Bao has been involved in a sexual assault case against Li Xingxing for some time. Unfortunately, it is similar to other cases of sexual assault and has not yet waited for justice It began to be forgotten as time passed. The public can choose to ignore and choose to forget, but the victim in the case has been carrying the pain of a lifetime.
Today ’s article will explain the importance of the “14 years old” standard from a legal point of view, and why rape cases are difficult to be convicted, and why today ’s laws are difficult to do in rape cases To absolute justice. As Zhan Qingyun said: “If in this case, we are destined to only accept a certain result, please see and remember it The problems exposed, and keep thinking about them forever. “
This article comes from the WeChat public account: Look at the ideal (ID: ikanlixiang) , The original title “Revisiting the Bao Yuming Case: If the outcome is doomed, please see and remember the problems it exposed” , author: Zhan Qingyun, from the title figure: vision China
The principle behind the “14 years old” standard
When discussing Bao’s alleged sexual assault case, everyone will discuss the “14 years old” standard.
According to our country ’s Criminal Law: If and 14Girls under the age of sexual relations, whether or not against the will of the girls, constitute a crime of rape; and all women over the age of 14 are treated equally on the conviction of rape, except the two high “label =” Remarks “> (Supreme People’s Court of the People’s Republic of China, Supreme People’s Procuratorate) ‘s opinion.
Announcement of the Supreme People ’s Court on Sexual Assault Cases
Why is there such a “one size fits all” standard? In the case of young girls under 14 years of age, it is not a question of whether she has expressed her will or whether the partner who had sex with her was deliberately or unintentionally. A special type of responsibility.
This is a more universal principle behind it, called strict liability (strict liability) , some places have absolute Liability (absolute liability) .
There are two most typical types of strict liability in criminal law, one is felony murder (felony murder doctrine) , the other is It is legal rape (statutory rape) .
The procuratorial organ must decide what kind of crime to prosecute a person, it must prove the elements that constitute the crime. These requirements can be generalizedDivided into two core parts, one is behavior and the other is the intention at the time.
We all know that in criminal law crimes, the biggest difficulty in conviction is often to measure: what is the psychological state of this criminal when he commits this behavior? Under the strict liability standard, this is not important.
Sexual relations with a young girl under 14 years of age, whether or not against the will of the young girl, constitute a crime of rape. It only looks at the behavior. Your behavior is a sexual relationship with a young girl under 14 years old. It does not ask your will at the time of this behavior, that is, whether you intend to commit a crime.
That’s why the concept of “14 years old” is so important. Its standard of conviction is completely different from that of rape cases over 14 years old in the usual sense.
The principle behind the “14 years old” standard limits freedom to a certain extent, but it is also a protection. The reason we want to set a line is that a child under a certain age cannot reasonably assess the consequences of sexual behavior on himself.
Another core logic behind the concept of statutory rape is that it is difficult to obtain evidence in rape cases, it is difficult to prove, and it is difficult to be convicted.
This society believes that rape against minors is extremely bad and will cause more serious harm to society. Therefore, to a certain extent, the standard of strict liability needs to be used to lower its threshold for prosecution, so that such crimes can be more easily proved and established.
Should the “14 years old” standard be raised?
There are various discussions on the Internet regarding the standard of “14 years old” in China. The general opinion is that “it is too low”, and some think that “it is just right to face reality”.
Our country ’s 14-year-old standard is not very prominent. Some of the more prominent countries in Northern Europe, such as the Netherlands and Denmark, have a sexual consent age of 12 years.
However, many scholars compare the United States. On the issue of “sex”, the United States is a relatively open country, but the age of sexual consent in the United States is also higher than that of China.
The United States ’Criminal Code is a state-led law, so its law association has launched the“ Model Criminal Code, ”but in fact each state ’s own regulations are in effect. The age of consent in most states is 16, but there are many different agesHe discussed the situation, not so “one size fits all”.
For example, the United States has the “Romeo and Juliet Method”. This law corresponds to some minors. Although they had sexual relations before the age of 16, they had sex with their peers in a romantic relationship.
When the age difference between the two does not exceed 3 years old (Some states are 4 years old and 5 years old, which vary from state to state) Legal This is called “Romeo and Juliet”. In this case, the age of sexual consent can be lowered appropriately. Generally speaking, most states will reduce the age to 13 years.
If a 15-year-old girl has a sexual relationship with a 40-year-old man, under this law, the man is legally raped and subject to strict liability.
The logic behind this is also very simple. When a minor meets an adult, they have various inequalities in intellectual, socioeconomic status, and past experience. This is for younger parties. A kind of protection; and when the ages of the two sides are relatively close, this kind of inequality does not exist. This is a case of appropriately lowering the age of sexual consent.
Another situation raises the age of sexual consent, which is similar in almost all states. When the defendant in a sexual assault case uses a special relationship between the parties to have sex, the age of sexual consent will be raised.
The laws of some states list special relationships, including family relationships, the relationship between guardians and guardians, and teacher-student relationships; some states will say more generally that when there is a dependency relationship between them, one side When you abuse this relationship to have sex with a younger party, the age of sexual consent will be raised, usually to 18 or higher.
The logic behind this is also obvious: in a special dependency relationship, it is difficult to have real voluntary. When the age and social status gap between the two parties is too large, this kind of voluntariness may be the result of deception. On the surface, it is voluntary, but it is not really voluntary.
Feminist changes in rape cases
About what behavior constitutes rape, what degree of rape should be regarded as a crime, what punishment should a rapist receive, and the understanding of these concepts is deeply influenced by the social culture behind the crime and many ideologies of.
Over the past few decades, with the rise of feminism, weStart to look at the unequal relationship between the sexes, look at the so-called sexual freedom, sexual consent, look at the victim, a woman (or man) Control the integrity of one’s body and insist on the freedom of one’s own body.
The development of feminism has profoundly affected the law. For example, not long ago, rape in marriage was not considered rape. Marital rape becomes a crime, and it is supported by these rising concepts of rights.
In a long history, the word “strong” in “rape” refers to violence other than “sexual insertion”.
For example, suppress this person so that she / he ca n’t resist; for example, use violence to hurt her / him, make her / him afraid to resist; or let her / him fall into a coma and lose the ability to resist.
When deciding whether “a sexual act constitutes rape”, the judge will look for the defendant to use additional violence in addition to the sexual act itself. An important development of the feminist movement is to promote the change of the concept of “violence”.
In the past two or three decades, more and more laws and jurisprudence have determined that the act of “sexual insertion” is itself a form of violence.
Traditional rape cases condemn “additional physical harm to the injured party during the course of sexual activity”. In modern legal concepts, it is considered that its primary harm is “violation of the other party’s Will, and force her / he to have sex “This thing itself.
The damage to this incident is not only physical, but also psychological and dignified.
A person ’s physical integrity is compromised, which is enough to constitute violence.
This definition is very important, and its importance is not only reflected in “behind it is a brand new concept of rights, behind it is the integrity of me as a” person “, my dignity is not subject to any violation and The concept of trampling “is also reflected in what kind of evidence is used in the court to prove that there is” violence “.
Is the “rational person” standard really rational?
However, there are a large number of similar cases. Under the previous law, because it required additional “violent” elements, there was no way to be characterized as rape.Its implicit meaning is that in most rape cases, female victims need to rebel.
So many people criticize this legal concept, which requires a woman to resist like a “man” when she is violated in order to prove herself innocent.
From this point of view, many legal theorists profoundly pointed out: This gender culture, or traditional gender concept tradition, has a subtle influence on the law and is deeply buried in everyone ’s subconscious mind. middle.
On the bright side, the law can change relatively easily with the times, but the really difficult change is the inherent impression of sexual violence in everyone ’s mind.
There are many people who think that what is really missing in our legal culture is to look at sexual relations from a female perspective.
In the current social cognition, we all believe that in sexual relations, men have a certain degree of aggression, men occupy a dominant position, and women’s proper resistance is actually a kind of obedience.
All of these concepts are deeply embedded in our culture, and it can also inadvertently affect the judgment of the judge, the judgment of the jury, the judgment of the lawyer, and even the victim himself.
This ideology is the most difficult to correct. The legal culture we really need is from the perspective of a woman to understand the fear a woman feels when she is violated.
When she was unable to think and resist because of this sudden injury, how did the law protect their rights?
The law agrees that “if the victim is unable to resist because of fear at this time, as long as the fear is justified”, this is the so-called “rational person” standard prevailing in the law.
The question is whether the “rational man” here is a rational man or a rational womanWhat about people?
If the law in our traditional sense is from the perspective of a rational man, most of the legal workers are men, and most of the police and prosecutors are also men. They are measured from the perspective of men. Is the standard of “human” the standard of “rational man” when a woman is in that state?
Should we include our past experience and personality traits in the category of rational measurement at this time? This is the more realistic problem.
Why is it difficult to convict a rape case? Ambiguity in rape cases
The provisions of the Criminal Law of China on the criminal elements of these rape cases have taken a relatively eclectic treatment.
The objective means of rape in our country is the use of violence, coercion or other means to make women in a state of irresistibility, daring to resist, ignorance of resistance, or taking advantage of women ’s unawareness to resist and take advantage of the opportunity Adultery.
After the case of Bao ’s alleged sexual assault came out, much of the controversy was the so-called “other means” in the Criminal Law. What exactly did it include?
Usually when we talk about “other means”, we talk about intoxicating the victim and feeding medicine to make the other party unconscious, or rape while the other party is asleep.
But shouldn’t it also include some ways that are more difficult to define in this clear way? Like the dependency relationship between Li Xingxing and Bao Mou, the state of being controlled both mentally and physically is a question that needs to be answered by law.
The laws of our country answer the question “what constitutes a violation of the will of women?”. The law says that “different people may have different coping methods and have different forms of reaction.” Against the will of women, it is necessary to analyze them in specific cases.
As felt by Bao in a suspected sexual assault case, when reporters first started reporting from Li Xingxing, everyone’s cognition was relatively uniform. However, when Bao released his interview and some recordings, everyone began to choose to believe what he believed more.
When both sides hold their own words, it is difficult to determine the truth from the legal point of view.
The past cases we have discussed only seem to require discussionThe standard of the law is because the vast majority of the cases we discuss are those of the Court of Appeal. When a case arrives at the Court of Appeal, its basic facts are clearly determined, and the law only makes decisions on the standards and principles of the law.
But in reality, the huge obstacle is that it is very difficult to determine the facts.
Taking our country’s “Criminal Law” as an example, when the question of “whether it is against the will” is unclear, both sides hold their own words, and the psychological state of the injured party is not clear, the law should do a comprehensive consideration: including two The relationship, the history of communication, the time and place of sexual assault, and the situation at that time, including the reaction of the parties after the event, especially the first reaction.
In the case of Li Xingxing, we can strongly feel the complexity of comprehensive consideration, because this is not a single sexual assault event, these sexual assault events occur in a continuous period of time, or even a continuous relationship .
From a legal perspective, it is difficult for us to return each time node to determine various factors at that time, and in addition to judging specific events, we must also judge their relationship, and this judgment of relationship , Will in turn affect everyone’s judgment on every event.
The information disclosed by Bao Mou now emphasizes his love relationship with Li Xingxing, which will be considered as a favorable factor for the defendant. The ambiguity brought about by their relationship adds new uncertainty to the judgment of the entire event.
Another real and terrible problem is that as a victim of this kind of continuous sexual assault, Li Xingxing has suffered more than physical harm, but also the destruction of free will. .
After being hurt for so many years, she will be accompanied by severe depression and traumatic sequelae, so her mood becomes very unstable and it is difficult to cooperate with others steadily.
Today ’s predicament in the alleged sexual assault case of Bao is that this girl has experienced serious psychological trauma to her. At this time, it is extremely difficult for her to accurately prove the psychological state at that time. .
As a victim, the consequences of the victimization will in turn affect her ability as a witness, which is a very sad thing in itself.
Law seeks “certainty”, we look for “do no harm”
BecauseThe crime of rape occurs in a private space, so it is naturally difficult to obtain evidence for such behavior; and because the severity of this type of crime is deeply affected by the subjective judgment or subjective intention of both parties, it is naturally vague And uncertainty.
People who stand in different positions, their definition of the nature of the whole thing will be affected by deep-rooted cultural concepts.
All these problems cannot be solved by simply changing the legal rules themselves. These natural uncertainties are not blindly lowering the threshold of argument, and reducing the responsibility of argument can be changed. Because the blindness is reduced, it must bring unfairness to the other party.
In the face of these uncertainties, the legal system must make a certain choice, which is the certainty required by law.
As a whole, the legal system can weigh the pros and cons of different choices on different rules, and can also consider the characteristics of the times in terms of tendency.
For example, in most cases, who is using the rules? Who is bound by this rule for a long time, but there is no way to extend and defend their rights?
When the choices made by a society as a whole fall on each individual ’s head, it may be their life.
The law can only do what it can to find the best and fully protect the balance of rights of all parties.
Today, many women have come forward to reveal their experiences of sexual harassment and sexual assault in their lives. It takes great courage. It is difficult for them to prove the existence of sexual assault at the legal level. They rely on others, the public, and trust and good faith in them.
In the case of Li Xingxing, the harm she suffered was not only the harm brought to her by the legal rules, but also reports from her mother and the police ’s inaction at the time of the initial report, regardless of the victim ’s feelings Look at this matter with a strange mindsetOf us.
All of these things add up, in addition to making people feel angry, but also feel a deep weakness.
The kind of powerlessness we feel when we realize that Bao is very likely to use his legal knowledge to prepare for early offense, and our existing laws may not be able to make him pay for it .
Behind this is a problem that has always puzzled us morally: any legal system is essentially a set of rules. Will there be smart people who use this set of rules to benefit themselves? ?
In essence, there is no way to be punished for things outside the legal rules.
If in this case, we are destined to only accept a certain result, please see and remember the problems it exposes, and always keep thinking about these problems.
We can also remember this matter itself, let it be washed away by time and public opinion, and let it be easily written on the file with the words “insufficient evidence” and quietly disappear, no one Think again.
This article comes from the WeChat public account: See the ideal (ID: ikanlixiang) , author: Zhan Qingyun