Sending lewd photographs or suggestive text messages to women will be considered sexual harassment according to a new regulation that will take effect next Tuesday in this capital city of South China’s Guangdong province. (China Daily)
This is a fairly typical pattern for Chinese legal reform. First, you have a situation where there is pretty much no law in a given area and local courts have to fend for themselves in the absence of specific guidance. With sexual harassment, this was the situation up to 2005, when courts relied on other charges, such as sexual assault, battery, and so on, for instances when women were attacked.
Of course this state of affairs is not adequate. The reason why many countries adopted sexual harassment laws in the first place is that there are many instances of inappropriate sexual advances towards women that do not rise to the level of assault. So more needed to be done.
Fast forward to 2005. Now there is a State-level law on the subject, but it is vague and does not include a useful definition of the term “sexual harassment.” Some progress, but only a first step. Moreover, when the new law was introduced, many outside observers mistakenly believed that China had simply allowed all acts of sexual predation to occur prior to 2005 without any prosecution — quite a misinterpretation. This issue was well explained in a 2008 Danwei article reporting on the jailing of a man convicted of sexual harassment under the “new” law:
Today quite a few newspapers reported on how a court in Sichuan sentenced a man convicted of sexual harassment to five months in jail.
According to the newspapers, this is the first time that an offender convicted of “sexual harassment” has been given to jail time in China. However, this claim is somewhat misleading; while the term “sexual harassment” was only introduced into Chinese law as recently as 2005, similar sexual offenses were previously prosecuted using different names.
Moreover, as time goes on and society and the workplace change, the law in this area also needs to change. We see that most clearly with respect to the use of new communications technology.
What’s next? In an area of the law like this that is already quite challenging for plaintiffs with respect to gathering a sufficient amount of evidence, lack of clarity in the law is a killer, making it very difficult to obtain redress.
However, because the central government is not yet ready to legislate again so soon, experimentation and progress will be left to the provinces and localities. And this is why Guangzhou is following the lead of many other provinces and localities (e.g. Shanghai, Chongqing, and Liaoning) and coming up with new rules.
Here are some of what Guangzhou has come up with to expand on the language of the 2005 law. Notice how this includes new communications technology:
Sexual harassment of women through language, words, physical contacts, graphics or electronic information is forbidden.
In addition to this language upgrade, the Guangzhou rules place additional affirmative responsibilities on employers:
For example, an employer will be required to change an office’s wooden door to a transparent glass door, if any of its staffers report to have been sexually harassed in that office.
It will also be required that victims of sexual harassment be moved from the department that the suspect heads, said Li Jianlan, president of the Guangzhou municipal women’s federation.
“Although it is difficult to get evidence of sexual harassment, when we receive a complaint from a female worker, whether it is true or not, we can require the employer to take measures to stop it and prevent it,” Li told the media on Wednesday.
It stipulates that employees have the right to require the employer to prevent and stop sexual harassment as a part of the collective labor contract.
A woman being harassed at the workplace may appeal to her employer or the trade union for help.
There are obviously some potential problems here. The rules put a lot of responsibility on employers and unions, but it is not very clear what options employees have if their complaints are not handled properly or simply ignored.
As usual, most of this will come down to enforcement and future interpretation by the courts. Additionally, if tougher rules like these gain traction and are seen as “successes,” then it is possible they will be used in future State-level reforms of the 2005 law. Again, this is the way that a great deal of legal reform progresses in China.
