Four government and Chinese Communist Party (CCP) officials who gang-raped a 12 year old school girl in a small town in Shaanxi province in October 2011, have been charged with ‘prostituting an underage girl'. The local police have claimed that as the defendants had sexual intercourse with the girl in both September and early October respectively, the act does not fall under the definition of ‘gang-rape’ (even though the girl had been forced into sex).
In China, the penalty for child rape ranges between ten years imprisonment to the death sentence, while underage prostitution is punished by just three to ten years imprisonment and in some cases having sex with underage girls is not considered a crime.
The Shaanxi case is not the first time that Chinese government officials have saved themselves from harsh legal punishments by ‘reclassifying’ their crime. In 2009 alone, a large number government officials from Guizhou, Fujiang, Zhejiang and Sichuan [zh] all applied the same legal tactics to defend their own child rape cases.
Since 2008, People's Representatives have been [zh] calling for the replacement of the criminal law on underage prostitution with child rape. Earlier this year, representatives from the All China Women Federation put forward a joint-signature campaign during the People's Congress. However, their appeal has not been taken seriously. Those who are against the law amendment have not even responded publicly to the issue.
University Professor Xiao Xuehui has continued to push for the abolition of the underage prostitution law in a public forum organized by Netease after the Shaanxi case. This excerpt is from a transcript of her talk via China Elections [zh]:
History of the law
Some pro-government online commentators have tried to defend the Shaanxi police by quoting previous court cases. Critical netizens then started researching who was responsible for the legislation and interpretation of the law. Online magazine ACFun has a special issue on ‘Abolition of Underage Prostitution Law’ and traced the law back to the 1997 reform of the criminal law system [zh]. After the reform ‘underage prostitution’ was differentiated from child rape.
Weibo user Pu Can digs into the judicial record and finds out [zh] that:
Tianya forum user Girssonlin looks into Huang's legal point [zh] in detail:
Let's take a look at the most evil part of the interpretation: “The subject of this crime is very special. Not only that they are under 14, but also that they are underage prostitutes. If the defendant has sexual intercourse with an underage girl who is not a prostitute, it is rape. What needs to be stressed is that if the underage girls are doing this voluntarily, it is self-explantory that she is aware of the nature of her prostituting act. If the underage girls are under the control of or forced into prostitution by a third party, even if she is not aware of the nature of her act, the contextual evidence can still prove that it is prostitution.”
In simple terms, no matter if an underage girl is forced to have sexual relations or not, if there is a pimp, it is regarded as prostitution. It is obvious that the legal interpretation is designed to protect the criminal rather than the underage girls.
How can such a ridiculous interpretation exist in China? The answer may lie with Huang Xiongyao, deputy judge of the China Supreme Court between 2002-08, who was found guilty of corruption in January 2010 and sentenced to life imprisonment in March 2010. The Chinese Communist Party mouthpiece in Hong Kong, Tai Kung Daily, has exposed that Huang has a ‘special interest’ in underage girls (via Xinhuanet [zh]).
Of course, the above facts still do not explain why the Chinese government still refuses to amend the law and protect the further victimization of children in China. According to data from the Letter Petition Office of the All China Women Federation [zh], reports of children sexual abuse cases increased from 135 in the latter half of 1997 to 2,948 in 1998, 3,619 in 1999 and 3,081 in 2000. The number of cases has also increased rapidly in the past few years.