Doctrinal Analysis Of The Crime Of Sexual Assault By Persons In Charge Of Care

The addition of the crime of sexual assault by persons responsible for care in the Criminal Law Amendment(11)highlights China’s consideration of protecting the rights and interests of underage women,reflects the continuous strengthening of the criminal law in combating cases of infringement on underage women,and has far-reaching significance in attracting the attention of the whole society to the physical and mental health of underage women and creating an environment for the healthy growth of underage women.In terms of the object elements of this crime,the legal interest protected by the crime of sexual assault committed by persons responsible for care should be a single legal interest,specifically expressed as the sexual autonomy of underage women.The right of sexual autonomy,as a specific personality right,should also be enjoyed by underage women who have reached the age of 14 but not the age of 16.Due to the special relationship between the perpetrator and the victim that has a "care responsibility",during sexual relations,the perpetrator poses an abstract risk to the victim’s right of sexual autonomy.Regarding the objective elements of this crime,the understanding of "sexual intercourse" should not be too broad.Limiting it to sexual intercourse in a narrow sense is not only from the perspective of protecting legal interests of this crime,but also conducive to more accurate identification of criminal acts in judicial practice,and also implements the concept of prudent legislation.In terms of the main elements of this crime,the definition of "care responsibilities" in the law lists personnel with special responsibilities such as guardianship,adoption,care,education,and medical treatment.In judicial practice,the identification of the subject of this crime also needs to be based on the legal interests protected by this crime,and whether the perpetrator has taken advantage of his or her own advantageous position,which has affected the autonomous exercise of sexual power by underage women,Define whether the perpetrator has disengaged from the care responsibilities when having sexual relations with a minor woman,and whether the implicit impact on the minor woman still exists.In terms of the subjective elements of this crime,the actor’s cognition of "special duties" should not be a subjective constituent element,while the cognition of the victim’s age should be a subjective constituent element.The willpower factor is manifested as actively pursuing or allowing the criminal outcome to occur,specifically,knowing that the other party has reached the age of 14 but not 16,or recognizing that the other party may have reached the age of 14 but not 16,and still having sexual relations with them.Regarding the issue of age recognition errors,it is necessary to distinguish the specific situation and adhere to the principle of unity of subjective and objective analysis.The standard for determining the accomplishment of this crime should be unified with the standard for determining the crime of rape,with the "substantial insertion of sexual organs" as the standard for determining.The issue of accomplice in this crime should be divided into two aspects.The first is the issue of joint crime between persons with status,and the second is the issue of joint crime between persons with status and persons without status.If persons without status take advantage of the convenient conditions formed by persons with status to jointly have sexual relations with underage women,a joint crime of this crime should be established.On the issue of the regulatory boundary of this crime,although this crime and the crime of rape belong to Article 236 of the Criminal Law,based on the understanding of the legal interests of this crime,it should be recognized that the relationship between this crime and the crime of rape is mutually exclusive.Determining this relationship clarifies the boundary between the two crimes,which is of great significance for judicial practice.The basis for this crime should be based on the fact that the legal interests are not damaged,combined with the constitutive elements of the crime,and clarify the boundaries between crime and non crime.