This article is part of a spotlight on child sex abuse in China.
Chinese law still lacks a consistent definition of sexual assault. The Criminal Law of the People’s Republic of China — the country’s penal code, first adopted in 1979 — established the law surrounding sexual assault against minors and set the age of consent at 14.
However, until recent amendments to the document in 2015, the existence of a law on underage female solicitation and the fact that indecent assault did not cover boys between the ages of 14 and 18 had drawn strong criticism.
Article 360, Section 2 of the 1997 revised version of China’s penal code states: “Whoever whores with a girl under the age of 14 shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined.” This wording is fundamentally flawed for a number of reasons.
First, the term “whores” confuses rape with the act of soliciting prostitution. Consequently, even in a successful sentencing under this article, the degrading label of “prostitute” is imposed on the victim.
Second, the reference to solicitation implies that underage girls are able to give consent. This contradicts Article 236 of the penal code: “Whoever has sexual relations with a girl under the age of 14 shall be deemed to have committed rape and shall be given a heavier punishment.”
Third, the very existence of the offense of underage solicitation may cloud the focus in potential rape convictions. In extreme cases, settling for the charge of soliciting an underage prostitute has been a tactic used by offenders to escape harsher sentences.
In 2013 the Supreme People’s Court, along with other government bodies, issued a judicial explanation of the law, the first clause of which clarified what was considered sexual assault of a minor.
However, this document focused exclusively on forms of sexual assault involving physical contact, meaning the distribution of obscene materials and other non-physical offenses were not included under the umbrella of child sexual assault. The document also contradicted the penal code by allowing for a person who committed underage rape to use a defense of not being “fully aware” of the age of the victim.
In August 2015 the ninth amendment to the country’s penal code was passed at the 12th National People’s Congress. The amendment abolished the offense of soliciting an underage prostitute, brought the act under the definition of rape, and gave it a more severe punishment.
The amendment also made a revision changing the full title of indecent assault from “indecent assault of a woman” to “indecent assault of others.” This meant that boys between the ages of 14 and 18 and adult men were now protected by law against indecent assault. Indecent assault covers sexual assault that does not include rape, and is typically considered to be a lesser charge.
The publishing of the 2013 judicial explanation and the ongoing revisions to China’s penal code show that Chinese society is placing increasing importance on prosecuting child sexual assault cases. However, legislation like the judicial explanation and the penal code are far from perfect.
For instance, Article 19 of the judicial explanation lists three scenarios to provide further clarification on the issue of whether offenders who had illicit sexual contact with young girls were “fully aware” that she was a minor.
First, if the sexual offender knows or should know the victim is under 14, this constitutes awareness. Second, in cases where the victim is under 12, the offender is said to be “fully aware.” Third, if the victim is between 12 and 14, the offender is “fully aware” if it can be inferred victim is a minor from her physical development, speech and mannerisms, style of clothing, or daily routine.
In other words, the 2013 judicial explanation draws the line on guaranteeing the protection of female victims at 12 years old. If an offender claims that they didn’t know a victim was under 14, or claims they mistook the victim for a 14-year-old based on signs of early maturity in her physical development, speech, mannerisms, or other attributes, then prosecutors may accept that they were not “fully aware” the victim was a minor. The offender would then avoid a conviction and sentencing.
However, this judicial explanation is in contradiction with China’s penal code — which, under Article 236, Section 2 clearly states that “Whoever has sexual relations with a girl under the age of 14 shall be deemed to have committed rape and shall be given a heavier punishment.”
In other words, according to the penal code, any sexual activity with a girl under 14 must be classified as rape regardless of whether or not the girl was acting out of her own volition, or whether the rapist was “fully aware.”
Furthermore, while the 2015 amendments to the penal code have expanded the definition of indecent assault to include more victims, this has not been matched with corresponding amendments to Articles 236 and 240, which deal with rape and the trafficking of women and children, respectively.
Both rape and trafficking are offenses that warrant “heavier punishments,” but the offense of rape still only covers female victims.
It is clear there are still a lot of holes in the current system, and that a number of further improvements are needed.
Sexual assault is something that will not stop of its own accord. Sex offenders regularly re-offend after serving their sentences, which makes them a great danger to society. Yet the law currently does not provide for heavier sentencing for repeat offenders. This must be changed.
Furthermore, serial offenders who have carried out multiple sexual assaults may be guilty of both rapes and indecent assaults. The number of assaults, the times at which they were carried out, and the offender’s intentions should all be taken into consideration to determine whether or not the offender is guilty of multiple crimes. The approach should not be to simply assume that the actions in each case constitute one crime, as I have often seen to be the case.
I was once involved in a child sexual assault case where the offender had carried out a number of indecent assaults on the victim over the course of several days, before eventually raping the victim.
As each assault was an isolated incident, it was clear that the offender had committed a number of different criminal acts. However, the prosecutor’s office viewed the indecent assaults as preparation for further sexual activity, and only recognized the offense of rape.
Children are among the most vulnerable of our society. Every day that passes without revisions to the current law places them at risk. Direct action must be taken immediately to ensure their protection.
(Header image: Donald Iain Smith/Blend Images/VCG)