《刑法修正案(十一)》后我国的性同意年龄制度反思--以中国与欧洲之比较为视角

Reflections on the Chinese Legislation on the Age of Consent for Sex after the Adoption of the Amendment(Ⅺ)to the Criminal Law-From the Perspective of Comparison Between China and Europe

欧洲各国家和地区的性同意年龄在过去的几十年中处于不断变革的状态,通过对欧洲59个司法管辖区在2004年和2016年的性同意年龄立法进行纵向比较,发现近些年欧洲在性同意年龄立法方面有三个明显的趋势:第一,年龄界限设置上的去低龄化和趋同化趋势;第二,采用性别中立化的立法语言,使性同意年龄制度对未成年人性权益的保护不会因为性别、性取向的不同而有所区分;第三,越来越多的国家和地区开始对权威关系(或依赖关系)下与未成年人之间的性行为增设较高的性同意年龄,以实现对处于弱势地位的未成年人的全方位保护。我国《刑法修正案(十一)》新增的“负有照护职责人员性侵罪”,增设了十六周岁为我国特殊关系下的性同意年龄。通过对比欧洲与中国的立法,发现我国性同意年龄立法仍存在以下问题:普通性同意年龄偏低,为外国恋童癖利用差异化立法性侵我国未成年人留下了犯罪空间;新增设的“负有照护职责人员性侵罪”缺少对特殊关系中已满十六周岁不满十八周岁未成年人的保护;对已满十四周岁不满十八周岁未成年男性的性权益保护缺位。欧洲立法者在这些方面探索出来的立法经验对我国问题的解决具有镜鉴意义。

During the past several decades,laws on the age of consent for sex in Europe have been amended continuously.This research reveals several trends.The first trend is to raise the minimum age of consent for sex,and there is a harmonious development as well to prevent pedophilias from having sex with children by crossing national borders.The second trend is to use gender-neutral language in legislation to equalize the age of consent for sex for both heterosexuality and homosexuality,and for both males and females.The third trend is to strengthen the regulation of sex under authority relationships in more and more areas.The Amendment(XI)to Chinese Criminal Law has added a new crime-sexual assault by persons with care duties,which sets the age of consent for sex in authority relationships at 16.It provides more protection to children from being sexually exploited by authoritative persons,so in this regard,this new amendment is a tremendous progress in the Chinese legislation on the age of consent for sex.However,it still has room for improvement and the European legislative practice provides a good example for China in this respect.First,the normal age of consent for sex is too low and cannot punish foreign pedophilias who take advantage of this low age to have sex with Chinese children that are at or above the age of 14.Second,male adolescents above the age of 14 are considered competent to have sex with any person,including a person in authority,and this is disadvantageous to the protection of male adolescents under the age of 18.Third,the current age of consent for sex in a relationship of authority is 16.As a result,children above the age of 16 but under the age of 18 are excluded from the special protection.The corresponding solutions include the followings:first,to use gender-neutral language in the legislation on the age of consent for sex,so that the age of consent for sex will be applied with no distinction between boys and girls,or between heterosexuals and homosexuals,and to raise the normal age of consent for sex to 16 and the age of consent for sex in a relationship of authority to 18.Although China has no tradition of discriminating against homosexuals and Chinese legislation has never made a special distinction between heterosexuals and homosexuals,the current gendered language in sexual offense legislation does lead to different legal consequences for heterosexuals and homosexuals,and for males and females.The Chinese academia believes that technically it’s not difficult to adopt a gender-neutral language in legislation.All we need is for the legislators to change their mindset.In addition,according to the current legislation,if a boy above the age of 14 but under the age of 16 has consensual sex with a girl under the age of 14 in China,he will be criminalized as a rapist if the sex occurs often,or causes pregnancy.This is disadvantageous to the future development of the boy who is under the age of 18 and still needs special protection.The defense of’age of similarity’adopted by most European countries is a good solution and it only requires two elements to exculpate the boy:the sex is consensual and their age discrepancy is within a certain limit.Once adopted,the age similarity defense is consistent with the Chinese judicial policy of“moderate and cautious intervention”in dealing with consensual sex between teenagers.