Two months after China’s top judicial bodies put out an interpretation aimed at protecting minors from sexual predators, criticism from the public has once more put the country’s top legal minds on the defensive over the perceived relaxation of the law – and potential loopholes that predators could exploit to escape harsher punishment.
A string of child-rape cases in recent years, often involving government officials or rich businessmen, have given rise to raging public anger and demands for tougher punishment. A personal account of child molestation was the most shared post on Sina Weibo, China’s largest microblogging platform, on Friday.
In late October, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly issued a lengthy judicial interpretation, attempting to step up protection for minors and clear up confusion in the judicial circles after sometimes contradictory local court rulings.
In an interview with the official Legal Daily, Xue Shulan, a senior judge at the Supreme People’s Court, responded to recent criticism of the interpretation, insisting that it has strengthened protection for young girls under the age of 12.
Under the interpretation, those accused of having sex with a girl under the age of 12 could no longer claim that they didn’t know the girl was a minor, Xue said, whereas previously such a claim could be used as a mitigating circumstance in a court’s decision.
However, Xue noted, the introduction of the “12-year-old age” threshold had alarmed the public, leading some to believe that the government was lowering the age of “absolute protection” for young girls from 14 to 12. Fourteen is the age of consent set out in the Chinese criminal code.
Much of the debate since the interpretation has focused on the protection of girls between the ages of 12 and 14.
Under the new interpretation, most cases of sex with a girl between 12 and 14 will be treated as rape, Xue said, but with the exception of “extremely exceptional circumstances”. Critics have taken issue with this caveat, saying it could be exploited by rich and powerful perpetrators to escape due punishment.
Xue rejected popular calls to make all sexual behaviour with girls under 14 punishable as rape, whether or not the adults involved had a reasonable knowledge of the girls’ actual age. “There are still institutional and theoretical hurdles” against this argument, she said.
For Lu Xiaoquan, a lawyer with the Beijing Zhongze Legal Advice Centre for Women, Xue’s clarification still doesn’t go far enough. The crime of “underage prostitution” should be scrapped entirely, he said.
Under current Chinese laws, punishment for rape can range from three years in jail to a life sentence, or in aggravated cases, the death penalty. However, a controversial 1997 amendment to the criminal code also introduced the crime of “having sex with an underage prostitute,” which is punishable by between five and 15 years in prison.
China is still struggling to overcome a historical legacy whereby underage prostitution is seen as something other than rape, Lu said. “There is dissent over the right age limit and they were seeking a compromise, that’s where they made a mistake.”
While some courts have used the “underage prostitution” charge to slap perpetrators with harsher sentences than in a rape conviction, the stigma associated with a “child prostitute” is a constant point of protest by parents, children’s rights advocates and many legal scholars. In a rare reply to years of public calls to abolish the “child prostitution” charge, the Supreme Court said in July that it would seek to push for legislative action to remove it from the criminal code.
Lu, a long-time advocate of criminal law reform admitted that the interpretation, however unfortunate, had led prosecutors to apply rape instead of prostitution charges in what could become a landmark case in Sichuan province.
Two men in their forties, both surnamed Yang, were charged with paying to rape a 12-year-old girl in Qionglai, a city an hour’s drive southwest of the provincial capital Chengdu, the Chengdu Business Daily reported on Friday. In the past, the case would have been tried as “underage prostitution”, because at least of one of the two defendants admitted to paying 800 yuan for sex with the girl.
Tong Xiaojun, a child protection expert and researcher at the China Youth University for Political Science, said public pressure had pushed the government to look into changing the law. Only continued public pressure could guarantee that the law reform would actually come about.
“The ideology behind it is that the children are willing and able to do this,” she said. “The responsibility should be fully put in the adult world instead.”
Reform of the controversial law had been included in the legislative agenda for this year, the state-run Xinhua news agency said last week.