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Opinions on Handling Criminal Cases of Sexual Violations of Minors

Promulgation Date: 2023-5-24
Title: Opinions on Handling Criminal Cases of Sexual Violations of Minors
Document Number:
Expiration date: 
Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, et al.
Source of text: https://www.spp.gov.cn/spp/xwfbh/wsfbt/202305/t20230525_614843.shtml

These Opinions are formulated on the basis of the laws and regulations such as the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, and the People's Republic of China Law on Protection of Minors, and in consideration of actual judicial conditions, so as to thoroughly implement Xi Jinping thought, to punish sexual assault crimes against minors in accordance with law, to regulate the handling of criminal cases of sexual assault against minors, and to strengthen the protection of minors.

I. General Provisions

Article 1:“Criminal sexual violations of minors” as used in this opinion, includes the commission of crimes targeting juveniles such as rape; sexual assault by one with a duty of care, forcible molestation; humiliation; child molestation; organizing prostitution; coercing prostitution; assisting in organizing prostitution; enticing, accommodating or making introductions for prostitution; luring underage girls into prostitution, as provided for in Criminal Law articles 236, 236-1, 237, 358, and 359.

Article 2:The handling of criminal cases of sexually violations of minors shall uphold the following principles:

(1) Severely punish sexual violations of minors in accordance with law;

(2) Uphold the principle of the best interests of the minor, taking full consideration of the minors’ physical and psychological immaturity, vulnerability and other traits to fully safeguard the minors' lawful rights and interests;

(3) Adhere to the principle of two-way protections where minors commit sexual violations against minor victims, to protect the minor victim's lawful rights and interests, while also protecting the minor suspect or minor defendant's lawful rights and interests.

Article 3:People’s courts, people's procuratorates, and public security organs shall designate dedicated organs or appoint dedicated persons familiar with the physical and psychological characteristics of minors, to be responsible for handling criminal cases of sexual violations of minors. Where the minor victims are female, female personnel shall participate.

Legal aid institutions shall appoint a lawyer who is familiar with the special physical and psychological characteristics of minors to provide legal aid.

Article 4:Where people's courts and people’s procuratorates discover vulnerabilities in social governance while handling cases of sexual violations of minors, they are to submit judicial or procuratorial recommendations in accordance with law.

Where the people’s procuratorates discover illegality while conducting oversight of procedural activities involving sexual violations of minors, they shall promptly submit an oversight opinion. Where violations of minors’ lawful rights and interests are discovered involving the public interest, public interest litigation shall be initiated in accordance with law.

II. Case Handling

Article 5:Public security authorities receiving a call, accusation or report of sexual violations against minors shall promptly accept it and quickly review it. Where the requirements for opening a criminal case are met, a case shall be immediately opened and investigated; in principle, the time for reviewing the opening of a case that is major, difficult, or complex is not to exceed 7 days. In any of the following circumstances, the public security organ shall open and investigate directly after receiving it:

(1) Where a minor who is clearly mentally retarded or not yet 14 years old is pregnant, terminates a pregnancy, or gives birth;

(2) Where the genitals or private parts of minors have suffered clearly abnormal injuries;

(3) Where minors are organized, forced, enticed, accommodated, or introduced for prostitution;

(4) Where there is other evidence showing that a criminal sexual violation of a minor has occurred.

Article 6: Where a public security organ discovers that a minor might have been sexually violated or receives a report of related leads, regardless of whether the case is within the jurisdiction of that unit, it shall promptly adopt emergency measures to stop the violations, protect the victims, and protect the scene. When necessary, a report shall be made to the relevant departments to give the victims temporary placements and aid.

Article 7:After the public security organs accept a case, where they find through review that there are facts of a crime that needs to be pursued for criminal responsibility, but that the jurisdiction is unclear for reasons such as being unable to confirm the site of the crime or the criminal suspect, the public security organs that accepted the case shall first open and investigate the case, and after the investigation clarifies the jurisdiction, they are to promptly transfer the case and evidence to the public security organ with jurisdiction.

Article 8: People's procuratorates and public security organs handling criminal cases of the sexual violation of minors shall persist in dividing work and responsibility, mutual cooperation, and mutual restraint; to strengthen investigative oversight, coordination, and cooperation, and complete and improve mechanisms for two-way information sharing to form a joint force. During the course of investigation, the public security organs may request that the people’s procuratorates give opinions and recommendations on matters such as the nature of the case, the collection of evidence, the application of law, and the requirements for protecting minors.

Article 9: Where the people's procuratorates feel that the public security organs should open and investigate a case but have not done so; or where the victims, their legal representatives or a person with special duties towards minors submits an objection to the people's procuratorate; where the people's procuratorate finds the demand reasonable after review, they shall request the public security organ explain its reasons for not filing the case. Where the people's procuratorate finds that a reason for not opening a case has not been established, it shall notify the public security organ to open the case; and the public security organs shall open the case after receiving the notice.

Article 10:The application of non-incarcerate compulsory measures shall be strictly controlled in accordance with law for adult criminal suspects or defendants in sexual violations of minors, and they are to be pursued and severely punished in accordance with law.

Article 11:In handling criminal cases of sexual violations of minors, when the public security organs request approval of arrest or transfer for prosecution, the case file shall include materials showing the source of the case and how it occurred, as well as an explanation of how the criminal suspect was brought in (caught), and so forth.

Article 12:People's courts and people's procuratorates handling cases of sexual violations of minors shall promptly inform the minor and their legal representatives or close relative that they have the right to retain an agent ad litem and inform them that they have the right to apply for legal aid in accordance with law.

Article 13:People's courts, people's procuratorates, and public security organs handling criminal cases of sexual violations against minors shall promptly notify the minor victims and their legally-designated representatives of case developments and the case disposition, and explain the relevant circumstances, except in situations where it would obstruct the case-handling.

Article 14:After people's courts determine the date on which to conduct in-court proceedings in a criminal case of a sexual violation against a minor, they shall notify the minor victim and his legal representative of the time and place of court proceedings.

Article 15:Where people's courts hold in-court proceedings in criminal cases of sexual violations of minors, the minor victims and witnesses are ordinarily not to appear in court to testify. Where it is truly necessary for them to appear in court, protective measures shall be employed in light of the case circumstances, such as not exposing their appearance or true voice, or video and other such measures may be employed to play recordings of the questioning of the minors, and technical processing and other protective measures shall also be employed in the playing of the video.

Where the method or content of in-court questioning by the defendant and their defendant are inappropriate and might cause physical or psychological harm to the minor victims or witnesses, the chief judge shall promptly stop it. Where during the course of trial, the minor victims or witnesses become panicked, nervous, excited, rebellious, or otherwise impact the normal conduct of the trial, the chief judge shall announce an adjournment, employ emotional support and guidance measures, and assess the necessity of having the minor victim or witness continue their in-court testimony.

Article 16:In handling criminal cases of sexual violations of minors, the adjudicators, procurators, investigators, lawyers, and other litigation participants or persons with knowledge of the case circumstances shall maintain the confidentiality of information involving minors’ identities, information from which minors’ identities could be deduced, and content involving the details of the sexual violation.

Litigation documents that are open to the public must not disclose minors’ identity information or other information from which their identity might be deduced, and the facts of the sexual violation must be described in an appropriate manner.

Where case-handling personnel go to the school, unit, or residence of a minor victim or their relatives, they shall avoid driving police cars, wearing uniforms, or employing other methods that might reveal the minor’s identity or impact their reputation or privacy.

Article 17:Where one commits sexual violations, such as illicit sexual relations, against someone they know or should know is an underage girl less than 14 years old, the perpetrator shall be found to 'clearly know' that the other party was an underage girl.

Where sexual violations, such as illicit sexual relations, are against a victim under the age of twelve-years-old, the perpetrator shall be found to 'clearly know' that the other party was an underage girl.

Where sexual violations, such as illicit sexual relations, are perpetrated against a victim between 12 and 14 years-old, and one can observe that they might be an underage girl from the state of their physical development, speech, deportment, dress, and lifestyle habits, the perpetrator shall be found to 'clearly know' that the other party was an underage girl.

Article 18:Where rape or molestation is committed against minors at a public venue such as a school campus, a swimming pool, or a children's playground, the crime of rape or molestation, may be found to have been in a public forum 'before the public' as provided for in paragraph 3 of Criminal Law articles 236 and 237, so long as there were other people present, regardless of whether they actually saw it.

Article 19: Where foreigners commit crimes such as the rape or molestation of minors within the territory of the PRC, deportation may be added when giving a criminal sentence. For those whose conduct does not constitute a crime but constitutes a violation of public security administration, or who have a record of criminal sexual violations of minors so that it is inappropriate for them to remain with in China's territory, the public security organs may lawfully have them leave within a set period of time, or deport them.

Article 20: The requirements for applying commutation, parole, and temporary service of sentence outside of prison shall be strictly understood for adult criminals who committed sexual violation crimes against minors Where they are in community corrections, they shall be strictly managed and controlled.

III. Evidence collection, review, and assessment

Article 21:Public security organs handling criminal cases of sexual violations of minors shall follow the legally-prescribed procedures to promptly and comprehensively collect and fix evidence. Site inspections or inspections are to be promptly conducted of places, items, and persons related to the case, to collect traces, physical evidence, and physiological samples related to the case; promptly collect documentary evidence related to the case such as records of lodging, transit, and bank transactions; a/v materials such as surveillance footage from the scene, and electronic data such as cell phone text messages, instant messaging records, social media software records, cell phone payment records, a.v recordings, and cloud drive materials. Where evidence such as A/V materials and electronic data is destroyed due to inadequate preservation, it shall be recollected from the unit where the data was originally stored or submitted to a professional institution for technical recovery or repair.

Article 22:Where the statements of minor victims or the testimony of minor witnesses touches on leads to other crimes that are within the public security organs’ jurisdiction, the public security organs shall promptly investigate and verify them; where they are within another organ’s jurisdiction, they shall transfer them to the organ with jurisdiction.

Where persons who have conditions facilitating close contact with minors are suspected of crimes of sexual violations against minors, the public security organs shall emphasize investigating other minors that the criminal suspect might have had contact with to fully ascertain all facts of crimes.

Where the requirements are met to merge sexual violation cases that occurred in the area of the criminal suspect’s residence or in the same or similar venues that used identical methods, they shall be promptly merged to prevent any facts of crimes from being omitted.

Article 23:In questioning minor victims, a ‘one-stop’ venue shall be chosen for the collection of evidence, and it is to be conducted in a location such as the victim's residence or another location that lets the minors feel safe, and their legal representatives are to be notified to be present. Where the legal representative cannot be present or it is not suitable for them to be present, another appropriate adult shall be notified to appear, and a record of the circumstances is to be recorded in the case file.

The questioning of minor victims shall employ gentle methods and be conducted in a language that the minor can understand and tolerate. Adhere to the principle of having a single questioning, avoiding multiple and repetitive questioning causing derivative harms. Where further questioning is truly necessary, it shall be conducted focussed on verifying content that is truly unclear.

Female staff shall conduct the questioning of minor female victims.

Article 24:A simultaneous audio or visual recording shall be made of the questioning of minor victims. The audio or visual recording shall be complete and without interruptions, must not be made selectively, and must not have splicing or deletions. The sound and images of the audio or visual recording shall be clear and stable, and the face of the person being questioned shall be clear and recognizable so that it truthfully reflects the state of the minor victim in answering questions. The audio or visual recordings shall be transferred with the case.

Article 25:In questioning, minor victims shall be asked about the facts and circumstances related to the sexual violations, including identity information such as their age, their interactions with the criminal suspects or defendants, and the method, time, location, number, and consequences of violations,

In questioning, the victims should be allowed to freely make statements as much as possible, and they must not be lured and guided, and the questions and the minor victims’ responses are to be recorded clearly. The record shall preserve the traits of the minors’ language, and must not be casually processed or aggregated.

Article 26:Where the statements of minor victims or of criminal suspects or defendants have special traits or details that could only be known to those involved, including physical traits, behavioral characteristics, and environmental traits, the case-handling organs shall promptly fix the evidence through evidence-collection measures such as physical inspections of persons or site inspections.

Article 27:Evidence that can demonstrate circumstances such as that the minor victim and criminal suspect or defendant were acquainted, interacted, or had disputes, and their atypical manifestations or inclinations, or that is useful for improving the chain of evidence and ascertaining all facts of the crime, shall be fully collected.

Article 28:Evidence that can demonstrate the mental state or behavior of minors after the sexual violation shall be fully collected. Where minors suffer harmful consequences such as psychological trauma, depression, suicide, or self-harm, they shall be promptly inspected and evaluated.

Article 29:The standards of proof of the facts being clear, the evidence being credible and sufficient, and reasonable doubt being eliminated, shall be upheld in the finding of crimes of sexual violations of minors. The finding of facts in the case should be based on evidence, take experience and common knowledge into consideration, and consider the special nature of cases of sexual violations and the physical and psychological characteristics of minors, to correctly understand and grasp the standard of proof.

Article 30: Focus on reviewing the time and background in which minor victims’ statements were made, whether the victims’ age, cognition, memory, and ability to express themselves impacted the voluntariness and completeness of the statement, and whether the statement can be mutually verified or contradicted by other evidence.

Where there are discrepancies in the details of prior and subsequent statements by young minors, their physical and psychological characteristics shall be considered in comprehensively assessing whether the main facts of their statement are objective and true.

Where minor victims describe details of the criminal suspects or defendants, or of the sexual violation, that could only be known to those involved, and the possibility of the testimony being guided or induced, or of their making false accusations or framing someone can be excluded, it shall normally be accepted.

Where the content of the written record of questioning minors is inconsistent with that in the simultaneous audio or visual recording of the questioning, an accurate and objective determination shall be made in consideration of the simultaneous audio or visual recording.

The review and assessment of minor witnesses’ testimony are to be conducted in accordance with the preceding 4 paragraphs of this article.

Article 31:In assessing the true will of minor victims who are 14 years old or older, their explicit opposition or consent is not to be taken as the only evidence, and a comprehensive assessment shall be made in consideration of the minor victims’ age, physical state, conduct before and after the sexual violation, and the relationship of the parties, the environment in which the crime occurred, and the process by which the crime occurred.

IV. The Protection and Aid of Minor Victims

Article 32:Based on minor victims' actual needs and local conditions, the people’s courts, people's procuratorates, and public security organs handling criminal cases of sexual violations of minors, shall coordinate relevant departments to provide the minor victims with aid and protection measures such as psychological counseling, temporary care, medical treatment, school transfer placements, and economic support.

Article 33:After criminal suspects are brought in, the case-handling personnel shall first learn whether they have HIV, and where they do, they shall promptly assist or collaborate with relevant departments to employ measures to protect the minor such as prophylaxis after obtaining the consent of the minors’ guardians.

Article 34:Where people’s courts, people's procuratorates, or public security organs handling criminal cases of sexual violations of minors discover that minors' parents or other guardians are not performing guardianship duties in accordance with law, or are violating the minors' lawful rights and interests, they shall reprimand them and urge them in writing to perform their guardianship duties in accordance with law. When necessary, the minors’ parents or other guardians may be ordered to accept family education guidance.

Article 35:Where minors are sexually violated by their guardians, and other persons with guardianship credentials, the civil affairs departments, or other such relevant units or organizations submit an application to the court requesting that guardianship qualifications be revoked and that another guardian be appointed, the people's court will support it.

Where relevant individuals and organizations do not promptly apply to the people's courts to have guardianship qualifications revoked, the civil affairs departments, the people's procuratorate may urge and support them in initiating proceedings.

Article 36: As to personal injuries caused to a minor victim as a result of sexual violation, where compensation cannot be immediately received and there are hardships in their lives, people's courts, people's procuratorates, and public security organs at all levels, together with other relevant departments, may prioritize consideration of providing judicial relief.

V. Miscellania

Article 37:The people's courts, people’s procuratorates, public security organs, and judicial-administrative organs shall actively advance the implementation of the mandatory reporting system for cases of harm to minors. Where failure to perform mandatory reporting obligations causes serious consequences, responsibility shall be pursued in accordance with the PRC Law on the Protection of Minors.

Article 38:The people's courts, people’s procuratorates, public security organs, and judicial-administrative organs shall actively advance the establishment and improvement of the system for making inquiries into information on illegal and criminal sexual violations by those entering industries that have close contact with minors, establishing a database of sexual offenders, and assisting units that have close contact with minors in carrying out inquiry efforts.

Article 39:Case-handling organs shall establish and improve mechanisms for one-stop case-handling and aid in cases of the sexual violation of minors, using methods such as establishing dedicated venues, alloting dedicated equipment, improving work processes, and bringing in social forces to complete efforts on evidence collection such as questioning, physical inspections, collecting biological samples, and investigative identifications in a single instance as much as possible, and simultaneously carrying out efforts on aid and protection.

VI. Supplementary Provisions

Article 40:These Opinions are to take effect on June 1, 2023. After these Opinions take effect, the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice's Opinions on Punishing Crimes of Sexual Violations of Minors in Accordance with Law (Fafa (2013) No.12) is simultaneously revoked.

 

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