【婚姻家庭】普法啦： 说法识法：性侵妻子可判刑 结婚非免罪金牌说法识法：性侵妻子可判刑 结婚非免罪金牌
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黄俊贤
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2024年8月25日 05:00 AM
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38岁男子不顾妻子意愿，两次强行性侵，落网后还数次要求岳母说服女儿销案，一个月前被高庭判坐牢八年和打鞭六下。这也是本地在2020年正式废除婚内强奸豁免权后，首起性侵妻子被治罪的案件，可视为标志性案例（landmark case）。本期《说法识法》邀请三名律师和两个妇女组织，讨论这起案件的判决意义。
本地首起男子性侵妻子罪成被判的案件，标志着法律将保护所有遭受性虐待的女性，即便施暴者是受害人的丈夫。
受访律师说，政府在2007年修订《刑事法典》时，已对婚内强奸豁免权作出修改。修订规定，当妻子获得个人保护令，或离婚程序已启动——夫妻根据临时离婚判决或书面分居协议分开居住时，丈夫将不再享有婚内强奸的豁免权。然而，这一修订当时仅限于保护婚姻已明显破裂的妇女。
2019年，政府通过刑事法改革法案，彻底废除婚内强奸的豁免权，并在2020年正式生效。换句话说，刑事法典第375节强奸罪条文下原本存在一项条例，规定在婚内犯下强奸罪的被告可享有豁免权，但随着上述法案的
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华文新闻每次都会漏掉一些关键信息
In sentencing, Justice Hoo Sheau Peng said this appears to be the first case that considers a spousal relationship and whether it gives rise to the abuse or breach of trust in sexual offences.
She cited past court judgments which illustrated various principles: For example, a woman who is raped by someone they know suffers greater harm than if they were raped by a stranger.
However, the court concluded in that case that the effect of any prior relationship between parties will depend on the circumstances of the case.
Therefore, a prior relationship can be treated as a neutral factor as a starting point, before becoming aggravating or mitigating depending on the circumstances of each case.
In this particular case, Justice Hoo said she agreed with the prosecution that the victim had placed some degree of trust in her husband.
For example, she allowed him to return to their matrimonial flat and stayed in the master bedroom alone with him despite the "strange" and tumultuous nature of their marriage at that time.
However, the judge said the abuse of trust was not of the highest severity or most egregious, compared with relationships between a parent and a child or a teacher and a student.
Justice Hoo said a power imbalance was "absent here", but clarified that it is not to say that power imbalances can never be present in spousal relationships.
Justice Hoo said the couple had "a pattern of using sex to resolve their marital issues", and that at the time of the offence, the wife was leaning more towards a divorce while the husband wanted to repair the marriage.
She said the man's actions were "atypical" and that she accepted the defence's case that the man had likely engaged in the offences in a "misguided attempt" to repair their relationship.
Even though the couple had been separated for several months at the time, they would meet and have sex, the judge noted.
She said that while the offender's conduct was reprehensible, she did not find that the abuse of his wife's trust particularly heightened his culpability.
She cited past court judgments which illustrated various principles: For example, a woman who is raped by someone they know suffers greater harm than if they were raped by a stranger.
However, the court concluded in that case that the effect of any prior relationship between parties will depend on the circumstances of the case.
Therefore, a prior relationship can be treated as a neutral factor as a starting point, before becoming aggravating or mitigating depending on the circumstances of each case.
In this particular case, Justice Hoo said she agreed with the prosecution that the victim had placed some degree of trust in her husband.
For example, she allowed him to return to their matrimonial flat and stayed in the master bedroom alone with him despite the "strange" and tumultuous nature of their marriage at that time.
However, the judge said the abuse of trust was not of the highest severity or most egregious, compared with relationships between a parent and a child or a teacher and a student.
Justice Hoo said a power imbalance was "absent here", but clarified that it is not to say that power imbalances can never be present in spousal relationships.
Justice Hoo said the couple had "a pattern of using sex to resolve their marital issues", and that at the time of the offence, the wife was leaning more towards a divorce while the husband wanted to repair the marriage.
She said the man's actions were "atypical" and that she accepted the defence's case that the man had likely engaged in the offences in a "misguided attempt" to repair their relationship.
Even though the couple had been separated for several months at the time, they would meet and have sex, the judge noted.
She said that while the offender's conduct was reprehensible, she did not find that the abuse of his wife's trust particularly heightened his culpability.
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