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:-
The source is from a Chinese lawyer. The law about “ruining a military marriage” specifies committing bigamy or cohabitating with a military spouse, and cohabitation is currently defined as “living as if husband and wife”
If the court wants to charge these women they are then recognizing that two women can legally have a relationship as serious as that of a husband and wife
(responding question whether the cheating couple is being imprisoned) No the soldier is threatening to sue the women unless they give him 200k RMB (27k USD) but they are threatening to counter-sue him for extortion. So right now it’s just threats. Even the lawyer I saw this from doesn’t know how a court would rule in this case.
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.
(as far as I can tell, she’s not living in China currently, and is some 1st gen Chinese Canadian YA author who writes Chinese history-inspired fantasy/SF)
Not living there currently. She They was born and spent their childhood there and speaks the language natively.
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.
