A crime that leaves victims unprotected

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.

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."

Psychological trauma

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.