Identification Of The Subject Of Crime Of Sexual Assault By Persons With Duty Of Care

There is relatively little research on the subject of sexual assault by persons with caring duties,but there has been much controversy in the doctrine.In judicial practice,there are also many problems in identifying persons with special duties.Therefore,it is of great theoretical and practical value to discuss the identification of the subject of this crime.There are five main problems in the determination of the subject of the crime of sexual assault by persons with care duties: firstly,the definition of "special duties" is unclear and views are widely divergent;secondly,the factors for judging the subject of the crime are unclear,with one-sided focus on the impact of the length of care on the care relationship and neglect of other factors;thirdly,the method for judging the subject of the crime is unclear and there is a tendency to over-simplify the subject of the crime.Fourthly,the judicial determination is formalised,i.e.the person is considered to belong to the special duty personnel only based on the appearance of the special duty form;fifthly,the judicial determination standards are different,and some cases have different judgments.The main reasons for the above problems are: firstly,the different understanding of the legal benefits of the crime affects the determination of the subject of the act of the crime;secondly,the different methods of interpretation,there are differences in the formal interpretation or substantive interpretation of the subject of the act of the crime;thirdly,the lack of interpretation of the theory of the subject of the act of the crime.Because there are few precedents in judicial practice,the theoretical community is mainly a forward-looking interpretation of the crime,and some of the research is slightly flat and simplistic in the interpretation of the subject of the crime.The main body of the crime of sexual assault by a person with caring responsibilities should be determined based on the following two basic positions: First,the main body of the crime should be interpreted based on the legal interest of "sexual autonomy" protection.Compared with the physical and mental health theory and the compound legal interest theory,the "sexual autonomy" as the protection legal interest of this crime has more advantages,while the physical and mental health theory and the compound legal interest theory are slightly insufficient in the internal investigation of doctrine.As far as the subject of the act is concerned,the physical and mental health doctrine is interpreted in such a way as to make it more general and difficult to prove the extent of the damage to the victim’s physical and mental health.In the case of "compound interests",on the one hand,they are still guided by sexual autonomy when interpreting the subject of the act.On the other hand,the compound interest simply considers whether the caregiver has a greater duty to protect the female aged14-16 during the duration of the relationship,revealing a contradiction between the positioning of the legal interest and the interpretation of the constituent elements.Secondly,the subject matter of the offence should be interpreted substantively.This is because a mere plain interpretation of the duty of care enumerated in this offence under the law would unduly expand or narrow the scope of interpretation.The substantive interpretation is based on the consideration of the appropriateness of the purpose,and the subject of the act cannot be judged solely on the basis of the appearance of the duty of care.A substantive interpretation of the duty of care protects the sexual autonomy of females aged 14-16 while avoiding an inappropriate delimitation of the scope of punishment.The specific interpretation of the subject of sexual assault by persons with caretaking duties requires attention to two aspects: first,the interpretation of guardianship,adoption,caretaking,education and medical duties.The provisions of civil law,administrative law and other predecessor laws are the main basis for comparison and judgment when identifying the subject of this crime,but it is not straightforward to draw conclusions by simple comparison,and the five duties should be classified and then interpreted specifically.The second is the interpretation of "special duties".The "etc." in this offence means that the list is not exhaustive and needs to be interpreted in accordance with the rules of similar interpretation.In the interpretation of "etc.special duties","implicit coercion" should be used as a criterion to judge the interpretation of "etc.special duties" of this crime,which should be divided into the interpretation of The interpretation of "etc" and the interpretation of "special duties".The interpretation of "etc." focuses on solving the problem of the extension of the subject of the act,while the "special duty" is the interpretation of the essential characteristics of the subject of the act,both of which are indispensable.The judicial judgment on the subject of sexual assault by persons with caretaking duties requires attention to two aspects: first,the method of judging the subject of the act and the elements of judgment.In the judgment method,according to the type of judgment whether the subject of the act has the duty of care listed in the law,it has the appearance of special duties,and then from the substance of the judgment and the specific care of the 14-16-year-old minor female formed care relationship or not.The essence of special duties is the formation of a state of implicit compulsion,and the specific determination of whether a state of implicit compulsion has been created.In the judgment elements,need to combine three judgment elements: time,space,resources.Second,the actor subject out of the path of crime.First,the 14-16 year-old minor female "substantial consent" can be incriminated.From the objective behavior of the perpetrator,drawing on the theory of "sexual solicitation" introduced by domestic scholars,to examine the process of behavior before sexual relations between the two sides,to avoid transferring the pressure to the victim;secondly,the actor cannot use the dominant power as a path to incrimination.The first is that the implicit coercion of the subject of the crime itself implies the dominance of the subject over the victim.Secondly,most of the countries and regions that have provisions on the "use of dominance" are facing difficulties in practice.Thirdly,it undermines the normative purpose of protecting female minors.