A Study Of Criminal Law Controversies Concerning Sexual Relations With Women With Mental Disorders

Countries are under special protection for people with mental disorders,as well as for sexual crimes.Judicial practice for sex with women with mental law has been controversial,this paper from the typical case,extend the actor and mental disorder women during living together,not to use the sex type of criminal law disputes,from the crime elements and illegal resistance reason theoretical analysis,explore the cause of this type of crime.This article is divided into the following parts: The first part is a case introduction and ask questions.This part is mainly to the reference in a rape,Li Mou rape,Zhang Mou rape,the problem is that the actor does not have the illegal purpose of adultery and sexual relations with mental disorder women constitute a crime,whether all mental disorders women have no sexual autonomy and sexual consent ability,and can apply the victim agree theory,constructive consent theory,the victim promise to resist crime,and from the criminal law theory law analogy to women with mental disorders.The second part discusses whether the perpetrator does not have the purpose of adultery.In judicial practice,those who have sex with a mental woman,regardless of having the purpose of adultery,have a tendency to find the crime of rape.This paper holds that the purpose of rape should be correctly understood,which is included in the direct criminal intent.When it is difficult to determine the subjective will of the object of the behavior in this type of case,judge whether the perpetrator has the purpose of improper sexual relationship with it from the characteristics of the behavior.If the legitimate sexual act occurs without adultery,it should not constitute a crime.The third part explores the sexual autonomy and sexual consent capacity of women with mental disorders.In view of the dispute of "against women’s will" of women with mental disorders,this paper believes that the key identification of its essence lies in the identification of the effectiveness of sexual consent of such women.At present,the judicial appraisal is divided into some,no and weakened self-defense ability,and its rationality is still controversial.This paper holds that for patients with weakened self-defense ability and asexual self-defense ability,it seems unreasonable to explain through the "against women’s will" of the constitutive elements,and under certain conditions,the crime can be committed through the theory of the victim’s consent and constructive consent.The fourth part is to discuss whether under the consent of the mental woman’s marriage or cohabitation,the guardian consent can be used as illegal obstruction.In contrast to the subjective presumption of meaning of people who lack the ability to consent,the guardian consent is a true expression of intention.This paper believes that the conditional guardian can attach the consent,that is,after the case of the interests of mental disabled women after the consideration,can quote the victim’s promise to agency theory but illegal or as a lighter mitigating punishment.The fifth part discusses whether the legal provisions of underage rape can be applied to women with mental disorders.This paper believes that the distinction should be made between the two,compared with young girls,women with mental disorders or even a more vulnerable group,as the physiological particularity of adult female patients with mental disorders,prudent application of criminal law patriarchal doctrine and strict responsibility principle,the legitimate rights and interests of women with mental disorders and actors can be better protected.