Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Kavin Mi Yang
The survivor of rape is the party that is wronged, they are not the party to be blamed. Instead of taking precautions to not get raped, ideally, rape should not occur in the first place: ‘improper dressing’ and ‘flirtatious words’ provides no defence.
Introduction
The most important common feature of establishing rape in both Chinese and UK law is ‘lack of consent’ of the victim, and both legal systems do not require active consent for this to be established. Both Legal systems have serious penalties for rape, with the maximum penalty being life imprisonment in the UK[1] and death penalty in China[2], but this is often not the case in reality[3]. However, the Chinese legal system does not have a uniform list of elements to be applied every case (this is what the UK system is like) to determine whether rape has been committed. Instead, the key elements vary on a case-to-case basis.
How rape is established in UK
Rape occurs when there is penetration with a penis (penetration is a continuing act only ending with withdrawal[4]) of the vagina, anus or mouth (vagina held to be used in general sense of female genital[5]) without the consent of the victim (s74 Sexual Offences Act 2003: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’, note that submission is not equivalent to consent[6] and that the victim must have the choice as to whether to consent or not[7]). The penetration must be intentional (direct intention only, i.e. the penetration is the purpose of their act) and that the defendant does not reasonably believe that the victim consented based on his own reasonable belief at the time.
How rape is established in China
Rape can be established where there is an unlawful act (e.g. violence and/or threat by the defendant) that leads to the sexual intercourse. If the unlawful act is proven to be logically linked to the sexual intercourse, rape can be established without considering the intention of the defendant and victim[8]. Another way to establish rape is to prove that there is lack of consent of the victim to the sexual intercourse without looking to the act of defendant. The 3rd way to prove rape is to prove objectively that the intention of defendant was to have sexual intercourse with the victim without her consent[9].
Common Features
The UK legal system does not require the defendant to take specific steps to ascertain consent (i.e. consent can be implied and no need for active consent), this is also the case for China[10]. Though both legal systems have serious penalty for rape, the average custodial sentence for convictions of rape is 95.7 months for the UK[11] and 72 months for China[12], far less serious than the most serious penalty for rape in the 2 countries.
Difference
The main difference is that while the UK law on rape can be concluded as a list of 5 elements to be satisfied, the Chinese law on rape is not unified. With different key element to be satisfied in different cases, and rape can often be convicted with a single key element satisfied, e.g. if there is no consent of the victim to the sexual intercourse[13], this renders less legal burden but less certainty than the UK legal system
Conclusion
The Chinese and UK law on rape has more similarities than difference. They both focus on the consent of victim, do not require active consent and both court systems are lenient in terms of sentencing. It can be said that the UK rape law is more unified and certain than the Chinese law.
Image: Angana Chakrabarti ‘What’s chemical castration — the punishment Pakistan plans to introduce for sex crimes’ https://theprint.in/theprint-essential/whats-chemical-castration-the-punishment-pakistan-plans-to-introduce-for-sex-crimes/552877/, accessed 19th Feb 2021
[1] Sexual Offence Act 2003, Section 1 (4) [2] Chinese Criminal Code No 236 [3] Lili Loofbourow ‘Why Society Goes Easy on Rapists’ https://slate.com/news-and-politics/2019/05/sexual-assault-rape-sympathy-no-prison.html, accessed 20th Feb 2021 [4] R v C [2009] UKHL 42. [5] R v F [2002] EWCA Crim 2936. [6] R v Doyle [2010] EWCA Crim 119 [7] R (on the application of F) v DPP [2013] EWHC 945 [8] Procuratorate v Chen [2020] Chinese Supreme Court 1339 [9] Tian Gang ‘Problem to Conviction of Rape and its solutions’(2020) 37 Studies in Law and Business 196 [10] Sun Shi Chao ‘Rape in Marriage’ (2019) Hubei Police College Report 1673—2391(2019)01―0090―08 [11] ‘Column 63W’ (www. parliament. uk 2010) https://publications.parliament.uk/pa/cm201011/cmhansrd/cm101108/text/101108w0003.htm#10110832001246, accessed 18th February 2021 [12] (n7) [13] (n7)
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