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.