Talking about the "age of sexual consent" and other issues from the Bao Yuming case

(Note: This is a short article that was drafted today. It has been unsuccessful in sending it on the WeChat public account. It is constantly self-checking sensitive words. I don’t know if it will be sent in the end. Let’s make a backup here first.)

Everyone must have heard of Bao Yuming's alleged sexual assault on a minor adopted daughter. Two days ago, I was interviewed by Pear Video about this, and talked about the “age of sexual consent” in the criminal laws of China and the United States (video link: http://n.miaopai.com/media/vn2A7fB6tScPh-YaRW5BVq ~n7Zhnrwa~ ). Due to the limitation of the length of the short video program, most of the content discussed in the interview was not presented in the end, so I will roughly sort it out here.

1. "age of consent" and "statutory rape"

The so-called "age of sexual consent" means that people who are too young are too easily to be deceived, deceived, brainwashed, coerced, coerced, and exploited by adults with bad intentions because their minds and physiology are still developing. , and therefore does not really have the civil capacity to "consent to" sexual activity with another person; when an adult has sex with a minor who is under the legal age of sexual consent, even the minor Claiming to be consensual , the adult's actions still violated the law and constituted "statutory rape."

Some people may think that different people develop sooner or later, so why can the law stipulate an age of sexual consent across the board? Also, is it a patriarchal mentality to think that minors lack the ability to "consent" and obliterate the autonomy of minors? I have analyzed these doubts in my previous articles refuting the dissertation on the landslide of anti-fans (full text download: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3452156 ), such as "" Why is "agree" not equal to "agreement" in the ordinary sense, etc. Interested readers can read it by themselves.

In addition, combined with a more specific analysis of the plot of this case, you can refer to: Looking at the ideal, " The so-called "reversal" of the Bao Yuming case is a narrow society's cognition of sexual assault cases .

In most countries in the world today, the concept of "age of sexual consent" exists in the criminal law, although countries (and various administrative regions within some countries) have different regulations on where this age line is drawn.

China's current (female) age of sexual consent is 14 years old (Article 236 of the Criminal Law: "A person who rapes a young girl under the age of 14 shall be regarded as rape and shall be punished severely"), which is relatively low in the world.

According to this website ( https://worldpopulationreview.com/countries/age-of-consent-by-country/ ), there are currently only 9 countries in the world where the age of sexual consent is under 14 (Nigeria, Angola, Philippines, Comoros, Japan, South Korea, Niger, Western Sahara, Burkina Faso); Japan and South Korea , although the age of sexual consent in the criminal law is 13 years old, but the civil law or local law often stipulates a higher level of sexual consent age (ranging from 15 to 20), resulting in the de facto age of sexual consent still higher than in China.

Also, while there are about 30 countries around the world that set the age of sexual consent at 14 like China, those countries tend to have some more detailed rules to protect those who are 14 but still underage. For example, although the minimum age of sexual consent in Germany is 14 years old, the law also stipulates that those who have reached the age of 21 cannot have sexual relations with those under 16 years old , otherwise it will still be regarded as "legal rape"; similarly, the minimum sexual consent in Italy Although the age is also 14 years old, the law also stipulates that when there is an actual authoritative relationship between the two parties (such as parent and child, foster and foster person, teachers and students, etc.), the age of sexual consent is raised to 16 years old .

As far as the United States is concerned, because the criminal law is mostly state law, the regulations on the age of sexual consent vary slightly from state to state. The current age of sexual consent is 16 in most states, and in some cases 17 or 18 (see U.S. Department of Health summary: https://aspe.hhs.gov/report/statutory-rape-guide-state- laws-and-reporting-requirements-summary-current-state-laws/sexual-intercourse-minors ).

States in the United States set the age of sexual consent at 16 or higher, and it is not always the case. Until the end of the 19th century and the beginning of the 20th century, the age of sexual consent in most states was only 10 or 12 years old , and some states even had no relevant regulations at all - after all, human society has long been immersed in patriarchal culture and historically child marriage Phenomena abound. Raising the age of sexual consent was the result of tireless efforts by feminists and progressive reformers in the early 20th century. The same is true for legal revisions in other countries.

In contrast, the revision of China's criminal law has been behind the times. In fact, as early as during the Republic of China, the 1928 Criminal Law had already set the age of sexual consent at 16 years old . After the founding of the People's Republic of China, the "old legal system" of the Republic of China was abolished, and the Soviet Union was completely imitated, and "whether the female victim was actually mature " was used as the standard for judging "legal rape"; however, this standard was difficult to operate in practice, causing various problems. Since the late 1950s, judicial departments have basically treated cases as "immature" as "under 14 years old ". When the Criminal Law was revised in 1979, the relevant provisions were simply changed to "A person who rapes a young girl under the age of 14 shall be regarded as rape and shall be severely punished", which has been used to this day.

In addition to setting the age of sexual consent too low, this provision has a long-crippled problem: it only protects girls, not boys. For boys, there is only "child molestation" in China's criminal law, and the punishment is far lower than the (statutory) rape of girls. More generally, China's criminal law as a whole lacks protections for male victims of sexual assault, whether adults or minors, reflecting long-outdated notions of gender.

It is also worth mentioning that from 1997 to 2015, there was still a strange crime of “whoring with young girls” in the Chinese Criminal Law (Article 360 of the 1997 Criminal Law). On the surface, this clause is intended to protect young girls, but in fact, the punishment is far lighter than the (statutory) rape crime. It is a backdoor specially reserved for some high-ranking officials with pedophiles; Having the civil capacity to "consent" to prostitution directly contradicts the presupposition behind the "age of sexual consent" (minors do not have the civil capacity to "consent" to have sex). After nearly two decades of appeals by jurists and social activists, this clause was finally abolished in 2015, which is a rare step in the history of China's criminal law revision.

2. "close-in-age exemption" and "abuse"

Regarding the "age of sexual consent" regulation, a common question is: In this way, if two minors secretly taste the forbidden fruit and have voluntary sexual relations, is it possible that both of them are "legal rape" , will be sentenced?

This problem is not difficult to solve in practice. At present, most countries and regions in the world adopt the method of " proximity to age exemption " (also known as " two little guesses exemption " or " Romeo Juliet exemption "), which stipulates that when the age difference between the two parties is less than a certain number, even if one party has not reached the age of At the age of sexual consent, consensual sex between two parties is still legal, not "statutory rape."

Note: The Age Difference Waiver only applies to consensual sex. Undoubtedly, there can still be non-consensual sex between minors (even some physically capable minors can rape an adult); constitutes "rape" rather than "statutory rape", and the age difference exemption naturally does not apply. Of course, the latter situation involves new issues, such as the coercive party may be too young and has not yet reached the legal age of criminal responsibility, etc. This is handled differently in the laws of different countries, and will not be repeated here.

More than 20 of the 50 states in the United States currently include a "proximity-to-age immunity" clause in the "statutory rape" crime. Take Connecticut, where I currently live, as an example, if one party who has sex is under the age of 13 , the other party must not be older than the former 2 years old , and offenders will be sentenced to up to 25 years in prison and a fine of $20,000 ; if If one party is over 13 but under 16 (as in the case of Bao Yuming), the other party cannot be more than 3 years old , and offenders will be sentenced to up to 20 years in prison and a fine of $15,000 .

In some states, such as California (where Bao Yuming is said to be qualified as a lawyer), "approaching age" does not constitute a " full immunity " from "statutory rape", but only a " partial immunity ". Under California law, any "consensual" sexual relationship between a person over the age of 18 and a person under the age of 18 constitutes "statutory rape"; however, if the age difference between the two parties is within 3 years , the adult party will be charged with a felony ( felony) is reduced to a misdemeanor, although not fully exonerated.

Other state laws do not provide any "proximity immunity", but there are other alternative measures in judicial practice. Taking Massachusetts as an example, one of the elements of the crime of "statutory rape" is that one party "abuses" the other party under the age of 16; in terms of prosecution, whether there is " abuse ", the basis for the determination includes the latter Whether they were physically or mentally injured (for example, the victim in the Bao Yuming case had psychological symptoms such as PTSD), whether the adult party used power to pressure the minor (for example, the strong power relationship between the adoptive father and daughter in the Bao Yuming case), or whether pedophilia commonly used "grooming" tactics, etc.

In reality, since there is basically no such "bullying" factor for consensual sex between two minors, even in places like Massachusetts, where there is no "proximity-of-age immunity" clause, it will not be prosecuted.

On the contrary, sexual acts between adults and minors often contain such "oppressive" factors in reality, so prosecutors generally acquiesce to "statutory rape" for prosecution. Not only that, Massachusetts law also stipulates that the age difference is too large, will be used as the basis for increased sentences : if one party is under 12 years old and the other party is more than 5 years old , or if one party is under 16 years old and the other party is more than 10 years old ( As in the case of Bao Yuming), the older party will be sentenced to a minimum of 10 years and a maximum of life in prison, with no bail or commutation during the first 10 years of the sentence.

3. Filling the child marriage loophole

As mentioned earlier, child marriages abound in human history; at the beginning of the 20th century, some states in the United States raised the "age of sexual consent", but failed to raise the legal age of marriage at the same time due to opposition from religious conservatives. Today, although the vast majority of states have changed the legal age of marriage to 16 or higher , there are still very few states that allow minors between the ages of 13 and 15 to marry without any age limit at all (see : https://www.law.cornell.edu/wex/table_marriage ).

Note: The "legal age of marriage" mentioned here is not the same as the "legal age of voluntary marriage". In most states in the United States, if a person who has just reached the "legal marriage age" wants to get married, he must first obtain the approval of his parents, other guardians or a judge ; only those who have reached the "legal age of voluntary marriage" can choose to marry. The "legal age of consent" in most states is 18 or higher . Even in states with very low or no “legal age of marriage”, the “legal age of voluntary marriage” is relatively normal: for example, in New Hampshire, the “legal age of marriage” is 14 for males and 13 for females (parents must be at the same time as the judge). Approved), but the "legal age of voluntary marriage" is 18 ; Mississippi does not limit the "legal age of marriage" (must be approved by parents or a judge), but the "legal age of voluntary marriage" is 17 for men and 15 for women .

Since the "legal age of marriage" (and sometimes even the "legal age of consent") in some states is lower than the state's "age of sexual consent," there was a theoretical loophole at one point in the law: a person who would have committed "legal rape" "The person who committed the crime, married the victim before the prosecution found out (perhaps by baiting the victim himself, possibly by making a deal with the victim's parents, marrying the victim to avoid embarrassing the victim's family, etc.) ), thereby making sex justified.

At the call of women's rights groups, states with such loopholes have amended their laws over the past few decades to fill them. The most common of these is the introduction of "age gap" provisions into marriage law. For example , Missouri amended its law in 2018 to raise the legal age of marriage from 15 to 16 on the one hand, while prohibiting those over 21 from marrying those under 18 . In doing so, the conflict between the state's marriage law and the "proximity-of-age exemption" is eliminated.

4. News reports and public opinion

This Bao Yuming case caused a public outcry. In addition to the outrageous case itself, Caixin's report that was completely unprofessional and extremely partial to Bao Yuming ("Doubts about the Sexual Assault of an Adopted Daughter by Executives", has been deleted), and the subsequent The apparent lack of sincerity in the "apology" was also an important driving factor. There have been many specialized analyses on how Caixin's reporting violates journalism professionalism, so I won't repeat it (for example: Fang Kecheng, " How Should Media Report Sexual Assault Cases? Report on Caixin's Bao Yuming Case") For example ").

In a more general sense, Caixin's report and some subsequent voices defending it (for example, some claim that netizens' indignation at Bao Yuming and the Caixin reporter is a "public opinion public trial" that takes a stand first; Another example is Caixin’s intentional or unintentional hint in its “apology” that those who are dissatisfied with it are just unwilling to accept the “truth of complicated facts” that “doesn’t meet the expectations of people (including us, Caixin)”), and it goes back to A major debate since the rise of the "Rice Rabbit" movement two years ago: How to understand the role of public opinion in the issue of sexual assault?

In this regard, I made a systematic discussion in the article " Me Too: Public Opinion Movement as Collective Action " . Due to the length of space and too many sensitive words, I could not publish it on the official account. Interested readers are welcome to Read this download: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3463859

Summary:

This article is the first in a series of two planned articles, which aims to provide a more comprehensive and systematic analysis and response to various common views and arguments of MeToo skeptics. The first section takes the United States and China as examples to sort out the local context of the anti-sexual harassment movement, as well as the problem awareness and challenges it faces in their respective contexts; on this basis, summarizes the MeToo movement's accountability, empowerment and change The three-fold appeal, and the arguments of the doubters are classified into three types: "criticism of gangsters", "criticism of weak women" and "criticism of Taoists". Sections 2 to 4 respond to different versions of "Criticism of Gangsters", Section 5 focuses on refuting "Criticism of Weak Women", and "Criticism of Taoists" will be discussed in the next part of the series.

Specifically, the second and third sections respectively clarify the abuse and misuse of the concepts of "presumption of innocence" and "public opinion trial" by doubters, and point out why doubters regard the MeToo movement (and other public opinion movements) as trampling on the rule of law The carnival of gangsters is based on a misunderstanding of the principle of the rule of law and a misplaced stress on historical experience. Sections 4 and 5 respectively analyze the doubters' "false accusation theory" and "self-victimization theory", including summarizing and discussing relevant empirical research, as well as stripping the concept and logic of such discourse, revealing How gender bias is implicitly and deeply distorting our perceptions of sexual harassment. It is precisely because of this distorted system that we cannot effectively oppose sexual harassment in a straggling way. Instead, we must mobilize public opinion movements such as MeToo to promote the change of social and cultural concepts through collective action, and on this basis Build a new relief system.

As an example of public opinion, several Chinese lawyer friends in the United States recently drafted an open letter to the California State Bar Association, calling on it to investigate the Bao Yuming incident and revoke or suspend his California lawyer qualification. Everyone is welcome to join us: https://forms.gle/sTg8XF93rZ24JvuBA

5. Others

Since I haven't posted a public account for a long time, I will mention a few things here by the way.

First, during the summer vacation last year, I was invited by Mr. Tan Liwen to do a podcast on "Seahorse Planet", and talked about some legal projects related to gender equality that I participated in at Yale Law School, including domestic violence victim assistance. , Campus Sexual Harassment Working Group, abortion rights cases, etc. This podcast officially launched a few weeks ago, and you are welcome to listen: "Help Victims of Domestic Violence at Yale Law School" ( https://www.ximalaya.com/renwen/12558418/273158241 ).

Second, I recently published a paper in The Journal of Contemporary China , Beaconism and the Trumpian Metamorphosis of Chinese Liberal Intellectuals . The official version of the magazine has not been published yet, but I uploaded a preprinted version to the Internet first. The content is similar to the official version (some typos and inaccurate expressions in the preprinted version have been corrected in the official version). Interested Readers can get a sneak peek: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3538736

Summary:

This article examines the puzzling phenomenon that many Chinese liberal intellectuals fervently idolize Donald Trump and embrace the alt-right intellectual ideologies he epitomizes. Rejecting 'pure tactic' and 'neoliberal affinity' explanations, it argues that the Trumpian metamorphosis of Chinese liberals is precipitated by their 'beacon complex', which has 'political' and 'civilizational' components. Political beaconism grows from the traumatizing lived experience of Maoist totalitarianism, sanitizes the West and particularly the United States as politically near-perfect, and gives rise to both a neoliberal affinity and a latent hostility toward baizuo . Civilizational beaconism, sharing with its nationalistic counterpart – civilizational vindicativism – the heritages of scientific racism and social Darwinism imported in late-Qing, renders the Chinese liberal intelligentsia receptive to anti-immigrant and Islamophobic paranoia, exacerbates its anti- baizuo sentiments, and catalyzes i ts Trumpian convergence with Chinese non-liberals.

Third, the only column article published last year: https://theinitium.com/article/20190605-opinion-liberal-international-order-post-june4/

Fourth, last year's year-end summary: " People reach middle age " ( http://dikaioslin.blogspot.com/2019/12/2019.html )