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Calls to close legal loophole used by pedophiles for lighter sentence

By Cao Yin (China Daily)

14:03, June 13, 2013

Legislators have been urged to scrap the criminal charge of sex with an underage prostitute to prevent pedophiles from escaping harsh sentences.

After a spate of child abuse scandals nationwide, legal experts and NGOs have put the spotlight on how courts can better protect young people.

One of the first moves, many say, should be to change the law so that anyone who has sex with a child is charged with rape, rather than the situation now when the accused can claim the victim is an under age prostitute.

"We urgently need legislators to clarify the application of laws (for judges and prosecutors) in abuse cases," said attorney Tong Lihua, who provides legal aid for juvenile defendants. "There is a lot of confusion right now."

According to Criminal Law, rape carries the death penalty, while someone convicted of sex with an underage prostitute faces a maximum of 15 years in prison.

Tong said it is common for lawyers acting for the accused to argue that money or gifts had been given to the child and that the sex was consensual, which if accepted by the court will almost always lead to a lighter sentence.

"This has indeed allowed some pedophiles to escape tough punishments," he said, adding that it undermined the law as a deterrent.

In December 2011, three government officials and a businessman in Shaanxi province were reported to have had intercourse with a 12-year-old girl. Police charged all four with child prostitution, as a friend of the girl had introduced them in exchange for money.

For many children's rights campaigners, the law as it stands now is stacked heavily in favor of adult abusers and fails to consider the rights of young people.

Xi Xiaohua, director of Capital Normal University's Juvenile Legal Social Work Research Center, said pedophiles regularly target vulnerable youths with little to no sexual awareness.

"Some use money and gifts to win over a child, and to them this is perhaps a form of prostitution and is fair to both the parties," she said. "But many of these children don't realize they are actually being trapped."

Moreover, Xi said, most abusers are someone the victim knows, such as a relative or teacher, "and they use the inherent trust they have with the child to carry out their indecent crimes."

However, scrapping the charge, as well as changing attitudes in court, could take a long time.

Lu Tao, a judge in the capital's Fangshan district, specializes in juvenile cases. He said it will be hard to get rid of the sex with an underage prostitute charge, and added: "After all, we can't rule out that some girls know what they are doing with a man."

He suggested police and prosecutors do more homework on a case to find the facts. "The more we understand a child's background, the better we can provide them with protection," the judge said.

In the meantime, child protection NGOs and some schools are helping children to protect themselves.

Ai Yi Volunteer, a Beijing group, has been running sex education activities at primary schools.

"Sometimes I watch films or TV shows with students and answer any questions they have about sex, hoping to better inform them," said Zeng Yong, one of the NGOs founders.

Although his group has faced criticism about the project, he insisted education is the best way to keep children out of harm's way.

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