Male rape: The crime that doesn't legally exist

Legal loopholes mean many sexual assaults go unpunished, and sentences are too lenient, as Cao Yin reports.

During his 10 years as a criminal lawyer, Yi Shenghua has dealt with many cases involving injuries sustained during sexual assaults. However, sometimes he has been unable to find a legal basis for prosecution and has had no alternative but to suggest that the victim apply for a large amount of compensation.

"I'm sure that many men have suffered injuries as a result of sexual assault, but gaps in the law mean it's difficult to file charges and take the case to court," he said.

A case in point is that of Xiao Gang (not his real name). Xiao claimed he was walking along Binjiang Street in Chongqing's Hechuan district on Sept 12 when he was abducted, forced into a squalid room, and sexually assaulted, Chongqing Evening News reported.

However, the local police had to release the man Xiao accused of the attack because male rape isn't classified as a crime in China - in fact, it doesn't even appear on the statute books. Instead of arresting the suspect, the police had no option but to issue a stern warning and let him go, the report continued.

Similar incidents have occurred across the country, but none of the offenders were convicted of rape. Instead they were accused of causing intentional injury or, if the victim was below the legal age of consent, child molestation, according to Yi, who said the sentences are usually far too lenient.

In 2010, a 42-year-old security guard sexually abused an 18-year-old man in a dormitory, but instead of being charged with sexual assault, the offender was convicted on the lesser charge of intentional injury, and sentenced to 12 months in prison, Beijing Legal Evening News reported.

In 2012, Li Jun, an official at the Guangzhou Civil Affairs Bureau in Guangdong province, was sentenced to four years in jail after being found guilty of sexually abusing a number of boys because prosecutors were unable to charge Li with male rape, Guangzhou Daily reported.

Had the victims been female, Li would have been sentenced to at least three years in jail, according to Yi, who added that sentences for rape vary according to the circumstances. For example, the use of extreme violence, gang rape, or forcible sex with a female minor could result in the death penalty.

"For a sexual assault to be defined as rape, the victim must be female, and the damage should be obviously serious," Yi said, who believes that the law has failed to adapt to developments in society.

'No legal interpretation'

"At present, there is no legal interpretation of how to deal with sexual assaults on men, which results in a dilemma for the judicial authorities," he added.

Ding Jinkun, a criminal lawyer in Shanghai, said the lack of recognition in legal terms presents challenges for judicial officers when dealing with allegations of male rape.

"Offenders will be charged with causing intentional injury when the victims have identifiable physical injuries, or with child molestation if the victim is a minor. However, in most cases of sexual assault, the mental damage is the key issue, especially when minors are involved."