Recently, Zhao Xing lawyers acting on behalf of Liu Moumou suspected of raping a young girl case, in the examination and prosecution stage of intervention, successfully persuaded the prosecutor to prosecute the crime of rape changed to forced indecent assault, in the maintenance of the legitimate rights and interests of the parties at the same time, but also with the prosecuting authorities to correctly apply the law to punish the crime, successfully realize the effective defense.
Case Background
The investigating authorities found the facts: in the early morning of June 13, 2025, the suspect Liu Moumou in a KTV room in Beijing, taking advantage of the victim asked Moumou (female, 13 years old) when she was intoxicated, he raped her.
The investigating authorities believe that: Liu moumou's behavior has violated the “criminal law of the People's Republic of China” article 236 of the provisions of the suspected rape.
Lawyer intervention
Defense lawyers in the examination and prosecution stage of the case, the first time to meet with the suspect Liu Moumou and check the case file. Combined with the confession of the suspect Liu Moumou and the evidence in the case, the defense lawyer found that there are two significant problems in this case, one is the application of the crime is wrong, and the second is the existence of Liu Moumou surrender circumstances have not been identified. So, the defense lawyer combined with the relevant legal provisions and judicial precedents with the prosecutor for full communication:
1. Liu moumou should constitute the crime of forced indecent assault rather than rape
(1) the determination of rape of a young girl standard
Judicial practice, on the determination of attempted rape standards, need to be distinguished according to the object of rape. That is, when the object of rape is general female (has reached 14 years old), should be “insertion” (male sexual organ into the female sexual organ) as the determination standard, and when the object of rape is young girl (less than 14 years old), should be “contact” (male sexual organ and young girl sexual organ). Contact" (male sexual organ and young girl sexual organ contact) for the determination of standards. This is currently in our country whether it is the theory or judicial practice are not controversial, because the young girl's sexual organs are not mature, for the protection of such special groups of young girls, to contact as the attempted rape standard is more reasonable.
In this case, combined with the party statement and judicial appraisal report and other evidence in the case, the day of the incident, although LiuMouMou implemented hand touch ask moumou chest, lower body, as well as ask moumou with the genitals rub the lower body of the behavior, but its genitals did not insert ask moumou's lower body. Therefore, LiuMouMou whether constitute rape or forced molestation, or child molestation crime, the key lies in the criminal act of whether he knew ask moumoumou for less than 14 years of age of young girls.
(2) overturn the “subjective knowledge” determination
The reason why the investigating authorities that Liu Moumou constitute rape, is that Liu Moumou in the question of Moumou to carry out the above acts of indecent assault, knowing that it is under 14 years of age, that is, this case belongs to the situation of rape of a young girl, should be treated as rape. But the defense lawyer by checking the case file file, the evidence in the case can't prove that LiuMouMou subjectively know the victim ask a young girl for less than 14 years old.
First, Liu Moumou arrived after the confession has always been consistent, that is, he did not know at the time of the crime asked Moumou for less than 14 years of age of the young girl.
Secondly, although a witness in the testimony that asked moumou that day in the KTV had to Liu moumou and other people introduced their age, but the witness and asked moumou is a friend, and the other three witnesses are unable to determine whether Liu moumou know asked moumou's age, some of them said asked moumou to introduce their age, but at that time the room was too loud, not sure that Liu moumou has not heard, some say forget asked moumou has not introduced age, some even in the case of a young girl. Introduced age, some even in the testimony did not mention ask so-and-so's age.
Third, according to ask moumou's physical development, speech and demeanor, clothing characteristics, life and work routine observation, can not see that it is less than 14 years of age of young girls. Evidence in the case shows that ask moumou dropped out of junior high school in the second grade, 1.72 meters tall, and wearing a yellow wig. Early school dropout into society, resulting in childish shedding and taller figure plus wig decoration, these are very difficult for people to determine that ask a certain person is still a less than 14 years old young girl. Secondly, in accordance with relevant regulations, KTV and other such activities are not suitable for minors business premises operators, shall not allow minors to enter, and the day of the crime in the early morning after 1 o'clock asked a certain person also appeared in the KTV, it is also very difficult to let the ordinary people can judge that it is a less than 14 years of age of the young girl. Finally, the day together in the KTV singing several people, only ask moumou for minors, in Liu moumou did not know ask moumou beforehand, and no one has introduced ask moumou's age, Liu moumou through the appearance, words and deeds can judge ask moumou is under 14 years old young girl, is not too harsh.
In conclusion, based on the evidence in the case can't prove that LiuMouMou know ask MouMou's age beforehand, and according to ask MouMou's physical development, speech and behavior, clothing characteristics, life and work routine and so on observation, also can't see that it is less than 14 years old young girl, so we can find that LiuMouMou subjectively do not “know” the victim ask MouMou for less than 14 years old young girl. 14 years old girl, so this case should not be raped young girl.
2. Liu moumou has “in situ to be arrested type” of surrender circumstances
Through the meeting with Liu Moumou, the defense lawyer learned that the day of the crime, Liu Moumou, knowing that someone dialed 110 alarm, still waiting for the police to come in KTV, and arrest without resisting arrest, and after the crime also confessed to the facts of the crime. Therefore, according to the relevant provisions of the law, although Liu Moumou did not personally alarm or take the initiative to go to the nearest police station, but in the knowledge of others to report the case, there is an opportunity to escape and did not escape, stay at the scene and wait for the arrest, that is, “can escape and not escape”, do not resist arrest and to the case of the truthful confession to their own facts of the crime, according to the law should belong to the self-surrender. However, the investigating authorities in the transfer of the case to the procuratorate, but omitted this important circumstance, so the defense lawyer immediately submitted to the procuratorial organs to retrieve evidence in order to find out whether Liu Moumou has the circumstances of surrender.
Case history and results
Defense lawyers based on the above point of view with the prosecutor undertook a number of communication, and submitted a lawyer's opinion and access to evidence application, the prosecutor in the patient listening to the defense counsel and prudent study, that part of the case is unclear, insufficient evidence, decided to return to the investigating authorities to conduct a supplementary investigation.
After the conclusion of the supplementary investigation, the investigating authorities to the procuratorial organs to transfer the supplementary investigation materials, as to whether Liu Moumou know asked Moumou for less than 14 years of age and whether Liu Moumou constitutes the problem of the self-surrender of the relevant materials added. Eventually, the contractor prosecutor combined with the defense counsel and the investigating authorities to supplement the investigation materials, agreed with the defense counsel, decided not to rape, but instead of forcible indecent assault to the court, and in the comprehensive consideration of Liu Moumou voluntarily plead guilty and have the circumstances of the self-surrender, put forward the sentencing recommendation of 2 years and 6 months, the sentencing recommendations than the starting point of the rape of a young girl (rape of a young girl of one person. The starting point of sentencing is determined within the range of four to seven years' imprisonment). Significantly lower, in accordance with the law to punish the crime at the same time, but also fully protect the legitimate rights and interests of criminal suspects, to achieve the unity of the fight against crime and the protection of human rights.
Case Insights
Currently, despite the introduction of the Law on the Protection of Minors, the Law on the Protection of the Rights and Interests of Women and Children and other relevant laws and regulations, cases of minors being sexually abused still occur from time to time. The root of the problem lies in the lack of self-protection awareness and ability of minors and the poor guidance of the complex network environment, but the key is the lack of family guardianship, the absence of sex education and the weakness of school safety education. The author in recent years on behalf of a number of criminal cases involving sexual abuse of minors, most of the victims dropped out of school early, out of the school supervision and education, and many are left-behind children, because the parents go out for a long time, the lack of effective supervision, or some parents are busy at work, neglecting to pay attention to the child's whereabouts and social circle. It is precisely because of the lack of both family education and school education that immature minors, although they enter society at an early age, do not have the ability to deal with adults, and are thus more likely to be sexually abused. Therefore, the protection of minors and the prevention of sexual abuse of minors must not rely solely on punishment as the last line of defense, but should start from strengthening family education and school education, so as to truly achieve prevention beforehand.
Translated with DeepL.com (free version)
