On The Object Of Protection For The Crime Of Sexual Assault By Persons With Care Duties

In recent years,incidents of sexually assaulting minors represented by "Bao Moumou sexually assaulting his adopted daughter" have attracted widespread attention from the society.Research statistics have shown that "acquaintances" with special responsibilities account for a high proportion of cases of sexual assault on minors.Therefore,the "Criminal Law Amendment of the People’s Republic of China(Eleventh)" specifically added the "crime of sexual assault by persons with caregiving duties",which shows that the legislature pays attention to cases of sexual assault by acquaintances against underage women in judicial practice,and also shows that my country’s judiciary In order to improve the legal network of sexual crimes,the authorities have increased the intensity of regulation of sexual crimes.After the establishment of the crime of sexual assault by persons with care responsibilities,there has been a great debate in the academic circles about why the protection object of this crime.The principle of protection of legal interests holds that the clarification of the object of protection is of great significance to the interpretation of the constituent elements of this crime and the investigation of the legitimacy of legislation.Regarding the object of protection for the crime of sexual assault by caregivers,there are mainly theories of sexual autonomy,physical and mental health,and compound legal interests.The theory of sexual autonomy believes that the protection legal interest of this crime is the sexual autonomy of underage women aged14-16.This crime does not raise the age of sexual consent.sexual relationship.The theory of physical and mental health believes that the protection legal interests of this crime are the physical and mental health of underage women aged 14-16.This crime raises the age of sexual consent,and this crime is a special type of rape crime.The theory of compound legal interests affirms the sexual autonomy of underage women aged 14-16,and believes that the protection object of this crime is the right to physical and mental health.Based on different viewpoints,there are many opinions on whether the establishment of this crime marks the increase of the age of sexual consent,and what is the boundary between this crime and the crime of rape.Through the comparative analysis of different types of cases,it can be screened out that the key elements of the crime of sexual assault by persons with care responsibilities are the perpetrator’s "special duties",the special age of the victim,and the consensual sexual behavior of both parties.By interpreting the constituent elements of this crime,it can be clarified that the protection object of this crime is the continuation of special duties.After clarifying that the protection object of this crime is the continuation of a special relationship,it is also clear that this crime does not raise the age line of sexual consent,and that this crime and rape belong to different types of sexual assault crimes.In terms of legitimacy of legislation,the crime lacks legitimacy of legislation through the principle of proportionality.On the one hand,the protection object of the crime of sexual assault by caregivers is the continuation of special duties,but the realization of this purpose does not need to pass criminal law.On the other hand,this crime is difficult to achieve the continuation of the special relationship by regulating the consensual sexual behavior between persons with care duties and underage females aged 14-16.Due to the lack of legislative legitimacy,the crime of sexual assault by persons with caregiving duties can be amended on the basis of the current legislation.Referring to the relevant provisions of the German and Japanese Criminal Laws,the type of behavior regulated by this crime can be modified to force persons with special duties to use their influence to force Sexual relations with underage girls aged 14-16.After the modification,the object to be protected in this crime is the sexual autonomy of 14-16-year-old underage women.And from the perspective of the type of behavior,this crime can become a special type of rape after the modification,and the statutory penalty should also be increased accordingly.