China: New Guidelines on Punishing Child Rape Win Praise, and Criticism

By Didi Kirsten Tatlow

A string of cases this year of adults raping or sexually assaulting children has sickened the Chinese public. Last week the Supreme People’s Court reacted, issuing a legal opinion mandating heavier punishments for sex offenders — especially state employees, including teachers, who figured in many of the cases.

“State employees must be models of the law, and lead the way in protecting minors,” said Zhou Feng, the head of the country’s first criminal court, announcing the opinion at a news conference last Thursday. “But a very small number of state employees have violated these morals and integrity and severely damaged the image of state bodies,” he said.

“The guideline embodies the principle of maximum protection for the victims and minimum tolerance for the offenders,” said Sun Jungong, a court spokesman. But critics said the new rules were flawed, appearing to lower the age at which a child receives the “absolute protection” of the law from 14 — China’s age of consent — to 12.

Among the new rules: Institutions involved in the sexual abuse of children, such as hospitals or schools, may be required to pay compensation to victims, and offenders serving suspended sentences may be barred from schools or other jobs that bring them into contact with minors.

The issue is highly sensitive in China amid a growing perception that civil servants had been abusing their power and escaping appropriate punishment.

This revulsion led to a rare public protest last May, when Ye Haiyan, an advocate for the rights of sex workers and greater protections for children, traveled to Hainan Province where a primary school principal and a teacher were accused raping six girls. She carried a sign that read, “Principal, if you want to ‘get a room,’ look for me. Leave the school kids alone.”

The campaign went viral on the Internet and many women copied her gesture, posting images of themselves with similar signs.

In September, a civil servant in Daguan County in the southwestern province of Yunnan who was convicted of raping a 4-year-old girl was sentenced to five years in prison, causing an outcry by those who considered the punishment too lenient. In mid-October a higher court referred the case for re-sentencing, saying the punishment was “clearly inappropriate,” reported Xinhua, the state-run news agency.

Based on an unusual clause in Chinese law, men have been able to argue that sex with minors — meaning those under 14 — is not rape if the girl is paid, but instead constitutes the crime of “spending the night with a young girl in a brothel,” which carries a different penalty, possibly resulting in five years in jail and a fine. Rape is punishable by a minimum sentence of three years and a maximum of death.

But in its opinion last week, the Supreme People’s Court told the police, justice officials and all courts in the country, both civilian and military: “Sex offenses against minors must be severely punished.” It added: “Please implement this seriously.” (Here is the opinion, in Chinese.) People in a position of responsibility and trust toward minors, including teachers and medical staff, would be held to a high standard in their own behavior and should report any suspected abuse, it said.

Sex with a minor under any circumstance is rape, the court said, in a move welcomed by children’s rights lawyers. Some lawyers speculated that the explicit wording was aimed at the unpopular law that allows some offenders to receive a lighter sentence by claiming the encounter happened for pay in a brothel.

“Online surveys show that 97 percent of people dislike that law. It effectively turns girls into prostitutes,” said Lu Xiaoquan of the Beijing Zhongze Women’s Legal Advice Service Center.

Children’s rights experts believe the law might originally have been intended to protect children but it backfired and provided a loophole for predators, with men claiming that the girl was a prostitute, or either paying or intimidating her family to say she was paid.

The court’s opinion, while influencing enforcement and sentencing under existing law, does not change the law. Only the National People’s Congress can do that. And, inexplicably to many legal experts and other Chinese, the court appeared to create a new loophole by vowing “absolute protection” only for children under 12. The “physical development, way of speaking and deportment, clothes and lifestyle” of a girl between 12 and 14 are relevant in judging if an offender “knew or should have known” that she was a “young girl,” point No. 19 of the opinion reads.

“Overall, the opinion was really not too bad,” said Zhang Rongli, a professor at the China Women’s University. “It tightened up offenses and spelled out that these crimes should be heavily punished.”

“But the issue of the age limit is really baffling,” she added. “Why did they do it? We don’t know.”

Referring to a girl’s appearance was “unfair” to victims and could lead to young girls who looked older receiving less protection, said Mr. Lu of the Beijing Zhongze women’s center.

“Some girls may be 13 but plump and fashionable,” and appear older than their age, but still deserve the full protection of the law, Mr. Lu said. “If the court needed to go 100 meters to make things better, then it went about 50.”

“If she’s under 14, it should be called rape. We have to achieve this,” he said, noting that even at 14, China’s age of sexual consent is already lower than in many other countries. Regarding the proper age for consent, he said, “There are differing legal opinions on this here and some people feel that 12 is right, others feel 14.”

Others were harsher in their criticism: “Rights protection is deteriorating. This is a clear demonstration of legal corruption,” fumed a person called ShineShine on Sina Weibo, in one of many critical comments circulating on the Internet.

“This is a big step backwards for the law,” a user named Zhao Xianjun said on the same thread.

Zhang Wen, of the Children’s Hope Foundation, said, “The government is moving, great! Waiting for them to implement it fully! Try harder, for our children!”

 

(To read original article, visit this New York Times link)

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