我为什么赞成惩罚婚内强奸 – Why I am in favour of punishing marital rape

最近,江苏媒体就一件婚内强奸案的判决采访我,问我的看法。据说案子判了缓刑。我认为判得对,婚内强奸应当受到法律制裁,理由如下:

   第一,宪法是上位法,刑法、婚姻法是下位法,下位法服从上位法。宪法规定公民有不受侵犯的人身权利,这个权利不应当因为有妻子身份就失效。换言之,如果强奸确实发生了,伤害确实造成了,那无论受伤害的是陌生人还是妻子,罪名都应当成立。

第二,我国《刑法》第236条并没有将丈夫排除在强奸罪的犯罪主体之外,丈夫强奸妻子的,完全符合《刑法》第236条的构成要件。将丈夫排除在强奸罪的犯罪主体之外没有任何法律根据。换言之,丈夫强奸妻子,具有刑事违法性,理当构成强奸罪。

   第三,婚内强奸罪名不成立所依据的逻辑是男权制逻辑。在男权制婚姻中,丈夫有强奸的权利,妻子有服从的义务,因此婚内强奸罪不能成立。但是,现在的国策是男女平等,婚姻法对此也有明确规定,丈夫没有强奸妻子的权利。

   最后,不被强奸是人的个人权利,这个权利并不能因为个人进入婚姻这个契约关系而改变。这是瑞士、英国等国家承认婚内强奸罪名的根本原因。从遵从传统习俗到尊重个人权利是现代社会法律变迁的大趋势,中国势必会追随这一趋势。

Recently, Jiangsu media asked me for my opinion on a judgement about marital rape. The case was punished by a suspended prison sentence 据说案子判了缓刑. I think it was rightly judged, and marital rape should be punished by law. The reasons are as follows:

1, The constitution is the higher level of the law, the penal code and code of marriage are lower levels of the law. And the lower level of the law is subjected to the higher level. The constitution states that citizens have inviolable personal rights, and these rights should not become ineffective because one of the parties is a wife. In other words, if rape did occur, and damages were caused, regardless of whether the victim is a stranger or the wife of the person charged, charges should be established.

2, Article 236 of China’s criminal law has no clause to exclude the husband from being charged with the crime of rape, and the accusation of rape for a husband raping his wife is in full concordance with article 236 of China’s criminal law. There is no legal basis for excluding the husband from the general crime of rape. In other words, for a husband to rape his wife is criminal and against the law, and the action should be treated as the crime of rape.

3. The logic for not establishing charges in cases of marital rape is that of patriarchy. In a patriarchal marriage, the husband has a right to rape, and the wife a duty to obey, therefore there can be no marital rape. However, the national policy is now one of gender equality, and for that reason the marriage law also clearly articulates that the husband does not have the right to rape his wife.

Finally, not being right is a person’s individual human right, and this does not change when the individual enters the contractual relationship of marriage. This is the main reason why Switzerland, the UK and other countries recognise cases of marital rape. The trend of modern social and legal change is to go from respect for traditions and customs to respect for the rights of the individual, and China is bound to follow this trend.

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