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China: Outrage as ‘Underage Prostitution’ Law Protects Child Rapists

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.

Public outcry

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]:

嫖宿幼女罪恐怕是本朝一大发明。这个罪名含有一个混帐前提:幼女心智成熟、有完全行为能力。逻辑的结论就是:把受到性侵犯的幼女贴上“卖淫女”标签。这是以国家法律之名对受害幼女进行的再次伤害。

‘Underage prostitution’ is another invention of this imperial dynasty. The ridicule premise of this crime is that the underage girl is a mature individual capable of making her own choice free from manipulation. The conclusion is to put a ‘prostitution label’ onto the victim of sexual crime. This is a double victimization of child victim under the name of Chinese law.

值得注意的是,无论此次陕西案件,还是之前出现在贵州、四川、福建的若干起以这个罪名定案的案件,犯罪人都是公职人员:法官、国税局长、校长、镇长等等。这个罪名的设立似乎在实践中呈现出跟“利益逢官递增”规律相对应的规律:罪名逢官递减。恐怕很难避免人们对立法意图的猜测。

We should pay attention to the fact that all the people who have been charged under this criminal law have been government officials: a judge, the head of a Tax Bureau, a school principal, a town mayor, etc. The latest case in Shaanxi and the previous cases in Guizhou, Sichuan and Fujian are all similar. The purpose of the law seems to serve the purpose of the protection of government officials’ interests by reducing their responsibility in a crime. And it is quite a logical conclusion amongst common people.

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:

1997年“嫖宿幼女罪”单独入刑后性侵案明显增多,3年之间猛增20多倍。2003年1月,前最高法院副院长黄松有针对嫖宿幼女罪出台司法解释:“行为人确实不知道对方是不满14周岁的幼女,双方自愿发生性关系,未造成严重后果,情节显著轻微的,不认为是犯罪。”——天朝威武,免得误了各位官人采补

Since 1997 a large number of cases have been tried under the charge of ‘underage prostituion'. Within three years, similar cases have increased 20 times. The former Deputy Judge of the PRC Supreme Court, Huang Xiongyao, further interpreted the law in 2003: “If the defendant does not know the girl is under 14 years old and sexual relations are mutually agreed without serious consequences, it should not be regarded a crime.” — The imperial dynasty is determined to help their officials to nourish their health. [Ancient lore believes that having sex with virgins will lengthen the life of a man]

Tianya forum user Girssonlin looks into Huang's legal point [zh] in detail:

让我们来看看司法解释中最邪恶的一段文字:“本罪的犯罪对象是特殊对象,不仅特殊在其是不满十四周岁的幼女,而且特殊在其为卖淫的幼女,如果行为人以欺骗手段对非卖淫的幼女实施奸淫行为的,则构成强奸罪。需指出的是,这里的卖淫的幼女,如果是幼女自愿或主动卖淫的,则一般地说明了幼女认识到其行为的卖淫性质,如果幼女是被他人(而非嫖宿者)引诱或强迫卖淫,则不要求其认识到行为的卖淫性,只要求客观上是在卖淫即可。”
简单的可解释为,不管幼女是否自愿,即使她受到威胁和强迫,只要有老鸨,就算卖淫。显而易见,这个司法解释保护的是犯罪者而非未成年少女。

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.

Thumbnail image of little Chinese girl, by Flickr user jani rocafort (CC BY-NC-ND 2.0).

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