The core elements of the concept “sexual harassment” in China’s legislation are voluntariness, de-genderization and prevention of power abuse.
The article titled “Evolution of the Concept ‘Sexual Harassment’ in Chinese Laws” (性骚扰概念在中国法上的展开) by Xie Haiding (谢海定), a researcher at Institute of Law, Chinese Academy of Social Sciences, published on “Law and Social Development” (法制与社会发展) (No. 1, 2021) in Jan. 2021 analyzes the concept “sexual harassment” in China’s legislation.
A local law in 1994, the “Measures of Hubei Province on the Implementation of the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests” (湖北省实施《中华人民共和国妇女权益保障法》办法), promulgated by Hubei Province, a central province of China, mentions the concept “sexual harassment” for the first time in China’s regulations.
The Law on the Protection of Women’s Rights and Interests (妇女权益保障法) amended in Aug. 2005 is the first national law explicitly using the term “sexual harassment”, though it fails to define the said term.
The PRC Civil Code (民法典) adopted in May 2020 incorporates the concept “sexual harassment” and defines it as a situation “[w]here a person conducts sexual harassment of another person in the forms of verbal remarks, written language, images, physical behaviors or otherwise against the will of another person”, but this definition still requires further improvement.
So far, the term “sexual harassment” though has been frequently used in administrative regulations, departmental rules, judicial interpretations, local laws/regulations and judgments, there is still no authoritative definition yet.
This has brought some obstacles to the law enforcement and administration of justice regarding sexual harassment cases in China. However, we can still find some consensus from the legislation at present.
1. Against the will of the party concerned
Article 1010 (1) of the PRC Civil Code explicitly mentions the element “against the will of another person”.
Before that, although the aforesaid element was not mentioned by the Law on the Protection of Women’s Rights and Interests (2005), there were similar expressions in the “implementation measures” formulated by local legislatures for the said law.
The precise meaning of “against the will/consent” used in these provisions should be against the sexual will/consent of the party concerned. The essence of such expressions is that sexual harassment is a violation of sexual autonomy in law.
It is worth noting that in recent years, the term “sexual autonomy” has also appeared in many court judgments. For example, as of Sept. 2020, 213 judgments can be found using the term “sexual autonomy (in Chinese: 性自主权) when searching with the term on China Judgements Online (https://wenshu.court.gov.cn/).
2. Gender element and de-genderization of the concept “sexual harassment”
In China, over the past decade or so, the term “sexual harassment” appeared in legal texts, such as the Law on the Protection of Women’s Rights and Interests, the Special Provisions on the Labor Protection of Female Workers (女职工劳动保护特别规定), and local norms formulated on this basis, has been basically about the protection of women’s rights and interests.
Although most sexual harassment victims are women, and they tend to suffer from serious psychological disorders, it is still not consistent with the actual situation if we understand sexual harassment simply as “Male-to-Female Sexual Harassment”.
The Institute for Research on Sexuality and Gender of Renmin University of China conducted four random samplings among the national population in 2000, 2006, 2010, and 2015 respectively. According to the statistics, the proportion of women being sexually harassed is 21.2%, 35.1%, 29.9%, and 22.5% respectively, while the proportion of men being sexually harassed is 26.4%, 36.6%, 34.4%, and 28.8% respectively. As the statistics show, there is no significant difference between the two.[1]
Since the 2010s, the de-genderization process comes into being in China.
In 2012, the “Regulations of Shenzhen Special Economic Zone on Promoting Gender Equality” (深圳经济特区性别平等促进条例) was promulgated, which defines the term “gender equality” as “the equality of dignity and value, as well as the equality of opportunity, right and responsibility between men and women on the basis of respecting physiological differences”. Accordingly, the provisions thereof concerning sexual harassment do not explicitly state “sexual harassment against women”.
In 2015, the Amendment IX to the PRC Criminal Law (刑法修正案(九)) was promulgated, which amends Article 237 of the PRC Criminal Law from “forcibly molesting/insulting women by violence, coercion or other means” to “forcibly molesting others or insulting women by violence, coercion or other means”. Since then, “the crime of forcibly molesting/insulting women” has been replaced by “the crime of forcible molesting/insulting”. This means that the victim of the said crime is no longer limited to women, that is, both men and women can seek protection by reference to the said crime.
In 2020, the PRC Civil Code was promulgated, Article 1010 of which on sexual harassment does not specify the gender of the victim, thus realizing the de-genderization of sexual harassment.
3. Sexual harassment under the abuse of power
As early as 2005, when China revised the Law on the Protection of Women’s Rights and Interests, “employers should take measures to prevent sexual harassment in the workplace” was supplemented into the draft. However, during the deliberation by the legislature, there was a view that “questions like whether sexual harassment is limited to the workplace or not, and what preventive measures the employer should adopt, are relatively complex and need further study”, so regrettably, the aforesaid supplement was finally deleted.
However, most local laws and regulations formulated by local legislatures in order to implement the Law on the Protection of Women’s Rights and Interests have stipulated that employers should adopt measures to prevent sexual harassment in the workplace.
During the compiling of the PRC Civil Code, the provisions in the initial draft only emphasized the employer’s obligation to prevent sexual harassment, that is, “the employer should take reasonable measures to prevent, report and deal with sexual harassment in the workplace”.
However, Article 1010 (2) of the final PRC Civil Code expands it to “Agencies, enterprises, schools, etc. shall adopt reasonable measures on prevention, acceptance, and handling of complaints, investigation, and disposal, etc. to prevent and curb sexual harassment by making use of official powers and affiliation, etc.”. That is, it is forbidden to abuse institutional powers such as “official powers and affiliation”, and the units with institutional powers are obligated to prevent the power abuse.
[1] 参见赵军、武文强: 《中国( 高校) 反性骚扰/反性侵的几个关键问题》， 《河南警察学院学报》2018 年第3 期，第48 页。
[2] 参见蒋黔贵: 《全国人大法律委员会关于〈中华人民共和国妇女权益保障法修正案(草案)〉审议结果的报告》，http: / /www.npc.gov.cn/wxzl/gongbao/2005-10/20/content_5343970.htm，2020 年12 月3 日访问。
Contributors: Guodong Du 杜国栋
