On The Impact Of The Victim's Subsequent Consent On The Sentencing Of Rape

"Sex" is an important part of human nature.As long as human beings exist,sexual crimes will not disappear.Rape,as a typical natural crime,has a long history.It is relatively easy to apply the law of rape,but it is difficult to identify the facts.Whether it is the conviction mode of "against the will" or the fact composition of "violence,coercion and other means",as the standard of rape identification,it is relatively vague in itself,and the setting of the inherent legal penalty can not meet the increasing needs of the actual types of crime,and there is a risk of imbalance in sentencing.With the increase of rape cases in judicial practice,severely punishing the perpetrators of such cases may lead to unfair punishment,and at the same time infringe on the rights and interests of both parties.The application of the circumstances of consent after the victim plays an important role in balancing the fairness of punishment and achieving the balance between crime and punishment.Both at home and abroad attach great importance to the status of the victim factor in the sentencing,coupled with the fact that rape is facing difficulties in judicial practice,so the research on the influence of ex post facto consent on the sentencing of rape is of great significance in theory and practice.In theory,this paper involves the theory of penalty teleology,victim dogmatics,legal interest theory and responsibility theory.The research on the above theories has a certain academic value in related fields,and integrates the ex post facto consent with the existing system to construct the applicable path,which has a unique innovation;In practice,the theoretical research of the article can provide reference for solving the difficult cases of rape involving the victim’s post consent,and provide reference for the victim’s post consent as a crime of rape to reduce the circumstances of sentencing.This article is divided into "three steps" on the premise of clarifying the basic concept of victim’s consent and the theory of rape.The first step is to respond to the view that denying the victim’s consent affects the sentencing of rape,and reflect on the current judicial situation and put forward the position of this paper;The second step is to analyze "why" to agree to reduce the sentence of rape afterwards;The third step is to "establish" the theory on the basis of "breaking" the existing point of view,from the perspective of the degree of infringement of legal interests,responsibility,criminal policy and so on,to demonstrate that the victim agrees to reduce the perpetrator’s penalty,and on this basis to construct the judicial application path.This paper is divided into four chapters,from the overview to refute the point of view,reflect on practical problems,and then to put forward the position of the paper,prove the argument as the main line of research,and finally put forward the construction of judicial application path.The first chapter is an overview,including three parts: the first part is the interpretation of the basic concept of the victim’s post consent.The author interprets the victim’s post consent as "ratification",but "ratification" is a reference in civil law,while "consent" is a reference in criminal law.It is defined as the perpetrator’s violation of women’s will,the victim’s explicit or implied ratification of sexual relationship,and the denial of the perpetrator’s infringement of his own sexual rights after the completion of the crime or infringement.It also summarizes the four characteristics of the victim’s post consent,clarifies the significance of post consent in substantive law and procedural law,and distinguishes post consent from criminal reconciliation and victim’s understanding.The second part focuses on the crime of rape itself,analyzes the problems in the identification of the mode of conviction and the fact composition of rape,and shows the importance of ex post facto consent affecting the sentencing to balance the fairness of penalty.The third part is the status of after the event consent,combing the relevant provisions about the victim factors affecting sentencing at home and abroad,analyzing the status of after the event consent at home and abroad,for reference.The second chapter is the "breaking" of the point of view,as well as reflection on the judicial status of the problems.As the support of negating the influence of ex post facto consent on the sentencing of rape crime,there are the theory of lack of legal basis,the theory of impacting the national penalty power and the theory of "buying punishment with money" wantonly.In judicial practice,the consent of the victim is generally ignored.The author reflects on the reasons.On the basis of "breaking" the point of view and the judicial status quo,this paper puts forward the position of this paper.The third chapter analyzes "why" to agree to reduce the penalty of rape afterwards,one of the bases is the inherent requirement of modern penalty;Second,there is a solid theoretical basis for the victim to agree to reduce the penalty of rape;Third,it has intrinsic value and function.The fourth chapter is the analysis and application of the mitigation of rape penalty by subsequent consent,which is analyzed from the perspective of the degree of infringement of legal interests,responsibility and criminal policy.The degree of infringement on the legal interests of the victim’s consent to rape is low;Afterwards,the actor’s "responsibility" in rape cases is reduced;Based on the consideration of criminal policy,the punishment of the perpetrator should also be reduced.Under the influence of victim doctrines,criminal policy pays more attention to the status of victim factors in sentencing,indicating the relationship between victim factors and actor’s responsibility.At the same time,the theory of "weighted responsibility of victim" is introduced,and the actor’s "+" responsibility and the victim’s "-" responsibility are added up to get the actor’s responsibility reduced.In the crime of rape with consent afterwards,the necessity of special prevention for the perpetrator is relatively small.Based on the purpose of criminal policy,the perpetrator should be given a mitigated punishment.Finally,the article also constructs the judicial application path on this basis,the victim’s consent should be used as the crime of rape to reduce the circumstances of sentencing;The victim’s consent can also be combined with the leniency system of guilty plea.