Research On The Knotty Issues Of Sexual Assault Of Persons With Care Duties

The introduction of the crime of sexual assault by persons with nursing responsibilities has positive value in preventing minor women from being sexually exploited and exploited by persons with superior positions,but it is necessary to improve the interpretation of this crime from the perspective of protecting the rights of victims or from the perspective of the protection of the perpetrator’s human rights.First,what is the understanding of the connotation and extension of the subject of this crime,that is,the person with the responsibility of caregiving.This paper argues that the question of the origin of special duties can be understood from the perspective of not being a source of obligation.As for whether the types of special duties listed in this article are exhaustive or non-exhaustive enumeration,this article believes that it should be a non-exhaustive enumeration,in addition to the five duties expressly provided for in the law,it also includes relatives of kinship within a certain range,cohabitants who are not related to relatives,civil servants closely related to minors,and so on.Secondly,with regard to the interpretation of "sexual relations" in the expression of this indictment,there are currently two views,namely,narrow interpretation and broad explanation,and this article supports the former view,that is,the "sexual relations" behavior in the law is interpreted in terms of "sexual intercourse" in the traditional crime of rape.In addition,in view of the implementation of this crime,this article is divided into two ways according to whether the minor woman has given sexual consent,namely consensual sexual assault and non-consensual sexual assault.Third,on how to determine the attributes of the competition between this crime and the crime of rape,at present,it can be divided into four views: mutual exclusion theory,imagin“ary competition theory,legal competition theory,and great competition and cooperation theory.First of all,the setting of the law itself leads to the inevitable existence of competition between the two,which is in line with the formal standard of competition between the law and the law,and secondly,according to the standard of "legal benefit identity",the legal interest of this crime is the right to decide on sexual autonomy,which is consistent with the crime of rape and conforms to the essential characteristics of the competition of the law.As for how to deal with the competition between this crime and the crime of rape,this article is based on the two classifications of the acts carried out in this crime,and believes that under the consensual sexual assault,the perpetrator only constitutes the crime,and under the non-consensual sexual assault,the perpetrator commits the crime of this crime and the crime of rape,and should be convicted and punished according to the felony,that is,the crime of rape.Fourth,this article proposes that in the application of this crime,the "age-related exemption clause" should be invoked with reference to the relevant extraterritorial system.In order to implement the two-way protection system,when the age gap between the perpetrator and the minor female is within four years,this article should be invoked to convict.Because the purpose behind the setting of this crime is to prevent minor women from being sexually exploited and sexually exploited by persons with superior positions,and when the age gap between the perpetrator and the minor woman is small,there is no gap in strength between the two sides,and it is difficult to determine that the perpetrator uses the advantage of ability to violate the sexual autonomy of minor women.Therefore,this article advocates the application of this crime by borrowing from the system of age-related immunity clauses to decriminalize consensual sexual acts between juveniles within a certain age gap.