Research On The Judicial Application Of Sexual Assault Of Caregivers

How to protect the sexual rights and interests of minors has always been a hot topic of social concern.However,in recent years,cases of sexual abuse of minors have gradually increased,and there are even cases of "acquaintance sexual abuse" and "elder sexual abuse" that challenge ethics.In order to implement the effectiveness and timeliness of criminal law,it is necessary for the legislature to make corresponding changes in similar situations.Article 27 of the Criminal Law Amendment(XI)passed in the National People’s Congress Standing Committee(NPCSC)on December26 th,2020 stipulates that in addition to the crime of rape in Article 236 of the Criminal Code,the crime of sexual assault by persons with care responsibilities is added.Because it is a new crime,there are not many achievements in theoretical circles,and there are also different standards and unclear boundaries in practice.Therefore,it is of great significance to explore the legal interests,subjects,behavior patterns and other related issues of the crime of sexual assault by people with care responsibilities for protecting the legitimate rights and interests of minors.This paper expounds the legislative evolution of this crime in China,and compares the differences between Germany and Japan and China’s legislation on sexual abuse of minors by care workers,so as to provide experience value for subsequent legislation.At the same time,through the analysis of the case and the current judicial situation,it is pointed out that there are some problems that need to be improved about the legal interests,subject,criminal form,behavior mode and bad circumstances of this crime,and then the solutions to the related difficulties in the judicial application process are analyzed and demonstrated.First of all,the legal interests infringed by this crime are complex legal interests,including minors’ sexual autonomy,social customs and minors’ physical and mental health;Secondly,the subject of this crime should conform to "obligation" and "stability",and it needs to produce "invisible coercion" on the cared person;The behavior of this crime should be "sexual behavior" in a broad sense;whether this crime constitutes a "bad plot" can be determined from three aspects: "the number of places,the way of behavior and the consequences of behavior".Finally,the standard of accomplishment of this crime should be "insertion theory" rather than "contact theory".