On Perfecting The Crime Of Whoring With A Girl Under The Age Of Fourteen

Since “the Crime of Whoring with a Girl under the Age of Fourteen” wasestablished separately in the amendment to criminal law in1997, the dispute aboutthis crime and punishment began. This dispute has lasted for fifteen years. At the endof May2012, several criminal suspects including Yongkang Municipal People’sCongress representatives and business owners in Zhejiang Province were involved inthe sexual harassment event in which the victims are schoolgirls. According to thelocal police, this case aims to introduce prostitution, and the persons involved areidentified as “suspected as involved with prostitution”. This case put “the sleeping agirl under the age of fourteen crime” to the teeth of the storm. It has become a hotpublic issue from internal jurisprudential circle, scholars, judges, lawyers, publicinterest organizations and network public opinions join this dispute successively,which make this issue a double resonance between professional and public, legalquestion and social emotion.The “crime of Whoring with a Girl under the Age of Fourteen”, which isregarded as conniving crime, becomes the hot social issue again. But the solution tothis hot and difficult issue is facing legislation negligence and conceptual conflict, asa result,“the sleeping a girl under the age of fourteen crime” becomes the difficultproblem that troubles theorists and legal practice. The research objectives andsignificance of this thesis are to solve this current situation, to discuss the repeal andreservation of “the Crime of Whoring with a Girl under the Age of Fourteen” andanalyze the differences between this crime and others, and some relevant problems intheory and practice. Therefore, the purposes of solving related disputes, remedyingdefects and deficiencies, and perfecting the legislation of this crime can be achieved.The constitutive elements of “the Crime of Whoring with a Girl under the Age ofFourteen” are comprehensively analyzed in this thesis, and the similarities anddifferences between “raping a Girl under the Age of Fourteen” and other accusationsin rape crime are found to perfect deficiencies in it, aiming to clearly define theapplication of “the Crime of Whoring with a Girl under the Age of Fourteen”. In theory, firstly, the long-term criticism that “the Crime of Whoring with a Girl underthe Age of Fourteen” deviates seriously from the legal principle that there is no sexright of disposition for a girl under the age of fourteens is analyzed. Some peoplethink that the expression “raping a Girl under the Age of Fourteen” equals toadmitting a girl under the age of fourteens’ right of prostitution, which contradicts thesubjective conditions in theory of criminal law and raping a Girl under the Age ofFourteen, misleading people into thinking that a girl under the age of fourteens areprostitutes. This is the discrimination to those a girl under the age of fourteens with“moral defects”. However, there are some different opinions in this thesis. There areno contradictions between the infringement of a girl under the age of fourteens’ rightof sex freedom and whether a girl under the age of fourteens is willing to performsexual behaviors. The best evidence is that the criminal penalty starting point of “theCrime of Whoring with a Girl under the Age of Fourteen” is five years while that ofrape crime is three years. The promise of a girl under the age of fourteen can not bethe crime obstructed. Secondly, the legal vacancy concerning the criminal of sleepinga girl under the age of fourteen who has reached the age of14but not the age of16should be made up. It is only regulated in the current law that the criminal who hasreached the age of14but not the age of16must be responsible for rape crime, butthere are no regulations for “the Crime of Whoring with a Girl under the Age ofFourteen” which has the same legal interest. Moreover, the condemnation andpunishment of raping a girl under the age of fourteen are adjusted properly.(1) Thepunishment of “the Crime of Whoring with a Girl under the Age of Fourteen” shouldbe lighter than that of raping a girl under the age of fourteen in rape crime. Becauseraping a girl under the age of fourteen belongs to aggravating circumstances in rapecrime, which has a higher criminal penalty starting point even life imprisonment ordeath penalty, however, there are no aggravating circumstances in “the Crime ofWhoring with a Girl under the Age of Fourteen”, as a result, there is no severepunishment to those criminals who had multiple sexual harassments.(2)“The Crimeof Whoring with a Girl under the Age of Fourteen” ignores the situations in whichgirls under the age of fourteens are controlled by others. In most cases, a girl underthe age of fourteens are tempted and forced by prostitution ring into prostitution, those girls under the age of fourteens are the victims. Therefore, it can be seen that ifthe legal deterrence function is weakened, there are more and more people takingrisks hurting a girl under the age of fourteens. It is suggested that those specialcircumstances should be taken as legal aggravating circumstances in order to bedistinguished from others.In addition, it is difficult to judge if the criminal knows clearly that his behavioris illegal in practice. Although it is regulated in the Interpretation on ImportantDocuments about Whether Subjectively Full Awareness Is Needed in the Whoringwith a Girl under the Age of Fourteen Crime released by Supreme People’sprocuratorate that if the perpetrator “knows it or may know it”, it can be regarded asthe perpetrator “knows it clearly”. But the difficulties in practice bring lots of disputesto this interpretation, many people think that the “know it clearly” principle should berepealed. In this thesis, it is thought that there are two disadvantages if it is repealed:Firstly, it is difficult to distinguish or determine the circumstances in which a girlunder the age of fourteens are forced to be prostitutes by criminals’ various means;Secondly, it is unfair to criminals, there are no opportunities for them to provide anexplanation, which disobeys the legal principles of being just and fair. Thus, theimportant documents on subjectively full awareness of “the Crime of Whoring with aGirl under the Age of Fourteen” should not be repealed.There are lots of law analysis methods used in this thesis, they mainly are:Firstly, the rationality of the existence of this crime is proved through thedemonstration of legislative background by historical research (longitudinal studymethod). Then compare “the Crime of Whoring with a Girl under the Age ofFourteen” with other crimes to define the boundaries and avoid theoretical confusionby comparative method. Meanwhile, the necessity of the sleeping a girl under the ageof fourteen crime is also proved; Through the comparison with related laws in othercountries, Hong Kong and Macao, the Crime of Whoring with a Girl under the Age ofFourteen can be perfected in legislation, and become more reasonable in judicialjudgment and law enforcement, connecting to some relevant regulations in mainlandand corresponding with the laws and spirit of human rights protection and childprotection. Then the meaning and perfection of the Crime of Whoring with a Girl under the Age of Fourteen are analyzed through method of semantic differential.Besides the introduction and conclusion, this thesis can be divided into four parts:The first part is about the summary of “the Crime of Whoring with a Girl under theAge of Fourteen”. Starting from the origin of “the sleeping a girl under the age offourteen crime”, the concept, composition characteristics and legislative backgroundare analyzed. The emergence and the characteristics of the accusation aredemonstrated in a detailed way, which foreshadows for the analysis of thecomparison with other crimes. Then discuss and analyze the regulations about thesexual behavior with a girl under the age of fourteens in current continental lawsystem, Anglo-American law system and laws in Hong Kong and Macao regions,aiming to summarize some similarities for our country to introspect ourselves. Thesecond part is about the comparative study between “the Crime of Whoring with aGirl under the Age of Fourteen” with other crimes. Starting from the four constitutiveelements of a crime, analyze and compare this crime with raping a girl under the ageof fourteens in rape crime, the crime of luring a girl under the age of fourteens to beprostitutes, indecent child crime, the crime of spreading venereal diseases and etc.,demonstrating the similarities and differences in order to make people’sunderstanding clear and solve the conflicts; The third part is about the problems of“the Crime of Whoring with a Girl under the Age of Fourteen” in theory and practice.The four major problems of “the Crime of Whoring with a Girl under the Age ofFourteen” are put forward and discussed, they are the loophole of subject of crime, nosex right of disposition for a girl under the age of fourteens, the defects incondemnation and punishment and the difficulties in judging whether the criminal“knows it clearly” in practice. These four problems are the most controversialproblems in the current “the Crime of Whoring with a Girl under the Age ofFourteen”. The public argument and its own opinion are both put forward in thisthesis, it is thought that some defects should be made up while some controversialviews make no sense, foreshadowing the specific explanations of views. Part Four isabout the suggestions and significance about legislative perfection of “the Crime ofWhoring with a Girl under the Age of Fourteen”. Through the above analysis andresearch, this thesis answers all the difficult questions in a detailed way and puts forward feasible suggestions for legislative perfection. Meanwhile, the disputes on“the Crime of Whoring with a Girl under the Age of Fourteen” should be viewed in arational way. The relationship between the repeal and reservation of laws and crimesshould be handled in a comprehensive and objective way, and the significance of theperfection of “the Crime of Whoring with a Girl under the Age of Fourteen” in theoryand practice should be seen as well. The perfection of this crime is not only helpful toconcretize the content of criminal law, perfect criminal law system and promote theprogress of rule of law, but also to the protection of a girl under the age of fourteen’sphysical and psychological health. This an important measure to protect the humanrights of vulnerable groups and juveniles, and it also corresponds with theinternational spirit and conventions related to protect children.