Judicial Application Research On Sexual Assault Crime By Persons With Caregiving Duties

In response to public opinion,strengthen the protection of the rights and interests of underage women in China,and improve the legal network in China,the Criminal Law Amendment(Eleventh)Act was created,and the sexual assault crime by persons with caregiving duties was created.As a newly created crime,the theoretical research and judicial practice are still in the exploratory stage,so it is urgent to explore and improve the crime.There are various arguments for the legal benefit of the crime of caregiver,i.e.,the object of the crime,but the object of the crime should be considered to be the sexual autonomy of being cared persons,not her physical and mental health,and the provisions of this law do not raise the age of sexual consent for the above-mentioned crime in a limited way.The subject of the crime of sexual assault by a person with caregiving duties shall get special duties to the object of the crime.The "special duty" should have direct control and stability,and the identity of the perpetrator of the crime of sexual assault by a person with caregiving duties is also an important factor in the determination of the joint crime.The"sexual assault" of the crime of sexual assault by a person with caregiving duties should be expanded to the "broad sense",that is,in addition to the traditional sense of "penetration" of the sexual organs of both parties to complete sexual intercourse.In other words,in addition to the traditional sense of "penetration",which is the completion of sexual intercourse by penetration of the sexual organs of both parties,sexual contact,oral sex,masturbation,groping,kissing and hugging should also be considered as "sexual assault" in this crime.Sexual assault by a caregiver is also defined as an aggravating circumstance,which should be considered in terms of the means of sexual assault,the number of people and times,the place and the result.The subjective state of mind of the caregiver in committing sexual assault on the cared-for person should be intentional,including both direct and indirect intention.In the study of the criminal form of this crime,"proceeding" should be considered,and the determination of "proceeding" should be applied according to the act theory or the result theory in the substantive-objective theory of the means of coercion or calmness,respectively.In addition,the issue of joint criminality is also a key aspect of research.It is also necessary to clarify the relationship between the sexual assault crime by persons with caregiving duties and the crimes of rape,forced indecent assault and other crimes that may infringe on the sexual rights of female minors,such as solicitation of minors for public debauchery and organising or forcing prostitution.