Criminal Law Analysis Of Marital Rape

In our country,because there is no explicit stipulation on marital rape in the law,there is a great dispute between academic theory and judicial practice on whether marital rape constitutes rape in marriage.This not only leads to can't effectively regulate marital rape behavior,to protect the basic personal rights and interests of married women,but also can cause the offender unable to accurately predict the nature of their actions,against the criminal law.Under the above background,to clear the nature of the marital rape behavior,the behavior is effective legal regulation,to the concept of marital rape,characteristics and controversial explain the basic content,find out the rules and the shortcomings of the referee,and put forward the perfect measures.Marital rape has the characteristics of strong concealment,long duration,serious harmful consequences,low infringement cost and high social tolerance.It has also become the trend of legislation in various countries to criminalize it in explicit terms.At present,there are three kinds of views on the characterization of marital rape in the theory circle of criminal law in China: negative,affirmative and eclectic.In judicial practice,the treatment of marital rape is mostly based on compromise,and there are different characteristics of marital rape that occur during the marriage of different conditions.However,due to the lack of explicit regulation of marital rape in our criminal law,the lack of clear judgment standards and reasonable judgment basis,in some cases according to the existing judgment standards can not protect the victims 'legal rights and interests.For example,in China's judicial practice,marital rape is not considered to constitute rape during the "normal period of marriage".For accidental marital rape during this period,if the criteria for criminalizing the crime of intentional injury are not met,Whether or not it can meet the criteria for the criminalization of the crime of abuse,because there is no relevant provision in the current law,and it is difficult to regulate the act of marital rape as a crime of abuse according to the "negative theory".At this time,there is a loophole in the criminal law protection of the victim's personal rights.Marital rape is a sexual offence in nature,and it should be determined whether or not it is established against the will of the woman.The nature of the act is not rigorous based on the status of the marriage.With the development of the times,more and more people recognize and accept that "marital rape" does exist.It is not only necessary in law but also feasible to explicitly criminalize it.Given the special nature of marital rape during marriage,it is crucial to address the issue by establishing offences and supporting procedures that are distinct from ordinary rape.