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Thursday, July 18, 2013

Tsinghua Law prof Yi Yanyou in hot water over rape comments

The Li Tianyi rape case has been in the news lately. Li is the son of a famous singer with the rank of general in the People's Liberation Army, and I think it's fair to say he is not the kind of nice boy you'd want your daughter to be dating. Back in September 2011 he was sentenced to a year in detention (at age 15) for having assaulted a couple in a fit of road rage:

The teenage boy, who is too young to drive legally, was behind the wheel of a BMW car with no licence plates when he found a middle-aged couple in another vehicle blocking his way in Beijing.

Li Tianyi and a second teenager, who was driving an Audi, leapt from their vehicles and, it is reported, assaulted the couple while shouting at shocked bystanders: "Don't you dare call police".

Half a year after getting out, he was allegedly involved in a gang rape at a Beijing hotel; formal charges were brought earlier this month

Apparently things have not been going well with the defense; two attorneys have resigned. His new attorneys have taken their case to the media, arguing that the complainant was a bar hostess. Apparently they plan to plead not guilty, presumably on the grounds that she consented, or perhaps that in the case of bar hostesses the law should presume consent. Obviously I have no inside information on what actually happened on the night in question, but the general tenor of netizen opinion is that this is a typical case of a spoiled rich kid who thinks he can get away with anything. He's become the Joffrey Baratheon of Chinese pop culture.

Into this mess stepped Yi Yanyou (易延友), a professor at Tsinghua Law School and the head of its Evidence Law Center. Yi declared on his microblog that "raping a bar hostess is less harmful than raping a woman of good family" (强奸陪酒女也比强奸良家妇女危害性要小). This led to an outpouring of harsh criticism among netizens. Ignoring the first rule of holes - when you're in one, stop digging - Prof. Yi then clarified his remarks by revising the above sentence to read, "It does more harm to rape a woman of good family than to rape a bargirl, a dancing girl, an escort or a prostitute" (强奸良家妇女比强奸陪酒女、陪舞女、三陪女、妓女危害性要大). Somehow the critics were not mollified. By last Wednesday Prof. Yi had had enough - he deleted his post and apologized.

Prof. Yi's remarks don't come out of nowhere - he is in fact channelling a distinction well known in traditional Chinese law (it is codified in the Qing Code) between woman of good family (良家妇女) and licentious women (犯奸妇女). If, for example, a man saw a women engaging in illicit sexual intercourse with another and then raped her afterward, then because she was a licentious woman it could not be called rape but should instead be classified as illicit intercourse by trickery ("又如见妇人与人通奸,见者因而用强奸之,已系犯奸之妇,难以强论,依刁奸律"). (I'm relying for my translation on the Grand Ricci dictionary, which translates 刁奸 as "seduire une femme par la ruse"; that may not be correct as a translation of the legal term.) For more on this, see Vivien Ng, "Ideology and Sexuality: Rape Laws in Qing China," Journal of Asian Studies, vol. 46, no. 1 (Feb. 1987), pp. 57-70. Although the distinction finds no formal expression in modern Chinese law (not to my knowledge, anyway), here we see it alive and well in legal culture, so to speak, and expressed in exactly the same words as it was centuries ago.

http://lawprofessors.typepad.com/china_law_prof_blog/2013/07/tsinghua-law-prof-yi-yanyou-in-hot-water-over-rape-comments.html

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Comments

In other jurisdictions, the background of the victim of the rape crime is not allowed by law to be disclosed. Hence the same offence is charged whether the alleged victim is a virgin or a promiscuous woman or even a prostitute. In traditional China, that is the first piece of evidence to excupate the alleged rapist even to the extent of damaging the reputation of the alledged victim.

Posted by: Frankie Fook-lun Leung | Jul 21, 2013 5:31:02 PM

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