| The purpose of this dissertation is to study and analyze the real plight of Chinese sexual crime legislation and try to put forward some pertinent suggestions to improve our sex crime laws. Due to limited purpose of the study, this paper will not pursue a comprehensive study, but only the reality problems of sex crime legislation and the way the issue to be explored.Following the approach of"asking a question, then analyze & solve it", the first chapter of this dissertation defines the concepts of sex behavior, the concept of sex crime, scope and classifications of sex crime. On this ground, chapter 1 brings three burning existing questions in criminal charges of our sex crime legislation, which are legislation questions resulted from the traditional understanding on"sex", the arrangement on the criminal charges of sex crime and the way to determine the new style of sex behavior. All of these set up an antecedent standard and framework for the following discussions.In order to solve the issues raised in this paper, Chapter 2 analyzes the cultural background of the practical difficulties of sex crime legislation from a microscopic view, and reviews the historical evolution of sex crime legislation in the influence of sex cultural impact. Confucian was the mainstream culture in ancient China, which made the greatest impact on sex culture. From the Han Dynasty, Confucian culture began to restrict women's sexual rights. In Song dynasty, our sexual culture started changing into the trends of sexual taboos. Eventually, it was in Qing Dynasty that sexual inhibition culture was formed in the whole society. Legislation of sex crime was gradually perfected under the influence of our ancient sex culture. Generally speaking, sex crime legislation was relatively crude before the Tang Dynasty. Afterwards, the sex crime legislation has been further developed. Prostitution and homosexual sex crimes have been regulated in the Ming and Qing Dynasties. By end of the feudal society, sex culture and sex crime legislation have gone through significant changes. From May Fourth Movement, sex culture has changed slowly from sexual inhibition to sexual freedom. Before 1980, China still has a sexual inhibition culture. In 1980, it was slowly opening up and underwent some new changes, but the contemporary culture on the whole was still relatively conservative. The provisions about sex crimes Criminal Law in 1979 and 1997 both reflected the nature of this conservative sex culture. Because of the historical impact from sex culture and some new changes in sex culture were not reflected timely in the legislation. Sexual crime legislation lags behind social reality, which brings some practical difficulties.After a macro analysis of practical difficulties of the sex crime legislation on the cultural background and historical origin, Chapter 3, Chapter 4 and Chapter 5 analyze specifically practical difficulties of the sex crime legislation.Chapter 3 discusses the practical difficulties that caused by the"sex"in the traditional understanding. This chapter begins with the analysis on"the gender presumption"in the rape. Subjected to the influence of China's traditional Confucian culture, the legislation in rape crime has"sex assumption", which refers to the principal of the crime of rape would be male and crime is primarily aimed at women. This underlying assumption limits the scope of the punishment of the crime of rape, and causes the legislation to be divorced from practice. In fact, owing to the physical needs, women raping men is inevitable in real life. Male is hurt more greatly after being raped. The fact of male being raped has drawn increasing attention. In order to protect the equal right of women and men, rape crime in the legislation should not put emphasis on"the gender assumption"and should expand the scope of rape crime. Furthermore, the original meaning of sexual intercourse should also be expanded. Homosexual sex crimes should also be adjusted by the criminal law. This chapter also explores the organizing homosexual prostitution crime. The determinations on the nature of organizing homosexual prostitution crime are related to the understanding on the meaning of"prostitution"and"the others"in organizing prostitution crime. From the meaning of"prostitution", it is not only including female to male prostitution, but also homosexual prostitution. Homosexual prostitution exists objectively in the ancient history of our country and current society. The broadened understanding of"prostitution"accords with the new changes in contemporary sex culture and prostitution-legislative intent, which has been confirmed by police force of the provisions. The meaning of"others"in the organizing prostitution crime, no matter from the angle of objectively explanation, or literal explanation, or system explanation, includes men. Therefore, organizing a homosexual prostitution should constitute the crime of organizing prostitution.Chapter 4 of the dissertation explores the arrangement on criminal charge of sex crime legislation. Firstly, paper begins with discussions on how to control sexual harassment behavior in the criminal law. Narrowed sexual harassment has a greater impact on the society, which should be adjusted by criminal laws. Although narrowed sexual harassment is contained in lewd acts, it should adjust by sexual assault crime law. Due to the means of the crime of forcibly assaulting and molesting women is limited to coercive means, the use of non-coercive means cannot be included in the regulation scope of criminal law. Thus, the flagrant sexual harassment, which is greatly harmful, cannot be included in the regulation scope of criminal law. If these acts do not be adjusted, they will endanger sexual order in a society and do harm to victim's mind and body. In order to regulate the serious sex harassment behavior, Criminal Law should add the provisions of the crime of public indecency and indecent assault committed by opportunity. Secondly, paper explores whether promiscuous sex crime should be established. From the angle of the sociality nature of sex, sexual culture and law should regulate the sex behavior. This also applies to the promiscuous sex crime. The China's mainstream culture thinks that it is legitimacy to regulate promiscuous sex behavior, but it is not necessarily adjusted through criminal law. Current Criminal Law shows an over-concern over promiscuous behavior by the legislator. In the background of gradually increased in awareness of the rights of our citizens, it will be a reflection of protecting human rights under criminal law to group promiscuous sex behavior under non-crime category. The ethical basis of promiscuous sex behavior without victims has been changed; the Criminal Code should not adjuste it. Moreover, the social impact of promiscuous sexual behavior is similar to the acts of prostitution, the law should make the same evaluation and both can be adjusted by the public order and managing law. The Penal Code should only regulate these crime behaviors, including the crime of organizing promiscuity, and seducing and keeping gathering promiscuous sexual behavior. Thirdly, paper explores the problem of determining the accusation of spreading AIDS. On the question of determining the nature of spreading conduct of AIDS to others, the focus of the debate is whether to establish the criminal charge of deliberately spreading AIDS. It is unreasonable to regard the spread of AIDS as the act of intentional murder. AIDS is serious sexually transmitted disease; it is not economical for legislation to establish the crime of deliberately spreading AIDS separately. Therefore it should be classified as the crime of spreading venereal diseases. Then, paper analyzes the practical difficulties of the spread of venereal disease relating to sex crime. In today's society, except prostitution, there are other important means of transmitting sexually transmitted diseases, which are greatly harmful to the society. These behaviors cannot be adjusted by the crime of spreading venereal diseases. The definition on the pathway of transmission sexually diseases in the crime of spread venereal diseases must be expanded in order to solve this dilemma. Finally, paper analyses the problem of whether to establish the criminal charge of whoring with an under-age girl independently. Our current Penal Code separately sets up the criminal charge of whoring with an under-age girl triggered a series of difficult problems, such as leading to contradictory provisions of the criminal law, crime and penalty not balancing, not conducive to the protection of the rights of young girls. It arouses doubts on the necessity of separately setting up such a law. Whoring with an under-age girl and raping under-age girl are the same in nature, therefore, it is feasible to classify whoring with an under-age girl as the criminal charge of the rape. Therefore, the crime of whoring with under-age girl should be grouped into the rape.Chapter 5 of the dissertation investigates the new reality plight of sex crimes on the definition of the new type of sex behavior. This chapter firstly analyzes the problem of determining the nature of marital rape. The problem of marital rape is one of the controversy focuses between criminal law theory and judicial practice in recent years. Though there are many theories on this topic, certain kind of insufficiency still exists. This paper focuses on the sex cultural foundation for punishment of sexual crimes. It suggests that the mainstream sex culture should be fully considered in order to solve the problem of marital rape. It should not be regarded as a crime rashly, and should be depended by the culture to make a final judgment. Accordingly, morality adjustment is a feasible solution to be taken at this stage. Secondly, paper explores ways of regulating the Iinternet nude-talk. Currently, there are three main forms, which are point-to-point nude-talk, gathering nude-talk and profitable nude-talk. Point-to-point nude-talk should be adjusted through the moral. Gathering nude-talk and profitable nude-talk have greater social impact and thus should be adjusted by the Criminal Code. From current effective criminal law, profitable nude-talk should be classified under organizing immoral performance crime; whereas gathering nude-talk should be under promiscuous sex crime due to its nature of organize and promiscuousness.In facing the reality of the plight of our crime legislation, Chapter 6 of the dissertation has specifically put forward ideas to solve practical problems. Firstly, it explores the reality of the plight of sexual crimes legislation from the angle of macro consideration. The realistic plight of sex crime in China today causes many limitations on sex crime legislation, such as neglecting the protection of male sexual right, understanding certain sex crime legislation adherence to the traditional ideas on sex, sex crime accusation setting is not scientific and constituting elements of a sex crime are not reasonable. To address these shortcomings, it should keep to these principles of legislation: following the call from the reality, equal protection of sexual rights, in line with the humility character of criminal law, learning from distillation of foreign legislation, rooting from our native sex culture, and to maintain stability and unity of Penal Code, such as the principle of future legislation. Under the guidance of this legislation principle in macro, the dissertation recommends to resolve the plight of the reality of sex crimes legislation specifically. Among them, there are suggestions on perfecting rape-crime legislation, lewd-crime legislation, promiscuity-crime legislation and prostitution-crimes laws. Besides these suggestions, paper also provides some proposals on solving real predicaments faced by our crime legislation.The innovation of this dissertation is to analyze the cause of the practical difficulties faced by China's sex crime legislation base on its cultural background and the sexual crime legislation history from the perspective of practical needs. Accordingly, it further analyzes specifically on the practical difficulties faced by China's sex crime legislation. On the basis of the analysis, paper puts forward the solutions to the plight of sex crime legislation and provides a new research thread for further in-depth study on sex crimes.
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