Does Yes Mean Yes?

In recent years, a number of statutory rape cases involving public officials have shocked the Chinese public and ignited debate over a range of issues, from child protection to the thorny issue of what constitutes consensual sex.

A particularly notorious incident in 2009 involving five public employees in Xishui, Guizhou Province and a number of underage girls led to a media furor which has yet to die down. While the five offenders were arrested and sentenced to prison terms for statutory rape, many claim they should have been convicted of rape, a crime which in China carries a harsher maximum penalty under the country’s existing Criminal Law statute.

Statutory rape became a public issue in 2001, when township government officials in Lüeyang of Shaanxi Province coerced a 12-year-old girl into having sex with each of them in turn. They were eventually convicted of statutory rape. In 2012, a series of similar cases were reported in Yongcheng, Henan Province and Yongkang, Zhejiang Province.

The outcry which accompanying statutory rape cases has led to calls from certain quarters for the crime to be merged with China’s existing rape statute, rather than continuing to treat it as a separate crime.

Legal professionals, National People’s Congress (NPC) deputies and members of the National Committee of the Chinese People’s Political Consultative Conference(CPPCC) have been debating whether or not to enact this change ever since the criminalization of statutory rape as a separate crime in a 1997 amendment to China’s Criminal Law.

Professor Ruan Qilin from the China University of Political Science and Law, who favors changing the law, told NewsChina,“Violent sexual abuse is different from nonviolent sexual abuse.”

Such viewpoints have been met with a backlash from other academics and the public, many of whom argue that coercing minors into sex, violently or not, constitutes rape.

Liu Baiju, a researcher from the Chinese Academy of Social Sciences and member of the CPPCC National Committee, submitted a draft resolution to the 2008 sessions of the CPPCC, urging that “intercourse with girls under the age of consent,” whether“consensual” or not, be classed as rape, and made subject to more severe penalties than non-statutory rape.

“Some in judicial circles have been pushing for abolishing the crime of statutory rape. I was the first to submit a draft resolution on the subject to the CPPCC,” Liu told NewsChina.

Criminal Law

The crime of having sexual intercourse with minors (children under the age of 14) did not appear on China’s first Criminal Law statute legislated in 1979. It did not become a crime until 1991, when the Standing Committee of the NPC enacted the Resolution on Punishing Prostitution.

In the revised 1997 Criminal Law statute, statutory rape was separated from rape, becoming a separate crime punishable by five to 15 years’ imprisonment. Rape, on the other hand, carries a minimum penalty of three to 10 years’ imprisonment, though life sentences or death can be sought for rapes resulting in the death of the victim.

“Listing intercourse with minors as a separate crime was meant to attach greater severity to such acts,” said Liu Baijiu. “In the course of legislation, however, while the minimum sentence for statutory rape was indeed more severe than for rape, the maximum penalty was in fact lighter.”

The 2009 Xishui case brought this issue to national public attention. Over a period of several months, five public employees repeatedly abused 11 schoolgirls. Although long prison terms were finally meted out to the offenders, public opinion held that the punishment was still too light and that these criminals should be charged with rape.

In his draft resolution submitted to the CPPCC, Liu Baiju pointed out that “Having sexual intercourse with minors should be considered as rape in law, despite the frequent involvement of money and other incentives offered to the victims by way of coercion.”

“Driven by the trend of ‘buying virginity,’ many offenders engage in sexual abuse of minors which equates to the crime of rape and should incur an equal penalty,” he added.

Many in the pro-abolition camp hold that in terms of deterring potential offenders and protecting minors’ rights, penalties for statutory rape are perceived as generally less harsh than for rape, dulling the effectiveness of convictions.

Violence vs. Non-violence

However, Professor Ruan Qilin of the China University of Political Science and Law told our reporter that, as many statutory rapes are reportedly consensual, current penalties are sufficiently harsh.

Ruan believes that whether or not violence is used against a victim should determine the penalty for sex crimes. “One important thing is ignored amid the clamor of advocacy for the abolition of statutory rape as a separate crime,” he said. “The fact is that rape in its most extreme form is punishable by death, but few statutory rape cases involve violence or the death of victims. Why must a statutory rapist die if he has neither wounded nor killed anyone?”

“What outrages the public most is the repeated sexual abuse of underage girls on the part of some public employees,” Wang Zhixiang, a professor at Peking University’s Institute for Criminal Law Research, told NewsChina. “The problem is the punishment meted out to repeat offenders who abuse minors is not harsh enough if the offence falls under the current statute.”

Women’s and children’s activists, however, see the debate differently.

“Giving special protection to minors is the point of departure for all child-related protection legislation the world over,” said Tong Lihua, director of the Beijing Center of Legal Assistance to Juveniles. “Legislation that lists ‘having sexual intercourse with underage girls’ as a separate crime overlooks the possibility of psychological harm done to victims.”

“Because a kind of ‘transaction’ is involved in these offenses, a notion exists among lawmakers that the underage girls in these cases are not actually victims,” Professor Wang Zhixiang of Peking University told NewsChina. “Considering that underage girls engaged in child prostitution are more at risk of physical and emotional harm thanprostitutes, we have no basis to infer these cases are not rape, regardless of whether or not money has changed hands.”