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

The legal interest protected by the crime of rape is women’s sexual autonomy,so the essential feature of the crime of rape is "against women’s will",that is,the perpetrators force women to have sexual intercourse with them ignoring women’s expressed unwillingness.And "women’s will" refers to the attitude to sexual intercourse that women convey to the perpetrators and are known by them.,rather than the attitude that only exists in the heart of women.In different periods and different social environments,the criterion of "against the will of women" is also different,the mainly criteria are the criterion of "violence,coercion or other means",the criterion of "victim resistance" and the criterion of "victim consent".Based on the situation of China’s society and conditions,China should adopt the comprehensive criterion of "means of perpetrators and reasonable resistance of victims",that is,to comprehensively judge whether perpetrators are "against women’s will " from both the means taken by the perpetrators and the reasonable resistance of victims.If the perpetrator makes the woman in a state of unable to resist,not daring to resist or not realizing to resist by violence,coercion or other means,the perpetrator is definitely "against women’s will" without considering victim resists;If the perpetrator does not resort to violence,coercion or other means,or the degree of those means is not significant,it is necessary to consider whether the victim carries out "reasonable resistance".There are several types of special cases that need to be discussed separately,including "rape within marriage" cases,cases that the will of women is flawed,and cases that the perpetrator or woman has a misconception about the other side.In the case of raping within marriage,husband constitutes the crime of rape if he meets the requirements of "against women’s will" no matter whether the marriage is abnormal or not.When the victim is a psychotic or dementia,it is necessary to grade the severity of her illness and then apply different criteria;people have sexual relations with psychotics or dementias in their cohabitation should not be considered as "against women’s will".When the victim is an infant,we should judge according to the age of the infant and the perpetrator.When the perpetrator has a misconception of women’s will,it is necessary to judge whether he is fully aware of that his behavior is "against women’s will" according to the life experience of ordinary people;When woman has a misconception of the actor,it is necessary to distinguish between misconception of the basic facts and misconception of subsidiary facts.