Zhīmíng Legal Commentary | On the Lushan Procuratorate's "Successful Mediation" of a Minor Rape Case — Fear Not a Godlike Opponent, but a Piglike Teammate
Meritorious service, meritorious service, the Lushan Court has rendered meritorious service! The Lushan Court's “mediation” in a case of a minor raping a minor was a complete success. After the victim's side received 80,000 yuan in compensation from the parents of the criminal suspect Zhao, they reconciled with Zhao's family. Following a review of the necessity of detention, Zhao was released on bail pending trial and has now returned to school. Zhao's parents presented the court with a banner that read: “Enforcing the law for the people, fulfilling duties with dedication, caring for youth, devoted assistance.”
Lushan Court has become famous, truly famous! The court presented this case as a highlight and achievement of its prosecutorial work, participating in the 2018 "Henan Prosecutorial Good Stories" collection and selection event across the province. On the court's official WeChat account, it reported the incident under the headline "A Junior High Student in Lushan Makes an Impulsive Mistake, Both Parties Reconcile Under Prosecutor's Intervention," and even included a photo of the parents of the rape suspect presenting a banner to the court. After the case was exposed, the entire nation was in an uproar. Not only did the idiom "reconcile" trend on social media, but the Li Tianyi case was also dug up again by netizens. While netizens harshly criticized Lushan Court for "taking pride in shame rather than feeling ashamed," they also voiced grievances for Li Tianyi, who was sentenced to ten years for an "impulsive mistake."
[1] Pay attention! Did the Lushan Court abuse its power and handle the case unlawfully?
The author believes that if the case had proceeded under the "procedure for public prosecution cases involving reconciliation between parties," the decision of the Lushan Court would have violated relevant laws. This is because that procedure is limited to "crimes infringing upon personal rights or property rights arising from civil disputes," and rape can by no means be considered as "arising from civil disputes." According to the latest statement from the Lushan Court, the case is still at the stage of review for prosecution. If the outcome is a conditional non-prosecution, then it still falls within the scope of the court and prosecutor's authority and discretion, and cannot be considered an abuse of power or a miscarriage of justice. However, even if it is a "conditional non-prosecution," the author personally does not endorse the decision of the Lushan Court, and the report written by the publicity department of the Lushan Court is even more of a disaster.
The Provisions of the People's Court on Handling Juvenile Criminal Cases specify that "conditional non-prosecution may be applied to juvenile criminal suspects." The applicable circumstances are: a minor suspected of a crime infringing upon personal rights, property rights, or obstructing social administration order, who may be sentenced to fixed-term imprisonment of not more than one year, meets the conditions for prosecution, but demonstrates repentance. The Provisions also specify that before making a decision on conditional non-prosecution, the court shall hear the opinions of the public security organ and the victim.
According to the report, the Lushan Court first "gained an in-depth understanding of the family and upbringing environment of the criminal suspect Zhao, provided psychological counseling to Zhao, and helped him recognize the wrongfulness of his actions." After Zhao wrote a statement of repentance and a letter of apology, the court "then brought both parties' parents together and contacted the local mediation committee to facilitate a reconciliation between the two sides." Ultimately, "both parties voluntarily signed a settlement agreement." So-called "court mediation" can also be regarded as the court soliciting the victim's opinion during the process of conditional non-prosecution, rather than criminal reconciliation.
Take note! Since conditional non-prosecution applies only to cases where the defendant "may be sentenced to fixed-term imprisonment of not more than one year," if Zhao committed rape against a minor female and infected her with an infectious disease, could he possibly be sentenced to fixed-term imprisonment of not more than one year?
If the author were the prosecutor, he would absolutely not believe that Zhao could be sentenced to fixed-term imprisonment of less than one year, and therefore would absolutely not grant Zhao conditional non-prosecution. However, the author also believes that the prosecutor’s judgment in this case that Zhao might be sentenced to fixed-term imprisonment of less than one year still falls within the scope of his discretion. The Criminal Law provides that rape is punishable by a minimum of three years, and where there are no statutory special circumstances, by a maximum of ten years. Zhao did not fall under any statutory special circumstances, so it is impossible for him to be sentenced to more than ten years. Zhao is a minor and should be given a lighter or mitigated punishment, so it is indeed possible for him to be sentenced to fixed-term imprisonment of less than one year. Although the Opinions on Lawfully Punishing Crimes of Sexual Assault Against Minors issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice also provide that where a minor victim is caused to contract a sexually transmitted disease, a heavier punishment shall be given. But first, whether an “infectious disease” is actually a “sexually transmitted disease” is not clearly stated in the report. For example, hepatitis B, as an infectious disease, can be transmitted sexually, but it does not belong to the category of sexually transmitted diseases. Second, how the sentence should be determined after the concurrence of “a minor criminal suspect should be given a lighter or mitigated punishment” and “where a minor victim is caused to contract a sexually transmitted disease, a heavier punishment shall be given” still falls within the scope of the prosecutor’s discretion. But the author once again emphasizes that he would absolutely not believe that Zhao could be sentenced to fixed-term imprisonment of less than one year, and therefore would absolutely not grant Zhao conditional non-prosecution. The author does not believe that the prosecutor in this case perverted the law, but he is in fact a typical “white leftist,” whose maternal heart is not only overflowing, but also misplaced!
Attention! Is there a possibility of conditional non-prosecution for Li Tianyi? If the victim in this case was indeed infected with a sexually transmitted disease due to rape, does this fall under the circumstance of "causing other serious consequences," which is stipulated in criminal law as warranting a sentence of more than ten years of fixed-term imprisonment?
Li Tianyi was characterized as gang rape, which carries a statutory minimum sentence of more than ten years. Although Li Tianyi was a minor, the sentence would by no means be reduced by two tiers, making a sentence of less than one year's imprisonment possible. Therefore, there is absolutely no possibility of conditional non-prosecution for Li Tianyi. Compared with Zhao, Li Tianyi is not treated unfairly at all. In practice, only when rape causes the victim or the victim’s family members to commit suicide or suffer mental disorder is it considered to constitute “other serious consequences caused by rape” under criminal law. Even whether “rape causing a woman to become pregnant constitutes other serious consequences” is highly disputed, let alone being infected with a sexually transmitted disease as a result of rape. In my opinion, if HIV is contracted as a result of rape, it should be recognized as causing serious consequences, and the statutory minimum sentence should be more than ten years; if it is merely a common sexually transmitted disease, the sentence should be within ten years with a heavier penalty.
[3] Mark this! It's not the god-like opponent you fear, but the pig-like teammate. The Lushan Court and the prosecutor in this case were ruined by their own publicity department!
[4] Even if the Lushan Court made a conditional non-prosecution decision in this case, it would certainly generate significant public opinion, but it is not absolutely unreportable. Moreover, placing power in the sunlight and accepting supervision by the people is itself an inherent part of building a socialist rule-of-law society. However, the press release should not have been written this way, and the title should not have been set like this!!! The court's publicity department should first tell the public what conditional non-prosecution means and its applicable circumstances, then analyze why the state established this measure and the sentencing standards for rape, and finally praise themselves. Following this approach, even if there is still great controversy (frankly, such a case cannot avoid controversy), it would still be better than immediately singing their own praises while being vague about the case details, causing nationwide uproar and public outrage, creating a mess, and ultimately having to awkwardly retract the article.
Finally, to borrow a line from Wu Jingzhong, station chief of the Military Statistics Bureau's Tianjin station in the TV drama Lurk, to evaluate Lushan Court: "They wanted to show their face, but ended up showing their ass."
