The German Press Agency dpa quoted officials in the province as saying the victim had not reclassified her legal gender from male to female on Wednesday, August 25. Because Vietnamese law only applies to the rape of women by men, the case could not be prosecuted, they said.
“The laws don’t regulate how to deal with this case, so even if the group raped her ten times, we would not be able to sentence them,” Nguyen Van Thin, chief judge of the provincial People’s Court, told dpa.
According to Ho Chi Minh City Law newspaper, the unidentified woman was gang-raped by the three men on April 4. She reported the crime to local police the following day. After the men were arrested, they confessed to the crime in custody.
The province ran into problems when the authorities found that all of the victim’s identification documents indicated her gender as male.
She said she had undergone a sex change operation overseas four years ago and now, as a woman, she insisted the rapists be punished, the newspaper said.
Some experts said, legally speaking, the victim is still a man and the case is thus not covered under the law. They said that Vietnamese law does not recognize the grievances of transgender rape victims.
Other legal professionals did not agree. They said the law only stipulates that “those who use force, threaten to use force, or abuse the defenselessness of their victims, or use other tricks in order to have sexual intercourse with the victims against their will” are guilty of rape.
Because the regulation makes no reference to the genders of either the offender or the victim, anyone who commits the crime can be prosecuted under current law.
Judge Pham Cong Hung, from the HCMC People’s Supreme Court, said that what the three men did to the victim was enough to hold them guilty of rape and there should be no question about it.
Hung also believed that the victim should be treated as a woman.