On The "Against Women’s Will" In Rape Crime

Feminist jurisprudence is the product of the combination of feminist thought and law,which is based on the criticism of the patriarchal system,and aims to find and analyze how the law,as a state machine,consolidates the structural inequality and excludes the interests of women from the scope of protection.Feminists believe that the patriarchal system is the root cause of women’s subservience to their status.It is a system that sub servives women to men,and it is the common experience of all women.Although women are otherwise different,they are discriminated against and oppressed on the basis of their gender identity.Even if certain specific personal relationships deviate from this trajectory,social systems that conform to it are still ubiquitous.Thus,patriarchy is more complex than any one country or culture.It is a holistic,cosmopolitan view,with thousands of metaphors and effects,without any formal opposition or challenge until the emergence of feminism.For all women,the common experience is that they live on the enslaved side of the patriarchal world,and resisting this universal view is a common feature of all women.Because law by its very nature embodies the values,attitudes,expectations,and assumptions of the mainstream culture(which often appears as a universal value or a neutral description of events),this feature makes it impossible for law to provide justice to those outside the mainstream culture.As an analytical method of feminist jurisprudence,the theory of social gender maintains that we should not only see the formal equality of rights between men and women,but also see the different impacts of the same policy on men and women.Behind the formal equality,only women face the problem of losing power and aphasia.Generally speaking,feminist jurisprudence is based on the unequal and oppressed status of women,and its purpose is to construct a national theory that can truly protect women’s interests,break the oppression of women by the patriarchal system,and achieve gender justice.It is not going to rebuild a legal system that benefits only women,but a legal system that treats women equally.In other words,feminist jurisprudence intends to sweep away the prejudice of the law against women.The crime of rape is such a crime full of prejudice against women.As an ancient natural crime,rape has a long history.There are also some differences between different periods,regions and countries in terms of the provisions and identification methods of rape.However,the provision of rape crime in China’s criminal law is very abstract and simple.It only stipulates that rape constitutes rape,but does not define what rape is.Therefore,we must first define rape before we can define rape crime.But the only judicial interpretation came more than 30 years ago and has now been repealed.Therefore,there is no standard answer to the question of what rape is.The problem of unclear standards has not only caused more controversy in the academic world,but also clearly reflected in the judicial practice.Some scholars summarized 507 rape,found that our country judicial organ to rape the qualitative rules of fuzzy chaos,judicial organ directly quoted law generally,but not to reason why rape establishment or not,this shows that in the absence of clear standards,the examination and approval organs,judicial organs can only rely on experience to judge,and by weakening the reasoning process to justify.In the study of rape crime,there are a lot of "exist but do not care" ambiguity,which leads to the frequent embarrassment in the application of rape crime.From the perspective of criminal law,although "rape" is a constituent element of rape,there is no consensus in the field of criminal law on "what is rape".There are a few common sayings,but they are too abstract to provide concrete guidance.As a result,many doctrinal interpretations of the crime of rape contradict each other and have their own defects.First of all,although it is generally believed that the legal interests of rape crime are women’s sexual rights,and the nature of rape crime is against women’s will,there are two ways to explain the issue of what women’s will includes and what sexual rights women’s sexual rights are protected by rape crime.It can be seen from the differences between the narrow sense and the broad sense that the actual direction of the legal interest content of the rape crime is not clear,that is,what should be included in the sexual rights of women protected by the rape crime,and this issue is avoided.Secondly,as for how to prove women’s will when violence is not obvious,there are some viewpoints in the academic circle,such as the theory of maximum resistance,the theory of reasonable resistance,the theory of “have to”resistance,the theory of “no need to ” resistance,the theory of negative agreement and the theory of positive agreement.“Have to”theory and “No need to”theory did not come into conflict because there is no agreement on the underlying concept.The principle of maximum resistance puts forward unrealistic demands on women,which are almost impossible to be met and are not reasonable in fact.The theory of reasonable resistance does not define "reasonable",which leads to its lack of feasibility in practical application.Negative consent theory is the development trend of rape crime at present,but it still revolves around women’s resistance behavior,and does not endows women with a complete dominant position.Positive consent has been criticized for its radicalism and idealization.Third,coercion,like violence,can produce coercion on women so that the perpetrator can achieve the purpose of rape,but a slight degree of coercion is not enough to constitute coercion.Especially in the case of interest exchange,it is a key issue to accurately judge the degree of coercion against women’s will.In terms of the definition of coercion,there are several viewpoints in the academic circle,such as right theory,expectation theory of traders,third party advantage theory,weakening theory of rights and non-involvement theory of rights.There are some problems in these viewpoints: the theory of rights is difficult to solve the dilemma of freedom conflict,the applicability of the theory of traders’ expectation and the theory of third party advantage is poor,the theory of weak rights is based on improper theory,and the logic of the theory of no involvement in rights is contradictory.From these defects,it can be found that the degree of coercion depends on the degree of freedom of women’s will.To what extent women should have freedom of will according to the criminal law,the identification of rape crime will be involved at which point.The question therefore depends on how well the criminal law understands the plight of women.But other than the weakening of power theory,none of the other theories has analyzed the special dilemma faced by women at this time.Moreover,the claim of "objectivity" in the theory of rights and the theory of rights neutrality based on it is actually unfair because it does not take into account gender differences in a gender-based crime such as rape.Finally,the qualitative problem of cheating behavior.According to the criminal law,other means other than violent coercion can also constitute rape.This shows that the means of rape are not limited to violence and coercion.In many countries,including our country,there have also been cases of cheating women into giving sexual consent that constitute rape crime.The definition of tricking a woman into consenting to sex(Stealthing),which is essentially against her will,is generally considered to depend on the effectiveness of the woman’s consent in the case of a misconception.However,the existing judgment methods mainly include the theory of factual error and motive error,the theory of legal interest error,the theory of legal error,the theory of objective truth,and the theory of total invalidity.There are some defects in these theories: the fact error and motive error theory are improper and narrow the rights of women;the reasoning process of legal interest error theory is wrong;the legal error theory cannot accurately define the quality of sexual behavior.Investigate its reason,one is the motivation theory of error caused by misuse in the various theories,the academic circles generally used the theory of motivation does not affect the agreed to effectiveness,do not have the basis of in the act of "cheat" apply,not only in the civil law still in doubt,also has been challenged in the criminal law,and therefore cannot serve as judge women cheat rape cases have agreed to the basis of effectiveness.Second,the legal error theorists applied the analogy of Tabassum case improperly,which resulted in its inability to accurately and reasonably define the quality of sexual behavior.Third,the hollowing out of legal interest in rape makes it impossible for the false theory of legal interest and the objective true theory to judge whether women have misconceptions about legal interest.When we checked,from the perspective of feminism jurisprudence will find rape judgment standard in addition to the internal logical problems,there is a common defect,namely the "sex","neutral" face masks the potential gender discrimination,about "against women will" explanation methods are lack of the participation of women experience,causing damage to women’s interests.First of all,"against the will of women" as the essential feature of rape crime,it is not clear what legal interest content it represents.The academic debate on the legal interests of rape and the nature of rape has not identified what kind of sexual rights women should have from the perspective of women’s standard.This shows that the criminal law has never fully considered the additional risks that women bear in sexual behavior and lacks fair protection of women’s rights.Secondly,for the expression of "violating women’s will",most of the existing theories,except positive consent,hold a rebellious stance,believing that women must prove their will through a certain degree of resistance.However,the content of resistance is not only difficult to define,but also has no necessary relationship with the will of women,and the "general standard" that should be aimed at the perpetrator cannot be aimed at the victim.Not the average woman but the average man,the suspicion of misuse.Third,in the discussion of how to define coercion in trading occasions,except for the weakening of rights theory,all kinds of theories fail to see the role played by the situation on the coercive effect,trying to maintain the freedom of trade but ignoring the sexual exploitation nature of trade.Finally,in terms of the characterization of rape,if it is admitted that rape protects women’s sexual rights,then any act of obtaining women’s sexual consent by deception will damage women’s freedom of will and women’s sexual autonomy.Except for the theory of total nullity,all the theories did not pay attention to the damage of cheating to women’s freedom of will,nor did they evaluate it from the perspective of protecting women’s freedom of disposition.According to feminist jurisprudence,the lack of women’s experience and disregard of women’s interests in legal interpretation is the inevitable result of women’s loss of power and aphasia under the patriarchal system.Therefore,on the basis of reflecting on patriarchy and following the ideas and methods provided by feminist legal theory,we should re-examine the concept of rape with the social gender theory and reconstruct a reasonable judgment standard of rape crime.First of all,gender differences should be recognized,thinking patterns should be changed,the influence of patriarchy on consciousness should be recognized and eliminated,the content of women’s will should be enriched in a broad sense with the right of sexual equality,and sexual behaviors without women’s consent and with high risk should be defined as rape.Second,we should break down the false image of women in rape culture and replace the normal standard of "reasonable resistance" with the "negative consent theory" that does not need to examine the level of resistance.Thirdly,the "prohibition of sexual exploitation" is taken as the theoretical basis to judge the degree of coercion,and the female experience is taken as the reference coefficient to judge the degree of coercion.Finally,return to the protection function of rape to women’s freedom of will,take the revised "overall invalid theory" as the punishable basis of non-transactional cheating and rape,and deal with the cheating and rape whose causality fails to meet the requirements of the criminal law as a civil tort,so as to realize the comprehensive protection of women’s interests.