A Comparative Study Of Legislative Of Rape Crime

According to the provision stipulated in Article 236 of Criminal Law of the People's Republic of China, the crime of rape refers to the action of raping a woman by violence, coercion or any other means. The action of forcing the woman to have sexual intercourse violates the will of the woman. Whoever has sexual intercourse with a girl under the age of 14 shall be deemed to have committed rape and shall be given a heavier punishment.The crime of rape has already become a world wide crime because it is a crime seriously causing great damage to women's body and soul. Therefore, the criminal law in various countries takes it as a serious crime. With the development of history, people have more profound understanding of the object, means, the victim of the rape crime and this is embodied in the construction of criminal law in each country. By comparing the rape crime in foreign countries and related sex crimes with those in our country, we can know the latest changes in legal construction in foreign countries and can provide beneficial suggestions to the legal construction on the rape crime in our country.Firstly, compared with the former legislations, the legislation of rape crime reflects different value orientations. Before the twentieth century, foreign countries defined rape crime as offense of social standards and interests, regulating it in the range of "a crime offending public moral and kind customs" or "a crime harming social customs". But now, many countries has adjusted the statement of the nature of rape crime, taking it as a crime offending individual rights and interests. This is a worldwide trend in the legislation in many countries.Secondly, in the components of rape crime, the subject of rape crime refers to the any natural person exceeding the statutory liability age who practiced action of raping. Then it must be male. However, both male and female can be the subject of committing rape crime in western countries. Whether the husband can be the subject of rape crime is ambiguous. In our country, this dispute still exists. In the action of rape crime, raping refers to intentionally sexual intercourse by male to a female without the consent of the female. According to traditional theory, sexual intercourse means the insertion of penis into vagina. But some foreign countries take fellatio and anal sex into consideration besides vagina sex.The means of rape crime generally include violence, threaten, cheat, the victim in certain conditions and so on in British and American general law system, which is more particular than those in our country. Whether the general law system or civil law system hold that the intention of rape crime exists.Thirdly, different countries have different regulations of the criminal liability of rape crime. Rape crime is a serious crime in British and American and other districts and should bear heavier punishment. In the civil law system countries, the punishment of rape crime is also comparatively heavy.Fourthly, in foreign countries, besides normal rape crime in criminal law, there is constructive compulsory rape. It has different definitions in different countries. In this thesis, we mainly introduce rape taking the chance, raping girls under the age of fourteen, raping the protege and raping resulting in death, which are all covered by rape crime in our country.Fifthly, we provide our suggestions to the legislation of the rape crime. In order to cope with the change of the concept of rape crime and the request of fighting against rape crime and legal practice, we hold that several amendments should be made to rape crime in legislation. 1. The amendment of the definition and structure of rape crime due to the changes mentioned above.2. We hold that the standard of insertion theory of raping girls under the age of 14 in our country's legislation is not scientific. The theory of the completion of insertion of rape crime (raping girls under the age of 14 included) should be unified in legal reasoning, legislation, and judicial practices. We oppose and demand the abolition of the standardizations of the contact theory of raping girls under the age of 14.3. Acknowledge the rape of spouse conditionally. This is a worldwide trend of legislation. Many countries have adopted positive position to this regulation instead of negative position. The society is gradually eliminating the privilege of men over women sexually in law. Of course ,the scope of rape of spouse should be restricted within "certain circumstances".4. We will talk about the spiritual compensation of the damage caused by rape crime. The spiritual compensation to the victim should be connected with the criminal liability and the law should demand the criminal compensate the spiritual damage to the victim and thus protect the spiritual interest of the victim. The rape crime violates the sexual self-determination of the victim, causing not only bodily suffering but also spiritual injury. The spiritual compensation to the victim in rape crime was established long ago in western legislation and judicature. But in Chinese legislation, there are no attached common pleas of spiritual compensation during criminal procedure or after the criminal trial. This regulation punishes the criminal but ignores the comfort of the victim spiritually. Therefore, we hold that it is necessary to attach common pleas by victim in criminal procedure so as to genuinely protect the rights and interests of the victim in rape crime.