#ChinaToo is a three-part series on sexual harassment in China and the changes that may be coming in the wake of the #MeToo movement in the United States. This article is the first installment in the series.
Sexual harassment has never been much of a legal issue in China, at least until the #MeToo movement burst into prominence in the United States in October 2017. Indeed, the Beijing Yuanzhong Gender Development Center reports that between 2010 and 2017, only 34 of around 50 million courtroom verdicts dealt prominently with sexual harassment allegations. That’s 0.000068%.
Among these 34 verdicts, not a single favorable verdict was issued against an alleged sexual harasser, anywhere in China, during the entire seven-year period – despite evidence indicating that nearly 40 percent of women have experienced some form of workplace sexual harassment (some studies report figures as high as 80 percent). Changes are in the air, however, and it didn’t start in the workplace. It didn’t even start with #MeToo.
The Bare Beginnings: Storm Rising on Chinese Campuses
The sexual harassment problem could be more serious on campus than it is in the workplace. A 2017 study of more than 6,000 Chinese college students and recent graduates found that nearly 70 percent had experienced sexual harassment, but only 1 in 25 dared to report the incident to the university or to the police. Unfortunately, not a single university surveyed had established formal sexual harassment complaint procedures.
Perhaps, due to the magnitude of the problem and the lack of formal procedures to deal with it, sexual harassment awareness on Chinese campuses predates the US #MeToo movement. In September 2014, more than three years before the #MeToo controversy erupted, a group of over 250 students and professors signed an open letter to the Ministry of Education urging it to establish sexual harassment guidelines for Chinese universities.
The letter was also addressed to the President of Xiamen University, making it appear that it was triggered, at least in part, by the case of Wu Chunming – a history professor at Xiamen University who had recently been accused of luring several female students into sexual relationships with him.
Professor Wu was expelled from the Communist Party, fired from his teaching position, and stripped of his teaching qualifications. Critics believe that his punishment was too lenient because the revocation does not prevent him from applying for reinstatement after five years. Indeed, in January 2018, it was reported that he was discovered working as a librarian at the same university.
In response to the letter, the Ministry issued a document that purports to prohibit teachers from sexually harassing students or getting involved in inappropriate relationships with them. The document has been criticized as vague and toothless, however, because it fails to either (i) define vague terms such as “sexual harassment” and “inappropriate relationships” or (ii) list specific punishments for misconduct.
The campus movement has accelerated since #MeToo, however. In 2018, several prominent university professors were publicly accused of sexually harassing female students, including a professor at prestigious Beihang University who was accused by several former students. Only time will tell if current trends will continue or if the authorities will act decisively to combat the problem.
Sexul Harassment in the Workplace: The Current State of PRC Law
Current Chinese law is sparse on the issue of sexual harassment, and that is putting it mildly. The most important statues and regulations appear to be:
- Article 40 of the Law on the Protection of Women’s Rights and Interests: Article 40 applies only to women, and it forbids workplace sexual harassment without offering a specific definition of “sexual harassment.” In terms of punishment, the statute provides only that the victim is entitled to file internal complaints with their respective departments.
- Article 32 of the implementing regulations on the Law on the Protection of Women’s Rights and Interests in Shanghai (note the local emphasis): Article 32 is a bit more specific in its definition of sexual harassment. It provides that sexual harassment can occur in spoken, written, or digital form, as well as through images and physical acts.
- Article 237 of the Criminal Law: Article 237 defines “indecent assault” as “coercively” molesting another person or humiliating women by use of “violence, threat, or other means.”
Obviously, this is not going to be enough to deal comprehensively with the reality of workplace sexual harassment.
Advice for Companies
Every company operating in China should have an employee handbook that is distributed to each employee. If your company handbook does not deal with sexual harassment, or if it deals with it only in passing, it needs to be modified immediately. Your company handbook needs to be more specific and comprehensive than the current law. Because when it comes to sexual harassment, your are operating in an unstable legal environment.
Both the law as it is written and the way that it is interpreted could change suddenly and dramatically. If that happens, your company could be vulnerable to a sexual harassment lawsuit or some other serious legal risk – perhaps based on the acts of a single one of its own employees. This risk is magnified if the employee handbook failed to cover the activity that its employee was accused of.
Modifications and additions to your company handbook will need to be drafted carefully, because every sentence can have consequences. It needs to be specific enough to be enforceable but general enough to avoid requiring you to list every imaginable act of sexual harassment as a specific offense (which is, of course, impossible). Consult with a reputable attorney who has experience in drafting employee handbooks in China.
Zhou Xiaoxuan vs. Zhu Jun: The lawsuit that might make legal history in China
As 2019 dawned, China had yet to see its first formal sexual harassment lawsuit. However, one may be brewing already. In 2018, screenwriter Zhou Xiaoxuan published an article accusing well-known TV presenter Zhu Jun of sexually harassing her in 2014 while she was working as his intern. Zhu responded by suing her for defamation, and Zhou counterclaimed for “violation of personal rights” under Chinese law as it existed at that time.
After a January 2019 Chinese Supreme Court decision allowing the filing of formal sexual harassment claims, Zhou announced that she was seeking to amend her claim of violation of personal rights to turn it into a sexual harassment claim. If the court accepts her request, China’s first-ever sexual harassment lawsuit will have begun.
*Peter Pang is the Chairman and Managing Partner of IPO PANG XINGPU LAW FIRM, a premier international law firm founded in the early 1990’s and is headquartered in Shanghai, PRC. The firm’s primary practice focuses on assisting foreign companies in doing business in China and has legal expertise in Intellectual Property, Foreign Direct Investments, including equity joint ventures, employment and labor laws and mergers and acquisitions. Mr. Pang has studied both in the US and China, and is a frequently speaker and contributor to topics such as US China trade, franchising and protection of intellectual property and trade secrets. He is the author of a number of articles and chapters in books on the same topics, including transfer of technology.