从性义务到性合意——论中国婚内强制性行为何以为罪

From Sex as Duty to Consensual Sex: Why Forced Sex in Marriage Should Be a Crime in China

进入21世纪以来,婚内强奸一直是中国学界讨论的话题,但是也始终争执不下。笔者以为婚内强奸就是犯罪,因为现代婚姻法中夫妻都是独立主体,各自享有合法的性自由,夫妻之间的性行为应是各方以自由意志为基础而达成的合意行为,而不是单方性义务;单方强制性行为违背妇女意志,按照中国刑法规定就是犯罪。但是婚内强奸有其特殊性,应以当事人亲告作为法律介入的底线,并由当事人决定婚姻是否存续以及应否存续,不能让婚姻成为强奸的免罪牌。

Since entering into the 21st century, marital rape has been a topic in academic discussions, and debates without results. The paper holds that marital rape is a crime, because according to modem marriage law, either the husband or the wife is an independent individual and they have respective legal sexual fi＇eedom on the basis of their free will. Sex in marriage should be consensual and based on the free will of the two parties, rather than the wife＇s unilateral obligation. Husbands forcing sex on their wives against their wills is a crime in accordance with relevant provisions of the criminal law of China. But, marital rape has its particularity, and reports by the marital parties should be enough for legal intervention as well as the basis for the parties involved to decide the continuity of their marriage. Marriage certificates should not shelter rape from criminal charges.