New legal guidelines show China is getting tough on child sex abuse
Grenville Cross says judges and courts cannot afford to ignore sentencing instructions
"And where the offence is," said William Shakespeare, "let the great axe fall." Sentencing guidelines can prevent crime by providing deterrent penalties for offenders and promoting transparency. They also ensure overall consistency between different courts.
Sometimes the courts are required to mete out severe penalties for particular crimes. Although the legislature prescribes the maximum penalty for an offence, the appeal courts promulgate guideline and tariff judgments for some offences, such as burglary and corruption. Trial judges are expected to follow the guidelines, and they have generally worked well, both in Hong Kong and elsewhere.
In 2005, the Supreme People's Court issued its second Judicial Reform Plan, designed to improve judicial procedure and efficiency. It required each offender to be appropriately punished, and the utility of sentencing guidelines was acknowledged.
When, in 2008, the court passed its "People's courts sentencing guideline", it was welcomed as a serious attempt to achieve just sentencing.
In 2010, the Supreme People's Court adopted, on a trial basis, sentencing guidelines in relation to 15 offences. They appear to be producing greater consistency in major cities and towns, although the position in the provinces and outlying areas is less clear.
This year, the mainland has been shaken by a series of child sexual abuse cases, involving teachers and officials, and the authorities have responded to public anger over inadequate penalties. In October, the Supreme People's Court, together with three other law enforcement agencies (procuratorate, public security and justice), issued a new, wide-reaching guideline statement for the handling of sex offences against vulnerable groups, including minors aged under 12 and migrant workers' children.
Although, in the past, some offenders have escaped their just deserts by virtue of an archaic law which has enabled them to claim sex with a minor (defined under Chinese law as someone under 14) is not rape, but the lesser offence of engaging sexually with a young girl in a brothel, the new guideline provides that "sex offences against minors must be punished severely".