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2020-12-18 04:52:35 Voices

Tiantian — a pseudonym — used to love climbing trees.

That’s what the team from my law firm was told when they visited her family home in 2015. By that point, the 5-year-old had stopped climbing. Suffering from frequent nightmares, she spent her days curled up on the couch, her hands tucked between her legs, staring blankly into the distance.

The year before, a teacher at her preschool had been arrested for molesting more than 10 female students, Tiantian among them. According to the girl’s therapist, when their sessions first started, she kept drawing a black, tangled circle on the page — a symbol of the hole inside her.

Although there is no nationwide data on child sexual abuse in China, an official study estimated the rate could be anywhere from 6.7% to 21.8%. Many if not all of these victims will suffer from severe trauma. Compared with their physical injuries, these invisible scars often last longer.

Unfortunately, China’s courts often overlook or disregard the mental and psychological damages caused by sexual abuse.

Studies have shown that sexual abuse can alter parts of the brain responsible for regulating emotions, causing mental illnesses like anxiety, fear, and PTSD, as well as behavioral problems like difficulty sleeping. Not only can these issues affect a child’s developmental progress, they can last well into adulthood, causing depression, dissociation, sexual or intimacy problems, and other long-term adverse health outcomes, not to mention leaving survivors vulnerable to being victimized again.

Unfortunately, China’s courts often overlook or disregard the mental and psychological damages caused by sexual abuse, making it harder for child victims to get timely access to legal protection or professional support.

To better understand this issue, the research team at Qianqian Law Firm in Beijing collected and analyzed 184 child sexual abuse verdicts that mentioned the need for mental or psychological treatment. The results, which cover 199 child victims between 2013 and 2020, were disappointing. The relevant claims could be broken down into two categories: compensation for the infliction of mental distress, and treatment costs for mental or psychological harm.

Just 34% of the plaintiffs were ultimately compensated for mental damages. And of the 47 victims who separately filed a suit for money to cover treatment costs, only 10 were successful.

The two most common reasons for rejecting claims were “a lack of legal basis” and “insufficient evidence.” The first, “lack of legal basis,” has the greatest impact on shaping support for mental distress in China. Existing laws preclude requests for compensation in all crime-related tort cases, including child sexual abuse cases. The idea is that the broader judicial process — which holds the defendant criminally responsible, subsequently subjecting them to criminal penalties like the deprivation of liberty or perhaps their life — already adequately recompenses victims for any mental suffering.

But penal sanctions are meant to punish criminals. They can’t support the victims’ mental and physical recovery, nor can they substantially compensate for the mental harm they suffer. Not only that, but perpetrators of child sexual assault in China generally face light sentences: Of the cases we surveyed, over 80% of those convicted of indecent assault were sentenced to four years or fewer in prison. Over 68% of those convicted of rape were sentenced to six years or fewer. (Indecent assault covers acts that many countries define as rape, such as non-genital penetration.)

The way the law is written also impacts victims’ ability to hold perpetrators financially liable for treatment costs. The current law places a higher value on direct material damages that have already been identified, often at the cost of neglecting any of the victim’s psychological and emotional damages, including those that have yet to manifest. Statutes and judicial interpretations stipulate compensation for medical expenses, transportation costs, nursing fees, and appraisal fees, for example — with some 60% to 90% of these claims at least partially upheld in court. In contrast, the law fails to expressly stipulate coverage for mental or psychological treatment costs. As a result, only 21% of claimants were awarded money for this purpose.

Another common reason for not awarding money to cover treatment costs is “insufficient evidence.” Claimants must assume the burden of proof in civil litigation, but child victims and their families are often unable or unaware of the need to collect evidence. Only 50% of families in the cases we analyzed had the means to even hire a lawyer. Another 13% qualified for legal aid through the financial hardship criteria, but that still left over 35% of victims with no legal representation whatsoever.

Even those with legal aid often find it insufficient. Families have to go through a lengthy application process, which often doesn’t award them a lawyer until the follow-up investigation — too late to guide them through the preliminary stage of evidence collection.

Even in the 10 cases awarding money to treat mental and psychological damages, the amount fell far below that sought by plaintiffs.

Complicating matters, mental or psychological treatment costs are far harder to estimate and prove than direct material damages. What agencies or staff are equipped to assess prospective costs for such treatment? What kinds of standards should they follow? Absent any explicit statutes or judicial interpretations that answer these questions, most courts have difficulty finding a basis of support for these claims and so end up rejecting them.

Even in the 10 cases awarding money to treat mental and psychological damages, the amount fell far below that sought by plaintiffs, who requested an average of 56,892 yuan ($8,700) and ultimately received an average of 2,795 yuan. In most cases, the courts only supported claims for treatment costs already incurred. Given the difficulty, others opt for mediation. Tiantian’s family originally asked for 300,000 yuan in damages on the indictment, including 150,000 to cover therapy costs. After going through civil mediation, they eventually accepted just 50,000 yuan in total.

Our analysis demonstrates glaring shortcomings in China’s current legal system when it comes to addressing the mental recovery of child sexual abuse victims. Going forward, judicial authorities need to broaden compensation to include reasonable expenses related to mental and psychological treatment, as well as clarify the standards for admitting evidence and determining amounts of damages.

In addition, lawmakers should lower the requirements for legal aid and simplify the application process for child sexual abuse cases. That would allow legal aid lawyers to start working on cases earlier in the process, giving more child victims a chance to get the help they need as soon as possible.

Qu Ruofei, Zang Yanbo, Wang Weizhen made equal contributions to this report. Fang Shuxin, Zhao Yiyang, Lü Xiaoquan, and Liu Mingke also made contributions.

Translator: Katherine Tse; editors: Cai Yiwen and Kilian O’Donnell; portrait artist: Wang Zhenhao.

(Header image: People Visual)