Research On Marital Rape

The problem of spousal rape is one of the most controversial problems. That a husband forces his wife to have sexual intercourse constitutes a spousal rape. The substance of spousal rape is sexual violence committed by spouse. It not only violates the wife's sexual right but also destroys the relationship of marriage and family. Therefore, the relationship between the rights and obligations of spouses may lose balance. The ground for the criminalization of spousal rape under some certain circumstances can be found in the existing marriage law and criminal law of China. What's more, in order to make it explicit, some modification in relevant legislation should be made.This article consists of six parts as well as introduction and ending, nearly 48,000 words altogether.Introduction. In this part some background of research upon the issue of spousal rape are introduced simply. The author's writing construction is also stated.Part Ⅰ------Definition and characteristic of spousal rape. As far as spousalrape is concerned, there's no unite standard on definition and characteristic of it currently, which is needed to distinguish it from common rape. So it is necessary to give a relatively scientific definition of spousal rape, and probe into the characteristics of spousal rape which includes four part: (1) subject of action. (2) subjective aspects of action. (3) object of action. (4) objective aspects of action.Part Ⅱ------The evolution of spousal rape. From the perspective of thehistory of "exempting husband from rape", conclusions can be drawn that "no rape within marriage" has lost its social foundation and the concept of "rape existing within marriage" has been established quietly. The women liberation movement concerns women's right first in public fields such as politics, law, etc., and then also pays attention to private field, including the sexual relations. Thus the problem of spousal rape and its criminal responsibility should be inquired. Nowadays it is a worldwide tendency to criminalize the act of spousal rape.Part Ⅲ------Analysis on the various viewpoints of spousal rape. It's a mostdisputed question whether we can evaluate spousal rape in the crime of rape.The theory of criminal law has three conflict views: both positive theory and negative theory have their own defects, the author regards that only eclectic theory is the best method to deal with the problem of spousal rape.Part IV------Spousal rape in China. Quotating the cases declared by thecourt about Bai Junfeng and Wang weiming, who are both accused of rape in marriage, the author shows the attitude of the courts towards this problem, then poses that we should explain crime code article 236 of the criminal law according to the need of society. The new marriage law has been revised based on the marriage law of 1980, as a result, great achievement has been attained on the aspects of husband-wife properties and legal responsibilities. Furthermore, we could find a firm foundation for constructing a new system against spousal rape with interpretation of the existing marriage law.Part V------Designing criminal policy responding system to the issue ofspousal rape. By method of analyzing the factors which influence the criminalization of spousal rape, we could draw a conclusion that the responding definition and punishment by criminal law to such rape should be less stronger. In other words, only some certain spousal rape with serious social harmfulness can be criminalized, as to the others with less harmfulness, ethics-based punishment as well as marriage law and administrative law can be involved to deal with it.Part VI------Suggestions on the legislation improvement of spousal rape.Based on probing into the distinctions between common rape and spousal rape, linking to relevant theories and practice, drawing on the legislation experience of foreign countries, suggestions should include: (1) accommodation principles. (2) private prosecution principle. (3) definite limitation of claim. (4) criminal includes wife. (5) light punishment. (6) criminalization by interpretation of law or by legislation.Ending. It's a brief conclusion of the former parts. At present, it is still hard to prevent spousal rape. However, multilateral cooperation among government and society should be more prosperous, the whole country should stick on trying to take all efficient measures to resolve the problem concerning spousal rape.