The Determination Of Violating Woman’s Will In The Crime Of Rape

Rape,a traditional natural crime,has historically been a major focus of Chinese criminal law due to the grave violation of women’s sexual rights it causes..In the past decade or so,the criteria for judicial determination of the crime of rape have been haphazard,and most of the research on rape in China has focused on the typical violent rape and rape of young girls.With the frequent occurrence of acquaintance rape cases in judicial practice,the difficulty of specifically determining against the will of the woman in trials in the absence of obvious violence has increased,and it is not uncommon for rape cases of similar circumstances to end up with very different verdicts.The essential features of each specific offence in the Criminal Code are abstract and general concepts derived from generalisations and distillations of the law,and the same applies to the essential features of rape.Firstly,we analyse the data through case studies to point out the problem of different standards of judicial determination of rape and different sentences in the same case,and use the victim’s consent as the starting point to discuss the definition of victim’s consent and its positioning in different legal systems,the differences between "monism" and "dualism",and the application of the term in China.The analysis of the differences between "monism" and "dualism" and the current state of application in China.Secondly,the victim’s consent is analyzed in a typology according to the different forms of expression,and the victim’s consent under typical violent rape is divided into express consent and implied consent,while under non-violent rape it is divided into three types: victim’s consent under fraud,victim’s consent under non-violent coercion,and victim’s consent under unconscious situation.In the case of express and implied consent based on the misconception of the nature of the act,when the consenting party commits an act of falsification or concealment of facts and the subject of legal interest gives consent based on the misconception of fraud,the consent is invalid and the crime of rape is established;in the case of express and implied consent based on the misconception of the object of the act,the consent is invalid and the crime of rape is established.In the case of express or implied consent based on the misconception of the object of the act,the perpetrator is obliged to declare the facts,and if he actively falsifies the facts or passively conceals the truth,the consent shall be considered invalid and the crime of rape shall be established.In cases where the victim is coerced into giving express or implied consent,the consent shall be invalidated and the crime of rape shall be established when the free will of the subject of legal interest is compressed to the extent that he or she is afraid to resist and has to submit to the threatening or intimidating behaviour of the opposite party.In the absence of a previous act,the woman’s right to sexual consent shall be considered to have been denied,and the question of whether there is a risk of the victim’s self-incrimination in the specific circumstances shall be taken into account as a sentencing consideration.