Saturday, Jul 22, 2017, 8:50 AM CST – China

Politics

Child Sex Laws

An Uncomfortable Debate

China has finally removed a controversial ‘soliciting underage prostitutes’ statute, reclassifying such activities as statutory rape. However, disputes over the country’s child protection laws continue to rage

On August 29, the 12th Standing Committee of the National People’s Congress (NPC), China’s top legislative body, approved the nullification of the crime of “soliciting underage prostitutes,” reclassifying this offense as statutory rape.

According to the wording of the resolution, from November 1, 2015, any male over 16 years old who has sex with a girl under 14, regardless of whether or not “consent” has been given, will be prosecuted for rape, a crime which carries a maximum sentence of death.

The change has been viewed as a positive response to public outrage at media exposés of groups of adult men, including many government officials, whose sexual abuse of children has been punished with only light penalties due to the now-defunct statute. However, while the Chinese public appears to overwhelmingly support the new law, lawyers and legal experts are divided, as they were when the crime of “soliciting underage prostitutes” was added to China’s Criminal Law in 1997.

Public Appeal

According to legal professionals, the crime of “soliciting underage prostitutes” first appeared on the NPC’s agenda in the early 1990s when the Chinese government launched one of its perennial crackdowns on the country’s sex industry. Although China’s Criminal Law classified sex with a minor as rape, many offenders attempted to escape punishment by pleading ignorance of their victims’ ages, or by arguing that the children involved gave consent.

As verifying such claims in a court of law proved difficult, China’s legislature added the crime of “soliciting underage prostitutes” to the Criminal Law statute in 1997, recommending a penalty of five to 15 years imprisonment for any offender. Judges were given discretion at trial when it came to determining whether or not a child molester was guilty of rape or of “soliciting underage prostitutes,” but no plaintiff could be prosecuted for both crimes.

Although the revision split the legal profession, the NPC Criminal Law Committee told media at the time that the revised statute was designed to “facilitate cracking down on prostitution and protecting children.” Legislators argued that they were merely complying with requirements of the UN Convention on the Rights of the Child, to which China became a signatory in 1991.

“The [new crime] aimed to distinguish between soliciting child or adult prostitutes, [as the latter] is not defined as a violation of China’s Criminal Law,” Gao Mingxuan, a law professor at Beijing’s Renmin University, told China Youth Daily.

“As some instances of sex with children occurred at illegal sex markets without coercion, intimidation or the use of anesthesia, the legislative body drew a distinction between [such crimes] and rape, but set the minimum penalty [or imprisonment] two years higher than that [set for] rape,” he added.

The revised criminal statute did not, however, curb child prostitution in China. Instead, it appeared to offer pedophiles a potential way to dodge charges of child rape. Public outcry reached fever pitch in 2009 when media reports exposed several local officials in Xishui, a county in Guizhou Province, as having solicited sex from 11 female high school students (three of whom were under 14 years old) who had been groomed by a child sex ring. The court sentenced the men to seven-to-14 years in prison under the underage prostitution statute, which led to public outrage, not least among lawyers, who insisted that the men should have been charged with rape, and that the court should have sought a more severe penalty.

Since then, similar cases have come to light, further stoking the ire of those who saw the solicitation statute as a smoke screen for pedophiles. In 2011, several local officials in Lüeyang County, Shaanxi Province, reportedly coerced a female minor into having sex with them each in turn. Their victim later hemorrhaged. In 2012, several officials and businessmen in Zhejiang Province were revealed to have procured underage virgin girls for sex. Then, in 2013, a local official and the president of a local elementary school in Wanning, Hainan Province, were detained for “sexually harassing” six female pupils in a hotel room.

Although the final sentences handed down to many of the convicted were kept from the public, the public blamed the solicitation statute for emboldening pedophiles, particularly those in positions of power, by “opening a door” to lighter punishments.

“The crime of ‘soliciting underage prostitutes’ has become a shield and an amnesty for the rich and powerful,” Sun Xiaomei, an NPC delegate, told the media.

Sun, who is also a sexologist with China Women’s University, argues that the solicitation statute “humiliated” and “re-harmed” victims of child rape by labeling them prostitutes, despite it being impossible for them to give legal consent.

“Underage girls subjected to both rape and prostitution are all victims who deserve equal protection,” stated Sun in a 2013 proposal to the NPC which later drew considerable praise from the public and the media. “Even if a few of these victims sold sexual services of their own volition, their ages make them blameless.”

Sun’s views are shared by many lawyers and legal scholars who have argued that the solicitation statue has diluted the severity of the violence, intimidation and coercion that lies behind sex crimes against children. For several years, many lawyers, legal experts and NPC delegates, as well as NGOs and governmental organizations, including the All-China Women’s Federation and its local branches, have separately or jointly submitted proposals and bills to the NPC, calling for the crime to be incorporated into existing child rape statutes.

Reluctance

The NPC, however, remained cautious when it came to abolishing the controversial solicitation statute, even when the country’s law enforcement organs, including the Supreme Court, began to gradually lean towards abolition.

In March 2014, a local court in Qionglai, Sichuan Province, charged a man who had procured a 13-year-old girl for sex at a price of 800 yuan (US$127) with rape. When convicted, the man was sentenced to five years in prison, making that case the latest in a string of controversial rulings.

While elements of the public commended the court’s decision to charge the man with rape, the judgment attracted criticism in some legal circles for “failing to respect the law.” Some lawyers argued that, regardless of the moral implications of the case, the crime itself, according to statute, was “soliciting underage prostitutes” and not rape.

The Qionglai court, however, argued that the accused was clearly aware of the age of his victim, adding that the Supreme People’s Court had in 2013 issued guidelines on cases related to child sex, stating that any act involving exchange of money for sex with a minor should be prosecuted as statutory rape.

“This document does not contradict the articles [pertaining to] rape [in the Criminal Law statute],” said Zhou Feng, president of the First Criminal Tribunal of the Supreme People’s Court, following the publication of the new guidelines. “In the interests of facilitating crackdowns on [those causing] criminal harm to children, we should inform the public that these acts should be treated in law as rape rather than prostitution.” Analysts responded by claiming that the new guidelines effectively suspended the controversial solicitation statute.

Yet, despite an outpouring of public support for the SPC’s decision, the NPC did not propose abolishing the child prostitution statute in either its first or second draft revisions to the country’s Criminal Law, with an official statement blandly remarking that “the Standing Committee has not yet reached consensus.”

“If we simply abolish the crime it may not solve the problem,” ran an NPC communiqué to Sun Xiaomei in 2013. “Before this crime was added to the Criminal Law, soliciting sex from underage girls was [already] defined as rape, but this was not enforced well.”

Supporters of abolition continued to chafe at what they saw was NPC vacillation. Some radical voices even opined that some officials guilty of child sex offenses were seeking to protect themselves. As the debate gained ferocity, the NPC suddenly included a proposed amendment recommending the abolition of the crime of soliciting underage prostitutes into their third draft revision to the Criminal Law. The proposed amendment was swiftly approved.

Disputes

The amendment was not without its detractors. Some accused the NPC of failing to take the legislative process seriously by chopping and changing their stance on certain statutes. Some even claimed that the NPC was “being raped by public opinion.”

“I don’t think that an underage girl can be denied the right to sexual self-determination, whether they are having or selling sex,” Fang Gang, a prominent sexologist, wrote in a blog post on portal sina.com. “I think that genuine child protection means acknowledging their human rights and offering them better sex education.”

“Underage girls involved in prostitution are not the same as those covered by the rape statute, since the law defines prostitutes as individuals who have engaged in the sex trade for a long time, or are professional sex workers,” remarked Peking University law professor Che Hao, speaking to a reporter from Legal Daily, the official newspaper of the Politics and Law Committee of the Communist Party of China. “[Sex with] underage girls [who] fall into [the latter] category should be prosecuted under the ‘soliciting underage prostitutes’ law, while all other cases should be treated as rape.”

Che’s suggestions were echoed by China University of Political Science and Law professor Ruan Qilin, who told NewsChina that “soliciting underage prostitutes” is simply a legal definition. This definition, he argued, represents a perceived distinction between solicitation of an underage prostitute and rape in terms of the level of harm done to the victim.

Such statements incensed supporters of the amendment, who argued that their opponents had failed to understand basic legal principles. “In China, the age of consent is 16. Therefore, a girl under 14 years old has neither capacity nor right to [consent to] sell sex. This is the prevailing view worldwide,” criminal law specialist Dr Shao Mingyan of Beijing Union University told NewsChina.

“Opposition [to the amendment] sounds reasonable and understandable from a purely theoretical angle, but a legislative body has to make the rights of children its priority,” Lu Junxiang, a lawyer from Beijing’s Crown & Rights Law Firm, told our reporter.

“Mounting public outrage at the sexual abuse of underage girls by government officials proves that the criminal statute [of soliciting underage prostitutes] has produced a negative impact on society, something a legislative body should take into consideration,” he added.

Shao Mingyan agreed with this analysis. “A Criminal Law is formulated to punish acts that harm society, therefore it cannot separate itself from the demands of that society – namely, public opinion,” he told NewsChina.

While both sides of the argument claim their main interest is better child protection in law, they remain divided over how this shared end would best be achieved. Opponents of the abolition of the solicitation statute have argued that, in many cases, a child rapist will receive a lighter sentence than someone who has procured a minor for sex.

“Although the maximum penalty for soliciting an underage girl is much lighter than that imposed for rape, the former crime carries a heavier minimum penalty,” said Ruan Qilin. “Whether or not violent coercion is a factor is still a major criterion by which a judge determines the severity of a sentence. While the public might expect a life imprisonment or death sentence, this is seldom demanded in rape cases unless violence was used, [the defendant] raped multiple victims, or if the crime took place in public,” he added, referring to clauses in the existing Criminal Law statute on rape.

“I don’t think it is necessary to worry about the severity of penalties, since the Criminal Law states that raping an underage girl should require a heavier punishment,” said Shao Mingyan.

His counterparts, however, are worried. In December 2013, the Supreme People’s Court issued a document on the crime of rape, stating that “raping one underage girl” could be punishable by four to seven years in prison – a sentence even Lü Xiaoquan, a lawyer who has prominently supported the abolition of the crime of soliciting underage prostitutes, called “too conservative.”

“Given that rape is defined as a serious crime whose offenders could be punished by life imprisonment or death, the rape statute is definitely a more effective deterrent than the ‘solicitation’ statute,’” said Crown & Rights lawyer Lu Junxiang. “It would, however, be better if related departments issued more detailed enforcement rules to distinguish between different situations, such as procuring sex from an underage girl, having ‘consensual’ sex with an underage girl, and coercing an underage girl into sex.”

As the NPC Law Committee admits, the problem lies chiefly in enforcement at the court level, with many courts prosecuting cases of child rape under the solicitation statute.

Legal scholars argue, for example, that the men convicted in the Xishu case should have been charged with statutory rape, as they knew both the ages of their victims and that the victims had been coerced into prostitution. Despite the infrequency of solicitation cases involving minors in China’s courts – around one per province, per year, according to SPC data – the sexual abuse of children is frequently exposed by media reports, with many experts suggesting that the problem is far more widespread than officials are willing to admit. Data from the All-China Women’s Federation indicate that the number of complaints concerning the sexual abuse of children have risen from 135 in 1997 to over 3,000 in 2000. Few of these cases were followed up by either law enforcement or the courts.

“The abolition of a crime is only a starting point. We have much more to do to protect our children from sex abuse,” commented columnist Qin Chuan on the official website of the People’s Daily

Min Jie also contributed to the story

 

“Underage girls subjected to both rape and prostitution are all victims who deserve equal protection. Even if a few of these victims sold sexual services of their own volition, their ages make them blameless”

 

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