负有照护职责人员性侵罪的罪间认定——以犯罪对象的部分性承诺能力为视角

Determination of Sexual Assault Crime by Persons with Care Responsibilities

"负有照护职责人员性侵罪"中犯罪对象的性承诺能力不明,导致其正当性根据存疑,存在提高性承诺年龄说、隐形强制与伦理禁忌说、缓和的家长主义等学说,但均难以从根本上化解负有照护职责人员性侵罪的罪间矛盾。部分性承诺能力说以性承诺能力的逐步获得为事实前提,以全面保护性权利为价值导向,结合性承诺能力降低的具体情形,将性承诺能力划分为三个类型:完全性承诺能力、部分性承诺能力、无性承诺能力,14周岁至16周岁的未成年人女性针对负有照护职责的人员只有部分性承诺能力,利用其部分性承诺能力对其奸淫的行为,构成负有照护职责人员性侵罪,但不构成基于无性承诺能力的奸淫幼女型强奸罪,也不是具有完全性承诺能力时的非罪行为,进而从根本上化解了负有照护职责人员性侵罪的体系矛盾,为其提供了正当性依据。在此基础上,基于平等原则,应扩大负有照护职责人员性侵罪犯罪对象的范围,将性行为扩大为进入式性行为,并相应地扩大犯罪主体的范围。

The ability of sexual commitment of the criminal object in the crime of sexual assault of persons with care responsibilities is unclear,which leads to doubts about its legitimacy,and there are theories such as raising the age of sexual commitment,implicit coercion and ethical taboo,mild paternalism and so on.However,it is difficult to fundamentally resolve the contradiction between the crimes of sexual assault committed by persons with care responsibilities.Partial commitment capacity theory takes the gradual acquisition of sexual commitment capacity as the factual premise,comprehensive protective rights as the value orientation,combined with the specific situation of the decline of sexual commitment capacity and the capacity of sexual commitment can be divided into three types:complete commitment capacity,partial commitment capacity and asexual commitment capacity.Minor women between the ages of 14 and 16 have only partial sexual commitment ability for persons with care responsibilities,and make use of their partial sexual commitment ability to commit sexual assault for their adultery,but it does not constitute the crime of rape of young girls based on the ability of non-sexual commitment,nor is it a non-criminal behavior with the ability of complete sexual commitment.Furthermore,it fundamentally resolves the contradiction in the system of sexual assault committed by persons with care responsibilities,and provides a legitimate basis for it.On this basis,based on the principle of equality,the scope of the criminal object of sexual assault committed by persons with care responsibilities should be expanded,the sexual behavior should be expanded to entry sexual behavior,and the subject of the crime should be increased accordingly.