猥亵行为应纳入负有照护职责人员性侵罪——以师源性侵为例

Indecent Behavior should be Included in the Sexual Assault Committed by the Personnel Responsible for care——Take the Cases of Teacher-Source Sexual Assault

《刑法修正案(十一)》规定了负有照护职责人员性侵罪,但是并未将负有特殊职责人员猥亵已满14周岁不满16周岁的未成年女性一律规定为犯罪,造成负有特殊职责人员的奸淫行为和猥亵行为的性同意年龄的差异,这种做法的合理性有待商榷。这与德国、日本、中国台湾等国家或地区的规定明显不同。本文在梳理了100起师源性侵案件后,发现教师性侵学生具有重复性和行为强化程式,教师猥亵学生行为往往是为了实施奸淫行为挑选合适被害人,且案发率远远高于奸淫行为。我国应当将猥亵行为纳入负有照护职责人员性侵罪。负有照护职责人员奸淫被害人的行为必然伴随着猥亵,纵容猥亵行为而严惩奸淫行为,必然会带来负有特殊职责人员奸淫案件高发的后果。

The Criminal Law Amendment(XI) provides for the offence of sexual assault by persons with care responsibilities, but does not criminalize indecent assault by persons with special responsibilities on minors who have reached the age of 14 and under the age of 16, resulting in differences in the age of sexual consent for acts of adultery and indecent assault by persons with special responsibilities. This is obviously different from the regulations of Germany, Japan, Chinese Taiwan and other countries and regions. After combing 100 cases of sexual abuse by teachers, it is found that teachers’ sexual assault students have repeatability and behavior strengthening program. Teachers’ indecent behavior of students is often to select suitable victims for the purpose of committing adultery, and the crime rate is much higher than that of adultery. Adultery must be accompanied by indecent assault, connivance of obscene behavior and severe punishment of adultery, which will inevitably lead to the high incidence of adultery cases of persons with special duties. While considering the violation of personal rights in the case of sexual assault of persons with care responsibilities, it is also necessary to consider the destruction of social relations, and it is necessary to include indecent acts in the crime of sexual assault of persons with care responsibilities.