婚内强奸是否应定强奸罪,在学界有否定说、肯定说。否定说的缺陷在于未能认识到,妻子是独立的个体,婚姻不是性权利的让渡,配偶权不能当然实施性暴力,同居权也只是请求权。婚内强奸符合犯罪特征,应该认定为犯罪。 Affirmative rape should be rape in marriage, denied in the academic community, said affirmatively. The flaw of denial is that it fails to recognize that the wife is an independent individual and that marriage is not a transfer of sexual rights, that spouses’ rights can not, of course, be subjected to sexual violence and that cohabitation rights are merely claims. Marital rape conforms to the characteristics of a crime and should be considered a crime.