婚内强奸行为的刑法分析

婚内强奸现象由来已久，近来几起案件的不同判决引起了社会关注，遂成为理论热点。从传统意义上看，婚内强奸似符合犯罪构成的“四要件说”，当构成强奸罪。不过，鉴于婚内强奸与一般强奸行为的差异，对婚内强奸行为的认定不应草率以构成要件而论。在现行刑法的分析基础上，充分考虑婚内强奸行为所涉及的具体问题和各方面影响，不宜将该行为认定为强奸罪，也无需修改刑法另设新罪，完全可以在既有罪名体系之下，以虐待或故意伤害视之。

The Analysis of Criminal Law on Marital Rape

Marital rape is a phenomenon which exists over a long period. Recently, several cases with different judgments have attracted public concern, which make it a hotspot issue. From the traditional point of view, marital rape shall be accord with the ＂four elements＂ of crime constitution, and is a tupe of the forcible rape. However, taking into account the difference in marital rape and general rape, it＇s perfunctory to affirm marital rape just according to the ＂four elements＂. Based on the analysis of the current criminal laws and a full con- sideration of related problems and various aspects of the impact of marital rape, author think it＇s improper to i- dentify this behavior as the crime of rape, and also need not to modify the criminal law. We can regard it as maltreatment or willful injury under current charging system.