Jurisdictional Application of the Crime of Sexual Assault by Persons with Caring Duties

负有照护职责人员性侵罪的司法适用

The newly created crime of sexual assault by persons with caring duties fills a gap in the legislation on the crime of sexual assault by special duty personnel, and as a new crime, there is an urgent need for theoretical research into the basis for the crime, the boundaries between crime and non-crime, and the relationship between this crime and others.Those are in order to provide theoretical support for the reasonable application of this crime in judicial practice. The basis for the crime of sexual assault by a person with caregiving duties is the right to sexual self-determination, and this crime does not adjust the age of sexual consent upward, which can reasonably explain the issue of guilt. Grasping the standard of criminalization as a whole is conducive to preventing the excessive extension of criminal law to morality. This crime is in competition with the crime of rape, which is more comprehensive and effective in protecting the legitimate rights and interests of underage women, and is in line with the spirit of the Constitution. The overall prudent attitude towards this crime and the effective limitation of its application are conducive to the realization of a balance between the protection of legal interests and the safeguarding of rights, and provide guidance for judicial practice.

新设的“负有照护职责人员性侵罪”填补了立法对于特殊职责人员性侵罪的空白，作为一项新罪，亟须在理论上研究入罪基础，罪与非罪的界限以及本罪和强奸罪的关系等问题，为司法实践中合理适用该罪名提供理论支撑。负有照护职责人员性侵罪入罪基础为性自主决定权，本罪并未将性同意年龄上调，能够合理解释出罪问题。整体把握出罪的标准，有利于防止刑法过度向道德延伸。本罪与强奸罪为竞合关系更能全面有效的保护未成年女性的合法权益，符合宪法精神。整体上以谨慎态度对待该罪名，有效限制该罪名的适用，有利于实现法益保护和权利保障之间的平衡，为司法实践指引方向。