| The crime of sexual assault by persons with care responsibilities primarily protects the sexual autonomy of young,underage women,and secondarily protects their right to sexual sound development,which is a compound protection legal interest with rank order.The subject of this crime is the person who has the duty of guardianship,adoption,care,education and medical treatment.The ’ duty’’ should be understood from the ’ responsibility’.The duration of the ’ duty’’ identity of the person who has the duty of care should not be the premise for the establishment of the special identity in this crime.The specific personal attachment and trust relationship between the person with care responsibilities and the young,underage women is the substantive benchmark for determining care responsibilities.The objective aspect of this crime is the sexual relationship between the person who has the duty of care and the underage female.The ’ sexual relationship’’ here not only includes the sexual intercourse,but also oral sex,fingering,anal sex,the insertion of a fake penisor other items into a female’s body should be included through a moderate expansion explanation.As to determine this crime statutory punishment upgrade conditions ’’Execrable circumstances’ ’,it can be considered to combine the aggravating conditions of raping women or raping young girls to give comprehensive consideration and qualitative judgment,such as considering the place of sexual assault,the means of sexual assault,the number of sexual assaults,the degree of physical and mental damage caused to young underage women and the reversibility of damage.This crime is subjectively required to be intentional.In the case of wrong understanding of the age of the victim,the specific judgment should be based on the principle of subjective and objective consistency.The determination of starting to commit crime of this crime should combine the subjective elements of the sexual relationship and the objective elements of ’ sexual behavior’’ of the person with duty of care and the young underage women they care for.When there is a causal relationship in criminal law between the sexual assault committed by the person in charge of care and the harmful results that lead to the infringement of the compound protection legal interests of the sexual autonomy and sexual sound development rights of young and underage women,and the behavior contains the inherent attributes that can naturally and regularly transform into the harmful results,then its behavior belongs to starting to commit crime.The accomplished standard of this crime should adopt the ’ generalized insertion theory’,which should not be limited to the combination of sexual organs,but also include other sexual entry behaviors.In addition,this crime is an identity crime but not personally committed,there are joint principal offender and indirect principal offender.There is a relationship of imaginative joinder of offenses between this crime and the crime of rape and forced indecency.The person with the duty of care sexually assaults a young underage female,either constitutes an imaginative joinder of offenses with rape or forced indecency,or constitutes this crime alone. |
