Criminal Law Protection Of Sexual Rights Of Female Patients With Mental Disorders

Even if women with mental disorders have mental defects,they still enjoy normal human rights,including sexual rights.How to protect the sexual rights of women with mental disorders is still a difficult problem.As for the basic point of the protection of the sexual rights of women with mental disorders,that is,the ability of sexual consent,criminal law scholars usually deny that female patients with mental disorders have the ability of sexual consent.This may not be appropriate.Although the relevant judicial interpretation has been abolished,it will continue to be invoked in judicial practice.After identification,female patients with mental disorders can be divided into three types: sexual self-defense ability,sexual self-defense ability weakening and asexual selfdefense ability.However,according to the general theory of criminal law,the ability of sexual consent can only be divided into two cases: "there" and "nothing".It is difficult to link up between the ability of sexual self-defense and the ability of sexual consent.Generally speaking,sexual selfdefense ability corresponds to sexual consent ability,while asexual self-defense ability corresponds to asexual consent ability.However,the weakening of sexual self-defense ability corresponding to "have" or "nothing" does not seem appropriate.Moreover,asexual self-defense ability is all identified as asexual consent ability,from the effect of application,there is also something inappropriate.On the premise of recognizing that female patients with mental disorders have limited ability of sexual consent,the situation of their ability of sexual consent should be limited.It should be pointed out that on the standard of determining whether the actor has the ability of sexual consent,the standard of ordinary people does not conflict with that of female patients with mental disorders,and the relationship between them is a complement and reference.If female patients with mental disorders can carry out extreme resistance,reasonable resistance or clearly express "no",of course affirm the legal effect of their disagreement.However,the "consent" given by female patients with mental disorders does not necessarily have the effect of legal consent,which needs to be combined with the specific circumstances to determine whether it has the legal effect of consent.It is generally believed that women with mental disorders are as incapable of sexual consent as young girls.Young girls do not have the ability of sexual consent mainly because their sexual physiology and sexual psychology are not mature.But when women with mental disorders reach adulthood,their sexual physiology has matured,which is different from that of young girls.Therefore,female patients with mental disorders should not take strict protection as young girls,otherwise they may be suspected of depriving them of their sexual rights.The theoretical basis behind this strict protection is the rigid paternalism of criminal law.The purpose of paternalism in criminal law should be the interests of citizens,and "restriction" is only a means rather than an end.From the position of active empowerment of paternalism in criminal law,for the purpose of realizing the best interests of female patients with mental disorders,and based on the criterion of appropriateness,the sexual consent of female patients with mental disorders whose sexual selfdefense ability and asexual self-defense ability are weakened and asexual self-defense under specific circumstances should be given conditional presumption rather than denial.The standard of appropriateness should be in line with the simple concept of ordinary people in society and maintain the standard of justice in people’s mind to protect female patients with mental disorders.Female patients with mental disorders can only agree with their age,mental status,psychological status and other sexual activities,beyond the scope of adaptation,consent is generally invalid,the actor constitutes the corresponding crime of sexual assault.As a result of love or marriage with women with mental disorders and sexual relations,there is no social harm,does not constitute a crime,so as to protect the sexual rights of women with mental disorders.In judicial practice,under a certain criminal intention,if the actor knows that a woman is a patient with mental disorder and directly or indirectly makes use of her defective consent to have sex,he should be considered to violate the sexual consent of the female patient with mental disorder and constitute the crime of rape,so as to protect the sexual rights of female patients with mental disorder from infringement.As to whether the actor knows that the other party is a female patient with mental disorder,it can be judged in the light of the actor’s duty of care,and the judicial presumption technique that allows rebuttal can be applied.The criminal law needs to protect the sexual rights of female patients with mental disorders and protect them from sexual assault.Before the two-way improvement,the age of sexual consent of female patients with mental disorders should be reasonably set,specifically,it should be consistent with the marriage age stipulated in the Civil Code.