Lawyer's character

"Defendant, did you hear clearly the indictment just read out by the prosecutor? What crime are you accused of? Do you have any objection to the criminal facts accused of you in the indictment?" The judge looked at the defendant and asked.

"If you have any objections, I am doing business with my wife, and it is not illegal. Although our relationship is not good, we are not divorced. The marriage certificate was issued by the Civil Affairs Bureau. We are a legal couple, and it is legal for us to do business..." Du Xiaosheng tried his best to defend himself.

"The public prosecutor can question the defendant about the criminal facts alleged in the indictment," the judge said.

"Defendant Du Xiaosheng, why did you go to the victim's home on the day of the crime?" The prosecutor looked at the defendant's bed and asked in a routine manner.

"I went to find my daughter-in-law Deng Qiongying and persuade her to go home," Du Xiaosheng said.

"Why did the victim Deng Qiongying return to her parents' home instead of living with you at home?" the prosecutor asked.

"We had a fight before, and she went back to her parents' house when she was angry." Du Xiaosheng muttered.

"What is your relationship with the victim Deng Qiongying?" the prosecutor asked.

"It's not very good. We often quarrel." Du Xiaosheng said.

"What was the extent of your relationship before the crime?" the prosecutor continued to ask with a cold face.

"After she returned to her parents' home, she called me and said she wanted a divorce, but she didn't agree on the bride price, so she kept putting it off." Du Xiaosheng glanced at the prosecutor and said.

"On the day of the incident, when you went to the victim's home, what was the reaction of the victim Deng Qiongying?" the prosecutor asked.

"I advised her to go home, and my father-in-law also said that we should go home. But she refused, and then she got on the kang and took off her clothes to sleep. I told my father-in-law to stay at home that night, and after closing the door, I also got on the kang... ..." Du Xiaosheng said with his head lowered.

"What happened next? Did the victim agree to your stay?" the prosecutor asked.

"When she saw me getting on the kang, she sat up and got dressed, and wanted to get off the ground. I wouldn't let her go, so I pushed her onto the kang, and then..." Du Xiaosheng told the story of the incident so many times that he couldn't remember, and then said Again.

"That is to say, from the beginning to the end, the victim never agreed to have sex with you. In order to prevent you from succeeding, he even stabbed you with scissors, right?" the prosecutor asked coldly.

Perhaps it was because she was also a woman. When she asked this question, there was obviously a hint of anger and a hint of coldness in her words. It makes people feel an inexplicable chill.

"...Yes." Du Xiaosheng nodded.

"Judge, the prosecutor has finished asking questions." The female prosecutor said to the judge.

"The defendant's defender can ask questions to the defendant." After a moment, the judge said.

"Defendant, when you went to the victim's house, what was his attitude towards you? I mean your father-in-law's family." Fang Yi asked.

"When I went there, my father-in-law didn't say anything, and my mother-in-law was in the house and didn't come out." Du Xiaosheng thought for a while and said.

"When you proposed staying at my father-in-law's house, how did your father-in-law's family react?" Fang Yi continued to ask.

"My father-in-law did not object or agree. He advised my wife to go home and sleep. Maybe he was afraid that we would quarrel again and be laughed at by the neighbors." Du Xiaosheng scratched his head and said.

"You opened the door and got on the bed. How did your father-in-law react? What was the reaction of the victim Deng Qiongying?" Fang Yi then asked.

"When I opened the door, my father-in-law had left the house, which meant that I was staying. My wife didn't say anything. She got up and got dressed to go out. I understood that she didn't want to sleep with me, so I held her down. On the kang..." Du Xiaosheng said and lowered his head.

"So far, has Deng Qiongying asked you for divorce again? Has she filed for divorce in court?" Fang Yi asked.

"No, I didn't receive a summons from the court. I didn't hear that she was going to sue me for divorce." Du Xiaosheng raised his head and looked at Fang Yi.

…

"The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate begins. The court debate mainly focuses on disputed facts that have not been certified by the court and how the law should be applied based on the facts. The prosecutor will speak first," the judge said.

"Judge: ...we believe that the relationship between the defendant Du Xiaosheng and the victim Deng Qiongying broke down. During the period of divorce agreement with the victim, the defendant used coercive means to force sexual relations with Deng Qiongying against the woman's will, which constitutes the crime of rape. We recommend that the defendant be sentenced to three years in prison. Over." The female prosecutor said confidently.

…

"The defendant's defender expressed his defense opinion." The judge looked at Fang Yi.

"Judge: The defender believes that in this case, although the defendant Du Xiaosheng's behavior went against the victim's will, given that the relationship between the two parties was husband and wife, although the relationship between the two parties was not harmonious, it did not develop to the extent that divorce was necessary. Therefore, the defendant's behavior It does not constitute the crime of rape. The reasons are as follows:

1. The marriage relationship between the defendant and the victim is legal and valid

In this case, the marriage relationship between the defendant Du Xiaosheng and the victim Deng Qiongying has always been legal and valid.

Before the incident, although the victim filed for divorce from the defendant, he did not file a divorce lawsuit with the People's Court, nor did he file for divorce with the marriage registration authority.

Therefore, as of now, the defendant and the victim are still husband and wife, and their commitment to sexual intercourse is still valid. Therefore, Du Xiaosheng's behavior does not constitute rape.

2. The defendant’s behavior is not against a woman’s will within the meaning of the Criminal Law.

The crime of rape stipulated in Article 236 of the Criminal Law refers to the act of forcibly having sex with a woman against her will by violence, coercion, or other means. In the general crime of rape, whether the woman has violated her will is an essential legal requirement for the crime of rape.

During the relationship between husband and wife, when a husband has sexual relations with his wife, he may not always obtain her consent. This is essentially different from the crime of rape, which involves forcibly having sexual intercourse against a woman's will.

According to the provisions of the Marriage Law, a specific personal relationship between husband and wife arises from the day a man and a woman register with the civil affairs department in accordance with the law and obtain a marriage certificate.

Cohabitation and sexual intercourse are the basic contents of the rights and obligations between husband and wife, and are the legal commitment to X's life. Therefore, between a legal couple, there is no violation of the wife’s X rights and freedoms by the husband.

In other words, even if the wife cheats with a third party voluntarily, it still constitutes a violation of the legal marriage between husband and wife.

If there is no legal marriage relationship between the defendant in this case and the victim, or the divorce proceedings have already entered, the marriage relationship is in an uncertain state. In this case, if the defendant violates the victim's will and uses violent means to force her to have sex, it may constitute the crime of rape.

However, up to now, the marriage relationship between the defendant and the victim has continued to exist stably. Although the two parties were not in harmony and had discussed divorce, based on the evidence in the entire case, the willingness of both parties to divorce was not that strong. Both families also hold a negative attitude toward the divorce.

When the victim in this case was angry and returned to her parents' home, the defendant (husband) ignored the objection of the victim (wife) and even used violence to have sex with her. This does not constitute violation of the woman's will within the meaning of the Criminal Law, and it cannot constitute the crime of rape. complete! "Fang Yi said.

…