| With the popularity of the Internet,children use the Internet more frequently.Criminals use various social platforms to reach out to children.Communication and interaction on the Internet can break through the geographical restrictions.The number of children molestation cases through the Internet is gradually increasing.The development of the Internet has changed the behavior of some traditional crimes,and a new form of molestation against children has emerged by using the network space.Criminals have no physical contact with the victim,but are engaged in space-separated molestation through the network.Whether the internet molestation of children can constitute the crime of indecent obscene children has been controversial in practice.At present,China’s criminal law has no provisions on the nature of network molestation against children,which has brought difficulties to judicial practice.The Supreme People’s Procuratorate released a number of guiding cases of child molestation in2018.The author selected the child molestation of Luo for analysis.The court of first instance and second instance made different judgments on the case,which can reflect the controversy on this issue in practice.With regard to Luo’s online indecent behavior against children,this case mainly has the following controversial points: whether the perpetrator knows the victim is a child,whether network molestation is implemented "in public",whether network molestation belongs to the behavior mode of the crime of indecent obscene children,and whether the perpetrator’s molestation against children is accomplished.For the first focus issue,denies the application of strict liability to this crime,and how to identify "knowing" and the extent of "knowing",and then analyzes it in combination with this case.For the second focus of controversy,analyze whether cyberspace has the attribute of "public place",how to judge "in public",and then judge whether online molestation belongs to the implementation of "in public",and then analyze it in combination with the case.Aiming at the third focus issue,the author analyzes that online molestation belongs to "obscenity" from three aspects: the possibility of national prediction,the infringement of legal interests,and the degree of harm.The online molestation is essentially the same as the traditional molestation,and then analyze it in combination with the case Aiming at the fourth focus,the author analyzes the judgment standard of the accomplished crime of child molestation.The accomplished standard of the sexual contact theory cannot be used for the network molestation.It is necessary to make a comprehensive judgment from the subjective and objective aspects,clarify the criminal form of the network molestation,and then analyze it in combination with the case.In order to solve the above problems,we can draw the following enlightenment.First,we should expand the interpretation of the meaning of "molestation" to include the acts of online molestation against children.We can directly regulate this type of cases in the judicial interpretation,or specify the core features of indecency,including the acts of online molestation.Second,appropriately expand the extension of "public places" and "in public",stipulate that cyberspace should be included in the scope of public places,or classify and list public places,include cyberspace as a category,or explain the meaning of "public places" and "in public",or specify its core features,so as to extend the scope of "public places" and "in public" to cyberspace.Third,Define the standards for the criminalization and sentencing of online molestation behavior,and use the methods of the criminalization and sentencing standards for the crime of disseminating obscene materials for reference.Different standards can be specified based on the different forms of nude photos,videos,and naked chatting.The number and duration of nude photos,videos,and so on are used as the measurement standards,and this standard is used as a reference. |
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