pushed him. I left after it happened.
I went to Feng's house voluntarily, he didn't scare me, he didn't use violence, and when they had a relationship, Feng didn't use threats, violence and other means. The reason why I didn't dare to resist and didn't call for help was that he was a man, plus he was in his house.
3. Chat records between Li Moumou and Feng Moumou.
Source: Li's mobile phone. On June 17, 2015, Li Moumou met Feng named "It Doesn't Matter" through "Momo" and started chatting.
The chat log lasted for two days, namely June 17 and 18, 2015, and the main contents are as follows:
1. Chat records before the incident, time period 2015 05:31 on June 17 --- 13:02 on June 18, 2015
At 5 o'clock on June 17, 2015, the defendants Feng and Li were chatting on Momo, Feng and proposed to meet with Li, at 12:20, Li replied, "No, men are all dating guns", Feng "What, you and I meet and get to know each other", Feng insisted on meeting with Li, and at 10:00 on the 18th, Li Moumou at first thought that "it was too embarrassing to meet", "they are all married, and it is not good to meet", "what are you doing, what if it is a bad person", " No, I think men are too terrible, they are all plotting against you" and other reasons to refuse, Feng "How do you say that men are bad people, I just want to meet you in broad daylight", Feng Moumou again proposed to meet with Li Moumou, Li Moumou said: "I think I promise you, am I becoming a frivolous woman", and asked "Are you married?", Feng replied "It's over", Li Moumou asked him "Where are you going?" , Li Moumou asked Feng Moumou "Is it convenient for you to see me at the door of your house? Your daughter-in-law is not...", Feng Moumou told him "It's okay, I'm not afraid of what you're afraid of, come here", Li Moumou said, "Of course I'm afraid, it's not clear", Feng Moumou told him that "my wife drove to Henan to play", Li Moumou offered to "you find a place, I'll look for you directly", Feng replied "It's near the community", and at 13:02 Li Moumou replied "It's coming soon".
2. Chat records after the incident, time period 14:53---20:01 on June 18, 2015
At 14:53 p.m. on June 18, 2015 and after, Li Moumou said to Feng on Momo, "You call this rape", Feng Moumou "I didn't restrain myself", Li Moumou "Look what to do", "I want to call the police", Feng Moumou "I have done everything, what do you want to do", Li Moumou "tell you, I don't want to do it, I am disgusted to do it, I don't like others to force it", "I don't like you, and I don't want to", Feng Moumou "What can I do to make you forgive me", Li Moumou proposed" Either call the police, or take 20,000 yuan, or I will tell him and let him (referring to Li's husband) find you", Feng "You want too much", "It's not forcing you, it's your own problem." Wait for jail. Between three years and less than ten years. Let you disrespect me", Feng replied, "When we were together, you didn't say you disagreed, resisted." Now he is doing this to me again", "20,000 is a bit too much, can it be less", "10,000 lines", Li Moumou refused and replied to Feng, "He gets off work after five o'clock, comes back and goes with him, and then writes a detailed experience." Leave the evidence behind. You just wait and sit down", "Rape is a crime that the mainland criminal law focuses on cracking down, and there is no problem of private intending in criminal law theory, and it cannot be taken personally. It should be noted that although in real life, the family members of some raped women later choose the so-called "private" (that is, the suspect pays a certain amount of money in exchange for the victim not reporting the case to the public security organs. However, as long as the evidence is credible and sufficient, even if the so-called "private agreement" is signed, the victim can still report the case to the public security organs at any time, and the public security organs can pursue the criminal responsibility of the criminal suspect in accordance with the law without the existence of the "private agreement". Of course, if the criminal suspect pays a certain amount of money to the victim, it can be used as a discretionary mitigating circumstance in sentencing, but this is only a discretionary circumstance and not a statutory circumstance that should or can be mitigated or mitigated. "Do you think your 10,000 yuan is still a matter of more money and less money?", Feng replied "I really didn't expect you to do this to me", "If you don't give you 10,000 yuan, I'm giving you a note", Li Moumou asked "What reason do you want to write", "What reason is owed", Feng replied "You are really noble, I asked for my money and asked me to write it is the cost of having sex with you", "You went to the home with me, and you blackmailed me when you had a relationship", "If you want to play fairy jumping in the future, remember to ask for money and don't say it yourself" etc., the latter two had a quarrel, and Li Moumou reported the case.
4, Li Moumou's personal dynamics
Available July 18, 2015. It reads as follows:
"Can you come to someone who understands me, tolerates me, spoils me, loves me, takes care of me, loves me... Man.. Don't want to talk nonsense. There is a tacit understanding of the priority... "It's okay to come here, I'm bored to death, do you have a chat with you?"
5. Changzhi City Public Security Branch Criminal Technology Brigade Gong (Cheng) Kan [2015] No. 201 on-site inspection work records and on-site photos. It is proved that the scene of the crime is located on the sofa in the living room of the east household on the 10th floor of Unit 2, Building 6, Lijiazhuang** Community.
6. Surveillance video and surveillance video description. It is proved that on June 18, 2015, the defendant and the victim Li XX entered the east household on the 10th floor of Unit 2 of Building 6 of the ** community at about 12:58, and the victim Li XX entered the elevator at 14:29 on the same day, pressed the button on the first floor, brushed his hair a few times, wiped his face a few times with his hands, then put on sunglasses, opened the bag he carried with him, took out a tissue, wiped his eyes and face a few times, and then walked out of the elevator.
7. Call logs. It is proved that defendant Feng X and victim Li XX talked on the phone three times at 12:29, 13:01, and 13:06 on June 18, 2015, and twice at 17:23 and 17:41 on the same day.
8. Identification records, identification photos, and identification descriptions of the identified person. It is proved that Li XX identified the man who raped him on June 18, 2015 on the 10th floor of Unit 2, Building 6, Lijiazhuang** Community, Changzhi City, as Feng.
9. The on-site test report of the Changzhi City Public Security District Bureau shows that: On July 8, 2015, the urine sample test result of the defendant Feng X in the Criminal Police Brigade was methamphetamine and was positive.
10. Antecedent materials. It is proved that on January 11, 2013, the defendant Feng was fined 200 yuan by the Changzhi Municipal Public Security Bureau Urban District Branch for providing gambling conditions.
Empire of the Law, Zan 2868
11. The appellant (defendant in the original trial) Feng X confessed
(1) Defendant Feng's first interrogation record (July 8, 2015): At about 9 o'clock in the morning one day in mid-June 2015, I saw Li XX online on Momo, and I took the initiative to chat with her, and after chatting for a while, I found that I was very close to her, and when it was almost noon, she asked me if I had eaten, and I said no, out of politeness, I asked her if she had eaten, and she said that she had not eaten, so I asked her to go to eat near my house, and then they left phone calls with each other, and I told her my address, and after about 5 minutes or so, she took a taxi to the door of my community, and she told me on Momo to pick her up at the gate of the community, and then I went downstairs to pick her upAfter picking her up, we went to my house together, after arriving at my house, we sat on the sofa in my living room and chatted, she said she likes to watch horror movies, I was searching for a horror movie for her to watch, we watched and chatted, in the process of chatting, I also asked her how much the measurements, the woman's measurements are A big or D big, she said D big, I asked her how big she was, she said wear C, I asked her how much waist circumference she was, she said that she weighed about 140 pounds, waist circumference did not know, I asked her how to buy clothes and pants, she said try to buy, she asked me to measure her waistline, I went over to hug her, she also hugged me, I began to kiss her, she also kissed meThen we lay on the sofa and kissed each other, and then I reached into her blouse, untied her bra, and took off her blouse and bra together, put her clothes and bra on the sofa, and after taking off her blouse, I went to take off her pants, because she was not good at sitting, so she took off her pants and panties by herself, and I took off my own clothes and pants, and after taking off my clothes, I saw a pad on her panties, and I was afraid that the pad secretions would be smeared on the sofa, so I folded her panties and put them on the sofa next to me, and I went over and hugged her and inserted my genitals into her vagina, when she was below me and above, she was holding meAfter a few minutes of thrusting of my genitals in her vagina, then we swapped places, I sat on the couch, she sat on top of me, we did it a few times, I didn't feel well, and then we switched positions again, she was half lying on the couch, I was standing on the ground, she lifted her legs, I inserted her genitals into her vagina, she put her legs on my shoulders, about 1, After 2 minutes, I ejaculated into her vagina, after I ejaculated, she asked me if I was not afraid of pregnancy, I said impossible, because I would not give birth, she said what to do if I had it, I said to marry her if I wanted to have it, we wiped our lower body with a tissue while talking, I picked up the tissue I wiped and the tissue she threw on the ground and threw it into the trash can, I sat on the sofa and smoked, she began to dress, she said she was going shopping with friends, I said what time is it, what are you doing on the street on such a hot day, after she got dressed, she asked me for 500 yuan, I gave her 200 yuan, she asked me she was worth 200 yuan, I said you want to take itAfter she left, I started to get dressed, and after about ten minutes, she sent me a message on Momo saying that I raped her, and she wanted to call the police, so I asked her what she wanted to do, and she said she was going to call the police and said that I raped her, saying that she had my semen on the pads, and I wanted to test what she wanted to do, so I asked her how to deal with this matter, and she asked me what I wanted to do, and I said if there was a way to deal with it without calling the police, and she said that it was okay not to call the police, and asked me to give her 20,000 yuan, and if she didn't give the money, she would call the police and let her husband come to meAt that time, I thought that this was a planned blackmail, so I bargained with her, I said 20,000 is too much, can it be low, I said give her 5,000 yuan, she said she didn't care about the thousands of yuan, I said I only had 12,000 yuan in the card, give her 10,000, she said no, we were repeatedly negotiating, she asked me to give her 10,000 yuan in cash and give her a note, but not an IOU, but to write down the story clearly because of what reason she owed her 10,000 yuan, about more than 2 hours of discussion, and finally because she asked me to write a note about this matter, I turned my face and got angry, I scolded her for wanting to blackmail and have to find the right person, give 10,000 cash don't have to make a noteLater, she called the police at about 17 o'clock.
Li Moumou had a relationship with me voluntarily, and I did not threaten her, did not use violence against her, and did not scare her. I didn't say with her that I wanted to have a relationship on Momo, but there were hints between each other, she asked me how dare I let her go to my house when my wife was not at home, I told her that my wife was not at home, I was home alone, and everyone said that Momo was a "dating artifact", I thought that lonely men and widows did not know each other, and it was possible to have a relationship between men and women in the same room.
(2) Defendant Feng's second interrogation transcript (July 9, 2015): One day in mid-June 2015, a woman I met on Momo had sex at my home on the 10th floor of Unit 2, Building 6, ** Community, Changzhi City. I did not threaten, intimidate, or beat this woman during the sexual intercourse with her, she did so voluntarily.
(3) Defendant Feng's third interrogation record (July 14, 2015): On the day of the incident, Li XX went downstairs to pick her up near my house, and I called her when I couldn't find her. After I met her, Li Moumou was in Wulong Shui, I and Li Moumou from Wulong Water to my house took about 10 minutes, after I got home, I poured a glass of milk for Li Moumou, and then Li Moumou said to watch a horror movie, I searched for a movie (I forgot what the specific name was), we chatted and watched a movie together, about half an hour, and then we began to kiss and have sex, but we had sex to the middle, my genitals could not be erect, so Li Moumou stroked me with his hand, until I got an erection again, we started to have sex again, and finally Li Moumou left after we had sex。 Because I smoked "ice" before Li Moumou came that day, I couldn't get an erection, and when I went to the public security organs, I didn't dare to say that I was taking drugs, for fear that the public security organs would deal with me, so during the first and second interrogations by the public security organs, they didn't say that I couldn't get an erection during sex with Li.
(4) Defendant Feng's fourth interrogation record (July 15, 2015): On the morning of mid-June 2015 (the day I had sex with Li), I smoked "ice" alone at my home in ** Community, Changzhi City. I smoked it from the night before I had sex with Li Moumou, because I was in a bad mood for those two days, and my wife was angry because I was chatting with other women on Momo. I took two sips of "ice" that night, and after smoking, I didn't want to eat or sleep. The drugs I took were asked for from a woman I met on the Internet (Momo). "Methamphetamine" was smoked with straws and plastic bottles, and the tools used to smoke drugs were thrown into the garbage cans in the community. It has been more than 10 days since I took drugs until I was summoned to the public security organs, and I took medicine every day for more than 10 days, and I thought that the pills caused my urine sample to test positive, so when the police tested positive for methamphetamine on July 8, 2015, I claimed that it was due to myocarditis, heart expansion disease, and heart failure. In order to prove that I did not rape Li, she was willing to have sex with her, so when the public security organs interrogated me for the third time, I admitted that I had taken drugs on the day I had sex with Li.
(5) Defendant Feng's fifth interrogation record (July 24, 2015): In mid-June 2015, I had sexual relations with a woman I met on Momo at my home in the ** community in Changzhi City. Li Moumou's coat at that time was a large V-neck dress with loose gauze yarn, and a low-cut vest inside, all of which were black. Wearing wide pants with elastic bands, especially wide, peacock green or purple, I can't remember. A pair of calf-to-calf sandals with buckles and a particularly thick heel. She should have changed her shoes when she came into my house, because I remember changing her shoes by the shoe closet when she left. At that time, Li Moumou was half lying and half sitting, I took off her pants to her knees, her buttocks were still sitting on her pants, I couldn't take them off, so she took them off by herself.
(6) Confession of first-instance defendant Feng at trial (January 13, 2016): I was chatting through Momo and saw that Li Moumou had sent a public message that at 11 o'clock in the evening, I was going for a walk, and after I saw it, I chatted with him. I think that through online chat, it is normal to meet people, the purpose of meeting is to make friends, and the purpose of making friends is to have sex. After the incident, Li Moumou contacted me and said that I was raping, and I replied that I did not control myself in order to test her. When I had a relationship, I took off Li Moumou's shirt, and I took off my pants to my knees, and then she took them off herself, in this process, Li Moumou did not resist, everyone is an adult, and it can't happen if you don't want to. After having sex, Li Moumou left my room about ten minutes later. At that time, Li Moumou said that he was going to go to the street with a friend and asked for 500 yuan, but I didn't have any clothes on, and there was 200 yuan on the table, so I asked her to take it. When we chatted, we jokingly talked about her measurements. I have not used violence, Li Moumou only stayed in my house for 3 hours, it is right to protect the vulnerable, but it cannot be used as an excuse to achieve illegal purposes, at that time, Li Moumou directly put on her underwear, did not wipe it, at that time it was her own pants, and in the elevator, can not unilaterally think that she is wiping tears, what if it is wiping sweat? Li Moumou's statement that I pressed her on the sofa is not true, because I was addicted to drugs during that time, and I could not get an erection, and it was Li Moumou who gave me an erection with both hands.
(7) Confession of first-instance defendant Feng X at trial (December 5, 2016): I added several people to Momo, and Li XX sent a passing message, and I added her. I think Momo is a software for chatting and having relationships between men and women. After Li Moumou sent a message saying that I raped her, I thought it was a trick, so I wanted to be soft, see how she tricked me next, and see what she would say, so as to achieve her purpose of asking me for money, so I didn't restrain myself in replying to her. Li Moumou said that she would not call the police if she gave the money.
Li Moumou voluntarily went home with me. We chatted about some things about measurements, I asked her what her waist was, she said she didn't know, let me measure it myself, I hugged her, and she didn't push me away. I didn't threaten or beat Li Moumou, and I didn't even speak loudly.
(8) Confession at this trial: Ibid.
Based on the above evidence, the analysis is as follows:
The appellant (defendant in the original trial) Feng and Li (the victim in the original trial) both recognized the fact that the two had sexual relations, and whether the appellant Feng used violence, coercion, or other means and whether he violated Li's will is the key to constituting the crime of rape:
1. In this case, the content of Li's multiple statements and Feng's multiple confessions is stable, and they all prove that no violence or coercion was used, and no other means were used to put Li XX in a state where he was unable to resist, did not dare to resist, or did not know how to resist, and there was no situation in which Feng took the opportunity to commit adultery in a state where Li XX did not know and could not resist.
2. Whether it violates the will of Li.
The first is the analysis of Momo's chat records: the Momo chat records of the two have been fixed by the investigation agency, which objectively reflects the real psychology of the two at that time. Engaged in the analysis of pre-dispatch chat records, the two had known each other for only one day, and when the appellant Feng asked to meet with Li, Li began to refuse for various reasons, but under Feng's repeated requests, he still agreed to meet and took a taxi to the appointment, and after Feng proposed to go to his home, Li still agreed and went to Feng's house with Feng after confirming that Feng was the only one. Therefore, Li's meeting with Feng and going to Feng's house were all out of his own volition, and there was no coercion. The chat records after the incident reflect that Li Moumou was unwilling, but it cannot be inferred that he was also unwilling at the time of sexual intercourse.
The second is the analysis of the words and deeds of the two when they had sexual relations: Li Moumou stated that he was unwilling, but he did not obviously resist when he had sexual relations, and the time was more than one o'clock at noon, and the neighbors were at home after work, and he did not call for help, and his explanation was that the reason why he did not call for help was that Feng was male and was at his house, so such an explanation was also unconvincing. Judging from Feng's confession, Li XX was not only willing, but also cooperated, and both sides insisted on their own words, and it cannot be determined whether it violated Li XX's will.
The Court is of the opinion that
According to this court, the crime of rape refers to the act of forcibly having sexual intercourse with a woman against her will, using violence, coercion or other means. The appellant (defendant in the original trial) Feng and Li (the victim in the original trial) both recognized the fact that the two had sexual relations, and both proved that they did not use violence or coercion, nor did they use other means to put Li XX in a state where they could not resist, did not dare to resist, and did not know how to resist, nor did the appellant Feng take the opportunity to commit adultery in a state where Li XX did not know and could not resist. Although Li XX stated that he was unwilling to have sexual relations, and that he cried and pushed the appellant, there was no other evidence to corroborate it, so there was no violence, coercion or other means when the appellant Feng had sexual relations with Li XX. Whether it was against Li's will cannot be determined based on the above evidence. Some of the appellant Feng's grounds of appeal were adopted. In summary, there is insufficient evidence to determine that appellant Feng has committed the crime of rape. After discussion and decision by the adjudication committee, in accordance with the provisions of Article 225, Paragraph 1 (3) and Article 195 (3) of the "Criminal Procedure Law of the People's Republic of China", the judgment is as follows:
The result of the second-instance judgment
1. Revoke the (2016) Jin 0402 Xingchu No. 277 Criminal Judgment of the Changzhi City Urban District People's Court of Shanxi Province;
2. The appellant (defendant in the original trial) Feng X is not guilty;
This judgment is final.
Adjudicators
Presiding Judge Zhao Guangwen
Judge Hong
Judge Zhao Mingming
Date of referee
July 13, 2017
Clerk
Clerk: Wang Qing
Source: Judgment Network
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