| The phenomenon of marital rape has long existed in the history, but it was not even an issue until 1970s when it began to be promoted by feminism. It not only violates the wife's sexual autonomy but also destroys the harmony in marital relationship and family. Two similar cases resulted in totally different sentences at the beginning of the 21st century initiated heated discussions in the judicial world. Is marital rape a moral problem or a crime? Does it constitute the offence of rape? Why or why not? This thesis is trying to discuss this issue in detail, aiming at eliminating the theoretic and practical chaos concerning it.Chapter 1 defines the term"marital rape"as"In the effective marriage existing period, the husband, by forcible, threatening or other means, have sex with the wife against her will."It analyzed the characteristics of marital rape in terms of subject and object of the crime both in the objective and subjective aspect. Differentiating and analyzing the term"marital rape", the chapter concludes that the wording is not inappropriate.Chapter 2 analyzes the necessity of defining marital rape as a crime in terms of its severe social harmness, illegality and punishability.Chapter 3 introduces three views concerning the crime classification of marital rape, which are: 1. murder, mayhem, illegal detainment, crime of insult or crime of abuse; 2. offense of rape; 3. making a new term marital offence of rape or crime of enforcement. Those who hold the third view agree that marital rape constitutes an offense of rape but consider it's more proper to make a new term for the crime. Then the chapter proposed that the key to decide what crime marital rape belongs to lies in confirming whether it constitutes the offense of rape. If it doesn't, it should be classified as one of the crimes mentioned in the first view according to specific situation.Chapter 4 introduces and discusses the theories behind the supporting and the opposing views concerning whether marital rape constitutes the offence of rape or not. By pointing out the limitations of the other theories, the chapter concludes that only the full affirmation view can make itself sound plausible by quoting"the theory of coupled rights and obligations".Chapter5 supplements the author's supporting points for the full affirmation view in terms of the interpretation of spouse's right and conjugal rights, purpose of safeguarding human rights, current situation of social thoughts and culture development, the nature of marriage, as well as in the comparative perspective.Chapter 6, under the guidance of the full affirmation view, makes some suggestions for the system design. It is suggested that marital rape be classified as the case of private prosecution, that conciliation proceedings be adopted, that 6-month time limit of the legal action be set, and that unlimited self-defense not apply to marital rape.Chapter 7 is the innovative part of the thesis. It points out that the unusual situations proposed by the eclecticism are worth considering but the reasons given are logically defective. The author thinks that there are two key points in deciding whether a marital forced sexual act constitutes the offence of rape or not. One is whether it is against the wife's will; the other is whether the husband deliberately does so when he knows it is wrong, or whether it's the husband's direct intent to do so. In the certain periods and certain cases given by the eclecticism, the points are relatively easy to confirm, which is why marital rapes under those circumstances are mostly judged offence of rape in judicial practice. With the nature of complexity, marital rapes cannot be handled in uniformity in all cases. Instead, concrete analysis should be made for a concrete case, which does not violate the full affirmation view and which is instead the correct application of the view, without connivance nor wronging.The chapter also proposes different modes in processing marital rape by making distinctions between situations: normal marriage existing period, abnormal marriage existing period (separation period because of being incompatible and divorce suit period) and public situation (with other people present). The author believes that only the cases where the husband, in the normal marriage existing period, by forcible, threatening or other means, has sex with the wife against her will constitute offences of rape. Cases where the husband does so while the wife is asleep or drunk, or even does so after drugging the wife with aphrodisiacal, do not constitute offence of rape. In the abnormal marriage existing period, with more or less chasm in between, the husband or a general rational person cannot presume that the sexual relationship doesn't go against the wife's will, or even he can presume that that is against her will. During the period, the husband can not have sex with the wife in a forcible way without the wife's expression of approval. So in this circumstance, a sexual act by forcible, threatening or any other means constitutes the offence of rape. In a public situation, it's conventional that the wife opposes sexual act. So the husband can not have sex with the wife in a forcible way without the wife's expression of approval. Otherwise it constitutes the offence of rape, no matter by forcible, threatening or any other means.Still the chapter points out that there exists a problem of unreasonably light punishment in handling cases of marital rape. The author thinks the case should be strictly dealt with in incrimination. However, once it is incriminated, it should not be handled with lesser punishment or reduced punishment without any reason but being martial rape, for it violates the principle that the punishment accords with the responsibility for the offence. Unless the wife requests for lesser or reduced punishment, the court should inflict regular punishment.The tag points out the total repudiation view and the eclecticism don't count for nothing because they at least bring about the particularity and complexity of marital rape, which reminds the author of the necessity of a supporting system design which differs from that from usual offences of rape, and the need of referring to the useful thoughts of the eclecticism in concrete operations to make a concrete analysis of a concrete situation. It not only overcomes the theoretical limitation of the eclecticism but also absorbs its practical value. As for whether it's necessary to make a term"marital offence of rape"considering the particularity of marital rape, the author thinks it should be all right. As long as the series of supporting system design and settling principles are made clear, whether to make a new term for the crime is only an issue of legislation...
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