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"The two of us have a very good relationship, usually known as brothers and sisters, she also trusts me more, the same night can't help but happen..." In Guangzhou, Guangdong, there was a case of sexual assault by a person with nursing duties in Guangzhou: Suspect Liu Mou (pseudonym) joined a college in Guangzhou for many years, and during his tenure as the class teacher of student Yang Mou (pseudonym), he had a good relationship with Yang Mou and privately called himself a brother and sister. One night, when Yang asked Liu to go out and return to school, because he exceeded the access control management time of the school dormitory, the two were afraid of being criticized and punished by the school, so they decided to stay overnight in Liu's teacher's dormitory, and the two had sex that night. (The material comes from the Southern Metropolis Daily, and the author has sorted it out slightly)
1. It seems urgent to strengthen sex education for underage students! In real life, similar cases are disclosed from time to time, and in addition to pursuing the legal responsibility of relevant personnel, we must also consider taking precautions in advance.
2. In this case, from a legal point of view, the suspect Liu Mou (taking advantage of the period of serving as the class teacher of the victim Yang Mou, had a good relationship with Yang Mou, gained the trust of the other party, and then took the opportunity to have sexual relations with him, it seems that there is no use of violence, coercion and other means, and it may also be suspected of breaking the law and committing crimes.
Of course, as far as the suspect Liu Mou's behavior is concerned, it is possible to commit rape or sexual assault by a person with nursing duties.
In fact, the crime of sexual assault by a person with nursing duties is a new crime added to the Criminal Law Amendment (XI). It is not difficult to see from the original intention of the legislation that between the person with the responsibility of care and the minor, based on the special duties of the former and the unequal relationship between the age, status, identity, etc. of the two parties, a state of implicit coercion is easily formed between the two.
Compared with the crime of rape, which requires the suspect to use coercive means such as violence and coercion, even if the minor women who are responsible for the care of them do not use obvious coercive means, it is enough to achieve the coercive effect of suppressing the other party's expression of true will.
It can be seen that according to the definition of "sexual assault by a person with nursing duties" in the Criminal Law Amendment (XI), whether the suspect Liu Mou constitutes a crime, we must grasp three key points when convicting:
1. Whether the victim Yang X and suspect Liu X were minor women who were 14 years old but not yet 16 years old when they had sexual relations;
2. Whether the suspect Liu X is a person with special duties who has guardianship, adoption, care, education, and medical responsibilities for the victim Yang X;
3. Whether the suspect Liu mou has sexual relations with the victim Yang Mou.
That is to say, if the perpetrator takes advantage of the hidden state of coercion formed by special duties to have sexual relations with a minor woman who has reached the age of 14 but not yet reached the age of 16 in his care, even if he does not use violence, coercion or other coercive means, his act is still against the woman's will, and shall constitute the crime of sexual assault by the person with the responsibility of nursing care according to law.
In this case, from the perspective of objective behavior, the suspect Liu X, as the class teacher, had the responsibility of education and management for the victim Yang X, and used Yang X's trust in him to have sexual relations with him, although in this process, it did not involve the use of violence, coercion and other means, but the relevant behavior was in line with "the person who has special duties such as education for a minor woman who has reached the age of 14 but is not yet 16 years old, and has sexual relations with the minor woman", and his behavior has constituted the crime of sexual assault by the person with the responsibility of nursing.
3. From the perspective of sentencing, according to article 236 of the Mainland Criminal Law, a person who has special duties such as guardianship, adoption, care, education, or medical treatment for a minor woman who has reached the age of 14 but not yet reached the age of 16 shall have sexual relations with the minor woman, and shall be sentenced to fixed-term imprisonment of not more than three years;
It can be seen that the basic sentence constituting this crime is relatively light compared to the crime of rape (three to ten years imprisonment), which is also a sentence of not more than three years.
In this case, considering that the suspect Liu voluntarily surrendered after being summoned by telephone and confessed the criminal facts of his sexual relations with the victim Yang X, it was voluntary surrender in the legal sense and could be mitigated or mitigated.
It should be noted that for perpetrators constituting the crime of sexual assault by persons with nursing duties, in addition to the traditional pursuit of criminal responsibility (such as sentences to fixed-term imprisonment, short-term detention, etc.), the provisions of article 37-1 of the Criminal Law on prohibiting the prohibition of employment measures can be applied, prohibiting the perpetrator from engaging in relevant occupations within a certain period of time to prevent him from committing crimes against minors.
In the end, the local court sentenced the suspect Liu to two years and ten months in prison, and banned from engaging in the education industry and minors-related occupations for five years.
In fact, as the relevant netizens said, the crackdown is not the goal, prevention is the key! In order to effectively prevent and reduce the occurrence of such incidents in similar cases, in addition to severely punishing the infringers in accordance with the law, guardians, schools and society also need to work together to improve the awareness of prevention, enhance the ability of minors to protect themselves, and achieve full coverage of the protection of minors.
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