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Rape in China: a ‘temporary’ crime?

A prominent topic circulating throughout China’s blogosphere is the light sentencing on 29th October of two civilian police assistants charged with the rape of a young girl in Huzhou, in Zheijang province. What netizens have been rampantly discussing is not the crime itself, but the court’s ruling that the convicts were guilty of a “temporary crime on a whim”, drawing important attention to how rape is dealt with in the People’s Republic and its vibrant online communities.

The incident itself dates back to June of this year. Having been wined and dined by two police officials upon passing her college entrance exam, ‘Qiu and Cai’ took a highly intoxicated ‘Chen’ back to their hotel room and raped her. Having later turned themselves in, the Huzhou Nanxun court sentenced the rapists to a mere three years in prison. According to China News Net’s report of the episode, this was based on the judge’s ruling that the two had “temporarily committed [the] crime, with no prior planning … and [were] forgiven by the victim.”

The wording of the translated report is enough cause for anger: in what can only be deemed ignorance, it claims the rapists drove Chen to a hotel “in order to let her sober up.” More mentioned is made of the fact that the convicted overstepped their boundary as police officials than their violation of an otherwise helpless woman. Despite reminding us of the “bitter fruit” tasted by the rapists upon their conviction, there is almost sympathy in the article. Sympathy for two benevolent men whose initial intentions were to sober up a blind-drunk young woman, but who then spontaneously decided to rape her. A violent act of domination, intimidation and control has been trivialized into a whimsical time-filling activity, putting the source on a par with the poor-sighted judge who delivered the paltry sentences.

The Chinese blogosphere wasted no time in jumping on to the bizarre phrasing of the crime. Tianya, one of China’s most popular online forums, had 8,000 users discussing the issue in the last week. One forum-goer, Liaoheyu, pointed out that there was no legislative ground for “temporary and improvised crime”:

南浔法院根据犯罪事实,给两个强奸犯定的属“临时性的即意犯罪”,令辽河鱼迷糊了,这是个啥概念?搜遍了网络,也没找到“临时性的即意犯罪”的来源和条款依据。“临时”既是非正式的和短时间的行为,难道强奸犯罪还有“非正式”和时间的长短之分?这个“临时性的即意犯罪”应是个新名词,可以为我国的司法界又填补了一项创造性的空白,可喜可贺。

The Nanxun Court, based on the facts of the offense, decided that the two rapists committed a “temporary and improvised crime”. This makes Liaoheyu [the author] puzzled. What does this concept mean? I searched the whole internet, yet couldn't find the source or legislative ground for “temporary and improvised crime”. “Temporary” refers to informal and short-term behaviors. Does it mean that the offense of rape should be categorized as [formal] or “informal” and long or short? This “temporary and improvised crime” is a new phrase. It fills a niche in China's judiciary field and should be congratulated on.

The author went to question the criminal facts and intent and the validity of the judgment.

搞不明白,犯罪还有临时、固定、长期之分?在被害人不清醒的情况下,两人轮番实施强奸,为什么不是轮奸?难道就是因为得到了被害人的谅解?这个谅解是怎么得到的?相信“金钱封嘴”的肯定的。如果这个判决能成为一个新的榜样,那以后再出现这样的“临时性的即意犯罪”,是否也要得到“从轻处罚”呢?要是在这样,可以再全国推而广之,以便广大犯罪分子都去进行“临时性的即意犯罪”。

将女灌醉,然后带她去开房,强奸了她,明显就是有预谋的犯罪,什么是“即时性”?就是即时就发生性关系。临时性的犯罪就可以“从轻判决”?那哪个犯罪不是“临时性”的?是否都要可以轻判?

其犯罪算是“临时性的即意犯罪”,那判了3年,笔者想也应该是“临时性的即意判决”。

It's hard to fathom that crimes should be categorized as temporary, fixed, long-term. The two men took turns to rape two unconscious victims. Why was it not a case of gang rape? Was it just because that the victims forgave them later. How did they obtain this “forgiveness”? It's almost certain that it is bought. If this judgment sets a precedent, will all future “temporary and improvised” crimes be punished leniently? If this approach is adopted throughout the country, it will be convenient for the criminals to commit “temporary and improvised” offenses.
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To intoxicate the girls, bring them to a hotel and rape them is obviously premeditated crime. What is “improvised” then? It is to say that the sexual intercourse was improvised. If a temporary crime attracts a light sentence, then what crime is not “temporary”? Should every crime be punished lightly?
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If this crime is truly a “temporary and improvised crime”, then the “3 years imprisonment”, I think, must've been a “temporary and improvised sentence”.

English-language blogs such as China Hush, China Digital Times and ChinaSMACK have also been dealing with hordes of comments from justifiably confused and riled-up netizens. These postings have ranged from outrage at legal trivia to uncompromising misogyny. One ChinaSMACK reader submitted the following:

One person’s misogynist is another person’s Casanova and symbol of a healthy male libido. What happened was very likely more natural than criminal though exacerbated by the inebriated and roused condition all parties were in. 3 years jail just for 1 sexual act, is already very harsh and shows the judge’s sympathy for the lady, though a sincere apology (which they already offered) and some form of compensation from the men involved, commensurate with the lady’s virtuousness (i.e. if she sleeps around habitually, less compensation, if she is a virgin – a hell lot more – maybe based on the going rate for the same), would have been better.

In between the vast amount of posts blaming the victim, most of the cyber-confusion has been with the term ‘temporary’. Key, a writer from China Hush, blogged her speculations:

I for one believe “money sealed lips”. If this sentence becomes a new example, then the next time when “temporary crime” happens again, should we give lenient punishment again? If so we can extend this to the entire country, so that the vast criminals all can ‘temporarily committed the crime’.

ChinaSMACK provided some legal clarification, courtesy of Zhejiang Hai Hao law firm. Firstly, there were some arithmetical issues the judge in question had to deal with, since,

when two criminals successively rape the victim, it is typically gang rape. If the case were identified as gang rape, according to the People’s Republic of China Criminal Law clause 236, item 3, article 4 ‘where two or more people gang rape a girl’, they should be sentenced to more than a decade in prison, life imprisonment or death, which has a significant difference from their three-year term.

Then, to solve the conundrum, the judged deemed the crime a ‘temporary’ one. Why ‘temporary'? Because, according to ChinaSMACK‘s legal sources, “a temporary crime on a whim is an opposite concept to a premeditated crime. Premeditated crimes cause more damage to society.”

At this stage I could get on my high horse and discuss the damage rape does to its survivors. But the key word here in is ‘society’. In China, maintaining a harmonious society is paramount. The elements of negotiation and agreement have long reigned supreme over legal proceedings when dealing with criminal offences. Hence why the rape of one woman in a population of 1.3 billion receives the label of ‘temporary’, as opposed to the ‘premeditated’ ethnic unrest and protest that could create a deeper dent in an allegedly harmonious society.

Nonetheless, the choice of words is clearly careless and gravely downplays the severity of the crime. Another recent rape conviction was brought against a man in Sichuan province who, in an apparently drunken and besotted state, snuck into the house of his female neighbour, on whom he had spent the last few hours spying. Having being caught by the unsuspecting neighbour, ‘Li’ then turned himself in, claiming he had been planning on raping her. He received a rape conviction and will spend one year behind bars, although no rape ever took place, temporary or premeditated.

Netizens also took to their laptops in this episode. A contributor to the forum Sohu demanded, “Evidence! Evidence!”, whilst a Tianya follower claimed “the law has become a plaything in the hands of judges. Being born in a China this terrifying is too frightening.” Some, however, were not so rational, as one contributor wrote,

Yes this is rape. The intention is enough. There is no need for physical contact. Don’t think that rape has only one meaning. Every man should have been guilty of such rape including the judges who sentenced him.

These trivialising convictions and forum posts imbued with a misogynistic blame culture do no favours to a section of society that is already on the receiving end of a serious gender imbalance. As in any society, imposed standards of beauty and femininity penetrate deeply, with skin whitening procedures and double-eyelid surgery progressively increasing throughout China and her neighbours. Female infanticide has long marred the PRC’s history, with the one-child policy helping to reinforce male superiority and value, triggering a gender ratio imbalance of 119 male births for every 100 girls (this usually sits at 107 to 100 in industrialised countries).

The Chinese government has warned of gender imbalances (this ratio in particular) contributing to social instability. But while policy reforms have been made in ensuring civil compensation for adultery cases, trivial attitudes towards rape are forced to stand the test of time. China Hush’s Key is clearly sceptical:

So according to this term “temporary”, next time there could be “temporary beating someone to death”, “temporary kicking someone to death”, “temporary ‘being suicide’ (another mocking term for covering murder with suicide)”, “temporary taking bribes”, “temporary drinking and driving”, “temporary robbery” and “temporary theft”, every crime can use “temporary” as an excuse to reduce the sentence. We can imagine a “temporary” era is coming.

Whilst China is therefore struggling through a twilight zone of individual welfare and wider societal harmony, it is reassuring that the noise in the blogosphere was perhaps too loud this time: as of Tuesday, the case is currently undergoing a more evidence-based review. We can only hope that this temporary awakening results in a permanent change.

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