Study On The Crime Of Sexual Assault By Persons With Care Responsibilities

This crime is a new crime.At the present stage,the Supreme People’s Court and the Supreme People’s Procuratorate have not yet issued relevant judicial interpretations on this crime,and there are different opinions in the academic community on the understanding of the constitutive elements.Through the systematic study of the crime of sexual assault of persons responsible for the care,the author explores the theoretical basis of the crime,defines the legal interests of the crime into the crime,standardizes the ambiguous words in the constituent elements,and clarifies the unified application standard of the crime in judicial practice.When the theory of "the age of sexual consent is partially raised" is used as the basis for the incrimination of sexual assault by persons with care responsibilities,there is a contradiction between the content of the adjustment of the age of criminal responsibility and the setting of the crime provisions;When "invisible coercion and ethical taboos" are used as the basis for criminalization,there is a suspicion of confusing the boundary between the crime of rape and excessive expansion of criminal law.Based on the background of positive criminal law view,re-examining the basis for the criminalization of this crime concludes that the addition of the crime of sexual assault by persons with care duties is justified,and this crime is actually a special protection for minor women based on the superior and inferior status of special subjects and special objects.If it is considered that the crime of rape and this crime have the same legal benefits,both are sexual autonomy,and the difference in statutory punishment between the two crimes cannot be reasonably explained,it is of positive significance to define the substantive connotation of the legal benefits of rape as "sexual physical and mental tranquility" to accurately distinguish the two crimes and explain the difference in the statutory sentences of the two crimes.The scope of application of this crime can be summarized as follows: the identity of the subject of the implementation of the duty of care,which in essence can have a substantial impact on the exercise of sexual autonomy of the minor female under care,and if the subject of the exercise of sexual relations with the minor female under the age of 14 and under the age of 16 is presumed to be "knew" of the age of the minor female due to the special status of the person responsible for care,subjectively has the intention to have sexual relations.The completed standard of this crime adopts the "penetration theory" and includes only the act of penis penetration into the vagina.This crime and the rape are not mutually exclusive,and the two crimes are intersecting laws.There are three main circumstances in which this crime is committed: firstly,the situation where the sexual autonomy of the underage female under care is not infringed upon;the second,it does not meet the constituent elements of the crime,that is,it does not meet the substantive requirements for the implementation of the subject;thirdly,there is a lack of understanding of the age of underage women.The exception to the conviction is the situation where the crime should have been acquitted before the addition of this crime,and at this stage,it meets the provisions of the crime of sexual assault by persons with care responsibilities,and the perpetrator is held responsible for this crime.