Forced sex in marriage?

Simply put, forced sexual behavior within marriage refers to the husband using some violent or coercive methods to force sexual intercourse on his wife when she is unwilling. Forced sexual behavior within marriage is also called marital rape. In real life, marital rape is a very common phenomenon in life. When this happens, most women usually choose to endure it.

Marital rape refers to the act of a husband forcing his wife to have sexual intercourse against her will by means of violence, coercion or other means. The phenomenon of marital rape is not unfamiliar in real life, and there has always been controversy in legal theory. In principle, my country's criminal law excludes from rape the behavior of a husband forcing sexual intercourse on his wife against her will during a legal marriage. If it causes injury or other serious circumstances such as abuse, he may be charged with other crimes such as intentional injury and abuse.

Marital rape is an act of domestic sexual violence, which reflects the discrimination and destruction of women by feudal culture.

Those who deny marital rape believe that an important function of marriage is to ensure that the sexual needs of couples are legally recognized and stabilized, and that legalizing marital rape will undermine this stability and also cause unrest in social order. Moreover, at the beginning of the marriage, both parties made a general commitment to give up the right to refuse sex. Therefore, sexual behavior should be the wife's legal obligation during the marriage, and she should not refuse to perform it.

Those who affirm marital rape believe that in a society ruled by law, sexual rights and the right to survival are almost integrated and are the most basic rights of citizens. They cannot be deprived without strict legal procedures. Marriage, as a special contractual relationship, can restrict the sexual rights of both parties to the contract, but it can never deprive either party of their sexual rights. The right to dispose of one's own body is still in the hands of the wife.

There are two problems with the understanding of marital rape:

(1) The time issue, that is, how to determine the marital relationship, which is the main difference between marital rape and general rape;

(2) The means used in rape, such as violence, coercion and other methods, vary in intensity. How to define them is one of the difficulties in identifying marital rape. [3]

There are two situations for the establishment of a marital relationship. One is that in accordance with relevant legal provisions, a marital relationship is established when both parties voluntarily and legally register and obtain a marriage certificate. The other is a de facto marriage, that is, a man and a woman who meet the substantive conditions for marriage, although they have not registered with the civil affairs department and obtained a marriage certificate, but considering that both parties voluntarily live together and have sexual intercourse for the purpose of living together and taking care of each other, the law considers this to be a marriage relationship. The first case is confirmed in the form prescribed by law, and the second case is determined based on the substantive conditions of the marriage. Determining the establishment of a marriage relationship based on a substantive relationship is more in line with the nature of marriage and more reasonable.

The main difference between marital rape and general rape is the existence of a marriage relationship. The existence of marriage will have a great impact on the identification of rape because marriage has a certain degree of recognition of sexual behavior, that is, marriage has a protective effect on the general way of sexual behavior, such as when both parties flirt with each other, or the wife refuses to have sex on the surface but hopes that her husband will have sex with her and her way of refusing is not so strong, or the wife is forced to have sex when she is in a bad mood but does not completely blame her husband afterwards and sexual intercourse occurs again, etc. In these cases, it is not appropriate to identify them as rape. However, a crime occurs when the form of sexual behavior clearly exceeds the protection provided by the law for sexual behavior. For example, if a wife does not want to continue living with her husband for some reason and refuses to have sexual intercourse with him, in this case, the husband knows that his wife does not want to have sexual intercourse with him, but insists on having sexual intercourse with her and uses violence to eliminate resistance. This should be considered marital rape.