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    The Case for Raising China’s Age of Consent

    The Bao Yuming rape case has thrust the country’s deficient protections for minors back into the spotlight.
    Apr 15, 2020#law & justice

    Late last week, a wave of online fury rose in the face of allegations that a powerful oil executive, Bao Yuming, had repeatedly sexually abused a teenager in his care over the course of three years, despite the girl going to the police multiple times.

    Although netizens’ anger largely focused on Bao and the police, within days, public opinion had begun fracturing along well-cloven lines: A few questioned whether the now-18-year-old girl — identified in media reports by the pseudonym Xingxing — might have actually consented to the relationship with the much older Bao, others debated the culpability of Xingxing’s birth mother.

    But these arguments, including whether Bao’s actions legally constituted rape, or whether Xingxing had — or even could have — consented to the relationship, would be beside the point if China’s legal age of consent wasn’t just 14 years old. That young age leaves many minors unprotected and greatly increases the difficulty of holding abusers accountable.

    According to Xingxing, Bao first assaulted her shortly after she turned 14. This detail is crucial, because according to current law, minors younger than 14 are, with few exceptions, legally unable to consent to sexual activity of any kind. Because Xingxing was above this cutoff, however, investigators must show not just that the relationship happened, but that it was also nonconsensual.

    Xingxing kept some of the evidence, like Bao’s child pornography and her period pads stained with blood and semen. But without clear-cut proof that Bao forced her into sex against her will, the legal system will likely give the benefit of the doubt to the accused. And in many cases of sexual assault, evidence is far more difficult to collect.

    The age of consent should be premised upon a minor’s physical, psychological, and emotional maturity: It marks the line above which they are able and competent enough to consent to sexual activity. If the law sets the age of consent at 14, it tacitly grants sexual autonomy to minors over 14 and implies that they can freely decide to engage in sexual activity. In too many cases, however, this only creates an opportunity for offenders to prey upon young, sexually ignorant minors, knowing they can later claim it was consensual to sidestep any legal repercussions.

    Meanwhile, the persistent weakness of China’s sex education programs has left many teenagers with weak understandings of sexual activity and its potential consequences.

    According to Xingxing, she only realized she had been raped after she searched the phrase “causes for genital pain” online. She is hardly an exception: Schools and parents alike veer from discussions of sex, leaving many young people clueless about the topic. Given this state of affairs, how can the law possibly expect 14-year-olds to be able to legally consent to sexual activity?

    Over the past few decades, countries around the world have moved to raise their age of consent. Nearly half of jurisdictions in Europe had an age of consent of 14 or younger in 2004. By 2016, it was at least 14 in every single European jurisdiction, and more than half had raised it to 16, some to 18. Generally speaking, the average age of consent in the U.S. is even higher, falling between 16 and 18 in most states. And both regions have much stronger sex education programming for teens than in China.

    While it’s difficult to set an exact, universal standard, if China’s age of consent had been 16 instead of 14, then all prosecutors would need to do is prove Bao had sex with Xingxing despite knowing she was underage, and whatever “consent” she gave to the relationship wouldn’t have mattered. More broadly, a higher age of consent would make it easier to protect minors’ rights and prevent or prosecute sexual crimes committed against them.

    Of course, just raising the age of consent is not enough by itself; we should also be alert to the fact that many sex crimes fall through the cracks because they are carried out by acquaintances of the victims. This is especially relevant for underage sexual activity that occurs within relationships of trust, as between teachers and students or guardians and the children under their care. Many countries have set a special age of consent for such relationships, and China should do the same. And we should consider building a registry of sex offenders to ban them from work that involves close contact with minors.

    Police and officers of the court must also be careful not to traumatize victims again in the course of their investigations. According to media reports, after Xingxing reported Bao to the police, an officer grabbed her by the neck in an attempt to recreate the assault. This is a clear example of secondary trauma, and a vivid reminder of why every person involved in investigating sex crimes must be trained in how to protect victims. Otherwise, the fear of additional trauma or being forced to relive their abuse may lead many to stay silent.

    In the short term, the most direct and effective measure for preventing sexual assault against minors is to raise the age of consent. Yet that doesn’t exempt us from having a frank discussion about the value of sex education, breaking down some of the taboos surrounding sex, and rethinking how our society protects and treats minors. Perhaps then can we put an end to the cycle of tragedy.

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

    (Header image: Blend Images/People Visual)