SPC, SPP Interpretation on Organizing, Compelling, Enticing, Sheltering and Brokering Prostitution

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Title: Supreme People's Court, Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Compelling, Enticing, Sheltering, and Brokering Prostitution
Promulgating Entities:The Supreme People's Court, The Supreme People's Procuratorate
Reference number: Legal Interpretation [2017] No. 13
Promulgation Date: 2017-7-21
Expiration date: 
Source of text: http://www.court.gov.cn/fabu-xiangqing-53752.html

The "Supreme People's Court, Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Compelling, Enticing, Sheltering, and Brokering Prostitution" has been passed by the 1716th Meeting of the Adjudication Committee of the Supreme People's Court on May 8, 2017 and by the 66th Meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on July 4, 2017, and is hereby released to take effect on July 25, 2017.

Supreme People's Court

Supreme People's Procuratorate

July 21, 2017

Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Compelling, Enticing, Sheltering, and Brokering Prostitution

Legal Interpretation [2017] No. 13

In order to punish criminal activities of organizing, compelling, enticing, sheltering or brokering prostitution, the following interpretation on several issues regarding the application of law in these criminal cases is hereby made on the basis of relevant provisions of the criminal law, combined with judicial practice:

Article 1: Where the prostitution of others is managed or controlled by means such as recruiting, hiring, or gathering three or more prostitutes, it shall be designated as "organizing others for prostitution" as provided for by Criminal Law article 358.

Whether or not the prostitution organizers set up a fixed venue for prostitution, the number of prostitutes, and the scale do not affect the identification of conduct organizing prostitution.

Article 2: In any of the following situations, organizing others for prostitution shall be found to have 'serious circumstances' as provided for in paragraph 1 of Criminal Law article 358:

(1) Where there are 10 or more prostitutes in total;

(2) Where a total of five or more of the prostitutes are juveniles, pregnant, persons with intellectual disabilities, or persons with serious sexually transmitted diseases (STDs);

(3) Where foreign [non-mainland] persons are organized for prostitution within mainland China, or mainland personnel are organized to leave the mainland for prostitution;

(4) Where illegal profits are 1 million RMB or more;

(3) Where serious consequences such as self-mutilation or suicide were caused for persons organized for prostitution;

(6) Other situations where the circumstances are serious.

Article 3: Where, during criminal activity of organizing prostitution, one entices, shelters, or brokers prostitution of the persons organized for prostitution, they are to be convicted and punished in accordance with the provisions providing for harsher punishment. However, where one commits acts enticing, sheltering, or brokering prostitution of persons other than those organized for prostitution, it shall be a separate conviction with cumulative punishment.

Article 4: Those clearly knowing that others are perpetrating criminal acts of organizing prostitution, and recruiting or transporting people for them, or serving as a bodyguard, thug, bookkeeper, or so forth for them, are to be convicted and punished for the crime of assisting the organization of prostitution in accordance with paragraph four of Criminal Law article 358, and it is not considered being an accessory to the crime of organizing prostitution.

Those who serve as cleaners, cashiers, guards, and so forth, in business venues such as licensed clubs or bath houses, who engage only in normal service and labor type work, who only collect an ordinary salary, and who do not have the conduct of assisting the organization of prostitution provided for in the preceding paragraph, are not considered to be perpetrating the crime of assisting the organization of prostitution.

Article 5: In any of the following situations, assisting in organizing others for prostitution shall be found to be "serious circumstances" as provided for in paragraph 4 of Criminal Law article 358:

(1) Recruiting or transporting 10 or more prostitutes of 10 in total;

(2) Where a total of five or more of the recruited or transported prostitutes are juveniles, pregnant, persons with intellectual disabilities, or persons with serious STDs;

(3) Assisting in organizing foreign [non-mainland] persons for prostitution within mainland China or assisting in organizing mainland persons to leave the mainland for prostitution;

(4) Where illegal profits are 500,000 RMB or more;

(5) Where serious consequences such as self-mutilation or suicide were caused for persons recruited, transported, or organized for prostitution;

(6) Other situations where the circumstances are serious.

Article 6: In any of the following situations, compelling prostitution shall be found to have 'serious circumstances' as provided for in Criminal Law article 358":

(1) Where there are 5 or more prostitutes in total;

(2) Where a total of three or more of the prostitutes are juveniles, pregnant, persons with intellectual disabilities, or persons with serious STDs;

(3) Where girls under 14 years of age where compelled into prostitution;

(3) Where serious consequences such as self-mutilation or suicide were caused for persons compelled into prostitution;

(5) Other situations where the circumstances are serious.

In any of the following situations where perpetrators have both acts of organizing prostitution and also have acts of compelling prostitution, it is to be dealt with as organizing or compelling prostitution with serious circumstances:

(1) Where there are any of the situations of 'serious circumstances' provided for in this Interpretation's article 2 or in the first paragraph of this article during acts of organizing or compelling prostitution;

(2) Where the number of prostitutes reaches the standards for organizing prostitution in 'serious circumstances' as provided in article 2(1) and 2(2) of this Interpretation;

(3) Where the amount of illegal profits reaches the standard amounts for organizing prostitution with 'serious circumstances' as provided for in article 2(4) of this Interpretation.

Article 7: Where one commits the crime of organizing or compelling prostitution, while also carrying out homicide, infliction of harm, rape, kidnapping, or other such criminal acts, they shall be punished in accordance with provisions providing for cumulative punishment for multiple crimes. Where actors assisting in organizing prostitution participate in the commission of aforementioned acts, it is to be treated as a joint crime.

Where one organizes or compels juveniles into prostitution, they shall be given a heavy punishment in accordance with the provisions of paragraph 2 of Criminal Law article 358.

Article 8: In any of the following circumstances, enticing, sheltering, or borkering prostitution shall be convicted and punished in accordance with the provisions of paragraph 1 of Criminal Law article 359:

(1) Where others were enticed into prostitution;

(2) Sheltering or brokering prostitution of 2 or more people;

(3) Sheltering or brokering prostitution of juveniles, pregnant women, persons with intellectual disabilities, or persons with serious STDs;

(4) Where one has been subject to administrative punishment for enticing, sheltering, or brokering prostitution within the last year, and again shelters or brokers prostitution;

(5) Where illegal profits are 10,000 RMB or more.

Where information networks are used to publish information on hiring prostitutes, and the circumstances are serious, it is to be convicted and punished as the crime of illegally using information networks in accordance with the provisions of Criminal Law article 287-1. Where it simultaneously constitutes the crime of brokering prostitution, it is to be convicted and punished in accordance with the provisions providing for harsher punishment.

Whether enticing, sheltering, or brokering prostitution was for the purpose of making profit does not affect the establishment of the crime.

Where girls under the age of 14 are enticed into prostitution, it is to be convicted and punished as the crime of enticing underage girls into prostitution in accordance with the provisions of paragraph 2 of Criminal Law article 359.

Where there are girls under 14 years of age among those enticed into prostitution, but also other people, separately convict for the crime of enticing underage girls into prostitution and the crime of enticing others into prostitution, and give combined punishment.

Article 9: In any of the following situations, enticing, sheltering, or brokering of prostitution shall be found to have "serious circumstances" as provided for in paragraph 1 of Criminal Law article 359:

(1) Where enticing five or more people into prostitution, or where enticing, sheltering, or brokering prostitution of 10 or more people;

(2) Where enticing three or more juveniles, pregnant women, persons with intellectual disabilities, or persons with serious STDs into prostitution; or where enticing, sheltering, or brokering prostitution of five or more such persons into prostitution;

(3) where illegal profits are 50,000 RMB or higher;

(4) Other situations where the circumstances are serious.

Article 10: The number of times that prostitution of others was organized, compelled, enticed, sheltered or brokered, is a discretionary sentencing consideration.

Article 11: In any of the following situations, there shall be found to be 'clear knowledge' as provided for in Criminal Law article 360:

(1) Where there is evidence proving that one has sought medical advice or undergone examinations at a hospital or other medical establishment, and was diagnosed with serious STD(s);

(2) Where one is able to know that he has a serious STD based on his knowledge and experience;

(3) Other means through which it can be proven the actor 'clearly knew'.

Whether acts spreading STDs actually caused others to contract serious STDs does not affect the establishment of the crimes.

"Serious STDs" as provided for in Criminal Law article 360 include syphilis, gonorrhoea, and so forth. Whether other sexually transmitted diseases are identified as "serious STDs", shall be strictly understood on the basis of the "People's Republic of China Law on the Prevention and Control of Communicable Diseases" and the "STD Prevention and Management Measures"; within the scope of STDs subject to STD monitoring as provided for by the National Health and Family Planning Commission; and in accordance with the principle that their harm and characteristics are commensurate with those of syphilis and gonorrhea.

Article 12: Where one engages in prostitution or patronizes a prostitute while clearly knowing that they have AIDS or are infected with HIV, they shall be convicted of the crime of spreading STDs and given a heavy punishment in accordance with the provisions of Criminal Law article 360.

In any of the following situations, causing others to contract HIV is to be found to be the "serious harm" as referred to in item 3 of Criminal Law article 95' s "others causing serious harm to personal health" , and convicted and punished as the crime of intentional infliction of harm in accordance with provisions of paragraph 2 of Criminal Law article 234:

(1) Where one engages in prostitution or patronizes a prostitute while clearly knowing that they are infected with HIV;

(2) Where one clearly knows that he is infected with HIV, but intentionally has sexual relations with others without taking preventive measures.

Article 13: Those committing crimes of organizing, compelling, enticing, sheltering, or brokering prostitution, shall be fined two times or more the amount of the criminal proceeds, in accordance with law. Where a joint crime is committed, the total amount of fines imposed on the joint offenders shall be two times that of the criminal proceeds or more.

If a person is given an indeterminate prison sentence for the crime of organizing or forcing prostitution, they shall be sentenced to confiscation of property at the same time.

Article 14: On the basis of Criminal Law articles 362 and 310, where personnel in the hospitality, food service, entertainment, or taxi industry, or other such units, provide advance warnings to violators or criminals when public security organs are looking into prostitution and solicitation, and that circumstances are serious, they are to be convicted and punished for concealing a crime. Where there was conspiracy with the criminals in advance, it is to be treated as a joint crime.

In any of the following situations, it shall be found to be 'serious circumstances' as provided for in Criminal Law article 362:

(1) Where furnishing advance warnings to a criminal enterprise that organizes or compels prostitution;

(2) Where advance warnings are furnished 3 or more times in two years;

(3) Where within one year of receiving an administrative sanction for furnishing advance warnings, they give information again;

(4) Where making it so that the head of a criminal enterprise or other primary offenders in joint crimes cannot be promptly brought in;

(5) Causing the escape of prostitutes or their clientele, making it hard for public security organs to investigate the criminal activity and withdrawing a criminal case;

(6) Where the illegal profits were 10,000 RMB or more;

(7) Other situations where the circumstances are serious.

Article 15: This Interpretation is to take effect as of July 25, 2017.

 

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