The following article comes from Global Law Review , author Liu Renwen
On the equal regulation of sexual abuse of boys and girls in my country criminal law
Author: Liu Renwen, researcher at the Institute of Law, Chinese Academy of Social Sciences.
Source: The article was originally published in the 2022 Issue 3 of Global Law Review. The full text is reproduced from the public account "Criminal Law Circle".
Summary: Our country’s criminal law should regulate the sexual assault of boys and girls equally. This is not only the need to protect sexually assaulted boys, but also the implementation of our country’s Constitution, Minors Protection Law and other domestic laws and our country The "United Nations Convention on the Rights of the Child" and other international treaties have been joined to meet the spirit of equal protection of children's sexual health rights. In order to strengthen the legislative concept of equal protection of minors' sexual rights, improve legislative techniques, fill loopholes in punishment, and resolve interpretation problems, my country's criminal law needs to systematically regulate the sexual abuse of boys and girls. First, an age classification system should be established in the criminal law, with a special chapter or section dedicated to "crimes that impede the right to sexual self-determination and sexual health"; secondly, the provisions of the crime of sexual assault on minors should be changed to the crime of sexual assault on adults. The legislative model of the article strengthens the subjectivity and independence of the crime of sexual assault of minors and the punishment; thirdly, according to the basic idea of regulating the sexual assault of boys and sexual assault of girls equally in the criminal law, the crime of rape of underage girls and the crime of obscenity are , organize, force and induce prostitution of young girls and other crimes, abduction and trafficking of women, children's crime and other related crimes and propose ideas for improving legislation.
Keywords: Sexual abuse of minors; protection of boys’ sexual rights; children’s sexual health rights
How to regulate the sexual abuse of boys is a heavy topic that has not attracted enough attention and attention from legislators and the public for a long time. , on the one hand, legislation related to traditional sexual crimes focuses on protecting girls; on the other hand, if boys who have been sexually assaulted do not receive adequate assistance, they may continue to be sexually assaulted but still not receive it. Legal and social responses. Cases of sexual abuse of boys that have been reported in my country in recent years have drawn attention to the regulatory means to protect boys’ sexual health rights, including criminal law. For example, in 2019, one of the typical cases of rape and child molestation released by the Supreme People's Court in 2019 was the "Li Moulin Molestation Case of a Boy"; in 2020, it was reported on the Internet that a middle school teacher Liang had forcibly molested multiple male students. After judicial investigation and trial, the case was recently pronounced and Liang was found guilty of forced indecency.
examines the protection of children's sexual health rights in my country's criminal law, and also treats boys and girls differently. For example, the criminal law stipulates that "any person who commits adultery with a girl under the age of fourteen shall be deemed to be raped." However, adultery under the age of fourteen is not considered rape. There are no corresponding provisions for young boys; for another example, the "Eleventh Amendment to the Criminal Law" added the "crime of sexual assault by persons with care responsibilities", but the objects of protection are also limited to "those who are over fourteen years old and under sixteen years old" "Underage females", but there are no corresponding regulations for underage males who are over 14 years old and under 16 years old.
This article is based on the basic proposition of de-gendering criminal law, starting from the perspective of children’s sexual health rights, demonstrating the necessity of equal protection of male and female children’s sexual health rights in our country’s criminal law, and pointing out the problems caused by the current unequal protection of male and female children’s sexual health rights in legislation. It also puts forward legislative improvement suggestions on how to equally regulate the sexual abuse of male and female children.
-
The necessity of equal protection of the sexual health rights of male and female children under criminal law
(1) The incidence rate of sexual assault on boys is high and the nature of sexual assault on girls is the same
Compared with adults, the physical and mental health development of children is not yet mature, which is harmful to Sexual understanding, cognitive ability, and ability to control are not yet perfect, and sexual abuse will have a negative impact on children's physical and mental development. This is the fundamental reason why sexual abuse of children must be treated differently in criminal law. It is precisely based on this that the theory of sexual health rights has gradually replaced the theory of sexual autonomy in the understanding of the connotation of legal interests in the crime of sexual assault against children in the criminal law circles at home and abroad, arguing that the legal interests of the crime of sexual assault against children lie in protecting children from sexual abuse. Regarding the damage caused by the behavior to their growth, it is believed that based on the immature characteristics of children's sexual physiology and psychology, there are essential differences between children who have been sexually assaulted and adult victims, so children should be given special protection that is different from adults.
However, compared to society’s general understanding of the serious nature and social harm of sexual abuse of girls, sexual abuse of boys has long been seriously ignored. Due to the greater number of sexual assaults on boys, as well as the concealment of criminal methods, the lack of awareness of self-prevention on the part of the victims, incomplete family structures, and crimes committed by acquaintances, the number of boys as victims has been seriously underestimated. In fact, relevant studies at home and abroad have shown that in child sexual abuse incidents, sexual assaults on boys not only occur in large numbers, but in some places even exceed the number or rate of sexual assaults on girls. For example, The United Nations Committee on the Rights of the Child stated in an investigation report published in 2014: In the past few decades, many Catholic priests have raped and sexually molested tens of thousands of children, many of whom were boys. Research by American scholar Mackinnon (Catharine A. Mackinnon) pointed out: "2%-14% of boys have suffered sexual abuse." Another American study also pointed out: "More and more evidence shows that underage The situation of men suffering statutory rape and wider sexual abuse is much more serious than we thought. "A statistical analysis of child sexual abuse in China shows that the probability of sexual assault of girls is 15.3%, slightly lower than the international average. The probability of sexual abuse of boys is 13.8%, which is higher than the international average. The 2013 Guangdong Province Adolescent Health Risk Behavior Monitoring Report shows that for every 100 adolescent males, 2-3 have had forced sexual intercourse, which is 2.2-2.3 times that of females. Although the conclusions of these studies have certain differences in the numerical values of the incidence of sexual assault, one thing is common, that is, the sexual assault of boys, like the sexual assault of girls, is a problem that deserves great attention in all countries.
From the perspective of the nature of the behavior and the harm to society, sexual assault on boys is also very harmful. First of all, the psychological trauma caused by a boy being sexually assaulted is the same as the psychological trauma caused by a girl being sexually assaulted. That is, both will have "sexual assault trauma syndrome", resulting in fear, despair, shame, anxiety, etc. Emotional reactions, as well as psychological states such as apathy, sluggishness, self-blame, and revengeful emotions. Secondly, sexually assaulted boys, like sexually assaulted girls, will be stigmatized and labeled, causing secondary harm or even lifelong harm, distorting their views on sex and marriage in adulthood. Finally, there are some special consequences of sexual assault on boys. For example, methods of adultery such as anal intercourse can cause damage to the boy's reproductive organs and other physical harm. He is also easily infected with sexually transmitted diseases such as AIDS , and may also leave hidden dangers such as mental illness. . A study in the United States shows that boys who are sexually assaulted are more likely to become criminals as adults, or attack others, and have a greater desire to commit suicide. In 2017, Chester Bennington, the lead singer of the famous American rock band "Linkin Park", committed suicide at the age of 41. Before his death, he revealed to the media that he had been tortured by adults as a child. The man had been sexually assaulted for 6 years, which was the most direct reason why he gave up his life.
(2) The need to implement the relevant spirit of domestic laws such as the Constitution and international conventions
In the context of an era that emphasizes that governing the country according to law is first and foremost governed by the constitution, the legal norms and academic systems of various departments, including criminal law, are moving in the direction of the constitution. Adjustment has become a consensus among constitutional scholars and criminal law scholars. Based on this, constitutional dogma can fully draw the conclusion that the criminal law should regulate the sexual assault of boys and the sexual assault of girls equally based on the constitutional provision that " citizens of the People's Republic of China are equal before the law."
It should be noted that the principle of equality in the Constitution does not mean the rejection of differential treatment. Differential treatment based on reasonable classification does not violate the principle of equality in the Constitution. Some people even call the principle of difference a subsidiary issue of the principle of equality. However, differential treatment based on unreasonable classification violates the constitutional principle of equality. The criminal law's differential treatment of sexual assaults on male and female children does not constitute "corrective justice." The "over-protection" of women in the criminal law implies the idea of "objectifying" women instead of empowering women. In fact, it is also a disguised form of discrimination. What's more, this article's proposition that the criminal law regulates sexual abuse of male and female children equally will not lead to a weakening of the criminal law's protection of girls. On the contrary, it will make the protection of children more comprehensive due to equal regulation. In addition, Article 3 of my country's "Law on the Protection of Minors" stipulates that the state protects minors' rights to survival, development, protection, participation and other rights. An important requirement derived from this article is to protect the physical and mental health of all minors equally and not to discriminate on the basis of gender differences. Based on this, we can also draw the conclusion that the sexual health of boys and girls is equally protected.
Relevant international conventions also advocate and require criminal law to equally regulate sexual abuse of male and female children. United Nations Article 7 of the Universal Declaration of Human Rights clearly stipulates the right to equal protection of the law, which shows that citizens enjoy equal sexual rights, and children should be no exception. Article 2 of the Convention on the Rights of the Child (Convention on the Rights of the Child) (hereinafter referred to as the "Convention") adopted by the United Nations in 1989 stipulates the principle of non-discriminatory protection of children's rights and interests, which is even more clear. Our country’s criminal law treats sexual abuse of boys and girls differently, which is obviously contrary to the principle of non-discriminatory protection of the Convention. The Convention also stipulates: "State Parties are responsible for protecting children from all forms of sexual exploitation and sexual assault." It can be seen that all activities involving sexual abuse of children, regardless of whether the victim is a girl or a boy, should be protected by the State Party. Prohibited by law. Our country has formally ratified and joined the Convention in 1991, so the Convention’s comprehensive and equal protection of children’s sexual health should be implemented by our country’s legislation.
(3) Common trends in extraterritorial legislation
Examining the criminal legislation in today’s international society, although the specific crimes of child sexual abuse and age demarcation are different in various jurisdictions, there is one thing that is strikingly similar, that is, each All jurisdictions have used neutral terms such as "minor", "child" and "person under the age of ××" to replace the previous traditional terms such as "girl". Of course, we cannot say that we should do what the extraterritorial legislation is like, but this common trend of extraterritorial legislation reflects certain regularities and is worthy of our reference.
Take Germany as an example. Although was influenced by liberal ideas after World War II, in 1969 the German Penal Code limited the punishment for sexual behavior between adults and included Article 175 of "Homosexual Sexual Behavior Crime". The age of punishment was lowered from 21 to under 18, and the article was eventually deleted in 1994. However, the protection of children's sexual rights and interests has been continuously strengthened.Among the relevant provisions of the original Article 175 and the original Article 182 of the German Penal Code on sexual assault of juveniles, the original Article 175 of "Male Homosexual Sexual Behavior" was interpreted as men who are over 18 years old and men who are under 18 years old. Comparing the crime of luring girls under the age of sixteen to engage in sexual intercourse as stipulated in the original Article 182 "Crimes of luring girls to have sexual intercourse", it not only stipulates the sexual assault of male and female teenagers differently, but also sets There are different age limits between eighteen and sixteen years old. Therefore, these two articles have been criticized for their alleged discrimination against gay men and the lack of protection of the sexual rights and interests of male minors. The 29th Criminal Law Amendment Act [29. Strafrechtsänderungsgesetz (1994)] promulgated on June 11, 1994, not only included male juveniles and female juveniles in the scope of protection as juvenile rights and interests, but also replaced "sexual intercourse" with "sexual behavior" ”, expanding the sexual assault behavior. The Sixth Criminal Law Reform Act of 1998 [6. Strafrechtsreformgesetz (1998)] expanded the scope of punishment for sexual crimes and used the expression "persons under the age of fourteen" in order to strengthen the integrated crackdown on sexual abuse of boys and girls. . The 49th criminal law amendment in 2015 [49. Strafrechtsänderungsgesetz (2015)] inherited the concept of equal protection of children's sexual rights and interests. The added article 182 "crime of sexual abuse of juveniles" used the term "rape dissatisfaction". "A person over the age of 18", "A person over the age of 18 engaging in sexual activity with a person under the age of 18 for a fee", "A person over the age of 21 with a person under the age of 16", etc. In addition, Article 180, “the crime of procuring minors to engage in sexual activity” also uses “persons under the age of sixteen” and “persons under the age of eighteen”. In short, looking at the provisions of various child sexual abuse crimes in the German Penal Code, there is no deliberate distinction between genders.
Let’s take Japan as an example again. Compared with other Western countries, before the revision of the Japanese Penal Code in 2017, Japan’s legislation on the crime of sexual assault against children and even the entire sex crime legislation was relatively backward internationally. Regarding the controversy over whether the limitation of victims of rape to women violates the principle of equality between men and women in Article 14 of the Japanese Constitution, the Supreme Court of Japan gave a negative answer in its 1953 judgment, on the grounds that the subject of the crime of rape was excluded. Limiting the victim to men and limiting the victim to women is based on physical and physical differences in the physique, structure, and functions of both parties, and does not violate social or moral concepts. However, in the "Seminar on Penalties for Sexual Crimes" before the 2017 revision of the Criminal Law, most opinions believed that the sexual concept of the entire society is obviously different from that of the last century. Whether it is a man or a woman, the degree of victimization after being raped are the same, therefore, there should be no gender differences between perpetrators and victims of rape. Therefore, it can be considered that the 2017 revision of Japanese Criminal Code conforms to the ideas and social reality of domestic society. After the revision of the law, the "woman" as the object of the act in the original Article 176 was changed to "person", "adultery" was changed to "committing sexual intercourse, anal intercourse or oral sex", and the statutory minimum penalty was increased from 3 years to 5 years of disciplinary imprisonment. . The original Article 178 stipulated the crime of quasi-forced indecency and quasi-rape. After the revision of the law, the crime of quasi-rape in this article was changed to the crime of quasi-forced intercourse. That is, the original crime of quasi-rape "takes advantage of the woman's loss of mind or inability to resist, or The word "woman" in "making someone lose their mind or be unable to resist and commit adultery" is changed to "person", so that the objects of crimes such as quasi-forced intercourse include men.
In other countries, such as the United Kingdom, the crime of indecency in the Sexual Offenses Act 1956 is also limited to men’s behavior towards women, and the Indecency with Children Act 1960 includes indecency. The criminal subjects of child crimes were expanded to people of any gender, and the protected objects included boys under the age of fourteen. By the 1994 Criminal Justice and Public Order Act (Criminal Justice and Public Order Act 1994), sexual crimes were further strengthened. The reforms completely broke the traditional sexual concepts and included men as victims of rape. Later, in the newly revised Sexual Offenses Law in 2003, the previously stipulated objects of sexual conduct that constituted a crime with girls under the age of thirteen were changed to "children under the age of thirteen."The French Penal Code in 1810 did not clearly define the crime of rape. Traditional criminal law jurisprudence and criminal law theory believe that the perpetrator of rape must be a male and the victim must be a female. However, the revised Criminal Code in 1994 began to reflect a gender-neutral stance. The latest criminal law implemented in 2015 not only clearly defines victims as "others" and "minors", but the identity of the offender is no longer limited to men. Another example is NorwayArticle 192 of the current Penal Code stipulates that the use of violence or obscene methods to force others to perform indecent acts against life and health is a crime of rape. Gender is no longer emphasized. This provision also applies to sexual assaults that have not yet occurred. Adult crime. In short, the trend of de-gendered legislation in the field of sexual crimes can be said to have swept most countries and regions in the world today. It has become an internationally accepted practice to regulate the sexual assault of boys and girls in criminal law.
二
The shortcomings of my country’s criminal law in equal protection of boys’ sexual health rights
(1) Legislative concepts and legislative technology lag behind
Although the 1997 Criminal Law has initially achieved equal protection for male and female children who have been sexually assaulted in individual crimes such as child molestation, , but the crime of rape of underage girls, the crime of luring underage girls into prostitution and other crimes are still gendered. The focus of legislation is on the protection of girls. The understanding of sexual crimes is too narrow. Specifically, the performance In the following three aspects.
First, the understanding of gender is still at the "gender stereotype" stage. In traditional cognition, women have always been considered to be physically weaker, weaker, and more vulnerable than men, while men are described as physically stronger and more aggressive. This stereotype has a negative impact on men and women. Regulation of sexual behavior among women also has an impact. Correspondingly, this influence also affects the legal regulation of sexual abuse of boys and girls. As some scholars have pointed out, “There is relatively little literature on female aggression against teenage boys, and there is also a lack of sufficient research to explore how to construct a protective mechanism for teenage boys to be victimized. This is largely due to the lack of understanding of victims and perpetrators. The second is the influence of women’s right to chastity in traditional society, which believes that the chastity of unmarried women is crucial and related to family honor and property. In contrast, the chastity of unmarried men does not affect these. Third, the concept of childbearing has also largely influenced our country’s legislation on sexual assault crimes, including the protection of minors. For example, both the theory and practice of our country's criminal law interpret "adultery" as "vaginal sexual intercourse." This interpretation is based on the birth-oriented approach and will be inappropriately limited to only applicable to the rape of young girls. In fact, with the development of society, not only the role of women in the social division of labor has changed, but also the concept of female chastity rights and fertility-oriented concepts have also undergone tremendous changes. In the field of children, the above-mentioned concepts are not conducive to the protection of boys who have been sexually assaulted, and they also seriously lag behind today's people-centered values of the era. Because children's rights to physical and mental health are the essence of the legal interests violated by the crime of child sexual abuse, it should not only transcend gender stereotypes, but also transcend the right to chastity and reproductive rights .
From the perspective of legislative technology, my country's criminal law also needs improvement in strengthening the protection of the sexual rights and interests of children, including boys. For example, influenced by China's culture of sexual taboos and shame, Chinese people are often reserved and vague about sexual expressions. Reflected in the legislation, the terminology of sexual crime legislation is too simple and abstract. For example, the 1979 Criminal Law stipulates the sexual assault of boys in hooligan crimes , but it is not explicitly listed, but is listed as "other hooligan activities" The main reason for the blanket provisions is that legislators believe that these words are too explicit and should not appear explicitly in the law. In 1997, the criminal law abolished the pocket crime of hooliganism and decomposed it into the crimes of forced indecency, insult and child molestation.Although the crime has become more specific, the description of the crime is still very "implicit". It only uses "obscenity" and other criminal law normative words with strong moral evaluation in general, but does not provide a further clear description of the crime, resulting in practice. There are constant disputes over the methods, methods and specific connotation of "obscenity". For another example, in order to highlight the protection of adults’ sexual autonomy and the protection of minors’ sexual health rights, more and more countries and regions have included sexual crimes and related crimes into separate chapters or sections in their criminal codes. However, in our country So far, there is no special chapter or section in the criminal law to stipulate sexual crimes and related crimes. Instead, the provisions are scattered in chapters such as infringement of citizens' personal rights, crimes of democratic rights, and crimes of obstructing social management order. This approach is also inappropriate. For example, if the "crime of luring underage girls into prostitution" is placed in the chapter of crimes against social management order, even if the "underage girl" here is changed to "children", if the position of the chapter is not adjusted, it will It makes people feel that legislators have given way to the protection of children's sexual health rights to the maintenance of social order and ethics, which is still not enough for the protection of children's sexual rights and interests.
(2) There are obvious punishment loopholes in the current legislation.
Since my country’s criminal law regulates sexual abuse of children differently for men and women and focuses on protecting girls, there are many punishment loopholes in the regulation of sexual abuse of boys. This It is not only manifested in the crime of rape of a young girl, rape of a boy under the age of fourteen, the crime of sexual assault of a person with care duties, sexual assault of a minor male who is over fourteen years old but under the age of sixteen, and the crime of luring a young girl into prostitution, the crime of luring a child under the age of fourteen. There is no legislative regulation of boy prostitution, and due to the fact that my country’s criminal law defines the concept of “child” as under the age of fourteen, rather than under the age of eighteen as stipulated in the Convention, there are many places in the criminal law that refer to children between the ages of fourteen and eighteen. There is a lack of regulations on the protection of boys' sexual rights, such as the crime of child molestation, child abduction and trafficking, the crime of bribing abducted children, and the crime of gathering a crowd to hinder the rescue of a bribed child in the criminal law. The upper age limit of the protected objects is only ten years. Four years old. This is also inconsistent with the legislative intention of the Minors Protection Law to include minors under the age of 18 in the scope of protection, especially in the crimes of abducting and selling women, bribing abducted women, and gathering a crowd to hinder the rescue of a bribed person. Crimes against women and other crimes are also gendered, leaving loopholes in the protection of male minors between the ages of 14 and 18.
For example, for sexual assault that is also "rape", when the target is a girl, it can be classified as rape of a young girl and convicted and punished according to the severe punishment for rape; when the target is a boy, it can only be charged with child molestation. Discuss. The statutory penalty for rape is much higher than that for child molestation. Treating the sexual assault of boys as child molestation is not only an inappropriate punishment for the crime (the crime fails to reflect the subjective viciousness of the perpetrator and the social context of the behavior) Harmful), and the penalty was inappropriate (limited by the statutory maximum penalty for child molestation).
The "Criminal Law Amendment (Eleven)" adds the crime of sexual assault by persons with caring responsibilities, and will have special responsibilities for guardianship, adoption, care, education, medical treatment, etc. for minor women who are over 14 years old but under 16 years old. The sexual relations between personnel and the underage female are included in the scope of regulations, which further reflects the comprehensive protection of underage women in this age group. However, because it is still limited to women, sexual assault on minors who are over 14 years old and under 16 years old Male behavior cannot be regulated by this crime. In fact, the problem of sexual assault of minors over the age of 14 has long existed and has attracted the attention of judicial authorities. For example, in 2013, the Supreme People's Court, Supreme People's Procuratorate , the Ministry of Public Security, and the Ministry of Justice issued the "On Punishing Sexual Sexual Behavior According to the Law". The Opinions on the Crime of Violating Minors (hereinafter referred to as the "Opinions") stated: "Indecent assault on a minor male who has reached the age of fourteen, causing the victim to suffer minor injuries or more, is in compliance with Article 234 of the Criminal Law Article 232 or Article 232 shall be convicted and punished for the crime of intentional injury or intentional homicide.”The reason why the 2015 "Criminal Law Amendment (9)" changed the crime target of "forced indecency" from "women" to "others" is that the explanation of the legislature is: "Although women and children are the main victim groups of indecency, However, in practice, cases of molesting men often occur. It is not clear how the criminal law applies to the behavior of molesting men over the age of fourteen. In this regard, relevant social parties have made many suggestions and appeals to expand the scope of the crime of indecency, including molesting fourteen-year-olds. The behavior of men over the age of 1 year shall equally protect the personal rights of men." But even so, there are still obvious improper punishments and even loopholes in punishment: according to the aforementioned "Opinions", in practice, most cases of indecency against boys are up to 100%. It is not as serious as the crime of intentional injury or intentional homicide, because even the crime of intentional injury has to cause minor injuries, so most of them can only be treated as not guilty. Although the "Criminal Law Amendment (9)" changes the target of the crime of "forced indecency" from "women" to "others", which can include the act of forcibly molesting men over the age of fourteen, it is worth noting that the crime of child molestation It does not require violence, coercion or other coercive methods, but the crime of forced indecency requires these coercive methods. Therefore, for the use of non-coercive methods to molest (rape) minors over the age of fourteen, no matter how bad the circumstances are, They can only be treated as innocent.
(3) The interpretation theory cannot eliminate judicial confusion and punishment loopholes
Some people may stand on the standpoint of the interpretation theory and think that it is best not to criticize the current legislation, but to explain it. In this regard, the author's point of view is that the interpretation theory and the legislative theory are both the two wheels of the chariot and the two wings of the bird in criminal law research, and they can go hand in hand. It is good that some problems can be solved through interpretation, but some problems cannot be solved by explanation; there are also some problems that can be solved with the help of explanation before amending the law, but if solving them through legislation can have better results, then it can On the one hand, it is based on the theory of interpretation to solve the urgent need; on the other hand, it strengthens the research on the theory of legislation to prepare for the improvement of criminal law in the future. The judicial confusion and punishment loopholes caused by the shortcomings of my country's criminal law in equal protection of boys' sexual health rights are probably situations that cannot be solved by the interpretation theory.
For example, the clarity of criminal law is the basic requirement of principle of statutory crime and punishment . In terms of the provisions of the crime of sexual assault on children in my country's criminal law, in addition to the aforementioned unclear constituent elements due to the legislative language being too "implicit", there is also a lack of definition of relevant concepts that leads to ambiguous semantics, and related crimes are scattered in different chapters or attached to adult criminal law provisions. Later, problems such as its internal logic and clarity were affected. The most prominent one was the improper gender distinction between child sexual abuse in the legislation, which made some issues that should have been clear become unclear. Issues that should be simple become complicated, which only increases confusion and controversy in judicial practice. The result is not only detrimental to the realization of the behavioral guidance function of criminal law norms, but also detrimental to the realization of the adjudication guidance function of criminal law norms. For example, if the "crime of child rape" is directly used instead of the "crime of rape of an underage girl", it will not lead to many disputes surrounding the application of criminal law to the act of raping a "young man" (boy).
For another example, regarding the issue of unbalanced sentencing caused by restrictions on applicable crimes, some people start with the "other aggravating circumstances", an aggravating circumstance for child molestation, a blanket clause , and believe that the literal relationship between sexual intercourse and indecency does not change. Under such circumstances, treating non-traditional sexual intercourse and intrusion into children's bodies as a statutory upgrading circumstance for the crime of child molestation can better achieve a balance between crime and punishment. Although this explanation is well-intentioned, it may itself be an approach that goes beyond certainty and is too flexible. Rape of boys is already a gap in our country's criminal law. Reluctantly applying the crime of child molestation to deal with it is a helpless move to break through the constituent elements of the crime of child molestation. However, it is basically established in judicial practice, and it can be regarded as having a certain degree of certainty. sex. Now it would be too far-fetched to explain this behavior to "other bad circumstances" and classify it as aggravated circumstances.Just imagine, if the original intention of the legislator's legislation is to include all oral sex, anal sex and other sexual assaults on boys within the scope of the statutory penalty upgrade for the crime of child molestation, then among the four upgrade circumstances listed, it should be combined with the previous ones. The three specific circumstances of the incident are stated side by side. There is absolutely no need to put such content that has already existed in reality into the safety clauses that legislators had to set up because they could not foresee the legislation at the time. Moreover, it is difficult to fundamentally solve the problem of sexual assault on men and women. The problem of uneven sentencing for children's behavior.
As mentioned before, the "Eleventh Amendment to the Criminal Law" lists four statutory escalating circumstances for the crime of child molestation (more than five years fixed-term imprisonment ), but it also adds new statutory escalating circumstances for the crime of rape. The fifth item "raping a young girl under the age of ten or causing harm to a young girl" was added, and the third item "raping a woman in public in a public place" was added to the situation of "raping a young girl" (sentence to not less than ten years of fixed-term imprisonment, life imprisonment imprisonment or death). Comparing the sentencing modifications of the two in the "Criminal Law Amendment (11)", it is obvious that legislators still place young girls in a special protective position and believe that the social harm of vaginal sex is greater than that of anal sex, oral sex, etc. It can be seen that the newly added aggravating circumstances of the crime of child molestation not only fail to achieve the goal of regulating the sexual assault of male and female children equally in sentencing, but invisibly further widen the sentencing gap between the two. Therefore, trying to use the blanket clause of "other aggravating circumstances" in the crime of child molestation to resolve the uneven sentencing of sexual assaults on male and female children not only poses a hermeneutic dilemma, but the results are also unsatisfactory and can only be regarded as expedient. plan.
三
Improving the criminal law to equally protect boys’ sexual health rights
The aforementioned structural flaws in my country’s criminal law in protecting boys who have been sexually assaulted determine that they must be compensated through legislative improvement. In the future, our country should add a special chapter on "crimes that impede the right to sexual self-determination and sexual health" in the criminal code (or at least set up a special section under the chapter on crimes that infringe on citizens' personal rights and democratic rights). Among them, crimes that impede the right to sexual self-determination target Sexual assault on adults and crimes against sexual health rights target sexual assault on minors. It is necessary to change the legislative model in which the provisions for the crime of sexual assault against minors are attached to the provisions for the crime of sexual assault against adults, strengthen the subjectivity and independence of the crime of sexual assault against minors and penalties, and refine the provisions for various crimes of sexual assault against children . The description of the crime and the age classification system in different situations will, in principle, unify the ages of children and minors to comply with the requirements of the Convention, unless the actual age of the child referred to in the provision is indicated in some specific provisions. The following focuses on suggestions for improving the legislation of several individual crimes.
(1) Legislation on the crime of rape of a young girl is improved.
Paragraph 2 of Article 236 of the Crime of Rape of my country's "Criminal Law" stipulates: "Whoever rapes a young girl under the age of fourteen shall be treated as rape and shall be severely punished." Because this provision will Young boys (boys) under the age of fourteen are excluded from the objects of adultery. Therefore, in practice, the rape of a boy under the age of fourteen can only be convicted and punished for the crime of child molestation. As mentioned before, whether it is a basic sentence or an upgraded sentence, the crime of child molestation is much lower than the crime of rape. In view of the fact that the social harmfulness and subjective viciousness of sexual assault on boys are more serious than other obscene acts, and its legal infringement is equivalent to the rape of underage girls, therefore, this provision of rape on underage girls in the criminal law urgently needs to be de-gendered and revised.
Although the crime of rape in our country also faces the need to de-gender it (anyone can be the target of rape, not just women), based on the theme of this article, this article only focuses on the legislative improvement of the rape of underage girls. According to the author's previous consistent opinion, adultery of young girls should be criminalized independently from the crime of rape. This is not only because "rape" and "adultery" have different objective aspects, but also highlights the need for special protection of young girls.Extending to the context of equal protection of boys and girls, in order to highlight the special concern and emphasis on sexual assault of children, the clause of rape of young girls should be separated from the existing crime of rape, and together with the rape of young boys, they should form the crime of child rape, that is, Anyone who has sexual relations with a child under the age of fourteen, regardless of whether the child is willing or not, constitutes a crime.
A few explanations about this crime: First, "having sexual relations" here cannot be limited to the narrow understanding of male penis inserted into the vagina, but should include oral sex, anal sex, foreign objects inserted into the anus or vagina, etc. to invade the child's body. behaviors are included. Since my country's criminal law does not explicitly stipulate the meaning of "sexual intercourse" or "having sexual relations", there are currently different views on what "sexual intercourse" or "having sexual relations" means in judicial practice: the crime of rape considers "sexual intercourse" or "having sexual relations" "Relationship" is the act of a man inserting his penis into a woman's vagina. As for the act of a man inserting his penis into a woman's anus or mouth, it is considered an obscene act; but because prostitution is considered "an unspecified exchange of money, money, or money between the opposite sex or the same sex, "The act of having sexual relations through the medium of property", so the sexual relations between same-sex people here should include oral sex, anal sex and other behaviors. Although some scholars believe that "the act of a man forcibly inserting his penis into a woman's anus or mouth has been expressly stipulated as rape in the criminal laws of many countries and regions. In our country, there is no criminal law requirement to identify such behavior as rape. The obstacles are just conceptual ones. "But since other countries and regions have expressly stipulated it through criminal law, I personally think it is best for our country to expressly stipulate it through criminal law, or at least clarify it through legislative interpretation.
Secondly, in view of the fact that the predecessor of this crime, that is, the crime of rape of a young girl, has major disputes in the subjective aspect of the perpetrator, the author maintains that since the general principles of our country’s criminal law have fault liability requirements for the subjective aspect of the crime, the person at fault is not asked. There is no room for strict liability in our country's criminal law system, but we can consider setting this crime into two forms: intentional and negligent, and allow a certain form of transfer of the burden of proof for subjective faults, that is, the prosecution presumes the perpetrator based on objective behavior After subjective fault exists, the defendant can persuade the court to accept evidence that he does not have subjective fault through his own evidence. For the intentional form, the following provisions can be made: "It is not necessary that the perpetrator knows that the victim is under the age of fourteen. If there is indirect intention to rape a child under the age of fourteen, this crime shall also be established." For the negligent form, it can be The following stipulates: "The perpetrator should have foreseen that the other party might be under the age of fourteen, but failed to foresee it due to negligence or overconfidence, so that he mistakenly regarded the other party as a person who has reached the age of fourteen and had sexual relations with him, which constitutes There is no doubt that this crime of negligence should be punished with a lighter sentence.
Thirdly, although the law presumes that children have no ability to decide their own sexual behavior, consent and non-consent should still be distinguished in the setting of sentencing circumstances. After all, the physical and mental harm to the victim will be greater in the case of non-consent.
Fourth, voluntary sexual relations between a person who is over fourteen years old but under sixteen years old and a child under fourteen years old, and the age difference between the two parties does not exceed three years, or although the age difference exceeds three years, the circumstances are minor (such as occasional voluntary sexual relations without serious consequences), can be criminalized.
In addition, with regard to the crime of sexual assault by persons with caring responsibilities newly added in the 2020 "Criminal Law Amendment (Eleven)", the purpose of this crime is to combat persons with special responsibilities who take advantage of their advantageous position to sexually assault children aged 14 to 10 Behavior of a six-year-old girl.Based on the current overall gendered phenomenon in sexual crimes in our country’s criminal law, this crime unsurprisingly uses the term “a person who has custody of a minor female who is over fourteen years old but under sixteen years old...” According to the logic of this article, the wording "sexual relations with underage women" should be changed accordingly to "a person who has custody of a minor who has reached the age of fourteen and under the age of sixteen... people having sex”.
As mentioned above, according to the definition of the age of children (under the age of 18) in the Convention, the provisions of my country’s criminal law on the age of sexual consent of fourteen years and the definition of the age of “children” as under the age of fourteen are also worthy of review and Reflect. As far as the age distribution of child sexual assault cases in my country is concerned, children between the ages of 14 and 17 still account for a considerable proportion of sexual assault cases. Therefore, we can consider appropriately raising the age of sexual consent, such as raising it from 14 to 16 years old. The crime of child rape is divided into two age groups: first, those under the age of fourteen. In principle, the defendant cannot use misunderstanding of the victim's age as a defense unless he has taken all reasonable measures to determine the age of the victim. ; The second is between the ages of fourteen and sixteen. At this time, as long as the defendant reasonably believes that the other party is over sixteen, criminal liability can be reduced if both parties have consensual sexual relations. Obviously, in the first case the defendant needs to exercise more duty of care. Correspondingly, for the crime of sexual assault by persons with caring responsibilities, the age of the sexual assault target should be adjusted accordingly, that is, from a minor who is over 14 years old but under 16 years old, to a minor who is over 16 years old. Minors under the age of 18, and further age classification of protected minors (children) according to different care responsibilities.
(2) Improving the legislation on the crime of obscenity
The obscene crimes involving child sexual abuse in my country mainly include the crime of child molestation and the crime of forced indecency. The former is aimed at committing indecent acts on children under the age of fourteen, while the latter is directed at using violence, coercion or other methods to force others to commit indecent acts. It can be seen that there is a loophole in the punishment of obscene acts committed by children between the ages of 14 and 18 without the use of coercive means. Although the "Opinions" stipulate that anyone who commits indecent assault on a minor male who has reached the age of 14 and causes minor injuries or more to the victim can be convicted and punished as intentional injury or even intentional homicide, the opinion still cannot be implemented for those who have reached the age of 14. There are comprehensive regulations on the indecent behavior of minor males who are fourteen years old (if no force is used and no consequences are more than minor injuries, they cannot be punished), and there are also omissions in the indecent behavior of minor females who have reached the age of fourteen. In addition, the opinion only focuses on the protection of male minors aged 14 to 18 years old, focusing on physical harm, but ignores psychological and spiritual harm. In fact, in practice, more minors between the ages of 14 and 18 are more likely to be molested and cause serious psychological and mental harm.
Therefore, it is necessary to include the indecent behavior of minors aged 14 to 18 using non-coercive means into the scope of the crime of child molestation, that is, to expand the age of children in the "crime of child molestation" in our country's criminal law to include For minors between the ages of 14 and 18, specifically, the expression "Anyone who molests a child shall be punished..." in the article can be modified to "Anyone who molests a child under the age of 18 shall be punished...". In this way, the crime of forced indecency naturally only applies to adults over the age of 18. In addition, like the above-mentioned crime of child molestation, the crime of child molestation should also be completely independent in the setting of crime and punishment, so that the crime of rape, child rape, forced indecency, child molestation, etc. not only cover ordinary sexual crimes but also reflect the impact on all sexual crimes. Regulatory system for special protection of children.
Since the establishment of this crime does not require violation of the victim's will, aggravated punishment for forced indecent behavior against the victim's will can be justified regardless of the degree of harm to the victim or the defendant's subjective malignancy. Therefore, , the act of forcibly molesting children through violence, coercion or other methods should be regarded as an upgraded sentencing circumstance for this crime, and the last item of "obscene means" of the original "whoever commits one of the following circumstances shall be sentenced to fixed-term imprisonment of more than five years" can be considered Violent or other vile circumstances" is broken down into the following two items: "Forcible obscenity by violence, coercion or other methods" and "Other vile circumstances". At the same time, after the protection object of this crime is upgraded from children under the age of fourteen to children under the age of eighteen, in order to reflect the key protection of children under the age of fourteen, molestation of children under the age of fourteen should also be included in this crime. It is stipulated as one of the escalating circumstances of sin.
(3) Improve the legislation on crimes such as organizing, forcing and luring underage girls into prostitution
Paragraph 1 of Article 358 of my country’s Criminal Law stipulates the crime of organizing prostitution and forced prostitution, paragraph 4 stipulates the crime of assisting in organizing prostitution, and paragraph 2 of It stipulates that "anyone who organizes or forces minors into prostitution shall be severely punished in accordance with the provisions of the preceding paragraph." Although the neutral term "minor" does not pose a problem in terms of gender, it is used "in accordance with the provisions of the preceding paragraph" "Severe punishment", so the crime is still called the crime of organizing prostitution and the crime of forced prostitution, while the crime of assisting in organizing prostitution completely includes the act of assisting in organizing the prostitution of minors, and is not mentioned separately at all. As emphasized in many places above, children's sexual health rights have independent criminal law protection value, and this independent protection value is not only reflected in penalties, but also in crimes. Accordingly, in the future, my country's criminal law should separately establish the "crime of organizing minors for prostitution" and "the crime of forcing minors into prostitution", and at the same time add the "crime of assisting in organizing minors for prostitution", and set up separate, possibly even higher than the crime of organizing prostitution. the crime of forced prostitution and the crime of assisting in organizing prostitution.
Article 359 of the Criminal Law stipulates the crime of luring, harboring, and introducing prostitution and the crime of luring underage girls into prostitution. Paragraph 1 of the crime of luring, harboring, and introducing prostitution is stated as "luring, harboring, and introducing others into prostitution," which reflects gender neutrality and explains Prostitutes can be either women or men, but Paragraph 2, "The crime of luring underage girls into prostitution" has a clear gendered tendency: "Whoever induces underage girls into prostitution under the age of fourteen shall be sentenced to fixed-term imprisonment of not less than five years and shall also be punished "This brings about a contradiction: those who seduce young girls under the age of fourteen into prostitution shall be sentenced to more than five years in prison and shall also be fined; while those who seduce boys under the age of fourteen into prostitution can only be punished as mentioned above. The crime of inducing prostitution is generally punished by a fixed-term imprisonment of not more than five years, criminal detention or surveillance, and a fine. Only if the circumstances are serious, the person will be sentenced to a fixed-term imprisonment of not less than five years and a fine. This contradiction cannot be justified in terms of criminal law doctrine. Therefore, the crime of luring young girls into prostitution should also be de-gendered, that is, the "young girl" in the description of the crime should be changed to "child". But this is not enough, because compared with the previous crimes of luring, housing, and introducing prostitution, the existing crime of luring young girls into prostitution only covers the behavior of "seduce" young girls. In fact, the behavior of housing and introducing children into prostitution also has independent Introducing the criminal law regulatory value of adult prostitution. Therefore, in addition to changing the "young girl" in the original crime of luring young girls into prostitution to "children", the scope of this crime should also be expanded and adjusted to seduce, accommodate, and introduce children into prostitution. And modeled on the two levels of statutory penalties for the crime of luring, harboring, and introducing prostitution (currently there is only one level of statutory penalty for the crime of luring young girls into prostitution), setting higher penalties respectively.
A related question is that according to Article 34 of the Convention, "the use of children for obscene performances and as obscene themes" also falls under the category of "pornographic exploitation and sexual assault".Accordingly, the crimes related to "using children to perform obscene performances and serve as obscene materials" in our country's criminal law should also be paid attention to and improved: First, the crime of disseminating obscene materials in Article 364 that targets minors' pornography It is independent and has a special crime of "spreading pornographic products of minors", and sets a higher penalty than the general crime of spreading pornographic materials; secondly, after the "crime of organizing the broadcast of pornographic audio and video products" in the article, there is a special crime of "organizing the broadcast of pornographic products of minors". Related to the crime of obscene audio and video products", the penalty is set to be higher than that of the general crime of organizing obscene audio and video products; thirdly, after Article 365 of the "crime of organizing obscene performances", there is a special crime of "organizing obscene performances of minors", with higher penalties. The penalty for organizing an obscene performance will be released.
It should also be pointed out that "prostitution" in the criminal law provisions is also suspected of "stigmatization" and needs to be changed to more neutral terms such as "engaging in sex trade". The "Criminal Law Amendment (9)" abolishes the crime of prostitution with underage girls, and incorporates the crime of prostitution with underage girls, which was originally a special constituent element, into paragraph 2 of Article 236 of the Criminal Law, and uniformly regulates the crime of rape according to the general constituent elements (rape with underage girls) , which not only denies the validity of sexual consent of young girls in legislation and returns it to the logic of criminalization of rape of young girls, but also is a good example of civilizing the language of our country's criminal law legislation and removing terms such as "whoring" that have a stigmatizing effect on young girls. . According to this idea, all legal provisions in the criminal law that contain the word "prostitution" should replace "prostitution" with neutral expressions such as "engaging in sex trade."
(4) Improve the legislation on trafficking in women and children and related crimes
In addition to the above crimes, there are also some crimes in the criminal law that directly or indirectly involve the protection of boys’ sexual health rights, such as the crime of trafficking in women and children in Article 240, The crime of procuring abducted women and children in Article 241, the crime of gathering a crowd to obstruct the rescue of abducted women and children in Paragraph 2 of Article 242, the crime of not rescuing abducted or kidnapped women and children in Paragraph 1 of Article 416 and the crime of Paragraph 2 of the crime of obstructing the rescue of abducted women or children. From the perspective of protecting minors, all minor females under the age of 18 can be included in the protection of the above crimes, but boys between the ages of 14 and 18 are excluded. Compared with the Convention which defines a child as anyone under the age of 18, my country's criminal law limits the age of children in the crime of abduction and trafficking of women and children to under the age of 14, resulting in the crime of abduction and trafficking of children between the ages of 14 and 10. The behavior of minors under the age of eight cannot be punished. In order to change this situation, the age of "children" in these crimes should be raised to 18 years old, and based on the previous thinking, the crimes of child trafficking, the crime of buying abducted children, the crime of gathering a crowd to hinder the rescue of a bought child, and the crime of not The crime of rescuing abducted or kidnapped children and the crime of obstructing the rescue of abducted or kidnapped children are separately punishable and have corresponding penalties. At the same time, more efforts should be made to protect children from the perspective of preventing sexual assault. For example, Article 240 of the Criminal Law of the People's Republic of China on the crime of abducting and trafficking in women and children stipulates that the third situation of "particularly serious circumstances" is "raping a trafficked woman", The fourth situation, "Luring or forcing trafficked women into prostitution or selling trafficked women to others to force them into prostitution," does not take into account children and should be added; for another example, Article 241 buys trafficked women Paragraph 2 of the crime against women and children, "Whoever bribes a trafficked woman and forcibly has sexual relations with her shall be convicted and punished in accordance with the provisions of Article 236 of this Law" should also include the circumstances of child rape.
Conclusion
General Secretary Xi Jinping pointed out that when promulgating laws, formulating policies, formulating plans, and deploying work, we must "adhere to the basic national policy of gender equality." This article demonstrates that my country's criminal law's differential treatment of sexual abuse of male and female children does not fall within the scope of corrective justice. On the contrary, it is incompatible with the basic national policy of gender equality at a deep level.This article also points out that although the de-gendered approach of criminal law also applies to sexual assault of adults, the legal interest violated by sexual assault of adults is sexual autonomy, while the legal interest violated by sexual assault of minors (children) is Based on the differences between the two legal interests regarding the sexual health rights of minors, there is a need for special research on the issue of child sexual abuse. In the legislation of foreign countries and our country, the criminal law regulation of sexual crimes has a somewhat different approach between adults and minors: on the one hand, the regulation of sexual crimes for adults continues to be lenient and even for some Behaviors should be decriminalized. For example, various countries and regions have decriminalized adultery in their criminal laws or in fact. my country's 1997 Criminal Law also decomposed and partially decriminalized the felony "hooligan crime" in the 1979 Criminal Law; in addition, On the one hand, as this article shows, almost all legal jurisdictions have strengthened criminal laws and regulations for the crime of sexual assault of minors, showing a more rigorous and severe criminal policy trend. This also shows that de-gendered research on the criminal law regulations on sexual assault of minors (children) has its independent value.
Although there is still room for improvement in the criminal law regulations for sexually assaulting girls, and the improvement of criminal law regulations for sexually assaulting boys is not only reflected in the equal regulation of sexual assaults on girls, but also to seize the opportunity between sexually assaulting boys and The "big nose" of equal regulation of sexual abuse of girls can better promote the criminal law protection of children's sexual health rights. For example, from the perspective of improving the criminal law provisions, it is necessary for our country to clearly establish the principle of severe punishment for rape, adultery or other sexual assaults on minors under the age of 18 in the future. However, if the relevant crimes are not included in the If the "young girl" is changed to "child", it will be impossible to promote the equal protection of male and female children in one piece.
At the end of writing this article, the crime of abducting and buying women and children is becoming a topic of concern to the whole society due to the impact of individual cases. The reason why there are so many tragedies and tragedies in the world caused by the trafficking and bribery of women and children is that the serious gender imbalance between men and women caused by the long-term "son preference" mentality in the past family planning work is also an important social reason. On the surface, "preferring boys over girls" seems to be inconsistent with the strengthening of criminal laws and regulations on sexual assault of boys advocated in this article. In fact, it is not the case. Both are manifestations of gender inequality and will lead to the opposite result. Fundamentally, Talking about it is not conducive to the true implementation of our country's basic national policy of gender equality. Protecting children means protecting the future of our nation. As an important participant in social governance and cultural shaping, criminal law should systematically and equally protect the sexual health rights of boys and girls. These ideas and concepts, in the current codification era led by the Civil Code, the criminal law academic community is actively discussing the introduction of a new criminal code, and criminal law legislation is once again highly valued. It should be said that it not only has theoretical significance, but also has practical significance. .
