Reading Notes: The Consent System in Criminal Law: Starting from the Crime of Sexual Assault (Chapters 2 & 3)

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1

Introduction

This book mainly discusses the status of consent in the crime of sexual assault, the concept and judgment criteria of consent, and the manifestations of disagreement from the perspective of the crime of sexual assault, and comprehensively examines the criteria for sexual consent, as well as the power, morality, and culture wrapped around "sex", which involves the "not equal no" standard, the affirmative consent standard, the age of sexual consent, coercive means, and the perfect victim. In Chapter 2, the author introduces the concept of consent and the criteria for judging disagreement. Regarding the concept of consent, the author proposes that consent is not a simple fact, but also has a certain social evaluation. Consent is a normative constituent element. For the normative constituent elements, the legislator only provides the guidance of evaluation, or only the form of assigning value, and the specific evaluation needs to be completed by the judiciary according to certain standards. The author then introduces seven different theories that have emerged in the Chinese criminal law community over how to understand "disagreement" in the crime of sexual assault. Chapter 3 is an expression of disagreement. Non-consent is the essential feature of the crime of sexual assault, and if the complex situation of marital sexual assault is not considered, then its manifestations can be roughly divided into three types: first, the means used by the perpetrator are seriously coercive, resulting in invalid consent, and the serious excesses of the perpetrator's behavior determine that the victim is unable to resist; Second, if the victim is unable to understand the meaning of the sexual act due to age or physical reasons, and therefore lacks the ability to consent sexually, and is unable to resist due to lack of ability to resist, the perpetrator commits a sexual act as a criminal act; Third, for adult healthy victims, if the means used by the perpetrator are not obviously coercive, then the victim's resistance must be relied on in determining whether the act is excessive.

2

Reading feelings

Speaking of sexual assault, in the mainland, the crimes involved may include rape, forcible indecency, insult, child molestation, etc., and the core issue is the issue of disagreement. Worldwide, there are roughly four types of criteria for disagreement: the maximum resistance standard, the reasonable resistance standard, the "not equal to not" standard and the "yes to" standard.

First of all, the maximum resistance to the standard. This is one of the oldest standards. At that time, it was believed that without maximum resistance and without fighting to the death to defend chastity, it could not be counted as disagreement. In ancient times, women did not have an independent status in China and abroad. Before marriage, the woman is the property of the father; A woman who marries is the property of her husband. Under this feudal concept, it was widely believed that women's chastity was even more important than life. Therefore, in the face of sexual assault, in order to show her disagreement, a woman must resist to the greatest extent, such as physically blocking it, or tearing her clothes, so as to show her disagreement.

With the development of the times and the improvement of women's status, the crime of adultery was abolished, and the standard of sexual assault in the legal profession also changed, from the maximum standard of resistance to the standard of reasonable resistance. The standard of reasonable resistance no longer requires women to fight to the death and swear to the death, as long as women make reasonable resistance while ensuring their own safety, they can be found to be disagreeing. However, there is also a problem with the standard of reasonable resistance, which is very vague in the circumstances in which the victim feels that he or she is in danger. Most judges are men, and there is a big difference in the perception of threat between men and women. For example, a boy will not write down the number of the taxi and send it to his family after getting into a taxi at night; If you live alone, you won't put many pairs of slippers at the door. When I opened the door and took the takeaway, I didn't show the illusion that there was someone at home, and I turned around and shouted that the meal had arrived. Everyone has their own standards in mind, and if the standards of the judge and the plaintiff are not consistent, there will be problems.

Only resistance can represent refusal, and this standard itself is unreasonable, so the legal profession's criteria for determining sexual assault continue to evolve, and a third type has emerged, called the "not equal no" standard. At any time, a person who says no can be legally deemed to have disagreed. But there may be a prejudice that women say no is half-pushed, a symbolic refusal, but this prejudice is absolutely unreasonable, when a person has clearly said no, we should respect her right to say no, Luo Xiang teacher also believes that if a man sincerely believes that "no" is equal to "yes", the law should also abandon this concept, let the person who adheres to this prejudice pay the price. Because no means no.

With the development of the times, there is now a newer standard called the affirmative consent standard, that is, only the expression of affirmative consent can be considered consent in law, and in addition, even silence must be regarded as a refusal. This standard seems to be more conducive to protecting women's rights and interests, but if under this standard, for example, a couple, a boy stealing a kiss from a girl may constitute a crime, but this is obviously contrary to our daily cognition, so the "is equal" standard has its reasonable components, but the criminal law is only the minimum moral requirement for people, when determining the crime of sexual assault, we mainly adopt the standard is not equal to the standard, and the "is equal" standard is mainly used as a basis for self-discipline in moral life.

Although we hope that men and women are equal, in sexual assault cases, it is true that women are more likely to be harmed, and when we think about related issues, we must open women's horizons, and the law cannot use men's standards to require women. As mentioned above, men and women have different perceptions of threat. This is the status quo we are facing, this is an imperfect world, and I hope that with the progress of the law, as our concepts advance, the difference between men and women will become smaller and smaller, and women's sense of security can become stronger and stronger.

Producer: Zhang Yongjiang

Author: Deng Si, a 2024 master's student majoring in criminal law at Xiangtan University Law School

Editor: Deng Si

Editor-in-charge: Liao Peilei

Review: Li Lan

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