At about 9 o'clock in 20201October 27th1/kloc-0, the defendant Zhao organized a drinking dinner for members of the school music club. At about 10: 30 that night, Zhao couldn't resist because of drunkenness and took him to the sofa in the next room to have sex. After the incident, Zhao was immediately arrested and sentenced to three years' imprisonment with suspended sentence by the court.
Rape refers to the crime of violating women's sexual freedom and forcing the victim to have sexual relations by means of violence, threats and injuries against the will of the victim. Zhao took advantage of Yan's drunkenness and inability to resist and forced sexual relations on the sofa against his will, which constituted the crime of rape and should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
In this case, Zhao was sentenced to three years in prison and suspended for four years. Netizens have been discussing whether the sentence is too light. Is probation reasonable?
The author thinks:
1. Zhao has a frank plot and can be given a lighter punishment according to law. Zhao Moumou is a passive case. Although he can truthfully confess the facts of the crime after arriving at the case, it still does not constitute surrender, but it belongs to surrender. As the saying goes, "Be lenient in confession and strict in resistance". The "leniency" here means that although the criminal suspect does not have the plot of surrender, he can truthfully confess his crimes and be given a lighter punishment; By truthfully confessing one's crimes, particularly serious consequences are avoided and the punishment can be mitigated. Generally speaking, if the crime that has not been mastered by the judicial organs and the crime that has been mastered or determined by the judicial organs belong to the same crime, the benchmark punishment can be reduced by less than 20%; If the judicial organ truthfully confesses that it has mastered the crime and it is really helpful to solve the case, the benchmark penalty can be reduced below 10%.
Second, Zhao moumou voluntarily pleaded guilty and repented, which can be handled lightly according to law. "Pleading guilty" means that Zhao voluntarily and truthfully confessed his crimes and had no objection to the criminal facts accused by the procuratorate; "Confessing guilt and admitting punishment" means sincerely repenting, willing to accept punishment, and willing to accept punishment at the investigation stage; In the stage of examination and prosecution, accept the decision of prosecution or non-prosecution made by the procuratorate, recognize the sentencing suggestions of the people's procuratorate, and sign a confession and repentance; At the trial stage, the court confirmed that he voluntarily signed the written statement and was willing to accept the punishment. "Leniency" means that Zhao's leniency is greater than confession, and Zhao has a confession plot, which should be given a relatively large leniency within the scope of legal punishment. Confession and punishment, surrender and confession do not repeat.
Third, Zhao Moumou actively compensated the victim for economic losses and obtained an understanding. Considering the nature of the crime, the amount of compensation, the ability of compensation and the degree of confession and repentance, the benchmark punishment can be reduced by less than 40%.
Fourth, Zhao is eligible for probation. First of all, considering the circumstances of sentencing, Zhao was sentenced to three years in prison according to law. At the same time, the circumstances of the crime are minor, there is repentance, there is no danger of recidivism, and the announcement of probation has no significant adverse effects on the community where he lives. Therefore, a suspended sentence can be declared.
Generally speaking, in a rape case, if there is an attempted crime, criminal suspension, surrender, surrender, accomplice, or a special relationship (such as lover relationship) before the crime, and at the same time actively compensate the victim and obtain the victim's understanding, the suspension can be declared.