域外婚内强奸法之发展及其启示

古代西方在传统夫制社会下的男强女弱、男主女从的模式之下,刑法理论中的婚内强奸能否占得一席之地,无疑由于以“妻子承诺论”和“促使女方报复论”为理论支撑的“丈夫豁免”,而使婚内强奸毫无立锥之地。20世纪中后期以来,在工业革命的背景下,西方各国开始了一场规模空前、势不可挡的以追求政治、经济、性权利平等为目的的女权运动,人们开始逐步反思检讨“丈夫豁免”的正当性与否。英国、美国、德国、法国、意大利等国家先后废除“丈夫除外”原则,规定丈夫可以成为强奸罪的主体。中国刑法学界及司法部门对婚内是否有奸见仁见智。笔者提出的“耦合权利义务说”阐释了婚内强奸犯罪化立论的理论原点。

In ancient western societies, because of the principle of “immunity of the husband” supported by notions of “wife＇s commitment” and “prevention of retaliation by wife”, the concept of “marital rape” had no place in criminal law theory. Since mid and late 20th century, against the background of industrial revolution, a feminist movement of unprecedented scale and intensity has swept through Europe, taking the equality of political, economic and sexual rights between man and woman as its goal. As a result, people began to question the justification of the principle of “immunity of the husband”. The UK, the US, Germany, France, Italy and many other western countries have abandoned the principle of “exception for the husband” and provided in their criminal laws that husband could be the subject of the crime of rape. In China, scholars and judicial officials are divided among themselves on the issue of marital rape. The author puts forward the doctrine of “coupling between rights and obligations” as a theoretical starting point for the criminalization of marital rape.