PROTECTING WOMEN AND CHILDREN AGAINST TAFFICKING IN CHINA
California State University, Sacramento
Since the beginning of economic reform in China in the early 1980s, numerous laws have been stipulated by the People Congress to ensure the continuity of the equal treatment and protection of the rights of women and children in China. This paper is presented at Sinology Conference in Sacramento by emphasizing the legal protection of women and childrens right in China. Since China joined other 154 countries in supporting the Convention on the Rights of the Child, the Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951), the Prevention of the Sale of Children, Child Prostitution and Child Pornography (1992), and the Declaration on the Elimination of Violence against Women (1993), the efforts have been made by the Chinas new leadership to align its domestic laws with international standardized protection for childrens rights. Chinas hosting of the 4th UN Women Conference in Beijing brought a high point for China to show its commitment to protect womans equal rights in China. In recent decade, Chinas lawmakers have promulgated numerous laws to address equal rights and protection for women and children in education, health care, employment, inheritance, marriage, social and political life, privacy and constitutional freedom. The laws include China's Constitution, Marriage Law, Labor Law, Inheritance Law, Mandatory Education Law, Health Care Law for Mothers and Infants, Juvenile Protection Law, and the Protection Law of Women's Rights.
Protecting Women and Children against Violence
The Law of the People's Republic of China on the Protection of Rights and Interests of Women, Article 34 prohibits unlawful detention, deprivation or restriction of freedom of women. Article 35 forbids female infanticide by means of drowning, abandonment, or cruel treatment. Article 36 stipulates that abduction, trafficking or purchase of women shall be prohibited and the government agencies shall take timely measure to rescue women and children from traffickers. It also provides that when a rescued woman or child returns to home, they shall not be discriminated and the local government is responsible to help them in resolving the problems relating to their reintegration and resettlement in the community. Article 40 states that the state shall protect women's right of self-determination in marriage and divorce. The law also requires the state to guarantee women's equal rights in politics, education, employment, welfare benefits, and social advancement. Although the law is comprehensive to cover many aspects of issues relating to womens rights and was created with a good will, the enforcement of law remains problematic. Not only does the law have little enforcement power in reality but also lack of enforcement mechanism in the legal system and judicial procedure that allows women to seek for legal remedy against the violation of their rights. Similar as the problems existing in enforcement of criminal law, if the state agencies failed to enforce the law, China literally has no active non-governmental affiliated entity or NGO women right advocates or representatives that can step forward to pursue legal actions against the law violators and seek for the compensatory remedy for the victims. Although National Women Federation (NWF) is a nominal NGO representing women and children's interests, the function of its legal department is merely limited to lobby and advise on legislative matters only.
For instance, in cases of trafficking in women, many buyers of the trafficking victims had successfully and often illegally obtained a legal marriage license from local civil service agencies without womens consent and presence. Procedurally, the law requires that both parties must be present and answer the civil service officer's questions regarding both parties' voluntary consents to marriage and their previous marital status. But, in the reality, many civil service agencies neither require the presence of both parties nor a proof of a notary document on women's unmarried status before a marriage license is issued to men who had purchased women, then raped them in order to force them into the marriage. There has been no single civil service officer being held responsible for criminal negligent or administratively or civilly responsible for issuing marriage license illegally to these men. Many civil service officers were clearly aware of that the women were purchased through trafficking but nevertheless issued marriage licenses to the men anyway because of either taking bribery from men or nepotism and crony relationship with the wife buyers so they simply ignore the crimes of trafficking in women and bigamy.
Similar ignorance of law and lack of enforcement of law are also a commonplace in protecting children. The Juvenile Protection Law clearly stipulates that the parents and guardians of minors shall fulfill their responsibility to bring up the minors. They shall not commit infanticide, mistreat, forsake nor discriminate against female or handicapped minors. However, when female infants are murdered or abandoned by parents or family relatives, law enforcement and civil services agencies hardly ever conduct any investigation to go after the perpetrators because many of local police and officials still believe that it is parents' right to decide whatever they want to do with their children and killing one's newborn child is a family/domestic matter not a crime. Severely unbalanced sex ratio in rural population in China today is a clear evidence of the widespread practice of female infanticide in rural community. The prevalence of the problem has escalated since the government issues a ban on gender-identification oriented medical tests in recent years. Intentional neglect or deliberate maltreatment of female infants is believed to be another common practice resulting in higher fatality rate among baby girls.
In my previous, a case of trafficking in women involving a thirteen-year old girl best illustrates how little protection was actually afforded to those victims due to the gender discrimination. The girl was born to a family with two older brothers in a mountainous village in Yunnan. Since the day of her birth, she has been neglected, maltreated and abused throughout her entire childhood and early teen years simply because she is a girl. Her two older brothers and father even put poison in her food several times with intention to kill her. Mysteriously, she survived all those ordeals. When she was 13, her father and brothers sold her to 73-year old man in Henan for RMB 5,000. The old man raped her everyday until she was pregnant at age of 14. She gave birth to a baby boy at age of 15. Soon after the birth of the boy, she met a 25-year old man, a seasonal carpenter from Jiangsu, temporarily living in the village where she was sold to. She fell in love with him and begged him to help her and her boy escape. The young man brought her and the boy back to his village in Jiangsu. But the young man's parents refused to accept her and her baby boy. She was sold for the second time to another man in Shangxi at age 16. The police in Shangxi subsequently rescued her and her son in 2000 national campaign. When the police finally located her family, her brother told the police "not to send her back to their home and they never wanted her in the first place." Through this chain of cruel crimes of attempted murder, abuse, rape of a minor, sale and purchase of an underage girl and child, only 73-year old man was arrested and tried for his crime of trafficking and raping a minor. Neither did her two brothers and the father nor the young man who sold the girl for the second time receive any punishment for their criminal wrongdoing and clear violation of this girl's rights.
Enhancement of Criminal Law and Criminal Procedure Law
When Chinas National People's Congress (NPC) promulgated its first Criminal Law and Criminal Procedural law in 1979, cracking down trafficking in women and children was clearly neither a priority on the government's crime control agenda nor a concerned issue on law makers to-do list. The overriding agenda in 1979 was to restore the authorization of the legal system that had been totally destroyed during the Culture Revolution. In 1979 Penal Code, Section 141 stated that a crime of human trafficking is subject to imprisonment of five years or less. In serious circumstance, offender is subject to imprisonment of five years or more. The law neither addressed trafficking in women and children nor defined what would constitute a serious circumstance. Further, purchasing or buying women as wives or purchasing children for illegal adoption were not defined by the law as criminal at all.
Much of law enforcement actions against trafficking in women and children in the early years were stemmed from the passage of "the Decision to Increase Criminal Penalty against Offenders Who Seriously Disturb the Social Order (thereafter "the Decision")" enacted by NPC on September 2, 1983. The Decision provides that the criminal penalty for offenders involved in human trafficking can exceed the maximum penalty allowable in criminal law and even death penalty if the offender is the leader of a human trafficking ring or with serious circumstances. The penal code, Section 141 and the Decision served as the only legal basis to crackdown on trafficking in women and children until 1991 when NPC promulgated the first law that specifically addresses the crime of trafficking in women and children and punishment against trafficking in women and children.
On September 4, 1991, NPC approved legislative bill proposed by the Legislative Commission of NPC and issued "the Decision to Severely Punish Offenders Involved in Abduction and Trafficking in Women and Children (thereafter, the 1991 law)." Under the 1991 law, crime of trafficking in women and children is introduced into law for the first time. Under the legal definition, trafficking in women and children is an act of lure or abduction by false pretense or by force, brokerage, transportation, and sales of women and children for the purpose of making profits. Criminal penalty against trafficking in women and children has been increased from the original five years or less in 1979 penal code to five to ten years plus fines of RMB 10,000 yuan. Trafficking in women and children in any one of the following serious circumstance is subject to imprisonment of ten years or more, life imprisonment or even death penalty plus forfeiture of offenders personal properties. The serious circumstance are: 1) being the leader of a trafficking ring, 2) trafficking three or more women or/and children, 3) rape of victims sold in trafficking, 4) deceiving or coercing abducted women into prostitution, 5) assaulting and battering victims that results in severe bodily injury, death or other serious consequences, and 6) smuggling women and children abroad. Meanwhile, some provincial and local law-makers also expended the serious circumstances to include using force or robbery to overtake a child from parents for sale purpose or using narcotics to drug the abducted women.
In additional to increase criminal penalty against traffickers, the law, for the first time, criminalizes the purchase of women as wives and buying abducted children for illegal adoption as a criminal act that is subject to imprisonment of three years or less or hard labor or under correctional supervision. However, the law also recognizes several mitigating factors to reduce or remit a buyer's criminal liability if 1) he respects the woman's will and assists her return home; 2) obtains a marriage license if the woman is willing and proves to be single; and 3) buyers did not engage any abusive or neglect conducts against purchased child and assist police to return the child to his/her biological parents.
To effectively deal with the villagers' resistance against police efforts in rescuing and freeing those abducted and purchased women and children, conspiracy in tip off the traffickers, helping remove or shelter victims of trafficking, and participating in mob attack against police rescue teams are also subject to imprisonment of three years or less, hard labor, fines, and/or deprivation of citizens' rights. To strengthen the campaigns against trafficking problem, the 1991 law further re-firmed that all levels of government officials are responsible for combating trafficking in women and children. For those government officials who have knowledge about the case of trafficking in women and/or children and/or failed to investigate a reported suspicious trafficking case are subject to criminal penalty provided in the Penal Code, Section 187. For those law enforcement officers who are in charge of investigating and rescuing women and children sold in the trafficking, if they fail to carry out their legal responsibility or delay or interfere the rescue, they are subject to criminal penalty of imprisonment between two and seven years.
The 1991 law provides not only much needed legal foundation for law enforcement agencies to effectively crackdown on trafficking in women and children but also the blue print for amending Criminal law and Criminal Procedure Law in 1997. When the Criminal Law and Criminal Procedural Law finally underwent a radical revision in 1997, the 1991 law was incorporated into PRC Criminal Law and Criminal Procedural law under Chapter Four: Violation of Citizen's Personal and Constitutional Rights. The applicable provisions of the Penal Code to combat crimes relating to trafficking in women and children include:
Section 232: Intentional killing
Section 233: Involuntary manslaughter
Section 234: Intentional bodily harm and injury
Section 235: Intentional bodily harm resulting in serious injury
Section 236: Rape,
Section 237: Sexual assault
Section 238: Illegal and false imprisonment
Section 239: Kidnapping and abduction
Section 240: Trafficking in women and children
Section 241: Purchasing women or children through trafficking
Section 242: Resist or interfere with police rescue of women and children bought through trafficking by using force, violence or threat
Since trafficking in women and children frequently involves multiple forms of criminal violation against victims' personal freedom and physical and mental well-being, the 1997 criminal law allows criminal penalty to be imposed against each element of criminal offenses occurred in the course of trafficking in women and children. In realizing the fact that almost all cases of trafficking in women and children involve at least one or more offenses such as abduction by force or false pretense, false imprisonment, rape and sexual assault, theoretically, the convicted offenders can be punished for each one of these elements in addition to their crime of trafficking in women and children.
On March 21, 2000, The Supreme Court, the Supreme Prosecution's Office, Ministry of Public Security, Ministry of Civil Services, Ministry of Justice, and National Women Federation jointly issued the Notification on the Problems Relating to Trafficking in Women and Children (Thereafter, "Notification"). The Notification was the declaration of a new wave of official war against trafficking in women and children. Under the Notification, the targeted trafficking activities are clarified into several categories: 1) the parties involved in luring, abducting or kidnapping, transporting, sheltering, or hiding women and children for the purpose of making profits, 2) purchasing women and children and interfering the rescue efforts, and 3) selling one's own children is subject to the forfeiture of illegal profits plus fines. Selling and trading minor under age of 14 for profit, purchasing children from traffickers for illegal adoption purpose or selling children abandoned or found on the streets is a criminal act of trafficking in children. Selling one's daughter or female relatives between 14 and 18 is a crime of trafficking in women.
To address the problems of international human trafficking and trafficking in women and children abroad for commercial sex industry, NPC issued the Regulation on Punishing Crime of Organizing and Transporting Chinese Citizens Illegally Crossing the Borders in 1994. The Regulation provides additional weapon for law enforcement and judicial authority to crackdown on transnational crime of trafficking in women and children for forced prostitution.
Law Enforcement Campaigns against Trafficking
The initial crackdown on trafficking in women and children came as part of national campaign of striking (yanda, 严打) against crime in 1983. The three fold increase in number of arrest of offenders involved in abduction, trafficking and selling of women and children seriously alarmed the government about the magnitude and proliferation of human trade and violence against women and children in China.
When NPC enacted the 1991 law against trafficking in women and children, the central police launched the first official campaign to focus on 16 provinces and autonomic districts (see map 1) that reported the widespread trafficking in women and children. Although the detailed information on the result of this national campaign was not made available to the public, the campaign for the first time formed the national coalition among the government agencies to collaborate efforts in detecting, investigating, rescuing, and post-rescuing caring for victims of trafficking.
In 1993, the second campaign against trafficking in women and children was launched. The campaign was expanded to 20 provinces and districts. Although the police investigation had resulted in tens thousand of arrests, the prosecution rate and conviction rate were extremely low. The police investigation and rescue efforts were also constantly interfered by the local government authority. Mob attacks against police rescuing teams were frequently reported in the media. Lack of community and local government support became the major obstacle in combating trafficking in women and children. Educating general public and rural population about the brutal and illicit nature of trafficking and violation of women and children's basic human rights clearly became an imminent task for the government.
In 1995, the third national campaign was launched in more than 20 provinces and districts. During this campaign, the police reported that there were 66,000 women and children identified to be in need of police rescue from traffickers or buyers and 30,000 more women and children were reportedly being missing, stolen, kidnapped or abducted. The trafficking has spread to 30 provinces and involved victims from more than 20 ethnic groups. The perpetrators in trafficking business also became much more violent, vicious and predatory. The traffickers not only sell the children who were sold by the parents or abducted from the streets but also kidnapped children at gunpoint or murdered the parents to get the children. In November 1994, more than 100 parents whose children are missing or abducted by traffickers came to Beijing during the "Two Conventions"-NPC and CCP Annual Conventions- and started a petition drive urging the government to crackdown on trafficking and rescue their missing or abducted children.
The 2000 campaign is the most recent one launched to crackdown on trafficking. The campaign has spread to cover all provinces and autonomic districts, except Hong Kong, Macao and Taiwan. The most significant action taken in this campaign is the national assessment survey conducted by the local police. During the early months of 2000, local police agencies across country surveyed 80 percent of rural population by checking household by household and village by village to identify all possible victims of trafficking and suspicious human trafficking activities. For all women and children with an unknown identity or mysterious origin, the police carefully interviewed them to determine if they were sold or purchased through trafficking regardless how long they have been living in the village. If the victimization of trafficking were admitted or reported, the police are required by the law to rescue the victims if they are under age of 14, or women between age of 15 and 18 or women who desire to return to their maternal home. Despite the problem of double counting cases once by the police in the location the victim was found and once by the police in location where the victim was reported for missing or abduction, the number released by the police this year represents the best estimate of trafficking cases in China since the resurgence of trafficking in women and children in 1979.
Since 1995, some 360,000 women and children have been subjected to abduction, kidnapping, trafficking, sale and purchase. Of them, 120,000 have been rescued. Nevertheless, the police also report that near hundred thousand of children remain unidentified either about their origins or their identities and could not be rescued from current buyers-adoptive parents.
During this campaign, advanced forensic technology was for the first time used in criminal investigation. For instance, DNA fingerprinting technique was used to help identify children's biological parents or to help parents locate their missing, stolen or abducted children. A secured intranet system was set up by MPS to allow local police agencies to access to the network data base for the purpose of tabulating number of cases reported and exchange information for the ongoing investigation and pending cases.
Combating trafficking in women and children and eradicating bridal trade remain a difficult and challenging task for Chinese government. As China increases its involvement in international political, economic, social, and cultural affairs, its law, enforcement and social services must also advance toward the internationally standardized practice. With the help from international organizations, China will eventually bring the trafficking in women and children under control. To achieve such a goal, China had a long way to go to educate the public and recognize the importance in protecting women's and children equal rights.
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