Cut off the secret black hand of "air molestation"
"Indecent assault" is punishable by conviction for forcible indecency or child molestation
A notice of case registration issued by the public security bureau where Guo Li's household registration is located. Photo courtesy of interviewee
If it weren't for the QQ number associated with her daughter, Guo Li would never have thought that her 9-year-old daughter Xiaomin would be "molested in the air" by many people.
The concept of "obscenity" was also the first time she had heard of it in her life. Shocked, angry, and unwilling, Guo Li decided to "get justice" and hope to prevent more children from being harmed.
As early as 2018, the Supreme People's Procuratorate issued guiding cases establishing the principle of prosecution of indecent acts without physical contact as offline crimes.
On June 6, an official of the Cyber Security Protection Bureau of the Ministry of Public Security issued a micro-release defining that air molestation refers to illegal and criminal acts in which the perpetrator uses the Internet as a medium for the purpose of satisfying sexual stimulation and uses the Internet as a medium to lure or coerce minors into "naked chats" or send "nude photos" and "nude videos".
The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Rape and Indecent Assault of Minors (hereinafter referred to as the "Interpretation"), which came into effect on the same day, clarifies that "air indecency" will be punished with the crime of forcible indecency or child molestation.
The Beijing News reporter combed and found that many places across the country have been sentenced in cases of indecent assault, mostly for the crime of forced indecency (the victim is older than 14 years old) or the crime of indecent assault on children (the victim is younger than 14 years old).
Zhang Hua, a judge of the Juvenile Family Division of the Shanghai No. 5 Intermediate People's Court, who has tried five such cases, said that sexual assault of minors is basically a heavier sentence within the scope of sentencing prescribed by law.
In June, the Cyberspace Administration of China issued the Notice on Carrying out the Special Action of "Qinglang 6 Summer Online Environment Rectification for Minors", which included the problem of air obscenity in the focus of rectification, and cracked down violations of laws and regulations involving minors, aiming to further strengthen the protection of minors online and create a healthy and safe online environment.
9-year-old girl sent private photos to "netizens" The police opened a case
"You want to see it." On the morning of August 8, Guo Li's associated QQ number received such three words, the associated person was her 12-year-old daughter Xiaomin, she had to be sensitive, immediately clicked in, the chat record made her unbelievable.
The other party is a netizen nicknamed "Light Smile Xinrou", gender set to female, age set to 20 years old, at 7:29 the night before, "Light Smile Xinrou" called Xiaomin with a video call of 3 minutes and 32 seconds, and then sent an 18-second video...
At noon on the 12th, Guo Li rushed home and asked her daughter what she saw on the video call, and Xiaomin said that she didn't see anything, "I was still relatively calm and didn't scold her." That night, Guo Li called the police. The people warned that she needed to contact the Internet security to inquire and asked her to go home and wait.
On the 13th, she said to her daughter: "We have called the police, the inconsistent testimony before and after the police will not accept it, you tell your mother the truth, have you seen anything on the video call?" What did you say again? This time, Xiaomin was relieved and confessed that he saw the other party's private parts.
Xiaomin uses an old mobile phone that assists with homework. Guo Li remembers that one night in early August, when her daughter was operating an app for learning English, she learned to turn off her voice, "I wanted to see what she was doing, so she desperately grabbed her phone to prevent me from looking." ”
Guo Li told reporters that she eventually found 6 more netizens in the hidden conversation who had sent vulgar and pornographic text messages to Xiaomin, and Xiaomin sent a small video of her private parts to two of them, and Xiaomin explained that the reason why she sent them was to make friends.
On the 16th, Guo Li took Xiaomin to the local people's procuratorate, and after gentle questioning by the prosecutor in charge of juvenile cases, Xiaomin admitted that she had also sent videos and photos to each other with several netizens at the same time.
The mobile phone number of "Light Smile and Softness" is displayed as Ordos, Inner Mongolia. Guo Li called twice, and the other party connected - "Your QQ is called light smile and soft heart, right?" "Hmm." A male voice replied. "What are you sending to my daughter, you are an adult sending pornographic videos to minors, right?" Hearing this, the other party hung up the phone.
After that, Guo Li posted the matter on public social platforms. In the evening, Guo Li received a call from the police in Ordos, Inner Mongolia, telling her that she had found "Light Smile and Softness", a middle-aged man in his 40s, and the police asked her to assist in the investigation, collect and send relevant evidence, and asked her to go to the police station where her household registration was located to take notes. On August 8, she received a notice of filing a case issued by the Public Security Bureau on the 18th, and the cause of the case was "indecent."
In five years, more than 5,<> people were prosecuted for the crime of "indecent assault"
It was also through the incident of her daughter Xiaomin that Guo Li first heard the word "obscenity in the air".
In October 2022, the Supreme People's Procuratorate released a report on juvenile procuratorial work, pointing out that in the past five years, the crime of minors has continued to rise, among which the incidence and frequency of "indecent assault" against minors are high, and minors are very easy to become "cyber prey" for lawbreakers.
The first paragraph of article 9 of the Interpretation stipulates that where coercion or trick minors into exposing their private parts or committing obscene acts through online video chats or sending videos or photos, and comply with article 237 of the Criminal Law, they shall be convicted and punished as the crime of forced indecency or child molestation.
Judging from the existing judicial practice, there are precedents in many places across the country in cases of "indecent assault".
A few days ago, the Tianjin Jixian District People's Court held a public trial and pronounced a judgment in court. In December 2022, the defendant Zhang lured the victim (female, 12 years old at the time of the crime) to take selfies, record and send more than ten indecent photos of private parts and nude photos and one video by sending WeChat red envelopes. After hearing, the court held that Zhang's act of molesting a girl under the age of 9 in order to satisfy sexual stimulation constituted the crime of child molestation, and sentenced him to one year and six months in prison.
A case prosecuted by the Xingren City People's Procuratorate in Guizhou Province was also recently pronounced. In October 2022, defendant Sun added the victim Xiaohong (female, 10 years old) through an online game platform, asked the victim to interact with him on the grounds of upgrading the game, repeatedly asked the victim to take photos and videos of private parts for himself to watch, and asked the victim to chat with him naked. Later, because the victim refused, Sun threatened to publish nude photos and forced Xiaohong to continue filming and sending and naked chat. Xiaohong was overwhelmed and committed suicide, but was rescued by the teacher and reported the case to the police. After investigation, Sun molested two other minor victims in the same way. Sun was sentenced to three years in prison for forcible indecency.
According to Rule of Law Daily, taking the Futian District People's Procuratorate in Shenzhen as an example, since 2021, the court has accepted a total of 11 cases of child molestation by air, and the minor victims involved are generally younger, the youngest is 9 years old.
Na Yanfang, director of the Ninth Procuratorate of the Supreme People's Procuratorate (Juvenile Procuratorate), said in an exclusive interview with reporters this year that online crimes against minors are an important aspect of the procuratorate's work to punish and prevent crimes against minors. Procuratorial organs severely punish cybercrimes that infringe on the rights and interests of minors in accordance with the law, such as coercing girls to upload nude photos of themselves through online chats, and in 2018 the Supreme People's Procuratorate issued guiding cases, establishing the principle of prosecution of indecent acts without physical contact as offline crimes. So far, more than 1000,<> people have been prosecuted for using the Internet to molest minors.
Take the victim's statement as the core of evidence
"Indecent assault has the basic criminal characteristics of the crime of child molestation, including the subject of the crime, cognition, violations, etc., in fact, everything that happens in reality appears on the Internet." Zhang Hua, a judge of the Juvenile Family Division of the Shanghai No. 5 Intermediate People's Court, has tried five such cases, of which his Qu Moumou (online) molestation case in 2018 was one of the "Typical Cases of Procuratorial Organs Severely Punishing Crimes Against Minors in accordance with Law and Strengthening Judicial Protection of Minors" released by the Supreme People's Procuratorate in December 2019.
According to the judgment documents, the defendant Qu Moumou falsely claimed to be a staff member of the child star verification team through QQ, and lured and instigated 11 victims to take off their clothes and pants in the video and commit acts such as molestation on their own, in the name of reviewing child stars' physical development first. In accordance with article <> of the Criminal Law of the People's Republic of China, the court of first instance sentenced him to <> years' imprisonment for the crime of molesting a child. Qu appealed that the original sentence was too severe, and the Shanghai Second Intermediate Court rejected the appeal and upheld the original judgment.
"Sexual assault of minors, within the scope of sentencing prescribed by law, is basically a heavier sentence." Zhang Hua introduced that compared with other cases, the difficulty in the judgment of the indecent assault (child) case lies in the determination of evidence, adult perpetrators have a strong sense of self-protection and ability to resist trial, often circumvent the law, and juvenile victims are naturally weak and dazed about the danger on the other side of the network. In recent years, the understanding of the rules of evidence in cases of sexual assault of minors in academic and judicial circles has gradually become unified, "from the perspective of favoring the defendant to taking the victim's statement as the core." "When the defendant does not confess, the focus should be on reviewing the completeness, corroboration, and reasonableness of the victim's statement, and constructing an evidence chain with the victim's statement as the core of evidence, and then determining the facts of the crime.
"There is basically no qualitative difficulty." Wang Ming, a lawyer at Anhui Chenyuan Law Firm, who represented two indecent assault cases as a defender, explained that when the defendant's confession, the victim's statement, and the presentation of chat records were sufficient, the facts of the crime were clear and clear, and once the defendant committed the act, it constituted a crime.
"There are also cases where the evidence is insufficient." Wang Ming said that such cases are verified by the public security organs based on the defendant's confession and the victim's statement, and sometimes the accusation cannot be established because the victim does not come forward or is unwilling to say so.
Zhang Hua also mentioned, "We have done a statistic from 2013 to 2018 in the jurisdiction, and found that sexual assault cases of children directly or indirectly related to online social networking (such as meeting offline after online chat, and thus being sexually assaulted) accounted for about 30% of such cases in the same period, and direct online molestation accounted for about 10%. ”
A 2019-2021 Internet molestation case investigated by a district court in Shanghai shows that the defendant mainly sent obscene materials through the Internet, lured and molested the victim to chat naked, take nude photos, etc. to commit indecent crimes. In two cases, the victims took the initiative to report to the police or after informing their parents due to the defendant's behavior, one case was the police after the teacher discovered the situation during his work, and the rest were mostly parents who reported the police after they noticed it. Compared with traditional indecency, indecency is more concealed, videos of nude photos of victims may be widely disseminated, and the radiation area of victims may be wider; It is concluded that victims are more motivated by curiosity or money and materials, and Internet supervision is not in place.
Combined with judicial practice, Zhang Hua summarized the main characteristics of victims: age concentrated around 10 years old (generally not higher than 12 years old, not less than 8 years old), adolescent ignorance and self-consciousness awakening, but insufficient cognitive and discrimination skills; Most of the places of residence are third- and fourth-tier cities or remote areas. The defendants are often idle people in society, some of whom have similar criminal experiences, including some technicians who are accustomed to fiddling with computer servers; Under the guise of recruiting child stars and doing charity, they often use the form of material incentives and promises, or pretend to be teachers or classmates to enter chat groups to induce victims to interact voluntarily.
If both parties are minors, what will be considered in the trial of such cases? Zhang Hua explained that according to Article 16 of the Criminal Law, if the perpetrator is over the age of 14 and commits indecent assault, the conditions for conviction are met, but the punishment will be mitigated or mitigated according to law. "The situation where the perpetrator is under the age of <> has not yet been seen, such cases will not enter the judicial process, and if the parental guardianship duties are missing, the public security organs will conduct special education and handling; There are also civil sentences of order for guardians to discipline them, or for the civil imposition of personality rights by parents acting on their behalf. ”
Damage that extends off-screen
The reporter saw in the comment area of some law popularization articles and case reports that the public's perception of obscenity in the air is mainly divided into two categories: one type of voice says that it is too bad and should be severely punished, and youth anti-aggression education is imminent; Another view is that fortunately there is no substantial harm to the child, fortunately just chatting ...
Zhang Hua, who is the presiding judge of many cases, pointed out that although the defendant and the victim are not in the same physical space and have no substantive physical contact, the indecent acts stipulated in China's Criminal Law include forcing or tricking the victim into committing indecent assault on his own. Once an indecent act is committed through the Internet, the scope of harm is wider, and the victim's physical and mental health and personal dignity are more seriously violated, which is extremely harmful to society.
Zhang Hua said that vision will also make the brain produce physiological responses, subverting the previous concept of "not profane", some juvenile victims may not be impressed at the time, but after growing up, childhood experiences will have a direct impact on their sexual concepts, sexual psychology, etc., hindering the healthy development of physical and mental health. "Some victims are emotionally exposed, and there is stress trauma after the victimization, while others are introverted and not easy to detect, and it is recommended that parents measure whether their children have been mentally harmed through professional psychological assessment."
Liu Bingjie, a national second-level psychological counselor, believes that to assess the harm caused by indecent assault on victims, it is necessary to analyze specific situations such as different genders, ages, parent-child relationships, and family views on the situation.
Zhang Hua reminded that if the defendant is criminally prosecuted, the victim's guardian can file a lawsuit with the court to demand that the perpetrator pay psychological diagnosis and treatment fees and compensation for personality rights (the Supreme People's Court, the Supreme People's Procuratorate, etc. have made it clear that the psychological diagnosis and treatment fees for sexual assault of minor victims are material losses); The claim for material damages does not affect the acquisition of moral damages under the provisions of the Civil Code. Parents can also judge sideways by observing whether their children's learning attention has changed, whether their grades have fluctuated, and whether their attention to sexuality and cognitive level have changed.
Guo Li and Xiaomin's father have been separated for many years, and the role of "father" has disappeared from Xiaomin's life. Guo Li told reporters that she began reading sex education picture books and talking about related cases when her daughter was very young, and she couldn't understand why her daughter was not afraid when she received the video and was induced to send the video, why didn't she tell her.
"In fact, children are not afraid, there will be a certain shock and fear in their hearts, or they may be curious, feel like watching cartoons or something irrelevant to themselves." Hu Zhen, vice chairman of the Family Sex Education Branch of the Chinese Sex Society, analyzed that the reluctance to take the initiative to inform the encounter with obscenity is directly related to the improper sex education that the child has received in the family and society: sex is bad, shameful, and not learned.
She identified four types of derivative harm that indecent assault can cause to victims. First, if the encounter is negatively evaluated, the child will become alienated from his parents or teachers; Second, when educated in inappropriate ways, self-esteem will be lost; In addition, exacerbate the fear of the Internet; and the fluke mentality that has not yet been discovered, that is, thinking that no one knows after seeing this, and their bodies have not been really touched, and even received money from the other party, and it is difficult to form a sense of infringement over time.
She pointed out that indecent assault is sexual assault when it has already occurred, and families and schools should repeatedly clarify two misunderstandings in a language that children understand: if you don't touch it, you won't be hurt, and if you don't resist, it's not hurt.
"Indecent assault" is included in the focus of network rectification
In Zhang Hua's view, preventing or reducing such incidents requires the full cooperation of all sectors of society. On the one hand, parents should not talk about sexual discoloration, but should do a good job in positive counseling and negative education, so that children can establish psychological prevention. On the other hand, with the younger age of Internet usage popularization, Internet platforms should implement regulatory responsibilities. In addition, in accordance with the Supreme People's Procuratorate's No. 2018 Procuratorial Recommendation (on October 10, 19, the Supreme People's Procuratorate issued the Supreme People's Procuratorate's No. <> Procuratorial Recommendation to the Ministry of Education, recommending further improving the institutional mechanism for preventing sexual assault on kindergarten children and primary and secondary school students, and strengthening the supervision and inspection of the implementation of the relevant system for the prevention of sexual assault in schools), a guardianship guidance system was established, teachers' self-education was strengthened, and the concept of sexual assault prevention was transmitted. Strengthening the management of unemployed people, upgrading the inspection of film and television works and publications, and the investigation of those responsible, recognizing and participating in sex education activities carried out by relevant organizations, and judicial personnel punishing defendants heavily, etc., are also aspects that cannot be ignored.
"When indecent assault has already occurred, the victim needs to promptly retain physical evidence and report the case to the public security organs." Zhang Hua pointed out that some parents may compromise on the huge compensation provided by the perpetrator, but such cases do not advocate criminal settlement. The Supreme People's Court has made it clear that all kinds of violations and crimes that infringe on the rights and interests of minors must be severely punished in accordance with law; Probation and parole may generally not be applied to crimes of sexual assault against minors. "According to article 191 of the Civil Code, the limitation period for the right to claim damages for sexual abuse of a minor runs from the date on which the victim reaches the age of 18. Therefore, on the premise of retaining basic evidence, victims can still claim compensation after they become adults. ”
In terms of the management of network operators, the Provisions on the Online Protection of Children's Personal Information came into force on October 2019, 10. The Provisions make it clear that network operators shall set up special rules and user agreements for the protection of children's personal information, and designate a special person to be responsible for the protection of children's personal information; Employ measures such as encryption to store children's personal information to ensure information security. Where children or their guardians request that network operators delete children's personal information they have collected, stored, used, or disclosed, network operators shall promptly employ measures to delete it.
On August 2022, 8, the Provisions on the Administration of Mobile Internet Application Information Services came into force. Article 1: It is clear that application providers shall adhere to the principle of best benefiting minors, perform all obligations for the protection of minors online, strictly implement requirements for registration and login of real identity information on minors' user accounts in accordance with law, and must not provide minors with products and services related to inducing their addiction in any form, and must not produce, copy, publish, or disseminate information containing content that endangers minors' physical and mental health.
In June, the Cyberspace Administration of China issued the Notice on Carrying out the Special Action of "Qinglang 6 Summer Online Environment Rectification for Minors", which included the problem of air obscenity in the focus of rectification, and cracked down violations of laws and regulations involving minors, aiming to further strengthen the protection of minors online and create a healthy and safe online environment.
When Guo Li decided to publish her daughter's experience and rights protection process on public social platforms, she gave herself the nickname "Fight for Women 2023", "This 'woman' not only refers to my own daughter, but also refers to other women who have suffered injustice but have a difficult road to rights protection." ”
On September 9, the reporter called the police about the progress of the case, and the Ordos police responded that the evidence was being further fixed. On September 5, the police where Guo Li's household registration is located said that the case is still under investigation because the online crime is relatively hidden.
(Guo Li, Xiaomin, and Xiaohong are pseudonyms in the text)
Beijing News reporter Luo Yan