| The Criminal Law Amendment(Eleventh)newly added the crime of sexual assault by persons with caregiving duties,aiming to severely crack down on the crime of sexual assault by persons with caregiving duties using their advantageous positions to sexually assault low-aged female minors,effectively filling the legal loopholes that were difficult to regulate by the original sexual crime system.After the new establishment of this crime,there have been various academic opinions,which are quite controversial in judicial application.After the tide of public opinion focusing on young underage women has receded,it is particularly important to make a thorough interpretation of this crime and make it more perfect for giving full play to the due function of criminal law.The current academic community has different views on the protection of the legal interest of this crime,taking into account the position of this crime in the criminal law division and the high correlation with the crime of rape,the legal interest content of this crime should be the sexual autonomy of young underage women.The crime of rape and the principle of unity of legal order,the act of committing the crime should be narrowly interpreted as the act of sexual intercourse.This crime is not an exhaustive enumeration of the subjects of the crime,using the identity advantage of caretakers to infringe on the sexual autonomy of young underage women meets the preponderance of this crime.Due to the integration of the advantageous status of caregivers and a high degree of trust,the sexual commitment ability of young underage women is weakened,making them only partially capable of sexual commitment.At the same time,this identity advantage can also presume that the subject of this crime is subjectively aware that the target of infringement is a young underage woman aged 14-16,but this presumption system allows for counter evidence.It should be noted that age cognition errors belong to errors between different criminal components.According to the abstract conformity theory,the same kind of crime can at least be found in favor of the perpetrator within the overlap of misdemeanor intention.In addition,different from the basic crime amount of the benchmark,this crime of aggravating circumstances should adhere to the principle of unity of subjectivity and objectivity,around the protection of the object of sexual autonomy and other legal interests are violated to accurately grasp,and comprehensively judge the subject,object,location,consequences of harm and degree of personal danger.In terms of the relationship between this crime and the crime of rape,the two are linked in order to jointly improve the criminal law protection for young underage women.However,there are differences between the two in terms of subject,object,means of behavior,and the willingness of the victim.In the case of sexual relations between caregivers who violate the wishes of women,based on the formal standards of constitutive requirements and the substantive standards of protecting legal interests and illegal inclusiveness,the concurrence of the two crimes is a concurrence relationship between the basic and supplementary provisions of the law.Accordingly,the provision in paragraph 2 of this crime is a provision of attention,which can provide accurate guidance for dealing with concurrent cases of two crimes in judicial practice.While affirming the positive value of the new crime,there are shortcomings in this crime such as neglecting the more difficult to recognize indecent acts,the low age of the care object,and gender differences in the subject and object of the crime.Based on the principle of special and priority protection for minors,the crime of intrusive indecent assault is included in this crime to coordinate the inter-crime system of sexual crimes;the gender distinction between the subject and object of the crime is abolished to achieve equal protection of the sexual rights of both sexes;the upper age limit of the care recipient is raised to 18 years old,which can maximize the comprehensive protection of minors’ sexual rights. |
