Civil / Lv Xiaoquan's lawyer
Crisis hour, take a knife or take set?
This problem all the time vexed
Nevertheless, a lot of people can worry
Take set can you affect conviction?
Listen to a lawyer to solve!
When the rape cannot avoid the ground to want to happen, give on bring complete set, be after all is still be pair of criminals to his protection indulgent? The first time before becoming Professor Peng Xiaohui several years is told " give set " this one viewpoint when, a mighty uproar was caused on the network.
When sufferring a rape unfortunately, give on bring complete set, jumping-off place clearly, what protect oneself to the greastest extent namely is healthy, avoid to affect a gender pestiferous. And the crosscurrent with the biggest to this kind of practice anti is, this meeting influence is maintained to violating factual law.
So, be really such? Offerred safety to cover for the criminal, don't have method to hold the fact of the rape? Little love was taking this bewilderment to consult Beijing the Lv Xiaoquan's lawyer of office of 1 million attorneys, will quickly see professional personage how say!
Stop sexual enroach on!
One, give a = not to revolt = to cannot maintain forcible rape? Be not such!
Somebody thinks, give actively to rapist on bring complete set, regard the injured party as not to revolt, think to rape behavior to be maintained hard accordingly. If it is so?
Procuratorate of court of top 1984 people, top people, the Ministry of Public Security is issued jointly " of a certain number of problems of specific application law in raping a case about be being dealt with currently solve " , " solve " the first the 4th makes clear: "Cognizance forcible rape cannot have with be murdered woman express to serve as requirement without revolt. Did not make revolt express to the woman, perhaps revolt express not apparent, want concrete analysis, distinguish meticulously. Distinguish meticulously..
Although afore-mentioned 3 ministries and commissions " solve " already on January 18, 2013 by procuratorate of top people court, top people with " criminal law and relevant judicatory explanation already had new regulation " for give revocatory, but its are basic spirit and concept connotation are absorbed extensively by judicatory practice place already and apply. Whether to violate woman volition, do not answer from apparently see a woman have without revolt, rejection expression, still should consider a woman to whether can revolt, whether to know revolt, whether to dare the circumstance such as revolt.
The difference of physical strength of male and female lets a female the victim revolts very hard actually and escape
2, the mainest basis that violating apiration of the injured party is cognizance forcible rape
Of forcible rape in making important document, core element is to violate apiration of the injured party (our country approbates a female to be raped only) . In practice, maintain whether to violate apiration of the injured party, can consider from the following angle:
1.The cognitive ability of the injured party when case hair.
In rapist blame, the meaning of the injured party expresses what affect crime directly to hold water. And the cognitive ability of the injured party is meaning of the injured party denotive premise. Besides the age, intelligence and mental state, also should consider case hair at that time the injured party whether convey its heart correctly real intention.
2.The mutinous ability of the injured party when case hair.
Forcible rape is objective go up to be behaved normally for, behavior person uses violent, threatening other perhaps method, make the woman is in cannot revolt, dare not revolt, do not know to revolt condition to perhaps use a woman to be in do not know, the position that cannot defend and seize the opportunity to execute illicit sexual relations. In judicatory practice, what different be murdered woman waits for individual feature as a result of respective physiology, psychology, disposition is different, not identical also to the reaction of violent, threatening other perhaps measure and its degree.
Woman whether defy, or whether to dare to defy what impossibly one unites to maintain a level: The woman has without mutinous ability, the rate that cannot use violent, threatening method purely from behavior person will evaluate, combine woman oneself to be opposite even located environmental acknowledge, the risk that incurs greater harm with the likelihood beforehand appraise psychology, and the element such as state of woman oneself body considers integratedly.
Not! Not!
3.Should analyse the injured party to did not make clear revolt meaning denotive objective reason.
Did not make clear meaning in the injured party below denotive case, ought to undertake concrete analysis to the located external environment when its case is sent. Normally, there are two kinds of possibilities in practice: Did not make a meaning state case falls " be partly compliant " , silent is shown agree and dare not revolt, cannot revolt below did not make a meaning express. Apparent, former do not attribute rape action, and latter attributes rape action.
Specific how to distinguish, the author thinks, should combine case fact evidence to undertake integration analysis is judged, make accurate assessment accordingly, specific ought to consider case hair the environment at that time, bilateral whether the element such as report of postmortem of the body state of person of the body state that acquaintance relation, both sides has bilateral and impassible foundation, located part position, the injured party, behavior, the injured party, whether does be murdered woman have a choice to convey the meaning freedom of different idea with deciding integratedly.
On put together, choice of the injured party when experience is raped is given actively on safety is covered, it is to already lay normally special and isolated in the external environment that does not have aid, between both sides impassible also foundation, behavior person took violent, threatening other perhaps step (use fluctuation level for instance appurtenant relation, bring to bear on to the injured party power control, spirit enforces compulsively with psychology) , make the injured party complete dare not revolt, cannot revolt, the harm that the injured party causes to oneself to reduce behavior as far as possible is have to and do it, after the event is distress unceasingly, seasonable Xiang Qinpeng appeals, dial 110 call the police. Such a variety of, make clear adequately, the injured party is given actively on this activity that brings complete set to have sex, it is to violate its oneself at all of real intention, the core that accords with forcible rape makes important document.
Not was to give covering is not a rape!
3, after sufferring a rape unfortunately, how should do?
So, encountered a rape when misfortune, we this how keep evidence, is the cognizance that shuns occurrence rape case difficult? A few points that collect and save relevant evidence are below:
1.call the police for a short while
Suffer after encroaching, the injured party must call the police for a short while, lest miss first-rate to obtain evidence opportunity: Above all, the trace of case discovery field, carry-over (if the hair of spot bequeath, safety is covered, wipe fiber of paper towel, clothings [underwear] wait for material evidence) etc evidence is extremely easy because of the spot fluctuant or the elapse of time and change or destroy break. Cite a case, be in for instance theoretic, the vaginal extraction content of general work style can be in only 2 - the check inside 3 days gives spermatozoon (fall in the circumstance that be not excreted or cleans) . Next, call the police in time to make more easily handle a case mechanism convinces the injured party to sexual behavior support repellent attitude. In acquaintance rape case, call the police time is judiciary cognizance the injured party the important basis of subjective volition.
Some reasons can make you silent, but if you seek justice, meeting somebody supports you
After calling the police, ought to ask public security mechanism issue call the police receipt, get case receipt. To involving the case of individual privacy, the responsibility of hugger-mugger of the injured party of promising of public security mechanism and obligation. Cooperate public security mechanism to make an inquiry note. Make when noting, answer as far as possible detailed, the attention describes body feature of the gangster, at the same time the attention provides clue of relevant testimony of a witness, material evidence to investigation mechanism. Below probable condition, can continue to be contacted with the suspect, assist public security mechanism to carry out capture.
The gangster adopts violent means to carry out illicit sexual relations, general better obtain evidence: If have,do not have the brawl, sound that cry for help, the spot has without struggle, fighting trace, the injured party has the bazoo that do not have a mouth to cover mark, cervical clutch mark, force mark, bind mark to wait; Guilty suspect can bring to justice in time, the body watch of suspect and the injured party has without present score, bite mark, whether to appear on clothings tear off, cut, wear away etc struggle mutinous trace, the spot has without scattering clothings fragment, button, rope, bloodstain, hair, wipe paper towel to wait. Additional, the extraction of the briefs of the injured party, underwear, a lot of the injured party in reality will be torn off for a short while or the abandon after abandon of tatty briefs, underwear or dress leave the scene, bring about adherent the minim material evidence such as the seminal fluid on briefs, underwear cannot be extracted, even can the direct evidence that confirm force exists destroys finally also break. Accordingly, the injured party is in when reporting a case to the security authorities, the whereaboutldirection that should inform public security machine to involve afore-mentioned clothing and other articles of daily use instantly is hand-in-hand obtain evidence in time all right.
Any dress are not the reason that the gender invades, but remember withholding testimony
The gangster adopts threatening method to carry out illicit sexual relations, can carry the evidence with written perhaps and threatening head of population of fixed crime suspicion commonly, like speech, communicate, the record of mail, information, whether does proof crime suspect have with evil kill photograph announce (control of position of the functionary right that uses duty field for example, status, power) behavior. To threatening behavior whether the scared psychology that enough causes be murdered female makes its dare not revolt, OK the respect such as the understanding degree to information of identity of the other side undertakes the age contrast from case hair time, place, both sides, both sides maintain.
The gangster adopts other measure to carry out illicit sexual relations (do not know to defy, cannot defy) , general but the psychosis from beforehand of the injured party, cognitive ability, revolt ability, sex defends the expression of behavior and defensive consciousness is cut, the injured party below special situation also has proof effectiveness with respect to the expression of after the event of afore-mentioned item. If the spot has,reach packing without the alcohol, drugs, narcotic, medicine that confuse unreal, before case of the injured party is sent, the go by method after case hair has without monitoring kinescope, have without encounter relevant witness, inspect guilty suspect to whether use relevant article to make be murdered woman does not know to defy accordingly, cannot defy, perhaps discover be murdered woman does not know to defy, when cannot be being defied, try to use to this condition.
To happening in the rape case outdoor, the spot whether material evidence of bequeath crime trace is concerned with the environment of criminality movement and spot. For example the spot is in the place such as side of suburb, farm, mountain forest, river, the possibility of material evidence of spot bequeath trace is large. In the city the place such as spot of street, alley, if there are more grey ground and the object that keep track possibly on the spot, also can leave trace material evidence, although there is grey earth on the spot, stay possibly still have the material evidence such as fiber of spot of bloodstain, essence, hair, clothings.
2.Do not rinse the body instantly
Suffer after encroaching, till appraisal before, the injured party does not rinse the body any place. Female of a lot of fall victim is based on abashed feeling, can be in actively rinse the body for a short while, discard the clothings such as briefs, bring about first-hand material evidence to destroy directly break, this cannot be taken. If because do not have first-hand material evidence, and bring about the criminal law duty that cannot investigate rapist, undoubted this is the injured party suffers rape hind, what get harm again.
Be encroached to let you feel unwell, but the fault that this is not you, reservation evidence is very significant
3.Undertake appraisal and biology material evidence extract affection in time
No matter whether choose resistance, also should stay on body of the other side as far as possible pay flinched mark, to the appraisal of counteractive trace, conduce to judgement the circumstance at that time. In case hair process, should wait for substance appearance feature of the gangster, accent as far as possible write down. Body of the injured party has loss, should ask public security mechanism injures degree to make love to its body appraisal, if body watch, vagina reachs clothings to adhere to,have the seminal fluid of guilty suspect, should ask to investigate personnel, technology personnel extract for a short while; Be like what disagree to appraisal opinion, can apply for new appraisal. Those who require an attention is, if ministry of female Tong Yin has loss, public security legal medical expert does not make identification commonly. Guardian can apply for appraisal to the medical establishment that has aptitude, if medical establishment needs to extract vulva or vagina,wipe child, proposal business investigates personnel please or legal medical expert is present testimony, in order to prove the lawful sex of evidential origin.
Ought to plan of seasonable follow-up case. After public security mechanism hears a case, draft those who investigate to establish criminal case, report a case to the security authorities the person has authority to ask public security mechanism is in the 3 inside day put on record after accepting, issue put on record to decide a book. Public security mechanism if not put on record is investigated, accusant, inform against a person to authority asks public security mechanism shows reason, issue do not grant put on record decides a book. Accusant to granting put on record decides disaffected, can apply for to reconsider to the public security gear that makes a decision, the accusant decides disaffected to reconsidering, but up mechanism of one class public security applies for check, also but to appeal of procuratorial work mechanism. If evidence proves guilty fact, also can mention to the court directly private prosecution.
To sum up in a word, raping the most essential feature is the volition that violates a victim, have sex with its forcibly with violent, threatening or other measure. Whether to violate woman volition, not with " whether (limbs movement) revolt " for requirement, cannot resemble heroine of the ancients requirement intense daughter asks in that way contemporary female, absolutely refuse to rather even with going all out to death from, be the requirement of person right safeguard that does not accord with the injured party so. Become especially complex influence (relation) when producing effect, even if tender rape also remains a rape.
