The rape of a 5-year-old girl was sentenced to four and a half years in prison, and the principle of crime and punishment should be reviewed

  Viewpoint

  The "minimum tolerance" for sexual assault of minors and the "severe punishment in accordance with law" for the rape of children under the age of 12 all emphasize strictness.

  In the past two days, the results of two cases of adultery of underage girls sentenced by the Hui'an Court in Fujian have caused considerable controversy in the public opinion field and legal circles.

  According to media reports, on the morning of November 13th, the Hui'an Court applied summary procedures, closed the trial, and sentenced two cases of adultery of underage girls. The defendant Chen and Huang were sentenced to four years and six months in prison for rape.

  Among them, nearly 50-year-old Chen took a neighbor’s 5-year-old girl to bed and raped it in his living room in August this year; the defendant Huang, who was born in 1996 and came to work in Huizhou, will be only 7 years old playing in the corridor. Xiaohong deceives into the bedroom of her home, and despite her resistance, she forcibly commits adultery and threatens not to tell her parents.

  Although the verdicts mentioned "voluntarily plead guilty and punished after returning to the case, and be punished with lenient punishment", the rape of a 5-year-old and a 7-year-old girl was only sentenced to four and a half years, which still leaves many people unable to understand the nature of the case. The court also talked about "heavier punishments should be imposed in accordance with the law." Why did the final judgment only be four and six months?

  It is also due to the imbalance between the “light” sentencing and the “heavy” of the evil deeds. Some people questioned: Could it be that just because the two defendants voluntarily pleaded guilty and confessed their punishment after being brought back to justice, the leniency can be punished like this?

  Judging from judicial practice, in recent years, sexual assault cases involving minors have been the focus of public opinion, and the protection of minors involved has always been the focus of judicial organs.

Don't say it is "forced", even if you have a relationship with a girl under the age of 14 "you love me", it will be treated as rape.

  In 2013, the Supreme Law and other four departments specially issued the "Opinions on Punishing Sexual Assault of Minors in accordance with the Law", which clarified the guiding principles of "minimum tolerance and maximum protection".

The "Opinions" also stipulate that those who commit rape crimes against children under the age of twelve, or use violent coercive methods to commit rape of underage girls, must be severely punished in accordance with the law.

  The "minimum tolerance" for sexual assault of minors and the "severe punishment in accordance with law" for the rape of children under the age of 12 all emphasize strictness.

  As far as the sentencing range is concerned, adultery of underage girls should be punished severely, and children under 12 years of age for adultery must be severely punished on the basis of "heavier"-"Guiding Opinions of the Supreme People's Court on Sentencing of Common Crimes" (法发[2017] No. 7) stipulates that if one person commits adultery with an underage girl, the starting point of sentencing can be determined within the range of four to seven years in prison.

If the circumstances of adultery with underage girls are bad, the starting point of sentencing can be determined within the range of ten to thirteen years in prison.

  In this case, the minimum sentencing point was determined as the starting point of sentencing only because of the raping of a 5 or 7-year-old young girl, but it is indeed questionable.

  After all, pleading guilty and punishing is a circumstance in which the defendant can be punished lightly and leniently, rather than the premise that the defendant should be punished leniently. This cannot offset the social harm caused by the defendant.

In 2019, the "Guiding Opinions on the Application of the Leniency System for Plea and Punishment of the Two High Schools and Three High Schools" stated that: for crimes that seriously endanger national security, public security, serious violent crimes, and major and sensitive cases of general concern in society, we should carefully grasp leniency and avoid The handling of the case obviously violates the people's concept of fairness and justice.

  What's more, the person involved in the case, Huang Mou, also escaped back to his hometown and was arrested.

  From the perspective of social culture and social psychological mechanism, the crime of rape has been a serious "ethical crime" since ancient times, not to mention the socially harmful and harmful behavior of rape of underage girls.

In the simple perception of the public, the crime of adultery of underage girls, which can cause great harm to the child's psychology and physiology, is far from being able to make up for the punishment of four and six months.

  This is not to say that there is any selfishness or trickery behind the judgment in this case, but to say that the conviction and sentencing involving sexual assault of minors must be considered comprehensively, and one cannot ignore the others.

The Supreme Law’s sentencing guidelines point out that sentencing should ensure the unity of legal and social effects of the judgment.

In view of this, the rape of a 5-year-old and a 7-year-old girl was sentenced to four and a half years. Whether it complies with the principle of crime and punishment is clearly in need of further scrutiny.

  □Mo Yichen (Legal Scholar)