In what is believed to be the first case of its kind in China, a man who was charged with raping a male colleague could not be convicted for his act as Chinese criminal law has no provision to punish a male raping a male, posing a major dilemma for judicial officials.
Zhang Hua, 42, a security guard at Haosha Sports Centre in Beijing was accused of raping 18-year-old Li Jun (name changed) on May 9 last year in the dormitory, inflicting minor injuries on Li.
Although Zhang was convicted of intentional injury rather than rape, he is probably the mainland's first person sentenced for sexually assaulting a man, state-run 'China Daily' reported on Wednesday.
Zhang, a native of Northeast China's Jilin province was detained after Li complained to the police, it said. But in the end, the Chaoyang district people's court which heard the case could not convict him for rape as China's criminal law only defined rape as forcing a female to engage in sexual intercourse against her will.
Consequently, Zhang's behaviour could not be legally classified as rape, the daily said in its report. The judges who heard the case in a private session "in consideration of the victim's privacy" sentenced Zhang for one year imprisonment for causing injuries to Li.
Zhang deliberately injured another person, resulting in minor injuries to the victim, which constituted the crime of intentional injury, the court ruled. In addition to serving his jail term, Zhang was also ordered to pay Li 20,000 yuan (USD 3,026) in compensation.
"If Zhang had sexually assaulted a woman, he would be charged with rape and face a jail term of at least three years," director of the Beijing-based Zhongguangweitian Law Firm Lu Zheng said.
China University of Political Science and Law professor Hong Daode said he believed the case touched upon a flaw in the country's legal system.
"Legislators hadn't thought about the possibility that men could be rape victims or that women can also rape men. The law should be changed to include these possibilities as soon as possible," he said.
"The frequency of same-gender sexual assaults has continued to dramatically increase in recent years," he said.
Ministry of Health HIV/AIDS and homosexuality expert Zhang Beichuan said: "Many countries' laws stipulate that males can be rape victims, so perpetrators are held criminally responsible. China's criminal law should include such definitions to properly handle such cases in the future."
