Identification Of Atypical Rape Crime

The crime of atypical rape and typical rape are both based on the premise of "against the will of women",and it is always self-evident that they infringe the legal interests of women’s sexual autonomy.Therefore,as the name implies,the conceptual differences between the two mainly focus on whether they are "typical".In atypical rape crime,the victim’s resistance situation is weakened or even does not resist due to various reasons,or due to the complex factors such as the appearance,the isolated situation,or the education relationship between the victim and the perpetrator.This is in sharp contrast to the fierce resistance of the victim in typical rape crime,and therefore the concept of "atypical" has been spiced up in the theoretical circle.Rape by a stranger typically involves coercion,which makes it easy to answer the question of resistance.However,in the case of atypical rape,especially when there is a familiar relationship between the perpetrator and the victim,the identification of the problem of resistance is more difficult.There are still some problems in our judicial identification of atypical rape crime,that is,in the identification of "against the will of women" in rape crime,the differentiation of the victim resistance is still the criterion of judgment,which not only results in the disconnect between the criminal law theory and practice,but also causes the judicial organs to have a large difference in the identification rules of rape crime,and the phenomenon of different sentences in the same case occurs from time to time.Obviously goes against the principle of judicial fairness and the stability of social order.Therefore,the research should focus on the atypical rape cases in which the victim’s resistance is not obvious but the incidence rate is higher in current practice,so as to better adapt to the social development status and the constant change of public concept,and more comprehensively protect the legal interests of criminal law.It is necessary to study the identification of atypical rape crime systematically,especially to solve the criminal justice shackles caused by the degree of violation of the determination of will by different resistance.Practice is the only standard to test truth.It is necessary to critically learn from the "affirmative mode" involved in the theory of "victim consent" of foreign law systems,select the essence and discard the dregs,and revise and perfect the contents which fit our national conditions.For the identification of atypical rape crime,literature research,comparative analysis,empirical research and other methods should be adopted to establish the "lack of consent of the victim" as the identification standard for the establishment of the crime on the basis of making it clear that the difference of resistance situation is not necessarily related to the establishment of the will violation,and reconstruct the dual track system of "affirmative consent" as the effective plot to prevent the crime.It can resolve the awkward situation of non-typical rape crime in judicial practice,form a strict standard system for the whole process of rape crime from entry to discharge,respect and protect human rights,give full play to the function and role of criminal law,so as to better serve the socialist legal system with Chinese characteristics.