Lawyer

"Defendant, did you hear clearly the indictment read out by the public prosecutor just now? What crime is charged against you? Do you have any objection to the criminal facts charged in the indictment?" the judge asked, looking at the defendant.

"There is an objection. My wife and I are doing business. 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 interrogate the defendant on the criminal facts charged in the indictment." The judge said.

"Defendant Du Xiaosheng, why did you go to the victim's house on the day of the incident?" the prosecutor looked at the dock routinely and asked.

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

"Why did the victim Deng Qiongying go back to her mother's house and not live with you at home?" the prosecutor asked.

"We had a quarrel before, and she went back to her mother's house as soon as she got angry." Du Xiaosheng muttered.

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

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

"How far was your relationship before the incident?" the prosecutor continued to ask with a cold face.

"After she returned to her mother's house, she called me to say she wanted a divorce, but the bride price was not settled, so she kept procrastinating." Du Xiaosheng glanced at the inspector and said.

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

"I persuaded her to go home, and my father-in-law also told us to go home. But she refused, and then she went to the kang and took off her clothes to sleep. I told my father-in-law to stay at home at night, and after closing the door, I also went to the kang... ..." Du Xiaosheng lowered his head and said.

"What happened later? Did the victim agree with you to stay?" the prosecutor asked.

"When she saw me on the kang, she sat up and put on her clothes. She wanted to get off the ground, but I didn't let her go, so I pushed her onto the kang, and then..." Du Xiaosheng told the incident that he couldn't remember how many times, and then said again.

"That is to say, from the beginning to the end, the victim did not agree to have sex with you. In order not to let you succeed, he even stabbed you with scissors, right?" the inspector asked coldly.

Maybe it's because she is also a woman. When she asked this question, there was a hint of anger and coldness in her language.It made people feel an inexplicable chill.

"...Yes." Du Xiaosheng nodded.

"Judge, the public prosecutor has finished questioning." The female prosecutor said to the judge.

"The defendant's defender may question the defendant." After a while, 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 old father-in-law didn't say anything, and my old mother-in-law didn't come out of the house." Du Xiaosheng thought for a while and said.

"When you proposed to stay at the old man's house, how did your old man's family react?" Fang Yi continued to ask.

"My father-in-law didn't object, nor did he agree. He advised my daughter-in-law to go home and go to sleep, probably because he was afraid that we would quarrel again and be laughed at by the neighbors." Du Xiaosheng scratched his head and said.

"How did your father-in-law react when you stepped into the kang? How did the victim, Deng Qiongying, react?" Fang Yi then asked.

"When I inserted the door, my father-in-law left the house, which meant that I stayed by default. My daughter-in-law didn't say anything, and got up and got dressed to go out. I understood that she didn't want to sleep with me, and then I put her in the bed. On the kang..." Du Xiaosheng said and lowered his head.

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

"No, I haven't received a summons from the court. I haven't heard that she wants to sue me for divorce." Du Xiaosheng looked up at Fang Yi.

……

"The facts of this case have been investigated clearly, the court investigation is over, and now the court debate is starting. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts. The public 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 divorce agreement between the defendant and the victim, the defendant used coercive means to have sexual relations with Deng Qiongying against the will of the woman, which constituted the crime of rape. We recommend that the defendant be sentenced to three years in prison. It's over." The female prosecutor said confidently.

……

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

"Judge: The defender believes that although the defendant Du Xiaosheng's behavior violated the will of the victim in this case, in view of the fact that the two parties are husband and wife, although the relationship between the two parties is not harmonious, it has not developed to the point of divorce, so the defendant's behavior does not constitute the crime of rape. The reasons are as follows:
[-]. 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 had filed a divorce with the defendant, he did not file a divorce lawsuit with the people's court, nor did he file a divorce with the marriage registration authority.

Therefore, up to now, the defendant and the victim are still in a husband and wife relationship, and the promise of intercourse between the two parties is still valid.Therefore, Du Xiaosheng's behavior does not constitute the crime of rape.

[-]. The defendant's behavior does not fall within the meaning of the "Criminal Law" against women's will.

The crime of rape stipulated in Article 230 of the "Criminal Law" refers to the act of forcibly having a relationship with a woman against her will by violence, coercion, or other means.In the general crime of rape, whether it violates the will of women is a necessary legal element for constituting the crime of rape.

During the continuation of the husband-wife relationship, when a husband and his wife have sexual relations, they may not always have the consent of the wife, which is fundamentally different from rape, which constitutes a crime of rape.

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

Cohabitation and sexual intercourse are the basic content of rights and obligations between husband and wife, and are legal commitments to X life.Therefore, there is no husband's violation of the rights and freedoms of wife X between legal husband and wife.

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

If there is no legal marriage relationship between the defendant and the victim in this case, or the divorce proceedings have been entered, the marriage relationship is in an uncertain state.In this case, if the defendant violates the will of the victim and uses violent means to forcibly have a relationship with him, it may constitute the crime of rape.

But so far, the marital relationship between the defendant and the victim has continued to exist stably. Although the two parties have a bad relationship and have discussed divorce matters, based on the evidence of the whole case, the divorce intention of the two parties is not so strong.The families of both parties also held a negative attitude towards the divorce of the two parties.

During the period when the victim returned to her natal home in a fit of anger, the defendant (husband) disregarded the objection of the victim (wife) and even resorted to violence to forcefully have sex with her. This was not a violation of the woman’s will in the sense of the Criminal Law, and thus could not constitute the crime of rape.complete! "Fang Yi said.

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