Legislative Intent and Legal Dogmatic Analysis of the Crime of Sexual Assault by Persons with Duty of Care——Based on a Soft Legal Paternalism Perspective
The legal interest of the protection of the crime of sexual assault by persons with duty of care is the right to female sexual self-determination between the ages of 14 and 16.The addition of this crime does not imply a partial increase in the age of sexual consent.According to legal dogmatic analysis,different from the fact that the legislative basis of rape crime of underage women lies in the hard paternalism and the fiction that underage women do not have the ability of sexual consent,the legislative basis of this crime is soft criminal legal paternalism.For the purpose of extending the protection of the sexual rights and interests of underage women,the legislator sets this crime as an abstract dangerous crime.As long as the person with duty of care has sexual intercourse with the person whom being cared,it is presumed that the act has an abstract endanger-ment of violating the right to sexual self-determination of underage females,thus constitutes this crime.The exception is that if the actor with duty of care can present the counter-evidence that the sexual act is fully vol-untary and consented by the other party,rather than using the dominant position or influence formed by the actor's identity.According to the principle of"no infringement with consent",the criminal law thus loses its justification for intervention.As far as the interrelation between the crime and rape is concerned,the two have a cross structure in extension.However,in terms of the connotation relation,this crime is a supplement to rape crime.If the behavior of the perpetrator conforms to the criminal composition of this crime and rape crime at the same time,a felony should be chosen and only the rape crime can be applied instead of this crime.
The crime of sexual assault by persons with duty of carethe right to sexual self-determinationsoft legal paternalismthe consent of the victimsuppletion
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