Study On Difficult Problems Of Violating Women’s Will In Rape Crime

It is possible and necessary to make clear the contents that violate women’s will by starting with the protection law of rape crime.On the protection of this crime,sexual freedom,the right to personal dignity and other views.The theory of right to personal dignity is too abstract,and most crimes involving personal legal interests hurt the dignity of the victim,which cannot reflect the particularity of this crime.The sexual freedom theory explains the connotation of violating women’s will well,which includes the violation of women’s will to have sex voluntarily or not,and the violation of women’s will to choose the time,place and way of having sex.Although the position of violating women’s will in the system of crime theory has not been clearly defined in the official explanation,we should adhere to the view of combining the objective constitutive elements theory with the essence theory.Against women will should be as the first to understand the nature of this crime,against women will sex is constitutive requirements demanded by the crime of adultery,means to reflect the behavior of the legal significance,simultaneously is also the objective constitutive requirements of crime against women will,will and means behavior and purpose behavior against women is a parallel relationship,can reflect the essence of this crime the infringement of legal interest,Therefore,it should be the core of the determination of this crime.Although there are great differences in the forms of the standards for identifying the violation of women ’s will under differently means,it is enough for each standard to prove the violation of women’s will from different angles.For the view of abolishing the requirement of violence and coercion,it should be considered that violence and coercion can be used as the basis to judge whether women are willing or not,and this means itself reflects the serious social danger of the behavior,and should not be abolished.The degree of violence and coercion,whether means or resistance,should be grasped in essence,and women’s resistance should not be overemphasized.Under other means,especially when the actor creates or utilizes the unconscious state of the female,the identification of the violation of the female’s will should comprehensively consider whether the female completely loses the ability to resist,the relationship between the female and the actor,the female’s attitude after the sexual act and other factors.In practice,the identification of sexual behavior by fraudulent means should consider whether female consent is recognized as the attribute of sexual behavior.Deception of behavior attribute,partial identity deception and purpose deception constitute rape crime,but motive deception cannot constitute rape crime.Women’s consent and refusal of sexual behaviors at different stages should be based on women’s real intention when sexual behaviors occur.When the crime concurs with the crime of sexual assault by persons with care responsibilities,the crime of sexual assault by persons with care responsibilities is a crime of status.Whether the perpetrator has the identity required by the crime should be understood from the substantive point of view,and one-time and temporary caregivers are not the subject of the crime.In addition,the crime of sexual assault by the person responsible for care does not require the perpetrator to use the means,nor does it require the consent of the victim.