On the afternoon of August 25, 2026, the 21st session of the “Criminal Case Debate Forum” seminar series hosted by Beijing King&Capital Law Firm was held in the multipurpose hall on the 22nd floor of the firm’s office building. The theme of this session was “Analysis of the Legal Characterization of Rape Cases and Defense Practices,” focusing on typical practical disputes and core challenges surrounding rape involving intoxication and violent rape.
The event was moderated by Attorney Chen Sainan of the Third Criminal Law Department at King&Capital Law Firm.
Attorney Zang Desheng, Senior Partner at King&Capital Law Firm and Director of the King&Capital Research Center for Complex Criminal Cases, delivered a presentation titled “Rules for Determining Cases of Rape Involving Intoxication”; Attorney Ma Lixi, Partner at King&Capital Law Firm and Head of the Organized Crime Defense Specialized Group under the Kyoto Criminal Law Committee, delivered a special presentation on “Key Points in the Review of Evidence in Violent Rape Cases.” Attorney Nie Sufang, Senior Partner and Head of the Third Criminal Law Department at King&Capital Law Firm, along with numerous attorneys from both within and outside the firm, participated in the discussion.
Zang Desheng: Rules for Determining Cases of Rape Involving Intoxication
Zang Desheng, Senior Partner at Beijing King&Capital Law Firm
Attorney Zang Desheng delivered a presentation on “Rules for Determining Cases of Rape Involving Intoxication.” Drawing on his more than twenty years of practical experience in the criminal justice system, he systematically outlined the rules for determining cases of rape involving intoxication. He pointed out that although rape is a traditional criminal offense, its forms have evolved: purely typical stranger rapes are gradually decreasing, while rapes committed by acquaintances are relatively more common, and a large number of cases are alcohol-related, making them particularly difficult to adjudicate.
Attorney Zang Desheng emphasized that when handling rape cases, one must first grasp the basic elements of the crime of rape. The core element of rape lies in “acting against the woman’s will”; violence, coercion, or other means are merely manifestations of the crime, and the ultimate standard of judgment is whether the woman’s sexual autonomy was violated. He argued that the determination should be based on the woman’s true will at the time of the act, rather than her attitude afterward. Even if the two parties have had an ongoing improper sexual relationship, or if the victim is a sex worker, as long as she was unwilling at the time of the act, it still constitutes a violation of her will.
Attorney Zang Desheng emphasized that determining whether a woman’s will was violated should be based on her true will at the time of the act, requiring a comprehensive assessment that takes into account both pre- and post-incident behavior—including the process of mutual understanding between the parties, their ongoing relationship, post-incident communication, the motivation for reporting the crime, and the timeliness of the report. Although post-incident consent generally cannot preclude the establishment of a crime, post-incident behavior (such as the timing and motivation for reporting the crime) serves as an important reference in assessing the woman’s will at the time of the act. He explained that the key points of the ruling in the “Wen Mou Rape Case” from the People’s Court Case Database state that although extramarital sexual relations violate public order and good morals, they do not affect the victim’s sexual autonomy. The “Fu Mouyang Rape Case,” on the other hand, emphasizes that when typical violent or coercive means were not used and the victim did not put up fierce resistance, a determination should be made through a comprehensive analysis of all evidence in the case as well as the parties’ behavior before, during, and after the incident.
Regarding rape involving intoxication, Attorney Zang Desheng proposed that three key dimensions must be examined: the degree of intoxication—whether it substantially impaired judgment and the capacity for free will; the cause of intoxication—whether the male party actively plied the victim with alcohol as a means to commit the crime, or took advantage of the situation after normal drinking; and the causal relationship—whether the female victim’s compliant response was caused by intoxication. He noted that the guiding principles in the case database are clear: when a woman, due to intoxication, is unaware of the situation, unable to resist, or afraid to resist, such circumstances constitute a violation of her will; however, the determination must take into account the relationship between the parties, the emotional foundation of their relationship, and their behavior before and after the incident.
Attorney Zang Desheng analyzed a case he personally handled: The defendant and the victim were coworkers who had previously been in a romantic relationship. On the night of the incident, they met to drink and then went to the woman’s residence, where the incident occurred after her boyfriend returned home. During police questioning, the woman stated that she “did not want to.” In the first-instance trial, the defendant was sentenced to one year and nine months in prison for attempted rape. He explained that during the second-instance proceedings, the defense counsel submitted evidence such as WeChat chat logs and argued that intoxication does not necessarily equate to a loss of sexual self-defense capacity; that engaging in sexual relations with an intoxicated woman does not necessarily imply a violation of her will; and that the defendant’s subjective perception influences the determination of intent to commit rape. Ultimately, the case was remanded for retrial; the prosecution withdrew the indictment and issued a decision of non-prosecution; and the client is currently applying for state compensation.
Attorney Zang Desheng concluded that defense counsel should not be constrained by the notion that “having sexual relations with an intoxicated woman constitutes rape,” but should exhaust all available means to achieve a favorable outcome through a solid evidentiary defense and reasoned argumentation.
Ma Lixi: Key Points in Evidence Review for Violent Rape Cases
Ma Lixi, Partner at Beijing King&Capital Law Firm
Attorney Ma Lixi delivered a presentation on “Key Points in Evidence Review for Violent Rape Cases.” He pointed out that violent rape cases today frequently occur between acquaintances, but the focal point of contention remains the issue of “acting against the woman’s will.” In such cases, verbal evidence is typically one-on-one, and objective evidence often only proves that a sexual relationship existed between the parties. A meticulous review is required to determine whether the violent acts actually occurred, the intensity of the violence (whether violence must manifest as injuries or be sufficient to suppress resistance, or whether the mere application of physical force to overcome resistance constitutes violence), the location and timing of injuries, and the causal relationship between the violent acts and the sexual acts.
Attorney Ma Lixi systematically outlined the framework for reviewing evidence in cases of violent rape from five perspectives:
First, a chronological review: examining the entire process—before, during, and after the incident. Prior to the incident, attention should be paid to the relationship between the parties, the process of solicitation, the location of the scene, and the woman’s actions upon arrival; During the incident, focus on examining damage to clothing and whether injuries reported during the incident differ from those documented in post-incident medical treatment or forensic evaluations—specifically, whether injuries appeared out of nowhere or increased in severity over time—as well as whether cries for help were heard (in addition to the victim’s statement, consider surveillance footage from outside the scene and the specific wording of neighbors’ testimonies regarding whether the sounds were an argument or cries for help); after the incident, examine the victim’s demeanor, gait, and clothing as she left the scene.
Second, review of evidence of violence: Focus on injuries, cries for help, clothing, on-site investigations, forensic evaluations, police dispatch records, and the public security authorities’ “Work Report.” For example, verify whether the presence, number, and location of injuries are consistent across the victim’s statements, medical chief complaints, and forensic findings, and whether the cause of the injuries can be clearly explained. Regarding clothing, in many cases, the victim claims her clothing was torn, but physical evidence shows it was intact. Forensic analysis should focus on DNA from condoms and their packaging (to confirm who opened the condom), the severity of injuries to the vulva (whether they could have resulted from normal sexual activity), and ensuring these are not confused with vaginal injuries; it is also crucial to verify whether DNA analysis contradicts verbal testimony.
Third, examination of causality: The focus is on examining the causal relationship between acts of violence and sexual activity (e.g., if violence occurred after consensual sexual activity, triggered by a post-coital dispute over a broken condom); the severity of injuries may influence the legal characterization of the act (as such injuries can also result from consensual sexual activity); and whether injuries sustained by the male were caused by the female’s resistance. Furthermore, in some cases, evidence was initially gathered on the basis of coercion; when this proved difficult to substantiate, the focus shifted to finding evidence of violence, resulting in potential deficiencies in the evidence supporting each charge.
Fourth, examination of the cause of the incident: disappointment over actual expectations (e.g., going shopping together after the incident, but being dissatisfied with the purchased gift, becoming angry, and reporting the incident to the police due to resentment rather than coercion); disappointment over anticipated expectations (e.g., consenting to sexual intercourse but later reporting the incident to the police after the male party failed to fulfill his promises, believing she had been deceived); or asserting that there was no infidelity (e.g., an extramarital affair was discovered by a boyfriend or family members, and the report was filed to demonstrate “innocence”).
Fifth, common pitfalls in evidence review: Be wary of the trap of combining evidence; the mere presence of combined evidence does not automatically imply guilt. For example, objective evidence (injuries) + objective evidence (DNA) ≠ rape; such injuries can also result from consensual sexual activity. Another example: the victim’s statement + a recording of a post-incident phone call with the defendant provided by the victim ≠ rape (where, after being advised by others, the victim made the recording under enticement or threats to bolster the evidence for the accusation, and the defendant, wishing to avoid trouble and resolve the dispute quickly, expressed compliance that did not reflect the facts).
Based on the above five dimensions, Attorney Ma Lixi also summarized eight key defense strategies: Emphasize “comprehensive” review; seek breakthroughs in “details”; prioritize “objective” evidence; challenge “subjective” statements; focus on “core” facts (identifying evidence added merely to “pad” the case); analyze the effectiveness of “supplementary investigation” (the content listed in the supplementary investigation outline, as well as the police’s efforts to supplement and strengthen evidence, which affects the integrity of the chain of evidence); guard against “coerced” evidence collection; and exercise caution in “reconciliation” negotiations. He also mentioned that rape cases involve theoretical and practical issues—such as errors in the victim’s perception, the determination of accomplices, the victim’s consent and the risk of self-incrimination, and the nature of the crime (completed versus attempted)—all of which warrant in-depth discussion and research.
Interactive Seminar
Attorney Nie Sufang, Senior Partner at Beijing King&Capital Law Firm
During the interactive session, in response to the keynote speaker’s presentation, Attorney Nie Sufang drew on her practical experience to engage in an in-depth discussion with the audience regarding the presentation of video evidence in court. She pointed out that if the video material constitutes evidence for the defense, the defense’s presentation of it in court constitutes the exercise of the right to present evidence—a component of the right to a defense—and is an integral part of the trial itself; it may be submitted to the court as evidence and, in principle, does not require a separate application to the court; If the video evidence is presented by the prosecution, it should likewise be shown in court and subjected to cross-examination by the defense; otherwise, it should not be used as the basis for a verdict. She emphasized that in rape cases, if video evidence involves the victim’s privacy or other circumstances that make public playback in court inappropriate, the evidence should still be presented and cross-examined in a closed session, rather than being barred from presentation or directly admitted without cross-examination on the grounds of privacy concerns. She explained that in practice, there are indeed instances where the court does not permit the video to be played. Lawyers should be prepared for both scenarios: even if the video is not ultimately played directly, they must use appropriate methods to fully present the issues depicted in the video to the court, ensuring that the panel of judges has a comprehensive understanding of the evidence. Attorney Nie Sufang also shared her own case experience on this matter.
Attorney Zhao Dexuan, Beijing King&Capital Law Firm
Zhao Dexuan, an attorney at our firm, posed a question regarding the distinction between false accusations and mistaken accusations: If a defense attorney successfully secures an acquittal for a defendant in a rape case, can the victim be held legally liable for making a false accusation? Attorney Zang Desheng responded that the fact that the defendant was ultimately found not guilty does not necessarily mean the victim made a false accusation. He noted that in practice, many acquittals result from unclear facts or insufficient evidence; the court’s failure to find the defendant guilty does not necessarily mean the victim’s statement is false. Unless there is objective evidence proving that the victim intentionally fabricated facts to make a false accusation, it is not appropriate to hold the victim legally liable.
Attorney Chen Peixiang
Attorney Chen Peixiang from a law firm outside the courtroom asked about a case involving a stepfather in a remarried family suspected of raping his stepdaughter: The only existing evidence consists of the victim’s statement and the suspect’s confession. The suspect admits to having sexual relations but claims it was consensual. Is it possible to secure a conviction? Attorney Zang Desheng responded that when both parties confirm sexual intercourse occurred, the dispute centers on whether it was consensual. The credibility of the victim’s statement depends on whether it is corroborated by other evidence, including whether the description of the scene is consistent with common sense and whether the statements of the two victims are generally consistent. It cannot be simply concluded that a conviction is absolutely impossible based solely on the victim’s statement; a comprehensive assessment must be made by considering the scene, context, and sequence of events. However, as the case transcripts have not been reviewed, further analysis is not possible at this time.
Conclusion
The “Criminal Case Debate Forum” series is a special initiative established by the Third Criminal Law Department of King&Capital Law Firm to strengthen internal communication, enhance attorneys’ practical criminal defense skills, and boost the firm’s reputation in criminal defense. It aims to promote exchange and cooperation among King&Capital’s main office and branch offices, between in-house and external experts and scholars, and among the firm’s internal departments. This installment of the series focuses on new issues arising in practice regarding the traditional offense of rape, conducting an in-depth discussion from the dual perspectives of intoxication-related and violent cases, thereby providing valuable insights for criminal defense practice. Each installment features presentations and discussions by professionals; we welcome everyone to continue following the series and actively participate.
