The effect confirmation of the consent of the victim in the sexual intercourse by deception
The effect confirmation of the consent of the victim in the sexual intercourse by deception is a knotty problem in criminal judicial practice,and has the direct bearing on the establishment of being"against the will of the victim"in the crime of rape in theory.The overall invalidity based on the paternalism of criminal law has greatly expanded the scope of punishment,while it is hard to justify itself in difficult cases for the wrong legal interest relationship theory,which takes protection law benefit as its starting point.To remedy the defects of the traditional theory,it is necessary to take the reasons of cognitive errors and the rule of the knowledge as the screening criteria at the first level,the correlation between the cognitive error and the legal interest as the judgment mechanism at the second level,and the arbitrariness of the consent at the third level,so as to establish a general judgment method.Sexual intercourse by deception can be further concretized into the types of deceiving by identity,deceiving by the nature of sexual intercourse,deceiving by expectation benefit,and deceiving by concealing venereal diseases,and can be rationally judged and demonstrated under the guidance of the revised theory centering on the error of legal interest relationship.Guided by the hierarchical criteria for judging victim consent,it can reasonably respond to the judicial determination of sexual intercourse by deception,and advance the criminal law to achieve the dual goals of protecting rights and legal interests.
sexual intercourse by deceptionthe consent of the victimtheory of mistake refer legal interestthe error of cognitionthe rule of the knowledge
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