17

2020

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08

Lawyer from Legal Shengbang said | Yu Hailiang: Discussing with the Jinan police - it should be considered rape, not forced indecency!

On the evening of August 14th, the Huaiyin District Branch of Jinan Public Security Bureau issued a "Situation Report" (hereinafter referred to as the "Notice") on the highly publicized case of "Ali female employees being violated".


On the evening of August 14th, the Huaiyin District Branch of Jinan Public Security Bureau issued a "Situation Report" (hereinafter referred to as the "Notice") on the highly publicized case of "Ali female employees being violated".

 

 

The report states that the Huaiyin District Branch of Jinan Public Security Bureau mobilized capable personnel to form a special case team after the incident, and requested the procuratorial organs to intervene in advance. The Criminal Investigation Bureau of Shandong Provincial Public Security Department supervised and organized experts to participate in the case handling.

 

The notified investigation result is that Huaiyin District Branch of Jinan Public Security Bureau has taken criminal coercive measures against suspect Wang Mouwen and Zhang Mou on suspicion of forced indecency according to law, but there is no evidence to prove that rape occurred.

 

In short, the handling unit has concentrated its advantageous and capable forces, combined with current evidence, and believes that the case of "Ali female employee being violated" is a criminal case of forced indecency.

 

But is this characterization correct? The author has different opinions on this.

 

I have represented multiple cases of sexual assault crimes and have been following the progress of this case. Today, I will set aside the position of my defense to discuss the qualitative issues of this case.

 

Before discussing charges, let's familiarize ourselves with two concepts.

 

What is the crime of compulsory indecency? Article 237 of the Criminal Law stipulates that the crime of forced indecency refers to the act of coercing others with violence, coercion, or other means. There are various forms of indecent behavior, such as forcefully touching the genitals of others, pinching women's breasts, taking off women's clothes, etc., as well as forcing women to masturbate on their own, forcing women to masturbate for others, and forcing women to engage in obscene and naked conversations with themselves.

 

And the crime of rape? Article 236 of the Criminal Law stipulates that the crime of rape refers to the act of forcibly engaging in sexual intercourse with a woman through violence, coercion, or other means, contrary to her will.

 

Whether it is forced obscenity or rape, it is against the will of women and violates their "sexual autonomy". So what is the main difference between the two? The crime of rape is aimed at having sexual relations with a victim woman, while the crime of indecency is the act of sexually assaulting a victim woman to satisfy her sensory stimulation through sexual contact other than sexual organ contact. In other words, the biggest difference between the crime of rape and the crime of forced indecency is:

 

Whether there is intentional sexual intercourse when sexually assaulting the victim woman.

 

We now turn our attention back to the case itself.

 

After a comprehensive investigation and evidence collection, Jinan police conducted investigations such as interrogation, video surveillance, fixed extraction of electronic data, and inspection in accordance with the law, and found that "there is no evidence to prove the occurrence of rape crimes". Why did Jinan Public Security come to such an investigation conclusion?

 

The author's inference is as follows:

 

One is that the victim Huang only reported being molested by others and did not report the situation of rape to the public security organs when reporting the case. Zhou reported that "on the evening of July 27th, while dining with a colleague's leader at the Fisherman's Lamp Restaurant in Zhonghai Huanyucheng, Shizhong District, Jinan City, I was molested due to being drunk". When public security organs register cases, they usually file them based on the information reported by the informant and conduct investigations accordingly.

 

Secondly, the public security organs have not yet extracted objective evidence materials to prove the occurrence of sexual activity. Although Jinan public security has carried out the investigation of "access to video surveillance" and "fixed extraction of electronic data", the sexual assault occurred inside the room, obviously unable to obtain effective video surveillance materials to confirm the occurrence of sexual acts, and sexual assault cases are usually sudden and accidental, and investigators can not extract valuable electronic data from the suspect's mobile phones and computers.

 

The third reason is that the public security organs have not extracted the key physical evidence to prove the occurrence of sexual activity - male sperm spots. The report states that Zhou reported to the police after checking out and his room had been cleaned. From this, it can be seen that the sexual assault that occurred between the evening of the 27th and the morning of the 28th was reported to the police by Zhou at noon after checking out on the 28th. At that time, the room had been cleaned, and even if sexual activity had occurred in the room, the possible traces of semen stains such as bed sheets and toilets had already been lost. This is one of them. Secondly, the police immediately led Zhou to Shandong Provincial Hospital for a physical examination, but no biological traces of male sperm spots were found in Zhou's body; Thirdly, when Zhang left Zhou's room, he took away Zhou's underwear (which may have been discarded), once again causing investigators to be unable to verify the presence of sperm stains.

 

Finally, the public security organ has not yet succeeded in breaking through the confession of suspect Wang Mouwen and Zhang Mou. Alibaba conducted a phased internal investigation before the police announcement, which showed that "Qu Yi (Wang Mouwen) admitted to having excessive intimate behavior with his colleague Zhou while drunk." We can fully understand the conclusion of this investigation as Wang Mouwen confessed to his suspected act of molesting his colleague Zhou, but at the same time, he denied the suspected act of raping Zhou. After Wang Mouwen was criminally detained by the public security organs on suspicion of indecency, investigators clearly did not acknowledge the rape of victim Zhou during his interrogation.

 

Based on the above reasons and in accordance with the principle of prudence, the Jinan police have made a phased investigation result of "there is no evidence to prove the occurrence of rape crimes".

 

So, without some objective evidence to prove that sexual activity has occurred, is it still possible for Wang and Zhang's charges to shift from forced indecency to rape?

 

The author's viewpoint is very clear: the existing evidence in this case can determine that Wang Mouwen and Zhang are suspected of rape. Of course, if the suspect's confession can be broken through during the trial, it can more fully confirm the fact of their rape.

 

Many people believe that the crime of rape is based on the premise of sexual activity. Once the investigators in this case are unable to extract objective evidence to prove the occurrence of sexual activity, and the suspect refuses to admit having sexual activity with the victim woman, it cannot be considered as a rape crime. So, is it difficult for Wang and Zhang to be convicted of rape?

 

In fact, we have overlooked the four different forms of intentional criminal behavior that may exist: criminal preparation, criminal suspension, attempted crime, and accomplished crime.

 

Let's shift our focus once again to the timeline of the case. Taking Wang Mouwen's behavioral timeline as an example:

 

From the above timeline, we can see that Wang Mouwen entered Zhou's room for the second time at 23:23 and began to engage in forced indecent behavior against Zhou. At 23:33, Wang Mouwen purchased condoms online, and at 23:43, Wang Mouwen left Zhou's room. Therefore, Wang Mouwen's mandatory obscene behavior towards Zhou after being drunk lasted from the second time he entered Zhou's room until he left the room, and during the obscene period, he also purchased condoms online!

 

As mentioned earlier, the biggest difference between the crime of forced indecency and the crime of rape is whether there is intentional sexual intercourse when sexually assaulting the victim woman.

 

After Wang Mouwen entered Zhou's room for the second time from 23:23, he continued to sexually harass Zhou before separating at 23:43. However, between 23:33 and 23:43, through Wang Mouwen's online purchase of condoms, it can be inferred that he had sexual intercourse with Zhou during his lewd period and continued to violate Zhou under the control of this offense. Therefore, regarding Wang Mouwen's sexual assault behavior, we should consider it as a whole to be classified as rape.

 

In rape cases, the perpetrator often engages in forced indecent behavior first, and then their language or behavior further reveals their intention to forcibly engage in sexual relations with the victim woman. At this point, there is a change in intent and the nature of the crime accordingly. However, the crimes of forced indecency and rape are both crimes that infringe on the sexual autonomy of others, and the two are not in opposition. As a crime of sexual violence, rape is often accompanied by forced indecent behavior, but indecent behavior committed during the rape process is not separately recognized as a crime of forced indecency. If the perpetrator intentionally engages in violence against a woman through forced indecency, suppresses her resistance, and then engages in sexual intercourse with her, it should be recognized as rape and no longer as forced indecency.

 

At first, Wang Mouwen may have only had the idea of forcibly molesting Zhou, but as his lewd behavior continued, he intentionally had sexual intercourse with Zhou. How else could Wang Mouwen explain his behavior of purchasing condoms online during his lewd period? Isn't it about having sex with Zhou? The next morning at 10 o'clock, Wang Mouwen specifically returned to the front desk of the hotel to collect and discard the purchased condoms. If the condoms were purchased for personal use, why did they be quickly discarded? The abnormal behavior of Wang Mouwen and above clearly goes against common sense, and it can be inferred that he purchased condoms to have sexual relations with Zhou Mouwen. In this way, a suspect of forced indecency will become a suspect of rape.

 

Therefore, the characterization of the case by the Jinan police is worth discussing.

 

So far, I have just learned that the People's Procuratorate of Chaoyang District, Beijing, has ordered the arrest of suspect Wu Moufan on suspicion of rape. What charges will Wang Mouwen and Zhang be arrested later? We'll wait and see!