When a man is drunk, he mistakenly thinks that a woman is his girlfriend and has sex with him. Does the man constitute rape?

The man is going to go back to his room to rest after drinking. When he passed Cai's room, he saw that the door of the room was not closed and thought it was left by his girlfriend. Lin entered the room, took a shower and went to bed. Lin thought that Cai was his girlfriend and had sex with Cai. Cai didn't resist when he mistakenly thought Lin was his boyfriend. Afterwards, Cai called the police, and Cai and his family refused to mediate and asked the court to impose a heavier punishment.

Drunk can be divided into physiological drunkenness and pathological drunkenness. The provisions of criminal responsibility for drunken crimes mentioned in Article 18 of the Criminal Law are only aimed at physiological drunkenness. In practice, there is an extremely rare drunkenness called pathological drunkenness. In this case, Lin was not explicitly recognized as a pathological drunkard. Then, in this case, should Lin be criminally responsible for the illegal acts committed after drunkenness?

In this case, if Lin Sheng did not commit rape after rational drunkenness, he should bear criminal responsibility. In this case, after Lin was drunk, and the woman Cai was in a state of ignorance or inability to resist, why didn't she commit rape?

Criminal law should condemn illegal acts committed under intentional or negligent control. Without responsibility, there is no crime. If criminal law wants to punish irresponsible behavior, it is objective imputation, which is not adopted by modern criminal law. Objectively, an act that infringes on legal interests can only show that it is not advocated and encouraged by criminal law.

Criminal intent is all the elements of the constitutive requirements. If the actor doesn't realize one or more elements in the constitutive requirements when he carries out the act, there will be no criminal intent and he can only be regarded as a negligent crime.

The object of action is the constituent element of rape. In this case, Lin has a wrong understanding (non-object misunderstanding) about the object with which he has sex. In this case, Lin's sexual relationship with his fiancee does not constitute rape. Lin mistakenly thought that his fiancee had sex with him.

Therefore, in this case, Lin did not know the object of rape, but the object was a deliberate understanding of rape. Therefore, in this case, Lin did not have the intention of rape. The criminal law stipulates that those who intentionally commit crimes shall bear criminal responsibility; Those who commit a crime negligently shall bear criminal responsibility only if the law provides for it. The criminal law does not stipulate that negligent rape constitutes a crime. Therefore, in this case, Lin does not constitute rape.

According to the above analysis, those who commit crimes after being drunk should bear criminal responsibility; Pathological drunken crime, except for free reasons, does not bear criminal responsibility. The criminal law stipulates that those who intentionally commit crimes shall bear criminal responsibility; Only when the criminal law has provisions on negligent crime can criminal responsibility be borne. Rape is an intentional crime, and negligent rape is not stipulated as a crime in the criminal law. Therefore, in this case, Lin was not criminally responsible for the crime of rape, not because he was drunk, but because Lin did not rape intentionally and was not criminally responsible.