Two new documents on the sexual abuse of minors took effect in China on June 1:
- An joint Interpretation by Nation’s Supreme Court (SPC) and Procuratorate (SPP) on the criminal charges of rape, indecency, and molestation of minors, that offers more detail on specific aggravating factors in such cases, and discusses the relation of these offenses to other charges,
- Opinions released by the SPC and SPP as well as the Ministry of Justice (MOJ) and Ministry of Public Security (MPS) on handling crimes of sexual violations against minors, which emphasize special procedures for protecting juveniles and rules for the collection of evidence in such cases
Taken together, the two new documents replace the 2013 SPC, SPP, MPS, MOJ Opinions on Punishing Sexual Violations of Minors in Accordance with Law. A chart at the end of this post compares the two new documents with the 2013 Opinions.
New content addresses the use of the internet to commit sex offenses, the harm of transmitting STDs, and increased recognition of psychological trauma in compensation. Other updates reflect critical changes that have been made to relevant laws since the release of the 2013 Opinion, including:
- The expansion of Criminal Law provisions on Indecency and Child Molestation to recognize male victims in 2015.
- The 2015 abolition of the offense of “patronizing child prostitutes” which was viewed as being abused to allow defendants to avoid liability for the more serious charge of statutory rape (the legal age of consent in China is 14 years old).
- The creation of a new offense for guardians or others with duties of special care towards females aged 14-16 who have sex with those girls in 2022.
- Increased statutory rape penalties for those having sex with girls under 10, or who cause injuries when having sex with girls under 14.
- The creation of a registry of violent or sex offenders who are forbidden to work in areas having close contact with minors, which schools etc. must check before hiring, and continue making annual checks of employees.
- The implementation of a mandatory reporting system for child abuse.
More on these changes and other recent legal reforms can be found in this more comprehensive article on Children and the Law:
Interpretation of Crimes
As one might expect, the Interpretation on sex crimes against minors elaborates on the meaning of certain terms from the Criminal Law as they apply to cases of violations against minors. The language of relevant Criminal Law article is reprinted below above the related Interpretation content to help provide context.
[Rape] Criminal Law Article 236 par 1,2:
Rape of women by violence, coercion, or other means is sentenced by imprisonment for between three to ten years.
Illicit sexual relations with an underage girl not yet 14 years old, is considered rape and given a heavy punishment.
The Interpretation’s first article provides six situations justifying a heavier penalty range for statutory rape under paragraph 2 of Criminal Law article 236 above:
(1) Where the illicit sexual relations were carried out by persons with special duties;
(2) Where methods such as violence or coercion were used to carry out the illicit sexual relations
(3) Where illicit sexual relations were carried out by entering a residence or student dormitory;
(4) Where illicit sexual relations were carried out against a victim who is a left-behind child, has a serious disability, or is mentally retarded.
(5) Where other minors are used to lure, introduce, or coerce victims;
(6) Where they have previously been criminally sentenced for rape or molestation.
The interpretation further provides in the rape of a minor who is already 14 years old, a heavier sentence shall be provided under the first paragraph where any of these 6 factors are present (excluding (2), which is part of the definition of rape under the first paragraph) OR where a light injury was caused or a serious STD was contracted.
Most of this content is retained or adapted from the 2013 document, with only item (5) being entirely new.
[Aggravating factors for Rape] Criminal Law Article 236 par. 3:
In any of the following circumstances, rape of a women or illicit sexual relations with an underage girl is to be given 10 or more years imprisonment, life imprisonment, or the death penalty:
This language is new to the interpretation. Most notable is the explicit inclusion of sexually transmitted diseases as a form of harm, and HIV as a serious injury, and the reference to using images for extortion.
【Sexual Abuse by Persons with a Duty of Care】Criminal Law Article 236-1, par. 1:
Where persons who have special duties towards female minors who are between 14 and 16 years of age, such as for guardianship, adoption, care, education, or medical treatment have sexual relations with the female minor, they are to be sentenced to up to three years imprisonment; and where the circumstances are heinous, they are to be sentenced to imprisonment of between three and ten years.
Article 5 of the interpretation clarifies the “heinous circumstances” include situations where the accused:
(1) had sexual relations for a long time.
(2) had sexual relations with multiple victims;
(3) caused the victim to be infected with HIV or to contract a serious sexually transmitted disease such as syphilis or gonorrhea;
(4) Where images such as videos or photos were produced of the sexual relations, or of the private parts of the victims’ bodies, and transmitted the images to many people, exposing the victims’ identities.
(6) Other situations of heinous circumstances.
Article 6 further clarifies that where the guardian or person with a special duty exploited their superior position to the victim, or the victim’s helplessness and isolation, in order to have sex with them; the proper charge is rape under Criminal Law 236 above, not “sexual abuse by a person with a duty of care”.
[Forcible indecency, Insult, China Molestation] Criminal Law Article 237
Those using violence, coercion, or other methods to act indecently against others or insult women are to be sentenced to imprisonment of up to five years or short-term detention.
Whoever gathers a crowd or commits the crime in the preceding paragraph in public, or if there are other vile circumstances, shall be sentenced to fixed-term imprisonment of not less than five years.
Those who molest children are to be sentenced to up to five years imprisonment; and in any of the following circumstances, they are to be sentenced to imprisonment of five years or more:
The interpretation further clarifies that the offenses included in Article 237 can be constituted entirely online where minors are made to expose themselves, or where obscene acts are carried out through video chats or by sending digital videos and photos. (9) Where online indecency also constitutes the separate offense of organizing a pornographic performance, the charge and sentence are to be for whichever offense would carry the greater penalty in the specific case. (9)
【Organizing Pornographic Performances】Criminal Law Article 365:Those who organize pornographic performances are to be given up to 3 years imprisonment, short-term detention, or controlled release, and a concurrent fine; and where the circumstances are serious, they are to be given between 3 and 10 years imprisonment and a concurrent fine.
Where injuries result from molestation, either online or off, constituting the crimes of intentional infliction of harm or intentional homicide, the charge and sentence should also be for the offense carrying heavier penalties. (10)
Procedures for Handling Cases of Sexual Violations of Minors
Both the new Opinions and the Interpretation include information on special rules for handling cases of sexual violations of minors running through the entire criminal justice process from investigation to sentencing. Some of the most important are discussed below:
1. Special Protections for Minor Victims and Witnesses:
Court appearances: Minors (other than defendants) will generally not appear in court to testify. Instead records and recordings of their questioning and statements will be presented in court, being modified to conceal their identities. Where it is necessary for them to appear, special measures are to be used to conceal their identity, such as disguising their voice and face. Courts are to take special care to ensure that questioning of minors in court is done in an appropriate manner given the minor’s age, and may adjourn court if the minor becomes distressed. (15)
Questioning of minor victims and witnesses: Questioning should be conducted in a manner and language appropriate to the minor’s age, and done in a single session to the extent possible. (23). The questioning should be conducted at the minor’s home or another location where they will feel safe. Minors should generally be allowed to make statements freely, in order to avoid leading their testimony. Female victims should be questioned by females.
A parent or guardian is to be present at the questioning, but another appropriate adult may be present instead if the guardian cannot be present, or where it is inappropriate for them to be present, such as where they are the offender.
In addition to the full audio-video recording of the questioning, a written record shall be kept as well. This record should maintain the natural language of the child, to accurately reflect the mental state and cognitive capacity. In the event of a discrepancy regarding the written record, the AV recording is to be consulted.
Confidentiality: As in the 2013 Opinions, all those involved are required to maintain confidentiality surrounding the victims’ identity and the specifics of the violation. When documents are made public, the identity should be redacted, and appropriate language used in describing the offense. Where law enforcement or other justice system personnel go to the minor’s home, school, etc., they should not wear uniforms for discretion and to avoid stigma attaching to the victim.
Specialized Personnel: While not new to this round of revisions, courts, prosecutors, police, and legal aid establishments are all required to have specially designated personnel who are equipped to work with minors handle cases of sexual violations of minors.
HIV Screening: Building on the attention to STDs as a harm from sexual violations, police are required to immediately learn whether victims have contracted HIV and provide necessary support counseling and treatment to those who have.
2. Special Investigative Procedures:
Timely Investigations: Police are to respond to all reports of offenses, and take immediate action to preserve evidence and protect the victim, regardless of whether they have jurisdiction. (6) Jurisdiction may be transferred later when the initial investigation provides additional information on the offender and the site of the offense. (7)
Where have grounds to believe a crime is constituted, a case shall be formally opened immediately, and even where the case is complex, initial review for filing should not exceed 7 days. (5) In situations such as where an underage girl is pregnant (or had an abortion or birth), where minors have genital injuries, or where minors were used in prostitution, the police are to immediately begin the investigation. (5)
Evidence collection and review: In addition to physical evidence such as fingerprints, clothing etc., and a/v evidence such as surveillance footage, police are urged to collect documentary evidence including records of hotel, bank and transport, and electronic data such as social media, text messaging, and cloud drive materials. (21)
In questioning minors police are to learn not only the specifics of the offense(s), but also the minors’ mental states and behavior following the violation, and indications of trauma, depression, suicide, or self-harm should be professionally evaluated. (28).
Where minors mention physical traits or other circumstances that could only be known to those involved in the offense, the police are to promptly confirm the statements and preserve confirming evidence. (26) Evidence that confirms the acquaintance or unusual relationship between the offender and victim should be fully collected. (27)
Proactive investigation of related crimes: Police are told to investigate additional crimes that may be suggested in the statements of minor witnesses or victims. (22) Where an offender is in a position or situation that involves close contact with other minors, the police are to investigate whether those other minors may also have been victimized. If cases occurring in the same area or using the same measures can be merged for investigation, police should do so to make the investigation as complete as possible. (22)
3. Review of Evidence
Consideration of minors’ cognitive ability: While the standard of proof is no different from that in other cases, those reviewing the evidence should remember the limits of minors’ age, cognition, memory, and expressive capacity in assessing their statements. (29). Minor discrepancies in factual details may be overlooked where the main points in a minor’s statement are objective and true. (30).
Comprehensive consideration of consent: For minors over the age of 14, explicit opposition or expressions of consent are not the only evidence of consent, but must be considered along with the situation, the minor’s physical and mental state, the parties’ relationship, etc. (31)
4. Restrictions on Leniency
The application of leniency measures, such as pre-trial release, suspended sentences (a form of probation) sentence reductions, parole, and lenient sentencing are all to be limited for adult suspects and offenders. (Opinions 10, 20; Interpretation 11, 12). The general principle is for harsher penalties to be applied, and courts may impose appropriate professional restrictions as part of a penalty. （Interpretation 13). Offenders who are minors are still to be shown leniency. (2).
The Interpretation clarifies that compensation due to victims by those causing them injury includes reasonable costs of treatment and rehabilitation such as fees from treatment, nursing care, transportation, nutrition, and hospital stays, as well as for the resulting loss or reduction of income. It also expressly includes psychological treatment when forensic evaluation or diagnosis indicates it is needed (14).
The opinions retain a provision from 2013 that where compensation is delayed, aid may be provided through judicial relief mechanisms by the justice sector organs and other government departments. (36). Another provision encouraging court support of civil actions against schools where violations occur has been omitted, although this may only be because the new documents are intended to focus entirely on criminal proceedings. (2013 Opinions 32).