Author
Assoc Prof Enshen
Organisation/Institution
City University of Hong Kong, School of Law
Country
HONG KONG (SAR OF CHINA)
Panel
Criminal Law
Title
“Against the Women’s Will”: How Rape is Tried in Chinese Courts
Abstract
In People’s Republic of China (China), the legislative and procedural development of the crime of rape has long been stagnate. For decades, the prosecution case for rape has revolved around the proof of two requisite elements – 1) the intent to commit sexual intercourse with a woman; and 2) the use of force or other means against the woman’s will for the purpose of sexual intercourse. This study aims to critically investigate China’s longstanding judicial approach to the rape elements in the context of the country’s evolving legal and social norms. Drawing on 330 rape cases heard in Shanghai courts during 2019-2023, the findings uncover a highly conflicted and obsolete enterprise of rape law, which creates not only obscurity but also irregularity in the application of the legal and evidential standard of proof during rape trials. This has generated two undesirable consequences. First, it enables Chinese law enforcement agencies, particularly procuratorates, to exercise an unfettered discretion in the determination of the actus reus and mens rea of rape. Thus, the conviction of rape varies from case to case and is subject to the authorities’ wilful interpretation of the rape elements. Second, the flawed rape law excludes a wide range of de facto rapes due to the lacuna between the law and reality. By and large, it fails to sufficiently protect the bodily integrity and sexual autonomy of victimised women. On this account, this study goes on to proposition a path for China’s rape law reform, which focuses primarily on the displacement of the ‘specific intent + the use of force’ elements with the ‘basic intent + affirmative consent’ elements to advance a better protection of individual rights of both offenders and victims in rape cases.
Biography
Dr Enshen Li is an Associate Professor at CityU School of Law. His research lies at the intersection of several research fields: comparative criminal law, criminal justice, theoretical criminology, terrorism and socio-legal studies of punishment. Dr Li has published extensively in the leading academic journals, including British Journal of Criminology, The China Journal, Punishment & Society, Theoretical Criminology, Journal of Law and Society, Law & Social Inquiry, Social & Legal Studies, New Criminal Law Review, Terrorism and Political Violence, Emory International Law Review and Columbia Journal of Asian Law among others. He is the author of Punishment in Contemporary China: Its Development, Evolution and Change and several resource books for teachers. Over the past decades, Dr Li has taught multiple compulsory undergraduate and postgraduate courses (e.g., criminology, criminal law, evidence law, business and corporations law) in Australia and Hong Kong.
