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Cablegate: Prosecuting Rape Cases in South China's Criminal Courts -

VZCZCXRO3613
RR RUEHCN RUEHGH RUEHVC
DE RUEHGZ #0373/01 1780858
ZNR UUUUU ZZH
R 260858Z JUN 08
FM AMCONSUL GUANGZHOU
TO RUEHC/SECSTATE WASHDC 7359
INFO RUEHOO/CHINA POSTS COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEKJCS/DIA WASHDC

UNCLAS SECTION 01 OF 04 GUANGZHOU 000373

SENSITIVE
SIPDIS

STATE FOR CA/OCS/ACS/EAP, EAP/CM, DRL, INL
JUSTICE/OPDAT FOR CHRISTOPHER LEHMANN

E.O. 12958: N/A
TAGS: CASC CJAN PHUM PINS SOCI CH
SUBJECT: PROSECUTING RAPE CASES IN SOUTH CHINA'S CRIMINAL COURTS -
AN IMPERFECT SYSTEM

1. (SBU) Summary: As Guangzhou's American Citizen Services Section
continues to closely monitor the status of a criminal case in which
an American citizen has been charged with rape, research into how
the local courts handle the prosecution of these cases sheds some
light on China's developing criminal justice system. Severe
penalties are authorized by statute, including the death penalty,
though the latter seems to be used less frequently than before.
Although some institutional parallels with the U.S. system might be
emerging, there remain few dependable safeguards to protect the
rights of the accused. One extraordinary contrast with the U.S.
system: the prosecution has the ability to appeal a not guilty
finding by a trial court, and can request the review of a sentence
viewed as insufficiently punitive. End summary.

On Paper, Clear Penalties and Institutional Structure
--------------------------------------------- --------

2. (U) First: How does the law define rape? Rape, and the
less-severe crime of sexual assault, are considered serious crimes
according to the current Chinese Criminal Law, first promulgated in
1979 and then revised in 1997. While not defining the act of rape
explicitly, Chinese criminal law stipulates that raping a person "by
violence, coercion, or any other means" is punishable with "a fixed
term imprisonment of not less than three years but no more than ten
years." The statute on rape also stipulates that having sexual
intercourse with a girl under the age of 14 shall be deemed rape and
that the perpetrator shall receive a more severe punishment.
Aggravating circumstances, such as multiple victims, rape in public,
gang rape, or causing the victim serious injury or death, increase
the statutory penalty to a "fixed term imprisonment of not less than
ten years, life imprisonment, or death."

3. (U) While Chinese criminal law does not use the term "sexual
assault", Chinese law stipulates that "an indecent act or the
insulting of a woman by violence, coercion, or other forcible means"
is a violent crime. Penalties of up to five years imprisonment are
authorized, but aggravating circumstances, such as the incident
occurring in public, can increase the statutory minimum imprisonment
to five years. If the victim is a child under age 14, penalties
will fall at the higher end of the sentencing limits. Chinese
criminal law also considers participating in "promiscuous or
licentious group activities" a public order crime, which can result
in a sentence of public surveillance (a rough equivalent to
probation in Western courts), detention time, or imprisonment of
less than five years.

Jurisdiction
------------

4. (U) Second: Who has jurisdiction? The Chinese criminal court
system consists of four distinct levels: County (or District), City
(Intermediate), Provincial, and Supreme Court. A typical trial is
held before a three-judge panel, though provincial courts and the
Supreme Court may use a maximum of seven judges to decide a given
case. In a county court, if the case is minor, the proceedings can
be presided over by a single judge. Jury trials for criminal cases
do not exist. Most criminal cases are initiated in a county or city
court, but cases of unusual complexity or notoriety can be filed at
the level of the Provincial People's Court. A criminal case can be
appealed no more than one level (for example, from the county to the
provincial court); the appellate judgment is final and will be
effective immediately after the verdict is announced. As in the
United States, the Supreme Court has discretion to refuse to hear a
criminal case on review.

Role of Prosecutor and Judge
----------------------------

5. (SBU) Similar to the U.S. legal system, the investigating arm of
law enforcement - in China, normally the People's Security Bureau
(PSB) - works in tandem with the prosecutor's office, known as the
Procuratorate, forwarding completed investigations for review of
potential charges. Deng Guanming, Judicial Liaison Officer for the
Guangxi Zhuang Autonomous Region People's Procuratorate, advised
that prosecutors must bring charges to court within one and half
months of receiving a case from the PSB, and can return it to the
law enforcement agency no more than twice for further investigation.
Plea bargaining - the mechanism used by American courts to resolve
the vast majority of filed criminal cases - is not utilized in
Chinese courts. Prosecutors and defense attorneys do not negotiate
potential case dispositions in order to avoid trial. Although the
Procuratorate files specific criminal charges, a judge has broad
authority to amend charges brought against an individual, reducing
or increasing the severity of charges filed by the prosecutor; the
substitution of unique separate charges appears to be entirely

GUANGZHOU 00000373 002 OF 004


within a court's discretion.

Role of Defense Lawyers
-----------------------

6. (SBU) Third: What are the rights of the accused? Access to legal
counsel can be haphazard, often subject to the good will of the
local defense bar. According to Professor Xu Songlin of Guangzhou's
South China University of Technology, if a person taken into custody
by the police cannot afford to hire an attorney, a judge will then
seek to secure an attorney drawn from local defense firms, though
the availability of counsel is not guaranteed (except in cases,
according to Professor Xu, where the defendant faces the death
penalty, has vision, hearing, or speech disabilities, or is a
minor). Guangdong Province's Justice Department operates a Legal
Assistance Center with several public defenders on staff, but they
are often shorthanded. If a pubic defender is not available, a
request must then go out to local law firms, but the court cannot
appoint counsel, only ask for their help. Like their American
counterparts, the role of the Chinese defense lawyer is to defend
the actions of the defendant, but many observers view Chinese
lawyers as too inexperienced and uncommitted to cases for which they
are appointed. (Comment: From an American perspective, Chinese
lawyers do not appear to share as strong a sense of duty and loyalty
to their clients compared to their American lawyer counterparts. In
China, the lawyer's first loyalty is to society, not the client,
whereas Americans believe lawyers serve society best by fulfilling
their duty to their clients. End comment.) Many Americans have said
the lack of substantive assistance from their attorney was extremely
frustrating.

7. (SBU) In Post's experience, a case does not go to trial unless
the prosecutors believe they have enough evidence to convict the
defendant. Post knows of only one case where a defendant was found
not guilty and released at the end of a trial and in that case, the
exonerated individual's co-defendant was sentenced to death with a
later reduction to a life sentence. In addition, Post has noted a
few cases where Chinese authorities have held individuals for more
than a year and subsequently released them due to a lack of
evidence.

Trial procedures
----------------

8. (SBU) Fourth: Where is the defendant in all of this? At trial,
the defendant in unlikely to have the opportunity to confront his
accuser. Criminal trials are typically short affairs, sometimes
concluding in less than half an hour, with even the most complicated
proceedings rarely taking more than two days. Shenzhen
Procuratorate attorney Chen Xiang Wen (a prosecutor with over 12
years experience in the criminal courts) indicated that the court
does not require an appearance by the victim in a criminal trial -
video, as well as written statements, are often accepted as
substantive evidence of guilt. Neither side enjoys subpoena power -
the tool used by American attorneys to compel the presence of key
witnesses, and one enforced through the ability of a judge to find
an individual in contempt of court. Prosecutors must persuade a
victim to come to court if deemed necessary for a case to remain
viable. In addition, a judge may suspend a criminal proceeding and
instruct a prosecutor to communicate to victims the need for them to
appear in court, but beyond that measure, the system appears to rely
on the victim's willingness to cooperate.

9. (SBU) Trial courts are permitted up to one and a half months to
reach a decision in a criminal case (two and a half months for more
complicated cases). Upon conviction for rape or sexual assault, a
defendant's sentence is determined by the above-mentioned Chinese
Criminal Law. Although the death penalty continues to be imposed
for aggravated rape cases in Guangdong province, the Shenzhen
Procuratorate maintains that courts impose the death sentence less
frequently than in the past. The prosecutor's role at sentencing is
typically limited to general recommendations to the court, noting
relevant aggravating circumstances to be taken into consideration by
the judge(s). Professor Xu noted a pilot program currently used by
the municipal courts for rape cases in Dongguan that seeks to
reconcile the offender and a victim and can result in a more lenient
sentence.

Review of Cases
---------------

10. (SBU) Fifth: Discretion? Review? Though an appellate system
exists in the Chinese criminal court system, the Shenzhen
Procuratorate commented that the permissible basis for an appeal is
not clear, and that the law in this area is quite vague. Time

GUANGZHOU 00000373 003 OF 004


deadlines are strict, however - an appeal must be filed within ten
calendar days of the delivery of a verdict. Discretion given to a
reviewing court is quite extensive - appellate judges are not
limited to the record created at the trial court level, as in U.S.
courts. A reviewing court can seek to create a new evidentiary
record (even hold an entirely new trial), review previous
proceedings, modify findings and sentences, or simply send a case
back to the trial level with instructions. In an extraordinary
contrast with the American system, the prosecution has the ability
to appeal a not guilty finding by a trial court, and also can
request the review of a sentence viewed as insufficiently punitive.
If a defendant chooses to appeal, the reviewing court cannot
increase a sentence if the conviction is permitted to stand.
However, a concurrent appeal by the Procuratorate will leave all
options open to the reviewing court, including a more severe
sentence than what was ordered at the trial court level.

11. (SBU) Once a convicted person goes to prison, a system similar
to parole can impact how much prison time is actually served by an
inmate. Common practice in the Chinese prison system is that a
convict will serve at least one half of his or her sentence and then
be considered for early release. In the case of a life term, this
can occur as early as ten years into a sentence. As in the United
States, an inmate's behavior while in prison is normally taken into
account in making this determination. Sentences handed down in
Chinese courts for rape and sexual assault share little of the
complexity that can mark the punishment for these crimes in the
United States, such as sex offender treatment, indeterminate prison
terms, and mandatory lifetime registration. It has been Post's
experience, however, that foreigners are seldom allowed early
release because it is thought they will try to leave the country.
When foreign prisoners are finally released, they are almost always
deported and not allowed to return to China for significant (but
often undefined) periods of time - even if the offenders were
originally Chinese citizens who had returned and settled in China
after gaining foreign citizenship.

The Victim: Often Meager Resources to Help
------------------------------------------

12. (U) Although the Chinese criminal law finds aggravating
circumstances - with mandatory elevated penalties - if the victim is
seriously injured or killed, services available to a rape victim
remain quite basic. Hospital staff at both the First Affiliated
Hospital of Zhongshan University (one of the highest volume health
care providers in the city and generally considered one of, if not
the, best in the city), and the Qiao Yi Yuan community hospital
indicated that if a woman came to their hospital and reported a
rape, medical care would be provided, but the police would not be
contacted barring an explicit request by the victim. "Rape kits" -
specific investigatory packets used regularly by U.S. law
enforcement - are apparently not available in the region. Large
hospitals will occasionally have counselors available to assist with
the psychological needs of sexual assault victims, but the
availability of qualified professionals is generally quite limited.
Other counseling services are also limited and most rape victims are
too embarrassed and worried about public censure to ever admit or
even tell anyone that they were raped.

13. (U) Unlike the U.S. criminal procedure system, in China, the
victim is considered a party to the trial, and the victim or her
legal counsel can make statements and question the defendant or a
witness before the judge. As previously mentioned, however,
uncooperative or unwilling victims cannot be compelled to appear in
court. Victim participation in the prosecution of perpetrators is
viewed as a duty which, if necessary, can be encouraged but not
required. If a victim is unsatisfied with the result of a court
proceeding (either by a finding of not guilty or a lack of severity
in a convicted individual's sentence), the victim may request an
appeal through the office of the Procuratorate. However, discretion
remains within the hands of prosecutors as to whether to seek a
review, and prosecutors and courts rarely consult victims on
sentencing issues.

Foreigners Charged with Rape - An Equal Standard?
--------------------------------------------- ----

14. (SBU) Guangdong and Guangxi province prosecutors uniformly
maintain that foreigners accused of rape are treated on the same
basis as Chinese citizens. However, cases involving foreigners must
be initiated at the Intermediate (City) level or higher. The
Shenzhen Procuratorate also requires experienced municipal level
prosecutors when a case involves a foreign defendant. Post is
currently monitoring the case of an American charged with rape and
coercive obscenity by Shenzhen authorities. The American was

GUANGZHOU 00000373 004 OF 004


detained on December 13, 2007, formally arrested on December 27, and
judges heard evidence in late March and early April. Six months to
the day after his criminal detention, the Shenzhen Intermediate
People's Court sentenced him to a fixed term of two years for rape
and a fixed term of three years for coercive obscenity. The Court
determined the total term of sentence to be four years, which will
be calculated from the date of detention. It is encouraging to note
from reading the judgment provided by the court that the lawyer the
American hired tried to defend him in court. The defense that the
accused was drunk at the time of the attack and that the woman had
not appeared to him to resist his advances was deemed
"insufficiently established" and not accepted by the court. This
case was also unusual because the victim testified at the trial, as
did the defendant and several witnesses. The American citizen plans
to appeal his sentence.

15. (U) Beijing Embassy POL has cleared this cable.

GOLDBERG

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