Research On The Constitutionality Of The Crime Of Rape And The Crime Of Compulsory Indecency

The crime of rape and the crime of compulsory indecency are the two core stipulations of the protection of sexual rights in China's criminal law,but whether these two stipulations can still withstand the test of the constitution and provide fair and reasonable protection for citizens' sexual rights in the current social environment is a question worth considering.In today's society,the development of sex-related research is still slow,but sexual crimes are becoming more and more frequent and diversified.Under this background,after sorting out and analyzing the relevant academic data from the constitutional perspective,it is found that although the research on the two stipulations in the criminal law field is relatively rich,the research in the constitutional field is relatively scarce,and the current research in the constitutional perspective lacks a more in-depth analysis.Therefore,a detailed constitutional analysis of the two stipulations is of great significance.Taking the "Amendment to the Criminal Law of the People's Republic of China(?)" as the boundary,this paper makes a brief comparison of the current situation of the infringement of male sexual rights in judicial practice through the enumeration of cases.And from these situations,the problems in the implementation of the crime of rape and the crime of compulsory indecency are extracted,that is,men cannot be provided with reasonable protection equivalent to women in terms of sexual rights.In this regard,on the basis of the principle of constitutional equality and the spirit of respecting and protecting human dignity,it is very important to analyze whether the crime of rape and the crime of compulsory indecency meet the requirements of the Constitution.Starting with the development and evolution of the spirit of respecting and protecting human dignity in our country,this paper expounds the importance of protecting sexual rights for protecting human dignity,and on this basis analyzes whether the two stipulations conform to the spirit of protecting human dignity in the constitution.When analyzing whether the two stipulations conform to the principle of equality or not,on the basis of the international general review framework and referring to the U.S.review standards,this paper makes a detailed study of the differential treatment in the crime of rape and the crime of compulsory indecency in China.A comprehensive analysis of the reasons for the differential treatment,such as:the historical inheritance of legislation;the lag of legal provisions;the interaction between traditional culture and modern culture;the restriction on the cognitive degree of physiological function of men and women;and the narrow definition of rape;etc.and whether these reasons are still reasonable in the current social environment.Based on the above analysis,this paper concludes that the stipulations of the crime of rape and the crime of compulsory indecency are not constitutional,and can not meet the requirements of the spirit and principles of the Constitution.In order to make these two stipulations conform to the principles and spirit of the Constitution and provide equal and reasonable protection to the legitimate rights of citizens,legal workers need to further improve these two stipulations from the perspective of legislation,judicature and their own concepts.In the legislative revision,we can fully learn from the excellent experience of foreign legislation,through the analysis of the two main models of foreign legislation:one mode is to admit men as victims of the crime of rape by saying that there is no gender setting;the other mode is to protect men through crimes other than rape,and combined with the actual situation of our country,modify the relevant stipulations of the crime of rape and the crime of compulsory indecency.At the same time,the judicial interpretation should be changed accordingly,and the definition of the term "sexual intercourse" should be expanded appropriately to avoid confusion between rape and compulsory indecency.More importantly,legal workers need to change their understanding of sex,actively innovate their ideas,and promote the law to keep pace with the times under the guidance of the Constitution,so as to reasonably protect the sexual rights of citizens.