Picture: Tim Hunter, a Chinese-language media for live broadcast outside the court case of Gao Yunxiang on April 10
Tang Lin's previous analysis of the legal issues involved in Gao Yunxiang's case received widespread repercussions. In the last article, we explain the three elements of "sexual invasion crime" in New South Wales, interpret the term "sexual intercourse" in sexual invasion in detail, and compare it with the criminal law of China.
We have already said that Gao Yunxiang is not accused of ordinary sexual invasion crimes, but is "serious sexual invasion" (Aggravated Sexual Assault) and "in partnership with serious sexual invasion" (Aggravated Sexual Assault in Company). The latter is the heaviest of a series of offences against sexual invasion, the highest term of life imprisonment, commonly referred to as life imprisonment, as was the case for three other offences involving intentional murder, rape children under the age of 10, drug trafficking up to commercial grade weight, and so on.
What's a "serious sexual assault"?
New state criminal law article 61J, "serious sexual invasion" in addition to meeting "sexual invasion three elements" (i.e.: 1. With the victim, sexual intercourse; 2. Sexual intercourse without victim's consent; 3. Defendant knew that the victim did not agree), but also to meet one of the nine "serious situations." These nine "serious situations" are (hereinafter referred to as "Nine"):
1. In or before or after the commission of sexual assault, defendant deliberately or recklessly resulted in the physical injury of the victim of sexual assault, or of persons present or nearby; 2. In or before or after the commission of sexual assault, defendant threatened the victim of sexual assault through offensive weapons or tools, or was present or nearby, and will inflict personal injury on him or her; 3. Defendant has companions. The victim was under the age of 16; 5. The victim is under the care or supervision of defendant; 6. The victim is severely disabled; 7. The victim has cognitive impairment; 8. Defendant illegally invaded the house, intended to commit sexual assault or any other serious criminal offence; 9. Defendant restricted the freedom of the victim before and after the sexual assault.
According to the case of Gao Yunxiang, whether or not the victim was injured or whether his personal freedom was restricted, it only revolved around the fact that one person (hereinafter referred to as "A") had "companions" during sexual assault, that is, that another person (hereinafter referred to as "B") was present. Regardless of whether B has also carried out sexual assault, and does not ask if B has the intention to assist in carrying out sexual assault, as long as B is present, he may have the elements of "serious sexual assault," and "serious sexual assault" is the first charge charged by Gao Yunxiang. Under section 61J of the New South Wales Penal Code, "serious sexual assault" is punishable by up to 20 years in prison.
What do you mean, "partner with serious sexual assault"?
Take a look at Gao Yunxiang's second prosecution, section 61JA of the New South Wales Criminal Code, known as "partnering with serious sexual assault." What is the difference between "partnering with serious sexual abuse" and "serious sexual assault"? To illustrate this, let's first look at the laws that are partnering with serious sexual assault:
(B) 61JA collaborates with a serious sexual invasion (1) A person who satisfies the following conditions shall be sentenced to life imprisonment: (a) for life imprisonment for having sexual behavior, with another person without the consent of another person and knowing that he or she has not consented to sexual intercourse, and; (b) is accompanied by another person or persons, and (c): (i) intentionally or recklessly inflicted physical harm on the victim or any other person present or nearby at the time of the commission of the offence or before or after the commission of the offence, Or (ii) who, at the time of the commission of the crime or before or after the commission of the crime, threatened to use offensive weapons or tools to cause actual bodily harm to the victim or to any other person present or nearby, Or (iii) deprives the victim of his personal liberty before or after the commission of the crime.
Further analysis, serious assault, in sexual assault, even if not satisfied with the other eight of the "nine", as long as the satisfaction of the presence of a partner one (i.e., item 3), there is a risk of conviction. At the same time, even if there is no companion present, that is not satisfied with the third, but only to satisfy any of the other eight of the "nine," such as the first, "physical injury," or the ninth, "restrictions on personal freedom," It may also constitute a crime of "serious sexual assault".
And the difference between serious sexual assault and serious sexual assault, must have an accomplice in the first place. Without an accomplice, the crime of sexual assault ends up being a serious sexual assault. It's not enough to have a partner, but you have to meet at least one of the following three:? Personal injury;? Personal threats;? Or restrict personal freedom,
In other words, sexual assault is carried out in the presence of a partner, but does not involve the execution of personal injury, personal threats or restrictions on personal freedom, then only committed the crime of "serious sexual assault", that is, Article 61J. But when it comes to any of the latter three cases, it is the most serious 61JA rule, "in partnership with serious sexual assault," which carries a maximum sentence of life imprisonment. This is the second charge against Gao Yunxiang.
61JA this charge, the original law rule is defendant "in the company of another person or persons," the literal translation is defendant "accompanied", the translation is very hesitant. Tang Lin's translation of "serious sexual assault together" in the exclusive article, carefully considered, or not very appropriate. At present, the translation of "partner with serious sexual abuse" is not entirely free of concern, because "collusion" has a "plan", the subjectivity of "planning" joint crime is inside, this subjectivity may not exist in the original English language, let alone the key. On the other hand, "serious sexual assault together" sounds like it takes everyone to commit sexual assault before they can be convicted. Eventually choose to use "partner with serious sexual assault", more or less with obedience to the Chinese habit of last resort. After all, Article 61 JA Aggravated Sexual Assault in Company, does not explicitly require both parties to have subjective complicity.
Is the term "partner sexual assault" the same as "gang rape"?
Now let's look at gang rape sin. According to the judicial interpretation of article 236 of the Chinese Criminal Law, "gang rape" refers to the act of rape or rape committed by more than two men against the same woman or young girl in the same criminal activity by violence, coercion or other means; From the text of the law, more than two people seem to contain two.
One is rape, provided there is an "inserted" sexual intercourse. Two is more than two people rape, each person must "insert". Therefore, the first is "round", the second is rape, indispensable.
In Australia, "Gang Rape" (gang rape) is a more widely used colloquial term in the media. "Rape", or "rape", was removed from criminal law in 1981 and replaced by the word "sexual invasion". In "sexual invasion charges in Australia from Gao Yunxiang's case," Tang Lin pointed out that the definition of "sexual intercourse" in "sexual invasion" in New South Wales is much wider than "insert". We also explained that according to the 61JAA of the New South Wales Criminal Code, Gao Yunxiang must have sexual intercourse behavior in order to constitute a crime. This is consistent with a statement released by Gao Yunxiang Studios on April 10, reiterating that Gao Yunxiang's barrister, Ian Lloyd, said in his April 10 application for bail that "prosecution lawyers must prove that both sides had one sexual behavior, to convict."
The question is whether Gao Yunxiang will be innocent enough to be acquitted if he and the victim do not have the legally recognized "sexual intercourse" (61J (1) is the necessary prerequisite for the conviction of 61JA). We assume that the answer of the vast majority of readers will be yes. After all, this is common sense. But sometimes the law goes with the common sense, sometimes not with the common sense, this does not follow the "common sense", but also with another kind of "common sense".
In 2015, there was a case in the new state, which was handed down earlier this year. The decision on the case was not made public on the Internet, and only relevant news reports could be found. In the case, three young men, sexual invasion, a drunken 16-year-old girl, were photographed by their friends and later used as evidence. But all three defendant pleaded not guilty. Two of them, defendant, who had sexual intercourse with the victim, were convicted and sentenced to 13 and 11 years, respectively. But the third defendant, who was at the scene, and the victim, sexual intercourse, was also sentenced by a judge to six years and four months in prison on charges of 61JAA, "in partnership with a serious sexual invasion."
Another 2007 case, the Internet can be found in part of the, Canan EKEN case. Defendant tried to force a 17-year-old girl to be refused oral sex, for him, so he beat her and then forced her to oral sex. For his companion In this case, defendant himself did not have any form of sexual intercourse, with the victim, but was convicted of one of the charges, and was also 61JA "in partnership with the serious sexual invasion."
These cases indicate that in the case of the gang sexual invasion, it was not necessary to prove that both sides had one sexual intercourse, or one sexual behavior, in order to constitute 61JA.
Why on earth is this? Isn't this a clear conflict with the law?
As we all know, Australia is a common law (Common Law) country, in the Common Law, there are many established principles, such as the familiar "presumption of innocence" principle. And in criminal law, there is a principle, called "Joint Criminal Enterprise", that is, "United criminal gangs." What's the basis of the joint crime? It is based on something called "Common Purpose", which is "common purpose".
When two or more people have reached a consensus on the commission of the crime, the "joint criminal group" is formed regardless of the division of labour. Such a consensus does not necessarily have to be clearly stated, and can also be inferred from the relevant facts and the situation at the time of the incident. Such a consensus could not be preconceived as long as it existed in the context of the commission of a crime. For example, the ABC three people are going to rob the bank, A is responsible for driving and waiting outside the door, B is responsible for the armed control crowd, C is responsible for the search of property, then ABC has made a robbery.
One might ask here, is that fair? The most serious thing is clearly someone else to do, why should I take responsibility? The law says: fair. Because you didn't stop it, you could be thought to be on the side of the perpetrator and would love to see it happen. For example, your partner pulled a knife robbery, you didn't do anything, just stand next to him, then you can legally think that you support the knife robber. From the victim's point of view, you are with the knife robber, and the fact that you stand there creates additional fear for the victim. If you were not there, the knife holder alone, the victim might not feel the disparity of strength, may not succumb to the money. From this point of view, you are also guilty of robbery.
This, perhaps, is another kind of "common sense".
As we all know, there is a legal difference between a principal offender and an accomplice. In common law, there is also the difference between "pre-crime accomplice" and "post-crime accomplice", such as preparing weapons, and the latter, such as selling stolen goods. However, there is no difference between the principal and accomplice in the joint criminal gang. Everyone is the principal offender, and even if he is present, he has not committed the crime itself. Back in Gao Yunxiang's case, according to the principle of "United criminal gangs", even if one of the two people did not have any sexual intercourse with the victim, it was not impossible to commit "serious sexual assault" in partnership with the victim.
To sum up, the common sense of gang rape, and Gao Yunxiang's accused 61JA of "partnering with serious sexual assault" is very different. If, in this case, the true traditional sense of gang rape occurs, both of them rape the victim, the clause used to prosecute would also be 61JA "in partnership with serious sexual assault." However, if only one of the two persons had rape the victim, they could still be prosecuted for "serious sexual assault" in partnership with 61JA. So, judging from the charges brought by the prosecution, there is a distinction between whether there is a traditional gang rape, in the room and whether there is a legal "partner in serious sexual assault".
The Gao Yunxiang case has been postponed until June 7th, and the prosecution and the prosecution should still be preparing their respective evidence. Even with the same evidence, different court performances of different lawyers may lead to different judgments. Moreover, the time-consuming but effective appeal channel can sometimes dramatically change the fate of the accused. However, the author believes that the information disclosed in the Gao Yunxiang case is that the obvious differences between Chinese culture and Western culture in terms of sexual attitudes and sexual behavior may be highly valued by the defendant's lawyers.