A crime that leaves victims unprotected
Updated: 2012-09-13 07:43
By Wu Wencong, Cao Yin and Zhang Yuchen (China Daily)
Male sexual assault urgently requires legislation, report Wu Wencong, Cao Yin and Zhang Yuchen.
At least four cases of sexual assaults on men have been reported in the media in the past three months.
One of the attacks is alleged to have happened 15 years ago in Shanghai, when former students accused a physics teacher from a prestigious high school of sexually assaulting them. Although no legal action was taken by the accusers, the teacher was dismissed.
Although these numbers may be tiny compared with China's vast population, they do highlight a legal anomaly: male victims of serious sexual assault aged 14 or older are not protected under criminal law.
The crime of child molestation protects children under 14, regardless of gender, but the punishment is usually less than five years in jail. Only if the molestation happens in a public place will the sentence be more than five years, said Wang Xing, a lawyer who works in Beijing.
Wang, who specializes in criminal cases, said the sexual assault of males is not recognized in Chinese criminal law, even though he is sure that such assaults do happen.
"In most cases, men who sexually abuse other men receive 15 days administrative detention at most. However, if the assault is very serious, it can fall under the law, but is usually reclassified and not seen as sexual assault," said Wang who works at the Huicheng Law Firm.
He used a recent example from Beijing to illustrate his point. A man was sexually abused by a male security guard, but the judges at the local court gave a verdict based on the crime of intentional injury, not rape. The offender was sentenced to 12 months in prison.
"According to the law, the target of rape must be female. So, if a man commits a sexual assault on another man, he won't be punished under the laws relating to rape and his punishment will not be as severe," said Wang.
"It's a blank or embarrassment to the current law, because rape should not be reclassified as a different crime. Reclassification is illegal and contravenes the principle of law, but the judges have no idea how to deal with such situations," he said.
In China, a rape conviction can result in the death penalty. However, the punishment for intentional injury is based on the severity of the injuries sustained, according to Wang.
"Generally, sexual assault doesn't result in severe physical injury. Instead, victims suffer mental trauma during the abuse and afterwards, but mental trauma is not taken into consideration if the accusation centers on intentional injury. That's why the punishment is slight," he added.
Rape by analogy
"Sexual assault of men has never been tolerated by China's moral standards, and was once forbidden by criminal law," said Liu Baiju, a professor of law at the Scientific Research Management Bureau of the Chinese Academy of Social Sciences.
It was written into law as a crime as early as the Qing Dynasty (1644-1911). At that time the penalty was the same as that for raping a woman, sometimes that could result in immediate execution.
In 1935, sexual assault of men was regarded as "compulsory indecency" and carried a sentence of less than seven years.
From 1979 to 1997, it was regarded as rape by analogy to the rape of a woman, but not as a specific crime in itself. However, after 1984, sexual assault of men was included in the laws on hooliganism. Those convicted received punishments ranging from a jail term to execution.
At that time, sexual activity between adult males, consensual or not, was a crime. Then the 1997 Criminal Law, which still applies now, canceled the crime of hooliganism, and sexual activity between males aged 14 or older ceased to be a criminal act.
"The amendment respected the rights of a certain group of people and has been accepted gradually, because consensual sex between male adults is no longer a crime," said Liu. "But at the same time, it leaves a gray area on how to deal with sexual attacks on males older than 14."
Many experts have pointed out that minors are the victims of most sexual assaults on males and that the number of cases is far higher than generally acknowledged. They claim that the psychological trauma engendered by rape and sexual assault is equally severe for both males and females, but manifests itself in different ways.
"Men with such experiences, especially at an early age, will encounter great difficulty in maintaining romantic relations with the opposite sex, or even having a normal sex life," said Wang Weimin, a counselor at the Beijing Sunshine Journey Psychological Counseling Center.
He used one of his patients as an example. The man, handsome and muscular and aged around 30, was very popular with the opposite sex, but was unable to keep a relationship going for more than eight weeks or so.
He said the patient would break up with girlfriends as soon as he found even the slightest flaw in their character. Eventually, he decided to seek professional help.
After a few sessions, Wang discovered that the man had been subjected to a serious sexual assault by several of his male classmates at junior high school.
"That experience largely thwarted his self-confidence as a man," said Wang. "He then became plagued by doubts about his masculine identity, doing lots of exercise to make himself muscular. He also had an irrational fear that girls would dump him because he wasn't manly enough. So he simply found excuses to dump them first."
In another case, the victim was sexually assaulted at the age of 12 by a teenage uncle when straitened family circumstances meant that they had to share a bed.
Now in his 30s, the man has broken with his family, including his parents. He frequently changes jobs and only dates older women because he feels that younger women won't find him attractive.
Moreover, the patient is a compulsive spendthrift and, despite earning a decent salary, he leads a shabby life.
"He feels himself soiled, and has decided that he does not deserve a good girl or decent living conditions," said Wang, adding that low self-esteem is common among men who've been sexual assaulted by other men.
"Female victims tend to have an aversion to the opposite sex, but men, by contrast, are more likely to blame themselves and lose confidence in their masculinity."
Zhao Junyan, a counselor at the psychological counseling center at Capital Normal University in Beijing, concurred that male victims suffer from a higher incidence of depression, anger, worries and guilt than females.
"There are very few organizations, either at home or abroad, dedicated to helping this special group," said Zhao.
As a result, some turn to psychological counselors for help, but many simply refused to discuss the issue face to face.
Wang said that in his seven years' experience as a counselor, he has seen four patients troubled by this issue. "But there were many, many more who simply called the hotline and poured out their feelings anonymously," he said, adding that every counselor with five years' or more experience will have dealt with such cases.
Changing the laws?
The past decade has seen an increasing number of calls for the law relating to male-on-male or female-on-male sexual assault to be changed and updated. However, experts say it is a far more complicated process than simply changing the gender status of victims.
"A much wider definition of sexual intercourse must be accepted by the legal establishment and the public," said Liu.
Under the current laws on the Chinese mainland, sexual intercourse is currently recognized as vaginal intercourse between a man and a woman. Liu said other forms, such as anal and oral sex, should also be recognized as sexual intercourse.
If the definition is changed, a complex discussion about the severity of punishments in relation to different forms of sexual assault would be required, said Liu, adding that distinguishing what constitutes a serious sexual crime could prove controversial.
The laws protecting females aged less than 14 years may also need to be changed to take males into account. And the definitions of cohabitation and adultery will also need to be re-examined, he said.
"If we decide to change the law, we will need to change it completely. If not, we will still fall behind other countries on this issue, even after the amendments," said Liu. "Most Western countries didn't make these sorts of changes until the 1990s. We are still not ready for this, neither in academic circles or mainstream society."
Many observers believe that the problem can best be dealt with by improving sex education in schools and at home, and by introducing children to the subject at an earlier age.
Wang Weimin, the psychological counselor, emphasized that parents should begin to educate children of both sexes from as early as 3 years old.
"Introducing them to clothing and toys appropriate to their genders can help gender awareness to grow, and will later help the children to identify with who they are as early as possible," he said.
Wang also said sex education in Chinese schools lags far behind that in other countries.
"In Japan, students receive sex education from primary school onward," he said. "Yet the so-called physical health classes in Chinese junior high schools - which mainly feature the names of the physical structures of human bodies - cannot even be regarded as appropriate sex education for kids of that age."
He said the paucity of sex education in China leads to a lack of gender awareness, and may result in children becoming ignorant or even indifferent to sexual danger, unlike adults who can assess situations and anticipate the likely outcome.
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Hu Yongqi contributed to this story.