强奸案件被害人性品格证据的有限适用

Limited Application of the Evidence of Human Character of the Victim in Rape Cases

在强奸案件中,侦控方及辩护方在证据适用方面都存在一定的困境。因为强奸案件发生的犯罪环境具有隐秘性,以及被害人与被告人之间关系可能具有隐私性,从而导致被害人与被告人之间的证据呈现一比一的特点。近几年强奸犯罪对象类型发生了变化,其中包括嫌疑人/被告人对特定身份关系人的强奸(包括对恋人、情人或者前妻的强奸),以及对特定职业女性的强奸(包括对性工作者、有偿陪侍者的强奸),这给强奸案件的证据适用造成了更大的困扰。基于查明强奸案件事实的需要,以及有效辩护、被告人获得平等审判权和对质权的需求,应在借鉴英美证据法中被害人性品格证据的基础上,确立我国强奸案件被害人性品格证据规则。然而,我国被害人性品格证据规则应当是一种有限度的、有条件的适用,这是实现被告人权利与被害人权利有机平衡的需要。

In rape cases, the prosecution and the defense are both faced with certain difficulties in the application of evidence. The secrecy of the specific circumstances involved in rape cases and the privacy of the relationship between the victim and the defendant lead to the one-to-one characteristic of the relationship between the evidence of the victim and that of the defendant. Meanwhile, the emergence of new features of rape cases in recent years, mainly involving changes in the type of object of rape crime, including the rape of a person in a specific identity relationship with the defendant(such as a lover or an ex-wife) or the rape of a person in a specific profession(such as sex worker or paid escort), has led to more troubles in the application of evidence in these cases. This change brings not only new threats to women but also a higher risk of a miscarriage of justice to the defendants or suspects in rape cases. This is because, in the above types of rape, there is a higher possibility of extortion between the victim and the defendant due to failed negotiation on the price of sex service or retaliation between a man and woman due to failed relationship. The voluntariness of the victim in rape cases is immediate or changeable. For example, the victim may give her consent to the defendant before the sexual intercourse but withdraws the consent when the sexual intercourse actually happens. In particular, there is actually a kind of half-consent behavior in rape cases. To let only the defendant bear the legal consequences in such cases is also a kind of judicial injustice, which is not in line with the purpose of criminal law evaluation. This brings great challenges to the evidence-collection by investigation organs and the judicial decision by the judges. At the same time, it also made it difficult for criminal defense lawyers to put forward effective defense opinions. Therefore, even if the “rape shield clause” has the special value of protecting women’s rights, it will lead to the risk of infringing on the defendant’s right to a fair trial, and result in miscarriages of justice by investigation and judicial organs if it is introduced into China in its strict form without exception. Therefore, China should not adopt the model of the “rape shield clause” that completely excludes exceptions. Based on the need of balancing the interests between the defendant and the victim to the greatest extent, as well as the need of ascertaining the facts in rape cases and protecting the defendant’s rights to effective defense, equal trial or confrontation in court, China should establish the rules of evidence relating to the victim’s human character on the basis of drawing on the relevant rules in the British and US evidence law and adopt a model that applies to the victim’s human character evidence only in exceptional cases, that is, a model of limited application of the “rape shield clause”.