Potential Reforms for China

1
Potential Reforms for Chinas Rape Law A
Comparative Approach
2
Thesis

• Two objectives of the rape law
• Fairness, justice and predictability
• Protection of individual sexual autonomy
• Chinas rape law furthered those two objectives
  by
• Defining the criminal act broadly
• Focusing on the act of the sexual offender
• Chinas rape law failed those two objectives
  because of
• Its vague sentencing scheme
• Its acknowledgement of those culture values that
  suppress sexual autonomy
• Its denial of equal protection to men

3
Agenda

• What is the Status of Chinas Rape Law?
• What are the Good Aspects?
• What are the Bad Aspects?
• What are the Recommendations?
• Conclusion

4
What is the Status of Chinas Rape Law?

• Article 236 in the 1997 Amended Criminal Code
• Explanations and Legal Opinions by Supreme
  Peoples Court
• 1984 Explanation

5
What are the Good Aspects?

• A broad definition of the act force through
  violence, coercion or other means
• Focus on the acts of the offender rather than the
  reaction of the victim
• The victims failure to resist does not
  constitute consent.
• The victims sexual history should not be taken
  into consideration.

6
What are the Bad Aspects?

• Vague sentencing guideline and severe punishment
• From 3-year to life prison and capital punishment
• Reasons
• Case illustrations
• Implication
• 1983 Crackdown
• Judicial discretion

7
What are the Bad Aspects?

• Acknowledgment of Certain Custom and Practices
• Voluntary sexual relationship after the rape as
  consent
• Sincere relationship as a mitigating/legitimizing
  factor
• Case illustrations
• Reasons of those exception and implication
• Custom and practice
• Influence of Confucius culture
• Failure to protect womens sexual autonomy
• Issue of date rape

8
What are the Bad Aspects?

• Gender Inequality
• Failure to provide equal protection to me

9
What are the Recommendations?

• Sentencing
• Specify and define factors that would affect
  sentencing
• Break down punishment further
• Increase transparency by providing sentencing
  worksheet

10
What are the Recommendations?

• Culture
• Abolish those rules that reinforce the
  suppressing culture values
• Promote gender equality in countryside through
  providing women more education and work
  opportunities
• Promote the use of emergency contraceptives

11
What are the Recommendations?

• Equal Protection
• Use gender-neutral language
• Redefine rape

12
Conclusion

• The Successes and Failures of Chinas Rape Law
• Introduction of Western notion of checks and
  balance
• Law and public policies as facilitators of the
  conflicts between human rights and culture

13
Thank you!

• Q A