How the Ninth Amendment affects child protection in China

At the end of August, China’s top legislature passed the ninth revision of the Penal Code, making critical and fundamental reverses that we applaud and see as opening the door towards greater protection of children.

In any society, the Penal Code should be the last line of defence to protect personal rights, fundamental moral values and social order. Among all crimes, those committed against children are often the most intolerable. How they are defined and punished is pivotal to a child protection system. This is why UNICEF China has been closely following the legislative process to revise the country’s Penal Code.

Unlike in many countries, in China there isn’t an ‘umbrella’ category of child sexual abuse in the Penal Code or a stand-alone child sexual abuse law incorporating a list of offences in which an adult engages in sexual activity with a minor or exploits a minor for the purpose of sexual gratification, including but not limited to sexual conduct, child pornography and child grooming. Instead, the Penal Code and its judicial interpretation documents have loosely categorized rape, indecent assault against a child and a series of crimes involving ‘child prostitution’ as the child sexual abuse offences.

In this ninth amendment, the previous offence in Article 237 of “indecent assault and insult against a woman, and indecent assault against a child” has been expanded to “indecent assault against others, insult against a woman, and indecent assault against a child”. Previously, this offence only covered women and children younger than 14. With this revision, indecent assault against boys aged 14–18 is now considered a crime – which adds a needed layer of protection for older boys.

The definition of rape is very narrow in China—only referring to a male having non-consensual sexual intercourse with a female by violence, coercion or any other means, which essentially protects women’s right to sexual consent. The Penal Code puts the minimum age of sexual consent at 14 years. As a result, having sex with a girl younger than 14 is considered as rape no matter if there is consent from the victim. However, there needs to be some indicators to help determine that an offender is aware of the girl’s age, unless she is younger than 12.

Many children’s rights advocates have criticized the Penal Code for making (since 1997) the crime of “sex with an underage prostitute” in Article 360 an offence separate from “rape (of an underage girl)” in Article 236. Until the recent revise, the offence in Article 360 blurred the nature of a heinous act—which is sexual exploitation by an adult against a child—and labelled the girl victim as a “prostitute”, causing secondary victimization. Additionally, there are sentencing differences between the two articles, with rape usually carrying harsher punishment.

So the long-awaited repeal of the crime of “sex with an underage prostitute” in this latest Penal Code revision is most welcomed by the children’s rights community and China’s general public.

Despite that major landmark, we think the most important change for child protection in this latest revision occurs in Article 260 on the crime of abuse. Previously, this offence was “to be handled only upon complaint by the victim to the court”, which was a huge obstacle for victims seeking redress. The revised provision adds: “Unless the victim is not capable of or unable to bring a complaint due to coercion or intimidation”. With such an amendment, it is now possible for perpetrators of abuse against children and other vulnerable victims to be prosecuted even without the victim filing a complaint.

The third applauded amendment in relation to child protection is the revision of Article 241 on human trafficking. Previously, the Penal Code stipulated that “whoever, having bought a woman or a child who is abducted and trafficked, does not obstruct the woman from returning to her original place of residence according to her will, or does not maltreat the child nor obstruct his or her rescue, may be exempted from criminal responsibility”. The “exemption from criminal responsibility” of that provision has been replaced by “imposition of a lenient sentence”. Thus, ensuring the criminal responsibility of ‘buyers’ of children under any circumstance may deter more potential buyers from engaging in human trafficking.

While we highly commend the ninth revision of the Penal Code for its commitment to promote child protection, we also continue to see room in the penal system to further enhance the protection of children in China.

The most urgent amendment still needed relates to gender-based discrimination when it comes to child sexual abuse. As pointed out, the Penal Code only recognizes that ‘males’ commit rape and that a male (regardless of his age) cannot be considered the object of rape. Thus, boys can only be protected from “indecent assault”, which carries much lighter sentencing than rape. This gender-based discrimination is not in accordance with general principles and specifically article 34 of the Convention on the Rights of the Child.

Children are especially vulnerable to sexual offences and need special protection within the legal system. But currently, many forms of child sexual abuse are not explicitly prohibited by the Chinese legal system, which should be in accordance with the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. To further increase the protection of children from sexual abuse, the National People’s Congress should consider the addition of a special chapter within the Penal Code on child sexual abuse offences or, more broadly, the crimes against children, or a stand-alone child sexual abuse law.

As the old Chinese saying goes: The law cannot implement itself. With the big step that the ninth amendment has taken, we look forward to increased joint efforts from all sectors to further advance child protection in China—with UNICEF China a proud contributor to the ground-breaking change to come.

Su Wenying is a child protection officer with UNICEF China. Trained as a lawyer, she has many years working in child protection and the law in China.

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