Rape-by-Deception in China: A Messy but Pragmatically Desirable Criminal Law.

• Author: Chen, Jianlin

Abstract

China's Criminal Law defines rape to include circumstances where a perpetrator "by violence, coercion, or any other means rapes a woman." We critically investigate whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and make three contributions. First, through a quantitative and qualitative analysis of contemporaneous scholarly commentary and a systematic survey of court judgments from 2015 to 2020, we demonstrate that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, we argue that the current Chinese law is normatively desirable vis-a-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, we highlight the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions, and explain how this "blank slate" contributed to a legal evolution process that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles. More broadly, our case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. It also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

INTRODUCTION

Fraudulent sex (i.e., the use of deception to obtain sexual intercourse) has attracted widespread scholarly attention in English-language literature. The vast majority of the discussion has thus far focused on Western common law jurisdictions, (1) especially in the United Kingdom (2) and the United States, (3) but also in Australia, (4) Canada, (5) and New Zealand. (6) Emerging scholarship has also focused upon jurisdictions in Asia, including Hong Kong, (7) India, (8) Israel, (9) Singapore, (10) Taiwan, (11) and Thailand. (12) Nonetheless, with the exception of Taiwan and Thailand, these Asian jurisdictions share common law legal traditions and their criminal law frameworks are influenced and/or inspired by English common law jurisprudence. (13)

The absence of non-common law jurisdictions in fraudulent sex criminalization analyses represents a missed opportunity to approach and conceptualize the issue beyond the current dominant frame of consent (the otherwise bedrock foundation of rape and sexual offenses in the common law jurisprudence). (14) In addition, the criminalization of fraudulent sex embroils the tortuous tension between, on the one hand, the long-standing legal penalization of deception in the conduct of human affairs, (15) and, on the other, the common perception that lies are prevalent in sexual relationships. (16) Expanding the inquiry to include non-Western jurisdictions can provide a more nuanced and contextual understanding of this complex dynamic of sexual morality and appropriate legal interventions.

In this Article, we critically examine how fraudulent sex is criminalized in China and make three contributions.

Our first contribution is descriptive. Determining the current scope and method of fraudulent sex criminalization in China is far from straightforward. Under China's Criminal Law, whether a "non-consensual" (17) sexual intercourse not involving a minor is punishable is solely dependent upon how the statutory provision "by violence, coercion, or any other means rapes" is interpreted and applied. (18) We present a nuanced and holistic understanding of how this provision--in particular the phrase "other means"--is applied to fraudulent sex. In addition to a default statutory analysis (wherein we examine the origin, evolution, and current manifestations of the relevant criminal code provisions), we systematically review scholarly opinions and judicial practices. For scholarly opinions, we first quantitatively tabulate the legal prescriptions on fraudulent sex in thirteen recent criminal law textbooks, before qualitatively analyzing arguments in journal articles and monographs that have substantive discussions on fraudulent sex criminalization. For judicial practices, we compile all available court cases involving rape prosecutions for fraudulent sex over a five-year period and scrutinize how the courts interpreted and applied the rape provision. We identify three types of fraudulent sex that are currently criminalized in China, namely religious fraudulent sex (e.g., obtaining sex through falsely claiming that sex is part of a luck-improving religious ritual), medical fraudulent sex (e.g., obtaining sex through falsely claiming that sex is part of medical treatment), and impersonation of intimate partners (e.g., obtaining sex through pretending to be the victim's boyfriend). (19)

Our second contribution is normative. Situating current Chinese law amidst scholarly consensus in English-language literature and available legal practices in other jurisdictions, we argue that the current Chinese law is pragmatically desirable. The three types of fraudulent sex criminalized in China are generally regarded as normatively more problematic and/or prioritized for criminal sanctions. (20) Just as crucially, the current Chinese law has avoided technical distinctions (e.g., identity as to non-spousal intimate partners, factum vs inducement/purpose) that have resulted in heavily criticized acquittals elsewhere. (21)

Our third contribution is explanatory. We investigate the possible factors contributing to the desired legal outcomes vis-a-vis fraudulent sex criminalization. We highlight the unique starting point of the Chinese sexual offenses provision as compared to both common law and civil law jurisdictions. Unlike civil law jurisdictions that typically have a structured set of sexual offense provisions proscribing various forms of offending conduct (e.g., abuse of authority, fraud, taking advantage of incapacity), (22) the entire sexual offense in China rests upon the singular actus reus of "by violence, coercion, or any other means." (23) Unlike in common law jurisdictions, where binding judicial precedent has developed the contours of an otherwise elusive concept of consent, (24) there is no core underlying concept that can guide the interpretation of "other means." Thus, the relevant legal actors in China (i.e., courts, law enforcement, and legal scholars) are essentially given a blank slate to develop the law on fraudulent sex criminalization and, indeed, the overall rape provision. By drawing on a similar dynamic vis-a-vis the criminalization of sex with mentally ill victims, we argue that this unique starting point necessitated an approach that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles.

More broadly, this case study contributes to the emerging and important inquiry as to how fraudulent sex is criminalized across the globe. Together with prior relevant research on Taiwan and Thailand, our case study challenges the prevailing assumption (and the consequential normative argument for more restrictive criminalization) in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. (25) In addition, our finding that the actual scope of fraudulent sex criminalization in China far exceeds (or at the very least, is not apparent from) the express statutory language also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

This Article is organized into five parts, with an introduction and conclusion. Part I outlines the statutory framework, evolution, and current provisions of Chinese sexual offense. Part II sets out the extent and nature of fraudulent sex criminalization through an examination of regulatory interpretation, a quantitative and qualitative analysis of contemporaneous scholarly commentary, and a survey of relevant court judgments from 2015 to 2020. Part III demonstrates the alignment of the current Chinese law with the broad consensus among scholarly commentary and legal practices elsewhere. Part IV connects the unique nature of Chinese sexual offense with the outcome. Part V reflects upon the broader implications for the literature on fraudulent sex criminalization and the comparative analysis of civil law jurisdictions.

1. Sexual Offenses (Non-Consensual Sex Acts) in China: Statutory Framework and Provisions . We begin by examining the origin and evolution of the Chinese sexual offense provisions (26) relating to non-consensual (27) sex acts and explain why the scope of fraudulent sex criminalization rests upon the interpretation of the phrase "other means."

   A. 1979 Enactment

   The Criminal Law was enacted in 1979 as a comprehensive criminal code for the People's Republic of China. (28) The Criminal Law was a Continental-style code, based upon the German model, (29) with Soviet influences especially vis-avis the conception of criminality and other substantive provisions relating to maintaining Socialist governance. (30)

   There were two discernible sexual offenses provisions in the initial Criminal Law (1979). The core offense of rape was detailed in article 139, which provided that "[w]hoever by violence, coercion, or any other means rapes a woman shall be sentenced to imprisonment of not less than three years nor more than ten years." (31) Article 139 further provided that rape would include sex with a female child under the age of fourteen and other circumstances of aggravated rape. (32)

   No provision specifically dealt with sexual acts that do not amount to sexual intercourse (e.g., fondling). Such sexual acts could arguably be punished under the general provision of hooliganism (article 160), which was defined to include "humiliat[ing] women," among other conduct. (33)

   B. 1997 Revision

   The Criminal Law (1979) was widely criticized for its brevity and imprecision. (34) Indeed, it...