THE SEXUALLY TRANSMITTED FIASCO

  

Dai v Guanli (Criminal No 525 (2000)) and Criminal Appeal No 38 (2001)), People’s Court of Shayibak District of Urumqi City, Xinjiang Uygur Autonomous Region, China

Rape allegations, venereal diseases and public lampooning in northwest China...

Facts:  In this slander case under China’s defamation laws, the plaintiff and private prosecutor, Ms Dai (defined as “the Victim” in the judgment) claimed the defendant, Mr Guanli, made false accusations that she suffered from a venereal disease. 

In mid-April 2000, Mr Guanli invited Ms Dai to his home under the pretence of celebrating his 60th birthday.  Ms Dai alleged that there he raped her.  Mr Guanli said the sex was consensual.

In mid-July, Mr Guanli, whose “private parts felt unwell”, accused the plaintiff of transmitting to him venereal diseases.  The judgment records Ms Guanli’s body had “an abnormal condition”.  He insisted she have a medical check-up.  The plaintiff was apparently “furious” at the suggestion, but the pair went together to the People’s Hospital for her to be examined.  

On arrival at the entrance of the Hospital, the parties “quarrelled with each other and had a fist fight”.  In the course of such fight, the defendant uttered, in front of bystanders, that Ms Dai “suffered from venereal disease”.  Thereafter, the Mr Guanli also allegedly made similar remarks to the plaintiff’s co-workers.

Approximately 3 months following Ms Dai’s check-up, the Hospital affirmed the condition of her body was normal.

Ms Dai sought that criminal penalties be imposed for Mr Guanli’s remarks, and she also sought 1678.72 Rmb (about $400 NZD) to compensate her for her medical and transportation expenses.

The defendant denied having said the impugned words to others, and alternatively (perhaps weakening the force of his first submission) suggested he did not have “subjective intention to debase” Ms Dai, and, further, that she had not suffered any serious consequences as a result of his conduct.

Trial: Four witnesses were called to support the plaintiff’s claim/prosecution.  One witness gave primary evidence that she heard the defendant utter the remarks “3 times”.  The other witnesses gave hearsay evidence of the rumour thereafter circulating about the plaintiff and her condition.  This included Mr Desheng, who said he had received a telephone call from Ms Dai’s husband, who, discussing the affairs between the parties, said he wanted to divorce her.

Held: (Chunxiao CJ, and Dade and Li JJ) As to the alleged rape, the Court avoided making a finding either way, and simply found sexual intercourse had occurred and that there was not a marital relationship between them.

More encouragingly for Ms Dai, the Court found that, subjectively, Mr Guanli’s remarks had “abased and harmed the Victim’s personality and had the intent to damage the Victim’s reputations [sic]”; and that, objectively, Ms Dai’s life and wok had been affected in so far as she was placed under great social and familial pressure mentally. 

The Court rejected Mr Guanli’s “defence of innocence”, as well as the defendant’s contentions he did not have subjective intention to defame Ms Dai, and that the consequences were not serious.  

The Court was of the view Ms Dai’s medical and transportation fees were incurred as a result of her fistfight with the defendant and in gathering evidence for the case.  As a result, the claims were rejected in this regard.

Nevertheless, Mr Guanli was found guilty of defamation and sentenced to 3 months “criminal detention” (which we assume means prison).

Appeal: Both parties appealed the Court of First Instance’s decision.  Mr Guanli appealed on the basis “the facts were unclear and his conducts did not constitute a criminal offence”.  Ms Dai perceived the sentence imposed was unduly lenient and sought compensation of 50,000 Rmb (about $12,000 NZD) for her psychological pain and suffering, and as a fee for her successful prosecution of the defendant.

Held: The Court rejected both parties’ arguments and upheld the judgment of the Court below.

Discussion: It is always interesting to see how other jurisdictions deal with attacks on one’s reputation and standing.  The case gives some insights into the different standards applicable there.

  • Whilst the Court rejected that Mr Guanli did not have “subjective intention” to defame, of course this would be an irrelevant consideration under New Zealand law, where the intention of the publisher is irrelevant to the issue of liability.
  • It also appears that a plaintiff must prove that the defamatory material caused harm.
  • Obviously defamation is a criminal offence in China – not so in New Zealand.
  • The evidence of publication did not seem particularly weighty, given it was based largely on hearsay statements.
  • Perhaps unjustly, Ms Gai clearly ended up out-of-pocket.  Not exactly an encouraging result for a woman who was raped (allegedly), defamed, endured fisticuffs with her defamer, and whose husband apparently wanted a divorce.  

​Click here for the judgment.