负有照护职责人员性侵罪的法网范围

The Legal Scope of the Crime of Sexual Assault by Persons with Duty of Care

负有照护职责人员性侵罪的增设虽受一定舆论影响,但立法机关对本罪的法网范围及其处罚采取了较为克制的态度,理解本罪的适用需要了解其立法背景与相关争议问题。为避免本罪的道德化倾向,在将本罪保护法益界定为特定女性的性自主权的前提下,需要对其法网范围适当限缩。将本罪与强奸罪理解为互斥关系,既非对立思维的产物,也非纯粹的理论游戏,有助于本罪的妥当适用。“特殊职责”要存在于行为之时,且应至少在一段时间内有持续性,其实质是使得低龄未成年女性产生生活和精神上的依赖,从而对其性自主权造成实质性影响。“发生性关系”应为狭义上的性交关系。“情节恶劣”是本罪的法定刑加重情节,对其认定要从多方面考虑,同时这也不意味着本罪的成立完全不需要考虑罪量因素。常年持续的性虐待事案跨越不同年龄段的场合,可能成立强奸罪与负有照护职责人员性侵罪的数罪。

Although the introduction of the crime of sexual assault by persons with duty of care has been influenced by public opinion,the legislature was relatively cautious about the scope and punishment of this crime. To understand its application,it is necessary to research on its legislative background and related controversial issues. In order to avoid the moralization tendency of this crime,it is necessary to limit its legal scope appropriately,under the premise that legal interest,protected by this crime,is defined as the sexual autonomy of a specific woman. The understanding that this crime is mutually exclusive with the crime of rape,is not an outcome of contradictory thinking,nor is it a pure theoretical game. Instead,it contributes to proper application of this crime. The “special duty” should exist at the time of the act,and should be sustained at least for a period of time. Its essence is to make the life and spiritual life of young female minors,and thus have a substantial impact on their sexual autonomy. “Having sex” should refer to sexual intercourse in the narrow sense.“Aggravating Circumstances” is the statutory aggravation of this crime and should be considered from many aspects,but it does not mean that the establishment of the crime does not need to consider quota factors. Years of persistent sexual abuse across different age groups may lead to cumulative punishment for rape and the crime of sexual assault by persons with duty of care.