A Study Of Selected Issues In The Crime Of Sexual Assault By Persons With Caregiving Responsibilities

In recent years,the frequent occurrence of "foster sexual assault" cases has aroused great concern in the society.For a long time,Chinese criminal law has not brought this kind of non-compulsory behavior into the adjustment scope of criminal law,which leads to many cases in judicial practice can not get fair judgment.In response to social concerns and the need to crack down on the crime of sexual assault,the 11th Amendment to the Criminal Law adopted by the Standing Committee of the National People’s Congress on December 26,2020 has made several adjustments to the crime of sexual assault on minors,adding the crime of sexual assault on persons with nursing duties,and providing for the upgrading of legal punishment if there are bad circumstances.It is worthy of affirmation that the criminal law adds the crime of sexual assault by persons with the duty of care,which accords with the spirit of the Constitution and reflects the special protection of the sexual rights of juvenile women.However,some scholars believe that the introduction of this crime is "phenomenon legislation" aimed at public opinion,which destroys the stability of the law and contradicts the current legislative system.So there are a lot of different opinions and questions in the legal community.At present,the description of the law of this crime is too concise,and there is a lack of relevant judicial interpretation,which makes people in the process of understanding and applying this crime there is a certain confusion and difficulty.In order to solve the current dilemma,this article in this crime protection of legal interests,crime and non-crime identification problem,the number of crimes and forms of the crime and the relationship between the crime and rape and other aspects of specific research and analysis.The legal interests protected by this crime are the sexual autonomy of young girls,the sexual consent age is still 14 years old in our country,the exercise of sexual autonomy of young girls in the face of personnel with special responsibilities will be limited.The description of sexual intercourse in the law on the crime of sexual assault by persons with nursing duties should be expanded to include oral sex and other indecent acts in the category of "sexual intercourse",which will help crack down on such sexual assault crimes and protect the interests of underage women.The criminal subject of this crime is a special subject,which clarifies the specific meanings of the five words of guardianship,adoption,nursing,education and medical treatment clearly stipulated by the law.The word "etc" indicates that the law does not enumerate all the circumstances exhaustively.In judicial activities,the identification of the subject also needs to consider the factors such as the coercive force and influence of the doer on the underage women for specific judgment.The specific determination of the"bad circumstances" of aggravating punishment can be based on the interests of the law of protection,from the perspectives of the number of crimes,the object of the crime,the time,environmental conditions,the harm caused by the consequences,and so on.In the case of no substantial legal interests infringement,the crime should be committed.The target of the crime of sexual assault by the care-taking personnel is the young female aged 14 to 16 years old.The standard of accomplished and attempted crime should adopt the broad sense of insertion theory,rather than the narrow sense of insertion theory in the crime of rape.In the aspect of joint crime,it is necessary to analyze whether the perpetrator takes advantage of the special identity relationship between the perpetrator and the victim to determine whether the joint crime of this crime is constituted.This paper argues that the relation between this crime and rape is concurrence rather than mutually exclusive.The legal upgrading conditions for the crime of sexual assault of persons with nursing duties should be combined with the identification of the aggravating circumstances of rape crime.When the factors such as guardianship duty and cross-age target of the crime change,attention should be paid to the competition and co-application with rape crime,so as to accurately crack down on the crime and better protect the sexual autonomy of young female minors.