Application of the Offense of Sexual Assault by Persons with Care Responsibilities under the Perspective of Positive Criminal Law

Abstract

The offense of sexual assault by persons with care responsibilities, introduced in the 11th Amendment to the Criminal Law of the People's Republic of China, is a typical example of the development of positive criminal law in our country. It aligns with the legislative trend of phased protection for minors in the international community and optimizes our country's norms on sexual offenses. The unlawful nature of this offense lies in the exploitation of underage females by special duty personnel through the covert use of their advantageous positions. Based on the adherence to the age of 14 as the age of sexual consent, the protected legal interest defined by this offense is the sexual autonomy of females aged 14-16. This offense and rape have overlapping provisions. The term "sexual intercourse" refers strictly to penile-vaginal intercourse, but its interpretation should be expanded in the future. The element of "utilizing special duties" by special duty personnel is an implicit constitutive requirement. Regarding subjective liability, it is generally presumed that the perpetrator is aware of the age of the underage female, but rebuttal is allowed. From a restrictive interpretation standpoint, there is room for excluding liability. However, challenges remain in the application of this offense concerning the protection of sexual rights, its scope, and specific preventive measures. It is urgent for criminal legislation to keep pace, address legal loopholes, and improve relevant preventive measures.