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this post was submitted on 26 Jun 2024
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chapotraphouse
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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.