| Notice of the Supreme People's Procuratorate on Issuing the Eleventh Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院关于印发最高人民检察院第十一批指导性案例的通知 |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| Upon decision of the 7th Session of the Thirteenth Procuratorial Committee of the Supreme People's Procuratorate on October 19, 2018, the case about Qi's rape and child molestation and other two guiding cases (Cases No. 42 to 44 of the Supreme People's Procuratorate) are hereby issued as the eleventh group of guiding cases for reference in the trial of similar cases. | | 经2018年10月19日最高人民检察院第十三届检察委员会第七次会议决定，现将齐某强奸、猥亵儿童案等三件指导性案例（检例第42－44号）作为第十一批指导性案例发布，供参照适用。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| November 9, 2018 | | 2018年11月9日 |
| Eleventh Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院第十一批指导性案例 |
| People v. Qi for Rape and Child Molestation | | 齐某强奸、猥亵儿童案 |
| (Case No. 42 of the Supreme People's Procuratorate) | | （检例第42号） |
| [Keywords] | | 【关键词】 |
| Crime of rape; crime of child molestation; execrable circumstances; publicly in public places | | 强奸罪 猥亵儿童罪 情节恶劣 公共场所当众 |
| [Basic Facts] | | 【基本案情】 |
| Defendant surnamed Qi, male, born in January 1969, former head teacher of a class of __ Primary School in __ County. | | 被告人齐某，男，1969年1月出生，原系某县某小学班主任。 |
| During the period from summer of 2011 to October 2012 when defendant Qi was the head teacher of a class, by taking opportunities of noon breaks, self-studies at night, and checking of dormitories, he committed rape and child molestation of the victim girls A (10-year-old) and B (10-year-old) in the office, classroom, bath house, boys' dormitory, and other places on campus for several times and on the ground of taking A out to see a doctor, took A to his home and raped her. In the girls' dormitory, Qi committed molestation of the victim girls C (11-year-old), D (11-year-old), and (10-year-old) for several times and committed molestation of the victim girls F (11-year-old) and G (11-year-old) for one time. | | 2011年夏天至2012年10月，被告人齐某在担任班主任期间，利用午休、晚自习及宿舍查寝等机会，在学校办公室、教室、洗澡堂、男生宿舍等处多次对被害女童 A（10岁）、B（10岁）实施奸淫、猥亵，并以带A女童外出看病为由，将其带回家中强奸。齐某还在女生集体宿舍等地多次猥亵被害女童C（11岁）、D（11岁）、E（10岁），猥亵被害女童F（11岁）、G（11岁）各一次。 |
| [Key Point] | | 【要旨】 |
| 1. In a criminal case of sexual assault of a minor, where the victim makes a statement in a steady and natural manner, the detailed description conforms to normal memory cognition and expression ability, there is no evidence supporting defendant's contention, and a complete proof system can be formed upon examination of all evidence of the case in light of life experience, the facts of the case may be identified. | | 1.性侵未成年人犯罪案件中，被害人陈述稳定自然，对于细节的描述符合正常记忆认知、表达能力，被告人辩解没有证据支持，结合生活经验对全案证据进行审查，能够形成完整证明体系的，可以认定案件事实。 |
| 2. The rape of an underage girl falls under the circumstance where a heavier punishment should be imposed as prescribed in the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Legally Punishing Crimes of Sexual Assaults of Minors. Where the social hazards are equivalent to the circumstances as prescribed in items (2) to (4) of paragraph 3 of Article 236 of the Criminal Law, it may be identified as “execrable circumstances” as prescribed in item (1) of the above-mentioned paragraph. | | 2.奸淫幼女具有《最高人民法院、最高人民检察院、公安部、司法部关于依法惩治性侵害未成年人犯罪的意见》规定的从严处罚情节，社会危害性与刑法第二百三十六条第三款第二至四项规定的情形相当的，可以认定为该款第一项规定的“情节恶劣”。 |
| 3. Where an actor commits molestation in a classroom, dormitory, or other places, as long as there are many persons present at that time, even though the persons present do not actually view such molestation, it should also be identified that the crime is committed “publicly in public places.” | | 3.行为人在教室、集体宿舍等场所实施猥亵行为，只要当时有多人在场，即使在场人员未实际看到，也应当认定犯罪行为是在“公共场所当众”实施。 |
| [Charge and Proof of Crime] | | 【指控与证明犯罪】 |
| 1. Instituting a public prosecution and information on the original judgment | | （一）提起公诉及原审判决情况 |
| On April 14, 2013, the People's Procuratorate of __ City instituted a public prosecution against Qi for the crime of rape and child molestation. On May 9, the Intermediate People's Court of __ City held a non-public trial of this case according to the law. On September 23, the Intermediate People's Court of __ City entered a judgment that Qi committed a crime of rape and should be sentenced to a death with suspended execution of two years and deprival of political rights for life; Qi committed a crime of child molestation and should be sentenced to a fixed-term imprisonment of four years and six months; it was decided to execute death penalty with suspended execution of two years and deprival of political rights for life. Qi did not appeal and after the judgment came into force, it was submitted to the Higher People's Court of __ Province for review. | | 2013年4月14日，某市人民检察院以齐某犯强奸罪、猥亵儿童罪对其提起公诉。5月9日，某市中级人民法院依法不公开开庭审理本案。9月23日，该市中级人民法院作出判决，认定齐某犯强奸罪，判处死刑，缓期二年执行，剥夺政治权利终身；犯猥亵儿童罪，判处有期徒刑四年零六个月；决定执行死刑，缓期二年执行，剥夺政治权利终身。被告人未上诉，判决生效后，报某省高级人民法院复核。 |
| On December 24, 2013, the Higher People's Court of __ Province ruled to set aside the original judgment and remand the case for retrial on the ground that some fact-finding in the original judgment was unclear. | | 2013年12月24日，某省高级人民法院以原判认定部分事实不清为由，裁定撤销原判，发回重审。 |
| On November 13, 2014, the Intermediate People's Court of __ City retried the case and entered a judgment that Qi committed a crime of rape and should be sentenced to death with deprival of political rights for life; Qi committed a crime of child molestation and should be sentenced to a fixed-term imprisonment of four years and six months; and it was decided to execute death penalty with deprival of political rights for life. Qi refused to accept the judgment and appealed. | | 2014年11月13日，某市中级人民法院经重新审理，作出判决，认定齐某犯强奸罪，判处无期徒刑，剥夺政治权利终身；犯猥亵儿童罪，判处有期徒刑四年零六个月；决定执行无期徒刑，剥夺政治权利终身。齐某不服提出上诉。 |
| On January 20, 2016, upon trial, the Higher People's Court of __ Province entered a final judgment that Qi committed a crime of rape and should be sentenced to a fixed-term imprisonment of six years with deprival of political rights for one year; Qi committed a crime of child molestation and should be sentenced to a fixed-term imprisonment of four years and six months; it was decided to execute a fixed-term imprisonment of ten years with deprival of political rights for one year. | | 2016年1月20日，某省高级人民法院经审理，作出终审判决，认定齐某犯强奸罪，判处有期徒刑六年，剥夺政治权利一年；犯猥亵儿童罪，判处有期徒刑四年零六个月；决定执行有期徒刑十年，剥夺政治权利一年。 |
| 2. Initiating the trial supervision procedure and information on the judgment entered upon retrial | | （二）提起审判监督程序及再审改判情况 |
| The People's Procuratorate of __ Province held that the final judgment of this case was erroneous and it requested the Supreme People's Procuratorate to file an appeal. The Supreme People's Procuratorate held upon review that the application of law was erroneous and the sentencing was improper and the final judgment should be corrected. On March 3, 2017, the Supreme People's Procuratorate filed an appeal in the Supreme People's Court according to the trial supervision procedure. | | 某省人民检察院认为该案终审判决确有错误，提请最高人民检察院抗诉。最高人民检察院经审查，认为该案适用法律错误，量刑不当，应予纠正。2017年3月3日，最高人民检察院依照审判监督程序向最高人民法院提出抗诉。 |
| On December 4, 2017, the Supreme People's Court held a non-public trial of this case. The Supreme People's Procuratorate dispatched procuratorial personnel to appear in court and a defender appeared in court to defend the defendant in the original trial. | | 2017年12月4日，最高人民法院依法不公开开庭审理本案，最高人民检察院指派检察员出席法庭，辩护人出庭为原审被告人进行辩护。 |
| At the stage of court investigation, since defendant in the original trial did not plead guilty, the procuratorial personnel raised questions and presented evidence concerning whether there were conflicts between Qi's contention and evidence in the case as well as whether there was other evidence or clue supporting Qi's contention, and verified the following issues: the relations between Qi and the victims and their parents before the case was exposed, whether Qi checked the girls' dormitory, whether Qi has called girl students out of the classroom alone for several times, and whether Qi took girl students home to stay overnight. Qi confessed in court that he had no conflicts with the victims and their parents, and he admitted that he once checked the girls' dormitory, rubbed the stomach for girl students, called girl students out of the classroom alone, and took girl students to see a doctor and took them home to stay overnight. Through the interrogation in court, the authenticity and objectivity of details described by the victims were further verified. | | 法庭调查阶段，针对原审被告人不认罪的情况，检察员着重就齐某辩解与在案证据是否存在矛盾，以及有无其他证据或线索支持其辩解进行发问和举证，重点核实以下问题：案发前齐某与被害人及其家长关系如何，是否到女生宿舍查寝，是否多次单独将女生叫出教室，是否带女生回家过夜。齐某当庭供述与被害人及其家长没有矛盾，承认曾到女生宿舍查寝，为女生揉肚子，单独将女生叫出教室问话，带女生外出看病以及回家过夜。通过当庭讯问，进一步印证了被害人陈述细节的真实性、客观性。 |
| At the stage of court debate, the procuratorial personnel gave the following opinions in court: | | 法庭辩论阶段，检察员发表出庭意见： |
| First, the criminal facts where Qi, defendant in the original trial, committed a crime of rape and child molestation were clear and the evidence was authentic and sufficient. (1) The victims and their parents had no conflicts with Qi before the case was exposed. The report to the police was made in a timely manner, there were no other intervening factors, and the possibility of false charges may be excluded. (2) The statements of the victims were natural and reasonable. With high credibility, they were also verified by the testimonies of their schoolmates. The victims' descriptions on details conformed to normal memory cognition and expression ability, for example, such content as approximate time, places, manners, and times for Qi's sexual assaults were basically consistent. Due to such objective circumstances as young ages of the victims and long-time span from reporting to the police and testifying to exposure of the case, inconsistency in specific expressions was completely normal. (3) The basic facts stated by the victims were verified by other evidence of the case, including transcripts of investigation in Qi's bedroom, transcripts and scene photos where the victims identified the scene, and diagnosis certificates of the victims on their physiological conditions. | | 首先，原审被告人齐某犯强奸罪、猥亵儿童罪的犯罪事实清楚，证据确实充分。1.各被害人及其家长和齐某在案发前没有矛盾。报案及时，无其他介入因素，可以排除诬告的可能。2.各被害人陈述内容自然合理，可信度高，且有同学的证言予以印证。被害人对于细节的描述符合正常记忆认知、表达能力，如齐某实施性侵害的大致时间、地点、方式、次数等内容基本一致。因被害人年幼、报案及作证距案发时间较长等客观情况，具体表达存在不尽一致之处，完全正常。3.各被害人陈述的基本事实得到本案其他证据印证，如齐某卧室勘验笔录、被害人辨认现场的笔录、现场照片、被害人生理状况诊断证明等。 |
| Second, the execrable circumstances of the rape committed by Qi, defendant in the original trial, and the publicly-committed child molestation in public places were not identified in the judgment entered by the Higher People's Court of __ Province, which was erroneous application of law and caused abnormally lighter sentencing. (1) The rape of underage girls by Qi had “execrable circumstances.” By using his identity as a teacher, Qi raped two underage girls for several times in long time span. The criminal offense occurred on campus, which caused extreme harms to the victims and their family members and great horrors to other students. Qi's criminal offense fell under circumstances where “the actor should be given a heavier punishment according to the law” as prescribed in multiple items of Article 25 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Legally Punishing Crimes of Sexual Assaults of Minors. Upon comprehensive assessment, his criminal offense should be identified as “execrable circumstances” and Qi should be sentenced to a penalty above a fixed-term imprisonment of ten years. (2) Qi's acts in this case were “publicly committing” child molestation in public places. The term “public places” is a generic term for all utility buildings, places, and facilities where the majority of people in society engage in work, studies, culture, entertainment, sports, social contact, visits, and travelling and which satisfy some living needs, and they have such features as entries, exits, and uses by many people. Based on the need to protect minors, Article 23 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Legally Punishing Crimes of Sexual Assaults of Minors specified that “a school” where no one else could freely enter and exit except teachers and students should be identified as a public place. In judicial practice, classrooms and other relatively closed places have also been identified as public places. In this case, like classrooms, the girls' dormitories where over 20 students lived were an important part of the school. Since they were related to mass and open to the public, they should be identified as public places. Article 23 of the Opinions of the of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Legally Punishing Crimes of Sexual Assaults of Minors provided that where an actor commits a crime of molestation of a minor in a public place, “as long as there are other persons present, no matter whether such persons present have actually viewed the crime,” it should be identified as public molestation. In this case, after the lights were turned off, Qi entered the girls' dormitory. Since there were many girls going to bed and there were no shields between bunks, others in the same dormitory could easily feel the molestation, which satisfied the requirements of “public molestation” as prescribed in the preceding provisions. | | 其次，原审被告人齐某犯强奸罪情节恶劣，且在公共场所当众猥亵儿童，某省高级人民法院判决对此不予认定，属于适用法律错误，导致量刑畸轻。1.齐某奸淫幼女“情节恶劣”。齐某利用教师身份，多次强奸二名幼女，犯罪时间跨度长。本案发生在校园内，对被害人及其家人伤害非常大，对其他学生造成了恐惧。齐某的行为具备《最高人民法院、最高人民检察院、公安部、司法部关于依法惩治性侵害未成年人犯罪的意见》第二十五条规定的多项“更要依法从严惩处”的情节，综合评判应认定为“情节恶劣”，判处十年有期徒刑以上刑罚。2.本案中齐某的行为属于在“公共场所当众”猥亵儿童。公共场所系供社会上多数人从事工作、学习、文化、娱乐、体育、社交、参观、旅游和满足部分生活需求的一切公用建筑物、场所及其设施的总称，具备由多数人进出、使用的特征。基于对未成年人保护的需要，《最高人民法院、最高人民检察院、公安部、司法部关于依法惩治性侵害未成年人犯罪的意见》第二十三条明确将“校园”这种除师生外，其他人不能随便进出的场所认定为公共场所。司法实践中也已将教室这种相对封闭的场所认定为公共场所。本案中女生宿舍是20多人的集体宿舍，和教室一样属于校园的重要组成部分，具有相对涉众性、公开性，应当是公共场所。《最高人民法院、最高人民检察院、公安部、司法部关于依法惩治性侵害未成年人犯罪的意见》第二十三条规定，在公共场所对未成年人实施猥亵犯罪，“只要有其他多人在场，不论在场人员是否实际看到”，均可认定为当众猥亵。本案中齐某在熄灯后进入女生集体宿舍，当时就寝人数较多，床铺之间没有遮挡，其猥亵行为易被同寝他人所感知，符合上述规定“当众”的要求。 |
| Defendant in the original trial and his defender insisted in the defense opinions that the facts were unclear and evidence was insufficient on the following grounds: (1) There were only statements of the victims in the direct evidence for determining the criminal offense, Qi never pleaded guilty, the testimonies of other witnesses were derivative evidence, and there was no physical evidence. Therefore, the chain of evidence was incomplete. (2) There was inconsistency between the statements of the victims and in the first statement, one victim only mentioned that she got molestated while in the second statement, she mentioned that she was raped, which was a major contradiction. | | 原审被告人及其辩护人坚持事实不清、证据不足的辩护意见，理由是：一是认定犯罪的直接证据只有被害人陈述，齐某始终不认罪，其他证人证言均是传来证据，没有物证，证据链条不完整。二是被害人陈述前后有矛盾，不一致。且其中一个被害人在第一次陈述中只讲到被猥亵，第二次又讲到被强奸，前后有重大矛盾。 |
| With respect to the aforesaid defense opinions, the procuratorial personnel contended that: (1) In light of the age and cognitive competence of the victims, it was difficult to fabricate some details in the statements of victims, including the place of rape and positions, if it was not their personal experience. (2) Since Qi has committed sexual assaults for many times, due to the long-time span and young age of the victims, discrepancy and vagueness in some details of the statements were normal, which exactly conformed to the memory characteristics of the victims. In addition, the victims described basic facts and details in a steady manner. Although a victim did not mention that she was raped in the first inquiry, she afterwards explained the reason therefor, namely, she dared not to mention it since school teachers were present at that time, and such reason conformed to the mentality of children. (3) Although testimonies of the victims' schoolmates were derivative evidence, they knew the relevant information after the occurrence of the criminal offense and their testimonies had strong probative force. (4) Qi and his defender provided no evidence or clue to support his contention. | | 针对辩护意见，检察员答辩：一是被害人陈述的一些细节，如强奸的地点、姿势等，结合被害人年龄及认知能力，不亲身经历，难以编造。二是齐某性侵次数多、时间跨度长，被害人年龄小，前后陈述有些细节上的差异和模糊是正常的，恰恰符合被害人的记忆特征。且被害人对基本事实和情节的描述是稳定的。有的被害人虽然在第一次询问时没有陈述被强奸，但在此后对没有陈述的原因作了解释，即当时学校老师在场，不敢讲。这一理由符合孩子的心理。三是被害人同学证言虽然是传来证据，但其是在犯罪发生之后即得知有关情况，因此证明力较强。四是齐某及其辩护人对其辩解没有提供任何证据或者线索的支持。 |
| On June 11, 2018, the Supreme People's Court held a meeting of the Judicial Committee for the deliberation of this case. The Procurator-General of the Supreme People's Procuratorate attended the meeting and gave the following opinions: (1) Qi's criminal facts and circumstances as identified in the written appeal of the Supreme People's Procuratorate conformed to the objective and actual circumstances. The cases of sexual assaults of minors had such characteristics as few objective and direct evidence and defendants' failure to plead guilty. In this case, the parents of the victims had no conflicts with defendant in the original trial before the case was exposed and the criminal offense happened naturally. The statements of the victims and testimonies of their schoolmates conformed to the actual circumstances of the case and children psychology, and they had strong probative force. By taking into full account of all evidence of the case, it was sufficient to exclude reasonable doubts and identify the criminal facts that defendant in the original trial committed the rape and child molestation. (2) The criminal offense of committing child molestation in the girls' dormitory by defendant in the original trial of was “public” molestation in “a public place.” Considering the specific case circumstances, for committing the criminal offense of child molestation, defendant in the original trial should be sentenced to a penalty above a fixed-term imprisonment of ten years. (3) The judgment of second instance entered by the Higher People's Court of __ Province was erroneous and should be altered according to the law. | | 2018年6月11日，最高人民法院召开审判委员会会议审议本案，最高人民检察院检察长列席会议并发表意见：一是最高人民检察院抗诉书认定的齐某犯罪事实、情节符合客观实际。性侵害未成年人案件具有客观证据、直接证据少，被告人往往不认罪等特点。本案中，被害人家长与原审被告人之前不存在矛盾，案发过程自然。被害人陈述及同学证言符合案发实际和儿童心理，证明力强。综合全案证据看，足以排除合理怀疑，能够认定原审被告人强奸、猥亵儿童的犯罪事实。二是原审被告人在女生宿舍猥亵儿童的犯罪行为属于在“公共场所当众”猥亵。考虑本案具体情节，原审被告人猥亵儿童的犯罪行为应当判处十年有期徒刑以上刑罚。三是某省高级人民法院二审判决确有错误，依法应当改判。 |
| On July 27, 2018, the Supreme People's Court entered a final judgment that Qi, defendant in the original trial, committed a crime of rape and should be sentenced to life imprisonment with deprival of political rights for life; Qi committed a crime of child molestation and should be sentenced to a fixed-term imprisonment of ten years; it was decided to execute the life imprisonment with deprival of political rights for life. | | 2018年7月27日，最高人民法院作出终审判决，认定原审被告人齐某犯强奸罪，判处无期徒刑，剥夺政治权利终身；犯猥亵儿童罪，判处有期徒刑十年；决定执行无期徒刑，剥夺政治权利终身。 |
| [Guiding Significance] | | 【指导意义】 |
| 1. Accurately grasping the standards for examination and judgment of evidence in criminal cases of sexual assaults of minors | | （一）准确把握性侵未成年人犯罪案件证据审查判断标准 |
| The examination of evidence in criminal cases of sexual assaults of minors should be judged according to the physical and mental characteristics of minors and the standards different from those for adults. Where, according to the experience and common sense, the statements of minors make sense and are logical, their descriptions on details conform to their cognition and expression ability and are verified by other evidence, there is no evidence supporting the contention of defendant, and there is no possibility of false charge in light of relations of both parties, the statements of minors should be admitted. | | 对性侵未成年人犯罪案件证据的审查，要根据未成年人的身心特点，按照有别于成年人的标准予以判断。审查言词证据，要结合全案情况予以分析。根据经验和常识，未成年人的陈述合乎情理、逻辑，对细节的描述符合其认知和表达能力，且有其他证据予以印证，被告人的辩解没有证据支持，结合双方关系不存在诬告可能的，应当采纳未成年人的陈述。 |
| 2. Accurately applying the provisions on “execrable circumstances” in the rape of underage girls | | （二）准确适用奸淫幼女“情节恶劣”的规定 |
Item (1) of paragraph 3 of Article 236 of the Criminal Law provides that where the rape of underage girls falls under “execrable circumstances,” the actor should be sentenced to a fixed-term imprisonment of not less than ten years, life imprisonment, or death penalty. Article 25 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Legally Punishing Crimes of Sexual Assaults of Minors provides seven circumstances where an actor committing the crime of rape or molestation of minors “should be strictly punished according to the law.” In practice, the rape of underage girls falls under circumstances where actors should be strictly punished. Where the social hazards are equivalent to those as prescribed in items (2) to (4) of paragraph 3 of Article 236 of the Criminal Law, it may be identified as “execrable circumstances” as prescribed in item (1) of the above-mentioned paragraph, for example, “the rape of several underage girls” as prescribed in item (2) of the above-mentioned paragraph generally refers to the rape of three or more underage girls. In this case, defendant had the special identity of a teacher and he raped two underage girls and has raped each of them for several times, whose hazards were not lower than those of the rape of three underage girls. Therefore, it may be identified that defendant's acts conformed to the provisions on “execrable circumstances.”
．．．．．． | | 刑法第二百三十六条第三款第一项规定，奸淫幼女“情节恶劣”的，处十年以上有期徒刑、无期徒刑或者死刑。《最高人民法院、最高人民检察院、公安部、司法部关于依法惩治性侵害未成年人犯罪的意见》第二十五条规定了针对未成年人实施强奸、猥亵犯罪“更要依法从严惩处”的七种情形。实践中，奸淫幼女具有从严惩处情形，社会危害性与刑法第二百三十六条第三款第二至四项相当的，可以认为属于该款第一项规定的“情节恶劣”。例如，该款第二项规定的“奸淫幼女多人”，一般是指奸淫幼女三人以上。本案中，被告人具备教师的特殊身份，奸淫二名幼女，且分别奸淫多次，其危害性并不低于奸淫幼女三人的行为，据此可以认定符合“情节恶劣”的规定。
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