A Study On The Incrimination Of Marital Rape With The Perspective Of Social Gender Theory

Marital rape is a highly controversial topic in Chinese criminal academia. It is defined as the husband raping his wife by force, threat or any other means. Currently in China, marital rape is considered as a common phenomenon that has been criticized and condemned morally but not a crime that should be punished by the criminal law. The reasons for marital rape becoming such a controversial issue are concluded as follows:the evasive legal provision causes the inconsistent results in the juridical practice of marital rape, which not only has brought an adverse effect on the authority of law but also has sparked off a heated debate on this issue in jurisprudential circle.Considering the great theoretic and practical value of this issue, this paper tries to find the root of the problem why marital rape has not been regulated by the criminal law from three perspectives of legislation, juridical practice and legal theory. Then this article tries to prove the necessity and the feasibility of marital crime being criminalized as well as to research for the effective ways for the incrimination of marital rape. In order to achieve the research targets above, this thesis adopts Social Gender Theory as the analysis perspective based on two main reasons:On one hand, marital rape is not only the question of law but also a social problem; accordingly, the study on this issue calls for the research methods of sociology in addition to the law research methods. One the other hand, Social Gender Theory can help discover and analyze the gender inequality behind the phenomenon of marital rape, which will provide more convincing theoretical support for the incrimination of marital rape.This research finds that the majority in the field of law incline to take the opposite point of view for the incrimination of marital rape through the Social Gender Analysis of the rape provision, the marital rape cases and the relative academic viewpoints. This inclination is bedded on implicit consent to the gender inequality and the maintenance of male chauvinism, in light of which, the validity of the inclination does not exist. Therefore, this thesis moved on to analyze the necessity and the feasibility of the incrimination of marital rape:marital rape is necessary to be incriminated with the purpose of promoting the gender equality realized throughout the criminal legislation, providing the sound protection for women’s sexual rights and building up the harmonious social order featuring the gender equality. Marital rape can be incriminated in the condition of the social attitudes’ development, the gender mainstreaming in the law area and the protective function and the basic principles provided by the criminal law. At the end of the paper, the effective way for the incrimination of marital rape is suggested as follows:Add a new article to the current provision about the crime of rape, whose content is that marital rape is a particular case of the crime of rape, which shall be handled only upon complaint during the prosecution limitation of one year.