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