Research On The Nature & Treatment For The Forced Sexual Activity Within Marriage

Forced sexual activity within marriage is a longer more new topic, but also a global social problem. As a fact, forced sexual activity within marriage is undoubtedly as long as the history of marriage. But, it becomes a hot topic which is paid attention by the Chinese criminal law academic circle and the society in the recent years. Under thefeminist movement influence, a lot of western countries, in the legislative and judicial practice, began to identify with this opinion - forced sexual activity within marriage constitutes rape. In China, the criminal code and related judicial interpretations are not stipulate whether forced sexual activity within marriage constitutes rape or not, and this leads to a fierce debate over the theoretical circles and the different judicial decisions appears.Until today, it has more than ten years for the Wang Weiming rape matter,and guilty or not guilty should have a conclusion,but the theoretical debate has not stopped, it allows legislators to take up the issue at an evasive attitude, which lets the judicial practice be very awkward . After all, the judicial practice is impossible to avoid this problem. This article unifies the case, carries on the discussion to this question, hope that it might provide one kind of mentality for the legislation and the judicial practice. Specifically speaking, author's logic thought is just like this: First, it has carried on the rebuttal to the different three theories, and it has established their own viewpoints- in the normal marital status, the forced sexual activity does not constitute rape; in the non-normal marital status the forced sexual activity constitutes rape.Then, the article analyses the concept of the forced sexual activity within marriage and its common feature. Comparison of the behavior and focus on the difference, its mainly purpose is to indicate, respectively, based on qualitative characteristics are different. Then the author further pointed out from some theory angles why we should depend on the marital condition to analyse, thus it has provided the deeper level theory basis for own viewpoint. Finally, I compared the marital rape and rape, the general purpose is to reveal the specificity of this rape and its relatively less dangers , so as to provide some suggestions for punishment activity.Besides the introduction, this thesis consists of six major components, about 20,000 words.The first part is the subject of the case. Wang Weiming rape.The second part is the case's details. Introduced Wang Weiming in the divorce decision not yet effective period forced his wife to have the sexual activity.The third part is case's focal point. The basic question involved in this case is: the nature of forced sexual activity within marriage and how to deal with it.The fourth part is about the case's divergent opinion. This part elaborated this case's divergent opinion and the reason. The first opinion, Wang Weiming's behavior constitutes rape , the reason is: the husband can become the subject of rape; The second opinion, the reasons is: the husband should not constitute the main body of the crime of rape.The fifth part is the theoretical analysis. This part is the key content of this article. The author first carried on to the marriage ties pointed out that Wang Weiming and victim's marriage ties still existed, but their marriage ties have been at the abnormal condition.Then, on the controversial question - whether the husband can become the subject of rape, the author introduce the relevant theories and give some comments. In fact, this is a process, not only "refuted" but also "set up". About a variety of theories, the author gave a strong rebuttal, pointing out their flaws. Furthermore, the article pointed out that according to the situation of our country, only the prosecution of a divorce,can place the marriage in non-normal marital status, and only happen in such a state, the forced sexual activity within marriage can be as a rape crime. Shortly afterward, the article analyzes the concept and characteristics of the forced marital sex. Pointed out that from the behavior characteristic, in the normal status of the marriage, forced sexual activity within marriage can not be defined as rape and in the non-normal status of the marriage forced sexual activity can be defined as rape, and thus provide a basis for qualitative separately. Then again, from a higher level, the article has provided more theory bases for own viewpoint. Finally, the article compares the marital rape and the general rape, pointed out that in the non-normal status of the marriage forced sexualactivity is a special kind of sexual rape, but should be at a lighter or mitigated punishment.The sixth part is the article's conclusion. The author first summarized his research results,obtained in the total conclusion - in the normal status of the marriage,forced sexual activity within marriage can not be defined as rape and in the non-normal status of the marriage forced sexual activity can be defined as rape. Then, the author has analyzed the case, thought that Wang Weiming and victim's marriage ties belonged to the abnormal condition. In this special time,the accused person-Wang Weiming violates his wife's will, forced his wife to have sexual relations should be defined to rape.