From Youth Times:
On October 29, the Nanxun Court in Huzhou City, Zhejiang province sentenced a rape case. Two defendants raped a girl who had just finished high school and were judged guilty, and each of the men received a three-year-prison term. The criminal charge was identified as a “temporary crime on a whim” (临时性的即意犯罪), so relatively light sentences were imposed.
But most people haven’t heard the phrase “temporary crime on a whim”, so this judgment attracted a huge controversy. Within a few days, the discussion on the matter was very hot at Tianya, NetEase and other forums. A netizen questioned that he had only heard of temporary worker and temporary plan, but not temporary, permanent or long-term rape. Some netizens suspected the court was cheating on this case in order to let the two defendants off easy.
Background of the Case:
On the evening of June 10, 2009, two men, Qiu and Cai who were employed as civilian police assistants in the city of Hangzhou, took out two girls, Chen and Shen, for dinner. All of them had a lot of alcohol. Chen is not a good drinker, so she was very intoxicated when the dinner was over.
In order to sober Chen up, Cai took everybody with his car to a hotel and rented a room. After they got into the room, Qiu and Cai sexually assaulted Chen while she was unconscious and unable to resist. When Chen woke up, she found herself lying naked in a bed in a hotel room.
The local court in Hangzhou, based on the facts of the case, decided that the the crime was temporary because there was no discussion before the crime was committed. Afterward, the defendants surrendered to the police and tried to make amends with the victim, so the court sentenced an appropriately mitigating punishment: the two defendants would get three years’ imprisonment.
Chinese netizens’ Comments－If the judge could mitigate the cruelty of “temporary rape,” then what about “temporary robbery and murder”?
The sentence was posted online, and it immediately led to a huge discussion among netizens. Online commenters put forward their different opinions of the “temporary crime”.
“Temporary” is an informal, and short-term behavior. Does it mean that there is an “informal” crime of rape? Is there any difference between short-term rape and long-term rape? If this case is an exception and then the “temporary crimes on a whim” happen again, will the criminals be punished lightly?
Temporary crime on a whim? If crimes could be temporary, permanent, and long-term, may I ask the judges: Which rape is not temporary?
Courts used the phrase to explain that the crime is not premeditated. “Temporary rape on a whim” is similar to the “passion murder”, and there is subjective difference with vicious and premeditated crime.
I am also very concerned about this problem, these four people drank a lot, but still drove? It was not improvised. If I passed by a bank, and tried to steal money, is it also improvised?
About the term “temporary”, I’ve only heard about temporary workers and plans. I’ve never heard that the crime can be “temporary” and sentenced lightly. I think there is no rapist would be so stupid to admit that he was premeditated and planned to commit a crime, right?
Statements from Experts – There are different points of view.
“A temporary crime on a whim is the crime committed under the mental state of temporary willingness. Generally, there was no prior premeditation. Afterward, the defendants surrendered to the police actively, and got an understanding from the victim, so an appropriate mitigating punishment is possible.” Lawyer Li Hui from Zhejiang Hai Hao Law Firm explained that, simply, the defendants seeing a certain scene, suddenly conceived a crime.
Lawyer Li said that the “temporary crime on a whim” is an opposite concept to a premeditated crime. Premeditated crimes cause more damage to the society. Premeditated criminals would think of a good way out, meanwhile “temporary criminals” don’t. “Temporary crime on a whim” leads to smaller harm, so the crime can be judged lighter.
However, a judge from another court in Hangzhou has a different view. The judge, who requested anonymity, claimed in the interview that although there are premeditated crimes, not premeditated crimes, conspiracy, complicity and surrender in criminal law, there is no “temporary crime on a whim’ or “active surrender”. The “temporary crime on a whim” seems newly created.
The judge further questioned the most confusing thing: that when two criminals successively rape the victim, it is typically gang rape.
If the case were identified as gang rape, according to “The People’s Republic of China Criminal Law” clause 236, item 3, article 4 “where two or more people gang rape a girl,” they should be sentenced to more than a decade in prison, life imprisonment or death, which has a significant difference from their three-year term.
See also: “‘Rape on a Whim’? New Catchphrase Raises Ire” (China Real Time Report)
What do you think? Does the court’s punishment and explanation make sense? Is it because the men immediately surrendered themselves to the police after their crime?