Tong Lihua
Published in the 2023rd issue of China Newsweek magazine on June 6, 5
Preventing and punishing sexual assault is a common challenge facing the protection of minors in all countries in the world.
In recent years, China's legal system for punishing crimes of sexual assault against minors has become increasingly perfect. The amendments to the Criminal Law add relevant crimes and clarify the specific circumstances under which certain crimes will be severely cracked down, and the newly revised Law on the Protection of Minors provides for specific systems such as mandatory reporting, information inquiry and prohibition of employment. In May 2023, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Rape and Indecent Assault of Minors, which clarifies criminal justice policies to severely combat sexual assault against minors, which is of great significance to promoting the attention of the whole society and preventing crimes of sexual assault against minors.
At the same time, it needs to be fully recognized that despite the increasingly perfect legal system, in reality, minors still face many complex problems in defending their rights after encountering or likely to be sexually assaulted. Some minors who have been sexually assaulted still live in frustration, fear and even despair.
The dilemma of rights protection
At present, some minors who have been sexually assaulted still face many difficulties in order to protect their legitimate rights and interests.
First, many cases of sexual assault of minors have not entered the field of vision of the judicial authorities. What happens after a minor is sexually assaulted? It seems that as long as the victim reports the crime, it is not a simple problem.
From the point of view of the victimized minor, the issue is much more complex. First of all, many minors who have been sexually assaulted are young and ignorant of the nature of criminals' use of sexual organs to touch or touch sensitive parts. Some criminals are relatives or teachers, and some of the minors are threatened and intimidated. Therefore, because they do not understand, or consider family affection, out of fear, many victimized minors will not tell their parents for a long time after the case, let alone take the initiative to report to the police.
Secondly, even if some minors who have been harmed communicate with their parents, there is often a lot of confusion about how to deal with this incident. For example, the characterization of relevant acts, the intimidation of criminals, and the reputational damage caused to minors and their families by reporting to the police. Sometimes, cases go through a painful and helpless period of internal family entanglement.
In addition, when some minors tell their parents about sexual assault, some parents not only do not go to the police, but also blame the child who was harmed. Some parents believe that the child is making a fuss, and some behaviors are just intimate expressions between acquaintances, and there is no obscenity; Some parents believe that being molested or even raped is due to the child's own lack of caution and care, and the child's own fault.
The above-mentioned attitude of minors and their parents has led to many cases not entering the judicial field. Globally, 5 in 13 women and 1 men are reported to have been sexually abused in childhood, and an estimated 1 million girls and 2 million boys are victims of sexual violence, according to a UNICEF report. Although there are differences in the definition and standards of sexual assault in different countries, the problems reflected in the above judicial practice and the relevant data of the United Nations also remind us that many sexual assault cases are still hidden in the hearts of children and even parents, and victims are still suffering the humiliation and fear brought by the abuse.
Second, cases of sexual assault of minors still face the practical dilemma of difficulty in filing a case. Judging from the situation reflected in judicial practice, the process of filing a case is often not smooth. According to the relevant provisions of the Criminal Procedure Law, the primary criterion for public security organs to review and file a case is whether there are criminal facts, that is, there must be basic evidence to prove the existence of criminal facts. However, many cases of sexual assault of minors often occur in private places, and it is difficult for minors to provide effective evidence because they are young and do not know how to preserve evidence. Especially in cases where they are harmed by acquaintances, the murdered minors are even less able to obtain evidence. As a result, public security organs often refuse to file cases on the grounds of insufficient evidence.
The failure to file a case in time has brought a series of serious problems: children and parents who have been violated feel aggrieved and angry; Damage or loss of key evidence, even if the public security organs subsequently file a case, they will face difficulties in collecting evidence; In cases of insufficient evidence, it is difficult for the prosecution or the court to convict. Therefore, because some cases are not filed in a timely manner, even if the judicial personnel believe that the criminal has committed a crime, due to insufficient evidence, the procuratorate has no choice but to deal with the prosecution, or the court finally acquits the criminal. This has led to increased pressure on victims and their parents and serious grievances against the judiciary.
Third, because some cases were not handled professionally, serious "secondary injuries" were caused. Sexual assault of minors is a very complex type of case, and many new problems have emerged due to the lack of professionalism of some grassroots judicial personnel. For example, although some places have implemented the practice of "one-stop" questioning in recent years, in many places, the public security organs, procuratorial organs and courts still have to question the violated minors separately, and sometimes the public security organs have to ask multiple questions, which leads to victims having to revisit the process of being injured; In some cases, the judicial department had to repeatedly identify the victim, and in one case, the hymen of the minor was evaluated three times; In the process of handling some cases, the privacy and personal information of victims were leaked, resulting in the victimized minors and their parents being under pressure from classmates, teachers, neighbors, relatives, and so on; Some judicial personnel have a blunt attitude in handling cases, and when victims and their families are questioned, they feel as if they are criminals, not only do not feel love and support, but feel pressure and even questioning. These minors suffer not only the harm of sexual assault, many times, the criminal infringement is short-lived, but the "secondary injury" is continuous, and the harm it brings to minors must be paid enough attention.
Fourth, the problem of sexual abuse of minors caused by cyberspace has become more complicated. On the one hand, the undesirable content such as text, pictures and videos with sexual stimulation and sexual temptation that floods the Internet has stimulated more cases of sexual assault of minors. On the other hand, the Internet has become a tool for criminals to contact minors and commit crimes, and cyberspace has become a place for molesting minors and sexual assault. For example, "Wen Ai" and "sniffers", which are increasingly common on the Internet, tease, molest and harm minors without meeting each other. Because such cases occur in cyberspace, they are often difficult to detect. For another example, some criminals sexually lure a large number of minors on the Internet, thereby establishing a relationship of trust with the minors, and then molest the minors online through coercion, inducement and other means, and some even commit sexual assault offline.
With the development of the digital age, more and more crimes of sexual assault against minors are related to the Internet, and because many parents do not understand the relevant situation, criminals can quickly destroy some evidence information involved in the case, which not only further increases the difficulty of filing a case, but also increases the difficulty of collecting evidence and handling the case.
How to solve the problem of difficult rights protection
At present, the legal system for the protection of minors and the prevention and handling of cases of sexual assault of minors is becoming increasingly perfect, but why are there still many problems in judicial practice? This is due in large part to the difficulty of accessing effective social assistance for aggrieved minors.
Although the newly revised Law on the Protection of Minors stipulates that public security organs, people's procuratorates and people's courts should cooperate with other relevant government departments, people's organizations, and social organizations to implement necessary psychological intervention, economic assistance, legal aid, school transfer placement, and other protective measures for minor victims of sexual assault or violence and their families, due to the lack of professional personnel, many aggrieved minors still find it difficult to obtain such professional care and assistance in judicial practice.
At present, in addition to increasing the training of grassroots judicial personnel to improve their overall professional ability, the urgent problem to be solved is the need to develop professional service institutions for the protection of minors, mainly lawyers, social workers and psychological counselors, the most urgent of which is to train professional lawyers in the protection of minors.
After minors are sexually assaulted, they face a lot of confusion and problems that need to be solved, and they urgently need professional legal assistance. For example, should the incident encountered be judged as caressing or obscenity between acquaintances? Does the relevant misconduct of the perpetrator constitute a violation of the law? What preparations do I need to make to file a case? What basic evidence needs to be submitted? How is evidence stored? What issues need to be paid attention to after filing a case? If the public security organs do not file a case, what should they do? How to communicate with different judicial authorities during the handling of cases? How to claim the rights of minors at different stages? How can the judiciary be asked to protect its reputation and privacy? These tasks require the legal assistance of professional lawyers.
In addition, many minors have serious psychological trauma after being sexually assaulted, and some children suffer from depression, autism or schizophrenia, and suicidal tendencies in severe cases. They generally need the help of social workers and psychological counselors, and at present, China is relatively short of social workers and psychological counselors in related professions.
In view of this, I believe that it is necessary for China to build an effective protection mechanism for caring for and helping minors who have been sexually assaulted in a timely manner, mainly including the following:
Relevant judicial organs and government departments should establish effective work connection mechanisms, and carry out care and assistance work from the first time minors report a crime. Even if the case is not filed in the end due to cognitive differences, insufficient evidence, etc., the relevant minors should be given sufficient care;
When studying the issue of evidentiary standards in cases of sexual assault of minors, it is necessary to fully recognize the particularity of such cases, and it is necessary to formulate evidence standards uniformly applied by judicial organs;
It is necessary to thoroughly solve the problem of difficulty in filing cases of sexual assault of minors. Alternatively, referring to the system for cases of trafficking of minors, as long as a minor reports a case claiming to have been sexually assaulted, the public security organs should immediately file a case. In terms of presenting evidence, the provision of evidence by victims is shifted to the collection, investigation and collection of evidence by judicial organs, and the relevant responsibilities of victims are transferred to public authorities to reduce the pressure on victims;
It is necessary to increase the training of case-handling personnel at the grass-roots level of judicial organs, increase the sensitivity of case-handling personnel to such cases, and improve their case-handling capabilities. Implement the relevant requirements of the newly revised Law on the Protection of Minors and the "one-stop" inquiry system to avoid repeated inquiries and effectively prevent "secondary harm";
Cleaning up cyberspace, especially large platform companies, must take responsibility. Establish a platform enterprise's sexual assault prevention system so that cases of sexual assault of minors occur on the platform can be discovered in a timely manner. For some cases of sexual assault of minors that occur online, platform enterprises are responsible, and they are obliged to provide timely assistance to those victims of juvenile sexual assault related to the platform;
Establish a legal assistance system for victims of sexual assault, setting up special hotlines so that minors or their parents can conduct timely counseling, and promptly provide legal, psychological, social work, and other assistance to victims in need of assistance;
The government has increased its purchase of services, and public interest organizations have raised more funds to cultivate a group of professional social organizations for the protection of minors, relying on these social organizations to train professional lawyers for the protection of minors, social workers, and psychological counselors. No matter how good the law and the system are, if there are no professional personnel to maintain and implement it, it will be difficult to implement it in the end.
(The author is the director of the Beijing Juvenile Legal Aid and Research Center)
China Newsweek, Issue 2023, 20
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