Abstract raped than specific charges for rape aggravating circumstance.Judicial practice regarding the identification of gang rape remains controversial, a view that rape does not require the perpetrator's behavior consummated rape have reached the standard, as long as there is rape, then; One view is that the starting point for the decade gang rape years imprisonment, requiring the perpetrator's conduct must meet the criteria consummated rape, otherwise it can not be identified as gang rape. Identification of gang behavior related to human behavior accurately sentencing, criminal law did not rape that standard to be specific, coupled with compassion for victims, resulting in many cases sentenced light punishment, crime does not meet the criminal law adapt principles. This departure from the definition of rape, gang rape on the specific identification criteria put forward some opinions and views, to try to make gang rape that standard more objective and accurate.
Paper Keywords Accomplished gang rape sentencing
First, determine the definition of rape
Criminal law did not make specific provisions what gang rape, gang rape is just two or more general provisions of the starting point of more than a decade in prison. According to the interpretation of Modern Chinese Dictionary raped refers to two or more men take turns raping the same woman can be seen in the number of rape and is required on more than two men on the object of the crime requires the same woman for the behavior which in turn replaced in accordance with the order of a one. Theory of criminal law relating to the definition of rape are the following: rape, is common for more than two male rape intentionally, in the same time period, for the same woman (or girl) or continuous rotation while rape (or rape) behavior ; rape, refers to two or more men in the same period of time, take turns raping the same woman's behavior; gang rape, is more than two turns in a relatively short time has raped the same woman. Whether Chinese dictionary explanation, or criminal law theory Tong said the gang rape have a common characteristic that defines the number of requirements, behavior, criminal objects, criminal gang theory demands have time constraints. Taking these views, I believe that the definition of rape can be defined as follows: rape, refers to two or more of the men based on a common intent, in the same time period, take turns raping the same woman (including a girl under 14 years of age) behavior . Requires that the perpetrator gang rape of women with a common intent, which can be either intentional premeditated, it can be spur of the moment, and even between no language explicitly, but the behavior of people to help each other tacit understanding between actors ; the same period of time, not only by the length of time to judge, but to examine the continuity of time. As long as the perpetrator with a woman in a long time for the implementation of control, even if the time interval is longer, not even in the same place the implementation of adultery should also be considered as rape. Such as A and B male for male rape c woman deliberately controlled the C female, A rape, B to C to take home rape, A's and B's behavior should be recognized as gang behavior.
Second, gang rape specifically identified
(A) to the perpetrator's acts constitute the crime of rape under the premise of gang rape definition, gang behavior requiring artificial full 14 years of age, with a criminal man. If there is a man not constitute the crime of rape, this situation can not be identified as gang rape, for example, A is 15 years old, B is 13 years old, has to rape a woman, can not be identified as the A gang-raped. Of course, in three or more common cases of rape men, one of them does not constitute rape, gang rape does not affect other people's identification. Gang rape as a special form of rape, gang rape requires an entity to men, if women than men raped her abetting two people, whether the woman was identified as gang rape? I believe that the woman can not be raped by the subject of this case can follow to deal with the culprits of the crime of rape, the woman's starting point should be higher than the instigated men should also be more than a decade.
(Two) to the perpetrator's actions are up to standard consummated rape requirements identified the key is whether the perpetrator's conduct was consummated, and some that committed acts of rape was gang-raped does not require the identification of the perpetrator's conduct was accomplished, as long as the perpetrator of rape based on a common intent, the implementation of the act of adultery, it should be identified as gang rape; Some believe that the conduct was accomplished as long as a person, you can identified as gang rape; There raped by requiring that the perpetrator must behave Accomplished young girls to reach that contact is inserted into the other women, the perpetrator of the rape, rape in the course of a waiver or due to reasons other than its will not succeed, and can not be identified as gang rape. I agree with the above third view that the establishment of rape asked the actors that need to be accomplished in person committing fornication single crime of rape in the implementation process of the body must be reached inserted or contact standards. Behavior in the course of rape or attempted rape of a waiver can not be identified as gang rape: (1) gang rape is not specific offenses for aggravated rape committed, although the acts committed rape, but does not represent the behavior of the perpetrator with rape when it is rape, gang rape must also be asked to identify the perpetrator further implementation of the rape, not rape, because once there, while more than two in number reached that it is rape, which does not comply with the principle of suiting punishment, nor conducive to the protection of interests of the suspect. (2) violation of the object rape, sexual freedom for women's rights that women enjoyed a denial of their marital relationship does not have a legitimate rights of men who have sexual intercourse, criminal law provisions gang rape of two or more than ten years of imprisonment, no period imprisonment or death, rape and ordinary starting point of three years to ten years imprisonment, showing penal punishment for gang rape great, because the behavior of gang rape of women's right to sexual freedom further hurt. Behavior in the course of rape or attempted crime aborted crime not yet allow victims the right to sexual freedom suffered further damage, admittedly attempted rape subjective vicious behavior is relatively large, the behavior of people still want to make the continuation of acts of rape, but In fact, after all, did not make the rights of victims of sexual freedom was further harm. (3) According to the principle of common crime, the crime of rape a man accomplished, all acts are consummated rape. Because rape is not a specific offense, but the punishment fits the crime of rape, gang rape does not mean that a person acts consummated the establishment. Rape perpetrator must act on each separate inspection, can not apply the principle of common crime, there would be sentencing imbalances. Only the perpetrator's behavior are met or in contact with said insert, said the criteria can only be identified as the gang's behavior, not the behavior of people with this condition can not be identified as gang behavior.
Third, the judicial practice of rape should be noted that the problems identified
(A) strict distinction between rape intentional crime patterns and gang behavior judicial practice confusing rape attempt, consummated with the gang rape case, a common practice is that if there is a man of rape consummated, then, for all participants who are generally according to gang rape plot for sentencing on the grounds that people's behavior so that the danger of sexual abuse victims more than a single individual crime and attempted rape subjective vicious and accomplished people no essential difference; prepare for rape, aborted prior conspiracy but without committing fornication acts not in accordance with generally rape sentencing. I believe that the practice of judicial practice different standards, is not conducive to the identification of gang rape episode. The key is the judicial practice confuses the distinction between rape and gang rape, gang rape as a specific offense to which to look at gang rape, gang rape is just one sentencing, aggravated offense and consequential offense similarities, such as intentional causing death, if there is no death can not use the results of intentional injury causing death sentencing terms. By the same token the behavior of a single person who does not meet the criteria accomplished, we can not apply the provisions of gang rape, but this does not affect the establishment of the crime of rape. Following situations can not be identified as gang rape: (1) A rape consummated, B is suspended or attempted rape; (2) A, B are acts of violence, but failed to reach consummated; (3) A, B rape Accomplished, C is suspended or attempted, A, B acts as rape, C is not a gang behavior; (4) A rape consummated, B is not criminally responsible.
(Two) to avoid preconceptions, carefully sentencing judicial practice of rape as long as there is a bias that rapists should be sentenced, and the judiciary vulnerable victims, the families of victims and the impact of public opinion, in the case of a substantive trial stage yet , the nature of the case has been evaluated for the heart, which may cause imbalance penalty. 1979 Criminal Code without 'rape' as a heavier punishment to paragraph 3 of the 'particularly serious' plot, but in paragraph 4, 'rape' should be severely punished. That judicial organs should be based on the specific circumstances of a crime were selected application of paragraph 1 or paragraph 3 of legal punishment, if any 'gang' plot were also in paragraph 1 or paragraph 3, within the legal punishment punished severely. 1997 amended Article 236 of the Penal Code on rape and its punishment, the same as the preceding two paragraphs, paragraph 3, will direct provision, raping women, Carnal Knowledge of the following circumstances, a fine of more than 10 years imprisonment, life imprisonment or death : (a) rape, aggravated rape young girls; (2) the rape of women, Carnal multiplayer; (3) in public places raping a woman; (4) two or more gang rape; (5) To the victim serious injury, death or other serious consequences. Comparing 1979 and 1997 the new Criminal Law, it is clear the existing criminal law provisions on rape tougher clear. In sentencing, when the gang rape of understanding can not be too broad, from the legislative purpose, intent to explain gang rape, gang rape will be defined as rape consummated in full compliance with legislative evolution of legislative purpose and the suspect's rights protection. Based on this judicial gang rape case in the trial, should avoid preconceptions, not necessary in order to combat crime gang applied blindly plot.