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this post was submitted on 26 Jun 2024
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chapotraphouse
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That doesn't make any sense, the law "recognizing" certain relationships isn't the same as purely acknowledging the existence and possibility of them for the purpose of laws like if there is a law against cheating on a partner.
Yeah is there some kind of trap card thing in Chinese law where as soon as a court recognizes that two women had a relationship it immediately makes gay marriage legal?
Hmm, the person tweeting this (as far as I can tell, they're not living in China currently, and is some 1st gen Chinese Canadian YA author who writes Chinese history-inspired fantasy/SF) provided some "elaboration" on the alleged situation:-
Not sure about the anonymous "Chinese lawyer" source that they're relying on, and I can't find a news source reporting on this case; elsewhere in the thread they posted an SCMP article, but it was about a "coventional" heterosexual jody case from earlier this year). Be that as it may, on first glance, the purpoted legal logic doesn't seem to be completely without legs to me? If cohabitation is legally defined as "living as if husband and wife", it seems at least arguable (not saying that it's an argument that Chinese courts will definitely accept) that the court cannot legally recognise a "lesbian cohabitation" situation without first recognising the concept of a marriage/legally-recognised union between two women?
I think it's a really flimsy argument tbh.
Say for example a wife of a PLA soldier has an affair with a married man and they live together, eat together, go on dates together, fuck, etc. The male adulterer would not be able to actually marry the soldier's wife because bigamy is illegal. I don't think it would fly for a second to argue that the male adulterer can't be convicted because the Court would be recognizing bigamy.
I'm not a trained Chinese lawyer or anything, but if the English translation of "as if" is accurate then there's a ton of leeway for interpretation.
Yeah. A Chinese court can probably easily differentiate between "recognising" a factual instance of bigamy (or in this case, lesbian cohabitation) while still treating it as an illegal act, and "decriminalising"/"legalising" a practice by court judgment. I would assume that any legal system would inherently need to be able to do the former without necessarily overreaching into the latter, because if that ability isn't there then it may be theoretically possible to perversely argue that judges actually cannot impose derivative criminal libilities or pass sentences on convicted persons because courts should not recognise (i.e., legalise) a crime by doing so. In general, arguments along the pattern that a civil case cannot be won because a requirement of the relevant civil law concept is already criminal act are inherently silly, since nobody is going to argue that a civil case to get compensation for physical battery cannot be found because battery is also a criminal offence. It's the literal/plain meaning rule being taken to the dumbest conclusion, i.e., the cases you teach in law school (if such cases exist) to show why concepts like the mischief rule/golden rule/purposive approach are necessary.
In fact, the current situation is probably a weaker case than the bigamy example that you provided, given that unlike bigamy, "cohabitation" (or infidelity) is not even a criminal act per se, just a criteria to tick so as to fulfil other legal liabilities. So, the court can easily just say "we recognise that people sometimes have gay/lesbian relationships outside marriage, and that for LGBTQ people such relationships fit under the definition of "living as if husband and wife" without seriously worrying that somehow according to some crazy literalist interpretation they've created gay marriage. Somehow I don't think LGBTQ activists in China would view that as commendable and actual progress towards legalisation of gay marriage.
What we don't know, is the law meant to be used to punish infidelity or to punish somebody taking advantage of a lonely spouse of a deployed soldier?
I'd imagine that if the law was meant to "protect a lonely spouse from being taken advantage of" it wouldn't matter which gender the stay behind spouse was interacting with.
That interpretation sounds like a plausible socially progressive reading of the law, given that there's a proviso to address cases where a person rapes a military spouse "by means of violence, coercion or other means" (it refers such cases to Article 236, which concerns cases of rape by violence or coercion in general). One could argue the addition of this proviso implies that the entire article is intended to be read as a law to protect the welfare of military spouses, addressing different ways a man could take advantage of a lonely military spouse, either by dishonest seduction (dishonest because conviction under the law requires proof of the man knowing that the woman is already married), or by force/abuse of position. The relevant clause of the Chinese criminal law code reads:
Of course, the broad way that the law is phrased reveals big blindspot in the provision, as it kinda fails to consider or address a possibie situation where a military spouse could or would want to exercise agency by actively seeking out affairs while their spouse is deployed.
Edit: Actually, upon reading the criminal law code further I realise that it also contains a general criminalisation of bigamy in Article 258 (anyone "who has a spouse and commits bigamy, or who marries another person knowing that the other person has a spouse" can get up to two years imprisonment). So, I guess in cases where a military spouse actually remarries while the soldier is deployed, that would also open her (or him/them) up to some criminal liability. However, if she's "merely" having an affair, or cohabiting, she's technically not liable for any crime. Which means, on a structural level, the law is a little more lenient on the military spouse as compared to the jody. This further supports the argument that it's more accurate to read Article 259, which addresses only the person seeking to marry or cohabit with the military spouse, as theoretically aimed at protecting military spouses from being taken advantage of while their husbands are deployed instead of it being a law meant to punish military spouse infidelity, since it distinctly doesn't seek to punish the cheating military spouse like Article 258 does for general bigamy. If Article 259 was intended to punish all military spouse infidelity, it logically would need to treat both the military spouse and the person they cheated similarly.
Hexbear commenters, best-bear commenters.
Not living there currently. ~~She~~ They was born and spent their childhood there and speaks the language natively.
They
Wow, that was basically my guess for how this might actually work, that's really funny if this turns out to be true.
Xiran Jay Zhao is not a woman
Ah sorry didn't mean to misgender them. Will edit accordingly.
The SCMP article does imply that the law serves both to try to keep a soldier's mind on the job as well as some legal consequences for anybody specifically targeting a soldier's spouse who is living alone during a deployment.
I kinda wonder if the law was created to be used in this particular way or if it was written broadly enough that it can be used in spiteful ways, as this instance seems to indicate. If you're asked for a divorce by your spouse and the first thing you do is start checking security camera footage/cell phone records for evidence of infidelity, that says more about you than your spouse.
It'd be interesting to know the specifics of the law (which does not seem to be quoted anywhere in the article) and if there was any specific history behind its creation and application in court.
I was thinking what if the law is written so it only applies if the cheating couple could get married after causing a divorce, which would be an extremely funny way to word a law like this.
The tweet is the dumbest legal take I've seen since I stopped tutoring Law 101.
Please share some of the dumbest takes you’ve heard from that’s experience! It sounds rife with humor potential.
I won't tell on the first years because university is a time where you can have dumb takes and be forgiven as long as you learn from them.
Instead I will tell you about the time I was sued by a sov cit who filed a petition they wrote themselves. It laboriously detailed all the ways in which "I" (he had the wrong person) violated his constitutional rights - how I trampled on his freedom of speech, denied him a fair hearing, seized his property, etc etc - all with detailed references to the US constitution. The problem? We were not in the US, none of the stuff at dispute was in the US, and neither of us were American anyway. Dude straight up did his own research on a different legal system and just assumed it would apply where we were.
You don’t have to give names, but I respect your decision to refrain from dunking on actual children. As humor depriving as it may be.
SovCits are so fucking funny, especially the ones who go around trolling cops and suing them when they get beat after finally finding a soft spot or just being persistent enough to wear down the self control.
I have to ask, is this an Anglo nation (not asking which, just if). Because this would so much funnier if some dude in like, Belgium or something, did that. How? Like Fr, confused by the phrase international law and its confluence with Yankee hegemony?
You know this is a good loophole. I'm gonna tell you about the time an older student (at least in his mid 30s) argued with the professor for about 5 mins in class about what the author of the assigned reading actually meant to say. The professor, to his credit, tried his best to explain in plain English terms what the article meant but the student just wanted to argue. In the end the professor goes "Okay, look at the article. Now look at the author's name. Okay, now look at your syllabus and look at my name."
Student dude immediately said "sorry" and sat the fuck down. He had been arguing with the professor over the professor's article all along.
This was an Anglo nation but it would surprise a lot of people to know that many Anglo nations don't have a written constitution or bill of rights.
Yeah am I to understand that the law doesn't recognize the "existence and possibility" of same sex relationships and legally views them as impossible? Like, there's no rules that say a dog can't play basketball?