In the last decades, Chinese lawmakers and judicial courts alike have witnessed an increasing demand from civil society for enhanced protection of women’s rights and more effective adjudication of offenders. The Chinese #MeToo movement exacerbated domestic violence during lockdowns, criminal convictions of celebrities, and the multiplication of distressing sexual assault cases all over the country have further accelerated long-awaited legislative and judicial developments towards a more comprehensive and effective gender justice system. Consequently, both the courts and the lawmakers have gradually intensified efforts to combat gender-based offences and sex-related crimes.
Nevertheless, noteworthy judicial breakthroughs are tainted by arbitrary dismissals of certain cases and the ineffective implementation of the law in others. China's justice system is therefore currently facing a myriad of challenges and opportunities. It stands at a crucial juncture, having the chance to establish an effective judicial system that ensures the enforcement and protection of every Chinese woman's rights.
The societal background
Whereas Mao Zedong famously advocated that women ‘hold up half of the sky’ ("妇女能顶半边天"), gender inequality persisted as the norm during the early decades of the People’s Republic of China. Although certain rights, such as abortions, were permitted, albeit with dangerous execution since the mid-1950s, significant gender disparities continued. However, during and after the reforms and the opening-up era, women's rights gradually improved as their economic freedom ameliorated over time despite gender inequalities remaining strong.
Since the early 2000s, and particularly in recent years, a series of highly publicized criminal cases, such as Chinese-Canadian pop idol Kris Wu's 13-year imprisonment conviction for rape, have captured public attention amidst a new wave of Chinese #MeToo activism. Similarly, an attack by a group of men targeting women who rejected their sexual advances in Tangshan, Hebei province, has raised concerns about women's safety in China. Besides these high-profile criminal offences, stagnating progress in gender equality and the ongoing lack of sexual education, along with the widespread objectification of women in advertising and elsewhere, highlight policymakers' improper focus on ‘restricting the sexual, rather than the merely sexist, [which] both reflects popular attitudes and misreads them’ (Chen, 2021).
Effective gender-specific policies are not only lacking, but the law is often poorly implemented, particularly in divorce-related cases, as highlighted by He Xin in his book Divorce in China: Institutional Constraints and Gendered Outcomes. The author aims to demonstrate that Chinese courts frequently reject initial divorce filings and persistently attempt to initiate mediation between the parties involved, a situation that often favours husbands over their wives. This issue has been recently exacerbated by the introduction of a 30-day cooling-off period in divorce proceedings in 2020, aimed at curbing the surge in divorce rates nationwide.
Other factors may also contribute to the difficulty Chinese women face in obtaining a divorce through the courts. He Xin further explains that political incentives, coupled with efficiency and stability concerns, lead the courts to distort the implementation of the divorce law. China’s Civil Procedural Law stipulates that divorce cases should be resolved within six months, with the effectiveness measured by the percentage of case closure rates reported in each court’s annual assessment work report. Additionally, courts are required to ensure that decisions are accepted by both parties involved, as indicated by the appeals rate, a crucial factor for magistrates' promotions. He Xin argues that this system favours ‘men in litigation outcomes due to their superior economic capabilities’. As a result, women often remain trapped in unhappy marriages despite their desperate attempts to dissolve them (Xin, 2021).
China's Supreme People’s Court has sometimes also played a role in diminishing women's rights in civil litigation cases in the past. For example, in 2011, the Supreme People’s interpretation no. 18 of Several Issues on the Application of the Marriage Law dealt a blow to women's rights by stating that family homes purchased before marriage automatically belong to the registered buyer upon divorce, more often than not the husband. A 2020 study by Emma Zang, Assistant Professor of Sociology at Yale University, found that this judicial interpretation significantly harmed women's well-being, as couples attempted to adapt by transferring ownership of houses, sometimes to their children. This interpretation appeared to have been effective, resulting in a decrease in divorces (see. figure 1). However, the Supreme Court later repealed this judicial interpretation on December 23, 2020.
During this period, lockdowns have aggravated domestic violence in China, as the country’s ‘stringent lockdown and quarantine measures frequently serve to isolate victims from the protections and services that are theoretically accessible to them’ (Ti, 2022) leaving victims isolated and vulnerable. Police officers, and neighbours alike, were often unable to intervene to protect victims, even when a woman's life was at stake.
New legal provisions
To promote gender equality and combat violence against women, Chinese lawmakers have adopted two significant laws: 1) the Domestic Violence Law in 2015 and 2) the Protection of Rights and Interests of Women Law in 1992, last revised in late 2022. The Domestic Violence Law aims to promote ‘family harmony and social stability’ (Art. 1) and takes a multifaceted approach to addressing domestic violence, including publicity to increase awareness of these issues (Art. 6), establishing residential shelters for victims (Art. 18) and issuing personal protection orders within 24 hours (Art. 28). Nevertheless, the law has significant gaps in its formulation and is far from being adequately implemented by state agencies nationwide.
Despite efforts such as Changsha becoming the first city in 2017 to include domestic violence prevention as a criterion for assessing the work of state agencies in Hunan Province, enforcement of the Domestic Violence Law remains insufficient. According to an interview with Feng Yuan, the founder of the Beijing-based NGO Equality (北京为平妇女权益机构) ‘most localities throughout China issue very few written warnings, with some doing so for just 10% of all domestic violence cases reported to the police’ (Cai, 2021), with written warnings being among the most widely used precautionary measures taken by officers.
Similarly, the Protection of Rights and Interests of Women Law empowers the Communist All-China Women’s Federation (中华全国妇女联合会) (Art. 6) and other communist or state agencies to protect the interests of women. The law imposes refined regular gender equality statistical surveys (Art. 9), educational campaigns (Art. 10), and the establishment of a unified national service hotline (Art. 76). Additionally, it enhances the safeguarding role of schools (Art. 24 and 37) and requires private companies’ human resources division and managers to protect women's rights and combat gender inequalities (Art. 25, 43-49, among others).
Recent landmark cases
In recent months, a series of significant decisions have lately been rendered marking the improvement of judicial outcomes for women in legal cases, particularly concerning discrimination against pregnant women in the workplace. A notable decision was taken in 2017 when three women filed a complaint with the Beijing labour arbitration board against their employer for sidelining and laying them off due to pregnancy. Despite facing a defamation complaint from their former employer, they received compensation for their economic losses as well as broad support from Chinese netizens. Such cases, although not uncommon in China, rarely end positively for pregnant women. However, thanks to the adoption of new guidelines and increased awareness about these issues, district courts are now increasingly issuing favourable decisions for pregnant women.
For example, a court in Guangdong Province ruled in favour of Fan (her surname) against her employer, Yingli Property Management Co. Ltd., citing the equal employment rights clause in the Provisions on the Cause of Action of Civil Cases. Fan had faced discrimination after disclosing her pregnancy, being barred from the workplace, and subsequently suffering intense distress leading to a miscarriage. Her lawyer, Jiang Pan, later explained that courts are now supporting more comprehensive claims from these women, including lost salary during pregnancy, unmet maternity leave entitlements, and psychological damages. Additionally, pregnant workers now have the option to seek labour arbitration or file a lawsuit, which allows for a broader range of compensation. However, Jiang acknowledged that current protections for pregnant workers need further strengthening, especially concerning compensation amounts compared to those granted in other countries.
Outside the scope of discrimination-related trials, Chinese courts have made significant strides in recognizing sexual harassment as criminal misconduct since the Supreme People’s Court acknowledged it as grounds for legal action in 2018. For example, in the case of Liu v. Social Worker Well-Known Sexual Harassment Infringement Case [2019], a social worker surnamed Xiang brought a lawsuit against her employer, the founder and the CEO of a prominent NGO, alleging inappropriate and non-consensual hugging and groping. Following months of trial and an appeal by the employer, Liu Meng, Xiang ultimately received a letter in 2019 stating ‘appeal dismissed, original verdict upheld.’
This dismissed appeal was later recognized as one of the country’s top 10 public interest lawsuits of 2019, marking a significant milestone for future trials involving workplace harassment against women. Previously, such cases had slim chances of success for the plaintiff, as many alleged perpetrators countered with defamation countersuits and leveraged personal connections to persuade coworkers to testify in their favour. However, the growing mobilisation and support of the online community in favour of these women workers likely played a role in prompting these judicial advancements. Xiang's victory set a precedent, leading to subsequent successes in similar cases.
In March 2021, a Shanghai court awarded $15,000 in compensation to a woman who had been subjected to unwanted calls and messages from a coworker, some containing references to rape and suicide. The constant harassment caused her trauma and depression. The court ruled that the man's persistent use of inappropriate language towards his colleague constituted sexual harassment, even though there was no physical contact involved. This decision established that digital harassment falls within the scope of sexual harassment violations. Zhang Zongfa, a lawyer specializing in labor disputes, commented on the court's ruling, stating that it reflects a broader legal trend in China and noted it highlights a significant step forward in addressing and defining sexual harassment in the workplace within the Chinese legal framework: ‘For the first time, the new civil code clarifies the characteristics and manifestations of sexual harassment at the national level.’
Regarding sexual assaults and rape, China appears to be moving towards adopting a broader definition of rape, aligning more closely with the principles seen in European countries. This evolution involves recognizing non-consent as a central criterion in defining rape alongside violence, surprise, threat, or constraint. Notably, this expansion encompasses the inclusion of marital rape, which currently isn't considered an offence under China’s Criminal Law. For instance, a case from Hebei province highlights this shift. A man was sentenced to 8 months of imprisonment after raping his wife the same month she filed for divorce. In her final verdict, the female judge emphasized that the husband's actions ‘constitutes rape, as he violated the will of the woman’ (Zhang, 2021).
Another significant case involving rape occurred between two fiancés and was adjudicated by the Yanggao County People’s Court. On Christmas Day last year, the court ruled that a woman who had expressed opposition to premarital sex was raped by her fiancé just a day after their engagement. Investigators gathered compelling evidence, including burn marks and bruises on the victim’s body from being dragged, as well as video footage from the apartment’s staircase. Consequently, the perpetrator was sentenced to three years of imprisonment. However, the defendant's mother and some netizens online spread rumours, suggesting that the woman accused her fiancé of rape due to unsuccessful bride price negotiations and denied the non-consent of the victim.
See below the vignette's translation:
— The husband (angry and forcing his wife to have sex): I own the marriage certificate
— The woman: I don’t want to…
— A third-party: Should I report this situation to the police?
Current legal prospects and challenges
Recent judicial developments across courts throughout China are laying the groundwork for better adjudication of women’s rights infringements, resulting in fewer gendered outcomes unfavourable to women. However, most of the current obstacles to the continuous favourable evolution of China’s courts are occurring outside tribunals. One significant obstacle is the lack of awareness among future judges regarding sexuality and misogynistic misdemeanours. Zhu Guangxing, an assistant professor of law, emphasises the necessity for law students to comprehend the daily sexual misconduct women face to enhance their legal analysis. She recalls that during her time as a student, some of her classmates ‘barely knew what sex crimes were, so we rarely questioned the provisions of the law (...) [students] shouldn’t have to wait until Criminal Law 101 to learn about sex’ (Zhu, 2020).
Against this background, the ongoing feminisation of the judiciary system, where women still encounter a flexible glass ceiling (Zheng, Ai, & Liu, 2017) — a phenomenon allowing for advancement to mid-level but rarely top-level positions — appears to be gradually diminishing but remains insufficient. Nevertheless, women judges with international experience are increasingly assuming top-level positions, indicating a positive shift such as the appointment of Supreme People’s Court Judges like Shen Hongyu 沈红雨, who studied at the University of Hong Kong and served as a visiting scholar at Columbia University, as a judge of the Administrative Tribunal of the International Labour Organization in July 2021 or Judge Gao Xiaoli 高晓力, who studied at the University of Montreal, designated as the Chief Judge of the United Nations Appeals Tribunal in October 2023. Additionally, the current Minister of Justice, He Rong 贺荣, is herself a woman.
These women judges often spearhead innovative rulings (Wei, 2020), more aligned with societal expectations regarding gender issues and the latest legal provisions. As such, their rulings could significantly impact the future protection of women’s rights by the courts.
ABOUT THE AUTHOR
Josué holds a bachelor’s degree in history from Panthéon-Sorbonne University and is currently reading law at Panthéon-Assas University. He created a blog on Chinese law called "Faxinating China" and is mainly interested in China’s legal approach to societal issues.
This article was edited by Mattia Sosio and David Dinca.
BIBLIOGRAPHY
Cai, Y., 2021, China’s Anti-Domestic Violence Law at the Five-Year Mark. Sixth Tone, 21 March. Available from: https://www.sixthtone.com/news/1006903.
Chen, Y., 2021, China Needs Less Prudish, More Prudent Approach to Sexual Content. Sixth Tone, 21 April. Available from: https://www.sixthtone.com/news/1007267.
Ti, T., 2022, In Locked Down Shanghai, a ‘Shadow Pandemic’ of Domestic Violence. Sixth Tone, 9 June. Available from: https://www.sixthtone.com/news/1010484.
Venkatesa, N., 2015, The Feminization of Judges in China [Online]. University of Pennsylvania Center for the Study of Contemporary China. Available from:
https://cscc.sas.upenn.edu/blog/2015/Oct/09/The_Feminization_of_Judges_in_China [Accessed 20 March 2024].
Wei, S., 2020, Gendered Justice in China: Victim–Offender Mediation as the “Different Voice” of Female Judges. International Journal of Offender Therapy and Comparative Criminology, 65(4), pp.346-372. Available from: https://doi.org/10.1177/0306624X20936202.
Xin, H., 2021, Why Don’t Chinese Divorce Courts Better Protect Women?. U.S.-Asia Law Institute blog, 17 June. Available from:
Zhang, W., 2021, Man’s Sentencing Underscores Absence of Marital Rape Law in China. Sixth Tone, 24 November. Available from: https://www.sixthtone.com/news/1009040.
Zheng, C., Ai, J., Liu, S., 2017, The Elastic Ceiling: Gender and Professional Career in Chinese Courts. Law & Society Review (51), pp.168-199. Available from:
Zhu, G., 2020, What a Criminal Law Class Says About China’s Need for Sex Ed. Sixth Tone, 6 July. Available from: https://www.sixthtone.com/news/1005897.