强奸案里的伦理与法律 - Ethics and Law in rape cases – English

  
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Ethics and Law in Rape Cases

by Shi Po (石破)

Last year in a town in Shanxi, a court director discovered a strange phenomenon: the court had tried four consecutive rape cases, all of which were “date rape” cases. The details of the cases were more or less identical: A young man and woman are introduced by friends. They quickly get to know each other. The man invites the woman out for dinner and singing. The woman joyfully accepts and doesn’t refuse going to a hotel and getting a room. But then the man brings up his demand for sex and is refused. Unable to control his passion and caring about nothing else, the man rapes the woman. Afterwards the woman asks to “borrow” a few thousand yuan, and the man thinks, “not even a prostitute is that expensive,” and refuses to give the money. The woman calls the police and the man goes to court. Two of the cases, only two or three months apart involved the same woman. The judge suspected that the woman was setting the man up and blackmailing him, but there was a lack of evidence. In the end, the court charged the several perpetrators with rape and gave them varying sentences.

One town has four cases like this and other places probably do too… is it possible that this is the new face of rape cases? The court director gave his own explanation to a friend, a lawyer working in Xi’an named Zhang DongSheng (张冬生), but when the reporter tried to arrange an interview through Zhang, the court director cautiously refused.

“Date Rape”

An investigator in Xi’an said that in recent years, because men and women are meeting on the internet, instances of rape increasingly take place in hotel rooms. Puzzled, the investigator asks, “Two people become friends on the internet, and then they go and get a room. If it’s not a one night stand, and it’s not “lightning marriage”闪婚, then what do we call it?

In Xi’an, May 2011, after an argument with her boyfriend, one young woman feeling wronged and acting rashly, posted on the internet looking for a friend. After seeing the post, a male college student contacted her and arranged to meet. The two rented a room in a hotel and were together for four hours, during which time the two had sex twice and showered together. Later that night, the young woman met her boyfriend, who discovered scratches on her neck. After being questioned about the scratches, the woman claimed she was raped. The boyfriend took her to a police station to report the crime and the college student was arrested. The scratches were considered the primary evidence of rape by the investigators.

However, the defendant’s attorney had this to say in his defense,

“Those scratches aren’t really the product of violent rape. When the two got to the hotel, the man under the pretext of playful competition pushed the woman onto the bed. The woman got angry and scratched his neck, so the man scratched back. After the two parties scratched each other, the woman accused him of being a brute, then wept

woefully. The man then heckled her for ten minutes. After that, the two had sex. Initiating the removal of her pants, changing her position during sex, and other details prove that she was willing.”

In her testimony, however, the woman said that she was diabolically raped. She agreed to rent the room, but she didn’t agree to going to bed. She said she was coerced into having sex with the man, but afterwards, why didn’t she report the incident? The woman said that after leaving the hotel, her “clothing was neat and orderly,” no one would have believed that she had been raped, so she didn’t report it. In the trial, the court decided that the man was guilty of rape.

Adultery *1 and rape are only one step away from each other. The defense attorney, Zhang GuoAn (张国安), had spent sixteen years as the head of a police office. When talking about the differences between rape cases of the seventies and eighties, and those of today, Zhang had this to say, “At that time, there was no internet, no going on a date and getting a room, or these kind of things. Most of the rape cases then happened in the wilderness. A woman would be walking along by herself and would get raped by a stranger. One party reported the crime, the other party got caught. It wasn’t so ambiguous and hard to affirm as it is today.”

Money, Sex, and the Law

Lawyer Cheng RuiMin (程瑞敏) of the Shanxi law office, YongJiaXin (永嘉信), told the reporter of this case: A not-even 14-year-old girl in BaoJi (宝鸡) was arguing with her family and left home to be a waitress at a KTV in a neighboring town. The first day on the job, a group of six males came to patronize the KTV. Two of the males were the girls cousins and fancied the girl, so they offered her 300 yuan each to sleep with her. She agreed and went with the cousins to their house, but the four other males tagged along. That night, each male had sex with the girl two or three times. Most of the people in this group were minors. The “younger cousin” had just turned fourteen.

Why is it that an environment originally designated for the picking up of prostitutes could so easily turn into a venue for gang rape? It’s because the two places have so much in common: that patrons have in mind what they’re after, there are price negotiations, the naïveté of girls, convenient places to have sex and the lustful explosions of many men who can subjugate a woman. A girl of not-even fourteen years can’t guard against these things.

At dawn, the girl wanted to leave, so she asked the cousins for the money. They said, “It’s not even daybreak. We’ll take you back to the KTV after daybreak.” The girl used the opportunity of going to the bathroom as a pretext to escape to a neighbor’s house where she wept and told them what happened. Then the neighbor took the girl back to the KTV. The girl then returned home alone where she told her story to a classmate who told the girl’s parents who reported the crime leading to the arrest of five of the suspects.

In her testimony, the girl didn’t admit to prostitution, but claimed she was forced into the car. She claimed the 600 yuan she asked for before escaping at dawn wasn’t her prostitution fee, but was to be used to get home. The court was convinced of the girl’s explanation. After the first trial, except for the fourteen-year-old perpetrator who received a light sentence, the others were sentenced to fifteen years in prison.

During the second trial, Cheng RuiMin served as the defense for the two “cousins”. She thinks that this not-even fourteen-year-old girl has a weak sense of shame in regards to sex and has had sex in the past because after each time with the six males she employed an ancient douching technique in the bathroom. The bathroom of the house was in the yard and the gate wasn’t locked. She had at least ten opportunities to escape this trap, but nevertheless did not. Only after the money she asked for didn’t appear did she finally think about escaping. This explains the possibility of the girl initiating the selling of herself. The 600 yuan she asked for is the same amount that the two parties had agreed on before the incident, so it really is a prostitution fee.

Cheng RuiMin’s statement about the girl’s “weak sense of shame in regards to sex” was refuted by the judge who thought she could only be guessing without any basis. Her view of the two cousins as “more appropriately guilty of hiring an underage prostitute” was not accepted by the court, but the younger cousin’s sentence was reduced from 15 to 8 years in prison. The older cousin’s sentence went from 15 years to 10. The sentences of the others remained unchanged from the first trial.

Cheng RuiMin’s colleague, Li XiuMei (李秀梅) said, “The definition of rape is a woman’s will is violated by force, but in this case, the victim didn’t report the rape right after it happened. When negotiations fell through, she felt slighted and began haggling. The victim should not have weighed the pros and cons so leisurely. In the first case, the victim didn’t think anything of it, but her boyfriend felt like his own desires 占有欲 had been violated, saw himself as the victim, and so he reported the rape. This is just unbelievable.” *2

The lawyer Zhang DongSheng mentioned earlier handled an “Acquaintance Rape” case in 2010. The details of the case are as follows: On the evening of March 2, 2008, three young farmers in the outskirts of Xi’an consumed alcohol and then raped a peasant woman of the same village. The amount of evidence in this case was abundant. Not only was the victim gang raped, but was also pushed off of a dirt mound, injuring toes on her left foot. The next day the peasant woman had her brother-in-law find the assailants to get money from them to pay the medical bill to treat her foot. The three were only willing to pay 200 yuan. Disappointed, the peasant woman reported the case. The police arrested two of the suspects one after the other, but the third suspect fled.

After two years, the third suspect could no longer endure a life on the run so he sought Zhang DongSheng’s council for giving himself up. Zhang agreed to accompany the suspect in turning himself in, but reminded him, “If after you turn yourself in, the investigative body’s facts are different from what you say, you’ll be unable to affirm your surrender.” *3 All through turning himself in, being detained, tried, and prosecuted, the third suspect never admitted that he had raped the peasant woman. However, the facts of the victim’s testimony, the depositions of the two accomplices, and the crime scene investigation are all enough to affirm his guilt. His lawyer and family members all repeatedly advised him to admit his guilt in hopes of getting a lighter sentence, but the suspect maintained, “I didn’t rape anyone. I couldn’t be found guilty and sentenced to even ten years.” His obstinance became the focus of the the court. At last he was sentenced to ten years in prison. Why would the suspect rather forego a lighter sentence from turning himself in than admit that he had raped the peasant woman? Through repeated analysis, the lawyer Zhang DongSheng thinks the sole reason is that the defendant feels admitting this crime would cause him to completely “lose face” and he would have to hang his head in shame for the rest of his life in the village.

At the time of the incident, the rapists were only about 20 years old and the peasant woman was 42 and not especially beautiful. They ran into each other at the entrance of the village. In the hazy twilight, the peasant woman’s sex features elicited the evil intentions of the three drunken men. All that this short human adventure brought the three drunks was regret. You know, rapists are even despised in the “criminal world”, moreover, they chose to rape an old peasant woman.

Afterwards in detention awaiting imprisonment, this young man spoke with Zhang DongSheng, “Mr. Zhang, I’m not going to lie to you. I go to karaoke bars and get prostitutes, even pretty ones.” Compared to the victim, the rapist seemingly lost more face. In village society where everyone is acquainted, how can he commit such a disgusting disgrace, face himself, his wife and children or his fellow villagers? He can only firmly suppress the real truth deep in his heart, try to endure, and try to redeem himself. After being violated, the peasant woman’s first thought was to get monetary compensation. A bone in her foot was broken and she needed money to see to it. This allowed the rapists to believe that money alone was enough to resolve the matter. The fact is, in the villages, many rape cases are settled like this in private with cash. They have the opportunity to evade civic responsibility entirely. The misconception of the three rapists lies in the assumption that if money can be used to resolve the matter, then it can be “bargained down”, and then the long arm of the law can be disregarded. Because the hopes of both parties differed greatly, negotiations broke down, so the peasant woman threatened to report the crime, and the three men indignantly fled. In court, the peasant woman quoted 200,000 yuan as her desired amount for “psychological damage” compensation, but there was no way to prove her psychological suffering amounted to this figure. Regardless, the law clearly does not support this kind of compensation. The court ordered the three accused men to pay the accuser’s medical fees and transportation costs, and to compensate her for missed work, totaling 6,370 yuan (Roughly $1000 USD). However the three men didn’t actually pay a cent. Other than sending them to prison, this hobbled peasant woman got nothing out of this. No one is interested in attending to her feelings. People can only sigh at the stubbornness of the last person caught.

“Victim Study”

Cheng RuiMin handled an attempted rape case in 2010 in Xi’an. A sixteen year-old girl in a sexually active relationship with her eighteen year-old boyfriend had an abortion. *4 However, the boyfriend had another sexual partner who had given him an STD which he transmitted to the girl. The girl spent a lot of money on treatment, and through her parents’ intervention, broke up with the boy. The boyfriend was not willing to accept it and tricked the girl into going to his house, where he unsuccessfully attempted to have forced sex with her. Taking the girl back to her house, the boyfriend repeatedly beat her until being discovered by by-standers who called the police. The boy was arrested, convicted with attempted rape, and sentenced to one and a half years in prison.

Once in a conversation with the boy, Ms. Cheng asked why when the girl announced the breakup he still tried to force sex on her, he replied, “Everyone says, ‘fight at the head of the bed, peace at the foot of the bed,’ meaning sex is the lubricant of a marriage. I wanted to use this method to urge her to stay.” The place that the two normally engaged in sex was the boyfriend’s house where the boy’s father *5 maintained a lax attitude in regards to what was going on. Ms. Cheng says some middle school students have boyfriends or girlfriends and some are even having sex. Most schools have no way of suppressing this, and don’t know how to guide them. They can only let it slide.

“Victim study” is a new and developing area of research in criminology. In a lot of criminal cases, the victim suffers greatly from the crime and often subconsciously assumes a victim mentality. In rape cases, the rapist and the victim both have their own definite intentions before, during, and after the rape. Only in adequately considering these intentions can a dynamic and complete understanding of the reasons for the crime be reached.

The several rapists mentioned above really aren’t hardened criminals. They all have the characteristics of people in the bottom rung of society. For the most part they’re young people with nothing better to do. Whether it’s the victim or the perpetrator, their thought processes and behavior are greatly affected by today’s changing moral principles, perspectives on virginity, and perspectives on money. The traditional meaning of a rape doesn’t touch upon romantic love. The rapists commonly detest women and use the victim as a tool for venting their sexual desires. They go to great lengths to defile the woman, violate the integrity and privacy of her body, and then humiliate and belittle her. In the “date rape” cases mentioned in this article, the two parties bit each other’s nipples and kissed each other “passionately.” In traditional rape cases, this could not happen.

Rape is a distorted kind of situation in society. When a potential victim and a potential rapist are put in the same situation by fate, a complete process naturally begins to operate. When the actions of the rapist exceed the scope of normal intercourse, the two parties are likely to have differing interpretations. Acting as the initiator of the sexual act, many men have difficulty clearly differentiating between forceful behavior and rape, and thus don’t take into account the woman’s resistance, even viewing it is a kind of flirting or “yielding while pretending to be reluctant.” When what begins voluntarily between both parties becomes a reprehensibly violent sex act, rape has occurred.

Along with the continual inundation of illegal prostitution in Chinese society, some men have learned that a woman’s body can have a set price, and after buying it, they unavoidably arrive at this conclusion: something that can be bought can also be had for free. In olden times, the concept of rape was as a crime in which the property of a father or a husband had been infringed upon. These days with the existence of sexual intercourse that can be exchanged for money, a woman resisting rape is tantamount to protecting her personal property. Thus, in a certain sense, a sex conflict can evolve into a conflict over money. Faced with the cold and sober law, we still have a lot sympathy for the victims. Current laws regarding the compensation for the violation of “virginity rights” are limited to compensation for psychological damages, but supplementary civil action compensation does not include compensation for psychological damages. Thus, in rape cases, the rapist standing in the courtroom is the focus of everyone’s attention while the victims’s rights and interests are often overlooked or even forgotten.

Written by Shi Po (石破)

Translation by Kelly Kniha

Notes from the translator:

*1: According to my dictionary and then a search on a Chinese message board, 通奸 really does mean adultery as the word is understood in English, but in my opinion, the author fails to explain how “rape is one step away from adultery.”

*2: Here I think she’s referring to the case where the woman gets into an argument with her boyfriend and finds the college student on the internet.

*3: Meaning that he would still be arrested, but would not enjoy the lighter sentence that accompanies a suspect’s surrender.

*4: Original text is 流过一次产. I don’t know if that means she had an abortion or a miscarriage. My guess is it’s the former because of the mention of medical bills and it seems likely given the circumstances.

*5: Literally “head of household”. It also could have been his mother who maintained the lax attitude.

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Source : 21ccom

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