Study On The Crime Of Sexual Assault By Persons With Caring Duties

The crimes of sexual assault in China are classified as adultery and indecent assault according to the different modes of sexual behaviour.Under the understanding that sexual autonomy is a fundamental human right,these crimes of sexual assault share the legal interest of protecting the victim’s sexual autonomy and are essentially characterised by the violation of the victim’s will.Article 24 of the Amendment to the Criminal Law of the People’s Republic of China(Eleventh Amendment),which creates the offence of sexual assault by a person with a duty of care,has improved the system of crimes of sexual assault in China,but has also led to many controversies in the academic community,the most important of which is the definition of the legal interests protected by this offence,the determination of some of the constituent elements and the relationship between this offence and the crime of rape.As this crime is part of the system of sexual assault crimes in China,these important issues,which have a bearing on whether the crime can be properly applied in judicial practice,should also be analysed and explained from the system of sexual assault crimes.This article is divided into three parts,taking the offence of sexual assault by a person with a duty of care as the subject of study.The first part provides an overview of the theory underlying the offence of sexual assault by a person with caring responsibilities,firstly introducing the system of sexual assault by a person with caring responsibilities,discussing in detail why this offence is ipso facto part of the system of sexual assault in China,as well as the common protection of legal interests and the essential features of the offence of sexual assault;then introducing the criminal composition and legislative comparison of the offence of sexual assault by a person with caring responsibilities.The section on the composition of the offence outlines the relevant legislation from the origin of the offence to its formal establishment,briefly describing the elements of the offence,as well as identifying the elements of the offence that are controversial among scholars.The comparative legislation section provides a comparative analysis of the legal norms of similar offences in the main civil law countries(regions),as well as in the United States and Chinese Taiwan,so as to provide some reference for the understanding and application of this offence in China.The second part specifies the controversial issues that have arisen in the understanding of the offence of sexual assault by a person with a duty of care after its creation.First,whether the creation of this offence partially raises the age of sexual consent and the resulting question of whether the offence protects physical and mental health or sexual autonomy;second,what should be the interpretation of "having sexual intercourse" and how the subject of the offence should be specifically identified;and third,what is the relationship between this offence and the offence of rape.Thirdly,what is the relationship between this crime and the crime of rape.The last part of this section concludes by systematically explaining the above issues from the perspective of the sexual assault system.In terms of the legal interests protected by the offence,the offence does not partially raise the age of sexual consent in China;in order to be consistent with the sexual assault system,the legal interests protected by the offence should be the sexual autonomy of a female minor who has reached the age of fourteen but has not yet reached the age of sixteen.The concept of "sexual intercourse" in the commission of this offence shall be consistent with the provisions of the current system of sexual assault in China’s criminal law,which refers only to sexual intercourse in a narrow sense and does not extend to acts of indecent assault as part of the punishment for this offence.In addition to the five types of special duties listed in the law,the identification of other subjects of this crime should be strictly based on the protection of the legal interests of this crime and the purpose of the legislation,and the subject of the relevant duties must have the right to manage the person under care and form a long-term,stable relationship of dependence.This crime is not mutually exclusive with the crime of rape,the relationship between the two is a legal competition.