On Judicial Application And Legislative Improvement Of "Violation Of Women’s Will" In Chinese Criminal Law

Although the saying "violation of women’s will" is the nature of the crime of rape hasbecome a common theory, the legislative mode of rape crime of existing criminal law isnot the manifestation of women’s will, and is more partial to the perpetrator’s behavior,what’s more, the interpretation of the behavior is usually of excessive principle andsimplified and the judicial interpretation is relatively old which can not meet thedevelopment of objective situation. There are different understandings of how to identifywomen’s will, and there are diametrically opposite judgments in terms of cases of samenature, with insufficient grasp of sexual attitudes in society by both of the legislator andjudicature. Therefore, to further strengthen the theoretical study of rape crime has becomean urgent need. Although the author stands on the feminist position but do not blindlyadvocate take the women’s will as the sole criterion, and shall judge from a combination ofobjective behavior and women’s will. We shall base on the standpoint of defending femalesexual autonomy whether in judiciary or legislation, so that the will to protect the rights ofindividuals would not come to nothing when we interpret and apply to the objectivebehavior of rape, and the judgment for rape would never fails to make mistake beforeclarifying the position of women’s will in rape. This thesis will focus on the nature of rapecrime, explore the theoretical implication selectively, furthermore, learn from the UnitedStates criminal law and supplemented by relevant cases, to comb the problems that existedin rape cases especially in the aspect of means behavior and put forward own theorytendency, thus expect to benefit the theoretical research and judicial practice of rape crime.