Male rape: The crime that doesn't legally exist

Legal loopholes mean many sexual assaults go unpunished, and sentences are too lenient.

During his 10 years as a criminal lawyer, Yi Shenghua has dealt with many cases involving injuries sustained during sexual assaults. However, sometimes he has been unable to find a legal basis for prosecution and has had no alternative but to suggest that the victim apply for a large amount of compensation.

"I'm sure that many men have suffered injuries as a result of sexual assault, but gaps in the law mean it's difficult to file charges and take the case to court," he said.

A case in point is that of Xiao Gang (not his real name). Xiao claimed he was walking along Binjiang Street in Chongqing's Hechuan district on Sept 12 when he was abducted, forced into a squalid room, and sexually assaulted, Chongqing Evening News reported.

However, the local police had to release the man Xiao accused of the attack because male rape isn't classified as a crime in China - in fact, it doesn't even appear on the statute books. Instead of arresting the suspect, the police had no option but to issue a stern warning and let him go, the report continued.

Similar incidents have occurred across the country, but none of the offenders were convicted of rape. Instead they were accused of causing intentional injury or, if the victim was below the legal age of consent, child molestation, according to Yi, who said the sentences are usually far too lenient.

In 2010, a 42-year-old security guard sexually abused an 18-year-old man in a dormitory, but instead of being charged with sexual assault, the offender was convicted on the lesser charge of intentional injury, and sentenced to 12 months in prison, Beijing Legal Evening News reported.

In 2012, Li Jun, an official at the Guangzhou Civil Affairs Bureau in Guangdong province, was sentenced to four years in jail after being found guilty of sexually abusing a number of boys because prosecutors were unable to charge Li with male rape, Guangzhou Daily reported.

Had the victims been female, Li would have been sentenced to at least three years in jail, according to Yi, who added that sentences for rape vary according to the circumstances. For example, the use of extreme violence, gang rape, or forcible sex with a female minor could result in the death penalty.

"For a sexual assault to be defined as rape, the victim must be female, and the damage should be obviously serious," Yi said, who believes that the law has failed to adapt to developments in society.

'No legal interpretation'

"At present, there is no legal interpretation of how to deal with sexual assaults on men, which results in a dilemma for the judicial authorities," he added.

Ding Jinkun, a criminal lawyer in Shanghai, said the lack of recognition in legal terms presents challenges for judicial officers when dealing with allegations of male rape.

"Offenders will be charged with causing intentional injury when the victims have identifiable physical injuries, or with child molestation if the victim is a minor. However, in most cases of sexual assault, the mental damage is the key issue, especially when minors are involved."

Both Yi and Ding called for a revision of the current law and suggested that the legislators should widen the legal interpretation of rape.

In Western countries, both men and women are protected by the legislation pertaining to rape, so cases can be brought to court irrespective of the gender of the victim or the offender. The aim is to protect every citizen's legal and sexual rights. In China, however, the law only recognizes the offense as rape if the victim is female.

According to Yi, in the special administrative regions of Macao and Hong Kong, male rape is recognized as a crime, and the law provides specific punishments for the offense.

"Such a crime produces a negative effect on society, so it's wrong to give offenders administrative detention or just tell them off and let them go. It's necessary to protect peoples' sexual rights," he said.

Ding urged mainland legislators to put revision of the law on the agenda because of the increasing frequency of cases of male rape. "Previously, the offense was believed to be rare because only a few cases were reported in the media, so the legislators didn't realize how serious the situation was. Also, traditionally, we thought women were the most vulnerable group, so we didn't think it necessary to legislate against male rape," he said.

"But now we can't avoid this thorny problem. If we continue to ignore it, infectious diseases, such as HIV/AIDS, may become even more serious issues. Moreover, some people may deliberately use this legal loophole to go on the offensive but avoid punishment," he said.

He urged legislators to push for a quick revision of the legislation to ensure that everyone is equal in the eyes of the law, and to reduce the number of offenses. Lawmakers should also consider the best ways of protecting the privacy of victims, both as a matter of common decency and to help the police to collect evidence.

Pu Xingzu, an expert specializing in legislative affairs at Fudan University, said he is in favor of revising the law relating to rape, but stressed that the quality of legislation is more important than the number of laws passed or the speed at which they are enacted.

"Legislators must conduct sufficient research before laws are revised, and they must always ensure that the list of laws to be amended accords with public necessity," he said.

He confirmed that the subject of revising the law pertaining to male-on-male sexual assaults and rape has already been discussed by China's top legislative body, "but it may have to wait until other revisions, such as those to laws designed to further prevent and reduce air pollution, have been dealt with.

"We are certainly not indifferent to the problem, but priority must be given to legislation that addresses problems that affect the entire population and the widest public interest.

"Conducting research into sexual offenses is a difficult task because it requires a strong legal background and some knowledge of psychology. So it will take a great deal of time and energy. In addition, we must ensure that the law can be applied successfully after the revision, or those efforts will be in vain. Although the law relating to rape will take time to revise, the more research we conduct, the better the quality of the legislation will be."