Legal Dogmatic Analysis Of Crime Of Sexual Assault By Persons With Duty Of Care

The practical need of strengthening the judicial protection of minors and blocking the punishment loopholes of carnal intercourse has given birth to the crime of sexual assault by persons with duty of care(Hereinafter referred to as the “this crime”).There are many inconsistencies in the use of the legal interests of the right to physical and mental health,the right to sexual development and the freedom of sexual determination to guide the interpretation of the constitutive elements of this crime.From the perspective of normative structure,the criminal constitution of this crime is based on the two elements of the victim’s age and sexual behavior,and its illegal nature is still "against the will".Therefore,the sexual autonomy of minor girls should be interpreted as the legal benefit of the protection of this crime.On the factual level,sexual autonomy covers active freedom and negative freedom;at the normative level,sexual autonomy can be deconstructed as the freedom of sexual meaning and the freedom of sexual activity,the fundamental cause of the identity of the crime is that the freedom of the sexual meaning of the minor girl.The addition of this crime does not limited increase the age of sexual consent.Guardianship,Adoption,Care,Education and Medical treatment are typical examples of the types of responsibilities of this crime,but the selection of "etc." legislative skills of this crime is not limited to the above five.The standard of "personal care" should be abided by in the determination of the responsibilities,and the formal relationship is not necessary.It should not be simply presumed that the perpetrator of the victim knows the true age of the victim because of the existence of duty,and the form of responsibility for this crime is intentional.When the two sides have a dispute over the age of the victim,the judicial organ should combine a variety of proof materials to make a comprehensive judgment,so as to ensure the justice of the penalty.Sexual behavior is not limited to traditional sexual intercourse,but also includes oral and anal sex.In terms of judicial application,special duties and sexual acts cannot be directly linked with the infringing autonomy,and both of them cannot be independently endowed with the illegal basis of this crime due to their neutral legal attributes.The establishment of this crime still needs the use of special duty " to establish a causal bridge between the result of legal infringement and the act of criminal implementation."Use of special duties" is regarded as a presumption of standard compliance with criminal procedure standards and entity standards,but this presumption can be counterproved.As an adduced conviction,“Having the acts mentioned in the preceding paragraph” refers to the invocation of “sexual relations”rather than the citation of the crime.This crime and carnal intercourse are mutually exclusive relationship rather than imaginary competition or law competition relationship.In paragraph 2 of this crime,"conviction and punishment" in accordance with the provisions of heavier punishment is only a careful provision rather than a legal formulation.Through the substantive interpretation of the constitutive elements,we can find many ways for this crime at the level of illegality.