China’s Domestic Violence Law has been hailed as landmark legislation, as it defines domestic violence in the Chinese legal system for the first time. Despite increased protections for victims and responsibilities for the state, sexual violence is a particularly thorny problem left unaddressed by the Domestic Violence Law. Under current legislation, marital rape is neither a criminal nor civil offense. China is one of only 10 countries that has not criminalized rape in marriage, alongside Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and Tanzania.
While the Domestic Violence Law defined domestic violence, it did not include all elements that are elements of the internationally recognized definition. Most developed nations and international organizations such as the United Nations suggested including four types of domestic violence: economic, psychological, physical, and sexual. Chinese law only includes two aspects (psychological and physical) but ignored sexual and economic violence. There are elements that reference these two within the law, but not explicitly or directly.
Allowing spousal rape as a legally permissible act sends a clear message: rape in marriage might be immoral, but it is not illegal. While the law has elements that are either poorly enforced or not fully articulated, this is its most glaring hole in victim protection.
In other areas, the Communist Party-led government of China has promoted huge strides for women, with its first signature legislation seeking to illegalize prostitution and forced marriage. Since the founding of the People’s Republic of China, women have seen additional gains in educational attainment and workforce participation. Chinese women serve as leaders in nearly every sector, as CEOs, academics, and civil servants.
Given this background, why doesn’t China criminalize marital rape?
Cultural and government resistance to assertively addressing domestic violence writ large is a clear component. Lawyer Su Lin Han outlines how the exclusion of marital rape as a crime intersects with systematic denial of domestic violence as a crime. She argues that before marital rape can be accepted as a problem and as a crime, domestic violence more broadly must be defined as a crime, not a minor disturbance of the peace. Under the Domestic Violence Law, violations are civil, not criminal, which downplays the severity and associated penalties for domestic violence. The most extreme penalty that one can incur under the Domestic Violence Law is 1,000 RMB (approximately $150) or 15 days in “administrative detention.”
Aside from government resistance to addressing marital rape head on, cultural attitudes contribute to treating domestic violence as a private, family matter, especially when violence intersects with the taboo subject of sex and sexuality. However, through the course of her research Han anecdotally discovered that the prevalence of lack of sex within Chinese marriages was extremely predictable as an indicator of domestic violence. This hypothesis suggests that failing to criminalize marital rape directly effects enforcement of the Domestic Violence Law, an area where the state has clearly asserted its right to intervene.
If the Domestic Violence Law does not incorporate marital rape and sexual violence, it ignores not only a terrible crime, but also a useful indicator of long-term abuse. Marital rape must be addressed head on in China to firmly oppose domestic violence and bring to light an issue that remains painful and secretive.
Hannah Feldshuh is an analyst and editor at a China focused policy advisory firm. She focuses on China’s geopolitical strategy and the role of gender in public policy.