A Research On Marital Rape

Since the late 1980s, in less than twenty years, the affirmative theory of marital rape has replaced the negative theory of marital rape. However, we should have a clear idea that we shouldn't go from one extreme to another. Criminality is different from ordinary negative social judgments, for it has its own characteristics, and not all negative social judgments should be included in crime. This paper will do a comprehensive and in-depth study of marital rape.The first part of this paper analyses similar cases with different verdicts. This judicial disagreement lead to the discussion of theoretical disagreement concerning about marital rape. Based on a comprehensive analysis of the affirmative, negative and neutral theories, it illustrates the current situations of marital rape in China. The second part compares the legislation about marital rape, transversely from our country to foreign countries, and longitudinally from ancient times to present.The third part is a key part, functions as the premise of later discussion of this paper. After defining the word "marital rape", it divides marital rape into its broad and narrow senses, and points out that this paper only deals with the narrow sense of marital rape. Moreover, it divides the narrow sense of marital rape into two parts: Usual marital rape and unusual marital rape, giving a detailed illustration of their concepts and characteristics, which includes both their similar and different characteristics. Usual marital rape is mainly illustrated in terms of subjective and objective characteristics, while usual marital rape is analyzed through space, object and the subjective feeling of the victims.The fourth part is the keystone of this paper, analyzing martial rape from the perspectives of criminology, criminalistics, criminal policies and related laws, which makes the study of marital rape more clear and accurate, serving as the theoretical bases of later suggestions for legislation and judicative practice concerning about this problem.The fifth part is the conclusive part. Based on specific circumstances, we classify the penalties for marital rape into three categories: convicting and penalizing as the crime of rape, convicting as rape but reducing penalties, non-criminal behavior.Duo to the particularity, complexity and sensibility of marital rape, we should be prudent when dealing with marital rape. Criminal penalty is only applicable to the unusual marital rape cases in which the couples has appealed for divorce, and reducing penalty is also necessary to provide more free space to the public.