Research On The Scope Of The Subject Of Rape

As an old and eternal criminal topic, the crime of rape has the history aslong as the history of civilization of human being. According to the rules ofCriminal Law of China, the subject of rape is the man who has reached the ageof fourteen. This rule excludes the circumstance that a woman who personallycommits the crime of rape and does not include husband clearly. In my opinion,it is not exactly and should be commended. After analyzed the rules on thesubject of rape and considered the actual circumstances of China, this thesiswill give some legislative suggestions to improve the rules on the subject ofrape. It is composed of four parts.The first is the summarization of the subject of rape. The rule of CriminalLaw of China on rape shows that the subject of rape should be a man who hasreached the age of fourteen. In other words, a man could be the culprit of rapewhile a woman could not. However, under the circumstance of joint crimes,women could be the instigator, the accomplice, the indirect perpetrator and theprincipal in the second degree. Furthermore, there is not clear articles whichconcern the topic that whether the victim's husband can be the subject of rape.There are different opinions on the subject of rape in theoretical field in China.About the question that whether women can be the person who personallycommits the crime of rape, there are two views in the theoretical field. One isnegation, another is affirmation. Negation holds that women can not be theperson who personally commits the crime of rape. Affirmation holds theopposite opinion, that women could be the person who personally commits thecrime of rape. In China, there are three views on the topic that whether it iscrime of rape that the husband forces his wife to process sex. First is totalnegation. The researchers who hold the opinion think that it is not rape if ahusband forces his wife to do sex action. It can be divided into five theories,they are the theory of marriage contract, the theory of violence injury, thetheory of compelling the women to retaliate and the theory of no rape inmarriage. Second is total affirmation. The researchers who hold the opinionthink that it is rape if a husband forces his wife to do sex. The third iscompromise. The researchers who hold the opinion think that not all theactions that the husband forces his wife to do sex are rape except for somespecial circumstances.The second is the research on the gender of the subject of rape. Theauthor thinks that women can be not only the instigator, the accomplice, theindirect perpetrator and the principal in the second degree in the joint crimes,but also the person who personally commits the crime of rape. I will prove myopinion in five aspects as followed: 1. The same as women, men own sexualright. Sexual right means an independent right during the sexual behavior.That is to say, the actor has the right to decide whether process sex or not. Thisindependent right of sex includes the right of doing sex and the right ofrefusing sex. The crime of rape infringes the decision right of refusing sex.And this right is a kind of personal right. Under the legal principle of equalityin the law, the decision right of refusing sex, as a kind of personal right, manand woman should own it equally. 2. Sexual right should be protected equally.As a person, man and woman are equal. Under the Criminal Law of China, thescope of the person who personally commits the crime of rape is limited tomale while excluding the female. It does not protect the sexual right of male's,and it is a discrimination to the female as well. Thus, the sexual right of male'sand female's should be protected equally. 3. Gender is not the essentialcondition of the conviction of rape. It can not be regarded that it is not rapejust because the actor is woman, because the action of rape which is acted bywoman conforming with the constitution of rape. 4. Sexual injury by woman isnot exceptional phenomenon. The author will give some cases to prove thatthe rate of sexual injury by women is not low. 5. Abrogation the sexual limitconforms to the trend of legislation. From the development orientation ofcriminal legislation in the world, many countries and areas have accepted theview that female could be the person who personally commits the crime ofrape and have commended their criminal law. According to the reasons above,in my opinion, female could be the person who personally commits the crimeof rape.The third is the research on the spouse problem of rape. According to theauthor's opinion, the spouse could be qualified as the subject of the crime ofrape. Argumentation will be given as the following respects: 1. Analysis of thesexual right in the respect of legal theory. From this angle, the conclusion ofthis article is that spouse's positive right on sex is limited to a "minimal-right".I.e. spousal rape should be qualified as crime. 2. The compelling sexualintercourse between the spouses has the characters of a crime. Firstly, it hassevere social harmfulness. Secondly, it has criminal illegitimacy. Finally, ithas violation of criminal law. Therefore, spousal rape should be regarded ascrime in respect of the characters of crime. 3. The compelling sexualintercourse between the spouses fulfills the constitution of a crime. Thecompelling sexual intercourse fulfills the constitution of the crime of rape, i.e.subjective requirement, objective requirement, subject and object requirement.Therefore, in respect of the constitutive requirements of crime, this kind ofbehavior should be qualified as a crime. 4. It is a realistic requirement to rulespousal rape with Criminal Law. This point is discussed through cases. 5. It isa trend in the scope of criminal legislation to investigate the criminal liabilityof spousal rape. In terms of the trend of criminal legislation in the world, it ishistorically inevitable to regard spousal rape as criminal of rape. Based on thearguments above, we can conclude that spouse could be qualified as thesubject of crime.The fourth is the legislative suggestion on consummating the content ofthe subject of rape. The author thinks that some articles should be commendedfrom three aspects as followed: 1. Female should be added to the subject ofrape. In the Article 236 of the Criminal Law of China, "woman" should bechanged to "others", and "young girl" should be changed to "children". 2.About the compelling sexual intercourse between spouse. First, spousal rapeshould be ruled clearly in the law. Secondly, looking from the procedure angle,spousal rape should be the crime accepted at complaint. Last, the limitation ofactions of spousal rape should be ruled in the Criminal Law of China.