Legal Aspects of the Deng Yujiao Case
|Alice Poon||Jun 12, 2009|
Here is my translation of the article:-
"The legal interpretation of 'rape' is using force to engage in sexual activity with an adult female without her voluntary consent (for under-aged females, regardless of whether the engagement in sexual act is voluntary or via use of force, the act is considered rape). In this legal interpretation, 'force' is the key word that determines the criminality of the act. In real life, the 'force' used in a rape crime is not limited to 'sexual penetration' or 'contact of the genitals', which acts are far from being a determinant factor – such acts can only be used to label a rape as one that involves sexual penetration or one that does not; they do not determine the criminality of the sexual act in question.
Those who are not familiar with the spirit of the law often focus on whether the sexual act involves penetration or not – if no penetration occurred, then the case of rape cannot be established. This is a very erroneous view about rape crimes.
In today’s spirit of the rule of law, freedom and equality are the core values of humanity and they form the cornerstone of the entire system of law.
In a criminal act of rape, as the intent of the crime goes against the free will of the adult female, it is thus a violation of the right to freedom, which is the most important cornerstone of the legal system – the natural freedom that one is born with, and the protection and respect accorded to women in upholding their sexual dignity and sexual right, are in fact a product of understanding and respecting basic humanity and are at the same time the important core content of thousands of years of human civilization. In any violation of women’s sexual dignity and sexual rights that causes them physical and mental harm, the degree of harm cannot be compared with other types of bodily harm. In the Chinese society where people are still ignorant about sex issues, such kind of harm is all the more traumatic, as the ignorance often causes victims of rape to carry an unbearable burden of shame and disgrace. In the behavioral area, 'force' is not abstract but is real – as the rape victim is non-consensual, the use of force often turns into use of violence. If violence cannot make the victim submit and the perpetrator is bent on carrying on with the act of rape, then there is no way to predict the consequences of using violence – there are no lack of cases where the rapists kill their victims.
Based on the above factors, most modern countries regard rape as one of the most serious crimes of assault – it is sometimes considered as grave a crime as pre-meditated murder.
It is also based on such a concept that our country’s Criminal Law Clause 12 Sub-Clause 3 makes this ruling:-
'Any self-defense act against an ongoing act of extreme violence, murder, robbery, rape, kidnap, and other violent crimes that can cause serious bodily harm, even if it leads to harm or death of the perpetrator, is not considered self-defense using excessive force, and carries no criminal liability.'
From the perspective of the Chinese society's cultural understanding of the concept of 'one life for one life', people can more readily accept unlimited self-defense against a murder perpetrator. They may even accept such self-defense right in cases of robbery and kidnapping. But when it comes to rapists, they may not be receptive towards unlimited self-defense. Many women too do not understand the issue well enough and often think self-defense against rapists is self-defense using excessive force.
There are complicated reasons why Chinese society is oblivious to the vileness of the crime of rape. One obvious one is that the idea of sex equality is not commonplace. But the more important reason is that people adopt an overly materialistic attitude towards life, and generally have a lack of interest in the spiritual aspect. Hence, they don’t care much about freedom, dignity of life, dignity of sex and other similar ideals that distinguish the human species from other species. Many people regard ignominy to the family name and bringing shame to the clan as the greater evil brought on by the act of rape than the harm done to the victim.
In order to facilitate understanding of the case, just imagine a scene in which several strongly built and financially and socially powerful males closing in on the victim who has just escaped the first sexual assault attempt, using dirty abusive language while groping the victim, then pushing her several times so as to make her fall on her back on the sofa or bed.
Under such circumstances, because her basic personal safety is teetering on the brink, even if the men have no intention to rape her, any person with a normal thinking capacity would agree that the victim faces at least a serious threat of rape. At such a time, the victim’s right to unlimited self-defense is entirely acceptable.
As for those who say that a case of rape cannot be established because it took place inside a sex services shop, that is absolutely nonsense. As far as the law is concerned, the key point that determines whether a rape is a rape is whether the victim is consensual and whether force is used. As long as the victim is non-consensual, it can be considered a rape. Even if the perpetrator thinks he is not raping the victim, that has no relevance in considering whether the act is a rape.
In summary, affording a victim the right to unlimited self-defense against an attacker who engages in an act of rape is one basic humanity rule in a modern society governed by rule of law."