现代西方国家性犯罪立法的特点与趋向--关于完善我国当前性犯罪立法的一点思考

受女权运动和性革命的影响,现代西方国家性犯罪立法正经历着重要的变革,从而在性犯罪的定位、性犯罪的主体和犯罪对象、"性交"的内涵、犯罪处理机制等方面呈现出新的特点,同时通奸为罪的传统日益弱化,乱伦有罪传统获得保留,对未成年人的权利保护正在加强.面对我国当前性立法落后的现实,我们必须立足中国实际,借鉴西方立法经验,全面完善我国的性犯罪立法.     

强奸罪立法的反思与重构

传统的强奸罪只将犯罪对象限定为女性,由于时代的不断发展,在强奸犯罪的领域出现了女性强奸等各种不同的新情况,而我国强奸罪的现行立法面对这些新情况则没有回应。本文通过对强奸罪的女性主体、男性犯罪对象、婚内强奸以及强奸罪的"自诉"化等问题进行探讨,指出:女性可以成为强奸罪的主体;强奸罪的犯罪对象也可以是男性;对未成年人应特别保护;强奸罪的一些情况可以纳入"自诉"案件的范围。     

论我国强奸罪的立法完善

现代社会中,同性强奸,女性强奸男性等强奸行为已越来越多的呈现出来,强奸主体的增加,强奸行为的多样化,使我国现行刑法有关强奸罪的规定已不能适应形势的发展。本文通过对国内外的立法比较,分析我国强奸罪的立法缺陷,提出了完善我国强奸罪的立法建议。     

强奸创伤综合症专家证据在美国刑事司法中的引入及其启示

美国通过在刑事司法中引入强奸创伤综合症专家证据并将其适用范围限定为“教育和矫正目的”,来消除偏见和误解对强奸案的影响,保证裁判的客观公正性,我国从中可以获得两点启示:一是应该在刑事司法中引入强奸创伤综合症专家证据,二是应该将该证据的适用范围限定为“教育和矫正目的”.     

婚内强奸出入罪问题探究

在现实生活中,"婚内强奸"作为一个事实状态是普遍而客观地存在着的。它对妻子的身心健康均造成了巨大的伤害,破坏了家庭的和谐,其本质即是强奸行为。现在中国女性已经意识到婚内强奸的事实存在状态,在我国将婚内强奸入罪已具有可行性。本文将结合我国国情、借鉴域外立法情况,提出我国相关立法构建。     

强奸罪之我见

强奸罪,是一种传统犯罪,是一种侵犯公民人身权利的暴力性犯罪。目前,在我国刑事法律中占据重要地位。刑法理论层面和实务层面在强奸罪具体认定上存在很大争议,甚至在不同地方法院之间出现了相反判决,损害了社会主义法制统一性和权威性。本文通过对"妇女"之称呼不确切,"先强奸后和奸"等问题进行探讨,为我国强奸罪后立法完善提出立法建议。     

性犯罪关联分析——以杨某、张某性犯罪案为视角

我国《刑法》为了保护女性的性自主决定权,维护社会管理秩序,规定了诸如强奸、组织强迫卖淫、聚众淫乱等多个罪名.但司法实践中往往存在诸多案情重大、复杂的性犯罪案件,为了厘清性犯罪各罪名间的区别,有效打击与惩治犯罪,本文以杨某、张某性犯罪案为视角,对性犯罪众罪名进行了关联分析,以期对实践有所裨益.     

关于同性性犯罪之思考

同性恋在被社会所慢慢接受的同时,其所引发的同性性犯罪也因此揭开了神秘的面纱,相应的法律问题也渐渐成为刑法学、犯罪学、婚姻法学等学科中的热点问题。由于我国社会传统文化的影响和相关法律制度的有待完善,同性性犯罪中受害者的权利难以得到有效保障,我国在同性性犯罪的刑事立法方面存在的空白问题,需要通过修改立法来解决。因此,有必要加大对同性性犯罪的法律控制,加强对同性恋群体权利的研究和保护。本文以案例作引,从对同性恋的探讨切入,对同性性犯罪及相关案例加以思考。     

性别语境中的强奸：女性主义社会学对性犯罪的解释

女性主义社会学用性别的视角审视性犯罪，对强奸犯罪的性质、原因和处遇提出了独到的解释。从历史上看，强奸的属性经历了财产侵犯、人身攻击和人格贬低的演变。强奸在很大程度上是社会建构的产物，社会文化中包含着制造强奸倾向的因素、削弱强奸内在抑制与社会抑制的因素、削弱受害者避兑被害能力的因素，从犯罪人与被害人两方面促进了强奸的发生。作为一种社会机制，强奸是男性主义社会用以控制女性的手段。从犯罪学的观点看，女性主义社会学关于强奸的理论存在局限性，但亦有重要的启发价值。     

无精斑证据性犯罪案件其他物证DNA检验(附6例报告)

在性犯罪中最有效的取得证据的手段之一是对现场遗留的精斑及混合斑进行检验.但由于种种因素的影响,在实际检案中有许多性犯罪精斑检验为阴性,不能为性犯罪提供有力证据.笔者在性犯罪案件中注意提取与性犯罪有关的其他物证(如血迹、唾液斑、阴毛等),通过作DNA检验,为案件侦破提供了重要证据.现报告如下: 一、材料 自我室自1997年1月～1999年12月受理的PCR检验强奸案件6例,检材为血痕、唾液斑、阴道斑、组织块、带毛囊阴毛等.     

Rape reform in Canada: Public knowledge and opinion

Rape reform legislation in Canada was designed to change: 1) the way sexual assault cases were processed by the criminal justice system and 2) public opinion about crimes of sexual aggression. This article reports findings from a representative survey of the Canadian public and an experimental analysis of the effects of the legislation on public knowledge and attitudes. Results from the nation-wide survey indicated that most people are unaware of the semantic shift (from the old language of rape and indecent assault to the new crimes of sexual assault). However, there is awareness of the substantive legal changes introduced by the rape reform legislation (such as the fact that husbands are no longer immune from criminal changes involving their wives). It is clear that rape reform legislation has affected public knowledge of statutory reforms regarding crimes of sexual aggression. Results from the experimental component of this research show that the new sexual assault label has not achieved one of the important goals, namely of changing public perceptions of the nature of crimes of sexual aggression. Indeed, one negative effect predicted by feminist writers seems to have emerged: sentencing decisions made by the public for the offense of rape were less severe when the incident was described as a sexual assault.     

Can a Woman Rape a Man and Why Does It Matter?

Under current UK legislation, only a man can commit rape. This paper argues that this is an unjustified double standard that reinforces problematic gendered stereotypes about male and female sexuality. I first reject three potential justifications for making penile penetration a condition of rape: (1) it is physically impossible for a woman to rape a man; (2) it is a more serious offence to forcibly penetrate someone than to force them to penetrate you; (3) rape is a gendered crime. I argue that, as these justifications fail, a woman having sex with a man without his consent ought to be considered rape. I then explain some further reasons that this matters. I argue that, not only is it unjust, it is also both a cause and a consequence of harmful stereotypes and prejudices about male and female sexuality: (1) men are ‘always up for sex’; (2) women’s sexual purity is more important than men’s; (3) sex is something men do to women. Therefore, I suggest that, if rape law were made gender neutral, these stereotypes would be undermined and this might make some (albeit small) difference to the problematic ways that sexual relations are sometimes viewed between men and women more generally.     

Women's and men's fear of gang crimes: Sexual and nonsexual assault as perceptually contemporaneous offenses

Perceptually contemporaneous offenses are crimes that are coupled in people's minds when they express fear. Previous studies have shown that fear of rape predicts women's fears of other crimes. This study examined the differential effects of sexual and nonsexual assault as offenses that may be coupled with specific gang crimes. For both women and men, once physical harm is accounted for by controlling for fear of nonsexual assault, fear of rape explains much less variance than it does when it was included alone. We argue that fear of physical harm, not the sexual intrusion in rape, has the strongest effect on fear for both women and men.     

Gender ‘Hostility’, Rape,and the Hate Crime Paradigm

This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels (both conceptual and evidential) between gender‐motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that where there is clear evidence of gender hostility during the commission of an offence, a defendant should be pursued in law additionally as a hate crime offender. In particular it is argued that by focusing on the hate‐motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.     

Reforming rape laws

Almost all legislative evaluations and impact analyses in the area of rape reform have involved the U.S. This article examines the effects of rape reform legislation introduced in Canada in 1983. In that year the offenses of rape and indecent assault were replaced with three new offenses of sexual assault. As in other jurisdictions in the U.S., the Canadian reforms were designed to achieve several aims. These included increasing the number of victims reporting to the police, reducing the proportion of reports classified by the police as unfounded, and increasing the number of cases in which a charge is laid. This article presents a time-series analysis of reports of crimes of sexual aggression over a 10-year period around passage of the reform legislation. The results indicate that there was a significant increase in the number of reports of these crimes concurrent with the passage of the legislation. Moreover, the increase in sexual assault reports exceeds by a significant margin the increase in reports made of other personal injury offenses (e.g., assault). However, the legislation has had no discernible effect upon the immediate criminal justice response to reports of sexual aggression: Neither the percentage of reports classified as founded, nor the percentage of reported incidents resulting in the laying of a charge has changed.The authors would like to gratefully acknowledge the comments made upon an earlier draft of this article by Ed Renner, the editor of the journal, and an anonymous reviewer. This research was supported by the Department of Justice Canada; the authors thank the Department for permission to publish these data. Finally we would like to thank the Canadian Centre for Justice Statistics for providing the data.     

The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today

This article discusses aspects of the origin and development of jurisprudence relating to the prosecution of sexual and gender-based violence (SGBV) in the context of international criminal law. It examines a selection of archival material from the United Nations War Crimes Commission (UNWCC) and other bodies connected to it, noting that the UNWCC was the first multinational criminal law organization to explicitly endorse SGBV crimes as international crimes. UNWCC-supported trials in both Europe and Asia suggest that rape committed in the context of armed conflict or situations of mass violence was punishable as a serious crime nearly 70 years ago. Moreover, many of the theories of liability used by contemporary tribunals today were used in the UNWCC-supported cases. The authors maintain that the UNWCC archives are not only valuable for tribunals prosecuting conflict-related SGBV cases today, but the jurisprudence emerging from UNWCC-supported cases may also be quite relevant to contemporary policy debates.     

Perpetuating myths of women as false complainants in rape cases in India: culture V. The law

ABSTRACT

Despite public outrage over our global “rape culture,” sexual offences continue to be characterised by low levels of reporting, prosecution, and conviction in many countries. Attrition rates for sexual assault internationally, although varying in pattern, are consistently high. As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW), the Indian Government acknowledges the need to afford better protection to victims of gender violence. Assessing the effect of rape law reform in India, using crime statistics and a survey of recent judgments from the Delhi District Courts, the author argues that the legislature has failed systematically to address the many injustices experienced by women who allege rape. The Indian Parliament responding to the moral panic generated by the Delhi gang rape case with knee-jerk reforms, focused mainly on increasing penalties, maintaining an outmoded view of rape as a crime against morality rather than as a violation of gender rights and human rights. By closely investigating the sociocultural context in which sexual crimes against women occur in India, the author reveals that India’s “cultural” arguments for rejecting further reform (such as repeal of the marital rape immunity) are merely entrenched gender biases, bearing strong parallels to nineteenth century English common law perceptions of women who allege rape as a class of false complainants.     

PROTECTION OF MALE SEXUAL RIGHTS IN THE CRIME OF RAPE

Crimes relevant to sexual offence in the current Criminal Law of the PRC, such as the crime of rape, the crime of forcible molestation and humiliation of women, the crime of indecency with a child, establish a relatively close net for protecting female sexual rights. However, the protection of male sexual rights is surprisingly neglected or disregarded. In current China, sexual offences against males （including sexual offence against a male by male and sexual offence against a male by female） are getting worse. Unfortunately, male victims of sexual offences cannot seek for legal remedy due to the lack of legal provisions. In theory, the Criminal Law needs to bring in the protection of male sexual rights. This thesis will focus on the issue relevant to sexual offences against males on the crime of rape. The authors will present increasing evidence of sexual offences against males and explore the reasons. We will analyze the necessity of amending the provisions of the crime of rape based on theoretical and practical research, and learn from the advantages of legislations of different times and places in China and other countries. We will conclude with suggestions for amending the current Criminal Law about the crime of rape in order to fill up the gap in legal protection of male sexual rights in China.     

Predicting symmetry in female/male crime rates

This paper examines changes in female criminality. Data were obtained from 1943 through 1998 on six index crimes: murder, robbery, assault, burglary, auto theft, and larceny. Rape and arson are not included because rape is almost exclusively a male crime, while statistics for arson have not been consistent for the period studied. A review of the literature on female crime is presented. Percentage differences between males and females were obtained for specific crimes for each year. A regression line was computed for this difference by year. Each line is characterized by R², as a measure of confidence in future predictions and “b” levels to determine slope, and the expected year in which male and female crime will achieve equality if current trends continue. The authors also suggest using the year generated as an index on which to compare growth or decline of female crime.     

The role of the new "date rape drugs" in attributions about date rape

This study investigates the effect of voluntary and involuntary drug use on attributions about sexual assault. The sample was composed of 280 randomly selected male and female undergraduate students. The type of drug used (GHB, alcohol, or none) and the voluntariness of the administration were varied in an unambiguous date rape scenario. Participants viewed sexual assault facilitated by alcohol or drugs similarly to sexual assault without drug or alcohol involvement, assigning the highest levels of responsibility and blame to the perpetrator and the lowest levels of both to the victim in these situations. In contrast, women's voluntary consumption of drugs prior to a sexual assault reduced perpetrator responsibility and blame and increased blame to the victim compared to other situations (except in some cases, voluntary drunkenness). These findings extend the limited research on date rape drugs and previous work on the influence of alcohol on date rape attributions.