| dc.description.abstract | This research is intended to find a way to empirically improve the laws on spousal sexual assaults in the Chinese Mainland by making a comparison of the laws on spousal sexual assaults on both sides of the Taiwan Straits. In this research, legal provision retrieval and judicial precedent retrieval are used as research tools. Scholars’ views, legal provisions and cases regarding spousal sexual assaults on both sides of the Taiwan Straits were searched first. Then scholars’ views, legislation and cases regarding spousal sexual assaults on both sides of the Taiwan Straits were compared. The following research conclusions were drawn:
The Chinese Mainland has made much progress in the legislation on spousal sexual assaults. However, perhaps due to the limitation by social culture or for the sake of maintaining stability, it still has a long way to go in terms of the personal protection for spousal victims in a family. Therefore, in respect of future legislation and amendments to laws on spousal sexual assaults, the Chinese Mainland should, based on the legislation and social status quo in the Chinese Mainland, learn from the advanced practices of legislation and administration of justice regarding spousal sexual assaults in Taiwan of China and make efforts in the following aspects.
I. Define a spousal sexual assault as a crime. Spousal sexual violence is still a main form of domestic violence. Defining a spousal sexual assault as a crime is conducive to protecting sexual autonomy and preventing other serious family crimes. Since spousal sexual assaults need to be regulated by the criminal law, it is necessary to define a spousal sexual assault as a crime. Meanwhile, defining a spousal sexual assault as a crime is reasonable, reflecting the progress of thoughts on the rule of law and being in line with the international trend. In addition, defining a spousal sexual assault as a crime is feasible and does not violate the principle of legality. Modern technology can also help obtaining evidence of spousal sexual assaults. Defining a spousal sexual assault as a crime is acceptable in the Chinese Mainland.
II. Suggestions on the legislation relevant to the crime. To define a spousal sexual assault as a crime in legal provisions, the legislation in Taiwan of China may be used for reference, i.e. both men and women should be the objects protected the crime of spousal sexual assault and can become a principal offender committing the crime of spousal sexual assault so as to truly and equally protect the sexual autonomy of men and women. In judicial practice, the crime of spousal sexual assault should not be determined on the premise of an abnormal marital relationship so as not to make the crime of spousal sexual assault exist in name only. In terms of the design of the crime, the crime handled only with complaint may be set, and a proviso clause may be set on the basis of the crime handled only with complaint to ensure that a spouse may still be protected under the condition that he/she has been sexually assaulted severely and cannot engage in private prosecution. In terms of circumstances of the crime of spousal sexual assault, aggravated offense by circumstances, aggregated consequential offense and combinative crime may be set so that the offender is subject to corresponding specific punishments in different circumstances.
III. Suggestions on the legislation irrelevant to the crime. Sexual violence is included in the Anti-Domestic Violence Law. Thus, the provisions on protective orders in the same law are applicable to spousal sexual assaults to play a role in preventing spousal sexual assaults, protect the personal safety of victims to the largest extent, and effectively safeguard the legitimate rights and interests of victims. Meanwhile, it should be made clear that a sexual assault offender is responsible for making civil compensation to the victim, and spousal sexual assault falls under the category of domestic violence and is treated as one of statutory grounds for divorce. | en_US |