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A Quick Introduction to New Protections for Juvenile Victims of Sexual Violations.

A Quick Introduction to New Protections for Juvenile Victims of Sexual Violations.

In May and June of this Year, the Chinese media and public were appalled and mesmerized as details of several high-profile incidents of child sexual abuse surfaced. Hotel security camera footage showing a Hainan principal bringing 6 underage girls into a local hotel was publicly released after the girls returned home dazed and bruised. Then, as if a  cage had been left open,  at least 7 more major cases of sexual abuse by teachers made national news in the following twenty days. In June, the story reached its peak with Henan official Li Xingong’s execution for raping  11 underage girls during police interrogations over several years.

As an outraged public cried for justice and assurances that their children were safe, the Supreme People’s Court called for harsher penalties and began drafting an Opinion,

A cartoon circulated on Weibo showing the Hainan principal and his victims
A cartoon circulated on Weibo showing the Hainan principal and his victims

along with the Supreme People’s Procuratorate, Ministry of Justice and Ministry of Public Security on handling cases of sexual violations against children, which has now been released, clearing up a number of legal uncertainties and making moves to protect children.

There’s plenty in the new opinion to be pleased with that is generally self-explanatory:

  • Practical measures to protect the identity and reputation of raped or sexually abused minors, by making police investigations more discreet and keeping personal information confidential ; in recognition of the stigma that can come with such victimization
  • Consideration of the vulnerability of the victim, reminding investigators to  question juveniles delicately but thoroughly, and inclusion of specialized investigators for all minors, and female personnel in handling cases with female victims.
  • Calls for harsher punishments when the abuser is someone with a duty to protect the minor, including state officials.
  • Clarifying that any rape or molestation in a public place satisfies the requirements for the aggravating sentencing factor of being committed ‘before the public’ without requiring proof that an audience actually watched.

Now, it should be said that when China talks about sex with ‘underage girls’ being treated as rape, the age in question is 14. Consensual sex with girls under  14 is only considered rape where the offender ‘clearly knows’ that the offender is underage, which has now been interpreted as meaning that the offender actually knew, or should have known, the victim was underage. The new interpretation provides an unrebuttable presumption that the offender ‘clearly knew’ a victim was underage if she was under 12. For victims between twelve and fourteen, their specific characteristics will be considered in determining whether the accused should have known they were underage.

Further, rape in Chinese law, is also still a gendered crime and only females can be victims. A female can be guilty of the offense, however, as an accomplice if she facilitates the abuse or prostitutes the child. While child molestation is a gender neutral offense, if a male victim is 14 or older, the crime is intentional infliction of harm, not molestation.

This difference has not been all that critical however, as the recoverable damages caused by a rape have generally not recognized the crime’s psychological harms. The recently revised Criminal Procedure Law limits civil actions accompanying criminal cases, and the SPC’s interpretation of that law limits the scope of criminal compensation. So , regardless of whether one is the victim of a sex crime or an intentional harm, the damages are for the physical wounds only.

The new Opinion may go slightly further for cases involving minors, by telling courts to support requests for compensation for reasonable medical expenses, which one SPC official says includes psychiatric rehabilitation costs.  The Opinion that in addition to the defender, recovery may also be against the a school if the violation happened while the student victim was in their care. Covering bills, however, is a far cry from compensating the psychological harm, and as a practical matter, requires the family of the victim to first bear expenses for treatment even knowing they may never be able to successfully recover given the notorious difficulties in enforcing Chinese judgment awards.

Another area of confusion that the law addresses is the distinction between rape and the lesser offense of patronizing an underage prostitute.  These are separate crimes, but discussion of the cases last summer showed that the Court’s earlier efforts to distinguish them had not taken, and many still argued that if an underage girl accepted gifts or cash in exchange for sex, the crime was patronizing underage prostitutes, not rape.

The new Opinion puts this notion to rest making it clear that sex with a girl under 14 is rape even when she was lured into the act with gifts, or where it was known that someone else was compelling her to prostitute herself.  Girls under 14 who were actively and “consensually” prostituting themselves, however ,seems to have been  intentionally outside of this clause, leaving transactional sex with girls under 14 as the crime of patronizing an underage prostitute.

Clearly, as with the emotional damages mentioned above, the authors of this document felt constrained by the existing legislation, and felt the need to leave some substance to the prostitution offense. Yet, why couldn’t the same conduct constitute both rape and the child prostitution charge is a harder question. Or more directly, why couldn’t there be an assumption that children under 14 were always coerced into prostitution, as they lack criminal capacity under Chinese law?

These gentle  criticisms are made only after acknowledging the Opinion is a document truly seeking to help some of China’s most vulnerable, but constrained by existing law. The real challenge, as anywhere comes not in having the right intentions, or the harshest penalties, but working to prevent these crimes whenever possible and ensuring that they are discovered and stopped when they inevitably occur.

It is not clear what happened last summer to expose so many cases, but it is unlikely that the numbers were unusual, only the increased press coverage.  The Opinion works hard to make clear that there is a duty for caretakers to report abuse, and that law enforcement should respect such reports, but  a mobilization and vigilance of the whole society is needed.

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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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