Is a Rape Shield Law Desirable for China?

• Author: Wu Huimin
• Pages: 86-106

86

TSINGHUA CHINA LAW REVIEW [Vol.10:85

IS A RAPE SHIELD LAW DESIRABLE FOR CHINA?

Wu Huimin

Abstract

Due to conservative social views and the private nature of the

offense, rape remains a rarely reported crime, with a high “dark

figure” of unreported cases in China. Social biases as well as

insufficient legal regulation contributed to this problem. The U.S.

once faced a similar situation: the prevalence of rapes, low

reporting rate, social biases against victims and massive intrusion

into victim’s privacy. The establishment of a rape-shield law helped

reduce sexual assaults and fight social biases. Though China and

the U.S. have different legal mechanisms, China still has the

necessity and possibility of building a similar law. For China, a rape

shield law will help protect victims’ privacy, encourage reporting,

regulate judicial proceedings and raise social awareness. Such law

generally forbids the use of victim’s sexual history in rape cases, but

it allows prior sexual history between the victim and defendant, and

non-sexual character evidence to be beneficial at the present stage.

With better protection, it can also encourage more victims to testify

in court, which in return could promote defendants’ rights to

confrontation.

I. INTRODUCTION

Rape infringes upon women’s right to sexual behavior.1In China,

the attitude towards sex is relatively conservative and people tend to

judge women’s sexuality harshly. There is an old Chinese saying:

“Death by starvation is preferable to loss of chastity.”2Rape in China

involves complex factors: legal relations, social influence, and

evidence verification all bear some special features. The law of rape

stresses social values and sets the protection of women’s safety as

crucial social goals. The study of rape in China can thus contribute to

developing legal reforms that can help reduce sexual assaults on

women and bring benefit to our society.

This paper will first look at the official rape statistics in China. It

reveals that rape cases registered by Public Security Organs (China’s

police departments) are about 30,000 per year, a number relatively

small compared to other crimes. However, due to conservative social

views and the private nature of the offense, it remains rarely

reported, with a high “dark figure” of unreported rapes.

1

See ZHANG MINGKAI (张明楷), XINGFA XUE (刑法学) [CRIMINAL LAW] 867–68 (5TH ED. 2016).

2

See CHENG HAO & CHENG YI(程颢、程颐), ERCHENG QUANSHU YISHU ERSHI ER(二程全书·遗

书二十二).

2017] IS A RAPE SHIELD LAW DESIRABLE FOR CHINA?

87

To get a better understanding of the real situation, this paper will

look into a study by United Nations focusing on the prevalence of

sexual assaults in several Asia-Pacific countries. The research results

show that in China, one in five men admitted having committed rape,

and nearly one in five women admitted being victim. The United

Nations’ survey, along with other surveys, shows the prevalence of

rape in China is greater than what official statistics reveal.

This paper will study reasons behind the prevalence of rape in

China: the social biases, the male sexual entitlement, the

unwillingness of victims to report, and the insufficient legislation. To

change this situation, it is important to learn from other countries’

successful practice. The U.S. faced a similar situation from the 1970s

to the early 1990s. The U.S. responded by revising rape shield law, at

whose center is the basic concept that the rape victim’s sexual

history is generally inadmissible in sexual assault cases. This paper

will analyze those problems in China and the U.S., and will assess

the possibility for passing a rape shield law in China.

To this end, this paper used ‘rape’ as the cause of action and

searched on China Judgments Online to see how victims’ sexual

histories were used in courts. Due to the high dark figure and the use

of victims’ sexual histories in courts, it is necessary for China to

have a rape shield law. Meanwhile, there are many differences

between the two countries’ legal systems, so revising the rape shield

law according to China’s needs will help implement the law and curb

the crime in China.

II. RAPE IN CHINA

Rape in China bears some special features. First, the law defines

the victim as a female, unlike in other countries such as the U.S. or

UK, in China, the law limits sexual assault victims to female. There

are other statutory rules concerning sexual misbehaviour against

males in China. Second, rape is considered a uniquely private crime

due to the relatively conservative nature of Chinese society.

A. Official Statistics of Rapes in China

The official statistics of rapes released in China are incomplete at

the moment: The China Statistical Yearbook recorded the number of

criminal cases registered by the Public Security Organ from 1997 to

2015, and included other kinds of sexual assaults.