For the first time ever, Chinese law has defined actions that can constitute sexual harassment in its forthcoming civil code.
Approved by a session of the National People’s Congress late last week, the comprehensive legislation will come into effect on January 1, 2021. In terms of sexual harassment, the code, loosely translated, says that an individual can be held liable for speech, written messages, images or bodily actions that have been used to carry out sexual harassment by abuse of social or work positions. It also demands that government agencies, private businesses and schools take effective measures to prevent such misconduct, and create and ensure the flow of open channels to receive reports from people alleging such harassment.
The first piece of Chinese legislation to explicitly prohibit sexual harassment was the Law for the Protection of Women’s Rights and Interests of the People’s Republic of China, which came into force in 2005. While it guaranteed women the right to be free from sexual harassment, it didn’t define what constitutes sexual harassment. In fact, until now, no national law in the country provided a standard, uniform definition of sexual harassment — giving provinces and municipalities across the country to define it at their discretion.
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“It’s a sign of progress that the fundamental civil law is backing sexual harassment victims. The code will not only clarify the ban on sexual harassment, but will also provide a definition of sexual harassment for the first time in China’s legal framework… For a long time, there was no clear definition of what constituted sexual harassment and what behavior could be identified as sexual harassment, which caused difficulties in legal practice. Everyone has their own understanding of sexual harassment. So, it’s essential to have an official definition. Otherwise, judges may make different rulings in similar sexual harassment cases,” Lyu Xiaoquan, a women’s rights lawyer at Beijing-based Qianqian Law Firm, told China Daily.
Experts believe that the recognition accorded to sexual harassment in the civil code is a result of the #MeToo movement, which had laid bare the discrepancies in the Chinese law in terms of proceeding against harassers. “If you wanted to go bring a court case, then you had to bring a labor dispute — it was very difficult,” said a victim who had decided against taking her accusation to court because of the difficulties the legal system would pose. But, while there was no law to effective regulate sexual harassment, the menace was still pretty rampant. A survey of female journalists in China in 2018 had revealed that 80 percent of them had experienced unwanted sexual advances, while another survey across Chinese provinces showed that 75 percent of female college-going students had similar experiences.
But, even as people are celebrating the law, experts have criticized the legislation for failing to lay out guidelines pertaining to its enforcement — which could render this positive development toothless. However, implying that it’s a good start, lawyers and activists believe that it demonstrates the country’s determination to address sexual harassment. “The civil code is a big step, but much more will need to be fleshed out. After all, (even the) US sexual harassment law is still developing after decades and grappling with its failures, as laid bare by #MeToo,” Darius Longarino, a senior fellow at the Paul Tsai China Center at Yale Law School, told Reuters.
