I. Case Background:

The Weight and Challenge of a Seven-Year Imprisonment Term

On the battlefield of criminal defense, every case is the ultimate test of a lawyer's wisdom, courage and professionalism. Recently, a child molestation case handled by my firm is a classic battle to find a balance between the rigidity of the legal provisions and the warmth of judicial practice. The public prosecution put forward a sentencing recommendation of up to seven years' imprisonment on the grounds that the defendant had committed indecent assault in a “public place in public”. This recommendation was like a dark cloud on top of the sky, which not only plunged the defendant and his family into despair, but also brought great pressure and challenges to the defense work.

According to Article 237 of the Criminal Law of the People's Republic of China, public molestation of a child in a public place is an aggravating circumstance, and should be sentenced within the range of “five years or more of fixed-term imprisonment”. The prosecution's allegations are clear, the chain of evidence seems to be complete, the space for defense seems to be extremely narrow. In the face of such a serious situation, how to lift the fog, find the key breakthroughs in the case, the core of the success of the defense.

Second, precise entry:

Deconstructing the logic of the prosecution from the substantive connotation of “aggravating circumstances”.

After in-depth study of the case file, repeated meetings with the defendant, undertook the case of Li Jingyu lawyer keenly realized that the focus of the defense should not be to deny the “public place in public” this objective fact, but should be an in-depth analysis of the “circumstances” behind the whether to reach the Needs to be sentenced to severe “bad” degree. Li Jingyu established a core defense strategy: to face the aggravating circumstances, but not to fall into the quagmire of formalism, but to return to the legislative intent and the principle of appropriateness of punishment and responsibility, arguing that the case “circumstances are not yet egregious”, and should not be mechanically applied to the maximum sentence.

(a) face up to the “public places in public”, but not mechanically equivalent to the “circumstances of the bad” ‍

Attorney Li Jingyu first made it clear to the court that the defense admitted that the place where the crime took place met the definition of a public place. According to article 23 of the opinions of the supreme people's court, supreme people's procuratorate, ministry of public security and ministry of justice on punishing crimes against minors in accordance with the law (hereinafter referred to as “opinions”), as long as there are a number of people present, regardless of whether or not they actually saw the incident, it can be recognized as a “public place in public”. ". However, Mr. Li Jingyu emphasized that the original purpose of this provision is to severely punish those vicious crimes with deep subjective malice, openly challenging the social order, and causing great physical and mental trauma to children. The application of the law should not be a simple labeling correspondence, but need to make substantive value judgments. To recognize as “aggravating circumstances” all acts that meet the formal requirements of “publicity in public places” without distinction is contrary to the modesty of criminal law and the basic principle of appropriateness of punishment and crime.

(ii) citing authoritative judicial interpretation, return to the principle of appropriateness of crime and punishment.

Li Jingyu further pointed out that, although the law has not made clear quantitative standards for “aggravating circumstances”, but this is to give the judge with the specific circumstances of the case for discretionary space. In judicial practice, the determination of “aggravating circumstances” need to take into account the cruelty of the means of behavior, the duration of time, the size of the physical and psychological harm to the victim, the degree of social impact and a series of factors. Li Jingyu's defense was centered on these substantive elements, aiming to present a more comprehensive, objective and realistic picture of the case to the panel.

Third, solid reasoning:

Multi-dimensional argumentation “circumstances are not bad” defense point of view

In order to make the “circumstances are not egregious” point of view solid and credible, Li Jingyu lawyers from multiple dimensions, combined with the evidence in the case, a detailed explanation:

1. From the behavioral means and methods of analysis: the molestation of mild and nonviolent

In this case, the defendant's behavior is relatively single and minor, did not take any violence or coercion. Attorney Li Jingyu described in detail the contact area and duration of the act, emphasizing that the contact time was extremely short and almost instantaneous. Compared with those who use violence, coercion, the victim for a long time, multiple parts, and even cause bodily injury, the defendant's behavior means obviously does not have “bad” characteristics.

2. From the consequences of the crime and social harm assessment: did not cause serious injury and bad social influence

It was found that the victimized child did not suffer any physical injury. Although any act of molestation will have an impact on the child's psychology, in this case, due to the transient and covert nature of the behavior, did not cause panic or onlookers around the public at that time, its social impact was controlled within a very small range. Mr. Li Jingyu argued that the actual damage caused by the behavior must be taken into account when determining the sentence, and that it cannot be predetermined to have caused serious harm simply because of the label of “public”.

3 from the defendant's subjective malignancy and personal danger: the first time offender and sincere repentance

The defendant is a first-time offender, an occasional offender, without any previous criminal record, which indicates that his subjective malice is not deep, and the personal danger is small. After the crime, the defendant can truthfully confess his main crimes, the court voluntarily pleaded guilty and admitted punishment, repeatedly expressed to the victim and his family's apology, with obvious repentance. These circumstances fully demonstrate that he still has the possibility of being educated and reformed, and that the application of excessive penalties to him is not conducive to his reform and return to society.

Fourth, effective defense:

The collegial court fully adopted and realized the excellent result of halving the sentence

During the trial, Mr. Li Jingyu showed the full picture of the case to the panel through rigorous logic and detailed arguments, layer by layer. Attorney Li Jingyu emphasized that it is necessary to convict and punish the defendant, but the sentence must be fair and must match the actual harm of his actions. Li Jingyu's defense is not an unreasonable argument, but based on a deep understanding of the spirit of the law and respect for the facts of the case.

In the end, after the deliberation of the panel, the court fully adopted the defense on the case, “although it happened in a public place in public, but the overall circumstances of the case does not constitute the circumstances of the case,” the defense. The verdict was finalized: the defendant was sentenced to three years and six months in prison. This verdict, the prosecution suggested seven years of imprisonment directly cut, not only is the defendant's personal new life, but also the highest affirmation of Li Jingyu's precise, professional and effective defense.

V. Conclusion:

The art of criminal defense lies in precision and perseverance

The success of this case, once again confirmed the core value of criminal defense: it is not the exculpation of crime, but the guardianship of justice. In the face of seemingly ironclad accusations, excellent criminal defense lawyers must have the ability to penetrate the surface, hit the essence of the insight, dare to challenge the mechanical application of the law, and adhere to the criminal law of the soul of the punishment fits the crime. Through the “bad circumstances” of the core elements of the precise deconstruction and solid argumentation, Li Jingyu lawyer successfully in the legal framework for the client to get the most favorable results, to achieve the unity of the legal effect and social effect. This is not only a case of victory, but also a perfect interpretation of the professionalism of criminal defense.

Translated with DeepL.com (free version)