| The crime of rape is an ancient natural crime.Due to the particularity of the object of rape,the investigation of the crime itself has not been interrupted.Among them,the content of the determination of the violation of women`s will is the most heated key point in the discussion atmosphere.This key point is the principle that surrounds when analyzing the crime of rape,and it is the core of the argument for other issues derived from the crime.This article takes the discussion of the nature of the crime of rape as the starting point,analyzes the academic theories about the nature of the crime of rape,reviews the different identification standards contained in the conclusions,and establishes the general identification standards of this article on violation of women’s will.In the analysis of specific issues,three situations of misunderstanding,power relationship,and marriage relationship were selected to analyze the identification of "violation of women’s will" in these three situations.The content of misunderstanding includes behavior misunderstanding and identity misunderstanding.The two kinds of misunderstanding have different identifications of "contrary to women’s will" due to their different emphasis.Compulsive behaviors that occur between subjects with power relations,because women’s own resistance signs are not clearly visible under the power status relations,so whether the benefits of the power can be avoided as a reference for the objective situation,start from the combination,this article discusses whether the behavior is illegal on the basis of facts against women’s will.Regarding the issue of “rape” in marriage,this article analyzes and summarizes the theoretical aspects of the identified viewpoints and the practical aspects of judicial practice after a comparative analysis of different viewpoints.Based on this,this article puts forward the criteria for determining the "violation of women’s will" of marital rape. |
