Legalized rape and outlawed dissent — Chen Qiushi on bugs in China’s legal system

Translator’s Introduction 

The lawyer Chén Qiūshí 陳秋實 (born 1985), was one of the autonomous citizen-journalists who attempted to report on the outbreak of COVID-19 in February 2020. As Sebastian Veg noted at the time, Chen “already enjoyed something of a reputation as a self-proclaimed independent investigator, in particular as a result of a fledgling attempt to cover the 2019 Hong Kong protests for Mainland viewers. Chen situated himself in the new tradition of the ‘citizen journalists’ that appeared and gained popular influence throughout the 2000s.”  

Detained by the Wuhan police on February 6, 2020, Chen was released into the custody of his parents, who live in Qingdao, Shandong Province, later that year. He had enjoyed being an online celebrity long before his failed efforts as a citizen journalist, and was also known as an award-winning debater and an outspoken cultural commentator. His short videos on a range of topics attracted considerable attention both in and outside China and, in 2022, he hesitantly revived his online career by posting relatively circumspect commentaries on Twitter and coy videos on his YouTube channel. He also pursued more gainful ventures in martial arts, stand-up comedy, and business. 

On April 11, 2023, in a mood of outrage, Chen posted the following commentary to YouTube.

Chen Qiushi speaks from what I call “The Other China.” The Other China is not the China of stentorian slogans, cutting barbs, and sarcastic put-downs. It is not the China of clichéd patriotism and exaggerated public performance; nor is it the China of crude stereotypes and bottomless grievance. It is a China of humanity and decency, of quiet dignity and unflappable perseverance. It is a China that finds expression in myriad ways in a country dominated by a political party that would bend all to its will.

My thanks to Callum Smith of China Heritage for help with transcribing Chen’s video.

— Geremie R. Barmé  

Friends, this is Qiushi. After recording today’s video, it’s quite possible that the authorities will drag me off again for a “talk, tea, and trouncing.” It’s possible that they’ll even subject me to some form of coercive punishment. Sure, we can’t all keep silent, pretend to be indifferent, and act as though the evil confronting us doesn’t exist — afraid for ourselves and fearful of what might become of us. But, I have to ask, what right do we really have to remain silent in the face of the outrageously vile and iniquitous things happening around us at the moment?

A lot’s happened lately. Take, for instance, the sentencing of Dǒng Zhìmín 董志民, the so-called husband of the “Chained Woman of Xuzhou.” He’s just been handed a nine-year jail sentence. Surely, I think to myself, any decent person with a conscience will think that given what he’s done, such punishment is far too lenient. Why was he sentenced for abusing a family member and illegal detention rather than for being tried for rape and intentionally causing bodily harm?

At the same time, there’s been another case in which Xǔ Zhìyǒng 许志永, the founder of the Citizen’s Movement, and Dīng Jiāxǐ 丁家喜 were respectively sentenced to 14 and 12 years in prison.

Criminal activities call for the application of the criminal code of a country. However, first and foremost, this only applies when an actual crime has been committed that has resulted in some observable consequences. Only then should there be grounds to launch a criminal proceeding. That is equally relevant in cases in which a person’s rights have been illegally impinged upon and resulting in physical harm or material loss. 

Both Xu Zhiyong and Ding Jiaxi have been sentenced for “inciting subversion of state power.” I’ve been accused of the same crime [in 2020], but was released on bail pending trial. After a year, the authorities dropped the case against me. 

As for Xu Zhiyong and Ding Jiaxi, how did they go about “inciting the subversion of the Chinese government”? Sure, they wrote some articles, posted some tweets, and organized a few gatherings. In the process, however, no one was hurt in any way. In fact, no one on earth lost one drop of blood due to their actions, and no one in this wide world was conned out of a single penny by what they did. Yet, regardless of the fact that no one was negatively impacted in any way by his actions, Xu Zhiyong will be spending the next 14 years in jail.

By contrast, Dong Zhimin, who held the Chained Woman as a virtual prisoner for two decades, raped her countless times, forced her to have eight children, used chains to bind her, abused her, and beat her — despite all of the suffering that he inflicted on her — he’s only going to be in jail for nine years.

What justice is there in any of these sentences?

I’d imagine that the vast majority of people watching this video have not been directly involved with either of these cases. None of us are much more than spectators. However, there are those who have been intimately involved with what happened to the Chained Woman. Who, for instance, signed off on her marriage to Dong Zhimin? And who processed their local household registration?

On top of that, there are a few other people who became embroiled with this case. For example, there was a female blogger who was so outraged by reports of the case that she traveled to Feng County to interview the family of the Chained Woman. After being picked up by the authorities, she was issued a warning and subsequently detained. To this day, there’s been no word from her. Even I became tangentially involved in the case. I shared the outrage of countless others who read reports about it in the middle of last year and I posted the following tweet:

“Isn’t there a famous Chinese singer who is a UN goodwill ambassador for women? What’s the ambassador doing about a case in which a Chinese woman’s basic rights have been violated in such an egregious manner?” [Note: Chen is referring to Péng Lìyuàn 彭丽媛, China’s First Lady and the wife of Xí Jìnpíng 习近平.] 

That did it! The police in Jiaonan District in Qingdao [Chen’s hometown in Shandong Province] picked me up and subjected me to a solid day of interrogation. They also confiscated two mobile phones that were in my possession. They were determined to know who had put me up to writing such a tweet? What was I aiming to do? And why had I gone out of my way to denigrate and insult our great national songstress? 

After a day of questioning, they concluded that I was not in anyone’s pay nor had I been acting on anyone else’s behalf. Still, the police were mystified: What did it have to do with me? Why did I feel the necessity to speak out? I didn’t get it, either: Why were they making such a fuss about what I had written? Anyone with an ounce of decency, any normal human being, would have reacted like I did when they learned that a female compatriot was being treated like this in 21st-century China. Don’t we boast that we are “the most advanced nation” in the world, and hype ourselves as “Amazing China”? How is it that you weren’t outraged like me when you learned that someone was being abused like that?

So, back in mid-2022, I ended up suffering another setback and more hectoring lectures from the authorities. That’s why, since the summer last year, I haven’t posted many videos. Now, a year has gone by, and we haven’t seen Our Songstress in public all that often; anyway, I don’t really care about her or even want to talk about her. And, a year since that story broke, Dong Zhimin has been sentenced. Regardless, for me, I’m haunted by my question: Why was he given such a light sentence and why wasn’t he tried for rape or for causing intentional bodily harm?

As I see things, this is a result of a massive bug in the Chinese legal system. So, let me don my lawyer’s cap and offer an explanation:

China is a country with codified written laws. That means that courts adjudicate cases on the basis of the laws that are on the books. The crime related to intentionally causing someone bodily harm can variously result in a custodial sentence of over 10 years, fixed-term imprisonment, life imprisonment, or even the death penalty. The most serious cases of rape can led to the death penalty. When it comes to the heaviest punishment that can be imposed for the abuse of a family member, the civil code is very clear: At most, you can be jailed for seven years. 

Okay, so the man and woman involved in the case in Feng County were married and as such Dong Zhimin cannot be charged with marital rape nor, for that matter, are his acts of domestic violence seen in the eyes of the law as constituting intentional bodily harm. At most, he was abusing a family member. Do you understand what I’m saying here? Have you cottoned on? In China, a marriage license may well end up being a license to kill.

I’m 38 years old and unmarried. Now, if I were to marry a woman in Qingdao right now,  say I chose to lock her up at home, beat her every day, kick her in the head, stomp on her stomach, and abuse her nonstop for three years so that she eventually died from internal bleeding. Since I have a marriage license, my crime would merely be that of maltreating a family member. I’d only be looking at seven years in jail. Tops. 

Was the marriage involving that man and woman in Feng County legal? Was it a legitimate union? In that case, the woman in question had psychiatric problems, an illness that, in legal terms, would have prevented her from entering a lawful marriage contract. Legally speaking, their marriage should have been regarded as being null and void. The situation was not all that different from a case where a person is forced at knifepoint to enter into a contract with someone else. There, too, the contract would be regarded as being null and void. 

In the case of Dong Zhimin, a man who forced a mentally incapacitated person into marriage, we must ask, was it a legal union, or an illegal marriage that by all rights should not be recognized by the law? Well, let me tell you, it is regarded as a legal marriage because, according to Chinese law, there are only three instances in which a marriage is not legally recognized: in the case of bigamy; when one of the parties is underage; and if the marriage is between close blood relatives. The union of the Chained Woman and Dong Zhimin violated none of these principles and, as such, it is seen as being a valid union.  

If the stalker who proposed marriage to the actress Dilraba Dilmurat in June 2020 had forced her to go to the Civil Affairs Bureau at knifepoint to obtain a marriage license, they could have ended up being legally married. Their union would have been recognized as the result of a valid marital contract. But, since she was forced to marry under duress, she could apply for an annulment.  

In the case of the Chained Woman of Feng County, however, due to the state of her mental health, an annulment was never in the cards. She is not recognized as having individual legal capacity and as such never had the wherewithal to apply to a court for an annulment of the marriage. That meant that, in the eyes of the court, she remained legally married to Dong Zhimin and therefore the crime of rape did not apply to this case, nor was a charge of causing intentional bodily harm applicable. The most that Dong could be accused of was the mistreatment of a family member, a crime that carried only a seven-year custodial sentence.

This case highlights a bug in the Chinese legal system.

But such legal bugs are not intrinsically insurmountable. Laws are written by people and people are fallible. People can correct their mistakes, just as laws can be amended. So how does one go about amending a law in China? By appealing to the good offices of lawyers like me? That’s not how our system works. Lawyers are merely the front men and women in a tiered legal system made up of a legislature, the judiciary, and law enforcement. Lawyers have no role in the rewriting of laws — that falls within the purview of the legislature. In the case of China, that means the National People’s Congress [NPC] and the Standing Committee of the NPC. Who has the authority to table an amendment to legal statutes? That’s up to our representatives in the NPC. 

This, then, comes down to the question of who exactly are our representatives in the National People’s Congress? 

At the recent “Two Sessions” of China’s parliament held in March this year, all 2,092 members of the NPC unanimously voted in favor of Xi Jinping being elected to a third five-year term as president of China. They are our representatives!

Nevertheless, despite all of that, I still have a lingering fantasy, a residual hope that in a legislative body made up of over 2,000 representatives, there might still be one or two people who actually still have a conscience. Maybe, just maybe, one of them might even table a motion in favor of revising China’s Marriage Law and Civil Code so that the obvious bugs in the system that I’ve outlined in the above can be addressed. 

What if I’m wrong?   

What if not even one of the 2,000-odd people in that body has the decency to act? What if none of them — men and women who enjoy lofty social standing and not insignificant legislative power, people who boast considerable personal wealth — simply have not an iota of interest in helping advance the cause of Chinese law reform? What if none of them have even the most minuscule concern for the well-being of the actual people of China whom they represent? Then what? Then people of good conscience can do nothing more than hope and pray that this pack of selfish, grasping, callous, and cold-blooded “People’s Representatives,” along with their families, end up suffering the same cruel fate as that of the Chained Woman of Feng County. 

For it is only when the clenched fist of raw power hits them squarely in the face, only when the dagger of the state is buried deep in the chests of their own children, will there be any hope that they might actually wake up. It’ll only be when they suffer the same fate as everyday people in China. Even then, the vast majority of people can never be woken up; the only thing that can bring them to their senses is hunger and violence.  

During the winter of 2021, the city of Xi’an was put under lockdown and the supply of everyday necessities, including food, became a real problem. Many people found themselves in dire straits and were unable to feed themselves. At the time, a Shanghai friend of mine made light of the situation and mocked me: “See, that’s what you get in the backward cities of the north. In Shanghai, we’d never have to put up with anything like that. We’re a modern global city, a metropolis with a unique style and our way of doing things. Our city administrators would never let such a ridiculous situation arise here.” Then the spring of 2022 came around and tens of millions of Shanghai people got sucker-punched in the face. They went through a baptism of reality.

Now it was the turn of that Shanghai buddy of mine to say to me: “Qiushi, now I get it. No matter how expensive my car is, or how luxurious my apartment, I, too, have been reduced to begging for food in our local WeChat group just like everyone else. All of a sudden, I was nobody. That’s when I realized that being a ‘Shanghainese’ was nothing special. We, too, were being treated as subhumans.” 

That’s right — only when you wake up to the fact that ours is a system that can treat you as being less than zero are you finally on the way to growing up.

Anyway, let’s hold out hope and be optimistic that within the ruling class, and that includes representatives of the National People’s Congress, there might be a few people with a sense of decency who actually want to help China advance and become a civilized modern nation. At the same time, we should also maintain a dark hope that those cold-blooded and callous members of the gentry get their comeuppance as soon as possible. May they, too, experience the pitiless punch in the face. It might not come immediately, but, rest assured, it is sure to arrive sooner or later.  

Chinese text:

同学你好，我是秋实。今天这条视频录完，我可能又要被有关部门拉去谈话、喝茶、训诫，甚至采取某些强制打击措施了吧。但是你不能够因为有所顾虑、有所担忧，就对罪恶熟视无睹，保持沉默，保持麻木吧。这世上有那么多脏事儿、烂事儿就在最近集中发生了，我们凭什么保持沉默呢？

最近发生很多事儿，就比如铁链女的那个所谓的丈夫董志明被判处了九年有期徒刑。我相信每一个善良的、有良知的人都会觉得这九年简直太轻了吧。为什么只判了一个虐待家庭成员非法拘役，而没有去定强奸罪和故意伤害罪呢？

而另外又发生了一个案件，那就是新公民运动的发起人许志永和丁家喜先生，分别被判处了有期徒刑十四年和十二年。

犯罪行为在一个国家是受刑法来管理的，而犯罪首先需要有犯罪的行为，然后要有犯罪的结果；有人实施了不法的侵害，有人因为不法侵害而受到了损失，是人身的损失或者是财产损失。

许志永和丁家喜被定的是煽动颠覆政权罪。我曾经也是被定了这个罪，后来我是取保候审一年啊，不予起诉。而许志永先生他们是怎么煽动颠覆中国的政权的呢？他们写了文章，他们发了推特，他们还组织了聚会，即便在这个过程当中，没有任何人受到伤害。这个星球上没有任何一个人因为他们而流一滴血；这个星球上没有任何一个人因为他们而被骗一分钱。没有受害者。但是许志永要在监狱里面蹲十四年。而反过来，董志明把铁链女整整囚禁了二十年，强奸了她无数次，强迫她生下了八个孩子，还用铁链锁住她、虐待她、殴打她。二十年折磨一个人，却只需要判九年做九年的牢。这样的判决公道吗？

我想我们绝大多数人都与本案无关，我们都只是看客，但是肯定也有一些人和本案是直接相关的。就比如说在丰县到底是谁给他们办的结婚证？是谁给他们落的户口。

还有些人是与本案有些间接的关系，比如说曾经有某位女博主因为为此事感到愤恨，想然后去丰县探访一下铁链女的家庭，结果被当地警方抓获，训斥、拘留到现在还杳无音讯。我自己也与本案多少有一点点关系。我们知道铁链女的事儿发酵于二零二二年的五六月份，在那个时候看到这个新闻的时候，我和屏幕前的绝大多数朋友一样感到非常的愤怒，于是我发了一条推特是这么写的：

“我说咱们国家不是有一个知名的歌唱家，还是联合国妇女权益大使嘛。面对中国妇女遭受的如此的侵害，这位歌唱家干嘛去了？”

于是完喽，因为我发了一条推特，我就被青岛胶南的警察又抓起来审讯了整整一天，没收了我两台手机。整整一天的审讯都集中围绕在：你受谁的指使？你有什么企图？你怀着什么目的来诋毁、来污蔑我们伟大的歌唱家？

结果审了一天，发现我没有收任何人一分钱，我没有收任何人的指使。警察非常的不解呀。这事儿跟你有什么关系？你为什么要为这事儿发声呢？而我也非常的不解：你为什么要为这件事发声呢？咱们但凡一个有一点点良知的人，但凡是爹生娘养的，看到自己的同胞姊妹在这个二十一世纪，在这个世界上“最发达”、“最厉害”的国家遭受这样的凌辱，你怎么能够抑制住自己的愤怒呢？

于是，二零二二年我又遭受了这么一次打击、训诫。从去年的夏天开始，我就很少做视频了。转眼一年过去了，我们比较少在公共场合看到我们的歌唱家，我也不想去关注和提及她。一年过去了，董志明被判刑了，但问题是为啥他只判九年不判强奸罪，不判故意伤害罪？

这就是中国法律当中一个巨大的bug。来，陈律师分析给你听。中国是成文法国家。所以法律上怎么写法院就得怎么判。故意伤害罪最高可以判到十年以上，有期徒刑、无期徒刑甚至死刑，强奸罪最多可以判到死刑。而虐待家庭成员这个罪名在刑法里边写得很清楚：最多判七年。

他们两个是结了婚的，所以他们是夫妻，所以他们之间就算家庭成员关系，所以董志明强奸他就不算强奸，殴打他就不算故意伤害，只算虐待家庭成员。听懂了吗？学会了吧？在中国，结婚证就是一张合法的杀人证。我今年三十八岁，未婚，如果现在我跟青岛的某位女士结婚了，我就把她囚禁在我的小屋子里，每天打她，天天打他，照脑子上踢，照小肚子上踹，踹她三年，打到她内脏破裂而死。你最多判我七年。因为我有结婚证，我这叫虐待家庭成员。

而他们两个的婚姻合法吗？他们这叫有效的婚姻吗？她是个精神病患者呀，在法律上这是不能结婚的疾病啊。法律上是有一种规定叫做无效婚姻，就比如说我拿刀架着别人脖子签的合同叫无效合同，一样。

但董志明拉着这样一个精神病患者去结婚，这玩意算有效婚姻还是无效婚姻？我告诉你算有效，因为在中国的婚姻法当中规定无效婚姻只有三种情况：一个是重婚；一个是未到法定婚龄；一个是近亲结婚。铁链女和董志明之间的婚姻不符合这三种情况，所以他们就算是有效婚姻了。

也就是说今天我拿刀架着迪丽热巴的脖子把她送到民政局去，只要领了证，我俩就算是合法夫妻了，我俩这婚姻就算是有效婚姻。只能说是他这种婚姻状况被胁迫的叫可撤销了婚姻，迪丽热巴可以向法院申请撤销，我们的婚姻就无效了。

但问题是铁链女她是个精神病患者，她是个无民事行为能力人，他没有能力向法院申请撤销他们的婚姻，所以他们就是有效的夫妻呀，他们就是合法夫妻呀，因为他们是合法夫妻，所以就不适用强奸罪，不适用故意伤害罪，适用的是虐待家庭成员罪，最多就判七年，这就是中国法律的bug。

法律有bug不可怕，法律是人写的是人就会犯错，错了就改嘛，法律有漏洞把它补上嘛。那么法律的漏洞怎么补呢？靠我们律师补吗？不是这样的，因为在立法、司法、执法这个序列当中，律师是站在最前沿的，我们是没有改变法律的权利的，改变法律是立法机关的权利，那么谁是中国的立法机关？是中国的人民代表大会和人大常委会。那么谁有权利在人民代表大会当中提出一个修改法律的动议呢？是我们的人大代表。可是中国的人大代表是一群什么样的人呢？在刚刚过去的三月份的两会期间，全国人大两千六百九十二名人大代表一致举手同意，百分之百地同意习近平先生连任国家主席。我们的人大代表就是这样一群人。

但是我依然对他们心存幻想，依然期待着这两千多人当中，哪怕有千分之一的人还良知未泯，他就应该提出一个动议来修改我国婚姻法和刑法当中的这样的一个问题，把这个漏洞补上。可是如果我错了呢？

如果这两千多人没有一个人是有良心的，如果这两千多个位高权重、身家腰缠一万贯的人大代表，丝毫不在意中国法律的进程，丝毫不在意人民的死活，怎么办？那我们所有善良的朋友就只能祈祷、只能期盼着这些自私的、贪婪的、麻木的、冷血的人大代表和他的家人早日遭受铁链女一样的侵害。

只有铁拳砸到他自己的脸上，只有刀子捅进他自己孩子的胸口，他才会觉醒，他才会和人民群众感同身受。这世上绝大多数人是无法被唤醒的，他们只能被饿醒或者被打醒。

二零二一年的冬天，西安市封城。因为物资分配出现问题，许多人的生活陷入窘境，吃不上饭、买不上菜。那个时候我上海的朋友嬉皮笑脸的跟我说，就是你看这就是你们北方的城市，我们上海不会：我们是国际化大都市，我们是海派文化，我们绝对不会在城市管理上出这种问题的。到了二零二二年的春天，上海几千万人遭受了一遍铁拳的洗礼。

我这个朋友跟我说秋实啊，我才明白，我开着价值几百万的车，我住着价值几千万的房子，我却要在微信群里为了买个菜跟人低声下气的。我算什么呀？我那刻我觉得我算什么我算什么“上海人”，我连个人都不算。对呀。当你意识到这个世道不拿你当人的时候，说明你长大了。 

对。我们依然乐观的期待着我们的权贵阶层、我们的人大代表当中还有有良知的人，想要推动中国的文明进程。另外一方面，我们也悲观地去期待着每一个冷血麻木的权贵都早日遭受侵害，早日遭到铁拳的虐待。铁拳也许会迟到，但是绝对不会缺席。