An Analysis Of The Judicial Applicable Of Sexual Assault By People With Care Responsibilities

In recent years,the incidents of underage girls being sexually assaulted by people with special responsibilities has been increasing.This kind of incidents which have become a special category of the sexual assault crimes against minors urgently needs to be treated differently.In 2020,the Criminal Law Amendment(XI)established a new crime of sexual assault by people with care responsibilities,putting the sexual assault committed by people with special responsibilities against girls aged between 14 and 16 into the scope of regulation.This is undoubtedly a concrete response to this social issue.Based on the above,it is important to conduct a systematic study on the judicial application of this crime.This thesis aims to provide a reference for the application of this new crime in judicial practice by analyzing the elements of this crime with specific cases.Firstly,the legal interest protected by this crime is the sexual autonomy of underage girls within a specific age range.This crime does not raise the age of sexual consent for underage girls,that is,girls aged between 14 and 16 have sexual autonomy when facing people with special responsibilities.However,considering the special relationship between them,it is necessary to intervene in the sexual autonomy of underage girls,which is an important manifestation of the paternalism of criminal law.Secondly,restrictive interpretation is necessary for "sexual intercourse" and the criterion for crime completion should adopt the "contact theory".Thirdly,determining "serious circumstances",as an aggravating factor for this crime,should adhere to the prudence principle using the degree of legal interest infringement as the standard,and considering factors such as the number of crimes,crime locations,and the harmful consequences of criminal acts.Furthermore,the criminal is a special subject with care responsibilities,but not all types are covered in the legal provisions.Therefore,in judicial practice,the identification of criminal subject requires specific consideration based on factors such as mutual influence,domination degree,and the closeness of the relationship between the two parties.Finally,when determining the guilt and sentencing,this crime should be distinguished from the crime of rape.They are mutually exclusive.The crime of rape requires sexual intercourse against the will of the woman,while this crime only requires the underage girl to voluntarily have sex with the caregiver.