SPC, SPP, MPS, MOJ opinion on punishing sexual abuse of minors (10-23-2013)

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Supreme People's Court Supreme People's Procuratorate Ministry of Public Security and Ministry of Justice Opinion on Punishing Sexual Violations of Minors in Accordance with Law

Legal Release [2013] No. 12

Notice of the printing and release of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice's [Opinion on Punishing Crimes of Sexual Violations of Minors]

To the high courts, people's procuratorates, public secuity offices, departments of justice, PLA military courts and military procuratorates of all provinces, autonomous reasons and directly governed municipalites, and and Construction Corps branch courts established by the Xinjiang Uighur Autonomous Region's High Court, and Xinjiang Construction Corps procuratorates, public security departments and departments of justice:

So as to punish the crime of sexual abusing of minors and to increase the judicial protection of the legitimate rights and interests of minors , the "Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice Opinion on Punishing Sexual Violations of Juveniles" is hereby issued to you; please carefully implement it.

Supreme People's Court, Supreme People's Procuratorate, Ministry of public security, Ministry of Justice

October 23, 2013

 

Supreme People's Court Supreme People's Procuratorate Ministry of Public Security and Ministry of Justice Opinion on Punishing Sexual Violations of Minors in Accordance with Law

 

This opinion is formulated so as to punish sexual violations of minors in accordance with law and protect the lawful rights and interests of minors, and is based upon the Criminal Law, Criminal Procedure Law, Child Protection Law and other laws and judicial interpretations, together with the experience from judicial practice.

I. Basic Requirements

1. Sexual violations against a minor as used in this opinion, includes commission of crimes targeting juveniles such as rape; compulsory molestation; humiliating women; child molestation; organizing prostitution; coercing prostitution; enticing, accommodating or making introductions for prostitution; luring underage girls into prostitution, or patronizing an underage prostitute, as provided for in Criminal Law articles 236, 237 , 358, 359 and the second paragraph of article 360 .

2. Crimes of sexual violations against minors shall be severely punished in accordance with law.

3. The handling of cases of sexual violations against minors shall take full consideration of the minor victim's physical and psychological immaturity, vulnerability and other traits, and implement the special priority protections principle, to fully safeguard the minor's lawful rights and interests.

4. Where minors commit sexual violations against minor victims, the principle of two-way protections shall be adhered to, to protect the minor victim's lawful rights and interests, while also protecting the minor suspect or minor defendant's lawful rights and interests.

5. In handling cases of sexual violations against children, adjudicators, procurators, investigators, lawyers and other litigation participants shall maintain the confidentiality of information identifying minor victims, minor suspects or minor defendants, as well as information from which their identities might be deduced, and content involving the details of the sexual violation,

Litigation documents open to the public must not reveal a minor victim's identifying information or other information from which their identity might be deduced, and attention should be paid to describing the facts of the sexual violation in an appropriate manner.

6. Cases of sexual violations against minors shall be handled by adjudicators, procurators and investigators familiar with the special physical and psychological traits of minors, and where the minor is female, female staff members shall participate.

Where people's courts, people's procuratorates, or public security organs with a special organization or special working group for handling juvenile criminal cases, may give precedence to the specialized organization or working groups handling of sexual violations against minors.

7. People's courts, people's procuratorate, public security organs and judicial administrative organs at all levels shall strengthen cooperation and communication with departments such as civil affairs, education, women's federations, the Communist Youth League and child protection organizations, to jointly work towards the prevention of sexual violations against minors and psychological comfort and easement efforts, providing necessary assistance from the perspective of benefiting minors' physical and psychological health.

8. Higher level people's courts, people's procuratorates, public security organs and judicial administrative organs shall strengthen their guidance and professional training of lower levels. People's courts, people's procuratorates, public security organs and judicial administrative organs at all levels should strengthen the judicial concept of special priority protection of minors, improve working mechanisms, and raise case-handling capacity and quality.

II. Procedural Case-handling Requirements

9. Personnel bearing special responsibilities to minors, such as for their supervision, education, training, rescue, care or medical treatment (persons with special duties), as well as other citizens and work-units, discovering that a minor has been sexually violated, have the right and the obligation to make a report or whistleblow to the public security organ or people's procuratorate.

10. Public security authorities receiving a report, accusation or whistleblower report of sexual violations against minors shall promptly accept it and quickly conduct a review. Upon review, those meeting the requirements for case filing shall be immediately filed and investigated.

Where a public security organ discovers that a minor might have been sexually violated or receives a report of relevant leads, regardless of whether the case is within the jurisdiction of that unit, it shall promptly adopt emergency measures including stopping the unlawful or criminal acts, protecting victims, and preserving the crime scene; when necessary, the relevant departments should be alerted to provide temporary placement and rescue for the victim.

11. Where the people's procuratorate feels the public security organ should file and investigate a case but it has not done so; or where the victim, his legally-designated representative or a person with special duties towards minors submits an objection to the people's procuratorate; the people's procuratorate 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 filing has not been established, it shall notify the public security organ to file the case; and the public security organs shall file the case after receiving the notice.

12. Public security organs investigating cases of sexual violations against minors shall follow statutory procedures to promptly and comprehensively collect solid evidence. Promptly conduct an exploration of the scene of sexual violations against minors; inspect minor victim's and suspect's persons; collect samples such as body fluid, hair or residual matter under the fingernails of the victim and suspect; markings such as fingerprints, foot prints or shoeprints; and objects such as clothing or buttons. Promptly collect documentary evidence such as hotel registries and audio-visual material such as surveillance cameras from the scene of the crime; and promptly gather evidence such as the victim's statements, witness testimony and suspects confession.

13. Where case-handling personnel go to the school, unit, or residence of a minor victim, his relatives, or a minor witness to investigate and collect evidence, they shall avoid driving police cars, wearing uniforms, or other methods that might reveal the victim's identity or impact their reputation or privacy.

14. Adjudicators, procurators, investigators and lawyers shall adhere to the no-harm principle in questioning minor victims, choose a venue such as the victim's residence or other locations that let the minor feel safe, and notify his legally-designated representative to appear. Where there is no way to give notice, the legally-designated representative cannot appear or the legally-designated representative is a suspect or defendant in the sexual violation, the minor victim's other adult relatives may also be notified to appear, or a representative or other person from the minor victim's school, basic level residential organization or a child protection organization may appear, and note this circumstance in the case.

The questioning of minor victims shall consider their special physical and psychological traits and be conducted in a gentle manner. Comprehensive questioning should be conducting on facts related to the sexual violation, following the principle of asking only once, and avoiding repetitive question to the extent possible.

15. People's courts and people's procuratorates handling cases of sexual violations of a minor shall promptly inform the minor and their legally-designated representative or close relative that they have the right to retain an agent ad litem, and inform them that if they have economic hardship, they may apply for legal aid from a legal aid organization. Where it is necessary to apply for legal aid, they shall be helped to apply for legal aid. The legal aid organization shall promptly appoint a lawyer who is familiar with the special physical and psychological traits of minors to provide legal assistance.

16. People's courts, people's procuratorates, and public security organs handling criminal cases of sexual violations against minors, shall promptly notify the victim and his legally-designated representative of case developments and the case disposition, except in situations where it would obstruct the case-handling, and explain the relevant circumstances.

17. After peoople's courts determine the date on which to conduct court proceedings in the case of a sexual violation against a minor, it shall notify the minor victim and his legally-designated representative of the time and place of court proceedings. A minor victim's legally-designated representative may accompany or represent the minor victim in participating in the trial at court and presenting views, except where the legally-designated representative is a defendant in the sexual violation.

18. Where people's courts hold in-court proceedings in cases of sexual violations against minors, if a minor victim or witness truly needs to appear in court, protective measures shall be adopted on the basis of case circumstances so as to not reveal their appearance or true voice. Where available, the minors statements or testimony may be broadcast by means such as videoconferencing, and broadcast of the video should employ protective measures.

III. Correctly Apply the Law

19. Where one fornicates with or commits other sexual violations against someone he knows 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 a victim under the age of twelve years-old is the object of fornication or other sexually violations, the perpetrator shall be found to 'clearly know' that the other party was an underage girl.

Where fornication or other sexual violations are perpetrated against a victim between 12 and 14 years-old, and from the state of her physical development, her speech and deportment, her dress and lifestyle habits it was observed that she might be an underage girl, the perpetrator shall be found to 'clearly know' that the other party was an underage girl.

20. Where money or property is used to entice an underage girl to have sexual relations with oneself; or where one knows or should know that an underage girl was forced into prostitution by another person, but still has sexual relations with her; it will be treated as the crime of rape.

21. Where persons with a special duty towards underage girls have sexual relations with the underage girls, it shall be treated as the crime of rape.

Where a person with a special duty to minor females who are at least 14 years-old exploits his superior status, or the victims' isolated position, to pressure a minor victim to submit, and has sexual relations with them, it is convicted and punished as the crime of rape.

22. Committing the crime of child molestation, and thus causing children to suffer light injuries or more serious consequences, while also meeting the requirements of article 234 or 232 or the Criminal Law, constitutes the crime of intentional harm or intentional homicide, and is convicted and punished according to the provisions of the heavier offense.

Molestation of a minor male who is already 14 years old, which causes light injury or more serious consequences to the victim and meets the requirements of articles 230 or 232 of the Criminal Law, shall be convicted and punished for the crime of intentional harm or intentional homicide.

23.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 of an underage girl, forced indecency, humiliating women or child molestation, may be found to have been in a public forum 'before the public' as provided for in clause 3 of Criminal Law articles 236 and 237, so long as there were other people present, regardless of whether they actually saw it.

24. Those making introductions or assisting others in fornicating with underage girls or molesting children, are treated as joint offenders in the crime of rape or child molestation.

25. Crimes of rape or molestation targeting minors shall be severely punished, and in any of the following situations, the penalties should be even harsher:

(1) persons with a special duty to minors, persons who share a common family life with the minors, state workers or persons posing as state workers committed the rape or molestation;

(2) entered a minor's residence or student dormitories to commit the rape or molestation;

(3) employed violence, intimidation, anesthetic or other compulsory means to fornicate with an underage girl or molest a child.

(4) committed rape or molestation of a minor who is a child under 12 year-old, a left-behind child in a rural area, severely disabled or mentally retarded.

(5) Molested multiple minors or committed rape or molestation multiple times;

(6) caused a minor victim to sustain minor injuries, become pregnant, contract a sexually transmitted diseases, or other such consequences;

(7) those with a previous record of rape or molestation.

26. Where the organizing, compelling, enticing, accommodating or making introductions for a minor to become prostitutes constitutes a crime, it shall be punished severely. Where underage girls are compelled or enticed into prostitution, conviction and sentencing shall be handled in accordance with clause 1(2) of article 358 and clause 2 of article 359 of the Criminal Law respectively.

Where persons with a special duty to minors, persons who share a common family life with the minor, or state workers organize, compel, entice, accommodate or make introductions for minors to be prostitutes, the punishment shall be even harsher.

27. Where a person who is already 14 years-old, but not yet 16 years-old, occasionally has sexual relations with an underage girl, the circumstances are minor and there are no serious consequences, it shall not be found to be a crime.

IV. Other Matters

28. When adult criminals are given punishments for raping a minor, generally a suspended sentence is not applied.

As to whether suspended sentences should be used for criminals who sexually violate minors, the people's court and people's procuratorate may entrust the community corrections organization at the place of the criminal's residence, to conduct an investigation into whether announcing a suspended sentence would have a major negative impact on the community. A community corrections organization so entrusted shall promptly organize an investigation submit an investigative assessment opinion to the relevant requesting organ within the designated period.

Where a suspended sentence is announced at the same time as sentencing, a restraint order may be announced at the same time, on the basis of the circumstances of the crime, restricting the criminal for engaging in work or activities connected to minors during the probationary period of the suspended sentence, and restricting entry in elementary schools, junior high schools or kindergartens as well as other places where minors congregate; except as upon approval by the enforcement organ due to his own study or residence.

29. Foreigners committing rape or molestation of minors, or other such crimes, within the territory of China, shall be judged in accordance with law; and when giving a punishment, deportation may be used either by itself or as a supplement. As to conduct that does not constitute a crime but constitutes an administrative management violation, or where it is inappropriate for a person to continue living in China's territory because they committed a sexual violation against a minor, the public security organs may lawfully use a short-term expulsion or deportation.

30. In cases of rape or molestation of a minor where the judgment as already taken effect, the people's courts may release relevant judgment documents on the internet, with prerequisite of protecting the victim's privacy in accordance with law, and with the exception of where the crime was by a minor.

31. As to the personal injury done to a minor as a result of being sexually violated, where the victim, his legally-designated representative or close relatives submit a request for compensation for reasonable expenses such as fees spent on conducting rehabilitative therapy, nursing, transportation or lost wages, the people courts shall support it in accordance with law.

32. Where a minor has personal injuries caused by a sexual violation occurring while they were studying or living in a kindergarten, school of other educational organization and the victim, his legally-designated representative or other relative files suit in a people's court requesting that the unit described above bear responsibility for compensation, the people's court shall support in accordance with law.

33. Where minors are sexually violated by their guardians or other persons with guardianship, and the civil administration department or other such relevant unit or organization submits an application to the court requesting that their credentials as a guardian be revoked, and that another guardian be appointed, the people's court will support it.

34. 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.

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