Govt Change | №1 Child Sexual Abuse Justice
An overview of the US and China legislation and policy
“If it takes a village to raise a child, it takes a village to abuse them.” — Spotlight (2015)
In mid of April, a 19-year-old girl Xingxing has accused “her foster father” Yuming Bao, a prominent lawyer and ex-ZTE executive, of sexually abusing her for years, including forcing her to watch child pornography, making her remove her clothes before bed, keeping her from going to school, and limiting her contact with anyone other than him. The lawyer yet responded that he defined the victim as “present daughter and future wife”. The abuse allegations spark calls to raise the age of consent from 14 to 16 and the protection of young women at the hands of powerful men. Seven days ago (about twenty days after the public pressure), Yuming Bao tweeted “ten questions and answers” including his private chat and audio clip with Xingxing, implying the victim as a girl crazy for love. Public opinions started to change, and some people called the girl dirty and slutty.
This case initiated a wide social discussion: child abuse, sexual assault, informal adoption, bystander apathy, etc. In this paper, I dissected from the origin of this wrongdoing behavior — child sexual abuse (CSA, see definition in Figure 1) and realized the meaning of this class while writing the paper — why we need to learn the law in a social policy school. Underlying the Spotlight’s script at the beginning of this paper is a fact we shall never overlook: any wrongdoing involves not only individual behavior but also the whole organization and system. Challenging our existing laws and initiating a resolution is the basis to address the issue. Since this case happened in China and I am living in the United States, this paper researched how CSA happens globally and then these two countries specifically. The following paper includes: 1) global findings of CSA prevalence; 2) comparison of its protection origins in US and China; 3) comparison of US and China’s relevant policies and laws; 4) evaluation of government limitations and suggested improvements.
Global Findings
The total number of victims experiencing sexual violence each year is “approximately 200 million of the world’s children”, claiming by Sweden’s Princess Madeleine. Its rate is inconsistent yet quite surprising from various surveys due to different definitions of child sexual abuse and different methodologies. The most frequently cited conclusion is Dr. Finkelhor’s findings in 1994 that at least one in 5 women and one in 10 men experienced sexual abuse as children. Such prevalence rates were also approved to be similar in the Americas and Asia in international epidemiology research. Chinese researchers agreed that one in 4 to 14 high school students experienced sexual abuse incidents. In the United States, Dr. Finkelhor estimated more in detail that “one in 4 girls and 1 in 20 boys experience sexual abuse or assault at the hands of juvenile perpetrators and one in 9 girls and 1 in 53 boys at the hands of an adult” in 2014. Undoubtedly, girls are the majority of minor victims. US Department of Justice reported that females ages 16–19 are 4 times more likely than the general population to be victims of rape, attempted rape, or sexual assault in 1997.
However, experts are aligned to agree that those numbers are highly underreported. On the one hand, structural problems exist, which the political system doesn’t offer a chance for victims to make voices. A 2019 report called Out of the Shadows published by The Economist pointed out that boys are being overlooked as victims, since “only 19 of the 60 countries are collecting prevalence data about boys, and just six collect data on boys regarding sexual exploitation”. On the other hand, it is due to a variety of cultural reasons. According to Thorn’s 2017 report, one in three victims is staying silent in the United States due to “shame, embarrassment, and self-blame”. In China, tens of millions of children have been left behind in rural areas with limited care after their parents have moved from the countryside to crowded cities to seek their fortunes after the 1978 Chinese economic reform and sexual abuse of children has proved hard to control in that environment.
Besides similar environment and measurement limitations, the global comparison includes consideration of policy, law, and other engagement. In the Out of Shadows report, an index weighting 60 countries found that the prevalence of child sexual abuse and exploitation is not tied to a country’s income level. China as a middle-income county made into the bottom index quartile and ranked #42. And only four of the top ten countries received a score of at least 75, excluding the United States that ranked #6. This means that substantial gaps remain in the protective conditions for children even in the wealthiest countries (see the comparison of the US and China in Figure 2).
Origin of CSA Protection
Prevalence of CSA always exists in history, but professional awareness was suppressed repeatedly due to “Freudianism, sexual modernism, and gender politics” in the 20th century. Contemporary awareness was just raised within forty years in the United States. Pediatrician Henry Kempe’s 1962 article The Battered-Child Syndrome was considered as the first watershed, which pointed out that physical abuse on children was recognized as “unrecognized trauma by radiologists, orthopedists, pediatricians, and social service workers” and calls attention to all physicians to protect those battered children. Child abuse reporting laws were then passed in many states between 1963 and 1967 after lobbying by pediatricians, and Congress passed Senator Mondale’s Child Abuse Prevention and Treatment Act (CAPTA) in 1974, which included sexual abuse in its definition of maltreatment. By 1976, all states had reporting laws requiring professionals to report sexual abuse.
Despite public awareness of child physical abuse in the late 1970s, recognition of sexual abuse on children lagged. In 1977 Kempe and other researchers founded the International Society for Prevention and Treatment of Child Abuse and Neglect, and “new research shed light on the prevalence and harmful effects of sexual abuse” . Vincent De Francis’s Protecting the Child Victim of Sex Crimes Committed by Adults in 1969, David Finkelhor’s Sexually Victimized Children in 1979 and Diana Russell’s The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children in 1983 “exploded any idea that sexual abuse was rare or benign”. Overall speaking, American CSA protection was promoted by two factors — reporting laws lobbying by healthcare professionals and public recognition by academia, wrenching CSA from obscurity.
Public CSA protection in China emerged far more recently since 2013 after intensive media coverage and internet transmission of child sex abuse incidents. In May 2005, school sexual abuse protester Ye Haiyan initiated a campaign against an elementary school principal accused of raping six girls aged 11–14, with poster naming “Principal: spare the school children, get a room with me instead!”. This campaign sparked a wide public discussion of sexual abuse cases at school, and the Chinese government started to issue sex-abuse prevention guidelines and legal changes with the warranty of severe punishment. In September, the Ministry of Education issued a guideline to schools: students are required to be taught about sexual abuse and how to protect themselves, and schools are required to check the credentials of teachers more carefully. In October, the Supreme People’s Court, together with three other law enforcement agencies (procuratorate, public security, and justice), issued a more specified, wide-reaching guideline, which not only handled sex offenses against vulnerable groups including minors aged under 12 and migrant workers’ children but also prescribed punishment for offenders and aggravation of the punishment during special times. Though those guidelines are “neither a national law nor a judicial interpretation”, they demonstrate that “China is getting tough on CSA”.
Opposite from the US, regulatory changes promote researches in China. On the largest China academic journal database CNKI, only 11 researches published before 2013 were related to child abuse, which number was doubled to 22 within 2013, and 292 child abuse researches have published in total ever since then. To sum up, China’s CSA protection started almost 40 years later than the US with different promotion factors — America by healthcare professionals and academia and China by media and campaigners.
Legal Decisions and Government Commitment
Although CSA protection was initiated by healthcare professionals, US relevant legislation was primarily improved by actual cases. Two of the most famous are Megan’s Law (1996) breaking the ground of federal CSA reporting and Erin’s Law (2010) promoting CSA prevention in more than thirty states. In July 1994, seven-year-old Megan Kanka in New Jersey was murdered by Jesse Timmendequas, a twice-convicted sex offender who lived nearby. In a rapid-fire successful signature petition and unanimous support in the statehouses, New Jersey Governor Whitman signed Megan’s Law to allow community notification of sex offenders. Not long thereafter, Representative Zimmer introduced H.R. 2137, what was to become the federal Megan’s Law, and President Clinton signed the bill into law in 1996. It did not merely permit community notification but also release necessary information to protect the public from registered offenders. Over the next decade, political bodies paid high attention to registration and notification and other laws came to either modify or broaden them. The most recent significant change was the Adam Walsh Child Protection and Safety Act (AWA) signed by President Bush in 2006. It overhauled major former federal registration and notification policy including Megan’s Law and intended to establish a “comprehensive national system for the registration of sex offenders and offenders against children”.
Another famous law was first introduced by Illinois State Senator Bivins and signed by Governor Quinn in early 2010 to amend the school code within the education law and require all K-5 public schools to implement sexual abuse prevention programs. The requirement contains three components: 1) provide PreK to 12th-grade students age-appropriate CSA knowledge and encouragement to “tell a trusted adult”; 2) require school personnel to monitor any CSA situation; 3) provide parents and guardians warn signs of CSA and “needed assistance, referral or resource information to support sexually abused children and their families”. The law was named after the championship by a young social worker, Erin Merryn, and similar policies have passed in the other 37 states.
Beyond state-level passage, child abuse policies were also popular at a federal level. A report by the US Department of Justice (DOJ) to Congress outlined an overview of existing federal agencies’ efforts regard to child abuse and exploitation in 2016. To summarize the responsibilities, DOJ led in charge of enforcing policies, implemented by task forces’ functions within other 14 federal-level agencies including Department of Health and Human Services (HHS), Department of Education (ED), and Federal Bureau of Investigation (FBI) with the collaboration of the nonprofit organization designated by Congress, National Center for Missing & Exploited Children (NCMEC).
However, CSA protection in the US seems to experience an emergency of backlash nowadays under the critiques of whether severe legislation can effectively prevent CSA cases happen. Education Secretary DeVos currently released final regulations for schools dealing with sexual misconduct to repeal the Obama administration’s severe misconduct investigations and bolster due-process protections for accused students with relieving schools of some legal liabilities. New York Times correspondent commented on the rules as “the most concrete and wide-reaching policy measure of Ms. DeVos’s tenure pushed by President Trump” and a “victory” claimed by advocacy groups long fighting the Obama-era rules.
China’s law to protect children came later than the US. The country ratified the Convention on the Rights of the Child in 1992 and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography in 2002. Two recent landmark legislative changes are the passage of Domestic Violence Law and the 9th Amendments of Criminal Law in 2015, rapid reactions following the 2013 guidelines.
In July 2015, Parliament passed China’s first domestic violence law, which vows to provide special protection to people against family violence including children. It includes three major components: 1) require educators, health providers, social works, and community committee members to mandatorily report any child abuse and neglect cases; 2) “prescribe temporary resettlement for children who have suffered domestic violence”; and 3) “address termination of guardianship of domestic violence perpetrators”. Although some critics claimed that the law failed to specify what special protection and temporary resettlement would be provided and the definition of domestic violence was not explicit, it was still seen as a momentous legal advancement by the public.
One month later, another legislative change took effect on CSA more specifically, The 9th Amendments of Criminal Law has two highlights: 1) officially abolished Article 360 “the Crime of Engaging in Prostitution with an Underage Girl” (EPUG), and 2) expanded Article 237 from “women” to “others” to protect adolescent boys. First, repealing EPUG protects the equal rights of underage girls. Enacted in 1997, this law separated treatment of sexual contact with a minor from an existing rape law and originally intended to escalate illegal prostitution as criminal actions. However, this principle caused much confusion in practice and nationwide campaigners dubbed it as a “golden ticket” for sexual predators to rape children. According to All-China Women’s Federation, child sexual abuse surged from 135 cases in the second half of 1997 to 2948 cases in 1998, twenty times more than the former year, and has far beyond ten thousand cases since 2000. With the continuing efforts of advocacy groups, this legitimizing excuse for raping children has finally been repealed in November 2015, and all child sex will be regarded as rape. Second, Article 237 changed from “indecent assault and insult against a woman, and indecent assault against a child” to “indecent assault against others, insult against a woman, and indecent assault against a child”. The previous law only considered indecent assault to women and children younger than 14 years old as crime, yet the revision also covered indecent assault against boys aged 14–18.
Besides legal decisions, Chinese government capacity expanded in 2019. For example, the Ministry of Civil Affairs established the Centre for Children’s Welfare and Adoption and the Supreme People’s Procuratorate set the ninth office especially for the protection of the minors, with the collaboration of help from the Supreme People’s Court, the Office for Preventing and Combating Crimes of Trafficking in Women and Children under the Criminal Investigation Bureau of the Ministry of Public Security, and the National Working Committee on Children and Women under the State Council. However, critics pointed out the Ministry of Public Security should establish a specific office to handle minor cases and no clear focal point or agency was responsible for coordinating responses to CSA at a national level now.
Similarities and differences exist within the CSA legislation path and government commitment of the US and China. The major similarity is that government reactions are usually pushed by legal decisions. But these two countries have fundamental differences in their judicial culture: American law is impacted by Realism, which believes everyone including child has a dark side and emphasizes punishment; Chinese law is impacted by Confucianism, which somewhat “optimistically” believes human nature is “good at birth” and emphasizes the law to transform criminals’ nature from evil to good so that the punishment is not severe (see a detailed comparison in Figure 3).
Government Limitation and Suggested Improvement
Due to the fundamental differences between the US and China judicial system, it is hard to compare the development of CSA laws and policies in these two countries. Each nation exists limitations in their current government, which, therefore, were divided separately into three categories — prevention, reporting & alert, and conviction & penalty — for suggested improvements.
Conclusion
Above limitations demonstrate that US has evolved into a period of correcting previous CSA policies and laws and China has just started the evolution, so the provided suggestions have different focus to adapt different development progress and culture. Beyond government improvements, World Health Organization’s 2016 report offered a framework named INSPIRE to advocate the society to pay attention to children violence, which included “implementation and enforcement of laws; norms and values; safe environments; parent and caregiver support; income and economic strengthening; response and support services; and education and life skills” (see details in Figure 4). Despite its scope of children’s violence is much broader than CSA, this framework is helpful to think about this social problem holistically. The devil is always around. No matter which country we live in, the society as a whole shall work together to eliminate this “blind spot”.
Appendix
References
1 Hernández, J. C. (Apr 2020). Anger Erupts in China After Teen Says Guardian Repeatedly Raped Her. New York Times.
2 Zhang, W. (Apr 2020). China Seethes Over Teenager’s Claims of Rape by Foster Father. Sixth Tone.
3 Chi, P. (Apr 2020). “Sexual assault case” female lawyer: It is the key to find out the mode of getting along with each other. Teller Report.
4 Davidson, H. (Apr 2020). Abuse allegations in China spark calls to raise age of consent from 14. The Guardian.
5 The Story of RBR. (Mar 2016). Quotes from Spotlight.
6 Lu, J. (Jan 2019). Here’s How Every Country Ranks When it Comes to Child Abuse and Child Safety. UN Dispatch.
7 Finkelhor, D., et al. (1994). The Future of children / Center for the Future of Children, the David and Lucile Packard Foundation. The Future of Children 4(2): 31–53. DOI: 10.2307/1602522.
8 Pereda, N. (Jul 2008) The international epidemiology of child sexual abuse: A continuation of Finkelhor (1994). Child Abuse and Neglect 33 (2009), 331–342. DOI: 10.1016/j.chiabu.2008.07.007.
9 China Children and Teenagers’ Fund. (Sep 2013). Girl Protection Research Report 2013.
10 Finkelhor, D., et al. (Feb 2014). The Lifetime Prevalence of Child Sexual Abuse and Sexual Assault Assessed in Late Adolescence. 55 Journal of Adolescent Health 329, 329–333.
11 Perkins, C. (Jul 1997). Age Patterns of Victims of Serious Violent Crime. US Department of Justice.
12 The Economist Intelligence Unit. (May 2019). Out of the Shadows: Shining light on the response to child sexual abuse and exploitation — a 60-country benchmarking study.
13 Treitman, L. (Jun 2016). Sextortion: An Untold Story. Thorn.
14 Tang, A. & Bradsher, K. (Jul 2019). A Billionaire’s Fall Spotlights Child Sexual Abuse in China. The New York Times.
15 Id. at 12.
16 Olafson, E., Corwin, D. L., & Summit, R. C. (Feb 1993). Modern history of child sexual abuse awareness: Cycles of discovery and suppression. Child Abuse and Neglect, 17 (1): 7–24.
17 Kempe, C. H., Silverman, F. N., Steele, B. F., Droegmueller, W., &Silver, H. K. (1962). The battered child syndrome. Journal of the American Medical Association, 181, 17–24
18 Pleck, E. (1987). Domestic tyranny: The making of American social policy against family violence from colonial times to the present. New York, Oxford, England: Oxford University Press.
19 Id. at 16.
20 Myers, J. E. B. (Sep 2008). A short history of child protection in America. Family Law Quarterly, 42 (3): 449–463.
21 Id.
22 Rudolph, J. (Mar 2018). Person of the Week: Ye Haiyan. China Digital Times.
23 Cross, G. (Dec 2013). New legal guidelines show China is getting tough on child sex abuse. South China Morning Post.
24 Logan, W. (2011). Megan ‘ s Laws as a Case Study in Political Stasis. 61 Syracuse Law Review, 371.
25 Anderson, G. (2014). Child sexual abuse prevention policy: An analysis of Erin’s Law. Social Work in Public Health, 29, 3, 196–206.
27 U.S. Department of Justice. (Apr 2016). The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress.
28 Green, E. (May 2020). DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct. The New York Times.
29 The Library of Congress. (n.d.). Child Protection Law and Policy: China.
30 Women Enabled International. (Nov 2018). NGO Information Note for the Universal Periodic Review of China Third Cycle.
31 Duan, X. (2014). The Crime of Engaging in Prostitution with an Underage Girl in Chinese Criminal Law. University of Pennsylvania East Asia Law Review, 9, 3, 1–40.
32 Wang, M. & Su, X. 王梦婕 苏希杰. (Feb 2012). 废除嫖宿幼女罪 谁在支持谁在反对 [Feichu Piaosu Younvzui Shei zai Zhichi Shei zai Fandui: Repeal Sex Crimes Against Girls Whose Support Whose Oppose].中国青年报 [Zhongguo Qingnian Bao: China Youth Daily], 03.
33 Su, W. (Sep 2015). How the Ninth Amendment to the Penal Code Affects Child Protection in China. UNICEF China Child Protection.
34 Id. at 12. A detailed report about China.
35 Jones, H. (May 1961). Law and Morality in the Perspective of Legal Realism. Columbia Law Review, 61, 5, 799–809.
36 Sheehy, B. (2006). Fundamentally Conflicting Views of the Rule of Law in China and the West & (and) Implications for Commercial Disputes. Northwestern Journal of International Law & Business, 26, 2, 225–266.
37 Ou, S. & Wang, Y. 区适子 王应麟. (13th Century, Song Dynasty). 三字经 [San Zi Jing: Three Character Classic]. One of the traditional six Confucian classics for early childhood education.
38 World Health Organization. (Oct 2016). INSPIRE: Seven strategies for Ending Violence Against Children.
