Yesterday, Lu has received the discipline sanctions of expulsion from his office (开除公职) and from the party (开除党籍). The deputy party secretary and the political commissar 政委 of Yibin public security office held that Lu’s conduct did not constitute a crime, so they have levied a 6.000 yuan fine on him and sentenced him to 15 days administrative detention (行政拘留).
Allegedly Lu’s behaviour did not reach the seriousness treshold of art. 360(2) of the Criminal Law.
Article 360. Prostitution, visiting prostitutes. Those engaging in prostitution or visiting a whorehouse knowing that they are suffering from syphilis, clap, or other serious venereal diseases are to be sentenced to five years or fewer in prison or put under criminal detention or surveillance, in addition to having to pay
Those who visit young girl prostitutes under 14 years of age are to be sentenced to five years or more in prison an addition to paying a fine.
Lu stated he didn’t know that He ** was thirteen, so according to the police he did not commit an offence, and could get away with a fine and a couple of weeks in the slammer.
The treatment of Lu points to a worrying trend whereby the defendants in the Xishui child rape case might go unpunished, or receive too lenient punishments – as in the case of Lu.
As I have explained elsewhere, Lu (as well as the other defendants) should have been charged with rape.
In this case, article 360 cannot be used. Because if the girl is lured or forced into prostitution -as the girls in Xishui were – article 236 (rape) is to be used instead:
Article 236. Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixedterm imprisonment.
Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment.
Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than 10 years of fixed-term imprisonment, life imprisonment, or death:
(1) rape a woman or have sexual relations with a girl and when the circumstances are odious;
(2) rape several women or have sexual relations with several girls;
(3) rape a woman in a public place and in the public;
(4) rape a woman in turn with another or more persons;
(5) cause the victim serious injury, death, or other serious consequences.
An important condition to use this article is that Lu and the others knew that the girls were under 14. In theory, they can claim they didn’t know that the girls were under 14. In practice things are different. Journalists have proved how in Xishui advertising teen prostitution was quite common, and ads as this one could be found everywhere:
Lu and the others were looking for very young girls, rather than older women. They should have known that if they visited very young sex workers the chances were quite high that one or more of them was under 14. They should have known that having intercourse with them constitutes the crime of rape.
Did they take every reasonable precaution to avoid this?