A Study On Issues Of Rape

Rape, a crime that violates human nature and ethics, is one of the oldest crimes in human history. There have been a variety of theoretical researches on rape, with the major directions on sexual behavior, marital rape and rape based on cheating, etc.. One of the key factors among the components of rape is that it is against the will of the woman. Four factors should be focused on while judging whether it is against the will of the woman: the distinction between psychological concepts and juristic ones, integration of subjectivity and objectivity, not judging by the woman's resistance, and the victim's inability in identification and control. Special attention should be paid to the last factor since it can be divided into three different kinds of situations: the woman resists, the woman neither resists nor agrees and the woman does not resist yet shows agreement.When it comes to the sexual behavior in rape, the nature of sex should be considered in the first place. Sex is the nature as well as the way of reproduction of human beings; it is also a right. The origin of sex is the individual difference; thus, sex of human beings origins from the difference between men and women, which is also a preliminary component of it. From this perspective, sexual behavior between the same sex at all times and in all over the world cannot be called"sex"in the real sense, because its nature is the sexual behavior which lacks the preliminary component. Since the sexual behavior between the same sex is not"sex"in the real sense, it cannot be called rape. What's more, females cannot be direct principal offender towards males in rape; therefore, from the abstract right level and the specific physical level, the conclusion can be drawn that females cannot be direct principal offender towards males.With an examination of the meaning of marriage, it can be inferred that marriage is not only the bond of emotion but also a way of reproduction. Marriage and sex is closely related to each other, and sex is the base of emotional bonds in marriage as well as the start point of all kinds of family affections that based on marriage. However, the rights and freedom of sex should be confined in the contract of marriage. On that basis, from the angles of rights and responsibilities between husband and wife, philology, legitimate defense and judicature, sociology as well as public law and private law, a conclusion can be drawn that rape dose not exist within a marriage.To the matter of cheating rape, we can get the core of"violating woman's will"through analyses. If the victim has the wrong idea of the doer's identification, this sex intercourse violates woman's will. The victim doesn't want to have sex with the doer as her own will. She just has sex with the doer who cheats her that they know each other. This situation will be charged of the guilty of rape. If the victim has the wrong idea of the purpose of the sex intercourse, this sex intercourse would not be the only way to achieve this purpose. Other means also can achieve this aim. The victim chooses to have sex to achieve the purpose while she also has other alternatives. It can prove that she agrees the sex intercourse and doesn't violate her will. This situation will not be charged of the guilty of rape. If the victim didn't truly understand the meaning of sex intercourse, that is: it is truly a sex intercourse, but she considers it belongs to other behavior. In this way, although the woman agrees this sex intercourse, the object of this attitude is"other behavior"not sex intercourse. This kind of situation also violates woman's will, so it will be charged of the guilty of rape.