Prof. Lao Dongyan on Sex and Marriage in Chinese Law

"I had not expected that some of my peers—who have, supposedly, studied law—would actually hold views that by the standards of modern civilisation could be described as legally illiterate."

Today’s article concerns the much-discussed “engagement rape case” (订婚强奸) in Datong, Shanxi, for which the appeal hearing was held in April this year. The original case involved a man who was sentenced to three years’ imprisonment for the rape of his fiancée in 2023. Despite protests sympathetic to the man, the original sentence was upheld in the appeal courts. For a detailed account of the case as well as the relevant social and familial pressures around the “bride price” (彩礼) custom in Shanxi, an independent Chinese news source has made a thorough investigation (in Chinese). A shorter summary is also available in English.

Departing from its usual focus on international relations, this week’s edition of Sinification spotlights a legal scholar who, undeterred by waves of vitriolic criticism and censorship, continues to speak out with remarkable courage against perceived injustices in China. Lao Dongyan, a professor of law at Tsinghua University, recently weighed in on the furore which erupted in the online and legal community over the appeal hearing of the “engagement rape case” in Datong, Shanxi. As she explains, the controversy largely centred on whether the payment of a large “bride price” (彩礼) by the man’s family to the woman’s parents (a custom in Shanxi society that is often central to the marriage contract) had entitled him to sex.

The relevance of social custom is a recognised part of Chinese legal practice. In essence, Chinese law grants judges a high degree of judicial discretion (自由裁量权) which they may exercise by taking into account local customs and uncodified moral principles. For example, a widely cited “guiding case” (指导案例)—a type of case compiled by the Supreme People’s Court (SPC) to give judges a model for legal rulings—details the acquittal of a husband for rape because “being married, one has an obligation to cohabit… a notion deeply rooted in societal ethics [伦理], making a written legal provision redundant.”

In the eyes of some lawyers, a key question in the Datong case was whether local “societal ethics” on the payment of the bride price conferred on the man the “rights” which Chinese precedent implicitly affords husbands. Revealingly, online discussion frequently revolved around whether the accuser’s family had orchestrated a “Hongmen banquet (鸿门宴)” ambush to defraud the accused of the bride price, or whether, conversely, the prospective husband had been trying to recoup some of it by sleeping with his fiancée before marriage—and thereby reducing her “value”.

For certain aggrieved men online, the appeal court’s confirmation of the original ruling and explicit rejection of the engagement and bride price as relevant issues is a victory for “women’s boxing” (“女拳”, a hostile pun on feminism—“女权”) that will have a lasting impact on men’s prerogatives. Though excoriating of these attitudes, Professor Lao concurs on the significance of the ruling, which has now been officially incorporated into the canon of guiding cases by the SPC.

The judgement comes in a context when the abuse of judicial discretion by local authorities has been coming under pressure. Professor Lao has recently spoken out over a different scandal, in which the Lanzhou judiciary has been using an unusually broad interpretation of obscenity laws to target writers of online fiction (mostly young and female) for heavy fines across provincial boundaries. Her outspokenness regarding the legal code’s lack of explicit protections on certain issues—particularly for victims of marital rape—will be clear to readers in the piece below.

—James Farquharson

Key Points

1. Unlike in most other advanced countries, the Chinese legal system lacks protections for victims of marital rape.

2. In general, a rape charge within marriage can only be upheld in cases where the couple is undergoing divorce proceedings or already living separately.

3. The spirit of the law on rape, at its core, emphasises preserving “chastity” and the male-dominated family structure, rather than protecting women's sexual autonomy.

4. Regarding the Datong case, however, a marriage engagement is not considered the equivalent of marriage in Chinese legal practice and should not have been deemed relevant.

5. It is therefore astonishing that some professional defence lawyers would argue otherwise, citing local customs.

6. This amounts to legal sophistry used to obscure their true motivations: a psychological attachment to male sexual dominance that they are unwilling to openly acknowledge.

7. The widespread public sympathy for the convicted man reveals that many in society would go further than even ancient Chinese custom, where a husband asserting “sexual rights” before marriage would have been viewed as insulting the bride’s father.

8. Over the course of the case, authorities disclosed many sensitive details in an attempt to calm the public opinion storm over the man being charged—but this likely had the opposite effect.

9. On social media, the open expression of views that are more reactionary than the already lax legal standards emboldens some men to take pride in their “boorishness”.

10. In this context, the court's decision to uphold the original conviction represents a crucial ruling—a victory for civilised values and progress in the face of “barbarism”.

Name: Lao Dongyan (劳东燕)
Year of birth: 1974 (age: 51)
Position: Professor, School of Law, Tsinghua University
Other: Prosecutorial Division Clerk and Acting Prosecutor at the Shanghai People’s Procuratorate, First Branch (1996-1998)
Research focus: Criminal Law
Education: BA East China University of Political Science and Law (1996); PhD Peking University Law School (2004)
Experience abroad: Exchange student at Munich University (LMU) (2002-2003); visiting scholar at University of Pennsylvania and Yale Law School (2006-2007), at Meijo University (2014-2015) and at University of Toronto (2023-2024)

THE UPROAR AROUND THE “ENGAGEMENT RAPE CASE’ IN DATONG, SHANXI
Lao Dongyan (劳东燕)
Published by Shuimu Law Forum on 20 April 2025
Translated by James Farquharson

1. A Bewildering Controversy

Around the time when the first-instance verdict of the engagement rape case [订婚强奸案] in Datong, Shanxi was handed down, I heard something of it and scrolled over related information online [Note: the first-instance verdict by the Yanggao County Court (Shanxi), on 25 December 2023, condemned the accused to 3 years in prison; this was subsequently upheld by the Datong Court (Shanxi) on 10 April 2025]. Back then, certain media outlets reached out to me hoping I could offer a few comments on the judgment, to which I was non-committal [不置可否].

The reasons were as follows. First, regarding assessments of individual cases in the field of criminal law, criminal liability depends absolutely on the facts and evidence related to the case. Since I was not clear about these, it would be irresponsible from the standpoint of professional ethics to make casual remarks about it. Second, as a rape case, it implicates several private matters concerning the parties involved and, after all, is tried in closed court. As such, discussion of it could risk infringing upon their personal privacy. Third, I had believed it to be beyond the realm of dispute that a marriage engagement does not preclude a judgement of rape in cases of coercive sexual conduct. At the very most, some may contest whether such conduct within a marriage constitutes rape, meaning that this case lacked generalisable significance [in the common law sense]. Since it held no generalisable significance, making commentaries on it would not be in the public interest.

However, subsequent developments proved my judgment on the third point to be wildly off the mark [错得相当离谱]. It turns out that, while [the crime of] marital rape has become a legislative norm in rule-of-law countries—even our close neighbour South Korea recognises that a husband can be the perpetrator of rape—our society still contains a great number of people who believe that a marriage engagement equates to the transferral of a woman’s sexual autonomy. They hold that a fiancée has the obligation to cooperate [配合] with her fiancé in carrying out sexual acts at any time and place, and that the existence of a marriage engagement can even rule out the crime of rape in cases of sexual coercion. Alarmingly, those who hold such views even count some practising criminal defence lawyers among them.

Indeed, my earlier comments did carry a degree of personal emotion. Faced with various shameless remarks that were either covertly or overtly [或赤裸或隐晦] objectifying women, I couldn’t exactly remain calm and composed [心平气和]. Moreover, I do not believe that maintaining a calm demeanour in the face of such discourse is a virtue worth commending. Especially when I witness such mudslinging directed at the victim in the case, with attention being diverted to the bride price and the most vile language [污言秽语] being used to subject her to slut-shaming [荡妇羞辱], I can only be stunned by the darkness within some hearts.

Forgive my naivety [原谅我的少见多怪]; I genuinely had not anticipated that our basic sexual norms and values would be of this nature. I had not expected that some of my peers—who have, supposedly, studied law—would actually hold views that by the standards of modern civilisation could be described as legally illiterate.

2. The Law and Rape in China

Whenever I cover the subject of sexual offences in my university teaching on criminal law, I cannot help but sigh. Compared with the legislation on sexual offences in countries belonging to the world’s two major legal traditions [Note: common law and statutory law, with the Chinese law tradition often regarded as occupying its own distinct category—largely due to the system of high judicial discretion and a limited range of guiding cases], the provisions in our own legal system remain markedly conservative, doing little more than defending traditional notions with, at most, minor adjustments [微调]. It was not until the 2015 Criminal Law Amendment (IX) that adult males were even legally recognised as potential victims of molestation—a modest breakthrough in terms of sexual norms. Yet to this day, our country’s criminal law does not acknowledge that males can be victims of rape. The handling of coercive sexual conduct within a marriage continues to be heavily skewed toward the preservation of family order [偏重于对家庭秩序的维护], with the definition of rape itself remains narrowly confined to “natural sexual intercourse”.

Regarding the issue of marital rape, an increasing number of countries over the past century have amended their legislation on rape to recognise that, within a valid marriage, a husband engaging in coercive sexual conduct with his wife—or even simply acting without her consent—can unquestionably constitute rape. By contrast, the scope for punishing marital rape in China’s criminal justice practice is far narrower. Unless coercive sexual conduct occurs during divorce proceedings or periods of formal separation, the mere existence of a valid marriage is considered enough to rule out the crime of rape in cases where a husband has coercive sex with his wife.

The notion that the existence of a marriage can rule out a rape conviction runs counter to the basic standpoint that rape is a crime against sexual autonomy. As long as one recognises that sexual autonomy belongs to the individual, it cannot be claimed that marriage equates to the transfer of one’s sexual autonomy. This is also the reason why modern legal systems generally do not punish adultery.

My lament is that, although our criminal legislation and judicial practice claim to protect women’s sexual autonomy in cases of sexual assault, at core they are still protecting chastity [性贞洁] in the guise of sexual autonomy. Indeed, only through the logic of chastity can one reasonably arrive at the conclusion that only women can be victims of rape, or that husbands [should] enjoy legal immunity and, in principle, cannot be the perpetrators of the crime.

While claiming to protect the sexual autonomy of individual women, [the law] is, in reality, primarily focused on safeguarding chastity. It is rather disheartening to find it saturated with a pervasive male gaze. This extends to those dazzlingly intricate legal-technical arguments, which, at their core, amount to little more than attempts to uphold male sexual dominance. It is just that as lawyers—after all—they are reluctant to frankly lay bare [和盘托出] their psychological alignment with traditional sexual norms.

What I had not expected is that, while our criminal law community’s stance on sexual assault and rape by international standards clearly tends towards the conservative, there are many who somehow view it as overly radical. The standard set by the law is evidently the bare minimum, and yet there are numerous people who seem unable even to align themselves with that. For a normal person, the rational response would then be to reduce their distance from the bare minimum by as much as possible. However, with these boorish [粗鄙] views resonating widely [遥相呼应] in the online sphere, not only do people no longer feel shame at their inability to align themselves with these basic standards—they actually take pride in it.

The massive controversy surrounding the engagement rape case in Datong sparked a range of opinions querying the court’s guilty verdict. Among these, one notably influential argument asserts that, provided they were engaged for marriage and a bride price had been accepted, the crime of rape can be ruled out even if coercive sexual conduct has occurred. It is not difficult to discern that, by this logic, the bride price is viewed as essentially the woman’s “body price” or a payment by the man for sexual services—indeed, functioning as a transactional fee for sexual access.

Such a notion, by treating women as transferable property, is obviously anathema to a modern legal system. Anyone with a basic sense of decency [知道有点体面]—and who does not take pride in their boorishness or opposition to civilised values [反文明]—cannot accept or endorse such a notion at the institutional level. Therefore, even if one holds relatively conservative sexual norms and values, the mainstream legal position in China is still that a marriage engagement has no substantial legal standing. As a result, the parties had not entered into marriage and remained merely a dating pair. Consequently, if the man engaged in non-consensual and coercive sexual conduct with her, then a charge of rape can of course be upheld.

A course of action that, under modern legal reasoning, should have been uncontroversial has instead triggered a storm of online outrage and led to a deep rift in public opinion. More than a hundred years after the fall of the Qing dynasty, we are somehow still debating whether coercive sexual conduct following an engagement can constitute rape—a truly surreal situation [魔幻得很]. Faced with turbulent public opinion in the online sphere, the authorities attempted to calm the waters by holding a press conference, disclosing numerous details of the case involving personal privacy. It was meant to quell the controversy. Contrary to expectations, it had the effect of pouring oil onto the fire [扬汤止沸].

It could be said that this rupture within public discourse is irreconcilable [无从弥合]. At its core, it is not merely a clash of views, but a sharp confrontation [尖锐对立] between two sets of values. At the end of the day, do we adopt the values of modern society, recognising women as independent actors possessing sexual autonomy, or do we prolong the values of traditional society, denying women agency and treating them as objects subordinate to men?

3. Tradition, Modernity and Male Cognitive Dissonance

In ancient society, women were regarded as the property of men. The saying “obey your father at home, your husband after marriage” [在家从父出嫁从夫] was a declaration of male sovereign authority. Consequently, legal systems were designed to uphold paternal and marital authority, affirming male dominance over women and fostering a corresponding culture to reinforce it. Before marriage, a father exercised dominance over his daughter; after marriage, this dominance was transferred to the husband. Naturally, the husband’s marital dominance over his wife included sexual dominance.

Correspondingly, the legal protection of a woman’s chastity in ancient society was based on the view that the true victim of rape was male [the father or husband of the woman]. So-called chastity meant little for the woman herself; it only held value for the man as the legal exerciser of rights over her. According to this logic, when a woman in this type of subordinate position was raped, it meant to the man that his property had been defiled [被玷污]. A commonly held belief in society today—that a woman who is raped is thereby defiled, her body rendered impure or dirty—is in fact a cultural construct propagated by a patriarchal society to reinforce the objectification of women. Clearly recognising the origins of this notion lets one understand that the notion of being “defiled by rape” is a patriarchal imposition.

However, even in ancient society, mere engagement without the formal conclusion of marriage was insufficient to confer upon the fiancé sexual rights over the betrothed woman. On the contrary, if a fiancé committed an act of sexual coercion against her, he would often be subject to formal punishment. Naturally, this was done not to protect the woman herself, but to protect the sovereignty of her father. The reasoning behind this was straightforward: prior to marriage, a woman belonged to her father, and only through the formalisation of marriage with a particular man could the transfer of legal authority be rendered complete. Only then would the woman be regarded as the property of that man, who could thereafter exercise control over her, including sexually.

If the Datong engagement rape case were placed in an ancient societal context and consensual premarital sexual relations had occurred between the engaged parties—leaving coercion out of it for now—then it would have been deemed impermissible. Yet in this case, many people believe that the man had the right to coerce sex from the woman for whom he had paid a bride price. This mindset clearly reflects a desire to reap the advantages of an ancient system in which women were treated as male appendages, while simultaneously enjoying the modern benefit of socially acceptable premarital sex. They want to treat women as property, denying them the status as autonomous individuals, while at the same time asserting a master's ownership over their “property” even before it has formally changed hands—wanting to have their cake and eat it too [两头的红利都要可尽吃]. A beautiful prospect, I’m sure. One has to marvel at the levels of ignorance and greed required to be indulge such wishful thinking—to blindly insist on having it both ways, and to do so with such entitlement.

Previously, I criticised certain people for still living in the Qing dynasty, dragging an ugly queue behind their heads unbeknownst to themselves [后脑拖着丑陋的辫子而不自知]. On reflection, accusing those who hold such views of living under the Qing may have been unfair on that dynasty. Even they would not have dared to assert sexual control over a betrothed woman before the formal transfer of ownership—through marriage—of this piece of “property”. In this sense, those who think it reasonable that the payment of the bride price would oblige a woman to submit to sex have erred very far from civilisation’s path without even realising. Sadly [for them], “On each riverbank, the apes’ shrieks never cease; yet my skiff has already sailed past range upon mountain range” [Note: 两岸猿声啼不住，轻舟已过万重山, a line from a poem by Li Bai written en route on his return from exile in 759; while Li Bai might have written “the apes’ shrieks” to refer to his detractors, Professor Lao is referring to the vocal supporters of male dominance over women]. Such a dream built on straw [黄粱美梦] could not stand even if one were to travel back in time to ancient society, let alone in modern society.

Regardless of how some may drag their feet, times have changed when it comes to gender relations. Civilisation may be fragile and at times overwhelmed by barbarism, but it is like a seed—once it takes root and begins to sprout, it possesses a formidable vitality. From the standpoint of criminal law, the engagement rape case in Datong is not a legally complex or difficult one; it involves no particularly intricate jurisprudence. However, in a society where many cannot even align with the minimum standards established by law, the guilty verdict rendered by both trial courts carries significant value. Every just verdict is a deliberate act of nurturing civilisation. The forces of barbarism may obstruct progress for a time, but they can never extinguish that which possesses such formidable vitality.

READ MORE