Doctrinal Interpretation Of Criminal Law On Rape "Against The Will Of Women"

The crime of rape means that the perpetrator has sexual intercourse with a woman forcibly by means of violence,coercion or other means against the will of the woman.How to break through the limitation of subjective judgment and establish an objective and standard judgment rule in the criminal judicial rule system of rape crime is a difficult problem that the academic circles argue endlessly.In recent years,although the number of rapes has decreased in our country,the rapes target is familiar,the rapes place is specific,and the violence method is weak.As the core characteristic of the crime of rape,the"violation of the will of women" is easy to make it difficult for the judiciary to grasp and judge the circumstances of conviction of rape due to the ambiguity and disorder of the rules for determination of such crime,which often leads to difficulties in determining the guilt,difficulties in supporting evidence and discrepancies between crime and liability and punishment.Based on this,in order to respond to the urgent needs of judicial practice,solve the problem of the uncertainty and arbitrariness of the judgment of the victim’s will violation,better maintain women’s sexual autonomy,maintain judicial authority.Starting with the typical cases in the criminal judicial practice,the author combs the doctrinal theory of criminal law,expects to make the judgment rules of the elements of the violation of the victim’s will clear.This article is mainly divided into five parts as follows:In the first part,through two typical cases in criminal judicial practice,the author exposes the judicial dilemmas,summarizes the focus of dispute,and points out several key issues.That is,can the confusion and ambiguity in the current judicial practice be attributed to the theoretical system of "violating the will of women" as the core feature of the crime of rape?Should the judgment of "violating the will of women" be carried out from the victim’s perspective or the perpetrator’s perspective?Can the consent of the victim be regarded as the justifiable ground of the actor?Should there be differences in the conviction and sentencing against women’s will at different time points?In order to solve the above problems,they had to go back to the judgment standard of going against the will of women.In the second part,on the premise that "violating women’s will" should be regarded as the essence of rape,the author elaborates the three main theories:"the theory of violence,coercion or other means","the theory of victim’s resistance" and "the theory of lack of consent of victim".The paper summarizes the theoretical controversies and deficiencies on the identification rules of "contrary to the will of women",and specifies that the judicial identification rules of "contrary to the will of women" with respect to the crime of rape shall be the lack of affirmative consent of the victim.The third part distinguishes the different time nodes of sexual intercourse and discusses the different elements of victim’s consent.If the offender violates the prior consent,we should stick to the basic sentence of rape crime,and if the offender violates the intermediate factors,we can apply the light punishment of probation.Violation of subsequent factors shall be treated as a criminal offense according to the human rights protection idea of assuming no crime in doubt.The fourth part is the specific development of the interpretation of criminal law against the will of women.Several special types of "against women’s will" situations in practice,the consent of the victim and the victim’s consent defects,are carried out in combination with the victim’s positive consent rules.The fifth part is the criminal justice system that violates the judgment of women’s will,and puts forward the punishment function of the victim’s understanding after the criminal case.We will further strictly enforce the filing standards for rape crimes,carefully examine the approval of arrest,implement the requirements of the criminal procedure system centered on trial,and compare and rationally use the decided evidence.Finally,when a reasonable doubt cannot be exceeded,the implementation of the concept of human rights protection should be guaranteed in rape crimes.