Crime, Seen

An overview of changes proposed in China's 11th Criminal Law Amendment

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[The chart below is an overview of Criminal Law Amendment XI and contains links to analysis and discussion below.
I will continue to update as time allows. Check back often!]

COMMENTARY: Contents

Children and the Law

Item 1: Juvenile Justice

Lowering the age of criminal responsibility

Under article 17 of China’s current Criminal Law, juveniles not yet 14 years of age cannot be criminally prosecuted. Juveniles who are 14 or 15 may be held criminally responsible only for certain very serious offenses such as homicide, intentional harm causing death or serious injury, robbery, rape, arson, and drug-trafficking. Those already 16 bear criminal responsibility for their actions, but courts are told to punish juveniles leniently, even commuting to below statutory minimums, in consideration of their age.

The amendment would allow children as young as 12 to be held criminally liable for crimes resulting in death, with the approval of the nation’s highest prosecutor, the Chief Procurator.

The proposal raises a number of concerns. First, it lowers the age of criminal responsibility below international law norms, which state it should not be lower than 14. Committee on the Rights of the Child, General Comment No. 24 (2019). China, which abolished the death penalty for minors before the U.S., has the opportunity to be a leader in this area, and should be conscious of the example it sets.

Second, the proposal confuses the severity of the offense with the culpability of the child. Generally speaking, the idea of leniency for child offenders stems from the recognition that they are less responsible for their actions and have a greater chance of reform. They are still developing neurologically and are less able to understand and control their conduct, but this same malleability also gives hope that they can truly change.

The severe consequences of crimes like murder or rape might seem ‘adult’ in some sense, but not in a way that addresses the immaturity and subjective culpability of the child. On the contrary, it may reflect the child’s inability to understand how serious their actions are. The seriousness of the offense is probably more connected to the extent that it angers the public than to the offenders’ culpability. It’s natural that anger creates a desire for revenge, but while some may endorse retribution against adults, being so eager to seek revenge against 12-year-old children that one creates exceptions to longstanding laws recognizing their immaturity should give anyone pause.

Third, requiring approval of the Supreme People’s Procuratorate for prosecutions invites the perception of capricious enforcement. Requiring this highest level of approval is clearly intended to be an added level of protection, making prosecutions of very young offenders exceptional. At the same time, without clear standards for how the decision to extend liability is to be made, individualized case determinations may appear arbitrary or entirely responsive to public opinion, rather than rule-based.

Laying the groundwork for abolishing custody and instruction.

The current draft of Criminal Law Amendment XI removes reference to ‘custody and instruction’, an extra-judicial administrative punishment system for young offenders, replacing instead with ‘corrective education’.

Rather than lowering the age of criminal responsibility, what is truly needed are ways of addressing juvenile misconduct outside of the criminal justice system, or at least through a criminal procedure that is functionally distinct from the adult system and that recognizes the unique characteristics of minors. This would both recognize the need for intervention, and that juveniles must be treated differently.

Many hope that forthcoming reforms to the Law on the Prevention of Juvenile Delinquency will ultimately create the legal framework for a more independent mechanism to address juvenile misconduct. The most recent draft revisions promote the idea of reform schools (specialized schools or 专业学校) seemingly to replace the current system of administrative punishment known as ‘custody and instruction’ (收容教养). Unfortunately the draft is vague and leaves to many questions to be relied upon. (Click here for more in-depth critique). The new language in the Criminal Law amendment seems to confirm that this is the direction of reforms, putting even more importance on the need for stronger legal protections.

Items 20-22: Punishing Sex Crimes Against Minors

The age of consent to sexual intercourse for girls in China is 14. I emphasize ‘for girls’ because rape, including statutory rape, is a crime that still applies only to female victims. It was only in 2015 that Criminal Law Amendment IX first recognized that boys can also be considered victims of sexual assaults.

Amendment IX also removed a barrier to statutory rape prosecutions by abolishing the crime of ‘patronizing child prostitutes.’ The offense was often viewed as a shield for statutory rapists who could argue they had paid for sex with the minor, because while rape can be punished by life imprisonment or even death, this lower offense carried a maximum punishment of 15 years.

The new amendment proposes increased penalties for sex with girls under 10, or where injuries are caused in the rape of an underage girl. [Item 20, CL236]

Under existing law, the base penalty for rape is 3-10 years imprisonment, with rape of an underage victim being a circumstance calling for a penalty at the higher end of that range.

There is also a list of circumstances in which a higher penalty is authorized, including gang rape, serial rape, etc. where a sentence of 10 years to death is authorized. The amendment adds the new circumstances of sex with girls under 10, or causing injury to girls under 14.

New Offense for guardians or other caretakers having sex with minors aged 14-16 [Item 21, CL236-1]

The amendment also adds an entirely new offense making it a crime for persons who have a special duty of care towards minors to have sexual relations with the minors in their care. This is remarkable in that it penalizes sex with minors who are above the age of consent, regardless of their consent, so long as a special relationship exists such as that between a minor and their parents, guardians, teachers, doctors, and so forth.

This proposal likely comes in response to public discussion that arose during the case of Bao Yuming, who had a sexual relationship with his unofficially adopted daughter. While the case facts ultimately turned out to be even more complicated that they appeared [the ‘victim’ has faked her age to appear younger than she was], the case sparked a meaningful discussion in the general public and legal circles.

Because the victim was believed to be 14, and had seemingly consented to sex, many prosecutors felt there were no grounds to prosecute. Such an interpretation shows an unsophisticated understanding of ‘consent’ by failing to consider whether the power dynamic and dependency in the relationship made the consent less than voluntary.

While statutory rape laws provide for strict liability, meaning that consent from someone under the age of consent is never valid, it doesn’t follow that the apparent ‘consent’ of someone over that age is always valid. The courts should feel comfortable holistically examining the circumstances under which ‘consent’ was given, including the age and maturity of the parties, their relationship, the specific circumstances, and so forth to determine if consent was freely given. Rather than encourage courts and prosecutors to make deeper inquiries into consent, the new amendment creates a new bright-line test, similar to that for statutory rape: girls 14-16 cannot consent to sex with their caretakers.

It is also worth noting that while the offense is still limited to female victims, the proposed amendment refers to ‘sexual relations’ , which is broader than the terms used for rape or statutory rape. This might suggest room for expanding the conduct covered by the offense, but is more likely simply reflecting the lack of a consent element.

The offense is punishable by up to 3 years imprisonment, or between 3 and 10 years imprisonment where the circumstances are ‘heinous’.

Clarification of penalties for child molestation [Item 22, CL247]

Because child molestation/indecency has been addressed as an aggravated form of general sexual assault charges, sentencing provisions weren’t clearly articulated. This amendment clarifies that the normal penalty will be up to 5 years imprisonment, and shall be 5 or more years in certain enumerated situations similar to the aggravating circumstances for rape:

  1. Multiple victims, or multiple victimizations
  2. Gang molestation, or molestation in public places
  3. Causing injury or other serious circumstances.
  4. Molestation through vile methods, or with other heinous circumstances.

SENTENCING

Chinese crimes are often broadly defined with wide sentencing ranges. In Amendment 11, the main reform for a number of offenses, particularly those in the ‘financial crimes’ area, is an adjustment to the available sentencing ranges. This may include lowering the minimum penalty, adding a new higher bracket for more serious offenses, or just providing more specificity on when different punishments within the original ranges should be given. The result is a criminal law that increasingly breaks offenses into hierarchical degrees, based on factors such as the amounts in question or the presence of additional aggravating elements.

This reform could be linked to the ongoing ‘plea leniency system‘ reforms, in which expedited procedures and lighter sentences are authorized for those who confess and repent their crimes. The Plea Leniency system was inspired by U.S. plea bargaining, but China’s procuratorate felt that compared to US prosecutors, their discretion in controlling the charge and sentence was limited. While Chinese prosecutors do make sentencing recommendations, there is not usually a clear ‘lesser included charge’ that they could elect to prosecute. Creating a system of clearer ‘degrees’ within specific offenses could allow prosecutors to state in the indictment that they believe it falls within one category or another, effectively selecting a charge. Where specific factual elements, like possession of a firearm, define a ‘degree’, it would be a factual determination that prosecutors could not change; but so long as the degree is defined based on a crime’s general ‘seriousness’, most prosecutors would feel comfortable arguing that the defendant’s remorse does in fact reduce the seriousness of the offense.

Beyond the Plea Leniency system, codifying more sentencing information will help standardize sentences, but more specificity is needed. Many of the divisions are only between ‘serious’ and ‘especially serious’ circumstances, or similarly vague standards, and further interpretation will be needed to clarify the delineation. It is not unusual for the statute to be intentionally vague like this, as it makes it easier for the Supreme People’s Court to create more dynamic standards in light of changing conditions.

Genetic Crimes

China’s new Biosecurity Law and recent regulations on human genetic material create a protective regime for the collection and use of human genetic resources, including genetic resources as an area of national security and sovereignty. The regulations there on the use of genetic resources provide only for substantial fines and loss of professional qualifications, rather than criminal penalties, which are now added in this Amendment.

The implanting of gene-edited or cloned embryos does not seem to have been mentioned in the authority mentioned above, and this offense no doubt relates to the high-profile case of HE Jiankui who was punished with ‘illegal medical practice’ for creating gene-edited human babies. The sentence range for the new offense is similar for that crime, but the Amendment makes clear that it is the conduct that is forbidden, regardless of the practitioner’s credentials.

Protecting the Police

In 2015, the 9th Amendment to the Criminal Law made violent attacks on police an aggravated form of the crime of obstructing officials’ in the performance of their duties, a crime punishable by up to 3 years in prison. That charge had previously been used in cases of interference with police work, but the amendment marked the first time that the law specifically addressed attacks on police. In January 2020, an Opinion on Punishing Illegal and Criminal Attacks on Police was jointly released by the Ministry of Public Security, Supreme People’s Court, and Supreme People’s Procuratorate clarifying that even attacks on police equipment were included in the offense and that no injury was required for conviction.

These reforms, along with another document on protecting the ‘authority’ of Chinese police reflect the police perception that they are both outgunned in the struggle against crime and not respected by the general public- complaints that seem remarkably common to police around the world even across political and legal systems.

Amendment clarifies penalties attacks on offense, with higher penalties available when weapons are used.

 

About Jeremy Daum 104 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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