criminal law
Whoever rapes a woman by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Whoever rapes a girl under the age of 14 shall be given a heavier punishment for rape. ?
Whoever rapes a woman or rapes a young girl under any of the following circumstances shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.
(a) Rape of women and young girls.
(2) Rape women and many young girls.
(3) raping a woman in public in a public place.
(4) gang rape by two or more persons.
(5) Causing serious injury, death or other serious consequences to the victim.
This is the legal provision of rape. If we only look at the provisions of the Criminal Law, we can completely define the crime of rape, because there is no exception to the description of rape in Article 236 of the Criminal Law, such as "the sexual behavior of husband and wife during the marriage relationship does not constitute this crime" or "the coercive behavior between husband and wife is not punished for this crime".
Therefore, in theory, marital coercion between husband and wife can be defined as rape.
Extended data:
China's criminal law only stipulates that the act of having sex with women against their will is rape, but it does not expressly stipulate that husbands cannot be the subject of raping their wives. Therefore, there is no legal obstacle to "marital rape".
The draft establishes "marital rape as a punishment" in two cases, one is marital rape during marital disharmony and separation, and the other is marital rape during divorce proceedings. For the second case, there should be little controversy, while for the first case, due to the lack of husband and wife separation system in China, it is easy to produce ambiguity and it is difficult to enforce the law.
Marital rape in divorce proceedings has precedent in China's judicial practice. From 65438 to 0989, the court in Xinyang, Henan Province made the first conviction of marital rape in China. The basic plot is that the husband kidnapped his wife and raped her many times with the help of relatives and friends after she filed a divorce lawsuit.
1999 Shanghai Qingpu District Court made the first judgment of marital rape in Shanghai. The plot is that the court has made a divorce judgment, but the husband raped his wife during the appeal.
In divorce proceedings, "marital rape is punished" is highly operational and has good reasons. However, during the period of marital disharmony and separation, there is no such clear line to criminalize marital rape. For example, China's marriage law stipulates that separation for two years due to emotional disharmony is the legal reason for judging the relationship between husband and wife and granting divorce.
However, China has not established a real separation system, which makes it difficult for the parties to prove whether the marriage parties separated before the prosecution and the length of separation, and it is also difficult for the court to determine.
Even in civil cases, it is more difficult to determine that the husband and wife are in a state of "emotional disharmony and separation" in criminal cases. Therefore, it is ok to convict this situation, but we should learn from the western countries to establish the system of husband and wife separation and match it.
There are two main ways of separation between husband and wife recognized by western countries: one is judicial separation, that is, the court decides to separate husband and wife and suspends their rights and obligations; Second, the agreed separation, that is, the husband and wife separated by agreement, and the rights and obligations between husband and wife were exempted, including the obligation of cohabitation. But most legislation does not recognize de facto separation (that is, separation in China's marriage law).
Sexual relationship is the core content of husband and wife's life. Usually, husband and wife have the obligation to live together, so marital rape should not be punished, but under abnormal circumstances, the obligation of cohabitation between husband and wife can be suspended to protect the wife's sexual autonomy.
It is reasonable for the draft to criminalize marital rape in divorce proceedings and separation stage. It is suggested that legislation should confirm that either spouse has the right to file a separation lawsuit, confirm the validity of the separation agreement or set up a separation registration in the marriage registry to cooperate with "marital rape as a punishment".
People's Daily Online-Beijing News: The separation system must be improved in view of "marital rape"