On the harm of li's case.

In the long historical development, we have formed a specific view on the crime of rape. Rape is a kind of sexual violence between men and women, but with the development of society, there are more and more cases of men being raped. 21In the early morning of August 26th, 2004, a boy of 16 years old was forced to have homosexual relations with him by a 38-year-old male manager in his hotel room. Because the current criminal law of our country does not clearly stipulate the same-sex sexual assault, the perpetrator's behavior can only be punished by administrative detention 15 days because Article 19 of the Regulations on Administrative Penalties for Public Security belongs to the crime of hooliganism. In 2004, the victim teenager took the perpetrator to court and demanded compensation for personal injury. On February 9, 65438, the court that accepted the case made a first-instance judgment and ordered the perpetrator to compensate the plaintiff for RMB 50,000. However, how to protect the sexual rights of victims? At present, the laws in China are still blank.

First, the provisions of rape in China's current criminal law and the lack of legislation

China's criminal law only stipulates the crime of rape, although in March 2002 15 "Supplementary Provisions of the Supreme People's Court and the Supreme People's Procuratorate on the Execution of Confirmed Crimes", the charge of this article is "rape", and the crime of raping a young girl has been abolished. But in fact, two situations are stipulated: general rape and rape of young girls. 1997 article 236 of the criminal law stipulates that whoever rapes a woman by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Whoever rapes a girl under the age of 14 shall be given a heavier punishment for rape. Whoever rapes a woman or rapes a young girl under any of the following circumstances shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death:

(a) Rape of women and young girls;

(2) raping women or raping young girls;

(3) raping a woman in public in a public place;

(four) gang rape of more than two people;

(5) Causing serious injury, death or other serious consequences to the victim.

In China's criminal law, the direct principal offender is only male. Taking western countries as an example, the French Criminal Code, Volume II Crimes against the Person, Volume II Crimes against the Person, Chapter II Crimes against the Person or Spirit, Section III Crimes of Sexual Assault, Item I Crimes of Rape, stipulates in Articles 222-23: "Whoever commits any act against others by violence, coercion, threat or taking advantage of others unprepared shall be sentenced to rape/kloc. "However, under the influence of the gender concept that women are stronger than men, China believes that men are the leaders of society and cannot be the object of rape, which leads to women becoming the direct principal offenders of rape in the legislative provisions of our criminal law, resulting in legal gaps. Therefore, the author believes that it is extremely necessary to include men in the scope of protection of rape and expand the subject of rape to the general subject. This is not only in line with the development direction of world criminal legislation, but also in line with China's actual national conditions.

Second, the discussion about the object of rape.

(1) Can the same sex be convicted of rape?

1. same-sex love

"Same-sex love" prevailed in ancient Greece, and some famous European philosophers and musicians, including Socrates and Leonardo da Vinci, were homosexuals. In today's pluralistic society, homosexuality is basically understood by the society, but the current marriage law does not recognize same-sex sexual relations. For example, China's marriage law stipulates that the subject of marriage must be men and women, that is, the opposite sex. Therefore, if the law does not recognize it, there will be an unbalanced state of same-sex sexual relations. When this situation develops seriously, there may be a social phenomenon of homosexual sexual violence.

2. Same-sex rape and social harm

Same-sex rape has become a social problem that cannot be ignored. Same-sex rape has serious social harm, which is manifested in the following four points:

(1) This behavior has seriously violated citizens' sexual rights. Citizens have the right to sexual freedom, and homosexual violence is an infringement of citizens' sexual freedom.

(2) This behavior violates citizens' right to physical and mental health and personal dignity. Same-sex rape is no less harmful than heterosexual rape, and it will cause great physical and psychological harm to the victims.

(3) This behavior will do harm to social order. Victims of same-sex rape, ashamed to tell the public, often take illegal means to "reconcile", which will cause the destruction of social order.

(4) This behavior will increase the risk of spreading sexually transmitted diseases and AIDS. According to the investigation report of China Infectious Disease Prevention and Control Agency, the probability of homosexual people being infected with sexually transmitted diseases and AIDS is very low. However, when homosexual sexual violence occurs, it is very easy to get infected with AIDS. In particular, anal sex between men can easily lead to damage to the thin and fragile rectal mucosa, and HIV in the semen of the perpetrator can easily spread through slight damage to the rectal mucosa and contact with the other person's blood.

3. Legislation on same-sex rape.

At present, the legislation of same-sex rape in China is still blank, and the victims of same-sex rape cannot get reasonable protection. In developed countries and regions, same-sex violence has been clearly defined as a crime. Article 15 of the British Sexual Offences Act 1956 stipulates that "threatening to attack men constitutes a crime"; Article 13 stipulates that "serious indecency between men constitutes a crime"; 1994 article 143 of the criminal justice and public order law stipulates that "sodomy between men constitutes a crime".

(2) Can sexual assault by women against men constitute a crime?

1. Sexual assault by women on men and its social harm

According to the provisions of the crime of rape in China's criminal law, women can't be the direct principal offender of rape, and women's sexual assault on men is blank in law. But at this stage, women can "rape" men by the following means: hallucinogenic drugs. Taking hallucinogenic drugs can make people feel trance, and it is easy for women to catch men who take hallucinogenic drugs, and it is possible to "rape" men. Means 2: Male functional drugs. Using aphrodisiac drugs, women can also achieve the purpose of sexual assault. Means 3: use the subordinate relationship of authority. Female bosses use their power to threaten promotion and dismissal, and coerce male subordinates to have sex with them.

Women's sexual assault on men has caused psychological trauma to the raped men and insulted their personal dignity. It is very necessary to incorporate female sexual assault on men into crimes and crack down on them.

2. Legislation on sexual assault by women against men

With the development of society, women are included in the subject of rape in some countries' laws. Chapter 18, article 13 1 of the Criminal Code of the Russian Federation stipulates the crime of rape, "using violence or threatening to use violence against the victim or other people, or taking advantage of the isolated state of the victim to have sex with him", and article 134 about having sex with a person under the age of 16. As well as the provisions of article 135 on obscenity, it is clear that both the offender and the victim can be male or female. Article 176 of the Japanese Criminal Code stipulates: "Whoever commits obscene acts against men and women over the age of 13 by means of violence or coercion shall be sentenced to fixed-term imprisonment of not less than 6 months but not more than 7 years."

3. The reason why women can be the subject of rape alone.

(1) From a physiological point of view, people's physiological needs are the most primitive and the lowest. According to Ellis, an authoritative sexologist, when people's needs are not met for a long time, they will form a certain desire to accumulate, and this desire to accumulate will erupt under appropriate stimulation. When this desire is not satisfied for a long time and expands viciously, both men and women may commit sexual assault. It is extremely unfair to men if only women's sexual rights are protected.

(2) From the perspective of human rights, all people are born equal. When our legitimate rights and interests are infringed, we have the right to legal relief and protection according to law. This is an inevitable requirement of fairness and an inherent right. This right should not be differentiated on the basis of sex. It is extremely incorrect to think that only women have chastity and men have no chastity.

(3) From the perspective of legal sources, the right to equality is the basic right of citizens established by our Constitution. The second paragraph of Article 33 of the newly revised Constitution in 2004 clearly stipulates: "China people and China citizens are equal before the law." Article 34 stipulates that "China people and citizens aged 65,438+08 have the right to vote and stand for election, regardless of nationality, race, sex, occupation, family background, religious belief, education level, property status and length of residence", which shows that the rights of men and women are equally protected.

Third, the reconstruction of rape crime and its theoretical and practical significance

With the development of society, people's minds are becoming more and more open. We still look at this developed society from the traditional point of view, which is a bit outdated, making the sexual rights of victims unable to be protected by law in real life, leading some victims to "reconcile" through illegal means and causing social disorder. At the same time, same-sex sexual violence, especially male-to-male sexual assault, can easily lead to the spread of AIDS and pose a threat to social security and stability. Therefore, our legislation should consider "equal protection" instead of focusing on the protection of a certain gender.

Four. Legislative suggestions on rape.

1. Expand the object of rape from "women" to "others"

Although the first paragraph of Article 358 of China's Criminal Law stipulates: "Whoever organizes others to engage in prostitution or forces others to engage in prostitution shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall also be fined." There is no gender difference in "others", that is, the sexually assaulted person can be male or female, but the sexually assaulted man is still not protected by law, because the purpose of the crime of forced prostitution is to make profits, but the murdered man does not make profits in reality, so the perpetrator cannot be convicted of the crime of forced prostitution. Article 44 of the Law on Public Security Administration Punishment, which came into effect on March 1 2006, stipulates: "Whoever molests others or intentionally exposes himself in public places, if the circumstances are bad, shall be detained for more than five days and less than ten days." Changing molestation of women to molestation of others is a good start for sexual crime legislation in China-the victims in sexual crimes are gender-neutral.

2. Make clear the forms of sexual intercourse in rape.

Traditionally, sexual intercourse only refers to the insertion of a male penis into a female vagina. Although our country still holds a traditional view on the concept of sexual intercourse, many countries in Anglo-American law system and civil law system have expressly expanded the scope of sexual intercourse, treating oral sex and anal sex as sexual intercourse, and some countries and regions regard any part of the body and foreign bodies inserted into vagina and anus as sexual intercourse.

3. Increase the crime of opportunity rape

The crime of taking advantage of the opportunity to rape refers to the behavior that the perpetrator uses other people's mental loss, mental exhaustion, physical and mental disorders or other similar situations to have sex with them. Other similar situations mainly refer to mental illness, dementia, drunkenness, deep sleep, serious illness and injury. For example, in order to have sex with a man, a woman makes him drunk or makes him take hallucinogenic drugs unsuspecting, which makes him lose his mind and makes it easy to have sex with a man.

Verb (abbreviation of verb) conclusion

There is no conflict between protecting the rights of women and men, and emphasizing the improvement of women's status does not mean ignoring the legitimate rights of men. Criminal law is the last barrier to protect human rights, and it is also the most severe barrier. Sexual right is a personal right, naturally there is no gender difference, which helps to protect men's sexual rights and is also the true embodiment of the constitutional provision that "everyone is equal before the law". One of the most important tools that criminal law can promote the realization of human rights is to give equal protection, promote the process of equality between men and women, and thus promote the harmonious development of society.