On Violation Of The Woman's Will Of The Crime Of Rape

Violation of the woman's will is the important characteristic of the rape, so, asserting violation of the woman's will correctly is the key to distinguishing crime of rape and non-guilty. In the judicial practice, cases of rape is intricate, various, and it is often very difficult to distinguish whether violate the woman's will or not, this question has been perplexing the judicial authority all the time for a long time. So, further investigating and discussion as to violating of the woman's will is an important subject of the law circles and judicial circle, and all has very important meanings for improving the theory of criminal law and instructing the practice of justice. Women's will in rape refers to independence of woman about sex, i.e. whether a woman is voluntary totally to sexual intercourse, and refer to the psychological condition of woman with responsibility ability when the sexual intercourse takes place. Violating of women's will does not mean any violation of women's will and make sexual intercourse with them, and only mean the behavior of illegal sexual intercourse that happen beyond legal marriage and normal drawing period of marriage with violation of wills of those women. If both sides are legal conjugal relations, and the marriage is in the normal drawing period, even if the man violates his wife's will and makes sexual intercourse by force, violation of the woman's in will legal meaning does not exist either. The essential characteristic of rape means violating the will of women that disagree with carrying on sexual intercourse illegally beyond the drawing period of the normal marriage, it is the organic whole in touch with the constitutive elements of crime of rape each other, the two complement relate each other. The criminal law of our country has not done the clear regulation yet regarding that what intensity Violation of women's will reach will commit the crime of rape. I think, we should adhere to the unified principle subjectively and objectively, make a concrete analysis of a concrete case, while jeopardizing the personal security or freedom of the woman, he commits the crime of rape, and it is not necessary to reach the intensity that women can't resist. Through description above, I hope to cause the thinking about revising and improving the legislation as to the concept and the characteristic of rape. I propose stipulating clearly rape's way as the behavior to violate the woman's will and make illegal sexual intercourse by force with her, abandon the concept the traditional criminal law theory that rape means having sex with woman or sexual relations with violation of the woman's will; Should write violation of the woman's will the essential characteristic into the clause of criminal law, and the crime of rape does not includes the behavior of raping in the drawing period couple of the normal marriage. Particularly, article 236 of criminal law should be stated so: By means of the violence, coerce or making women unable to resist, violating the will of the woman beyond the drawing period of the normal marriage, make sexual intercourse by force with her.