The Theory Of "marital Rape"

Marital rape,as a global, historic problem existing one thousand years In the middle ages, the church law creating "lives apart the system " in China during the period of reform and "waste harmless, and female learning" seems to be all the floating cloud. It didn’t give the female equal sexual autonomy, and sexual taboo also makes women always wandering in the sexual equality borders, and don’t dare to disobey. But with women rights and interests, the power of protection has started to be improved, the feminist movement constantly develop, the head of the haze shrouded in women will have to slow dissipates. Husband and wife has equal status in the family and gradually move towards to sexual rights equality. Then the nations in the world was widely accepted "husband sex exemption from the legitimacy ", which getting people’s reflection, especially since the1970s. Rape within marriage constitutes a crime or problems of legislative and judicial changes, it has entered a substantial stage. It has initially formed globalization trend. In the trend, countries of rising rape within marriage problems gradually uncover the surface of the water, the harm to the severity of the problem is the tip of the iceberg, then the problem of derivatives, the varied, also naturally broken out.All countries exist the atmosphere of rape within marriage and that is not overnight, but with the feminist movement endured a long process of development. In ancient times, the western countries, usually think her husband as "sexual immunity". In mainland of China, a "sex civilization" survey show(1989-1999) that:in the process of husband and wife sex, husband of sex forced wife accounted for2.8%of the total number of investigation, the absolute number of women victims millions of. What whether there are rape within marriage? Does marriage can be her husband sexual violence shelter? Does marriage can be resist the illegality of the sexual violence?"Within marriage" and "rape" is a encompasses? Whether the "Marital rape" is the basic ideas? Scholars both at home and abroad were at sixes and sevens. But, as the current rape within marriage abolished in her husband’s immunity, and certain of the rape within marriage husband constitute a rape, this is the world of criminal legislation trend.The so-called "mountain may attack the jade". The paper by comparison of the perspective, through the rape within marriage of Chinese and western cultural background, political and economic conditions. The system structure of the historical evolution of the comparison, is suitable for the current marital rape crime and will change it. In this process, rape within marriage rushed to punishment and this will surely lead to criminal law and society in general have gap between, produce dissident status. At the same time, it also proved that we are faced with woman’s individual freedom and marriage and family relations stability dilemma when the choice be giving priority to social order, a illegal behavior by what kind of punishment should be. This paper also lead to the principle of a legally prescribed punishment, the austerity of criminal law principles and requirements of the crime of rape within marriage paper examines.Combining with our marriage law relevant regulations and rape within marriage of judicial feasibility of analysis, and point out that in the present circumstances,contrary to the basic principles of criminal law and criminal law excessive abuse. This not only expanded the summarized, but criminal law in other laws can easily well settled areas, go against other law should play to utility. We should lead this crime into the scape of rape.