강간죄의 객체에 대한 해석론과 형법정책론- 법률상의 처를 중심으로 -

Stereotypes and misunderstanding are common in discussions of wife rape. The common notion of rape is not one that includes a martial context. In fact, a martial rape exemption legally shielded husbands from being charged with the rape of their wives, and this exemption was not successfully challenged until the late 1970s in Western World. The longstanding tradition of failing to recognize wife rape as a problem reflects cultural belief about men, women and sexuality that have interfered with the acknowledgement of and societal response to wife rape. Such belief are imbedded in notions such as the idea that woman's sexuality is a commodity that can be owned by her father or husband, the belief that what happens between husband and wife in the bedroom is a private matter, that a man is entitled to sexual relations with his wife, and that a wife should consensually engage in sex with her husband, thus making rape “unnecessary”. Korean Supreme Court still has a attitude that wife is not the object to the rape by the husband. and a lots of professor also have denied the wife rape. But recently Pusan criminal high court recognized wife rape. After this judgement, discussion about wife rape is hot issue in our society. To my opinion, I think that wife rape should be recognized. The reason are followings. The first, it is reasonable that ‘woman’ in the Criminal Code article 297 include the wife from the respect of interpretation Second, The husband is not entitled to sexual relations with his wife, and wife have to agree a sex with husband at any time and any where. That is wife has a right to self determination to the sex. Third, the husband's duty of care to the wife go in advance of wife's duty of agree to sex with husband. But Charge with wife rape should be approached with discretion. Because actually Charge with wife rape can destroy the family forever.