论强奸罪中的欺诈

关于行为人通过欺诈手段与被害人发生性关系,行为人是否构成强奸罪的问题,根据等价性原则,基于欺诈而发生的性交构成强奸罪仅限于以下三种情况:(1)欺诈致使被害人对什么是性行为或者性行为的发生完全没有认识;(2)被害人虽然对性行为的自然属性有认识,但是,欺诈导致被害人对影响性行为法律属性的关键因素产生了错误认识;(3)被害人虽然对性行为有认识,但是,由于欺诈,被害人误以为不得不在生命健康权与性自主权之间做出选择,这种欺诈具有类似于暴力、胁迫程度的强制性,因此,也应该构成强奸罪。

On the Issue of Fraud in Rape

As to the problem whether the defendant will be convicted of rape or not,if the defendant had sexual intercourse with the victim by means of fraud,according to the rule of equivalence,the situations which constitute rape by means of fraud should be limited to the following three conditions:(1) because of the fraud,the victim does not realize the meaning of sex itself or does not realize the occurrence of sexual behavior;(2) because of the fraud,the victim makes a mistake as to the factors which can affect the legal nature of the behavior,though the victim knows the nature of the behavior;(3) because of the fraud,the victim mistakenly thinks that she can only keep one right between life or health and sexual autonomy.This kind of fraud is similar as violence and coercion.Therefore,it should also constitute rape.