Pushing women’s issues at the Supreme People’s Court

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Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments.   One of those small but significant developments is found in a 23 December 2018 report on the visit of Shen Yueyue, the head of the All-China Women’s Federation (Women’s Federation) to the Supreme People’s Court, pictured above. The women’s rights and interests department of the Women’s Federation must have prepared the list of issues that she raised.  The crucial paragraph reported:

…the Women’s Federation hopes to further strengthen exchanges and cooperation with the Supreme People’s Court. The first is to strengthen protection from the source [deal with the source of the problem], fully consider the special interests and potential impacts on women in the process of judicial interpretation, and jointly promote the establishment of a gender equality assessment mechanism. The second is to follow the legislative process, strengthen cooperation in the preparation of the Civil Code, and jointly propose legislative proposals to protect rural women’s land rights, prevent and stop gender discrimination in employment, and promote the improvement of the legal system for women’s rights and interests. The third is to focus on key areas, strengthen cooperation in the reform of the family trial system, improve the diversified solution mechanism of contradictions and disputes, and play the role of the people’s mediation committee, and promote the prevention and resolution of marriage and family disputes. Fourth,  jointly promote the resolution of prominent problems in judicial protection of women’s rights and interests, and effectively resolve prominent problems which women are concerned. [沈跃跃表示,全国妇联希望与最高人民法院进一步加强交流合作。一是加强源头保障,在司法解释制定过程中充分考虑女性的特殊利益和潜在影响,共同推动建立性别平等评估机制。二是紧跟立法进程,加强在民法典分编制定中的合作,共同向立法机关提出保障农村妇女土地权益、预防和制止就业性别歧视等立法建议,推动完善妇女权益保障法律体系。三是关注重点领域,在推进家事审判制度改革、完善矛盾纠纷多元化解机制、发挥人民调解委员会作用等方面加强合作,推动婚姻家庭矛盾的预防和化解。四是坚持问题导向,共同促进妇女权益司法保护突出问题和妇女关心关切现实问题的有效解决.]

Some brief comments below on some of the many issues:

  1.  Special interests of women in drafting judicial interpretations

This may be linked to the five-year plan to implement socialist core values into judicial interpretations discussed in this earlier blogpost. The report did not mention the official reaction to having a gender equality assessment mechanism incorporated into the SPC’s judicial interpretation drafting process or other improving the consideration of women’s interests.

As mentioned in the blogpost, the plan includes amending and improving judicial interpretations related to the Marriage Law and family law, etc.  As Professor Yang Lixin of Renmin University (formerly an SPC judge) assesses the state of the law and related issues in this forthright analysis.  He comments on  the state of Chinese family law: …”the legal concepts of the Marriage Law and the Inheritance Law are relatively backward, which is the main problem of current family law.” Professor Yang goes on to discuss a number of family law issues that Chinese law fails to deal with, but affect Chinese women (and other women living in China).

Professor Yang had this to say about de facto marriage (what we Americans sometimes call “common law” marriage) (or what my (late) father called “living in sin.”)  “The concept of de facto marriage is completely abolished in the field of civil law. However, it is particularly contradictory that in criminal law, it is recognized that defacto marriage is a marriage relationship…When sanctions are imposed on the parties, the factual marriage relationship is recognized. When the rights are recognized, the de facto marriage relationship is not recognized. This is a completely contradictory application of law.

He had this to say about another issue for many Chinese women–children born out of wedlock (The Economist, among other major media, have written on this):

China’s current Marriage Law does not provide for claims by children born out of wedlock and does not stipulate that children born within a marriage can be denied status as children of the marriage.  Children born out of wedlock are born from extramarital sex, that is, children are born out of wedlock, and the child or the mother must have the father to claim the child as a child…For example, a child born out of wedlock needs to be raised, and the mother is unable fully to support the child. She has reason to seek to confirm that the father of the child is the father, and then ask him to support the child. This kind of thing does occur, but our marriage and family law has not had such a rule until now. It is because we have socialist marriage values, we can’t engage in extramarital affairs, we can’t have children born out of wedlock, and the establishment of such a system is tantamount to acknowledging the legitimacy of such behavior.

Among the many concerns is that forthcoming judicial interpretations of the Marriage Law, designed to incorporate socialist core values to protect the stability of the family unit in Chinese society, could disadvantage women.

2.  Strengthen cooperation in the preparation of the Civil Code and promote the legalization of women’s rights protection

As fellow blogger Mark Cohen and I have reported earlier,  the SPC set up a civil law codification team, with Justice Du Wanhua taking the lead.  It appears that Professors Xia Yinlan of the China University of Political Science and Law and Li Mingshun of China Women’s University (among others) are working with the Women’s Federation and other scholars to seek to ensure that women’s rights are protected, as socialist ore values will also be integrated into the drafting of the Civil Code.

3. Legislative proposals to protect rural women’s land rights;

How to ensure that the rights of rural women to land are protected is a major problem, particularly now that the Chinese government is focusing on policies that marketize rural land interests.  Professor Li Huiying of the Communist Party’s Central Party School has been a major force in pushing national attention to this issue.  She wrote:

some people are farmers, but have no rights to get the contracted lands due to their “gender” or the identity “additional population”….

Firstly, 18 percent of married rural women do not have their names mentioned on either their parent’s families or their husband’s families land contracts.

Nearly 53 percent of married rural women’s land contracts were canceled by their home villages, according to an investigation among 1,126 such women in 21 provinces and municipalities nationwide, as conducted by the Center for Women’s Studies at Party School of the Central Committee of the CPC in 2014.

The National People’s Congress Standing Committee adopted an amendment to the Rural Land Contracting Law last December, mandating that rural women’s names be included in their families’ certificates of land contracting and management rights, so it is likely that Ms. Shen had other legislation and enforcement of this newly amended provision in mind.

4. Prevent and stop gender discrimination in employment

This is a long-term problem, reported not only the media, academia, but also by the business community.  The SPC  recently amended the civil causes of action to enable discrimination claims, but the substantive standards for discrimination are still lacking. It seems likely that multi-year discussions with the SPC headed by Ms. Gao Shawei, head of the Women’s Rights and Interests Department of the Women’s Federation were behind the inclusion of discrimination claims in the list of civil causes of action. She was quoted in this 2016 article in People’s Court Daily making that suggestion.  As mentioned in an earlier blogpost, the SPC is drafting a judicial interpretation of the Labor Contract Law, and it is conceivable that standards would be incorporated into that draft.

5. strengthen cooperation in the reform of the family court system; improving the systems for trying family-related cases and mediation

The SPC has been working on reforms to the family court system for some time, as previously reported and improving the use of mediation, but the obstacles are immense, as this interview with a local family court judge describes.  The court where she works is actually among the courts piloting family court reforms, as further described by the head of her court.  He provides a chart with statistics, not labeled as being from his court, but clearly from there (the blue column is the number of family disputes; the red, the number of divorce cases; the green, the number of divorce cases settled by mediation; and the purple column the number of cases in which the couple dropped their suit after a mediated settlement):Screenshot 2019-01-23 at 12.27.08 PM

 

 

 

Supreme People’s Court issues statistics on crimes against women and children

In honor of International Women’s Day and as evidence that the Supreme People’s Court (SPC) is doing its part, the SPC released statistics related to crimes against women and children.  This brief blogpost gives some of the highlights.

Trafficking of women and children

Trafficking of women and children is an ongoing problem in China, and it is likely that a significant number of cases do not find their way to the courts.  The statistics show a reduction in cases involving the trafficking of women and children–last year, 853 cases were resolved, in comparison to 1919 in 2010, involving 3631 persons in 2010 and 1362 in 2015.

 

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Rape cases

As in many other places in the world, women are often reluctant to bring charges of rape in China, particularly when it involves men more powerful than themselves. (Rape of men is still not a crime, according to this analysis by Jeremy Daum).  It is unknown how many of the rape cases were heard in the military courts. This analysis of cases from the SPC’s case database evidences that that the military courts have heard some.  Trends in the last three years in the number of rape cases heard in courts (cases concluded and persons sentenced):

 

Indecent assault cases

The number of convictions in indecent assault cases (the crime of using violence, coercion or other methods to act indecently against others or insult women) is on the rise. This report by a local court  suggest that those charges are sometimes used when rape cannot be proved.

 

Child molestation cases

Convictions in child molestation cases are on the rise, or at least more make it into the court system.

 

The SPC commented that the situation involving crimes against women’s and children’s rights remains grim:

  • No reduction in the number of crimes involving the sale of biological children by parents;
  • High number of cases of sexual abuse of minors, which has not gone down;
  • Many serious incidents of school violence;
  • Children left behind in rural areas are often abandoned and subject to domestic violence;
  • Specific rules are needed to implement the Domestic Violence Law and relevant sections of the Criminal Law Amendment (9);
  • Better mechanisms are needed to protect the rights of children.

Comments

Paul Schmidt, a follower of this blog, who is Counsel with Jun He Law Offices in Beijing and a former Colorado State Prosecutor, had the following comment:

This is a heart rendering issue, but the statistics provided continue to tell, what I believe, is a very interesting story about criminal prosecutions in the PRC. The basic story is this: criminal prosecutions in the PRC are rare.

Some very rough math shows what I mean. In 2014, the New York Police Department investigated 1,352 instances of rape. (See, www.nyc.gov) In 2014, the population of NYC was 8,500,000. In short, this works out to very roughly 1 rape investigation per every 5,000 people.

In China in 2014, the courts there handled 23,158 rape cases. China’s population was 1,367,000,000. In short, this works out to very roughly 1 rape case per every 50,000 people.

What’s going on? Is NYC 10 times more violent than the PRC? Are people in China 10 times more reluctant to report rape than in NYC? Even if we assume that New Yorkers are twice as violent and the Chinese are twice as reluctant (neither of which I actually believe to be true), this still leaves a huge gap.

The above pattern repeats itself regardless of the crime examined. Chinese crime statistics appear to be not just lower when compared to other countries – but profoundly lower. Additionally, I have seen little to indicate that such statistics are being actively manipulated (unlike, say, economic statistics). I don’t believe PRC courts are actively under reporting their cases – civil or criminal.

What mainly accounts for the gap, I believe, is that only a certain percentage of crime in the PRC is handled by the formal criminal system. A lot of crime is dealt with through administrative means or informal “mediations” adjudicated by the police between victims and perpetrators.

A retired Chinese lawyer pointed to the availability of commercial sex [however this is  also available in New York] as a reason for the small number of rape cases.  He also mentioned settlements between victims and perpetrators, mediated by the family or lawyer for the perpetrator and the victim and her family.  He suggested that the lawyer for the perpetrator will seek to convince the victim and her family that she is best off with a monetary settlement, conditioned on the victim withdrawing charges.

There is also likely a link to the performance indicators of the police and prosecutors.  Like judges, they have been evaluated based on a number of quantitative indicators, including the number of arrests and number of prosecutions.  Settlement of cases removes the risk of a case going wrong from the police and prosecutors.  It may be for a combination of these reasons that the number of rape cases reaching the courts, and rape convictions in China is relatively low.

If you have further information on this, please use the comment function.