On the Normative Attributes of the Crime of Sexual Assault by Caregivers
For the understanding of the normative attribute of the crime of sexual assault by caregivers,there are controversies between the theory of fictitious norms,the theory of indepen-dent norms,and the theory of presumptive norms.Among them,there are many theoretical short-comings and defects in the first two theories,which are incomplete theoretical interpretations.It should be argued that article 236-1 of the Criminal Law is not a fictional provision for"rape",nor does it regulate consensual sexual acts between persons in care,but is only a legal presumption to lower the standard of proof for the crime of sexual assault in the field of care.The prosecution only needs to prove the fact that the adult male and the minor female between the ages of 14 and 16 were in a caring relationship and that the two had sexual relations,so that the court can pre-sume the existence of implicit coercion and conclude that the sexual relationship took place ag-ainst the will of the minor female,thus confirming the establishment of this crime.In order to achieve a balance between the prevention and control of crime and the protection of human rights,the legislation established appropriate penalties for this crime.Based on the nature of the presumption of this crime,if the caregiver can prove that sexual relations took place with the con-sent of the underage girl,he should be acquitted.
Caregiving RelationshipsSexual Self-determinationAbility to Consent Sex-uallyLegal FictionLegal Presumption
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