Abstract
In recent years, due to a number of notorious sex offense cases against minors, a new punitive public attitude emerged in China and pressed for harsher crackdown and punishment against sex offenders. In particular, an “engagement in prostitution with a minor” law (Article 360 of the Criminal Law) was targeted as “unjust” based on the belief that offenders of such crimes often received “lenient” punishment, and many called for its abolition. In this study, based on 440 adjudicated sex offense cases, we examine potential differences across three sex offenses (including rape, child molestation, and engagement in prostitution with a minor) in the demographics of defendants and victims, offending characteristics, and trials and sentences of convicted offenders. Our empirical inquiry pointed to the unique nature of engagement in prostitution with a minor. Offenders of such crimes seemingly carried a different profile, compared with offenders of the other two sex crimes. Moreover, our data casted some doubt on the “lenient” punishment received by offenders of engagement in prostitution with a minor. Policy implications were also drawn based on our findings.
Introduction
Sex crimes and victimizations of sex crimes have been examined by scholars for a long time (e.g., Flowers, 2001; Russell, 1984; Terry, 2006; West, 1983). In recent decades, it is sex crimes against minors that generated much of public outcry, and studies on sexual predators grew significantly (e.g., Bunting, 2008; Dobbert, 2004; Hamilton, 2008; Miller, 2003; Salter, 2003; Seto, 2004; Silverman & Wilson, 2002; Simon, 1998; Soothill, 2010; Williams & Hudson, 2013; Winslade, Stone, Smith-Bell, & Webb, 1998). Facing the “crisis,” new laws aiming at better protection of children such as the Wetterling Act 1 and the Adam Walsh Child Protection and Safety Act 2 were adopted to mandate sex offenders’ registration and notification at local and community levels. Nevertheless, the effectiveness of such laws was questioned (e.g., Barnes, Dukes, Tewksbury, & De Troye, 2009; Caputo & Brodsky, 2004; Chajewski & Mercado, 2009; Letourneau et al., 2010; Levenson & Cotter, 2005; Redlich, 2001; Tekle-Johnson, 2009), and scholars pointed out potential collateral damages of such laws to released sex offenders and their family members such as social stigmatization, loss of relationships, and employment and housing challenges (Farkas & Miller, 2007; Levenson & Tewksbury, 2009; Robbers, 2009; Tewksbury, 2005, 2007; Tewksbury & Lees, 2006; Tewksbury & Levenson, 2009; Tewksbury & Mustaine, 2007).
While sex crimes are definitely widespread and by no means a Western phenomenon (e.g., Finkelhor, 1994), studies published in English on sex crimes in non-Western nations appear to be rather rare (e.g., J. Chen, Dunne, & Han, 2004, 2006; Ho & Kwok, 1991; Shin & Lee, 2005; Tang, 2002). In this study, we turn to China and study three sex crimes against minors (wei chengnian ren 3 in Chinese), namely, rape (of minors; qiangjian), child molestation (weixie er’tong), and engagement in prostitution with a minor 4 (piaosu younü, EPWM). In 1997, the revised Criminal Law of China for the first time officially stipulated these three categories of sex crimes against minors and singled out EPWM cases in which male clients whore with female underage prostitutes. It is the EPWM law that generated the most controversy and debate in recent years, and many openly promoted abolition of the law. Based on 440 adjudicated sex offense cases, we explore potential differences across these three sex offenses in the demographics of defendants and victims, offending characteristics, and trials and sentences of convicted offenders. In the following of this article, we first examine the emerging situation of sex crimes against minors in China and then detail the laws on three sex crimes. Next, we review past studies and scholarly debates in China, particularly regarding the controversial EPWM law. Then we discuss data utilized in this study and present our data analyses. Last, based on our findings, we draw some policy implications with regard to China’s sex crimes and laws and acknowledge limitations of our study.
Emerging Sex Crimes Against Minors in China
In 2007 and 2008, an EPWM case in Xishui county in Guizhou province, known as the infamous “Guizhou Xishui” case, shocked the conscience of the nation. According to the court record, in October 2007, defendant Yuan Ronghui (female) started organizing prostitution at her place along with the help of two minors Liu (a 14-year-old female) and Yuan (a 15-year-old male). From then to June 2008, Liu and Yuan had coerced 10 elementary and middle-school students (three of whom were under 14 years of age) into prostitution, and Yuan, on the contrary, had solicited potential clients. From April to July 2008, defendants Feng Zhiyang, Chen Cun, Mu Mingzhong, Li Shouming, Huang Yongliang, Chen Mengran, and Feng Yong all visited Yuan’s place as clients. In October 2008, local police cracked the case. Yuan and the seven clients above were arrested, and the two minors Liu and Yuan were dealt with by the juvenile system separately. Yuan was officially charged with forcing others into prostitution, and the seven clients were all charged with EPWM. In July 2009, the Intermediate People’s Court in Zunyi city found all defendants guilty: Yuan was sentenced to life imprisonment; Feng, Chen (Cun), and Mu were sentenced to 14, 12, and 10 years of imprisonment, respectively; and the other four clients were all sentenced to 7 years of imprisonment. The Court noticed that Feng, Chen (Cun), Li, Huang, and Chen (Mengran) were all government employees (in fact government officials, except Feng) and took it into consideration in its ruling. In appeals, Chen (Cun), Li, Huang, and Chen (Mengran) argued that they did not know the actual age of the minor victims, but their arguments were all rejected by the Guizhou provincial High Court (i.e., the appellate court; see E. Liu, 2010; Xu, 2010 for more information). This case drew a new round of public outcry in China against child sex offenders, especially governmental officials, given the growing concern about corruption (e.g., Wedeman, 2010).
For a long time, child sexual abuse as a topic was a social taboo within Chinese communities (Ho & Kwok, 1991). Nevertheless, cases such as the Xishui case exposed severity of such crimes and growing concerns by the public and the Chinese government. Unfortunately, national statistics on the prevalence of such sex crimes are often lacking due to a number of reasons based on the reality in China. First, as rape cases often involve sensitive private information, the case disclosure/publication rate by the judiciary is very low. It is more so with regard to sexual offenses against minors, and it is well acknowledged that such data are “dark figures” in China. Second, the practice of displaying and publicizing judicial judgments began only in recent years. For instance, the Supreme People’s Court (SPC) mentioned for the first time its plan to “publicize judicial judgments” in 2004 and proposed to publicize judicial judgments online in 2009. As a result, data in older/previous years are largely missing, and even published data in recent years are rather selective in nature. Third, although the (annual) Law Yearbook of China reports the total number of adult rape cases filed by the police annually (but there is still question with regard to reliability and validity of such data), there is no systemic national data on sexual offenses against minors. Based on a recent newspaper report, from 2010 to 2013, the Chinese procuratorate at all levels brought up charges against 8,069 defendants in 7,963 child molestation cases; in comparison, merely 255 defendants were charged in 150 EPWM cases (J. Sun, 2014). Although these reported numbers appear rather small given China’s estimated total of 300 million children and juveniles, underreporting could be a serious issue when the Chinese victims are very reluctant to disclose their victimization (Tang, 2002). In March 2014, Zhou Feng, a senior official of the SPC, disclosed some judiciary data when he spoke about sex crimes against minors on behalf of the SPC. From 2008 to 2013, Chinese courts at all levels adjudicated a total of 12,247 child molestation cases, and such numbers increased from 1,381 in 2008 to 2,300 in 2013. Zhou mentioned that no separate data are available on the numbers of rape (of minors) cases and cases of forcing minors into prostitution but estimated about 40 such cases (adjudicated by the courts) each year nationwide.
Independent scholarly research that estimates prevalence of such sex crimes is very rare. Chen and his research associates (J. Chen, Dunne, & Han, 2004, 2006) managed to conduct a series of anonymous, self-administered questionnaires among school students in Hubei, Henan, Hebei, and Beijing in the early 2000s. These studies showed that the self-reported rates of students who had experienced child sexual abuse ranged from 10% to the mid-20%, prevalence of any unwanted sexual experience was higher among females than males, and prevalence of non-physical contact abuse (e.g., offenders’ exhibition of their genitals to the victim and masturbation in front of the victim) was higher than physical contact abuse. Although under the influence of very different cultures, the psychological and behavioral profile of abused young Chinese victims is similar to that found in other cultures. A few studies paid special attention to the viability of child sexual abuse prevention programs in Chinese society, testing in particular the perception of and knowledge about such programs by parents (J. Chen, 2007; J. Chen & Chen, 2005; Tang & Yan, 2004). These studies showed that parents often lacked basic knowledge about characteristics of perpetrators and relied on common senses (or even myths) in their communication with children. Although parents generally supported preventive and educational programs, a significant proportion of them expressed some concerns about such programs (e.g., children would have learned “too much about sex” at an early age).
Laws on Sex Offenses Against Minors
China passed its first Criminal Code in 1979, 5 in which Article 139 stipulated that “whoever rapes a woman by violence, coercion, or any other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.” To further protect minors, Article 139 stipulated that having sexual intercourse with a minor below 14 years of age would be deemed as committing rape and subject to heavier punishment. In addition, in case that the crime was committed with serious consequences or caused serious injury or death, the offender would be potentially subject to capital punishment.
In 1986, the Standing Committee of the National People’s Congress passed the Regulations on Administrative Penalties for Public Security, 6 in which Article 30 specifically regulated EPWM. Based on the Regulations, a client who has sex with a child prostitute under the age of 14 shall be deemed as committing rape under Article 139 of the Criminal Law. This regulation (revised and reaffirmed in 1994) was echoed in 1991 by another Decision on Prohibiting Prostitution 7 adopted by the Standing Committee.
A major change, however, came in 1997 when the Criminal Law 8 was substantially revised. For the first time, the 1997 distinguished three categories of sex offenses. First, Article 236 kept the 1979 rape stipulations intact. For instance, having sexual intercourse with a minor under the age of 14 shall still be deemed as committing rape and subject to heavier punishment, Article 236 (2). In addition, the new law detailed several aggravating circumstances under which the offender would be potentially subject to enhanced punishment including capital punishment.
Second, Article 237 of the new law adopted regulations on sexual molestation to cover non-rape sex offenses against women. Again, it is stipulated that an offender who commits sexual molestation against a child (with no ages specified) shall be subject to heavier punishment.
The most controversial addition in the new law, however, is Article 360 on EPWM. Article 360 stipulates that a client “whoring with a girl under the age of 14 shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined.” This new addition singles out EPWM cases in which male clients would be potentially subject to lesser punishment compared with either rape or molestation.
As the new law was put into practice, questions arose with regard to various complications, among which the most noticeable included age requirement and offender’s subjective knowledge about victim’s age. To clarify such issues, the SPC issued an official interpretation in 2000. 9 According to this interpretation, if an offender who is older than 14 but younger than 16 years of age commits a crime to have sex with a minor, Article 236 (2) (on rape of a minor) shall be applied. Furthermore, in case that an offender commits rape against both adults and minors, Article 236 (2) shall be applied. However, if the incident is minor with no serious consequences, it should not be deemed an offense, per instruction of the interpretation.
On the issue of offender’s subjective knowledge about victim’s age, the Supreme People’s Procuratorate (SPP) issued an interpretation in 2001 10 and instructed that “if an offender knew or might have known that the prostitute is younger than 14 years of age, Article 236 (2) shall be applied.” In 2003, a SPC’s official reply 11 to a lower court’s inquiry echoed the SPP’s 2001 interpretation and further instructed that “if the offender knew that the girl was under the age of 14, Article 236 (2) shall be applied, no matter whether the girl was voluntary.” Nevertheless, the reply also clarified its 2000 interpretation and instructed that “if the offender did not know that the girl was under the age of 14, the intercourse was consensual, and the circumstances were minor causing no serious consequences, it shall not be deemed a crime.”
With increasing pressure from the public and continued questioning about the legitimacy and rationality of the EPWM law (Article 360), the tide has been changed in the recent years. A recent effort to crack down on sexual offenses against minors came in 2013 with a joint Decision on Punishing Criminals Who Commit Sex Offenses Against Minors 12 by the SPC, SPP, the Ministry of Public Security, and the Ministry of Justice. The new Decision adopted a number of tougher measures against offenders (see Section 3, Articles 19-27, in particular). For instance, on the issue of offender’s subjective knowledge about victim’s age, Article 19 stipulated that “if the offender knew or should have known that the prostitute is younger than 14 years of age, the offender should be deemed as knowing the age of the minor victim.” Furthermore, “for sexual offenses against a minor younger than 12 years of age, the offender should be deemed as knowing the age of the minor victim,” and “for a victim who is older than 12 but younger than 14 years of age, if it is reasonable to judge the minor’s age based on one’s physical condition, demeanor, clothing, and daily activities, the offender should be deemed as knowing the age of the minor victim.”
The new Decision specifically targeted offenders who carry a special obligation/responsibility (e.g., family member, teacher, government employee) to the minor victim. For instance, Article 21 stipulates that “if a person who carries a special obligation/responsibility to a minor has sexual intercourse with the minor, Article 236 (2) shall be applied.” “If a person carries a special obligation/responsibility to a minor who is older than 14 years of age, takes advantage of his position (or disadvantage of the victim) and forces the minor to have sex, Article 236 (2) shall be applied.”
With regard to the most controversial Article 360 (EPWM), the new Decision is trying to limit its effect/application in practice. For instance, Article 20 stipulates that “if an offender coaxes a minor to have sex via pecuniary rewards or knows or should have known that the minor is forced for prostitution, Article 360 (2) shall be applied.” Nevertheless, as these four agencies have no power to overturn the Criminal Law, the Decision leaves open the possibility of a legitimate argument of having consensual sex with a minor. For instance, Article 27 stipulates that “if a person has sex occasionally with a minor who is older than 14 but younger than 16 years of age, and the incident is minor with no serious consequences, it should not be deemed an offense.”
In sum, the 1997 Criminal Law categorizes sex offenses against minors into three groups, rape, molestation, or EPWM. Although the 1997 Criminal Law has already gone through eight amendments (with the latest one in 2011), it is still the standing criminal code of the nation. Among the three sex offenses, the most controversial one is the EPWM law.
Debate on EPWM Law
From the very beginning, Article 360 of the 1997 Criminal Law on EPWM has been subject to intense scholarly debate (e.g., X. Sun, 2013). In recent years, notorious cases such as the Xishui case and new “get-tough” policies such as the joint Decision issued by four governmental branches in 2013 further questioned the legitimacy of the EPWM law and fueled open debate on the potential abolition of the law (e.g., X. Li, 2013).
Amid the heated debate, the key issue is the legitimacy and rationality of the law; in other words, is it necessary to single out EPWM from other sexual offenses (in particular rape)? Among supporter of the EPWM law, Niu and Wei (2009) pointed out that EPWM differs significantly from rape in criminal behavior (i.e., actus reus, mens rea) and in legislative intent. For criminal behavior, EPWM was consensual, not forced, sex; it covers not only sexual penetration but also molestation and more importantly involves financial transactions. In terms of legislative intent, while rape law protects victims’ physical safety (violation against their free will), EPWM aims to protect minor victims’ future development (both physically and mentally). Given these substantial differences, Niu and Wei defended the legitimacy of the law (for similar arguments, see K. An, 2012 and W. Li & Li, 2011).
Borrowing Western experiences and models on sexual aggressiveness and sexual taboo, W. Zheng (2014) also emphasized on fundamental differences between EPWM and rape. As Zheng argued, while rape typifies the “offender–victim” model, EPWM is based on a pecuniary transaction model in nature. The legislation on EPWM to some extent targets the prostitute in addition to the client, which provides legitimacy of such legislation.
Different from open supporters of the EPWM law, a group of scholars argued that EPWM and rape are concurrent 13 (jinghe) in nature. For instance, Zhang (2009) pointed out that both crimes are an example of “imaginative concurrence” (xiangxiang jinghe). Zhang argued that as minors under the age of 14 cannot give their consent by law, all criminal elements of the EPWM law are concurrent with that of rape. In other words, EPWM offenders could potentially face charges of rape as well. Nevertheless, the legislature singled out EPWM to crack down on such offenses, and this is aimed to protect both the minor victims and social order of the society. As a result, Zhang favored giving priority to offenses with heavier punishment in practice: In other words, the judiciary shall choose the offense carrying the heavier punishment between rape and EPWM when concurrence occurs. Tong (2009) echoed Zhang’s concurrence argument but would give the priority to the “special clause” (i.e., EPWM law) over the “general clause” (rape law). Nevertheless, Tong left open the possibility that judges may consider the heavier punishment of the two offenses in judicial practice.
Dissatisfied with Zhang’s concurrent arguments, Che (2010) raised a new theory. According to Che, the key component that distinguishes EPWM from rape is “valid consent” from the minor (i.e., consensual sex). Consensual sex is a necessary element for EPWM cases, and lack of it is a necessary element for rape cases. As a result, these two sex offenses are not compatible but mutually exclusive (huchi). The key for consensual sex is the minor prostitute’s capability to consent. The adoption of the EPWM law, to Che, indicates the legislative intent that certain minors possess such consent capability, and therefore, they would be able to give “valid consent.”
Lao (2011) refuted Che’s argument of “EPWM and rape as two mutually exclusive offenses” and raised serious concerns on how to ascertain one’s “valid consent” in practice. Moreover, Lao argued that the emphasis on “valid consent” places the fault (at least partially) on the victims (i.e., minor prostitutes) instead of the offenders. Instead, Lao proposed a theory of “article/clause concurrence” (fatiao jinghe) and argued that Article 236 (2) on rape and Article 360 (2) on EPWM are concurrent in nature. Furthermore, Lao suggested that sex offenses against minors shall be dealt with in three different scenarios. First, when the offender committed a sex offense against a minor, which did not qualify for EPWM (under Article 360) nor carried any aggravating factors—listed under Article 236 (3)—the offender shall be convicted of rape under Article 236 and subject to a fixed term of imprisonment between 3 and 10 years. Second, when the offender had sex with a minor prostitute (regardless if the victim consented) and carried no aggravating factors—listed under Article 236 (3)—the offender shall be convicted of EPWM and sentenced to imprisonment over 5 years. Third, when the offender had sex with a minor (regardless of consent) and carried aggravating factors, the offender shall be convicted of rape and punished accordingly with heavier sentences (over 10 years, life imprisonment or death sentence).
M. Liu (2012) tried to clarify the ambiguity of the two concurrence theories above. According to Liu, “article/clause concurrence” occurs when a crime (in this case, sexual intercourse) triggers multiple offenses (e.g., EPWM, rape), but one of the offenses completely covers the crime factually. In such a case, it suffices to apply one offense only. In contrast, if a crime triggers multiple offenses, but none of these offenses completely cover the crime factually, multiple offense charges (and heavier punishment) shall be applied and it is a typical case of “imaginative concurrence.” Liu believed that EPWM cases fall into the first concurrence category and therefore the priority be given to the special clause (i.e., EPWM) over the general clause (i.e., rape).
In contrast, abolition supporters discredit the uniqueness of EPWM as an offense (compared with rape). First, they argue that there should not be fundamental differences in the legislative intent. Whether it be rape, molestation, or EPWM, the criminal law aims to protect minor victims from being harmed physically and mentally. In addition, the criminal law should promote a healthy social condition for the development of the minors (especially toward protection of their purity) and continue building moral and ethical standards (e.g., Lin & Zhu, 2014; Song, 2013). Second, in terms of criminal behavior, both rape and EPWM end up with invasion of the minor’s rights in the form of sexual penetration. The status of the victim (a prostitute or not) should not be the deciding factor in the case of sexual offenses against minors (Ye, 2009), and pecuniary transactions alone (as a criminal element) is not sufficient to make EPWM fundamentally unique (see, for example, X. Liu, 2005). Finally, abolition supporters strongly questioned EPWM sentencing: On one hand, the minimum sentence of EPWM (5-year imprisonment) is higher than that of rape (3-year imprisonment); on the other hand, EPWM carried no aggravating factors to enhance the punishment (with a maximum of 15-year imprisonment in practice), while rape would potentially face the death penalty. Such broad discretion, illogical in the eyes of abolition supporters, is problematic in lawmaking (e.g., A. An, 2002; X. Sun, 2013). Moreover, they pointed out that the EPWM law fails to target corrupt government officials or the wealthy criminals who visit brothels and whore minor prostitutes (therefore potentially subject to punishment of EPWM only but not rape; for example, X. Han, 2013), and singling out female underage prostitutes in EPWM cases (based on their prostitute status) without providing them with full legal protection is against some principles of the United Nations Convention on the Rights of the Child such as that of non-discrimination and “best interests of the child” (S. Zheng, 2014).
In recent years, the abolitionists seemingly gained more public support on this issue. For instance, in July 2012, the legal channel of the People’s Net (renmin wang; http://www.people.com.cn) hosted a debate on the abolition of the EPWM law. Among all participants who cast their votes after the debate, 78 supported retention but 339 supported abolition of the law. Another public online polling organized by the 3G website (http://3g.cn) showed that 97% of participants (more than 500,000 voters) favored abolition, compared with 1.5% who favored retention (both polls cited in X. Sun, 2013).
Empirical Studies
In contrast to the overwhelming focus on theoretical debates, empirical studies in this area are extremely rare in China. To date, only three studies are uncovered in our research. First, Ni’s (2012) study, the only published one among the three, focused on rape cases in general and did not single out cases against minors. Among 4,655 rape cases collected from 40 counties (cities) from 2003 to 2010, acquaintance offenders were involved in 2,208 cases (47.4% of all cases) with a total of 2,228 victims. Ni further categorized various victim–offender relations into 13 groups, and his analyses showed that victim–offender as friends toped and constituted 47.4% of all acquaintance relationships, followed by known folks from the same hometown (laoxiang; 13.9%) and co-workers (11.7%). All others (including family members, lovers, and neighbors) each made up of less than 5% of all acquaintance relationships. In addition, Ni showed that the “victim–offender as friends” relationship had significantly higher proportions among date rapes and party rapes.
In comparison, two unpublished articles exclusively focused on sexual offenses against minors. Yuan (2012) managed to collect eight sexual offense cases against minors from the People’s Court in Yang County (in Shan’xi province) from January 2010 to October 2012. Among the 10 offenders in these eight cases, eight were juvenile offenders, and acquaintance offenders were involved in five cases. J. Han (2011) collected 340 sexual cases against minors reported by the media from 2006 to 2008. Among these cases, 68% involved acquaintance offenders and 39 cases (11.5%) occurred between legal guardians and minor victims (61% of which involved biological, step, and adopted fathers). Another 50 cases occurred on campus, and 70% of campus sex offenses were perpetrated by teachers and principals. Among victims, 35 cases involved minor migrants who were working or looking for jobs away from their hometown, with an average age of 14.7. Among offenders, 45 cases involved offenders above 50 years of age. EPWM was identified as a serious problem, as 37 cases (10.9%) involved such crimes, and in 30 (81.1%) of these cases, the victims were forced into prostitution. Given the nature of Han’s sample (i.e., cases reported by the media), certain cases such as campus offenses might have been over-reported and therefore over-represented in his study.
In short, the EPWM law has been controversial from the very beginning (since its adoption in 1997), and questioning about its legitimacy has been intensified in recent years with reported notorious cases such as the Xishui case. Overwhelmingly scholarly debate focused on theoretical analyses; in contrast, empirical studies are extremely lacking given the lack of accessible data, and none of the past studies specifically examined the contrast between EPWM cases and other sex offenses. To fill such a gap, we turn to our current study.
The Current Study
In this study, we turn to 440 adjudicated sex offense cases and address the following research questions specifically:
These questions would not only provide us with key empirical data in understanding these sex crimes against minors but also shed significant light to the ongoing theoretical debate in China.
Data
Data used for this study were drawn from two databases, the Beida Legal Information database (beida fabao wang; http://www.pkulaw.cn/) and the Beida Lawyee database (beida fayi wang; http://www.lawyee.org) in October and November 2013. Both databases are invented and developed by Beijing University and reportedly collect the largest number of and the most authoritative Chinese regulations, cases, contracts, legal documents, and other legal resources. For instance, the Beida Lawyee database collects judicial judgments from a number of authoritative sources such as the Guiding Cases of the (national) SPC, the Guiding Cases of (national) SPP, the Gazette of the SPC, the Gazette of the SPP, the Reference and Guide to Trials, the China Law Reports, the Selected Cases Collection, the Collection of Precedents, and cases from the SPC official website, the Cases’ Guide on People’s Court Daily, and other publications. Both databases are updated regularly, so that visitors can get the latest service.
We utilized search engines in both databases to retrieve judicial judgments for the purpose of this study. Key words, including rape, girls/minors (younü), child molestation, and EPWM, were utilized specifically. As a result, a total of 440 judicial judgments (cases) with 474 defendants were retrieved, including 293 rape cases (with 314 defendants), 156 molestation cases (with 156 defendants), and four EPWM cases 14 (with 11 defendants). Note that some offenders were charged with both rape and molestation crimes in the same case (see Table 1). These cases covered a span of 23 years from 1991 to 2013, 15 with more cases collected in recent years: Specifically, besides five cases (1.1%) with unknown verdict dates, 29 cases (6.6%) occurred in the 1990s, 46 (10.5%) occurred from 2000 to 2005, 136 (30.9%) occurred from 2006 to 2010, and 224 (50.9%) occurred from 2011 to 2013. Geographically, although cases in our sample covered 25 provinces (out of a total of 31 provinces) in China, they were not evenly distributed: While some provinces had only a few defendants (e.g., one from Tianjian, two from Qinghai), other provinces had significantly more defendants in our sample (e.g., 128 from Hunan, 99 from Shanghai). By any means, our sample is unlikely to be a representative one nationwide, although we exhausted all relevant cases contained in both databases.
Comparison among Sex Offenses: Regulations, Penalty, and Number of Cases and Defendants.
Data Analyses
Based on our research questions above, we are particularly interested in exploring potential differences across three sex offenses in the demographics of defendants and victims, offending characteristics, and trial and sentences. We present corresponding information in order below. Note that some offenders in our sample committed both rape and molestation (see Table 1), and as a result, these offenders were included in the rape group (the more severe offense of the two) in our comparison below.
Offender information
Table 2 presents offender information across three sex offenses. In terms of offenders’ sex, all offenders in our sample were male with no variation across three sex offenses. In comparison, age variations apparently exist: Among 72 rape offenders, the youngest was only 14 and the oldest was 83, with an average of 31 years and a median of 26.5; only four molestation offenders’ ages were recorded, and they ranged from 36 to 63 with an average of 46 years and a median of 42.5; and only one EPWM offender’s age was recorded at the age of 52. Although it is difficult to draw a definitive conclusion based on so few cases, it appears that the average age of the last two offense groups was older than the rape group.
Comparison of Defendant Information (440 cases with 474 defendants).
Note: Only valid total numbers of cases (N) are reported, which vary among variables due to missing data.
For offenders’ residency and ethnicity, 63.6% (n = 35) of rape offenders whose residency were recorded were local resident, and over one third (36.4%, n = 20) of them were transit people (i.e., non-local residents). Close to 90% (n = 61) of rape offenders were recorded as “Han” people (the dominant ethnicity group in China), and this is very identical to the official census data. In comparison, only one child molester’s residency was recorded in the docket as a local resident, and no such information was available for EPWM offenders; only one child molester and one EPWM offender’s ethnicity was recorded, respectively, as “Han.”
For employment information, over two thirds (67.7%, n = 42) of recorded rape offenders were peasants in our sample, another 12.9% (n = 8) were unemployed, and 6.5% (n = 4) were teachers. In comparison, none of recorded molestation and EPWM offenders were unemployed or peasants; 75% (n = 6) of recorded child molesters were teachers, and all five EPWM offenders were government employees (from the Xishui case).
In terms of education, among 69 recorded rape offenders, about one third (34.8%, n = 24) had an education level of less than 6 years; in contrast, all child molestation offender and EPWM offenders had better education (over 6 years), though the numbers were very small (two and one, respectively).
We witness a clear distinction across three sex offenses for criminal record and whether there were co-defendants in cases. For criminal record, although the super majority of either rape or molestation offenders had no criminal record, a considerable proportion of them (14.4%, n = 45, and 11.4%, n = 17, respectively) carried prior criminal record; in contrast, all 11 EPWM offenders had no prior criminal record. For both rape and molestation offenders, the super majority of them carried out their crimes alone (with no co-defendants), but the opposite was found for EPWM cases in which multiple offenders were often involved given the nature of the crime (whether or not the offenders actually knew one another).
Victim information
A total of 692 victims were involved in these 440 cases in our sample. Unfortunately, not much information on victims was recorded in the official judgments (probably due to privacy concerns) as presented in Table 3. For sex of victims, the overwhelming majority of offenders in all three sex offenses were female as expected. However, a few male victims were found in rape and molestation cases (four and seven, respectively), but none were found in EPWM cases.
Comparison of Victim Information (440 cases with 692 victims).
Note: Only valid total numbers of cases (N) are reported, which vary among variables due to missing data.
Age again seems to present some variations. On one hand, the greatest age variation was found in rape cases, with the youngest victim aged 3-year-old and the oldest victim aged 43; in contrast, very little variation was found for EPWM cases, and all three victims whose ages were recorded were either 12- or 13-year-old. On the other hand, on average, victims in molestation cases carried the youngest age (about 7-year-old), while victims in both rape and EPWM cases appeared to be older.
Information on victims’ ethnicity and residency is seriously lacking in our data: Only two victims’ ethnicity were recorded in the official judgments (both were non-Han minorities in rape cases). Most likely, the majority of victims were Han people, but this default was not recorded. For residency, the super majority of rape victims (77.8%, n = 7) were local residents and all (100%, n = 5) of molestation victims were local residents.
Due to the age of the minors, most of our victims were students indeed (91.2%, n = 62, in rape cases; and 100%, n = 40, in molestation cases), and it seems to lend some support to the statement that young students are a major target of sex offenses in China. Education-wise, given victims’ young age, the majority of them were elementary school students (59%, n = 23, in rape cases; and 100%, n = 29, in molestation cases) and the rest of them were middle-school students.
All three sex offenses presented a similar pattern for the situation of multiple victims in the same case. In all three groups, roughly 20% of victims had other victims in the same case, while 80% of victims were single victims.
Offending characteristics
Table 4 summarizes offending characteristics across three sex offenses. In terms of places where offenses were committed, offenders’ dwellings (e.g., home, shop, dormitory) were the primary choice in both rape and molestation cases, as 36.4% (n = 136) of rape and 47.4% (n = 72) of molestation cases occurred in offenders’ dwellings. Next, committing a crime in other public places appeared to be the second choice in both offenses (27.8%, n = 104, and 30.9%, n = 47, respectively), followed by victims’ dwellings and third party’s dwellings. In sharp contrast, due to the nature of EPWM, 76.9% (n = 10) of all such cases occurred in a third party’s dwelling, followed by offenders’ dwellings (15.4%, n = 2) and other public places (7.7%, n = 1).
Comparison of Offending Characteristics (440 cases with 474 defendants).
Note: Only valid total numbers of cases (N) are reported, which vary among variables due to missing data.
In terms of the time of one’s offense, our data show that more than half of molestation cases (54.1%, n = 72) occurred in the afternoon, followed by night offenses (27.1%, n = 36). For rape cases, 43.9% (n = 119) occurred at night, and another 33.2% (n = 90) occurred in the afternoon. Still a significant proportion of either rape or molestation cases (around 20%) occurred in the morning or around noon. In sharp contrast, 75% of all EPWM cases occurred at night though the numbers (n = 3) were very small here.
For crime duration (measured by the difference between the dates of the first known offense and the last known offense), there is great variation across all three sex offenses. While most crimes lasted no more than a day (the median is “0” in all three groups), the longest rape duration lasted 4,870 days (i.e., over 13 years), the longest molestation duration lasted 1,096 days (i.e., over 3 years), and the longest EPWM duration lasted merely 20 days in comparison. This for sure has much to do with the nature of the crimes (more private in rape and molestation cases but more public in EPWM cases) and the likelihood of exposure of the crimes.
For offender–victim relations, again the very different nature of three sex offenses determined the picture: In rape cases, most offenders were acquaintances to victims (59.6%, n = 178), followed by strangers (30.1%, n = 90) and family members (9%, n = 27); in molestation cases, most offenders were strangers (53.4%, n = 70) and acquaintances (45%, n = 59); in sharp contrast, in all EPWM cases, the offenders were merely clients of the victims (100%, n = 11).
For reasons of crime exposure, in the super majority of both rape and molestation cases, victims and/or their family members reported the offenses to the authority (66.3%, n = 53; and 78.8%, n = 26, respectively). At the same time, offenders in a significant proportion of both rape and molestation cases either self-surrendered (18.8%, n = 15; and 9.1%, n = 3, respectively) or were arrested on site by the police (10%, n = 8; and 12.1%, n = 4, respectively). Unfortunately, no such information is available in our EPWM cases.
Trial and sentences
In Table 5, information with regard to trial and sentencing is summarized and compared across three sex offenses. First, there is not much variation in terms of legal representation. In overwhelming majority of cases in all three groups (at least 95%), defendants had legal representation. This is indeed surprising given previous studies on inadequate criminal legal representation in China (Lu & Drass, 2002; Lu & Gunnison, 2003; Lu & Miethe, 2002), and it might have something to do with the nature of these offenses. For defense strategies, however, data showed an interesting contrast between the first two groups and the EPWM group: In both rape and molestation cases, the dominant defense strategy was to plea for leniency (72.5%, n = 33, and 83.7%, n = 41, respectively), a finding supported by previous studies (Lu & Drass, 2002; Lu & Gunnison, 2003; Lu & Miethe, 2002). Nevertheless, the dominant defense strategy for EPWM cases was “not-guilty” though the case numbers are very small (three only).
Comparison of Trial & Sentencing Information (440 cases with 474 defendants).
Note: Only valid total numbers of cases (N) are reported, which vary among variables due to missing data.
Second, in finding aggravating and mitigating factors, some interesting contrasts also loomed. Given the grave nature of rape, the courts found aggravating factors in close to half of all rape cases (46.5%, n = 146); in contrast, the courts found no aggravating factors in 91.3% (n = 136) of molestation cases and in all 11 (100%) EPWM cases. Interestingly, the courts found some mitigating factors in over half of rape cases (52.2%, n = 164) and 62.4% (n = 93) of molestation cases, but only in 27.3% (n = 3) of EPWM cases. Part of the reason why we witnessed some differences here, especially on aggravating factors, has something to do with the legal stipulations. For instance, many of potential aggravating factors such as raping a minor, gang rape, causing physical injury, and being a principal offender can hardly be applied in EPWM cases. In addition, other potential aggravating factors such as having a prior criminal record and carrying a special relationship to the victim (e.g., being a family member) were also less applicable to offenders of EPWM cases as our data shown above.
Finally, Table 5 presents sentencing information for three sex offenses. As the Criminal Law is stipulated, rape potentially carries the most severe punishment given the grave nature of the crime. This seems to be supported by our empirical data: Although the majority of rape offenders were sentenced to a fixed term of imprisonment between 1 and 10 years (74.5%, n = 234), a fair proportion of rape offenders were sentenced to long-term imprisonment (over 10 years, 8.3%, n = 26), life imprisonment (3.5%, n = 11), or even death (7%, n = 23). Article 237 of the Criminal Law requires enhanced punishment for offenders of child molestation. Nevertheless, only 2% (n = 3) of child molesters were sentenced to serve more than 5 years of imprisonment, while 67.8% (n = 101) of them were sentenced to imprisonment between 1 and 5 years. For EPWM offenders, although none of them were sentenced to life imprisonment or the death penalty (note that such sentencing options are not available under the current law), 18.2% (n = 2) were sentenced to over 10-year imprisonment, and another 45.5% (n = 5) were sentenced to serve 5 to 10 years of imprisonment, by no means a lenient punishment given the nature of the crime (mostly due to the stipulated minimum 5-year imprisonment requirement).
Our data also contained some information on appeals. The one noticeable difference between the first two groups and EPWM is the reversal rate: In a significant proportion of both rape (23.2%, n = 22) and molestation (25%, n = 7) cases, the trial courts’ decisions (either conviction or sentencing) were reversed by the appellate courts (i.e., the court of the second instance in the Chinese system). In contrast, all EPWM cases 16 were sustained in appeals.
Discussion and Conclusion
Based on 440 sexual offense cases against minors, we paid special attention to potential differences across three sex crimes given the ongoing theoretical scholarly debate in China and the lack of empirical inquiries in the past. Our analyses focused on offender and victim information, offending characteristics, and trial and sentencing information. First, in terms of offender information, our data seem to indicate different offender profiles for these three sex crimes against minors. For instance, the average age of molestation offenders and EPWM clients is apparently older than that of rape offenders; while 80.6% of rape offenders were peasants or unemployed (the “idle” hands), 75% of child molesters in our sample were teachers and all EPWM offenders were government employees. In addition, child molestation and EPWM offenders had better (higher) education levels compared with rape offenders (34.8% of them had an education level of less than 6 years). For criminal background and co-defendant information, our data showed that all EPWM offenders had no prior criminal record; in contrast, 14.4% of rape and 11.4% of molestation offenders carried prior criminal record. The super majority of rape and molestation offenders carried out their sex crimes alone, but EPWM cases often involved multiple offenders (which is not surprising given the nature of the crime, whether or not the client offenders actually knew one another).
Second, victim information is extremely lacking in our judicial documents. Unlike the different offender profiling, victims in all three sex crimes presented rather similar profiles. Our data showed that all minor victims in EPWM cases were female, and only a few male victims were found in rape and molestation cases (4 and 7, respectively). The high concentration of female victims (in EPWM cases in particular) might have something to do with traditional patriarchal Chinese culture which caters to male offenders’ sexual needs historically. While certain age variations were found in rape and molestation cases, very little variation was found in EPWM cases and all three victims whose ages were recorded were either 12- or 13-year-old (note that the age of the victim has to be below 14 by stipulation of the EPWM law). Given victims’ age, most of victims were students at either elementary or middle schools. Roughly 20% of victims had other victims in the same case, while 80% of victims were single victims, a pattern that held across all three sex crimes.
Third, our examination of offending characteristics showed significant differences across three sex crimes. For instance, while offenders’ dwellings (e.g., home, shop, dormitory) and other public places were the primary and secondary crime places for rape and molestation offenders, 76.9% of EPWM cases occurred in a third-party dwelling (again, not surprising given the nature of such offenses). In terms of the time of one’s offense, 75% of all EPWM cases occurred at night, compared with 43.9% of rape cases and 27.1% of molestation cases. While the duration of rape and molestation cases could have lasted for years in some cases, the longest EPWM duration lasted merely 20 days, a reflection of the nature of the crime (more public compared with rape and molestation cases) and the likelihood of crime exposure. For offender–victim relations, again the very different nature of three sex offenses seemingly determined the picture: In rape cases, most offenders were acquaintances to victims (59.6%); in molestation cases, most offenders were strangers (53.4%) and acquaintances (45%); but in all EPWM cases, the offenders were clients of the victims (100%).
Fourth, our comparison across three crimes based on trial and sentencing information also revealed interesting differences. While offenders in all three crimes had a surprisingly high legal representation rate, the dominant defense strategy in both rape and molestation cases was to plea for leniency (72.5% and 83.7%, respectively), but the dominant defense strategy for EPWM cases was “not-guilty.” Given the grave nature of rape, the courts found aggravating factors in close to half of all rape cases (46.5%); in contrast, the courts found aggravating factors in merely 8.7% of molestation cases and in none of EPWM cases. As discussed above, many of stipulated aggravating factors (such as raping a minor, gang rape, causing physical injury, and being a principal offender) can hardly be applied in EPWM cases, therefore, explaining some of such disparities. Nevertheless, the observed disparities may have also reflected different offender profiles such as the offender’s prior criminal record (e.g., lack of such a record in EPWM cases) and special relationship to the victim (e.g., being clients in EPWM cases). Comparison on sentencing information showed that convicted rape offenders were punished more severely than child molesters but cast doubt on the “belief” held by the public and/or the media that offenders convicted of EPWM often “got a break” and were sentenced more leniently. Although none of EPWM offenders were sentenced to life imprisonment or the death penalty (as such sentencing options are not legally available), 18.2% of them were sentenced to over 10-year imprisonment, and another 45.5% were sentenced to serve 5 to 10 years of imprisonment (i.e., a combined 63.7%, compared with a total of 52.2% of convicted rape offenders who were sentenced to over 5-year imprisonment, life imprisonment, or the death sentence).
Based on our major findings above, a few policy implications can be drawn. First, our empirical examination lends support to the legitimacy and rationality of the EPWM law. Our data, though based on very small numbers, showed that the EPWM offenders carried a different profile, compared with offenders of the other two sex crimes (particularly rape offenders): They tend to be older, better educated, hold steady jobs, and have had no prior criminal record. Most of them went to a third-party dwelling (i.e., a known prostitution place) at night as clients to satisfy their sexual needs. Based on the record of the judicial judgments, apparently no physical force was utilized during their prostitution visits, and sex was arranged through pecuniary transactions (either through a third-party such as pimps or directly with the minor victim). What trigged the EPWM law was the age of the victim, and many defendants indeed argued about their lack of subjective knowledge about the age of the minors. Given the unique nature of these crimes, as our data shown, the trial courts rarely found aggravating factors in such cases. All of these findings seemingly set EPWM cases apart from molestation and more importantly rape cases. Granted, as Chinese scholars argued (see summary above), it is possible that EPWM and rape could have been concurrent. Nevertheless, after a close examination of all 293 rape cases (with 314 defendants) in our data set, we found only one case in which two male defendants who ran a brothel with two female minor prostitutes were convicted of rape when they had sex with both minors (without paying). None of the other rape cases 17 produced a fact pattern that could have had a potential argument about crime concurrence. In contrast, all four EPWM cases in our data involved consensual prostitution behaviors. Our empirical data therefore question the viability of the concurrence argument in reality (as such cases rarely occurred). Nevertheless, we acknowledge that empirical data in this study cannot directly test and/or address the issue of “valid consent” (e.g., what constitutes “valid consent”? Do minors possess the capability of giving “valid consent”?). The issue of “valid consent” is still subject to open debate and legislative interpretations.
Second, one major concern expressed by the media and the public is the possibility that EPWM offenders would have received a “more lenient” punishment compared with that of rape offenders, and some offenders with power and wealth (e.g., corrupt governmental officials) would have taken advantage of the EPWM law and repeatedly “invade” the minor victims’ rights (e.g., Xiao, 2014, p. 68). Sentencing information in our data showed that punishment received by convicted EPWM offenders was not lenient at all. A total of 63.7% of them were sentenced to long-term incarceration (over 5 years), compared with a combined 52.2% of convicted rape offenders who were sentenced to over 5-year imprisonment, life imprisonment, or the death sentence. Furthermore, compared with rape and molestation offenders, conviction and sentences of EPWM offenders were less likely to be reversed and/or revised in appeals (partially because EPWM cases often involved fewer aggravating and mitigating factors as shown in our data, as most of appellate reviews focused on sentencing issues based on such factors, for example, see Kuang & Liang, 2014). Given the vulnerability of the minor victims, the argument about sex offenders taking advantage of “bad” law often generates tremendous public outcry. Although our data do not lend support to this argument empirically, notorious cases such as the Xishui case could be utilized to call for abolition of the EPWM law. Nevertheless, rational debate based on the best evidence and data is desirable in our opinion.
Third, our limited information on victims seems to lend some support to the argument that young students (females in particular) have become one major target of sex offenses in China. Across three sex offenses, though there was very little age variation for EPWM victims (mostly 12- or 13-year-olds), there was significant age variation for rape cases. Most of victims were students at either elementary or middle schools, and 80% of victims were the single victim of the crimes. Nevertheless, we question the strategy and the effect of solely targeting on the EPWM law. Although our comparison across three offenses in this study cannot address and/or test the deterrence effect of the EPWM law, our data questioned the popular belief that EPWM offenders received “lenient” punishment, and we argued that a “get-tough” policy singling out the EPWM law will not be effective in preventing sex offenses against minors in China. There seems to be ample room for the Chinese government at different levels to adopt preventive and educational measures and programs at schools, in families, and within communities and neighborhoods. Proper implementation of such measures and programs would arguably carry a much better effect in preventing and lowering sex crimes.
In the end, we would like to acknowledge some limitations of our current study. Granted, our analyses are rather exploratory at this moment primarily for two reasons, the unrepresentative nature of our sample and the limited numbers of cases in our sample, especially with regard to EPWM cases. It should be pointed out, nevertheless, that the total number of EPWM cases is indeed very small even for the whole nation. An official reply by the SPC pointed out that the total number of EPWM cases that entered into the judicial system in China was merely 37 in 2010, 30 in 2011, and 41 in 2012. 18 Presumably the adjudicated cases in these years would be equal to or fewer than the reported numbers above. These small numbers to a large extent probably reflected the rare nature of such offenses. Unfortunately, no systematic national data are available, and our sample exhausted all cases covered by two most popular legal databases in China and covered 25 provinces. Given the nature of our unrepresentative sample and the limited number of valid cases, more advanced analyses (bivariate or multivariate) are out of question in this study. Moreover, we would like to caution the reader about the nature of secondary data in our study. As noted, much of victims’ information is missing in the judicial judgments probably due to privacy concerns by the judiciary. Such a limitation also affected our analysis. We sincerely hope that more reliable and systemic data would become available in the future, as empirical inquiries built upon data are critical to our understanding of true nature of such sex crimes, and such inquiries would shed light on effective preventive measures and policies.
In an overall assessment, our empirical inquiry in this study provided key information on these three sex offenses against minors in China, pointed to the unique nature of EPWM cases, and questioned the “lenient” punishment received by EPWM offenders. Given our findings, we would caution against a new “get-tough” policy that aims at quickly abolishing the EPWM law and upgrading it to rapes. Most recently, nevertheless, news broke out that the new ninth Amendment to the Criminal Law in 2015 abolished the EPWM law. The effect of such abolition remains to be seen. Fundamentally, moral and ethical challenges such as official corruption and social inequality cannot be effectively dealt with criminal manners when China is going through tremendous social and economic changes.
Footnotes
Acknowledgements
The authors thank Cao Yijun, Chen Zhe, Jiang Wengyu, and Zi Zhengfa for their help with data collection in this project, and the support of the Collaborative Innovation Center of Judicial Civilization in China.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.