SEX AND LAW IN CHINA

2013-08-07BYLIUJUE刘珏

汉语世界 2013年6期

关键词：刘珏聚众李银河

BY LIU JUE (刘珏)

BY LIU JUE (刘珏)

Nothing says romance like the local authorities

从取消流氓罪到探讨卖淫合法化

When the news broke that 60-year-old businessman, angel investor, and micro-blog celebrity Xue Biqun (薛必群) was caught with a prostitute barely a third his age in a Beijing apartment, the media had a field day joyously reporting his fall from grace. Not only did the incident make national newspaper headlines, alongside becoming the hottest internet story of the week, even the all-powerful state media CCTV ran with the story. No stone was left unturned, and the media reveled in every salacious detail; whilst Xue was a moneyed man, at least as far as prostitutes were concerned, he was a late payer. Powerful men paying for sex is nothing new and is unlikely to surprise anyone, but it was his prominent online identity that opened him up to such close scrutiny. Xue had a huge following on Sina Weibo and was judged as a credible commentator in both economic and social affairs, not to mention being lauded for his high-profile philanthropy. His Weibo influence was so significant that, if he tweeted about a social issue at dawn, by dusk the internet would be a whirlwind of various movers and shakers trying to make good on Xue’s words. He was, in short, a man who could get things done.

Technically, under Chinese law, all are equal, but it is often—as it is elsewhere in the world—that some are more equal than others. According to the PRC Administrative Penalties for Public Security, visiting a prostitute is punishable by 10 to 15 days imprisonment alongside a fine of 5,000 RMB. During his detainment, Xue confessed that he was in frequent contact with at least 10 prostitutes and often liked to hire more than one woman at the same time. While exchanging money for sex is an offense, paying for group sex escalates the crime to“group licentiousness” (聚众淫乱罪 jùzhòng yínluàn zuì). With the extra pleasure comes the extra risk, and the facts are simple: Chinese law criminalizes all group sex involving more than two people; orgies are strictly off the menu. Such activities are punishable by imprisonment, which can be anything from a relatively brief five day detainment, right through to a full five years in the clink.

Xue was condemned and disgraced, but there werediffering opinions. Journalist and formerTime Weeklyeditor Peng Xiaoyun (彭晓芸) commented: “Even though Xue was arrested in the name of disruption of public order, revealing such details of his conduct violated the ethics of law enforcement.” She continued,“as to the crime of ‘group licentiousness’, according to various sexologist and jurists’opinions, its legitimacy is debatable.”Renowned sociologist and sexologist Li Yinhe (李银河) even mischievously postulated that Xue’s activity was an act of performance art aimed at getting the public’s attention and educating them about the laws and regulations regarding prostitution. Bold artist or regular john, Xue’s arrest certainly provided much heated discussion on the efficacy and morality of Chinese sex laws.

There’s no specific codex relating to sex laws in China, but relevant codes can be found haphazardly littered throughout the Criminal Law, Marriage Law, Law of the Protection of the Rights and Interests of Women, the Administrative Penalties for Public Security, as well as under the special decisions made by National People’s Congress and State Council. It is perhaps in the Criminal Law that one finds the clearest legal baseline in regards to the legal issues surrounding citizens’ sexual conduct. The Criminal Law of the PRC is very young and constantly evolving; nobody can be quite sure how exactly it will be applied at any given moment.

HOOLIGAN KINK

The poet Philip Larkin famously posited that sexual intercourse began in 1963 (between the end of theChatterleyban and the Beatles’ first LP), but one wonders if China was a bit behind the times, as it didn’t even finalize its first Criminal Law pertaining to sex (or anything else for that matter) until 1979, some three decades after the establishment of the country itself. Though the initial drafting began in 1950, various social upheavals, not least the turmoil of the Cultural Revolution, ground progress to a halt. The Criminal Law as we know it today was primarily drafted in 1997 and since has been amended eight times, most recently in 2011.

It goes without saying that the first Criminal Law in 1979 suffered from many limitations. One sexual offense in particular caused confusion—the crime of hooliganism (流氓罪 liúmáng zuì). First and foremost, the crime was poorly defined. It encompassed insulting and harassing women, group fights, picking quarrels, and a whole myriad of offenses coming under that catch-all term, “disrupting public order”. Sexual harassment or attempted rape was rightfully punished under the offense but it didn’t just stop there. The scope of the crime was broad, and even the most general of “disruptive behaviors” could all be prosecuted under the banner of hooliganism. In many cases, the law punished not only crimes but generic “immoral sexualbehaviors” according to the conservative social norms of the time. As far as punishment was concerned, the most severe cases could lead to imprisonment of up to seven years. However, what seemed fitting punishment soon turned far more severe. As China went through extreme social change after the reform and opening-up, several side effects rose to the surface. After a number of particularly vicious crimes in 1983, a series of actions were undertaken by law enforcement officials to crack down on crime. During this time, punishment for the nebulous crime of hooliganism greatly increased. In extreme cases, criminals could even be sentenced to death.

A document released by the Supreme People’s Court in 1984 detailed what constitutes “hooliganism”. Specifics are, of course, always useful; however, some of these descriptions would be lost on the legal minds of today. There were two items concerning sexual offenses: one for men “with a lecherous purpose, to have sexual relations with a large number of women through seduction and deception; or situations where the consequences are severe despite the small number of victims.” And, there was another for women who: “seduce a large number of young men, teenagers, or foreigners, to have sexual relations with them, which leads to bad social influence or serious consequences.” If such laws were enforced in the more sexually liberal times of today, a large portion of the urban adult population would be put behind bars.

“It was a huge regret that many cases were sentenced so severely, some of which wouldn’t even count as a crime today,” says Han Shiling, a lawyer based in Hebei, discussing the period. “A lot of people were affected.”

He tells the story of actor Chi Zhiqiang. Twenty-four years old at the time, Chi was shooting a movie in Nanjing, where he became intimate with a group of young people and gathered with them for private dance parties. For what would barely qualify as a tabloid tidbit today, Chi was sentenced to four years in prison under the hooligan law. Singer Zhang Xing suffered the same misfortune and was sent to prison for three years after his disgruntled ex-girlfriends revealed their dalliances with him. The term “hooligan” has different connotations today, but back then it was a serious accusation that could land a reasonably innocent person in serious trouble, particularly if it happened during one of the numerous crackdowns.

“No one discussed the infringement of personal rights by public rights. The failure of the law was the tragedy of the time,” says Han. Unquestionably, there was a distinct lack of discussion regarding the legal absurdities that beset society. Instead, the public willingly bought into the moral panics, supporting strict punishments for the maintenance of public order. Some attribute the overall attitude at the time to a hangover from the Cultural Revolution, when sex was regarded as the enemy of revolution and symbolic of a bourgeois lifestyle. Even the simple act of kissing was viewed as appalling, and society seemed to, at least in public, be subsuming to a bizarre asexuality. A popular joke poked fun at this mentality: a newly wedded husband refused to consummate his marriage on the grounds that sex is bourgeois; after hearing the complaints from the wife, his in-laws convinced him otherwise: “My dear son-in-law, you are correct about sex being bourgeois, but we need future successors to aid our revolutionary cause.” In China, the red revolution largely usurped any hope of a sexual one.

There has long been a taboo in traditional Chinese culture (and in fairness much of the world) with any type of sexually suggestive behavior in public. The primary objective of sex was seen as procreation, and any sexual activity outside the bonds of marriage was deeply condemned. This cultural background, of course, contributed to the harsh definition of—and severe punishment for—sexual offenses. The good news was that by 1997 the crime of hooliganism was struck from Criminal Law; instead, it was broken into several specific crimes that were defined in detail, such as scuffles, indecent offenses to females by force, child molestation, and so on. This new list left less space for people to be punished on the basis of ill-thought-out moral whimsy. Furthermore, none of the new crimes could be punished by life imprisonment or the death sentence. Did this keep the law in its codified boundaries? Judging from the constant controversies surrounding sex laws and the opinion of several leading scholars, it is still far too early to draw such promising conclusions.

GROUP SEX WITH HANDCUFFS

In analyzing the Criminal Law pertaining to sex in China, Li Yinhe, a public intellectual and perhaps the most radical activist arguing for the reform of sex laws in China, discusses the difference between the two categories of sex crimes as listed under the current Criminal Law: the crimes that produce victims and victimless crimes. Sexual assaults such as rape, sex with a minor, and sexual molestation all clearly involve victims. Li believes that victimless crimes such as group licentiousness, prostitution, as well as the production, sale, and dissemination of obscene materials should not be punished because there’s no direct damage.

When it comes to group licentiousness, many still remember the Nanjing computer science professor, Ma Xiaohai.Well-liked among neighbors, students, and colleagues, Ma was sent to prison in 2010 for three and a half years for organizing and participating in a series of wife-swapping events, which fell afoul of the group licentiousness laws. Upon his arrest, Ma told the police: “It’s the first time I have heard of the crime of‘group licentiousness.’ We were all adults, and there was no coercion involved. It was all of our own will.” He insisted upon a plea of “not guilty” throughout the trial, ultimately receiving a longer sentence for standing firm.

It was the first case of anyone being charged since the law was installed under the Criminal Law in 1997. The fact that Ma taught college students while organizing such parties certainly angered some people, but as far as a jail term goes, there were many who did not agree with the prosecution. Li Yinhe, for one, submitted a proposal to People’s Congress representatives to repeal the crime of group licentiousness entirely. In the proposal, she wrote: “Citizens hold proprietorships of their own bodies and therefore have the rights to utilize them according to their will… In cases like these, we have to review the principles of legislation. Let law be the protection of citizen’s rights instead of tools for infringement.”

“She has a point,” says Professor Ge Jianxiong of Fudan University. “If it’s voluntary, then the rights of the people should be respected. They are all adults and can decide for themselves and should not be interfered with by the law as long as their activities do not affect others in society.”

Others cast aspersions, though somewhat vaguely, on the effects that swinging could have on wider society; lawyer Gao Xining based in Shaanxi expressed his disagreement with Li: “Though there was no force, coercion, or money involved, I don’t think it’s merely an individual act. Rather, it’s a group action, which is bound to cast influence.” He explained further by saying, “If there’s no legal restraint, there will definitely be negative influence [to society].”

Li Yinhe refutes such claims, not believing in the existence of such negative influences. Further explaining her proposal, she wrote in her blog: “For over 20 years, such laws have not been in effect. There’s barely a single convicted case. Therefore, I don’t think the repeal will have any influence over social morality.” Sadly, for many, keeping the status quo is always safer than making the first step toward change. Professor Ge also expressed his reservations: “Someday in the future, the crime of group licentiousness will certainly be repealed, but now we don’t have the right circumstances. Once the crime is struck from the law, some people might want to take advantage of the new situation, which would lead to negative social influences.”

VIVA LA PROSTITUTION?

If repealing group licentiousness is a difficult fight, the case for reforming prostitution laws is almost impossible. As early as the 50s, laws and regulations were drawn up to root prostitution out of the newly-founded country. Brothels were closed and prostitutes re-educated. Owners of brothels, especially the pimps who compelled women into prostitution, were executed. In today’s prostitution policy, one can still find the influences of those initial measures. Both prostitutes and clients can be penalized by administrative sanctions. Shockingly, prostitutes can also technically be held for re-education for up to two years. But the third party, the pimp, faces the most severe punishment; for organizing or forcing others into prostitution, the punishment can be anywhere from five to 10 years. Severe cases causing serious “damage to society” can lead to life imprisonment or even the death penalty.

There’s very limited data on the number of people currently working in the sex trade. But according to the extensive survey on the sex lives of Chinese people lead by Professor Pan Suiming (潘绥铭), director of the Institute of Sexuality and Gender at Renmin University, over six percent of all Chinese adult males have had the experience of purchasing sex, and many claim that this figure is far lower than the reality.

However, prostitution is not something that should necessarily be justified simply due to its widespread existence. As to Li Yinhe’s opinion of it being a “victimless”crime, many would be quick to point to sexual transmitted diseases and broken families, but for the general public these practical issues are not always their foremost concern. Prostitution as a morally degenerative business has long been instinctively hated and criticized by many. The stigma attached to prostitution often leads to certain social biases, which in turn affect the law and society. For instance, regarding on the trial of a recent rape case, Tsinghua law professor Yi Lanyou made a comment that many found shocking: “Raping a bar girl (who is possibly a prostitute anyway) has far less negative consequences than raping an upstanding woman.”Faced with criticism, he revised his statement, instead saying “raping an upstanding woman has far more negative consequences than raping a bar girl who serves as a companion for drinking and dancing, or serves as an escort or a prostitute.”

Though few people publicly identified with him, such a statement did speak volumes of how certain attitudes can become entrenched in society. The punishment for prostitution also seems to imply that the issue is more about morality than law, as repeated offenders are often sent for re-education to rid themselves of what are perceived as bad personal habits. In turn they are taught how to engage in more socially acceptable behavior. The lengthy re-education period runs from six months to two years and clearly highlights the issue of to what extent the law should act as a parent correcting citizens’ behavior. Furthermore, biases with regardsto what constitutes ethical behavior can lead to severe miscarriages of social justice.

In a recent case in Guangzhou, a man challenged his punishment of six-months re-education, based on a single visit to a prostitute. His claim was initially denied, but the Intermediate Court of Guangzhou eventually ruled that the police didn’t have enough evidence to warrant such a punishment. The prosecution lost about 15 percent of cases like this in the past year due to unclear facts, incorrectly applied laws, unlawful procedures, and overly harsh punishments, according to the Intermediate Court of Guangzhou.

Despite these circumstances, some of China’s leading thinkers and scholars strive to push for greater reform, advocating policies of harm reduction. Actively practicing lawyer and former representative of National People’s Congress, Chi Susheng (迟夙生), has repeatedly submitted proposals for prostitution to be legalized and regulated. “I am a lawyer for the common people; many of my clients belong to the bottom of the society.” Chi’s career has left her all-too familiar with the dangerous conditions prostitutes work under, and she has seen her fair share of tragedies.

“Legalizing and regulating prostitution will insure the health of both parties and reduce STDs such as AIDS,” Chi explained. “There will also be fewer murdered prostitutes and blackmailed clients.” In her practice, she also discovered a number of gray areas regarding law enforcement: “There are corrupt police who take the opportunity of crackdowns to gain profits.”While receiving widespread media coverage, Chi’s proposals have also left her the victim of personal attacks. When asked about the reason for losing her position as a representative on the National People’s Congress this year, she said: “No one has told me anything yet. Maybe it’s because of my outspokenness all these years.”

On the opposite side of the coin, the voices calling for the continuation or even the tightening of prohibition haven’t become any weaker. Liu Wenyan, author of the bookCrime and Punishment: 20 years of Banning Prostitutionexpressed his opinion in aChina Dailyarticle, writing: “To legalize prostitution is an insult to the collective integrity of all Chinese women. It will create contempt towards women in society. Therefore, legalized prostitution can not be allowed under Chinese characteristic socialism.”

While many people like to fantasize about a perfect world where prostitution doesn’t exist, others are more focused on solving real problems in a practical fashion. Furthermore, one wonders whether the law, particularly the Criminal Law, should be used as tool to solve complex moral problems. Li Yinhe clearly thinks the law is too blunt an instrument for doing so: “The values held by the majority become the moral standard of society. However, we can not make law according to the lifestyles of a certain group of people and punish those living an alternative.” As the law develops and social perceptions with regards to ill-defined crimes such as hooliganism change, there is clearly space for a new approach to sex laws and the crimes and punishments surrounding them; in the meantime, China is going to have to work out just how comfortable it is with sex. It can cover its eyes, ears, and shake its head pretending it’s an act solely for the sanctity of marriage, or it can embrace modernity and realize that—whether it is on promiscuity, wife-swapping, or prostitution—the sexual mores of the glorious proletariat are not so simple.