强奸罪犯罪对象范围扩大之探讨——以强制猥亵罪的修改为切入点

On the Expansion of the Criminal Object of Rape ——An Analysis of the Amendment of the Crime of Compulsory Obscenity

《刑法修正案(九)》通过修改第237条,将原先的强制猥亵妇女、儿童罪改为强制猥亵罪,使该罪的犯罪对象有所扩张。此次修改一方面意味着男性被纳入强制猥亵罪的保护范围,另一方面意味着立法者及国民对性及性权利有了进一步认识。虽然我国刑法在修正案(九)草案中也提出将强奸罪犯罪对象扩大到男性,但未能通过。关系密切的两个罪:一个犯罪对象包括男性,一个犯罪对象排斥男性,明显无法保持刑法条文内部的统一。我国《宪法》和《刑法》的基本原则要求男女平等,国际社会强奸罪的立法趋势也是将男性纳入强奸罪犯罪对象之中,遵循基本原则,顺应国际立法潮流,扩大强奸罪犯罪对象乃大势所趋。

In the Criminal Law Amendment (IX), by amending Article 237, the original crime of compulsory defamation of women and children was changed to compulsory defamation, thus the criminal object of the crime was expanded. On the one hand, this amendment means that men are included in the scope of compulsory defamation;on the other hand, legislators and residents have a better understanding of sex and sexual rights. Although the Criminal Law of our country also proposed in the amendment (IX) that the crime of rape was extended to males, it failed to be passed. Two crimes are closely related, one criminal object includes males, and the other one excludes males, and it is obviously unable to maintain unity within the criminal law provisions. The basic principles of China s “Constitution” and “Criminal Law” require equality between male and female. The legislative trend of rape in the international community is also to include men in the crime of rape, follow basic principles, conform to the trend of international legislation, and expand the crime of rape is the general trend.