Seeking Justice for China’s ‘Underage Prostitutes’

BEIJING, China — Four and a half years ago in a small village on the outskirts of the coastal city of Yingkou in northern China, a woman stopped a 12-year-old girl outside the child’s school and lured her into a car. “If you don’t come with me, I will beat you every time I see you. You will not have any more good days in your life,” state media reported her saying. The woman and an accomplice allegedly used similar threats to bring seven other rural schoolgirls to a rented apartment. There, the girls were stripped, beaten, and kept in one locked room. Over 18 days in September 2011, they were taken to hotels and raped repeatedly by at least four men, including a retired local government official and a village head. The men reportedly paid the two kidnappers up to $270 each visit. The girls were beaten into submission and forced to watch and wait their turn, according to official media.

State news agency Xinhua said that the youngest victim, a 12-year-old referred to in reports under the alias Yang Yun, knelt in front of her mother after police brought her home, bowed her head and said: “Mom, I was sold.” Five of the girls were between 14 and 17 years old; two other victims were just 13.

But after the suspects’ arrest, they were not charged with kidnapping or rape, but instead with “engaging in sex with underage prostitutes,” a criminal classification that legal experts claimed had shamed the victims into silence. It is unclear whether the perpetrators were ever punished. Hundreds labeled as “prostitutes” in China have been exploited in similar ways, according to government statistics, although cases are likely underreported. Following years of lobbying from activists, Chinese lawmakers have finally struck out the controversial crime and reclassified it as rape. But China’s laws are still riddled with loopholes that allow perpetrators of sex crimes against children to escape justice. And the ongoing crackdown on human rights lawyers and civil society — including the Feb. 1 shuttering of Beijing Zhongze Women’s Legal Counseling and Service Center, the legal aid organization responsible for the campaign against the “underage prostitutes” classification — is only making things worse.

China doesn’t regularly provide estimates of the number of children forced into sex work in the country, but police said they rescued more than 24,000 abducted women and children in 2011, many of whom were bound for prostitution rings. Child trafficking cases have been growing since 2001. There were 176 cases of underage sex crimes between the years 2000 and 2004 with 240 people sentenced, but in 2009 alone, authorities arrested 175 people in relation to underage sex crimes. Among these cases, those that involved an exchange of money were usually classified as “engaging in prostitution with an underage girl” rather than the more serious crime of rape. (No official breakdown of the cases is available.) A report from the UN-backed counter-trafficking group COMMIT found that rural girls and young women in China are especially vulnerable to sexual exploitation for profit or sale into marriage by traffickers. In an interview with Foreign Policy, veteran women’s rights activist Feng Yuan said it’s an “ugly problem fueled by the traditional belief that taking a girls’ virginity is like getting a trophy.” As Feng noted, “Men are willing to pay large sums for the opportunity.”

Years later, the Yingkou case still troubles human rights lawyer Lü Xiaoquan, who was deputy director of Zhongze, the organization which led the push against the “underage prostitutes” designation, until its apparent forced closure on Feb. 1. When the pale, bespectacled 34-year-old took over representation for the girls in 2012, prosecutors in Liaoning province had already charged seven suspects with the crime of “engaging in prostitution with an underage girl.” The offense did not require a finding that the sex was nonconsensual. Legal scholar Duan Xiaosong described that crime in her 2014 study as one of the most controversial offenses in Chinese criminal law, since it suggests children could have the ability to freely choose sex work. When lawmakers rewrote key sections of China’s Criminal Law to introduce that offense in 1997, they originally intended to give better protections to underage girls involved in prostitution, thinking that they were too young to be punished even if they had agreed to sex work. Instead the measure created legal loopholes — like allowing a defendant to dodge culpability by claiming no knowledge of the victim’s underage status — that have helped offenders avoid harsh penalties, according to Duan.

Sitting in a plastic chair in the cluttered office where he had worked since graduating from law school, Lü said the law’s wording made the Yingkou victims too ashamed to cooperate with police. “The girls were not prostitutes; they were child victims,” Lü said. But instead of seeking retribution, the girls’ families accepted compensation from the suspects to stay quiet. In the end, six of the girls received $1,575 each, one girl got $3,042, and Yang Yun, who was reportedly raped at least three times, was compensated $4,563. “After that they said they told me they didn’t need a lawyer anymore,” Lü said, with a shake of his head.

“Even now I don’t know if the people who exploited them were punished for any crimes. I cannot find information online, and the victims’ parents tell me they don’t know the results of the case either,” Lü said. The older girls in the Yingkou case received less compensation from their attackers, probably because some laws in China have two categories for minors: those under the age of 14, and those aged 14 to 17. It’s a legal oddity that downplays the severity of offenses against girls in that middle range — the crime of “engaging in prostitution with an underage girl” only applied to offenses involving girls under the age of 14. Lü said a mother of a 14-year-old victim tried, unsuccessfully, to convince police that her daughter’s birth certificate was wrong and the girl was in fact 13 years old at the time of the kidnapping. It is unclear from media reports whether prosecutors filed any charges in relation to the rapes of five Yingkou girls aged 14 or older.

The problem is long running. A case from 2008 had first raised wider public awareness and sparked a campaign to fix loopholes in sexual assault legislation. That year, Lu Yumin, a tax official in the southern city of Yibin, paid $912 to have sex with a 13-year-old virgin but initially escaped with only 15 days’ detention and a $760 court-ordered fine. After he was arrested and charged with “engaging in prostitution with an underage girl,” the man insisted that he had not known her true age. Soon Chinese news websites were awash in information about the case. Yibin police reportedly said that paying to have sex with an underage girl was not a crime as long as the offender is unaware of the child’s age and if the sex was “consensual.”

The case enraged the public. Thousands of people discussed the case online, with many saying that the apparent loophole was “an insult to the intelligence of all Chinese people.” In August 2009, authorities surprisingly reversed course and a local district court sentenced the tax official to 10 years in prison for the crime of rape — not for sex with an underage prostitute.

Buoyed by public support, Lü and other lawyers lobbied the National People’s Congress (NPC), China’s pro forma legislature, to treat all sex with children as rape. They delivered proposals to lawmakers in 2010, 2013, and 2014, but these efforts failed to amend the law. Finally, in August 2015, the NPC approved the proposal to reclassify the crime of “sex with underage prostitutes” into rape. The previous maximum penalty for the crime was 15 years behind bars. With the new classification, the crime could mean life in prison, or in some cases, death. Advocates celebrated the decision, telling FP that it is a rare example of how years of advocacy can lead to legal reform. In November 2015, lawmakers also implemented another change to the criminal law to recognize male victims of sexual assault.

This issue highlights the uneven legal reforms China has made in recent years. On the one hand, China’s leaders have shown a willingness to recognize that bad lawmaking has led to serious unintended consequences, and to make subsequent moves to fix loopholes and improve practices. On the other hand, the state appears to be working in overdrive to strike fear into human rights lawyers. Rights protections and grassroots advocacy have long carried serious risks in China, but since Chinese President Xi Jinping came to power in 2012, the situation has deteriorated even further. Since summer 2015, over 300 human rights lawyers and activists from across China have been detained, summoned by police, or have disappeared, according to the Hong Kong-based China Human Rights Lawyers Concern Group. Even Zhongze, which stood at the forefront of the campaign to banish the concept of the “underage prostitute,” was shuttered on Feb. 2016, likely a target of the government’s ongoing clampdown on civil society.

Some advocates who lobbied on women’s rights issues formerly believed their work was less politically sensitive than causes like forced demolitions or religious freedom. But this changed in March 2015 when five Chinese feminists were arrested and jailed for over a month. The women were reportedly planning to distribute stickers featuring slogans against sexual assault, including a call for police to arrest sexual-harassment suspects.

But the recent legal amendments still do not go far enough, said legal experts who spoke to FP. China has one of the lowest ages of consent in the world, at 14 years old. It is “usually the case” that someone who raped a 13-year-old will receive a harsher sentence than someone who raped a 14-year-old, said veteran criminal lawyer Chen Youxi. Activists find this distinction unacceptable, and point out that China is party to the UN Convention on the Rights of the Child, which defines a child as anyone under the age of 18. “Young people really cannot freely ‘consent,’” said Jerome Cohen, professor and co-director of the US-Asia Law Institute at New York University School of Law. “One question to consider is whether the age should be higher than under 14.” Maya Wang, China researcher at Human Rights Watch, also noted that rape carries a more lenient minimum sentence of three years, compared to the minimum five-year sentence for the defunct crime of “engaging in prostitution with an underage girl.”

Even with tougher laws on the side of victims, Chinese police often lack the training and ability to help. “Police come into contact with many sex workers but often they are male officers, and they are not taking the time to talk to women and listen to their stories,” said Matt Friedman, an international human trafficking expert and CEO of the Mekong Club, which educates companies on how to identify signs of forced labor. Friedman said there are many other ways to reduce sexual violence, such as raising the minimum and maximum sentences for sexual offenses, setting up prevention systems in schools, and training police to better identify and assist victims of forced prostitution. “The mere improvement of the legislative framework should be seen as the starting point rather than the outcome,” said Nicholas Bequelin, East Asia director for the U.K.-based NGO Amnesty International.

As China’s clampdown on activists and human rights lawyers continues, there seems to be little momentum going forward to stop sex crimes against children. China is expected to pass a foreign NGO management law in 2016 that could block most local groups from receiving foreign funding, and more local organizations like Zhongze may see their sources of funding dry up or be forced to shut down as a result. Meanwhile, criminals are finding new ways to lure young victims. Last month in Fuqing, a city in the southeastern province of Fujian, a man who posed as a school principal and raped several underage girls was sentenced to only nine years in jail. When asked whether he would find ways to continue working in the future on cases like these, Lü said with what sounded like a forced laugh that he could not comment. “We are thinking about what we can do now,” he said.

Top Image: One Yingkou victim hiding under a blanket in her home. Image Credit: Lü Xiaoquan.

Correction, Feb. 3, 2016: China’s criminal law now recognizes male victims of sexual assault. A previous version of this article cited a November 2015 article in the state-run China Daily which said that the criminal law would recognize male victims of rape. The accuracy of that article has since come into question; portions of the above have been removed or updated accordingly.