Law and ethics in cases of rape


This is the 1510 Digest, a weekly roundup of recent essays and articles published on the Chinese web, with links to translations on the Marco Polo Project.

China just celebrated International women’s day, even offering women half a day off work. This celebration of women’s contribution to society aligns with the communist rhetoric of women ‘holding half the sky’. However, a long road remains to gender equality, and Chinese women in their daily life are still exposed to multiple forms of violence and discrimination.
Today’s post will look more closely into sexual violence against women – with articles analysing the question of rape from different angles. The selection below does not pretend to cover the full extent of the debate, but only serve as a starting point for further reflection. Sociologist and gender specialist Li Yinhe lines up arguments in favour of punishing marital rape, historian Liu Zhaoxing questions why so few rapes were recorded in former periods of Chinese history, and Shi Po discusses the growing phenomenon of ‘date rape’.

Why am I in favour of punishing marital rape?
By Li Yinhe, 13 December 2010

In line with other articles by Li Yinhe, sociologist specialising in gender question, this piece presents an argument for social change based mostly on strict legal arguments. Why support the punishment of marital rape? The criminal code takes precedence over the marriage code, and contains no special clause excluding married partners from rape charges. Excuses for marital rape correspond to the logic of patriarchy, which contradicts constitutional commitment to ender equality. Only the final argument invokes a broader principle: a woman’s individual right not be raped, whether married or not.

Marco Polo translation: Why am I in favour of punishing marital rape?
Original link: 我为什么赞成惩罚婚内强奸

Why were there fewer rapes in ancient times?
By Liu Zhaoxing, 30 May 2012

In China’s historical records, rape is a very rare crime compared to theft or murder. In this piece, historian Liu Zhaoxing reflects on possible causes why sexual violence against women is almost absent from Chinese history.
The feudal attachment to chastity put women in bondage. Even a re-marriage was seen as a form of debauchery, and there are recorded instances of women who chose self-mutilation or suicide rather than remarriage. In such conditions, argues the author, it is unlikely that a victim of rape would report the crime. This was made even more unlikely by the provisions of the law: the judge would only consider rape to have occurred if a woman resisted with all her strength to the end – as evidenced by sever damage to her body – or her own death. If a woman gave in to threats of violence or was forced into submission, she would be accused of ‘debauchery’, suffer public humiliation, and receive a humiliating punishment, while judges would be lenient on the criminal. In such conditions, it is not surprising that Chinese history recorded only rare instances of rape.

Marco Polo translation: Why were there fewer rapes in ancient times?
Original link: 受害妇女若告官九死一生

Ethics and law in cases of rape
By Shi Po, 17 April 2012

This article was written after the province of Shaanxi saw similar cases of ‘date rape’ happen in short succession. These cases shared similar characteristic: a man and a woman are introduced or meet online, they go out, he invites her to a hotel room, where she refuses to have sex. Overcome by desire, the man abuses her, after which the woman asks for a large sum of money. When the man refuses to pay, she denounces him to the police. Is this rape or extortion? In all cases, the judges decided for the first, and sent the men to prison. But cases of rape today differs from what happened in the 70s and 80s. Then, rape occurred in the wilderness, when women went out on their own. Now, they tend to happen in hotel rooms after internet meetings, and in such a situation, interpreting evidence can be more difficult.

Shi Po then discusses the following cases in more details:
1) A 14 year old girl working in a karaoke bar was taken back to a house by her cousins after agreeing to sleep with them for $300 each. But other men joined, and the girl had sex with each of these men two or three times that night – most of the men were also minors. In the morning, she tried to get away, but only after asking for the money. Was this a shameless girl asking for prostitution money, or a case of rape and abuse? In the end, the men were all convicted to prison, though the cousins had reduced sentences.
2) In a small town, a peasant woman of 42 was raped by three men in their twenties, and her foot was injured. Her brother went to get hospital money, and denounced the perpetrators after they refused to give any. One of them, after giving himself in, consistently denied the rape, though not the other facts. Was this just fear of losing face on his part, or a sense that in all cases, money can atone for rape, and therefore, this is a crime that can be bargained. In this case, after negotiations failed, the three men were convicted, but the woman received no compensation.

To conclude, Shi Po proposes the following analysis to explain both the role of money in cases of rape, and neglect of the system for the victim: “In old times, the concept of rape was as a crime in which the property of a father or a husband had been infringed upon. These days with the existence of sexual intercourse that can be exchanged for money, a woman resisting rape is tantamount to protecting her personal property. Thus, in a certain sense, a sex conflict can evolve into a conflict over money. Faced with the cold and sober law, we still have a lot sympathy for the victims. Current laws regarding the compensation for the violation of “virginity rights” are limited to compensation for psychological damages, but supplementary civil action compensation does not include compensation for psychological damages. Thus, in rape cases, the rapist standing in the courtroom is the focus of everyone’s attention while the victims’s rights and interests are often overlooked or even forgotten.”

Marco Polo translation: Ethics and law in cases of rape
Original link: 强奸案里的伦理与法律

All articles in this digest and a large range of other Chinese readings are accessible at Marcopoloproject.org. Some are available in English, French and Spanish translation. (You can join the project if you’d like to help with translations.)

Danwei is an affiliate of the Australian Centre on China in the World at The Australian National University. This posting is a result of one project that is part of that on-going collaboration.

The China Story, China Heritage Quarterly and East Asian History are publications of the Australian Centre on China in the World.

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