4 points on the Li Tianyi rape case: How China talks about the Li Tian Yi case.

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http://www.legaldaily.com.cn/index_article/content/2013-09/26/content_4884783.htm?node=5954

京法网微博宣判全文: http://chinalawtranslate.com/full-li-tianyi-verdict-pronouncement-from-the-beijing-courts/

 

Chinese Title: 法院判决回应李某某等人强奸案四大焦点

[Xinhua Beijing, September 26] A verdict was announced by the Beijing Haidian district Court on the morning of the 26, in the rape case of Defendant Li and others, which has been the focus of much attention from all sides; the court sentenced defendant Li to 10 years in prison, defendant Wang and the other defendants to sentences ranging from 12 to 3 years (and three year suspended sentence).

This case has been in the public's sights since it started in February of this year. The case has continued to make waves, especially since entering the judicial process. Was Li and the others' conduct rape or soliciting prostitution? Did the victim's 'identity' influence the way the case classified? What is the basis of the 5 defendants' punishments? Why wasn't the case tried publicly? The verdict on the 26 addressed each of the major points of concern to the public.

  The court holds: Li's conduct is Rape and not Solicitation of Prostitution

The court ascertained through trial that after midnight on February 17, 2017 , Defendant Li and the other defendants, together with a Mr. Li who is not party to this case, went to a private room in a Haidian district bar where they purchased and consumed alcohol, and that the bar's server, named Zhang, arranged for the victim, Ms. Yang, to join them in the private room to drink, sing, and play games. At 3:30 in the morning, Ms. Yang , accompanied by Zhang, went with Li and the others first to the Jin Dingxuan restaurant in the JinyuanShidai shopping center in Haidian district, and then to Renjishanzhuang underground parking lot in Haidian, after which Li and Zhang first left for some reason, and the others left the renjishanjuang in the Audi Q7 driven by Mr. Wei , and then Ms. Yang was taken by the 5 others to the Hubei Building where in a hotel room, defendants Li, Wang, Wei (elder brother), Zhang, Wei (younger brother) successively forced Yang to have sex.

After the incident, the families of individual defendants responded to the prosecutions charges of group rape by arguing that their conduct was solicitation of prostitution, and this resulted in the public becoming interested in the truth of the matter.

The court determined that during the investigation phase, the 5 defendants said that they saw the other defendants in the case have sex with Ms. Yang, and that some of the defendants behaved indecently. Li X's testimony also verifies that after the incident, Defendant Li told him over the phone that the 5 defendants had gang raped Ms. Yang, and this was confirmed by defendant Wei's (elder) in-court statements.

Moreover, defendant Li and the others were also exhibited violence towards Ms. Yang several times. On the way out of Renjishanzhuang, in the Hubei Building's elevator and inside the hotel room, defendants Li and Wang struck and kicked Ms. Yang. The defendants all confessed that inside the hotel room, Ms. Yang was unwilling to take off her clothes and had her clothes forcibly removed after she hid in the corner.

At trial, defendant Li said in his defense that he "went to sleep not long after entering the room, and did not have sexual relations with the victim". As to this, the court expressed that although there were no traces of Defendant Li's semen found in the victim's underpants, the confessions of the other defendants and their in-court testimony, taken together, clearly and firmly proves the fact that defendant Li was the first to have sexual relations with the victim, and that these are sufficiently mutually corroborative with defendant Li's admission of guilt in the investigation phase.

The court found that the 5 defendants' acts meet the requirements for establishing the crime of rape, and was further a group rape by two or more-persons, that shall be addressed as rape.

  Did the victim's 'identity' influence the classification of the case?

During trial, the defense pointed out that Ms. Yang went with the defendants willingly and of her own accord, and that she was of a mind to seduce the minor defendants, actively came on to them, and willingly had sexual relations. Further, during the trial period, individual defendant'' lawyers expressed on several occaisions that Ms. Yang had sent text messages to defendant Li's family 'extorting' 500,000 yuan.

Tian Canjun, the lawyer representing Ms. Yang, has previously expressed in media interviews that Ms. Yang, is a university student working part-time, and that she works sometimes to earn money, but is not a bar hostess or prostitute. "After the incident, there may have been private contacts, but there was absolutely no mention of money. " said Tian Canjun.

Several of the defendants stated that as they were aboard the car on the way out of Renjishanzhuang, Ms. Yang discovered that Zhang (the bar employee) was not there and requested to exit the car and leave, and cried out and struggled when they refused; but was held down and beaten by defendant li and the others. Security footage from the Hubei building shows defendant Li tightly grabbing Ms. Yang's right arm with his left hand, pulling Ms. Yang through the hotel lobby and into the elevator, and after leaving the elevator, Ms. Yang leans backwards unwilling to go forward and is pulled by defendant Li into the hotel room.

The court found that being a bar hostess and prostitution are qualitatively different acts, that there is not necessarily any connection the intention to be a hostess and prostitution, and that a person's identity or personal lifestyle habits are insufficient to presume a subjective mental state. In a situation where a woman is unwilling, any use of force to compel sexual relations is included in rape.

At the same time, the court found that as to whether the victim or bar personnel had contacted defendant Li's family, this is conduct after the fact that does not influence the determination of the victim's subjective wishes at the time of the incident.

  Why are the sentences of the 5 defendants different?

In the judgment, Defendants Wang, Li and the other were given distinct sentences ranging from 12 to 3 years (3 year suspended sentence) imprisonment. Why are the punishments for the same acts of rape different?

The court found that at the time of the acts, of the 5 defendants, only Wang was an adult, and the other 4 defendants ranged from 14 to 18 years old. And according to the provisions of Article 17 of the Criminal Law, persons between the ages of 14 to 18 who commit crimes shall be punished lightly or give mitigated punishments.

The court found that defendant Li was the instigator of this crime, and the primary perpetrator of violent acts, with a position and role clearly larger than that of the other defendants, and also that he showed no repentance. In light of his being a minor enrolled in school at the time of the crime, and in line with the principles of education and correction for juvenile crime, he was punished leniently in accordance with law and given a sentence of 10 years.

In the joint crime, defendant Wang's role was second only to defendant Li's, he is a principle perpetrator of the violent acts, the harm done to the victim by his violence was quite large, and the degree of his subjective malice was quite high. In light of his having reached a certain level of repentance, when considering his sentencing he was given 12 years imprisonment and deprivation of his political rights for 2 years.

As to the Wei brothers and defendant Zhang, the court found that the 3 are all enrolled students whose attitude of repentance was positive and who apologized to the the victim, Ms. Yang, either before or during trial, and had actively compensated her losses. Ms. Yang also recommended that the 3 be given mitigated punishments in accordance with law, and that the younger defendant Wei and defendant Zhang, whose subjective malice and personal dangerousness was small, get suspended sentences.

On this basis, the court sentenced Wei (elder) to 4 years in prison; Zhang was sentenced to 3 years imprisonment, and a suspended sentence for five years; and sentenced Wei (younger) to 3 years imprisonment, with a three year suspended sentence.

 Why didn't the court hold an open trial in this case?

Since the case began in February of this year their have continuously been those demanding that the departments handling it reveal the 5 defendants and the case information, and there are also those who have suspected that the defendant's coming from powerful families would influence the handling of the case, and these voices have continued unceasingly straight through to the case entering trial. Before court proceeding began in this case, defendant Li's legally-designated representative and defender even requested the court make the trial public, and were then rejected by the court.

On this, the court said that because 4 of the defendants in this case are minors not yet 18 years old, and because the case involves personal privacy, it decided to adoptclosed trial proceedings on the basis of the Criminal Procedure Law's relevant provisions, but to publicly pronounce the verdict. Reportedly, present for the September 26 announcement, in addition to the parties' families as observers, representatives from organizations for the protection of children and women were both present as observers.

After the indictment, the court repeatedly made public reports on the case developments including accepting the case, holding proceedings, and other key junctures. It also made timely responses to innaccurate reports and information through the media and the Beijing law network weibo.

The court expressed that from filing the case and review through the first-instance judgment, every link in the litigation and judicial work in this case have all been carried earnestly, rigorously, carried out in accordance with statutory procedures, ensuring every participant to the litigation's procedural rights to the greatest extent possible.

This reporter has learned that, the Haidian District Court held 2 pretrial conferences on jurisdiction, recusal, open trial, the list of witnesses being requested to appear, exclusion of illegally acquired evidence, requests to gather evidence and other such issues; and heard the opinons of both sides and organized specialists to review the case files for the lawyers and watch the full recording of video materials such as the simultaneous recordings of the interrogations.

 

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