This case is ready to "find the argument point" this book to write, because the cause of the words not included in this case, choose the original intention is: the thinking of lawyer for legal aid cases.

 

Tasted the forbidden fruit, forced or voluntary

-- Yuan Zhentao rape case

Slapstick in play, a boy aged 17 to 18 years old girl next door knocked down on the Kang, should not have happened. Rape? Or two children bewildered consensual sex? I accept the specified to provide legal aid to the boy, I am not willing to a child of 17 years old and must back the rapist charges through life

The Defense Report

"Thunder village"

A village of M city in Liaoning Province, yuan family already live 3 00 years here, hence the name "Yuan Jia cun". The villagers in the village most of the surname yuan, almost every touch point or relatives. The village is not big, but not angry. The village canteen, people buy things in a continuous line, business is very good.

The canteen is yuan Xia home open. There are 3 people in her family, the parents usually do some small business to make money home, life is not rich, but also need not. Yuan Xia, who was 18 years old. As the saying goes, "big eighteen change, become more and more beautiful," the girl is lively, very much like, living in the parents favor, very moist.

However, the weather is unpredictable. In 2007, one thing happened, completely changed the young girl one family life.

July 13, 2007 morning, the mother to the market, Yuan Xia alone in the shop after shop, about ten o'clock, the next door neighbor Yuan Zhentao to buy cigarettes. At just 17 years old, Yuan Zhentao, and Yuan Xia or clan, two people age although similar, but on the rank, the name Yuan Zhentao Yuan Xia three gu. On weekdays, Yuan Zhentao often patronize the shop, as peers, he and Yuan Xia can really talk to, two people chat often play.

On the same day, see only yuan Xia at home, according to Tao Yuan more will sit, chat with yuan xia. He usually very love to look in the mirror, Yuan Xia often play jokes on him. In the yuan Xia Jia, Yuan Zhentao once again look in the mirror and comb his head. Yuan Xia joked: "you look like that, also comb what ah?" Yuan Zhentao also make fun of respond: "you say me what ah?" "Look in the mirror, also asked me, looking at you, I can imagine Beijing ape man like to." This two people in the shop crazy play together, you hit me, I return to you.

Imperceptibly, they are crazy to Kang edge, then Yuan Zhentao forced, the yuan Xia down on the brick bed, homeopathy is pressed up. For a moment, two people I have a strange feeling, so they stay for a few minutes, who also didn't move. Later, Yuan Zhentao hand in Yuan Xia who move. Gradually, two people......

Yuan Xia stood up, picked up the slippers Chao Yuan according to Tao back hit, said: "how can you do such a thing?" Yuan Zhentao this time also panic God, don't know what to do. Thought for a moment, Yuan Xia said: "you give me some money." Yuan Zhentao agreed, but have no money on me. So, Yuan Xia to paper, let Yuan Zhentao write iou. Because did not find, she tore off a piece of the cigarette paper, let Yuan Zhentao write "Qian Yuanxia 200 yuan, a month to pay off" a few words. Yuan Xia also find inkpad, called Yuan Zhentao in the above press the handprint.

Afternoon, Yuan Xia returned the mother heard the matter was furious, scold: "Yuan Zhentao break up, die, if passed, misty what married?" Scolding aside, this how to do?

Yuan Jia Cun is a very seriously clan etiquette village elders, has the very high status and prestige in the village, the villagers have generally found the elderly. In the evening, Yuan Xia parents brought yuan Xia to the elderly home. Hearing of this, the old man knows the be no trivial matter., took Yuan Zhentao one family called and called several be of noble character and high prestige of the elderly.

The elders think, this spread will seriously affect the reputation of the village. In their persuasion, Yuan Xia Jia agreed not to report. But how to solve the problem? It is suggested that two people get married, but by the elders opposed, they think, "foreign milk to a wedding" is incest. Later, Yuan Xia's mother put, Yuan Zhentao a to 15000 yuan of money to settle the matter, according to Tao Yuan a felt wrong, pressure and the elders, agreed to.

15000 yuan, to the Yuan Zhentao home is not a small number. They are without a stable source of income, and later, by Yuan Zhentao has married into other sister for help, just hit enough number. Thought it over, but, Yuan Zhentao's brother-in-law, a drunk inadvertently missed that this thing.

Bad news has wings. Soon, Sangu milk was a rape things broke. The local police station to hear this matter, soon intervened and Yuan Zhentao criminal detention.

Designated defense

Have no money, because this also borrowed a lot of money, Yuan Zhentao couldn't pay the lawyer. In view of Yuan Zhentao, not yet 18 years old, in accordance with the provisions of China's "criminal procedural law" in article thirty-fourth, if the defendant is blind, deaf mute or a minor but not entrust a defender, the people's court shall designate a lawyer who provides legal aid to defend. The case transferred for examination before prosecution, legal aid center designated me to do Yuan Zhentao's lawyer.

Do the criminal defense for so many years, I am very concerned to minors. I was a mother, for love, I always hope that through their own efforts, to those who stray children for some opportunities. But when I knew the Sangu milk and grandnephew things, the heart is very uncomfortable, I want to defend the man who had raped his Sangu milk?

However, because of the designated defense, I have no reason to refuse. I told myself, you are now faced with a patient, he is your duty to rescue. You must strain every nerve, to maximize the interests for him.

To accept the case, I immediately met with Yuan Zhentao. In the detention house, I saw a look of childish Yuan Zhentao. After the meeting, he was surprised to see my one eye, hesitated nodded, greeting, and then sat down in a chair, low head motionless. I told him, I was his lawyer, asked him to prosecute what opinions, what legal issues can be consulting. Usually, a defendant or objection to the charges, objection or to the fact that the accused, even if not all of the two objection, will find some of his own that favorable circumstances say, never say, you can also have some problems in the between the lines.

In this case, some special, Yuan Zhentao didn't do any explanation for this thing, just admit mistakes, willing to accept the government's handling of: "I was wrong, to do such a thing, I would like to accept the punishment." The performance of Yuan Zhentao, I wasn't too surprised, because he has already pleaded guilty in the record, but also with the yuan Xia process occurs on the behavior statements are basically the same, his performance also in reason. Even so, I asked about the case after the problem, hoping to find favorable circumstances from.

Meet in a detention center, with the whole afternoon. At the end of the meeting, Yuan Zhentao suddenly cried uncontrollably. It seems, the child's heart under great pressure.

Out from the guard, the street is lit. The journey home for more than two hours, I kept my mouth shut.

The car, assistant said to me: "Luo lawyer, not what to worry about, the iron one, we can only make light offence defense. Because Yuan Zhentao is a minor, pleaded guilty attitude is good, can consider for a suspended sentence processing."

Back home, is 10 at night. Zuiqing defense really is the best choice for lawyers? Sitting under the lamp, I began to carefully study the transcripts of the meeting this afternoon and material file.

From the results, the prosecutor accused Yuan Zhentao of rape, there are three main evidence and reasons for:

1, Yuan Zhentao and Yuan Xia sexual relations, the implementation of the down and behavior press hand, belong to the violence.

In 2, after sex, Yuan Xia slipper element Zhentao and said: "how can you do such a thing?" Fully illustrated yuan Xia would not, contrary to the women's will.

3, Yuan Zhentao later to Yuan Xia money, is an intention to conceal the facts of crime, evasion of legal sanction behavior

Read the materials, Yuan Zhentao and Yuan Xia confirmed that, during sex, Yuan Zhentao does have a push and press the hand behavior. Yuan Xia also had the verbal expression, after Yuan Zhentao a in order to pacify the matter also paid 15000 yuan yuan xia. Yuan Zhentao in custody, has also been guilty.

What am I gonna do? The existing evidence, assistant way, seems to be a good choice. Because rape case legal punishment is 3-10 years in prison, Yuan Zhentao is a minor, the defendant to plead guilty, then find some favorable to him the plot, is likely to win the probation to the defendant. As long as you don't go to prison, it should be said is a successful defense.

But I am not willing to, because the probation is after all a guilty verdict, a child of 17 years old and must back the rapist charges through life. I began to repeatedly study file material evidence......

The court asked

In November 22, 2007, the court hearing the case.

Throughout the trial, the prosecution and the defense on the defendant's acts of violence and whether the violation of women's will was the subject of intense debate. The public prosecutor a win situation, insisted that Yuan Zhentao which constitute the crime of rape, to judge and punish severely. At that time Yuan Zhentao still reverent and respectful to plead guilty, and describes the process of sexual behavior.

Around the court Yuan Zhentao confession, I conduct a series of questions:

"You are a sexual relationship with Yuan Xia under what circumstances?

"Yuan Xia robbed me of my comb, I want to get back, I go crazy, then I very impulse."

"At that time, how do you press the yuan Xia's hand?

"I used my left hand to press her right hand, take off her underwear with the right hand."

"What yuan Xia left hand doing?

"What also not dry."

"You take off her panties. She did not agree with?"

Agree.

"At that time, she had to make what reaction?

"At that time, she also did not say what, have been closed, I lay upon her a few minutes after that."

"Your location from the canteen?"

"Inside the house and outbuildings, just across the door."

"During this period have no one to the canteen to buy things?"

"Do not know, after Cui to buy wine."

"Cui Bo buy wine, where are you, what are you doing?"

"I and Yuan Xia in the house, she is looking for a paper that I play ious."

"Cui to buy wine, Yuan Xia told him what?"

No.

......

 

In the trial, the prosecution and the defense is mainly on the following issues were a fierce debate

First, Yuan Zhentao "push and press the hand" are acts of violence crime of rape?

Second, Yuan Xia afterwards slipper element Zhentao, and said, "how could you do such a thing", whether this can be presumed sex is against women will.

Third, how to understand the behavior of Yuan Zhentao after the money, to this presumption is Yuan Zhentao constitute crime?

 

Around the above problems, I published my defense views.

One, the crime of rape is a violation of women's will, by violence, threat or other means, forced sexual relations with women's behavior, or under the age of 14 young girls fornication behavior. Violation of women's will is the essential characteristic of rape, namely, no matter what means, as long as the violation of women's will forced sexual intercourse with women, constitute the crime of rape. Resort to violence, coercion or other means is one of the elements which constitute the crime of rape crime, but the implementation of the behavior does not necessarily constitute the crime of rape. Visible, what means does not constitute a decisive factor of rape crime. However, in view of privacy characteristics of rape itself, in general case is not known at the time of the specific circumstances, and not only with the statements of the parties conviction, therefore, the time of the environment and means is in violation of an important aspect of women's will, must link the two consideration. I think that the violation of women's will is the intrinsic characteristic of rape, external performance by violence or threat, or other means is a crime, has the intrinsic link between the two.

Specific to the case, whether Yuan Zhentao implemented in the process to have sex with Yuan Xia is the act of violence is to consider whether the violation, an important aspect of women will essential. What is the crime of rape "violence", "a house of Representatives < about current for rape cases in the specific application of the law answers to some questions," provisions, violence refers to take a beating, binding, neck, down to the harm of personal security or freedom for women, women could not resist the means, from the provisions of this law, we can draw the conclusion that the crime of rape, violence must reach the severity of women could not resist, also including women have a fear of violence based on and not against the situation.

In this case, Yuan Zhentao is knocked down and press the hands move on the yuan Xia, but this does not constitute rape requirements of violence. Because the behavior occurs when the environment, in a move that occur in both crazy in the process, is the rough behavior is normal, not in order to make the woman cannot resist the further implementation of rape and implementation. More importantly, Yuan Zhentao left En Yuanxia's right hand, and at that time, Yuan Xia left uncontrolled, therefore, Yuan Zhentao behavior does not have the purpose and nature of coercion, violence is not the meaning of the criminal law.

Objective two, the crime of rape is violence, stress and other means, in violation of women's will of the circumstances forced sexual relations with the. As for the later yuan Xia play element Zhentao slippers and said: "how can you do this kind of thing" can not prove that sex between Yuan Zhentao and Yuan Xia is the violation of women's will. Because, the crime of rape refers to the violation of women's will is a strict time limit, only to the sexual behavior of women will judge whether crime.

For the later yuan Xia slipper element Zhentao and said: "how can you do this kind of thing", first we don't talk about this behavior represents yuan Xia what attitude (coquetry, blame, not willing to, or other?) , but it certainly is a move in the post made, can only represent the post attitude, not presumed happens women will. For example, a women's behavior and have sexual relations, then the woman put an end to such an adulterous relationship, but if people resort to violence to have sex with the woman, on which constitute the crime of rape.

Three, the prosecution called meta Zhentao behavior after the money, is the default on their rape, the money to hide the fact, evasion of legal sanction. I think, this point is inconsistent with the facts, Yuan Zhentao this behavior is a moral consideration, is a kind of repentance performance, on the other hand also to prove that he is willing to assume responsibility in the subjective.

Perhaps, Yuan Zhentao's behavior should be condemned on moral law, however, is the most basic moral norms, as long as the law does not expressly prohibited acts, we cannot identify this kind of behavior is a crime. My client heart in torment, he knew he was wrong, and sincerely repent, please the collegial panel to give him a chance to start with a clean slate......

Soon, the court judgement. Court held that the defendant Yuan Zhentao, although with Yuan Xia sexual relations, but it did not resort to violence, coercion or other means; moreover, Yuan Xia was not refuse and rebel. Sui Yuanxia told his mother that day, but this can not prove that sex was yuan Xia's subjective state of mind, the prosecution organ charges against women will be. The defendant's conduct plot remarkable slight, harmless, does not constitute a crime.

The opinions of the defender, because of "legal basis", adopted by the court.

The Capriccio

Think lawyers undertake legal aid of the case

This is a legal aid cases, from me to accept assignment served as Yuan Zhentao's counsel to Yuan Zhentao was acquitted, never to see his parents and other family members. To M city by train from my office needs two hours, go through the formalities, and met with the court ran several trips to the defendant, finally calculate their own also take a lot of money.

Nevertheless, I do not will be the case with other entrusted to distinguish the case. Because, I know, accept legal aid clients are vulnerable groups of society, especially minors, they need the help of law better than anyone, the lawyer who undertakes the legal aid work is better than any time can demonstrate the fairness and justice of the law.

Why do you say that? This stems from the three parties in legal status of understanding. In criminal proceedings, the judge as a neutral referee party exists, the prosecutor and the defendant is the equivalent of litigation in the plaintiff and the defendant, but the former is present as the prosecution party, on behalf of the state prosecution proof, has established the defendant's criminal responsibility; and the latter as the accused a party there, enjoy the most basic right to defense.

 

As everyone knows, the original defendant status of balance is the most basic framework, the prosecutor and the defendant status should also realize the balance. But prosecutors as the judicial personnel, with respect to the defendant, their legal knowledge with higher scientific and cultural level, professional and a wealth of business experience, and take the national compelling force as the backing, and equipped with a device can be relatively protected, so although the law provides for the defendants have the right to defend himself, but the fact on the litigation status both difficult to achieve balance, and will not balance the litigation status directly influence the realization of fairness and justice.

In order to solve this problem, the international community has established the principle of presumption of innocence, the criminal defense system and legal aid system. The criminal defense system, the lawyer in criminal cases, a defendant's counsel, as doctors to save the patient, using the professional knowledge of law, make innocent punishment for the accused to defend, thereby flattening the gap between the litigation status of the accused and the prosecutor, realizes the balance between the three, PDJ isosceles triangle structure judicial neutrality. But the existence of such a group in reality, they are based on the economic difficulties or other reasons cannot afford an attorney, or is a minor, deaf blind, may be sentenced to death, apparently their defense ability than the average person, to achieve fairness and justice is more urgent need to provide legal help for them.

Therefore, as a group of social weak, they should get legal protection more than most people, only in this way can we achieve fairness and justice of society as a whole. Legal aid system is thus. It provides the vulnerable groups satisfying certain conditions can apply to the legal aid center, and then obtain the lawyer's help.

But in reality there are individual lawyers, because such cases without economic interests, often not actively processing. If it is because accept the assignment must undertake the case, also is more negative coping, and what is more, some lawyers should take legal aid of the case in practice, in order to achieve the purpose of the accumulation of experience in handling cases. I think this is the establishment of the legal aid system of the original intention and purpose.

I find that when Hongkong training, for legal aid cases to lawyers requirements are relatively high in Hongkong, divorce, there must be 3 years professional experience, in handling criminal cases, usually have more than 5 years of professional experience, which fully embodies the attention highly the law on the protection of human rights of vulnerable groups the. The legislation of our country though no relevant provisions on the lawyer's qualification undertakes legal aid of the case to make, but our lawyer must have a profound understanding of their responsibility, with a sincere heart for the people who most need help up a shade.