On The Conviction Of "Marital Rape" In My Country

Could a husband's rape of his wife constitute a crime of rape during the existence of their marriage?This is an issue of the times,as well as a global issue.Before the middle of the 20th century,western countries inherited the traditional Roman patriarchy and acknowledged that the husband had "marital rape immunity" and believed that it was impossible for a husband to be the subject of raping his wife.Just as in 1958,the Supreme Court of the United States of America in Massachusetts.The judgment stated:"The existence of a marriage relationship is always the defense of rape." In the same period of Chinese society,influenced by thousands of years of traditional culture,people's thoughts have been imprisoned by those like "three principles and five constants" and "marry and follow the husband" and so on.The statement that "traditional virtues" are imprisoned and that the husband rapes his wife is unheard of,so as to the people are generally unable to accept it.In this social context,the husband absolutely will not constitute the subject of rape.In the middle and late 20th century,as the Western feminist movements proceeded in full swing,the concept of human rights and the concept of equality between men and women flourished.Western countries realized that women' rights should also be protected and began to abolish the“marital rape immunity”theory gradually.The legislative amendments to the law on rape crimes no longer explicitly exclude the husband from the subject.In China,the gradual penetration of feminist jurisprudence has further awakened women' rights awareness.More and more people are aware of the serious harm of"marital rape".In judicial practice,cases of wife complaining of rape by husband have begun to appear.However,in China,there is no clear basis for conviction and punishment for "marital rape".In the judicial practice,due to the regional differences of courts and judges' different thought experiments,there are often cases where the circumstances of the case are similar but the judgment results are completely different,which leads to that the judgments are difficult to unite.To this end,the study of the crime of "marital rape" and the issue of incriminating crimes are in line with the needs of judicial adjudication and the requirements of the rule of law.In this regard,this article uses a variety of research methods to demonstrate the crime of "marital rape",and the text of this article is mainly divided into the following four parts:The first part:The meaning of "marital rape" and its characteristics.It mainly introduces the connotation and main characteristics of "marital rape";it distinguishes between "marital rape" behavior and domestic violence and the sexual behavior in the conjugal right.The second part:The controversy over the crime of "marital rape" in China.The three theories of "marital rape" within the country are introduced in detail,and the author's comments on these three doctrines.The third part:The necessity and feasibility of the crime of "marital rape" in our country.The author demonstrates these two aspects from multiple perspectives in this part.The fourth part:The concrete suggestion of "marital rape" in China.First of all,it summarizes and draws lessons from foreign legislation,and then shows the author's view that "the crime of marital rape " should be convicted and punished separately.Next,the author analyzes and demonstrates the constitutional elements of the crime and proposes punishment opinions.