[Case Summary]This case involves a criminal appeal and a change of legal characterization regarding the sexual assault of a minor. In April 2024, Liu * (a student with mental retardation) covered the mouth of 12-year-old primary school student L * at the entrance of the apartment building and groped her chest through her clothes. L * resisted, shouted for help, and escaped. Liu * voluntarily surrendered to the police, compensated the victim, and obtained her forgiveness. The first-instance court sentenced him to fixed-term imprisonment of one year and eight months for attempted rape. His family entrusted the Beijing Henglu Law Firm to handle the case.Liu LiqiangThe lawyer served as the defense attorney in the second instance. The lawyer argued that Liu * did not have the subjective intent to commit rape, and the first-instance sentencing was too severe, so the verdict should be changed to the crime of indecent assault on a child and exemption from criminal punishment. The core disputes are: whether the act should be classified as the crime of rape or the crime of indecent assault on a child; whether the sentencing was too severe. Applicable legal provisions: Article 237, paragraph 3, and Article 37 of the Criminal Law; relevant provisions of the Criminal Procedure Law. The second-instance court revoked the first-instance judgment and changed the verdict to the crime of indecent assault on a child, exempting him from criminal punishment.

I. Review of the Case

On a morning in April 2024, Liu * (a student at a certain residential community) encountered L * (a primary school student at the time, aged 12) at the entrance of his unit. Liu suddenly covered L *'s mouth with a tissue and groped her chest through her clothes. After L * resisted, called for help, and escaped, she reported the case to the police. Accompanied by her family, Liu voluntarily appeared in court, actively compensated the victim, and obtained her forgiveness. According to the appraisal, Liu had a mild mental retardation at the time of the incident and was determined to have full criminal responsibility. The court of first instance held that Liu knew the victim was a minor under the age of 14 and intended to commit rape, constituting attempted rape. Combined with his confession, admission of guilt, and compensation and forgiveness, he was sentenced to fixed-term imprisonment of one year and eight months. Liu appealed against the verdict, and his family appointed a lawyer to defend him.Liu LiqiangThe lawyer serves as the defense attorney in the second instance.

II. The focus of the case

  • Focus 1: The debate over whether there was intent to commit rape and the legal classification of the crime.Liu * repeatedly confessed that he did it to seek sexual stimulation. During the trial, it was unclear whether sexual intercourse actually took place, and he did not have the subjective intent to commit rape. Therefore, he should be charged with the crime of indecent assault on a child.
  • Focus Two: Is the sentencing too severe?Even if the relevant crime is determined, Liu * has such circumstances as attempted crime, confession, plea of guilty and punishment, mild mental retardation, and compensation and understanding, etc., and the first-instance sentencing is too severe.
  • Focus Three: The application of exemption from criminal punishment.Taking into account the mitigating and extenuating circumstances and the defendant's mental state, can he/she be exempted from criminal punishment?

III. The professional intervention of Hengluo Law Firm

The appellant (Liu *) claimed that:Liu's family believes that the first-instance court made a wrong determination of the nature of the crime and imposed an excessive sentence, and hopes that the court will change the charge to a less serious one and exempt the defendant from criminal punishment, so that the defendant can return to normal study and life.

The position of the prosecution (the procuratorate):The prosecutor at the court insisted that the first-instance judgment was correct, but pointed out that the first-instance sentencing was too severe and suggested that the verdict should be changed.

Legal opinion of Hengluo Law Firm:Liu LiqiangAfter accepting the client's commission, the lawyer comprehensively reviewed the evidence, visited the class teacher, classmates, and family members to investigate Liu's mental state and cognitive ability, and systematically submitted the following arguments to the appellate court: Liu did not have the subjective intent to commit rape, and his confession was to seek sexual stimulation and had a distorted understanding of the nature of sexual relations. Moreover, the crime scene was a densely populated residential area with no time for the crime to occur, so the first-instance court's determination of rape was erroneous. Liu had mitigating and lenient circumstances such as attempted crime, confession, plea bargain, mild mental retardation, and compensation and understanding, and the first-instance sentencing was too severe. The lawyer argued that Liu should be convicted of indecent assault on a child and exempted from criminal punishment.

IV. Outcome of the case

The court of second instance held that Liu *'s actions did not constitute the crime of rape. There was no time for him to commit the crime in densely populated residential areas and during the peak hours of going to school and work, and he had a misperception of the nature of rape, lacking the subjective intent to commit rape. The first-instance court's misidentification of the crime was corrected. Liu * actively surrendered himself to the police and made a truthful statement, which constituted a voluntary surrender. Taking into account the fact that no serious consequences occurred, the court ruled in accordance with Article 237, paragraph 3, and Article 37 of the Criminal Law, and decided to revoke the first-instance criminal judgment and re-sentence Liu * to the crime of indecent assault on a child, exempting him from criminal punishment. This judgment is the final judgment.

5. Henglu Law Firm's Reminder

This case is handled by Beijing Henglu Law FirmLiu LiqiangThe lawyer (practice license number: 11101200910454358, subject to the document issued by the judicial administrative organ) acts as the agent. The determination of the nature of the case of sexual assault on minors directly affects the sentencing level, and the determination of subjective intent requires comprehensive judgment based on the perpetrator's cognitive ability and the circumstances of the crime. In cases involving special groups such as those with intellectual disabilities, professional lawyers can clarify the boundaries between crime and illegal behavior through mental evaluation and environmental evidence, and strive to achieve the adaptation of guilt and punishment.

VI. Common defense issues in cases of child molestation - FAQ

  1. Q: How to distinguish between the crimes of rape and child molestation?
    A:The key point is whether there is an intent to commit sexual assault and sexual acts. If there are only indecent acts such as groping and touching through clothes without the intent to commit sexual assault, the person will generally be charged with the crime of indecent assault on children; if there is an intent to commit rape and the person has taken action, they may be charged with the crime of rape.
  2. Q: Should people with intellectual disabilities be held accountable for their crimes?
    A:Those who have been identified as having full criminal responsibility capacity should be held accountable; however, cognitive impairment may affect the determination of subjective intent. Based on the circumstances of the case, the defense may argue for a lighter sentence or a change in the legal characterization of the offense.
  3. Q: Does the compensation and apology have a significant impact on the sentencing of sexual assault cases?
    A:Generally, actively compensating the victims and gaining their families' understanding are important mitigating circumstances. Combined with confessing and accepting the punishment, it can significantly reduce the sentencing or even secure exemption from criminal punishment.
  4. Q: If the sentence handed down in the first instance is too severe, can it be changed in the second instance?
    A:Yes. The second instance can correct qualitative errors and improper sentencing. In this case, the sentence was changed from attempted rape to child molestation, and the defendant was exempted from criminal punishment.
  5. Q: Is it necessary for minors involved in sexual assault cases to hire a lawyer?
    A:It's necessary. Professional lawyers can clarify subjective intent, obtain mental evaluation and environmental evidence, and strive to change the characterization or avoid punishment in the second instance, thus ensuring that the punishment fits the crime.