Research In Crime Constituting Of The Inside Forcible Rape

Marital rape is a kind of objective existence of domestic violence, violence as much as the act of rape in general, from physical or emotional damage to women than the general domestic violence. Domestic violence in recent years has slowly social attention given to the condemned morally, for the perpetrators of domestic violence, the law also allowed by the duly punished. However, due to the problem of the shackles of traditional Chinese thought the privacy of the family relationship between husband and wife for marital rape victims often fail to get proper legal protection has been in the black box. Whether incriminating did not give a clear legal definition of marital rape as a result of our current legal, so let the judiciary also significantly powerless in dealing with such cases. With the thinking of the depth of the protection of human rights, the protection of the rights and interests of women within marriage more and more attention. The marital rape incriminate community in recent years has also been put out, whether it constitutes a crime in the legal community and the judiciary is a very sensitive issue. Whether or not to constitute a crime in our criminal law community basically formed three says:Negative says, Definitely says, Compromise says.Negative says is the mainstream doctrine of China’s criminal law scholars believe that marital rape is different from the general behavior of the rape, which occurred in the relationship between husband and wife during the subsistence of marriage to compulsive sexual behavior exemption, a husband to rape his wife can not and should be identified as rape. Definitely say they believe constitutes a crime of marital rape, marital rape incriminate China’s criminal law does not violate the principle of legality, marital rape constitutes rape. Deny that completely ignored the legitimate rights and interests of women have marital disregard and trample on the rights of women. And say for sure that also did not take into account the existence of the marital relationship, the wife’s sexual autonomy is too absolute. The two doctrines are not conducive to the protection of women and family harmony. With the progress of the times and the world legal community and the judiciary to redefine rape within marriage, compromise said no attendant. The compromise said substance is also a negative say that marital rape is not in any case constitute the offense of marital rape, in certain circumstances, it can only be limited to the establishment. Constitute a crime in addition to meet crime constitute the four basic elements, must also meet the following two conditions:first, must have a legal marriage between the perpetrator and the victim; marital rape, marital rape identified should be limited in wife have a legitimate reason to may waive conditions cohabitation. Compared with ordinary rape marital rape, they have similar legal characteristics, but between them and there is a large difference recognized marital rape, in addition to the purpose of considering marital rape behavior, motivation, should harmful to society, the main focus to consider the behavior of the particularity of the factors. The compromise left to separate from the ordinary rape marital rape, is conducive to the fight against crime and the protection of woman’s rights, also played a role in promoting family harmony.Marital rape in our country also belongs to a relatively nascent concept to make explicit provisions of our legislation does not constitute a crime of marital rape, so when the judiciary to face marital rape cases, often for the same case but to make a completely different judgment. The absence of a clear legislative tend to indulge the criminals, causing judicial injustice. Highlights of marital rape legislation is particularly important. Many countries marital rape is a crime, foreign study early, and the breakthrough in the legislative. On the theoretical basis of the major developed countries in the world for marital rape whether incriminating draws its legislative breakthrough this year. Propose the following legislative proposals: independently established marital rape in the Penal Code; established as a private prosecution cases of marital rape, no trial without complaint; introduction of mediation system and the tort system and the principle of combining punishment with leniency; applicable penalties for marital rape. I believe that with the progress of society, changing people’s attitudes, the development of theoretical research, the enhancement of woman’s rights awareness and legislation are maturing, marital rape necessarily in the legal field, a place for itself. Therefore, the study of marital rape incrimination issue has important theoretical and practical significance.