Study On The Determination Of The Offence Of Sexual Assault By Persons With Caring Responsibilities

In recent years,cases of sexual abuse of minors by acquaintances have become more and more frequent,and the sexual rights of minors are in urgent need of protection.In this context,the Amendment to the Criminal Law(Eleventh Amendment)Act added the offence of sexual assault by persons with caring responsibilities,However,while the offence of sexual assault by persons with caring responsibilities,which was hastily introduced due to public opinion,has been slightly underdeveloped in terms of its own institutional theory while responding to calls,and as a new offence,the relevant judicial practice and theoretical research are not sufficient,and there are still more controversies.Therefore,based on the comprehensive use of literature analysis,empirical research and comparative law research,we analyse and study the controversial issues of the constituent elements of this crime and the relationship between crimes according to the logic of the traditional four elements of crime,in the hope of providing some help to the judicial authorities in practice.The first part analyses the object and objective aspects of the offence of sexual assault by persons with caring responsibilities.Firstly,the object of the offence is the right to development of sexual integrity,which is more in line with the logic of the theory of sexual abuse by a person with a duty of care than the theory of physical and mental health or the theory of sexual autonomy,which shifts the traditional perspective of sexual consent to a theory of sexual exploitation based on the perspective of the perpetrator.The object of the offence is the abuse of a relationship of trust by the perpetrator in breach of his duty of care,which has a continuing negative impact on the long-term sexual integrity of the young woman.Secondly,with regard to the objective aspect of the offence,it is more in line with the purpose of the legislation to adopt a broad definition of penetration,which encompasses both mutual penetration of genital organs and mutual penetration of nongenital organs,the latter generally being a traditional act of indecent assault.Since the law itself does not impose many restrictions on the offence,the act of "sexual intercourse" should not exclude violent coercion,but in the administration of justice it is necessary to distinguish it from the violent means of rape,which will be discussed later.The second part analyses the subject matter and subjective aspects of the offence of sexual assault by persons with caring responsibilities.Firstly,as the offence is the first status offence in the system of sexual offences,and as the object of the offence has shifted from the traditional victim to the perpetrator in the previous section,it is particularly important to define the meaning and scope of "special duties".For the five typical duties listed in the law,they are divided into three categories according to their different sources of responsibility and obligation,and are considered in conjunction with the Civil Code,the Protection of Minors Act and other relevant laws.The duty of "adoption".The crime should not be judged on the basis of obtaining legal qualifications for professions such as "education and medical care",which are characterised by access to qualifications.Secondly,the subjective aspect of the offence should be clarified,and the existence of a mistake in the understanding of age and the different ways of dealing with it should be made clear.The third part analyses the special form of the offence of sexual assault by persons with caring responsibilities and the issue of complicity.Firstly,the special form of this crime is mainly determined by the penetration theory as the criterion for the attempt of this crime,and opposes the contact theory as the criterion for the attempt of this crime,because it would advance the time of criminal law intervention too much and there is the possibility of infringing the space of citizens’ legal rights.Secondly,for the issue of complicity,due to the identity of the crime,when the non-identity and identity of the person jointly commit the crime,for the non-identity of how to convict the person should adopt the important role said,that is,its role in the process of the crime as a criterion for judgment,when it plays an important role in the occurrence of the results of the crime,even if the perpetrator does not have the special subject identity of the crime,should also be established as a joint crime.The fourth part analyses the relationship between the offence of sexual assault by persons with caring responsibilities and the rape and the forced indecent assault.Firstly,the offence and the offence of rape are imaginary competing offences.The express function of imaginary competing offences can provide a more comprehensive and complete evaluation of the harmfulness of the perpetrator of the offence,which is more conducive to the realization of the legislative purpose.Secondly,this crime and the crime of forced indecent assault are also in competition.Sexual intercourse is a kind of process,and the boundary between sexual assault and indecent assault is not always clear,so it is in line with judicial practice to consider the two as competing.