Legal loopholes in China fail to stop sexual abuse of children

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China’s decision to reclassify “sex with an underage prostitute” as rape was celebrated by activists. But experts say other loopholes allow offenders to commit sex crimes against minors.

China’s decision to reclassify “sex with an underage prostitute” as rape was celebrated by activists. But experts say other loopholes allow offenders to commit sex crimes against minors.

Beijing (dpa) – A tax official in south China’s Sichuan province paid 6,000 yuan (945 dollars) in 2009 to have sex with a virgin but escaped with only a 5,000-yuan fine after he told police he did not know she was 13 years old.

Police in Sichuan’s Yibin city said that paying to have sex with an underage girl is not a crime as long as the offender is unaware of the child’s age and if the sex was “consensual.”

The case enraged citizens. Tens of thousands discussed the case on the microblogging platform Weibo, with many saying that the apparent loophole was an insult to Chinese people’s intelligence.

Human rights lawyer Lu Xiaoyuan became one of the key lawyers heading the charge to reclassify the controversial crime of “engaging in prostitution with an underage girl” as rape. He and others criticized the law for suggesting that children under the age of 14 were able to freely choose sex work.

“Most of them are middle school students. They are victims not prostitutes,” Lu told dpa. “But many feel guilty and don’t want to cooperate with police because they are poor and were initially wiling to do the work to make money.”

In August, the National People’s Congress approved Lu’s proposal to reclassify the crime of sex with underage prostitutes as rape. The previous maximum penalty for the crime was 15 years in prison. Now that the main legislature has reclassified the offence as rape, the crime could mean life in prison, or even the death penalty.

But many experts say the legal change does not go far enough, since there are other loopholes that mean offenders avoid stronger penalties.

There are two categories for minors in Chinese law: those under the age of 14 and those aged 14 to 17. The crime of “engaging in prostitution with an underage girl” only applies to crimes involving girls under the age of 14.

“Young people really cannot freely ‘consent’. One question to consider is whether the minimum age should be higher than 14,” said Jerome Cohen, professor and co-director of the US-Asia Law Institute at New York University School of Law.

“It very clearly doesn’t meet international standards under article 34 of the UN Convention on the Rights of the Child,” said Nicholas Bequelin, East Asia director for Amnesty International.

The convention, to which China is party, defines a child as anyone below the age of 18.

“Any law in this area should require identical age limits for boys or and girls, or men and women,” Bequelin said.

It is also not clear why China considers rape a crime against women and girls only. Rapists who target underage boys can only be charged with child molestation, which carries a maximum sentence of five years in prison.

Advocates say that in addition to changing legislation to make sure that offenders are appropriately punished for their crimes, police should also focus on prevention efforts and work to better identify victims of forced prostitution.

China does not provide estimates of the number of children who have entered sex work in the country, but police in 2011 said they rescued more than 24,000 abducted women and children, many of whom were bound for prostitution rings. The proportion of child trafficking cases among total trafficking cases has been growing since 2001, according to official figures.

“In addition to this legal change, we also believe that increasing prevention activities will also help to tackle this issue,” said a spokesperson from Save the Children China.

“These include but are not limited to protection work in schools such as better child safe-guarding measures, increasing the availability and effectiveness of reporting mechanisms, as well better provision of life skills and employability training to young women.”

Instead, police have focused on trying to reduce prostitution, which is ubiquitous in China. Public security forces regularly conduct crackdowns called “sweep away prostitution and pornography” as well as larger drives against prostitution as part of periodic “strike hard” campaigns.

“Police come into contact with many sex workers but often they are male officers, and they are not taking the time to talk to women and listen to their stories,” said Matt Friedman, an international human trafficking expert and chief executive of the Mekong Club, which educates companies on how to identify signs of forced labour.

Activists in China say there is currently not enough momentum or public support to push the government to protect all children under age 18 from sexual exploitation.

“Little will change as long as China prioritizes maintaining social order and does not work to change attitudes that fetishize virginity,” said veteran women’s rights activist Feng Yuan.

“It is a problem in many places but China and East Asian countries especially have a tradition where taking a girls’ virginity is like getting a trophy,” Feng said.

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