[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
HOLDING UP HALF THE SKY: WOMEN'S RIGHTS IN CHINA'S CHANGING ECONOMY
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
FEBRUARY 24, 2003
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan* MAX BAUCUS, Montana
MARCY KAPTUR, Ohio* CARL LEVIN, Michigan
SHERROD BROWN, Ohio* DIANNE FEINSTEIN, California
JIM DAVIS, Florida* BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State*
GRANT ALDONAS, Department of Commerce*
D. CAMERON FINDLAY, Department of Labor*
LORNE CRANER, Department of State*
JAMES KELLY, Department of State*
John Foarde, Staff Director
David Dorman, Deputy Staff Director
* Appointed in the 107th Congress; not yet formally appointed in
the 108th Congress.
(ii)
C O N T E N T S
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Page
STATEMENTS
Woo, Margaret, professor, Northeastern University School of Law,
Boston, MA..................................................... 2
de Silva, Rangita, director, International Programs, The
Spangenberg Group, Newton, MA.................................. 7
Gilmartin, Christina, associate professor of history,
Northeastern University, Boston MA............................. 11
APPENDIX
Prepared Statements
de Silva, Rangita................................................ 28
Gilmartin, Christina............................................. 36
HOLDING UP HALF THE SKY: WOMEN'S RIGHTS IN CHINA'S CHANGING ECONOMY
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MONDAY, FEBRUARY 24, 2003
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 2 p.m.,
in room 2200, Rayburn House Office building, John Foarde [staff
director] presiding.
Also present: Jennifer Goedke, office of Representative
Marcy Kaptur; Susan Weld, general counsel; Andrea Worden,
senior counsel; Keith Hand, senior counsel; Selene Ko, chief
counsel for trade and commercial law; Lary Brown, specialist on
labor issues.
Mr. Foarde. As I told our panelists a moment ago, people
come and go during our roundtables, which of course they should
do if they cannot stay the whole time. So, we will expect to be
joined by others as we go on.
Before I introduce our three panelists, I would like to say
welcome to this staff-led issues roundtable of the
Congressional-
Executive Commission on China [CECC].
On behalf of Congressman Doug Bereuter, the chairman of the
CECC, and Senator Chuck Hagel, the co-chairman, today's
roundtable concerns women's rights in China, and particularly
in the context of China's changing economy.
We have three distinguished and learned panelists this
afternoon. I will introduce them in a moment. But, first, I
would like to make an administrative announcement or two.
Our next staff-led issues roundtable will be an open forum
on Monday, March 10, at 2 p.m. in this very room, room 2200,
Rayburn. The open forum format was very successful for us last
year.
The rules are, roughly, that any person who wishes to speak
for 5 minutes on a topic within the Commission's mandate is
welcome to sign up with us--the deadline is just a couple of
days before the roundtable date itself--and then can sit and
make a presentation and give us a written statement, if they
wish, that goes into the record. Each panelist will be asked
questions by the staff panel once all of the panelists have
spoken. So, again, that is Monday, March 10.
On Monday, March 24, at 2:30 p.m. in room 2255, Rayburn, we
will hold another issues roundtable on non-governmental
organizations in China and freedom of association issues. We
will put more information about that roundtable on our Web
site, and also out to our e-mail information list.
While I am on that topic, you are all welcome to sign up
for e-mail announcements from us about CECC roundtables and
hearings, and occasionally other bits of news related to our
mandate, via the CECC Web site, which is www.cecc.gov.
There is also a physical sign-up sheet for those of you who
prefer to do things that way that is being circulated, and you
can give us your name and your e-mail address and we will sign
you up. If at any time you need to unsubscribe from the list,
you can do that on our Web site very easily.
Another feature of the Web site is that all of our
roundtable and hearing transcripts are available for both
viewing and downloading as PDF files. Normally, there is a 4-
to 6-week time lag between the date of one of our events and
the appearance of the final transcript. That is so we can give
our panelists time to correct the draft and get it back to us,
process it, and put it up. But normally we have their written
statements online the day of the event, so you can find them
there.
Helping us today understand more about women's rights in
China's changing economy are Margaret Woo, from the
Northeastern University School of Law. She is going to look at
one aspect of the set of issues for us on women's use of the
court system in China.
Following her will be Rangita de Silva from The Spangenberg
Group, looking at the grassroots enforcement of women's rights
and interests.
And, finally, Christina Gilmartin from the Department of
History at Northeastern University about marriage migrations in
contemporary China.
Panelists, we have a high-tech system here with a set of
lights. Once I introduce you, I am going to hit the button and
the green light will light. You have 10 minutes to make your
presentation.
Unfortunately, we do not have an amber light, so I will
kind of look at you and wave after about 8 minutes so you know
you need to wrap things up. Then when the red light turns on,
we hope you could wrap up extremely quickly so we could go on
to the next
panelist.
When all three of you have had a chance to make your
presentations, then we will open it up to questions from the
staff group up here. We will go as long as the conversation is
interesting, or until 3:30, whichever is first, since we have
pledged to the International Relations Committee to vacate the
room by 3:45.
So, without further ado, let me ask Margaret Woo to make a
presentation. Let me also ask you to speak directly into your
microphones so that we can get a good transcript of today's
roundtable.
Margaret, thank you.
STATEMENT OF MARGARET WOO, PROFESSOR, NORTHEASTERN UNIVERSITY
SCHOOL OF LAW, BOSTON, MA
Ms. Woo. Well, it is certainly an honor to participate in
this roundtable before the Commission on the People's Republic
of China, focusing on private property rights and women.
My fields of specialization are comparative law and Chinese
legal reforms. In the last 15 years, I have worked on topics
looking at legal reforms and economic developments in China,
and in particular its implications for Chinese women and
equality.
Certainly, one cannot understand the extent of substantive
private property protections in China without understanding how
such rights are enforced in the courts today.
The question of how women's rights have been implemented
through the legal system has added significance. Certainly, the
test of a legal system is its ability to protect the most
vulnerable. Women, arguably, make up the subgroup of the
Chinese population with the most ambiguous relationship to the
Chinese state.
So how Chinese women are using the courts to enforce their
rights entails an assessment of whether, and how, law is being
used as an instrument for citizen empowerment.
For rule of law ideals truly to take root, the idea of
legality and legal instruments to settle rights and social
problems must exist at the grassroots and at the level of
ordinary citizens.
Now, to understand Chinese women's use of the legal system,
it makes sense to begin with a brief summary of the kinds of
issues Chinese women are facing since the reform and how the
legal
system responded.
Certainly with the deepening of economic reforms and
greater
reliance on markets, women's social status has increased in
some ways, but decreased in others. While the market economy
has offered women greater freedom and mobility, such mobility
also has resulted in greater threats for women at home and in
the workplace.
As I have written elsewhere, the market economy has led to
two kinds of contrasting migratory trends for women: (1) in the
private sector, Chinese women are migrating out of the rural
areas to urban areas for labor and for marriage; and (2) in the
state sector area, Chinese women are asked to ``migrate'' from
the public ``workplace'' to the private sphere of home and
hearth.
Now, as to the first trend, very quickly, to summarize, it
is estimated that over 50 million women have given up farming
for industrial sector labor. Known as ``dagongmei,'' or
laboring sisters, these migrating women constitute the majority
of migrant workers in the exploding numbers of foreign-invested
township and private enterprises, which have been the focus of
economic reforms.
Now, since these migrating women often take non-
contractual, less desirable temporary jobs without urban
residence registration, they work without the social benefits
normally guaranteed for state workers. Since they are often
uneducated, they can be subject to sexual abuses.
In 1999, women workers earned an average of 70 percent of
men's pay, really a decrease from the 83 percent back in the
early 1990s.
Rural women are also migrating outward from rural areas to
wealthier areas for marriage. I know that Professor Gilmartin
will be speaking on that, so I will just leave that issue
aside.
But just to mention that, even in the best of
circumstances, the fact that women are migrating out of their
local localities leaves them vulnerable, since they cannot
significantly draw on the
support of their natal families, resulting in greater
dislocation and possible abuse for Chinese women.
Now, the second form of migration which I will again
summarize very briefly is in the state sector, where women are
asked to leave the public workplace to return to the private
sphere. China's economic reforms have led to redundancies in
the workforce, with women often the first to be laid off, last
to be hired.
So, while constituting only 39 percent of China's
workforce, women constitute nearly 60 percent of its laid-off
workers in some areas, such as Liaoning Province, and are
officially recognized as being 50 percent of the laid-off
workers nationwide.
More than 75 percent of the women laid off were still
unemployed after 1 year, in contrast to 50 percent of their
male counterparts. So, there is a great problem that women are
facing in the labor area.
In combination with this, of course, is the increased
commodification of women as ``beauty objects.'' With
marketization and privatization, women are now viewed as both
consumers and products, and often in the market sphere
relegated to the role of wives and mistresses rather than as
equal workers ``holding up half the sky,'' as they supposedly
did during the Mao era.
So the relocation of women to the private sphere of home
can add to women's loss of status as they no longer contribute
to the family funds. Extramarital affairs have grown, as has
the number of divorces. In divorce, women can suffer both
financial and emotional setbacks because the often receive the
short end of property and housing divisions.
So what are the Chinese laws and legal system doing about
this? Well, there are a number of formal legal protections for
women. Women's equality and civil rights are guaranteed both by
the Constitution and the civil code.
There are a number of national laws that contain specific
equality protection for women. These include the Marriage Law
that was revised in 2001, the Inheritance Law, the Labor Law,
and the Law on Maternal and Infant Health Care.
In 1995, China even enacted ``Funu Quanli Baozhang Fa,''
which is The Law on the Protection of the Rights and Interests
of Women, known generally as the Women's Rights Law.
So the Women's Rights Law and the Marriage Law set forth
protections for women's freedom in marriage, as well as
equality in property ownership in marriage, divorce, and
inheritance. This protection is especially defined for rural
women, who often face great threats of discrimination in the
distribution of village land.
In the labor area, also, formal protection is contained in
the Labor Law that specifically addresses problems of
discrimination in promotion, hiring, layoffs. There is
protective legislation with provisions for maternity leave and
labor protections. The National People's Congress [NPC], was
also considering legislation that would punish sexual
harassment in the workplace.
With reference to bodily harm, criminal law prohibits the
abduction, sale, and kidnapping of women and children. The
Criminal Code punishes traffickers. The recent Marriage Law,
for the first time, recognized and prohibited domestic
violence. So, it looks pretty good on the books in terms of the
formal legal rights.
My interest, however, is how are these rights being
enforced, and how are Chinese women using the laws to protect
their rights?
Well, since the establishment of the legal system in 1979,
courts in China have been in increasing demand. Between 1989
and 1996, the number of civil lawsuits grew by 70 percent. This
grew by a further 36 percent in the last 5 years, between 1997
to 2001.
Private litigants are going to court in China in growing
numbers, and they dispute over, primarily, housing, debt, and
family issues. In 1999, debt, family, and marriage cases
constituted the bulk of civil cases that comprise,
respectively, 40.2 percent and 39.66 percent of all cases. So,
you have debt and marriage cases really being the bulk of the
civil cases.
Women litigants have not shied away from civil litigation.
It is generally understood that the cases involving women tend
to coalesce around the civil and criminal realm and less in the
economic realm.
Interviews with Chinese lawyers, as well as surveys of the
Chinese legal material, suggest that litigation involving women
as plaintiffs usually concern matters of marriage, family, and
bodily injury.
Now, between 1997 and 2001, divorce cases increased by 14
percent from the prior 5 years, with women often the initiators
and plaintiffs of such litigation. That is consistent with the
national statistics, where women were the petitioners in nearly
70 percent of divorce cases tried by the civil court since
1980.
The main reasons for divorce are incompatibility and
domestic
violence. According to the All China Women's Federation,
domestic violence is involved in some fashion in about 30
percent of the
divorce cases, with an even higher incidence in the rural
areas.
Significantly, there is an increasing recognition that
emotional well-being can be key reasons for divorce. Reform and
greater freedom has led not only to possibilities of greater
chasms in relationships, but also to greater expectations for
what a marriage should be, and a growing sense of entitlement.
However, while seeking a divorce is no longer difficult for
Chinese urban women, the same may not be the case for Chinese
women in rural areas. There are still substantial problems with
interference in their legal rights.
Despite legal protections on paper, women can, in practice,
suffer both financial and emotional setbacks in divorces
because they often receive the short end of property and
housing divisions.
The housing problem for women in divorce is attributable to
a combination of housing shortages, residuals from the
``danwei'' allocation system, as well as, in general, to
courts' lack of understanding of gender issues.
Despite the 1996 Supreme People's Court directive urging
courts to take account of a woman's situation in the
distribution of housing, property, and especially housing, have
often become the
bargaining chip in contested divorces.
I know my time is short, so let me just jump a little bit
over to labor cases. It is surprising to me, but there are few
labor cases in which individual women workers challenge state
or company policies that are detrimental to her.
While labor disputes must first be submitted to
administrative resolution, this exhaustion requirement does not
explain the low numbers of litigated cases because
administrative decisions can be appealed to the court.
In 1999, labor cases constituted only 1 percent of the
total of civil cases. From 1997 to 2001, the number of housing
and divorce cases filed increased by 71 percent, and 68
percent, and debt was up by 60 percent. By contrast, labor
cases increased only by 19 percent.
There could be a number of reasons for the paucity of labor
cases. There is, in part, the problem with women not
understanding their labor rights. There is also the issue that
many women do not have written contracts on which they can sue.
But then there is also the issue of having a very short,
60-day time period during which an aggrieved worker can
challenge and raise labor issues to either the arbitration,
mediation, or, finally, to the courts. So the very short, 60-
day time period makes it difficult for women to challenge these
issues in court.
Finally, though, it could also be that women might be more
likely to assert their rights as plaintiffs in private
litigation involving marriage and divorce and less likely to
touch on pressing public issues such as labor policy, where the
defendant tends to be powerful companies or the Chinese state.
It may be that the court is now really more an avenue in
the area of social rights than political rights, and more an
avenue to contest local abuses than to oppose national policies
such as
economic development.
Finally, just because I do want to mention the obstacles to
the use of the courts, and perhaps I will save my
recommendations until later when we have a little time to
discuss what the Commission might want to propose, I think that
the obstacles to the use of the courts are two-fold.
One, is that China has been experimenting with an
adversarial system. That is, they are very much focusing on
developing a
system of party autonomy to supplement its inquisitorial civil
law-based system.
In the Chinese court, this is now called ``dangshiren
zhuyi,'' where the litigants have the obligation and
responsibility to bring forth proof rather than the old system
of having judges do the
investigation and learn about the parties and the facts.
Now, placing responsibility on individual litigants is
great in the development of greater rights' consciousness, but
it can present special problems for those without power.
Certainly, without financial resources and legal knowledge,
it is difficult for litigants to navigate this complicated
judicial system to understand how to obtain proof, or even to
know what proof is
necessary.
Some problems have already surfaced in the divorce area
where, according to many Chinese lawyers, wealthy husbands
often hide money and other family assets from a divorcing wife,
and the wife is having a difficult time in proving and getting
her share of the property.
So what it does mean is that a more adversarial-based
system requires the role and greater involvement of lawyers.
Unfortunately, in China today, despite great growth in the
legal profession, the number of lawyers is still really small
in comparison to the population of 1.3 billion. Right now China
has about 150,000 to 175,000 lawyers. Women constitute only 20
percent of the legal profession.
More problematically, the maldistribution of legal services
over China's vast geography and in the subject areas requiring
representation means that women litigants are left out.
Family and marriage cases are not as profitable as
commercial cases, so the marketplace of legal services has
resulted in fewer lawyers going into that area. Even with the
growth of lawyers, the number of lawyers is found to be greater
in urban areas such as Shanghai, but found to be a scarce
commodity in the rural areas.
Mr. Foarde. All right. Margaret, thank you very much. We
are going to come back to some of these very interesting issues
in the question and answer period because it raises so many
interesting questions.
Ms. Woo. All right.
Mr. Foarde. I would like to go on to Rangita de Silva,
please.
STATEMENT OF RANGITA de SILVA, DIRECTOR, INTERNATIONAL
PROGRAMS, THE SPANGENBERG GROUP, NEWTON, MA
Ms. de Silva. Over the last few years, The Spangenberg
Group, under the auspices of the U.S. Department of State and
the Ford Foundation, has conducted research, and provided
training and technical assistance to legal services
organizations and women's studies centers in China,
particularly on issues concerning low-
income women.
Our programs are unique in that they are aimed at putting
women's rights into action in concrete ways. Working with local
programs, we identify areas of women's rights reform, which are
pushing the boundaries of the law.
Although facially equitable laws prohibiting discrimination
in employment, property ownership, inheritance, marriage, and
divorce have been enacted, the difference between equality in
law and equality in fact lies with the implementation of those
laws.
The lack of corresponding enforcement mechanisms is a major
drawback in the effectiveness of these laws. I wish to speak to
you about some areas on labor, domestic violence, and property
that deeply impact women in China, the strengths and weaknesses
of these laws, and the efforts made by some creative women's
rights advocates and organizations to overcome the challenges
posed by some of these laws and, finally, how, with the support
of the State Department and the Ford Foundation, The
Spangenberg Group has been assisting in some of these programs.
Although since China opened its doors to a program of
economic reform there is much progress for women seeking
employment outside the home, many women find that the very laws
designed to protect them subject them to discrimination and
disadvantage in the labor market.
It is evident that, by emphasizing the biological
differences between men and women, the law limits women's
employment opportunities and places an added burden on
employers who hire women.
An emphasis on women's uniquely productive capabilities and
their roles as child bearers and rearers, have the potential to
perpetuate gender segregation in the workplace and relegate
women into lower-paying, traditionally female tasks.
On the other hand, while greater mobility has resulted in
greater opportunities for women, many migrant women workers
suffer exploitation and discrimination. Further, laws that
might improve working conditions and provide work-related
benefits are under enforced, and the capacity to monitor and
enforce these laws is weak.
The revisions made to the Marriage Law in 2002 are among
some of the more significant changes made to the law in China.
These revisions include domestic violence as a ground for
divorce, and allow the spouse in a divorce proceeding to seek
compensation from the other party if he or she is at fault due
to certain specific grounds, including domestic violence.
The reintroduction of fault into divorce is seen as an
attempt to grapple with the feminization of poverty in divorce.
Despite these ground-breaking reforms in the law, Chinese
women's rights advocates have argued that, in the absence of a
clear definition of domestic violence, it would be very
difficult to institute an action for civil compensation for
domestic violence.
Domestic violence is not broadly defined to cover threats
of violence to the woman and her family members, psychological
damage, sexual abuse, and rape within marriage. Also, the
question arises whether a claim for compensation can be made
during the existence of the marriage. Due to the discretion
left to the judges, similar cases can be decided differently.
Women also find it difficult to meet the high standard of
proof required under the criminal law to hold batterers
criminally responsible. In order to invoke article 260 of the
Criminal Law on crimes disrupting marriage and family, a woman
has to prove that the crime was particularly ``evil'' and the
abuse was ``continued, regular, and consistent.'' On the other
hand, the crime of ``intentional injury'' requires the forensic
authentication of the injury, and that the injury amount to at
least a flesh wound.
In the absence of a clear definition of what constitutes
domestic violence, it is most often interpreted as an injury
that results in severe bodily harm, broken limb, loss of
eyesight, et cetera. Most courts and prosecutors will not
address what is considered a minor physical injury as domestic
violence.
Another reason why the revisions to the Marriage Law might
remain largely symbolic is the fact that the Public Security
Bureaus often hesitate to intervene in family disputes.
Thus, without corresponding intervention procedures to make
it mandatory for Public Security personnel to intervene in
domestic violence issues, it would be very difficult for women
to gather forensic authentication and proof of domestic
violence in order to seek protection during marriage, or civil
compensation at divorce.
The Chinese law also does not expressly recognize or
exclude marital rape. There is a general recognition that where
sexual intercourse occurred without the consent of the woman,
that is, in a forced or purchased marriage, during separation,
or after an application for divorce has been filed, it could
amount to rape or a crime of intentional injury.
The law provides that during the marriage, neither side can
transfer property without the consent of the other party.
However, often in cases involving domestic violence or adultery
leading to divorce, spouses in China attempt to transfer
property to a third party, so as to avoid equitable
distribution of property. Many women find it difficult to trace
the illegal transfer of property made by their spouses.
Married women are frequently unaware of the full extent of
their husband's income or property. Given certain procedural
difficulties, it is very difficult to gather real evidence on
property transfer or compel witnesses to testify as to
concealed property. The challenges of proving the ownership or
concealment of property constitute an enormous burden to women
in China.
Despite provisions in the law protecting women's property
rights, the reality is that property division and divorce
depend largely on availability of housing units. Frequently, in
present day China, women are faced with the untenable situation
of sharing a bedroom in the ex-husband's apartment. This
arrangement has caused many serious problems, such as the
increase in the incidence of domestic violence.
Sometimes sharing housing with a former spouse is allowed
by the court as temporary housing for a stipulated period of
time, or until the woman remarries. Further, the Supreme
People's Court has ruled that a house that cannot be divided
should be assigned to one party, and that party should
compensate the other party for half the value of the house.
Unfortunately, the reality is that a woman often lacks the
resources to reimburse her spouse, and the house automatically
goes to the husband. As is manifest in court decisions, there
is no uniform policy governing this area of the law.
Even though the revised marriage law applies uniformly to
both urban and rural women, rural women encounter unique
challenges in property use and ownership that have not been
fully addressed by the revised Marriage Law.
Despite guarantees of equal distribution of
``responsibility land,'' in practice, certain village
committees will not allocate separate ``responsibility land''
to women who are divorced.
A widow returning to her village could encounter similar
problems. A married woman who leaves the village, in common
parlance, is considered ``water splashed out'' and loses her
right to the land in the village.
In the case of migrant workers, too, so long as their
residence has not been transferred to the city, they should
retain the right to the responsibility land in their village.
However, in reality, women who go to work as migrant
workers to the city have their land reallocated. Even though
this is against the law, very few of these migrant workers are
able to come back to their village in the event that they lose
their jobs in the city.
Despite legal guarantees of equality, women's rights in the
areas of marriage, divorce, employment, and property continue
to face procedural obstacles. On the other hand, the changes in
the law have not always had the desired impact on women.
At the same time, a review of The Spangenberg Group's work
in China in the last 5 years shows that there has been a rapid
maturation and development in the area of women's rights
advocacy in China.
The work of some women's legal aid organizations in China
has become a catalyst for change. These organizations have not
only positively impacted the lives of the disadvantaged, but
have brought to the surface many issues hitherto ignored, such
as domestic violence, marital rape, sexual harassment, and
employment discrimination.
The women's legal aid centers have provided a forum for
debate and discussion on these areas of the law and have
engaged in a number of activities including: legal services for
the poor, domestic violence hotlines, impact literature, law
reform efforts, and training of law enforcement and judicial
officers.
The cases brought to court by these centers have formed a
rich body of jurisprudence on women's rights. Claims lost in
court are still publicized and used to raise gender
consciousness.
Our seminars help women's rights advocates in China address
the inherent duality and contradictions in some of the
protectionist provisions of the Chinese labor laws, and we view
them in the context of analogous labor laws in other
transitional countries and their disparate impact on women.
Our programs focus on how to identify gender bias and
sexual harassment in employment, and how to challenge these
discriminatory practices. Our programs identify various laws
and regulations that prohibit gender discrimination and
emphasize vigorous advocacy skills necessary to make novel
anti-discrimination claims.
We also draw examples from successful litigation strategies
used by Chinese women's legal services organizations. Even
though successful outcomes for struggling female workers are
not common, significant cases taken to court by some women's
legal services groups demonstrate how women workers, after many
a legal battle, have successfully vindicated their rights.
Women's legal services organizations in China are also
crafting novel and indigenous advocacy strategies to protect
women's property rights. These range from advising women to
enter into notarized agreements with their husbands so as to
ensure equitable ownership of property and to argue for civil
compensation for fault to be awarded during an ongoing
marriage.
In the area of domestic violence, our seminars assist
women's rights advocates to identify some of the challenges
women face due to gaps in the law and inaction on the part of
law enforcement officials. Together, we look at ways in which
to stretch the boundaries of advocacy and make women's rights
and perspectives central to lawmaking.
In doing so, we draw examples from advocacy strategies in
the United States and other parts of the world. Our seminars
also focus on how, in the absence of an explicit marital rape
exemption, a broad interpretation of China's rape laws could
include marital rape.
By looking creatively, first, at local laws and then at
international norms, women's rights advocates in China are
developing exciting and innovative methods of problem solving.
Women's rights advocates and lawyers in China have done
much to advance the frontiers of the law in the area of women's
rights reform in China. Their continuing critique of
discriminatory laws and practices affecting women and their
creative initiatives to challenge these discriminatory
practices have brought about a transformation in the lives of
women who seek to vindicate their rights.
Even though much has taken place in the last few years,
much remains to be done. Women's empowerment foreshadows the
transformation of a society and is a benchmark of a functioning
rule of law. Supporting the work of women's rights groups
remain critical to the further strengthening of the rule of law
in China.
Thank you.
[The prepared statement of Ms. de Silva appears in the
appendix.]
Mr. Foarde. Thank you very much.
Let us go on to Christina Gilmartin, please.
STATEMENT OF CHRISTINA GILMARTIN, ASSOCIATE
PROFESSOR OF HISTORY, NORTHEASTERN UNIVERSITY, BOSTON, MA
Ms. Gilmartin. I want to thank the Commission for inviting
me to come speak about some of my recent research that I think
shows the need for much greater legal training for women.
The economic reforms that were instituted in China in the
late 1970s have brought tremendous changes, both positive and
negative, for women. An explosion of internal migration streams
of extraordinary proportions in China has drawn not only men,
but also women.
Migration can be seen as a form of human agency by women
who are aiming to make use of global, social and economic
transformations to improve their survival odds and achieve
personal
empowerment.
However, a large segment of these Chinese migrant women
have also faced an increasing vulnerability that has heightened
public awareness and policy concerns.
Much scholarly and journalistic attention has been devoted
to Chinese labor migrations, including women labor migrants. My
statement concerns one aspect of Chinese migrations that have
thus far not received much Western attention: voluntary
marriage migrations.
Intertwined with both illegal marriage migration streams
and economic migrations, this phenomenon has provided rural
women with an important opportunity to improve their economic
well-being.
However, these women also face unusual risk as they move
beyond the security network of their kinship lines, and thus
have few resources to rely upon if subjected to difficult
circumstances in their new communities.
What constitutes a marriage migrant, one might ask? Women
have almost always moved at the time of marriage in China.
Village exogamy was held up as a norm and was widely followed.
The great majority of rural women who observed the strong
taboos against same-village marriages during the Mao period,
1949 to 1976, however, married within a radius of 10
kilometers, and usually in the same county.
One study shows that women who did marry into wealthy
villages from poor villages might move a bit further than that
10 kilometers, often marrying the poorest men in the village.
This marriage market migration that I am talking about in
the economic reform era is, in many ways, a radical expansion
of the Mao era. Women have begun to travel much larger
distances, crossing county and provincial borders.
Within a few years, some women began to venture hundreds,
and even thousands, of miles in order to marry. By 1990, the
numbers of marriage migrants were estimated to be somewhat over
4 million, and this estimate is probably low.
These female marriage migrants constituted 28 percent of
overall female migration in China in the 1980s. Although the
data for the 2000 census has not been published, preliminary
indications are that this figure has continued to rise.
In contrast to the millions of women who have migrated to
marry, few men have been involved in this process. The main
reason for such low male participation in this type of
migration is the tenacity of patrilocal marriage patterns.
Even after the establishment of commune systems in China in
the 1950s, government initiatives were unable to motivate men
to undertake virilocal marriages.
Those few men who have moved to another village to take up
residence in the homes of their wives have not been accorded
full rights and social status in their new communities, and
thus have led to very low participation of men in marriage
migrations.
What kind of women migrate to marry? The great bulk of
these women come from agricultural backgrounds. In one study,
we know that 97.2 percent of female marriage migrants
originally farmed for a living.
In this respect, then, they are very different than the
labor migrants that we know much more about, who, according the
1990 census, came disproportionately from farming and factory
backgrounds.
So essentially what we have here is a process where women
migrants are moving from poorer rural communities into
wealthier rural communities. Their destinations have primarily
been rural because of the ``hukou'' system of residence
permits.
Those women who have managed to enter the boundaries of the
large metropolitan areas of Beijing, Tianjin, Shanghai, and
Chongqing have not ended up in the urban areas, but in the
outlying rural districts.
The main reason for these large-scale marriage migrations
is the existence of a sex ratio imbalance that has been growing
over the last two decades. The figures are showing that, in the
rural areas, up through 1990, in fact, the sex ratios are not
as great as they were afterward and they are going to be in the
next two decades.
However, in the rural areas the sex ratios were, in fact,
great because of so many women leaving to work. So what we see
in 1990 is the gender ratio of Chinese women to men, for
unmarried people between the ages of 15 and 19, was 108.91.
That is, almost 109 unmarried men for every 100 unmarried
women. But if we look in the 20-24 age group, it would be
161.97, and for the 25-29 age group, 508.91.
It is clear that these marriage migrations are linked with
both labor migrations and what I would call illegal involuntary
marriage migrations. We know that the labor migrations, to
start with, helped to decrease the type of stigma attached to
single, unmarried women migrating.
Once factories started to hire a large number of these
women migrant workers, we see large numbers of women start to
be willing to engage in marriage migrations.
At the same time, we also know that male labor migrants
stimulated female marriage migrants. For instance, in one
village in Henan called ``Ten Mile Inn,'' there was a tendency
to recruit Sichuan men to work in the mines because of the
unwillingness of the local people to continue doing such
dangerous work.
These Sichuan men soon began to arrange for their female
relatives to be married into the families of Ten Mile Inn,
Henan, and by 1996 there were 20 Sichuan brides in the
community. By 1999, the number had doubled.
There is also evidence to show that illegal marriage
trafficking in women spurred the emergence of legal, voluntary
marriage migrations. Again, cases where women end up in a
village far from their homes, and once they regain their
freedom, they then start to arrange for neighbors to come live
in their villages as marriage migrants.
The marriage migration in the economic reform eras have
tended to flow in certain geographical patterns. In general,
they originate in the poorer areas of the southwest and travel
to the rural areas of the richest sections of the eastern
coast, particularly Jiangsu and Zhejiang Provinces. Also,
Guangdong and Hebei are destinations.
As early as 1989, the per capita net income in rural
Zhejiang was more than 400 yuan above the national average, and
approximately 450 yuan above Hunan's level. So we get some
sense of the disparities early in the economic reform, and they
are much greater now.
Economic factors have been critical in the decisions of men
to marry female marriage migrants from outside their
localities. The bride price paid for immigrant women is usually
significantly less than that which is required for local
brides.
In Zhejiang, for instance, the bride price for a local
woman has been going up precipitously since the early economic
reform years. We now know that many of these marriages to local
women are costing over 100,000 yuan.
Now, there are many concerns about this marriage migration
for the status and the well-being of the women. They are using
a traditional method of social mobility that has been used by
women in marriage. In so doing, we find, in many cases, that it
is very difficult for them to have egalitarian marriages.
Many of these women do not have any legal rights to start
with. Their marriages are not registered, in large part because
they break up so easily and there is a high divorce rate of
these marriages in the first years.
Also, there is evidence that these women do not have a
``hukou'' either, which means they do not have rights to land.
The countless reports of wife battering and female suicides in
rural areas suggest that such acts may well be
disproportionately occurring in these types of marriages. We
need more research to show if this is true or not.
It does appear that these women face a great deal of
discrimination and hostility in the communities, with the
result that they cling to their new-found families and lead
fairly solitary existences, refusing to assume jobs in the
public domain.
The relatively hostile environment, coupled with the
absence of nearby relatives, means that, in the main, emotional
and economic support for these woman comes from their husband's
families. But when these marriages are ridden with conflict, as
is often the case, women find themselves without many
resources.
The last thing I just want to point out, is that this is a
situation in which women would benefit greatly from with more
legal knowledge. I think that this would have to be done in
different ways than has been the common practice of NGOs in
China thus far. Particularly important is to get down to the
county level.
Last, I think that with a minimal amount of resources, much
more research by Chinese scholars could be encouraged.
Thank you.
[The prepared statement of Ms. Gilmartin appears in the
appendix.]
Mr. Foarde. Thank you very much. Three fascinating, but
also very sobering, presentations.
We will now move to the question and answer session of our
panel for the remaining 45 minutes or so. I would like to begin
by posing a question, really to all three of you, but
principally to
Margaret Woo.
I understood you to say in your presentation that when
state-owned enterprises fail, women are more likely to be laid
off than men. Is that so, in the first place? Then, if so, can
women employees get access to money paid on their behalf into
pension, health and social security accounts?
Do women make effective use of the labor laws and
regulations that are available to them? How well are they
represented, if at all, by the All China Federation of Trade
Unions and its branches?
Ms. Woo. It is true that women are, by and large, bearing
the brunt of the layoffs. China generally has a 2-year
retraining program, theoretically, for all laid-off workers.
Part of the problem, however, for women workers, is that
once they are laid off, there is also a tremendous amount of
pressure to stay being laid off. Not too long ago, in the
1990s, there was even an official ``return home'' policy for
women, that is, that they were encouraged to stay home.
I think the latest revisions to the Labor Law recognized a
variety of different kinds of labor, including temporary labor.
It is the fear of women's rights groups that, yet again, this
will be the track that most women will be encouraged to take.
How well are they being represented by the Women's
Federation? I have to say that the All China Women's Federation
has changed throughout the years.
In the past, they have primarily been a conduit for
national policies. Increasingly, they are speaking up as
advocates for women, and they have done a tremendous amount in
terms of helping women understand their labor rights.
By and large, part of the problem--in fact, my
recommendation is similar, I think, to Chris' and Rangita's--is
that there is a need to educate and spread the word to women,
as well as to law enforcement professionals what the rights of
women are. So, there are plenty of labor rights issues right
now that women do not even know that they can contest.
Mr. Foarde. You spoke about the Women's Federation. But
what about the All China Federation of Trade Unions, the ACFTU?
Are they doing anything at all for women, or anything special
for women?
Ms. Woo. Yes. The trade union is interesting. Part of the
problem is that few of the violations occur in the state-owned
enterprises where the trade unions are established.
Many of the poor labor conditions happen in the special
economic zones, in the joint ventures, and so on where trade
unions have not been able to get as strong a hold.
So, in fact, the All China Women's Federation is, by and
large, where women go when they do have a problem. In fact, I
would think that what your Commission can do is to encourage
American companies, when they do go abroad to places like
China, that they be open to allowing cooperation with trade
unions or cognizant of labor standards.
Mr. Foarde. Thank you very much.
I would like to open it up now to my colleagues on the
staff. We will start, I think, with Jennifer Goedke, who
represents Congresswoman Marcy Kaptur.
Jennifer, please.
Ms. Goedke. Thank you. I guess my question can go to the
whole panel. In the United States, and in many other countries,
women and children who are victims of domestic violence can
look toward shelters, whether it is through faith-based or non-
faith-based organizations. They can look to shelters for
protection and even temporary housing. Does China have any
similar establishments? If so, what are the legal ramifications
of that?
Ms. de Silva. Right. That is a problem that has been
identified by women's rights advocates in China. But, at the
same time, there are some creative and innovative organizations
that are creating such shelters.
For instance, in Hubei Province, where we have a program, a
local philanthropist donated space in his hotel to shelter
abused women. A group of women's rights advocates and Women's
Federation cadres garnered support from the local Red Cross to
support this shelter.
The important thing is that this idea is growing and there
is an expanding understanding that there is a need for
shelters. Through innovative, localized, and indigenous means,
these organizations have become part of the fabric of women's
rights advocacy in China.
Ms. Gilmartin. But I think it is also important to point
out that until the Fourth World Women's Conference in 1995,
this was a totally submerged issue. There was no public
recognition of this problem and no public discussion.
So, in a society that does not rely heavily on NGOs, these
types of organizations do take a long time to emerge. So even
though they are hopeful indicators here, I think it is very
safe to assume that for most women who suffer domestic
violence, there really is no place to go.
Ms. Goedke. And if I have time for one more question.
Mr. Foarde. You have plenty of time.
Ms. Goedke. How does the legal system help women get access
to better, or slightly improved, health care? Are women using
the courts at all to get, whether it is better health plans at
the workplace, or just even getting access into certain
research activities, or any other areas like that?
Ms. Woo. That is a very difficult question. As you know,
now many of the social services have been privatized. In the
past, if you were affiliated with the ``danwei'' or work unit,
then the work unit was in charge of everything, from housing,
to welfare, to health care. And, of course, the state, with a
special interest with the one child policy, would keep very
close track of a woman's health and monthly cycles.
Today, many hospitals and doctors work on a private fee
basis and the legal system really is not doing that much to
meet that need because it is not something you could sue on.
There are no grounds to sue when it is a matter of the market
failing to provide sufficient health services at reasonable
costs.
Mr. Foarde. Next, I would like to recognize my friend and
colleague, Susan Roosevelt Weld, the general counsel of the
Commission.
Susan.
Ms. Weld. Thank you. I would like to follow up on the
question of popular legal education; educating women on what
their rights are on the books, and also on what their rights
are under certain international conventions that China is party
to.
In your opinion, each of you, in just a few words, what is
the best way to provide that kind of education? How is it being
provided now? How should it be best provided, and could this
Commission consider any ways to promote that sort of education?
Ms. de Silva. As you know, China was one of the first state
parties to ratify the CEDAW at the convention in 1980, and it
was ratified without any reservations, which is an extremely
symbolic act considering that so many developing nations in
Asia ratified with reservations.
Ms. Weld. Does everybody know what CEDAW means?
Ms. de Silva. It is the Convention for Elimination of
Discrimination Against Women which was adopted in 1979.
So, in our opinion, it has been a hugely powerful tool of
advocacy in China, both symbolically as well as substantially.
At different levels, it has remained powerful. At one
level, as you know, CEDAW is not self-executing in the sense
that you have to enact domestic legislation to give effect to
CEDAW.
The LPWRI, the Law on the Protection of Women's Rights and
Interests, which Margaret mentioned, was enacted as part of
China's obligations under Article II of the CEDAW. So, that was
a step in the right direction.
What is important about CEDAW is that it also establishes
that not only should discriminatory laws be abolished, but also
that any laws that might have discriminatory impact should be
looked at very carefully.
So, that is an issue that is huge in China right now, where
women's rights advocates are looking at facially neutral laws
and looking at what is the impact of these laws, and using the
CEDAW as a guideline.
So I feel that CEDAW provides the guidelines for
accountability. It provides a standard to aspire to. Second,
given the fact that there are certain vague and undeveloped,
what Chinese advocates call ``imperfections'' in the law, the
CEDAW provides a good fill-in.
One way of using the CEDAW is to look at local laws and
interpret those local laws in the spirit of the CEDAW. So it
provides, once again, a good benchmark. One example of this is,
as I
mentioned, that domestic violence is not defined very well in
the Chinese laws.
So, given that there is no definition of that, women's
rights advocates are looking at international conventions, and
international declarations. Unfortunately, the CEDAW itself
does not define
domestic violence.
Chinese advocates are looking at the DEVAW, which is the
Declaration on the Elimination of Violence Against Women,
because it is a U.N. declaration and, as a member nation of the
United
Nations, it does have authority, if not binding effect.
So they are looking at the DEVAW and its very broad
definition of domestic violence to tell the courts how domestic
violence is defined. The DEVAW definition includes marital
rape, it includes psychological damage, it includes threats to
the family and to the person, so as to give a broad and wider
interpretation to local laws. The reporting requirements are
also very important.
Obviously, the CEDAW itself does not allow access to the
Committee on the Elimination of Discrimination Against Women by
individuals or groups, but there is an optional protocol that
was passed in 2001 which allows individuals and groups access
to the Committee. Now, China has not signed that as yet, but it
has just come into operation.
We, in our advocacy, talk about how to engage the state in
writing these reports, how it is possible for NGOs to write
shadow
reports to the Committee, how it is important to hold the state
responsible for exercising what is known as due diligence under
the Convention.
The state is not accountable under the CEDAW for any
private acts of violence, but the state can be held responsible
for inaction, for not taking enough notice of violence or not
passing legislation or enforcement mechanisms to enforce
certain laws. So, there are all these levels at which the
CEDAW, we feel, has been very powerful.
Ms. Woo. I just want to quickly follow. There is no
question that CEDAW is a great normative guide for Chinese
grassroots groups to use to advocate for Chinese laws to
formulate substantive rights protection.
But I would also want to emphasize that legal education
should not only teach the substantive rights that women in
China have, or should have, but rather how they can enforce
them.
In other words, it really needs to be funding additional
legal education as to simple steps that women can take to
enforce their rights, whether it is going to the police,
whether it is going to the courts. It needs to de-mystify the
process such that women themselves can take authority into
their own hands.
Ms. Gilmartin. Yes. I would like to also add that often we
see reports in the newspaper. For instance, yesterday there was
a report in the Boston Globe which talked about a woman in
Chongqing Shi using her legal rights.
This may give a false sense that there is a growing
cognizance of people's legal consciousness. But I think it is
important to distinguish between rural and urban settings.
There is such little knowledge in rural areas. I have been
doing a lot of research in southwest China in Sichuan,
Chongqing Shi, and also in Hubei and central China. I find that
many older women are functionally illiterate and that younger
women generally have no understanding of what their legal
rights are.
So, a program that tries to focus on rural situations in
ways that not only are dispensing knowledge to women, but also
at the same time retraining the legal personnel in the county
courts so that they also are much more cognizant of the
situations facing women.
Mr. Foarde. Very useful. Thank you very much.
Let us go on to my colleague and friend, Lary Brown, who
handles labor issues for us. Lary, do you have a question or
two?
Mr. Brown. I do. I have two questions, actually.
The first one: Dr. Woo mentioned in her presentation that
the number of litigated divorces is increasing in China. My
question is, are women getting a fair judgment from this
litigation? Getting into court is only part of the battle.
Ms. Woo. And your second? Or should I just answer the
first?
Mr. Brown. Answer that one and I will come back.
Ms. Woo. It is an interesting question, because it is
certainly hard to generalize and say, for the numbers of
divorces filed for in China, that women are not getting a fair
shake.
I would say, however, that women are having difficulties in
the divorce process, primarily because in the litigation
process there are so many more procedural hurdles. For example,
the latest evidence laws now make the entry of evidence very
restrictive.
I was looking at Women in China Today, and there was a
story in there that talks about how a woman who wanted to sue
under the latest Marriage Law for compensation from her spouse
for a fault-based divorce could not come up with sufficient
evidence to meet the court's requirements.
She finally ended up getting a lawyer to help her and was
thereby a little more successful. So, until we have better
legal services for women, I think they will continue to face
obstacles.
Ms. Gilmartin. I just wanted to add that we have to realize
there is another problem. Women rarely know what their
husband's economic resources are, and there is no way to get
this information. The husband is not filing income tax every
year. Unless she has a bank account number and knows the
specific branch that his accounts are in, she is unable to make
claims on his resources.
So this means, in terms of women getting any fair economic
settlements in divorce cases, that they are extremely crippled.
Ms. de Silva. I think that is why it is so important to
have what women's legal advocates in China call a ``specialized
cadre'' of women's rights lawyers who are able to handle
women's rights issues, because this comes up all the time.
That is one of the biggest barriers to the claims. It is
impossible to trace property that has been transferred, or they
do not have a good awareness of what the husband's property is.
The narratives that the victims tell us, or the narratives
the women's lawyers tell us, are very interesting. There are
ingenious advocacy efforts that are being made right now to get
this evidence.
We have been told all the time about how they go and speak
to the husband's work unit and find out, does he have a
mistress somewhere, and if he has a mistress, do you have the
telephone number? Or they ask the woman to call, to look at the
telephone records and look to see whether there is a number
that has been regularly called.
So, it is just by the sheer willpower of the women's rights
advocates that even the little evidence that can be submitted
can be found. I want to add that it is difficult to subpoena
witnesses and also that witnesses are reluctant to talk. Unless
you have lawyers who are trained as advocates, it is impossible
to get this kind of evidence.
Mr. Brown. Thank you.
My other question is: Margaret Woo mentioned in her
presentation that a very small proportion of the civil cases
are actually related to labor issues. I would ask all three of
you, if you could, what is it going to take to increase that
proportion?
Ms. Woo. Oh, that is a tough one.
Mr. Brown. You hinted at different things. But I would kind
of like to hear your broader perspective on that.
Ms. Woo. I will have to think about that. That is very
difficult. There are procedural, systemic obstacles as well as
the broader political obstacles. So, it really would be a two-
prong process, I would assume.
I did mention the procedural obstacles, is the fact that
many women workers do not have signed contracts, so it is
difficult for them to sue. There is also a very short statute
of limitations period. I think it is, like, 60 days, where they
have to file with the Arbitration Board if they want to contest
anything. So there could be laws that could be changed in that
form or fashion that would be very useful. But the other, more
kind of politically sensitive, would be really to push a
greater recognition or give greater priority to rights.
I think we have wonderful rights on the books right now to
protect women, but it is unclear what happens to these rights
when they run up against other goals of the state, or other
rights within the legal system.
So, I think one way, really, would be to push for greater
clarification as to what the priority of these rights are, and
thereby encourage people to understand that this is, indeed, a
right that the state is supporting and will back through the
litigation process.
Ms. Gilmartin. Yes. A second factor, I think, is if the
discourse, whether it is from the All China Women's Federation
in their journals or in other TV/media types of presentations,
started to address these problems so that women felt there was
more public support and they had more understanding of the
possibilities, I think that you would see some shifts. Right
now, the All China Women's Federation is really focused on very
different areas of pursuit.
Mr. Foarde. Let me recognize our colleague, Andrea Worden,
who is a senior counsel working on grassroots legal reform
issues, if she has some questions.
Ms. Worden. Thanks, John.
I have a two-part question that I think probably makes
sense for Rangita to address first. Then I would also love to
hear from the rest of the panel.
In addition to legal aid centers, I am curious what other
sorts of NGOs exist in China that focus on women's rights
issues?
Ms. de Silva. Right. I think one of the most important
organizations right now in China working on these issues is the
All China Women's Federation. It is a quasi-non-governmental
organization.
But what is interesting about this network, is that it has
these many layers and goes right down to the village and the
county level, so you have a village-level Women's Federation
offices, the county-level office, and then the provincial-level
office. Depending on the seriousness of the case, it might come
up to the provincial-level Women's Federation office.
What is interesting about these organizations, is there is
a
discreet group of lawyers whom they call ``falu gongjiao,''
paralegals, working for these organizations. They are under the
rubric of what is known as full-time rights protection cadres
of the
Women's Federation.
They are the ones to whom women first come with their
claims. These women's federation offices have now got the
status and the clout to employ volunteer lawyers who belong to
private law firms who volunteer their services.
What is exciting about this, is that by volunteering their
services, maybe at the beginning rather reluctantly, they have
now realized how important and how fascinating an area of law
this is and now there is this kind of enthusiasm to volunteer
more of their services. So, it is almost contagious.
What is important about some of the seminars that we do is
not only to broaden the capacity of a rather discreet and small
group of volunteer lawyers, but also to capture their
imagination, to capture their attention to the importance of
these rights and these new areas of law and new areas of rights
protection.
So we find that there is a growing group of private
attorneys who are volunteering their services to the Women's
Federation, and that is growing. They are doing more and more
cutting-edge work.
Then the Women's Federation cadres do the intake of the
cases, and then they see those cases. What they can handle,
they will handle, which is just talking to an administrative
official or giving legal advice. When it comes to very
important cutting-edge work, they will then contact the lawyer.
Ms. Woo. Actually, I think Chris would probably be able to
speak more in detail about this, but there is a whole growing
body of women's studies in departments and schools around the
country and that is definitely a result of the Fourth World
Conference on Women, and a result of the various United States
and Chinese
exchanges. That group of very active women has been pushing
Chinese reforms for greater protection of women's rights.
Ms. Gilmartin. Yes. To add a little bit more besides the
women's study centers, there are also hotlines in the large
cities that have been very effective. Sometimes they have one
specific day a week where they just deal with legal issues
regarding women, and they have legal specialists on board.
They then will publish some of the most interesting issues
that they're dealing with so that there will be a great deal of
dissemination of some of these cases.
I think it is also important to talk about the role of the
Ford Foundation, too, in terms of providing support for legal
knowledge being disseminated. At Wuhan University, for
instance, a very
important legal center was set up.
Lawyers were paid to provide services free to women. I
spent a lot of time talking to some of those lawyers about the
kind of cases that they took up that never would have been
handled if that service had not been available.
Ms. de Silva. I just want to add to that. There is, as she
pointed out, a burgeoning feminist consciousness in China which
I find is very exciting. Right now, the Ford Foundation is
funding a women's rights research center at the Chinese Academy
of Social Sciences.
As a seminal project of this group, we are taking
international and American feminist theory experts to teach a
course on gender and the law. That will feed into actualizing
some of these laws and theories because it is going to be
feminist theory as put into practice in China. That is going to
be very exciting.
As she pointed out, hotlines are very important. The
hotlines run by these women's organizations are more accessible
than the 110 hotline that the police use, and also law schools
increasingly are building legal aid clinics as one way of
training their lawyers and providing legal services.
Ms. Worden. I have a quick follow-up. Besides the All China
Women's Federation, I am wondering if there are legal aid
centers, legal aid clinics, or NGOs working on women's rights
in western China, for example, in Tibet and Xinjiang.
Ms. Woo. Yes, that is hard. Well, I do not know. You raised
a very, very good point. A lot of research generally focuses in
the eastern part of China and the more accessible areas. For
the west, I cannot give you particular data. I do know that law
schools, say for example in Sichuan, have very active legal aid
clinics. Also, in Guizhou as well. So there are legal aid
clinics affiliated to law schools in the western area.
But, overall, however, the western area falls behind the
coastal region in terms of the poverty index. I think the
average person earns half of what people in the east would
earn, so the availability of legal aid there is much, much
less.
Mr. Foarde. Let me recognize Selene Ko, our senior counsel
for commercial rule of law development.
Ms. Ko. Professor Woo discussed in her presentation the pay
disparity and the lack of female managers in the private
sector, as well as the pressure to stay home when women leave
the state-owned enterprises in the public sector.
Given the rapidly developing private sector in China, are
there any official or unofficial efforts that are aimed
primarily at improving women's status in the private sector in
general, or specifically at improving their availability to
take advantage of this growing sector of the economy? This is
for any of you to answer. Thank you.
Ms. Woo. I know a little bit about it. I cannot profess to
be an expert in this area, but I know of some programs out in
the poorer regions, where the government is doing what the
World Bank has done in many poverty-stricken areas, which is to
give what is called ``micro-enterprise credits'' to women.
But, also, they would sometimes tie it to fertility
policies. That is, you could get a credit if, in fact, you are
following the family planning policies. So, the state is
benefiting, and in the eyes of many women, too, that they have
family planning, as well as some micro enterprise credits. It
has been fairly successful. But, again, I do not know it very
well, so I cannot profess to be an expert in that.
Mr. Foarde. Keith Hand is another senior counsel, who works
on national level legal reform issues.
Keith.
Mr. Hand. My question is really to the whole panel. I would
like to get your sense for how accurate the Chinese media is in
reporting on women's issues, and how much latitude the
authorities tend to give the media, and also NGOs, to
aggressively report on these issues.
Ms. de Silva. I think most of the women's rights advocates
in the women's rights organizations that we work with, both in
Beijing, in Hebei, in Hubei, and in Hunan, all use the media to
their advantage. They actually have learned to manipulate the
media to their advantage.
We have heard of cases where the women's rights lawyer will
take the newspaper with them when they go to interview the
client, and that has worked successfully in most cases.
There are a couple of cases where the over-interference of
the media has resulted in decisions that have not been always
fair to the woman, just because the courts have seen the press
coverage as interference or meddling with the court and judges
have thought the stories are overly harsh or overly critical.
But, overall, the media has been a very powerful tool in
advancing women's rights at different levels.
One issue that I wanted to talk about is that there is a
lot of exciting advocacy work going on in the area of battered
women and self-defense, where women's rights advocates are
using cutting-edge theories that have resonated in the United
States and in Canada in very creative and localized ways.
For instance, the battered women's syndrome, the learned
helplessness theories all grew here in the United States. But
they have been identified in China, where Chinese attorneys are
using a gender-neutral critique to look at the self-defense of
provocation, and saying that women and men think and act
differently.
So provocation, which demands that the threat be imminent,
is really unfair to women. So, they are using some of the
critiques and the discourses that have grown and have had
success in this part of the world in a very creative, localized
way.
Again, it is the tip of the iceberg. I am not trying to
maintain that this is happening all over China. But there is
this kind of very sophisticated thinking that is developing and
being made use of in China. The media is using this, too. I am
coming to the media. Yes. So the media is publicizing these
creative advocacy decisions.
Ms. Woo. The media is interesting in China because every
time I open up the ``Zhongguo Fazhibao,'' which is the China
Legal News, or even Women in China, I would see stories about
the ``Qinguan,'' the wonderful judges who acted judiciously to
protect women's rights.
So, in part, the media is one way of advocating women's
rights, but also advocating for the courts, as a kind of
propaganda for the state of the importance or the legitimacy of
the courts.
One thing that the media does that I find very exciting is
that it will conduct investigative reporting on local
officials. I am sure, in your prior panels, you have focused on
this issue, that China is a huge country and that the central
government is having a hard time keeping abreast of local
provincial problems.
Sometimes when litigants and women have problems getting a
fair shake in the local courts, they will go the media and
national attention can sometimes bring correct results.
Ms. de Silva. Given that there is no system of precedent in
China, I think the media is a very good way of educating
people.
Mr. Foarde. Susan, do you have a final set of questions for
our panelists?
Ms. Weld. I do.
Mr. Foarde. We are running out of time, but I am sure you
have a question or two, so please go ahead.
Ms. Weld. This is something I have been curious about for a
long time. It is really the balance of power inside the hu
unit. In many instances in the rural areas, land rights are
owned by the hu, or household.
Who really controls the economic nut of an agricultural
family? Who controls it? Are there any laws that reach inside
the household to see that women get their fair shake in that
sort of a situation?
Ms. Gilmartin. What I am aware of is very different
patterns in China. In some areas, men are totally out of
agriculture. In other areas, they pretty much dominate
agriculture, so you are going to see different patterns there.
What women report a lot of times is that the
decisionmaking--it is not the legal rights, but the
decisionmaking--around the land often is male, even if they are
doing most of the labor. So, when women are working the land,
it does not necessarily mean they are in full control in
deciding about those situations.
I just have not read that much--maybe Margaret has read
more--where people have gotten to look at some of the legal
issues in terms of land use and women going to court. I just
have not seen anything on this.
Ms. Woo. In terms of land use rights, I have seen some
cases in which women tried to sue to get their rural land
rights recognized as a collective body. It is often difficult
for rural women, uneducated rural women, to act individually to
challenge an authority like the village head, or challenge the
authority of the household, to recognize their rights.
Collective action actually has been quite useful for women in
that regard.
Mr. Foarde. We have got some time. Do you have another one?
Ms. Weld. I get to go further! It seems to me from your
testimony that one problem is bargaining power. In order to
solve problems of bargaining power for women, especially in the
rural areas, collective action, as you said, Margaret, is one
way.
But what are the other ways? What other kinds of
organizations or entities can put their thumb on the balance of
power in favor of women so that they can begin to get their
rights under law,
domestic law, or international conventions?
Ms. Woo. Well, actually, getting back to the Women's
Federation, I would encourage some coordination with the
Women's Federation because they have changed so much, I think,
in the last 10 years.
But from the lawyers that I have talked to, when the
Women's Federation gets involved in the litigation, if they
actually send a representative to court, the judges will
listen. So the Women's Federation has the potential to
transition into being advocates for women.
Ms. Weld. So for this Commission, what does that suggest?
Ms. Woo. For the Commission?
Ms. Weld. Yes.
Ms. Woo. In general, I certainly would encourage greater
coordination, greater contact, and greater support. So, if it
would mean either funding or supporting groups in the United
States that can work with both the Women's Federation as well
as more independent women's groups in China, that would be
terrific.
I guess my basic point is not to leave the Women's
Federation out of the picture. Oftentimes, the tendency is to
say, we have got to promote civil society in China, that trade
unions, and the Women's Federation, are really arms of the
state, and so we really do not want to deal with them. That
would really, I think, give the Women's Federation short
shrift.
Ms. Gilmartin. I also would like to see creative ways of
funding more research out of the women's study centers at
universities because the way that these women's studies center
really exist is primarily through research and only
secondarily, if at all, through teaching women's studies
curricula. Funding obviously is highly competitive for any
research project.
I do feel that finding ways of making more funds available
for these type of projects, which they would be very interested
in undertaking, not only brings more knowledge into public
awareness, but I think in so doing helps a variety of
government and NGO agencies to be much more alert and cognizant
of these issues.
Ms. de Silva. A very active women's rights organization in
Beijing has recommended introducing gender equality into the
school curriculum, and I find that a very interesting
proposition, to start them on it early.
Another recommendation that has been made to us by both the
NGO sector, the truly independent women's rights groups, as
well as the Women's Federation groups, is to network locally
among these groups. That is important.
They do not speak to each other very well, so it is very
important to find a mechanism to bring these groups together.
One program that we hope to implement at the end of the second
phase of our program is to have this networking conference
where you get independent advisors, and more Women's Federation
cadres to come together and think of these common issues. There
is no doubt that they are all sincere about their commitment to
these issues. It is a different approach.
Ms. Woo. Just to reemphasize, the focus definitely needs to
be at the local level as opposed to the national level. I think
the national level, you would tend to get more of the status
quo.
So, in other words, it is great to have coordination
between the truly independent NGOs and the Women's Federation,
but some of the more exciting things that I have seen happen at
the local level.
Ms. de Silva. That is so true. When you go down to the
grassroots level, there is no difference between the
independent voice and the voice of the Women's Federation
cadres, because they get that authenticity, get that passion
for the work that they are doing and the use of law and
processes.
Mr. Foarde. We have come to the end of the time we have
today, since we have to give up the room to another group.
On behalf of the Members of the Congressional-Executive
Commission on China, I would like to thank Margaret Woo,
Rangita de Silva, and Christina Gilmartin for spending time
with us this afternoon and sharing your expertise with us.
I would like, also, to remind everyone here that the next
issues roundtable will be 2 weeks from today. It is an open
forum. An announcement will be going out later in the week
about signing up, and the rules. But it will be at 2 p.m.,
again in this room, 2200 here in Rayburn.
Thank you all very much for coming. Thanks to our panelists
and to our staff colleagues for participating. We will gavel
this issues roundtable to a close. Thank you.
[Whereupon, at 3:32 p.m. the roundtable was concluded.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Rangita de Silva
february 24, 2003
introduction
Over the last few years The Spangenberg Group under the auspices of
the United States Department of State\1\ and the Ford Foundation has
conducted research, provided training and technical assistance to legal
services organizations and women's studies centers in China,
particularly on issues concerning low-income women. Our programs are
unique in that they are aimed at putting women's rights into action in
concrete ways. Working with local programs, we identify areas of
women's rights reform, which are pushing the boundaries of the law.
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\1\ Future projects will be funded, in part, through grant Number
S-LMAQM-03-H-0009. The opinions, findings and conclusions or
recommendations expressed herein are those of the Author and do not
necessarily reflect those of the Department of State.
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Although, facially equitable laws prohibiting discrimination in
employment, property ownership, inheritance, marriage and divorce have
been enacted,\2\ the difference between equality in law and equality in
fact, lies with the implementation of those laws. The lack of
corresponding enforcement mechanisms is a major drawback in the
effectiveness of these laws.
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\2\ Women in the People's Republic of China enjoy equal rights with
men in all spheres of life, in political, economic, cultural, social,
and family life. See P.R.C. Const., arts.33, 34, 48,49 and The Law on
the Protection of Women's rights and Interests ( LPWRI) of 1992. The
LPWRI reflects China's desire to fulfill its state's parties
obligations under the Convention on the Elimination of All forms of
Discrimination Against Women ( CEDAW). Women enjoy equal rights to
employment with men. See Labor Act of the People's Republic of China,
ch.11, Sec.13 (1994).
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I wish to speak to you about some areas of the law on labor,
violence and property that deeply impact women in China, the strengths
and weaknesses of these laws and the efforts made by some creative
women's rights advocates, and organizations to overcome the challenges
posed by some of these laws. Finally, how with the support of the State
Department and the Ford Foundation, The Spangenberg Group has been
assisting in some of these programs.
women and labor
Although, since China opened its doors to a program of economic
reform, there is much progress for women seeking employment outside the
home, many women find that the very laws designed to protect them
subject them to discrimination and disadvantage in the labor market.\3\
It is evident that by emphasizing the biological differences between
men and women, the law limits women's employment opportunities, and
places an added burden on employers who hire women. An emphasis on
women's unique reproductive capabilities, and their roles as child
bearers and rearers have the potential to perpetuate gender segregation
in the workplace and relegate women into lower paying, traditionally
female tasks.\4\
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\3\ Women's employment opportunities are in certain instances
limited by laws that prevent them from performing certain physically
arduous jobs. Such legislation include generalized
statutory laws, specific regulations, local regulations, and
administrative rules promulgated by government departments. Women are
altogether prohibited from engaging in work that is considered
particularly hazardous, such as mining on hills or underground,
scaffolding work, work that involves logging timber, high altitude work
that entails continuously carrying the weight of twenty kilograms or
carrying over twenty-five kilograms at different intervals, and other
work categorized as physically intense. See Labor Act of the People's
Republic of China, Ch. VII, arts. 59-63 (1994). Further, women laborers
who have been pregnant for 7 months should not be arranged for night
shifts or overtime. If women find it difficult to work, they can apply
for prenatal leave. The salary during this period should not be below
75 percent of the standard salary. Furthermore, pregnant women who are
unable to complete the original work can on orders lighten their work
assignments or be asked to be assigned to other work. See State Council
of the People's Republic of China, Provisions of Labor Safety and
Health for Women Workers, art.7 (1988). Regulations have also been
promulgated to provide special on-the-job facilities for women,
including health care rooms, anterooms for pregnant women, feeding
rooms, nurseries, and kindergartens. See State Council of the People's
Republic of China, Provisions of Labor safety and Health for Women
Workers, art. 11 (1988). The law also directs special attention to
women's sexuality and the gendered differences between men and women.
Under Article 60 of the Special Protection for Female Staff and Workers
and Juvenile Workers, ``It is prohibited to arrange for female staff
and workers during their menstrual periods to engage in work high above
the ground, under low temperature, or in cold water or work with Grade
111 physical labor
intensity as prescribed by the State.''
\4\ The State Council has promulgated the Regulations on the
Arrangement of Redundant Staff in State-Owned Enterprises, which allows
employees at state-owned enterprises to apply for
resignation or early retirement or to terminate labor contracts by
proper procedure. These regulations also provide for a 2-year leave of
absence for female employees during pregnancy or breast feeding. By
giving women the option of early retirement or a 2-year leave of
absence after childbirth, employers can request that women workers
retire early. Further, female workers are
required to retire at age 50 (certain female government officials
retire at age 55), while male workers are allowed to remain employment
until age 60.
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On the other hand, while greater mobility has resulted in greater
opportunities for women, many migrant women workers suffer exploitation
and discrimination.\5\ Further, laws that might improve working
conditions\6\ and provide work-related benefits, are under-enforced and
the capacity to monitor and enforce these laws is weak.\7\
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\5\ A case which illustrates this is the case of Ms. He and 24
Migrant Workers. Ms. He and 24 other migrant women workers from Laishui
County, Hebei Province, China, worked for Beijing's ``H'' garment
factory from 1995 to 1997. The women often worked overtime under
extremely harsh conditions. They were routinely beaten and insulted by
their bosses. When wages were not paid at the end of each month, some
of the women complained to the district labor supervisory committee.
The committee took no action. A group of women workers then petitioned
governmental departments for aid. When the Centre for Women's Law
Studies and Legal Services of Peking University took over the case, the
lawyer handling the matter contacted the department in charge of ``H''
Garment Factory and its controlling company several times. The
department responded that, although it is a state-owned enterprise, the
garment factory is operated by a private party to whom the state-owned
enterprise contracted the business. When the lawyer contacted the
manager of the factory, he challenged the women to bring suit in court.
When the lawyer attempted to initiate a suit in court, the court
informed her that she must first bring her labor dispute to the Labor
Arbitration Department. When the lawyer petitioned the Labor
Arbitration Department, however, she was told that the issue of payment
must be settled in court. When the lawyer returned to court she was
told that this issue of payment for labor was not clearly defined in
the law and that there was insufficient legal basis to file the case.
It was only after the intervention of higher authorities that the
Arbitration Committee of the Municipal Bureau of Labor agreed to hear
the case. Throughout the process, legal representatives for the garment
factory failed to appear. In the face of the defendants' open defiance
to the law, the Arbitration Committee passed a verdict by default. The
Committee held that the factory's controlling company should pay
160,000 yuan to the women workers in unpaid wages. The factory then
refused to comply with the verdict. The legal aid lawyers persuaded the
court to reopen the case and used the media to gain public support.
Ultimately, the migrant women workers were awarded 170,000 yuan as back
wages and economic compensation. It took three years to completely
resolve the case. See Centre for Women's Law Studies and Legal Services
of Peking University, A Research Report of the Legal Aid Cases
Undertaken by the Center for Women's Law Studies and Legal Services
Under the Law School of Peking University 9-11 (1996-2000).
\6\ The employer is prohibited from terminating the contract of
women workers during pregnancy and nursing. Law Safeguarding Women's
Rights and Interests of the People's Republic of China, ch. IV, art 26
(1992). This is further emphasized in regulations issued by the Labor
Department: `` The labor contract with women employees should not be
terminated during their pregnancy, maternity leave and breast feeding
period even though the contract has matured. Instead the contract
should be prolonged to the end of the breast feeding period.'' Ministry
of Labor of the People's Republic of China, Response to the Termination
of the Labor Contract with Women Employees During their Pregnancy,
Maternal leave and Breast Feeding Period in the Foreign Investment
Enterprises, No.21, art.4 (1990). The Labor Law of China provides that
all laborers in enterprises within the nations boundaries enjoy
reproduction insurance according to law as long as they have signed a
labor contract with the employers. See Labor Act of the People's
Republic of China, ch. IX, Sec.73 (1994). Further, every female
employee shall be entitled to leave after childbirth for a period of
not less than 90 days. Id at ch. VII, sec. 62 (1994).
Further regulations have been promulgated to provide special on-the-job
facilities for women, including health care rooms, anterooms for
pregnant women, feeding rooms, nurseries, and kindergartens. The labor
law also provides special consideration for pregnant or lactating
women. For example, the time of ante natal examination of pregnant
women employees should be treated as work time and employers should
arrange for some rest time for pregnant employees during work time, and
breast feeding mothers should be given thirty minutes for breast
feeding twice a day. An additional thirty minutes will be added during
the break for each baby. The time spent on breast feeding and travel
time to the nursery should be treated as work time. See State Council
of the People's Republic of China, Provisions of Labor Safety and
Health for Women Workers, art. 9 (1988). Also, a pregnant woman worker
may receive prenatal examination during her working hours and this time
spent on the examination will be included as time spent on work. Id at
art.7. Apart from the 90 days of maternity leave, 15 more days will be
added for anyone who has a difficult labor. Id.at art.8. The unit may
also assign a pregnant woman worker to any physical work falling within
the Grade Three level of physical intensity as stipulated by the State.
The work hours of a pregnant woman worker cannot be extended, nor can a
woman over 7 months pregnant be allotted night work. Based on the
hospital recommendations, the work unit should reduce the intensity of
labor performed by pregnant women workers. Women workers over 7 months
pregnant must be given adequate rest during the work day. Id. at art 7.
\7\ Furthermore, private enterprises adopt rules known as rules of
the enterprise, which often override Chinese labor legislation and deny
payment of social insurance benefits. Migrant women often face greater
exploitation, including unpaid overtime and unsigned contracts.
Consider the following case: `` Starting from 1995, 36 women peasant
workers came in succession to work in a certain fur processing factory,
and signed work contract separately with the factory. In 1996, they
signed another work contract with the factory collectively, on a term
of 5 years. The contract would expire on December 1, 2000. On August 5,
1998, the factory unilaterally terminated the work contract, with the
reason that the factory had been adversely affected by the
macroenvironment of the national economy, and there was a drastic
decrease of the production materials and a redundancy of workers. As a
result there was a serious problem in the management of production. In
order to protect the employment of urban workers, the factory decided
to terminate the work contract with peasant workers. According to the
number of years from the time when they became contract workers to the
time when their contract was terminated, the factory would pay an extra
months wage for each full year to the women peasant worker as
compensations. While the women peasant workers were still working in
the factory, the factory had deducted a certain amount of money from
their monthly wages on the ground of paying for the insurance of their
old-age pensions, unemployment insurance, and medical insurance. But
the factory did not really pay this amount of money for the workers
insurance, but saved it for other purposes. After the termination of
the work contract, the factory returned to the women peasant workers
the deducted money for the insurance of old-age pension and
unemployment insurance, but did not return the deducted money for
medical insurance. The 36 women workers did not accept the factory's
unilateral decision to terminate their work contract, and in August
1998, they made a petition to the Labor Arbitration Committee. As
attorney for the women workers, the lawyer from the Centre proposed to
the Labor Arbitration Committee that it was illegal for the factory to
terminate unilaterally the work contract and to pay the economic
compensation according to the number of years since they had become
contract workers. The factory should pay the compensation according to
the number of years since they had actually worked for the factory. It
was a disguised form of embezzlement if the factory refused to return
to them the deducted money meant for medical insurance for the women
workers. After the hearing, the Arbitration Committee for Labor
Disputes supported the demand of the women workers, and passed a
verdict on October 29, 1998, ordering the factory to pay another 40,000
odd yuan to the 36 women workers as their economic compensation. But
the verdict did not support the women workers demand for various social
insurance benefits. Thus with the termination of their work contract,
the women workers had lost their various social insurance benefits.''
See A Research Report of the Legal Aid Cases Undertaken by the Center
for Women's Law Studies and Legal Services Under the Law School of
Peking University ( 1996-2000).
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women and violence
Domestic violence
The revisions made to the Marriage Law in 2002 are among some of
the most significant changes made to the law in China.\8\ These
revisions include domestic violence as a ground for divorce and allow a
spouse in a divorce proceeding to seek compensation from the other
party if he/she is at fault due to certain specific grounds including
domestic violence.\9\ The re-introduction of fault into divorce is seen
as an attempt to grapple with the feminization of poverty on divorce.
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\8\ On April 2002, the Standing Committee of the Ninth National
People's Congress, China's highest legislative body passed the long-
debated and much awaited amendments to the Marriage law.
\9\ Civil compensation for fault can be awarded if there is a
finding of: bigamy, co-habitation with another person, subjecting
another to domestic violence and abandonment of family members. See
Article 46 of the Revised Marriage Law.
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Despite these groundbreaking reforms in the law, Chinese women's
rights advocates have argued that in the absence of a clear definition
of domestic violence, it will be very difficult to institute an action
for civil compensation for domestic violence. Domestic violence is not
broadly defined to cover threats of violence to the woman and/or her
family members, psychological damage, sexual abuse and rape within
marriage. Also, the question arises whether a claim for compensation
can be made during the existence of marriage.\10\ Due to the discretion
left to the judges, similar cases can be decided differently.
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\10\ Even though civil compensation for abuse is available at
divorce, it is not clear whether it is available during the existence
of a marriage. Due to efforts of legal services lawyers there is at
least one instance in which a court has granted compensation during an
ongoing marriage. Zhang Xiulan had suffered severe burns when her
husband Wang had poured gasoline on her body and lit it. When Zhang's
elder sister reported the case to the local security authority, the
local authority refused to file the case calling it a family matter.
The court on the other hand requires forensic authentication of the
burns in order to file the case. With the cooperation of the women's
federation of the district and the efforts of the legal services lawyer
from the Beijing Centre, the authentication was processed. On the basis
of this, a public prosecution was initiated and the legal services
lawyer instituted a civil suit for compensation for physical damages.
At the first instance, the court dismissed the civil suit on the basis
that the parties were still married and civil compensation can be
awarded only at divorce. After much negotiation, the judge awarded
80000 yuan to Zhang by way of compensation. This is one of the first
known awards of this kind. See Report and Summary in Respect of the
Sub-Project of Legal Assistance Against Family Violence. Centre for
Women's Law Studies and Legal Services of Peking University, July 2002.
---------------------------------------------------------------------------
Women also find it difficult to meet the high standard of proof
required under the criminal law to hold batterers criminally
responsible. In order to invoke Article 260 of the Criminal Law on
Crimes Disrupting Marriage and Family, a woman has to prove that the
crime was particularly ``evil'' and the abuse was ``continued and
consistent.'' \11\ On the other hand the crime of ``intentional
injury'' \12\ requires the forensic authentication of the injury and
that the injury amount to at least a ``flesh wound.'' In the absence of
a clear definition of what constitutes domestic violence, it is most
often interpreted as an injury that results in severe bodily harm,
broken limb, loss of eyesight etc. Most courts and prosecutors will not
address what is considered a minor physical injury as domestic
violence. Another reason why the revisions to the marriage laws might
remain largely symbolic is the fact that the public security bureaus
often hesitate to intervene in family disputes.\13\ Thus, without
corresponding intervention procedures to make it mandatory for public
security personnel to intervene in domestic violence issues, it will be
very difficult for women to gather forensic authentication and proof of
domestic violence, in order to seek protection during marriage or civil
compensation at divorce.\14\
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\11\ In a certain case, 13 instances of abuse during a 20-year
marriage was considered insufficient to prove a crime of evil. The
court made the adjudication of the first instance, deeming, ``the
private prosecutor and the accused have been married for over 20 years
and often quarreled because of their different natures. The fact that
the accused beat the private prosecutor 10 times has been proved. But
the assault and battery of the accused occurred only by accident, it
was not of regularity, continuity and consistency and there was a good
reason for it. The accused had no intention to abuse the private
prosecutor. Thus, the conduct of the accused has not constituted the
crime of abuse.'' See Report and summary in respect of the sub-project
of legal assistance against family violence. Centre for Women's Law
Studies and Legal Services of Peking University, July 2002.
\12\ Article 234 of the Criminal law of PRC.
\13\ ``Ms Wei , female aged 34, physically and mentally abused by
her husband during the dozen years of their marriage. On September 18,
1998, after a dispute between the two, the husband poured gasoline on
her body and lit the fire, with the result that several parts of Ms.
Wei's body and face were severely burned. After this incident, the
elder sister of Ms Wei reported the case to the local public security
authorities, but the latter refused to take this case, on the ground
that it belonged to the category of family dispute. . . . After
accepting her request for legal aid services, the Center's lawyer went
to the jurisdictional police station to report the case, and pointed
out to them that the nature of this case had already formed the crime
of intentional injury, and it had brought about serious consequences.
The police station could not just reject the case on the ground that a
family dispute was beyond the limit of legal restraint. Yet people at
the police station still argued that if her husband had been arrested,
who would pay the hospital bills for her medical treatment? With this
as a pretext, the police station still refused to make necessary
investigation of the case. With the help of the district federation of
women, the lawyer made an application to Beijing Municipal Forensic
Institution for Scientific and Technological Appraisals, to obtain a
forensic appraisal of the degree of Ms Wei's injury and disability. The
appraisal concluded that 30 percent of Ms Wei's face, upper limbs, and
torso had suffered level 2 or level 3 severe burns. About 10 percent of
her body had suffered level 3 severe burns. The degree of injury was
classified as that of serious injury. With this forensic appraisal, the
lawyer went to the jurisdictional police station again to demand the
law enforcement authorities to take forcible measures against the
perpetrator of this crime. Yet the police station was still indifferent
to this case. They asked the lawyer instead to look for a witness, and
when the lawyers found the witness, they again laid aside the case, on
the ground that the person in charge of the matter was absent. As a
last resort, the lawyer reported the case to the District Bureau of
Public Security. Under the latters supervision and urge, the
jurisdictional police station eventually arrested the husband of Ms
Wei, and filed this case for investigation and prosecution.'' See A
Research Report of the Legal Aid Cases Undertaken by the Center for
Women's Law Studies and Legal Services Under the Law School of Peking
University (1996-2000).
\14\ Many women's rights advocates and women's legal services
lawyers in China have drawn attention to the need to promulgate special
sanctions and enforcement mechanisms such as restraining orders and
mandatory arrest to control family violence. See Report and Summary in
respect of the sub-project of legal assistance against family violence,
Centre for Women's Law Studies and Legal Services of Peking University,
July 2002; Summary of the Conference on Combating Domestic Violence
against Women and the Commemoration of the Second Anniversary of the
International Day for Elimination of Violence against Women, China Law
Society. Certain provinces such as Shaanxi Province and Hunan province
have passed innovative laws to address family violence. Shaanxi
province has passed the Methodologies of the Implementation of the
LPWRI and Hunan Province has passed the Decision to Protect and Stop
Family Violence which includes sexual abuse as a form of domestic
violence.
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Marital rape
The Chinese law does not expressly recognize or exclude marital
rape.\15\ There is a general recognition that where sexual intercourse
occurred without the consent of the woman, (1) in forced or purchased
marriage, (2) during separation, or (3) after an application for
divorce has been filed, it could amount to rape or a crime of
intentional injury.\16\
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\15\ Article 236 of the Criminal law states: (1) Whoever by
violence, coercion or other means rapes a woman involving one of the
following circumstances is to be sentenced to not less than 3 years and
not more than 10 years of fixed-term imprisonment: (a) rape a woman or
have sexual relations with a girl where the circumstances are odious;
(b) rape several women or have sexual relations with several girls; (c)
rape a woman in turn with another or more persons; (d) cause the victim
serious injury, death or other serious consequences. (2) Whoever has
sexual relations with a girl under the age of 14 is to be deemed to
have committed rape and is to be given a heavier punishment.
\16\ Some scholars have recognized marital rape in specific
instances, for example, when the husband, (1) forces wife to have sex
with others; (2) aids and abets others in raping wife; (3) rapes his
wife under mistaken identity; and (4) when husband and wife and living
apart or in the process of divorce. Theory and Practice of Protection
of Women's Rights and Interests in Contemporary China, Investigation
and Study on the Enforcement of U.N. Convention on the Elimination of
all forms of Discrimination Against Women in China. The Center for
Women's Law Studies and Legal Services of Peking University, at 468.
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property rights
The law provides that during the subsistence of marriage, neither
side can transfer property without the consent of the other party.\17\
However, often in cases involving domestic violence or adultery leading
to divorce, spouses in China attempt to transfer property to a third
party, so as to avoid equitable distribution of property.\18\ Many
women find it difficult to trace the illegal transfer of property made
by their spouses. Married women are frequently unaware as to the full
extent of their husband's income or property. Given certain procedural
difficulties, it is very difficult to gather real evidence on property
transfer or compel witnesses to testify as to concealed property. The
challenges surrounding proving the ownership or concealment of property
constitutes an enormous burden to women in China.
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\17\ According to Article 47 of the Revised Marriage Law, during
the subsistence of marriage, neither side can transfer property without
the consent of the other party. Further, if a party transfers property
held in common to a third party, such transfer is invalid. If the third
party was acting in good faith, the spouse transferring property should
compensate the other spouse for losses incurred. Further, Article 102
of the Civil Procedure Law provides that, ``The side who has illegally
concealed, transferred and refused to hand out the shared properties of
both sides, or illegally sold or destroyed the shared properties should
be designated a smaller share or even no property.''
\18\ Ms. Gao and her husband got married in 1981. At the time they
were both ordinary workers. In 1988, Mr. Gao went into business and
made a success of it and amassed a lot of money and private property.
As his wealth grew he began adulterous relationships with other women.
Even though Mr. Gao told Ms. Gao several times that they had a million
yuan in savings, he never told her where this was money was saved.
Despite his wealth, Mr. Gao was very stingy toward his wife and child.
However, Ms. Gao suspected that he spent lavishly on his extra marital
affairs. When Ms. Gao confronted him with this information, he beat her
savagely. In fear, Ms. Gao and the child went to her parents home.
While she was at her parents, Mr. Gao filed for divorce. When Ms. Gao
visited her husband's office to ask him for child support, by chance,
she found a contract for a transfer of a restaurant owned by them. She
sought advice from a legal services organization to seek equitable
division of property. See Centre for Women's Law Studies and Legal
Services of Peking University, A Research Report of the Legal Aid Cases
Undertaken by the Centre for Women's Law Studies and Legal Services
Under the Law School of Peking University (1996-2000).
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Distribution of property at divorce
Despite provisions in the law protecting women's property
rights,\19\ the reality is that, property division on divorce will
depend largely on availability of housing units. Frequently, in present
day China, women are faced with the untenable situation of sharing a
bedroom in the ex-husband's apartment.\20\ This can and has caused many
serious problems such as increase in the incidents of domestic
violence. Sometimes sharing housing with a former spouse is allowed by
the court, as temporary housing for a stipulated period of time or
until the woman remarries.\21\ Further, the Supreme People's Court has
regulated that a house that cannot be divided should be assigned to one
party, and that party should compensate the other party for half the
value of the house. Unfortunately, the reality is that a woman often
lacks the resources to reimburse her spouse and the house automatically
goes to the husband.\22\ As is manifest in court decisions, there is no
uniform policy governing this area of the law.
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\19\ According to Article 17 of the Marriage Law properties
obtained during the subsistence of marriage belong to both husband and
wife. Further, according to Article 39 of the Marriage Law, at
divorce,common property must be divided based on mutual agreement. If
the two
parties cannot come to an agreement, property should be divided taking
into consideration the economic needs of women and children. Article 44
of the LPWRI provides that at the time of divorce, husband and wife
shall divide their jointly owned house in accordance with their
agreement. If the parties fail to reach an agreement, the people's
court shall pass judgment in accordance with the principle of giving
favorable consideration to the wife and children. The Supreme Court has
also stipulated certain considerations to be taken in to account on
distribution of property. These considerations include, women and
children's interests, fault of a spouse, whether a spouse is guilty of
illegal transfer of property, housing considerations of the parties and
child rearing responsibilities. See Problem No. 3 of Solutions to
Several Problems Concerning the Use and Leasing of the Public Houses in
Trying Divorce Cases by the Supreme Court. In dividing property on
divorce, different provinces also take into consideration whether a
woman has lost her reproductive capacity due to birth.
\20\ Article 9 of the Supreme People's Court's Explanation of a Few
Problems Involving the Use and Rental of Housing in Divorce Case
Trials, 1996 provides that each party can reside in half of the public
housing allocated by the housing unit. The following case illustrates
the point. Ms. Z was brutally beaten by her unemployed husband during
the period of her marriage to him. If she ever complained to him about
his neglect of his family, the beatings became worse and Ms. Z suffered
from severe health problems due to the beatings. Ms. Z filed for
divorce. At the first hearing, the court gave the custody of the child
to Ms. Z and allowed Mr. Z to remain in the two bedroom unit. Ms. Z was
asked to find her own accommodation. A lawyer with a legal services
organization helped her appeal this decision. On appeal, the court
ruled that Ms. Z could remain in the larger bedroom in the apartment
while Ms. Z remained in the smaller room. What followed was a nightmare
for Ms. Z. her ex-husband would frequently kick the door of her bedroom
cursing and swearing in an effort to drive her away. Since it was the
middle of the winter, Ms. Z bore this harassment rather than be
homeless in the winter. Things began to degenerate in this unusual
living arrangement. Mr. Z started to let out his room for prostitution
and boasted to the daughter as to how much he made from this trade. On
occasion, Mr. Z would pursue his ex-wife and daughter with a knife in
his hand and once actually wounded Ms. Z. The situation became
unbearable and Ms Z and her husband were forced to flee the apartment.
Ms. Z once again went to court to ask for readjustment in the living
arrangement. After much negotiation with the housing units, the housing
unit agreed to give Ms. Z another apartment in exchange for her former
apartment. See A Research Report of the Legal aid Cases Undertaken by
the Center for Women's Law Studies and Legal Services Under the Law
School of Peking University (1996-2000).
\21\ In cases where neither party owns a house which can be shared,
courts have allowed the wife to live in the house of the husband's work
unit for a maximum, period of 2 years pending divorce. In cases where
the couple rents a house, the wife seeking a divorce has been allowed
to remain in the housing unit if the parties have been married over 5
years.
\22\ Even though Article 42 of the Revised Marriage Law states that
a party who is having problems subsisting at the time of divorce should
be helped by the other party, this provision without any corresponding
enforcement mechanisms remains merely symbolic.
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Rural women's property rights
Even though the Revised Marriage Law applies uniformly to both
urban and rural women, rural women encounter unique challenges in
property use and ownership that have not been fully addressed by the
Marriage Law. Despite guarantees of equal distribution of
``responsibility land,'' \23\ in practice, certain village committees
will not allocate separate ``responsibility land'' to women who are
divorced. A widow returning to her village could encounter similar
problems. A married woman who leaves the village in common parlance is
considered ``water splashed out'' and loses her right to the land in
the village. In the case of migrant workers too, so long as their
residence has not been transferred to the city, they should retain the
right to the responsibility land in their village. However, in reality,
women who go to work as migrant workers to the city have their land
reallocated. Even though this is against the law, very few of those
migrant workers are able to come back to their village in the event
that they lose their jobs in the city.\24\
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\23\ See Article 30 of the LPWRI.
\24\ Certain provinces such as Hunan Province have enacted
legislation stipulating that when rural women marry or divorce, the
village where their residence belongs to should allocate the relevant
fields or mountains to them. Article 4 of the Hunan Province
Stipulations of the Legal Rights and Interests of Women and Children.
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conclusion
Despite legal guarantees of equality, women's rights in the areas
of marriage, divorce employment and property continue to face
procedural obstacles. On the other hand, the changes in the law have
not always had the desired impact on women. At the same time, a review
of The Spangenberg Group's work in China in the last 5 years shows that
there has been a rapid maturation and development in the area of
women's rights advocacy in China.
The work of some women's legal aid organizations in China has
become a catalyst for change.\25\ These organizations have not only
positively impacted the lives of the disadvantaged but have brought to
the surface many issues hitherto marginalized. These issues deal with
the exposure of traditionally silenced or ignored areas such as
domestic violence, marital rape, sexual harassment and employment
discrimination. The women's legal aid centers have provided a forum for
debate and discussion on these areas of the law and have engaged in
multifarious activities including: legal services for the poor,
domestic violence hotlines, impact litigation, test case
litigation,\26\ law reform efforts,\27\ training of law enforcement and
judicial officers, community empowerment and public education
programs,\28\ working with the media, and conducting research on
challenges facing the enforcement of women's rights. The cases brought
to court by these centers have formed a rich body of jurisprudence on
women's rights litigation. Claims lost in court are still publicized
and used to raise gender consciousness.
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\25\ Some of the legal services organizations like Hubei Province
Women's Federation and the Hebei Province Women's Federation reflect
the decentralized nature of their networks. Most of these organizations
are so structured that complaints and concerns are first dealt with
locally at the village and town level, then at the city/council level,
the district level and finally at the provincial level.
\26\ There is a growing interest in litigating issues involving
differential treatment of men and women in employment, sexual
harassment in employment and defending battered women charged with
crime.
\27\ Some of the legal services organizations have influenced
policy and been the force behind local domestic violence legislation
implementing the rights enshrined in the LPWRI. The Shaanxi Research
Association for Women and Family (SRAWF) was in the forefront of
drafting and advocating for the adoption of the Shaanxi Methodologies
of the Implementation of the Rights and Interests on Protecting of
Women of PRC in China. This local law gives concrete expression and
provides enforcement mechanisms to the values enshrined in the 1992 Law
on the Protection of Women's Rights and Interests. SRAWF first
convinced the Shaanxi Province Women's Federation to support the
initiative. A speech made by the leader of the Federation to the
Standing Committee of the Provincial People's Congress was prepared by
the Association. Soon after, Congress accepted the motion on opposing
domestic violence made by the Provincial Federation. The next step was
to set up a collaborative working group of legal experts and scholars
to draft the Regulations. The draft written in consultation with
Chinese and international legal scholars, grass roots organizations and
women victims of domestic violence was then
submitted to the Provincial People's Republic.
\28\ Many rural legal aid organizations employ creative ways in
which to create rights awareness among the community. Gender awareness
literature distributed by vans driven around villages is an effective
tool of information dissemination. A person with legal training
generally travels in the van and responds to rudimentary questions on
how to seek help in the area of domestic violence.
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The Spangenberg Group's seminars help women's rights advocates in
China address the inherent duality and contradictions in some of the
protectionist provisions of the Chinese labor laws, and we view them in
the context of analogous labor laws in other transitional countries and
their disparate impact on women. Our training programs focus on how to
identify gender bias and sexual harassment in employment and how to
challenge these discriminatory practices. Our programs identify various
laws and regulations that prohibit gender discrimination and emphasize
vigorous advocacy skills necessary to make novel anti-discrimination
claims.\29\ We also draw examples from successful litigation strategies
chartered by Chinese women's legal services organizations. Even though
successful outcomes for struggling female workers is not common,
significant cases taken to court by some women's legal
services groups demonstrate how women workers after many a legal battle
have successfully vindicated their rights.\30\
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\29\ Many of the legal services organizations use the cases they
handle to study common problems concerning women. Successes in certain
cases have been achieved only through diligent investigation and
advocacy. These efforts include a repertoire of advocacy efforts
including talking to witnesses, collecting documents, using the media
to harness public support and meeting with different government
agencies. Based on their experiences they make comments and
recommendations to the local governments on reforms needed in the law.
One such report called upon the Eighth National Women's Representative
Assembly to protect the rights of women experts over the age of 55.
Since there isn't an explicit provision prohibiting employment
discrimination based on sex, it is difficult to launch constitutional
challenges to certain discriminatory practices such as the differential
retirement ages for women and men.
\30\ Most victories in court are achieved due to unrelenting
advocacy on the part of women's rights lawyers and legal workers.
Sometimes, even when a major victory is won in court, follow-up
advocacy is needed to enforce the order. The following case is an
example of this kind of advocacy: Li, an 18 year old mentally retarded
high school student was allegedly sexually harassed by the principal of
her high school in Hebei Province The County Bureau of Education had
investigated Li's allegations and confirmed the victims account.
Tragically, Li committed suicide. The relatives of the victim sued the
school principal in court but during the trial, the family received an
administrative penalty from the public security authorities. At the
direct intervention of the Ministry of Public Security the trial was
able to continue. However, the county procutorate and the trial court
based the case on the charge of indecent behavior instead of rape. The
defendant received a 3 years probated sentence. Two lawyers from a
Legal Aid Centre visited the county to investigate this case. The
lawyers were accompanied by a journalist from China Women's Daily. The
investigation revealed that the school principal had abused his
authority to sexually harass a mentally retarded girl and have sexual
intercourse with the girl. The court had dismissed the case. The court
had also not conducted any independent investigation. Second, the
judges reasoned that a probated sentence will allow the defendant to
earn money to compensate the victim. The court opined that a prison
sentence would not have made it possible for the defendant to make
civil compensation. After much persuasion the court agreed to grant
compensation to the family. However, 2 years after the trial no
compensation had been paid to the family. The legal aid lawyers
persuaded the court to reopen the case and judges agreed to make
changes to the original verdict. See A Research Report of the Legal Aid
Cases Undertaken by the Centre for Women's Law Studies and Legal
Services Under the Law School of Peking University (1996-2000).
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Women's legal services organizations are also crafting novel
advocacy strategies to protect women's property rights. These range
from advising women to enter into notarized agreements with their
husbands,\31\ so as to ensure equitable ownership of property, to
arguing for civil compensation for fault to be awarded during an
ongoing marriage.
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\31\ Li and her husband opened a factory and through hard work
amassed much wealth. Li's husband after a few years of marriage started
beating her and threatened to kill her several times. Li petitioned the
court for divorce, but persuaded by her friends consented to give her
husband another chance. Her lawyer however advised her to enter into an
agreement with her husband whereby she would become the sole owner of
half the property acquired during the marriage. This agreement was then
notarized. That way Li's property rights would be protected even if she
decided to go ahead with a divorce. See Report and Summary in respect
of the sub-project of legal assistance against family violence, Center
for Women's Law Studies and Legal Services of Peking University, July
2002.
---------------------------------------------------------------------------
In the area of domestic violence, our seminars assist women's
rights advocates to identify some of the challenges women face due to
gaps in the law and inaction on the part of law enforcement officials.
Together, we look at ways in which to stretch the boundaries of
advocacy and make women's rights and perspectives central to law
making. In doing so, we draw examples from advocacy strategies in the
United States, and other parts of the world. Our seminars also focus on
how in the absence of an explicit marital rape exemption, a broad
interpretation of China's rape laws could include marital rape. By
looking creatively at local laws, and international norms, women's
rights advocates in China are developing exciting and innovative
methods of problem solving.\32\
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\32\ There is a growing interest among women's rights advocates on
the application of international conventions and norms especially the
Convention on the Elimination of Discrimination against Women (CEDAW)
in local lawmaking and to learn from advocacy and law reform efforts
from across the world.
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Women's rights advocates and lawyers in China have done much to
advance the frontiers of the law in the area of women's rights reform
in China. Their continuing critique of discriminatory laws and
practices affecting women and their creative initiatives to challenge
these discriminatory practices have brought about a transformation in
the lives of women who seek to vindicate their rights.\33\ Even though
much has taken place in the last few years much remains to be done.
Women's empowerment foreshadows the transformation of a society and is
a benchmark of a functioning rule of law. Supporting the work of
women's rights groups remains
critical to the further strengthening of the rule of law in China.
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\33\ Some of the critiques focus on the following areas and range
from defining domestic violence as discrimination against women to
holding the state accountable to taking all appropriate measures to
prevent violence against women. Many of the critiques focus on the
inaction on the part of law enforcement officials, the need for
community education, judicial bias in decisionmaking, ``imperfect
legislation,'' the fact that there are no explicit provisions in the
marriage law as to compensation for psychological injury or
compensation for family violence during the subsistence of the
marriage. Many women's rights advocates argue that in the absence of
legislation on domestic violence only a small portion of cases are able
to meet the standards of slight injury or severe injury defined by the
criminal law. ``A lot of women who have been beaten or abused by their
husbands tend to have their cases turned down by court when the court
feels it is groundless or difficult to accept the case.'' See Research
Centre of Women's Development and Rights, the Northwest Industrial
University, Challenges to Legal Treatment of Violence against Women and
Strategies in Response. Some of the critiques also draw upon the need
to assimilate lessons learned in other jurisdictions and the need for
analogous injunctive reliefs and civil protection orders similar to the
reliefs available in the United States and other jurisdictions. As
countermeasures against family violence, the Centre for Women's Law
Studies and Legal Services of Peking University suggests: introducing
theories of gender equality into the school curriculum and community
education materials; being able to suspend the theory of joint
ownership of property and dividing the marital property in the case of
violence in an ongoing marriage; establishing a special family tribunal
to deal with cases of family violence; improving the availability of
housing for divorced women; establishing social support networks for
women victims of abuse; building a specialized cadre of lawyers able to
handle women's rights issues; work with the media to garner support for
victims of abuse; making available compensation for injury during the
marriage and dividing marital property and notarizing such division so
that women's property rights are preserved. See Report and Summary in
respect of the sub-project of legal assistance against family violence,
July 2002.
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______
Prepared Statement of Christina Gilmartin
february 24, 2003
Rural Women, Marriage Migrations, and Gender Equality In Contemporary
China
The Economic Reforms that were instituted in China in the late
1970s have brought tremendous changes, both positive and negative for
women. An explosion of internal migration streams of extraordinary
proportions in China have drawn not only men, but also women. It is
noteworthy that these women have come from a wide variety of social
groups and from both urban and rural localities. In addition, these
migration patterns have been characterized by a shift from a
traditional
family migration to the migration of unmarried women. Migration can be
seen as a form of human agency by women who are aiming to make use of
global social and economic transformations to improve their survival
odds and achieve personal empowerment. However, a large segment of
these Chinese migrant women have also faced an increasing vulnerability
that has heightened public awareness and policy concerns.
Much scholarly and journalistic attention has been devoted to
Chinese labor migrations, including the experiences of women labor
migrants (i.e., Chow, 1998 and 2002; Salaff, 2002; Tan Shen, 1994 and
2001). This statement concerns one aspect of Chinese female migrations
that has thus far not received much western attention: voluntary
marriage migrations. Intertwined with both illegal marriage migration
streams and economic migrations, this phenomenon has provided rural
women with an important opportunity to improve their economic well-
being. However, these women also faced unusual risks, as they moved
beyond the security network of their kinship lines, and thus had few
resources to rely upon if subjected to difficult circumstances in their
new communities. Indeed these marriages have been very prone to
conflict and dissolution.
origins
Women have almost always moved at the time of marriage in China.
Village exogamy was held up as a norm and was widely followed. The
great majority of rural women who observed the strong taboos against
same-village marriages during the Mao period (1949-1976), however,
married with a radius of ten kilometers, and usually in the same county
(Gu 1991). William Lavely (1991) found that the distances a women moved
at the time of marriage varied depending on economic factors. Wealthy
villages were able to lure women from farther way than less well off
localities. Moreover, those women who came from afar generally ended up
with husbands from the poor strata of the community, indicating that
these men were less able to attract women from surrounding villages.
This pattern clearly revealed the existence of a marriage market even
at a time when economic forces were weak and
marriage decisions were greatly influenced by political factors.
The marriage market of the Mao era was radically expanded with the
introduction of the Economic Reforms in 1978. Women began to travel
much larger distances, crossing county and provincial borders. Within a
few years, some women began to venture hundreds and even thousands of
miles in order to marry. By 1990, the numbers had reached 4,325,747,
and these female marriage migrants comprised 28
percent of the overall female migration in China. Although the data for
the 2000 census has not yet been published, preliminary indications are
that these figures have continued to climb. In contrast to the millions
of women who have migrated to marry, few men have been involved in this
process. The main reason for such low male participation in this type
of migration is due to the tenacity of patrilocal marriage patterns.
Even after the establishment of a commune system in China, government
initiatives were unable to motivate men to undertake virilocal
marriages. Those few men who moved to another village and took up
residence in the homes of their wives were not accorded full rights and
social status in their new communities.
What kind of women migrated to marry in the first decade of the
Economic Reform era? The great bulk of marriage migrants came from
agricultural backgrounds. In one Jiangsu case study, 97.2 percent of
female marriage migrants originally farmed for a living. In this
respect they differed from female labor migrants, who according to the
1990 census, came only somewhat disproportionately from farming and
factory backgrounds. Marriage migrants have not, for the most part,
been able to switch their rural residences for urban ones through the
migration process. Their destinations have primarily been rural, in
large part because of the limitations imposed by the hukou system of
residence registrations. Those who have managed to enter the boundaries
of the large metropolitan areas of Beijing, Tianjin, Shanghai, or
Chongqing have not ended up in the urban areas, but in the outlying
rural
districts.
These marriage migrations owe their existence to the sex ratio
imbalances that exist in rural China. To be sure, the imbalances of the
1980s and 1990s were of a different magnitude than those that have been
produced as a result of the one-child family policy after it was
implemented in 1979. Indeed, the 1990 census data show that the gender
ratio of the total rural population in the 15-39 year-old group was
relatively normal. But local women leaving the countryside to work in
urban areas or in the special economic zones led to a sizable shortage
of women of marriageable age in many rural communities. As a result,
the gender rations for the unmarried rural population were adversely
affected. In 1990, for instance, the gender ratio of Chinese rural
unmarried people between the ages of 15 and 19 was 108.91, that is
almost 109 unmarried men for every 100 unmarried women. In the 20-24
age group, it was 161.97 and in the 25-29 age group, it was a whopping
508.91. In the older age groups, there were essentially no unmarried
women in the rural areas. In such circumstances, the prevailing bias
against the acquisition of an ``outsider'' as a bride dissolved among
those families who were unable to secure a local woman.
connections with labor migrations and marriage trafficking
The demographic data show that marriage migrations began in a
gradual manner in the first years of the Economic Reform era. Certain
case studies in the prosperous province of Zhejiang indicate it was
only after 1985 that this type of migration began to develop. It
appears that in the early years rural women were not able to overcome
family constraints and participate in these types of voluntary marriage
migrations. It may well be that female labor migrations helped to
stimulate marriage migrations. As factories showed an increasing
interest in young women migrant workers, certain social practices
changed. We find that by 1995 all the factory girls who had migrated
from rural areas to the urban areas of Guangdong province (near Hong
Kong) were unmarried. This is also true for many of the export
processing factories in the special economic zones of Shenzhen and
Tanggu. As small companies run by local rural governments, joint
ventures and foreign companies increasingly preferred to hire young
unmarried female workers, the customary constraints against any type of
unmarried female migrant began to weaken in the rural areas. This
changed attitude may well have provided a more conducive atmosphere for
unmarried female migration, both for the purposes of work and marriage.
Labor migrations were intertwined with marriage migrations in other
ways as well. Ten Mile Inn, a village in Henan, for instance, began to
recruit Sichuan men to work in its mines because of the unwillingness
of local people to continue such dangerous work. These Sichuan men soon
began to arrange for their female relatives to be married into the
families of Ten Mile Inn. By the end of 1996 there were 20 Sichuan
brides in the community, and by 1999 the number had doubled.
There is some evidence to indicate that illegal marriage
trafficking may also have spurred the emergence of a legal, voluntary
marriage migration. In the first years of China's Economic Reform era,
alarming stories appeared in Chinese and Western newspapers about women
falling prey to kidnappers and being sold as wives to poor farmers.
Traffickers usually targeted women from poor rural areas who were quite
young, unsophisticated, and easily duped. Transported hundreds of miles
from their homes, these women found themselves imprisoned in villages
where everyone in the community sympathized with the men who had spent
much of their life savings to acquire these wives. Some of these women
managed to escape, but the majority gave birth to children. At this
time, they were deemed trustworthy and released from surveillance on
the assumption that they would not abandon their children. Allowed to
communicate with their distraught natal families, they slowly became
resigned to their circumstances and no longer sought to return to their
natal communities. In order to reduce their isolation in their new
localities and create a more
supportive network in an unfriendly environment, they began to
encourage other women from their natal villages to migrate to their new
communities. Such an enclave of Yunnan women started in Huiyang county,
Henan in 1990. In this way, illegal and legal marriage migrations
became intertwined. Indeed, in the minds of some scholars, women who
had been kidnapped and forced into a marriage against their will were
also considered to be marriage migrants. One study that was conducted
in 1994, for instance, found that involuntary marriage migrants
constituted 14.21 percent of the almost 18,000 female marriage migrants
in his survey.
destinations
Marriage migrations in the Economic Reform era have tended to
follow certain distinct geographical patterns. In general, they
originate in the poorer areas of the southwest and travel to the rural
areas of the richer sections of the eastern coast, especially Jiangsu
and Zhejiang provinces. As early as 1989, for instance, in certain
areas of Zhejiang, in every 51 households there was one female marriage
migrant. Another study found that one county in Zhejiang accepted 71
percent of its female marriage migrants from the four provinces of
Sichuan, Guizhou, Anhui, and Yunnan. By the early 1990s, it was clear
that the most common destinations for interprovincial marriage migrants
were Jiangsu, Hebei, Guangdong, Shandong, Anhui, and Zhejiang. These
geographical trends reflect specific economic realities. Jiangsu,
Zhejiang, Guangdong and Hebei are among the richest provinces in China,
while the southeastern provinces of Sichuan, Yunnan, and Guizhou are
among some of China's poorest. Even as early as 1989, the per capita
net income in rural Zhejiang was more than 400 yuan above the national
average, approximately 450 yuan above Hunan's level, and more than
double that of the rural areas in Guizhou, Guangxi and Sichuan. This
economic gap has continued to grow in the last decade.
Economic factors are critical in the decisions of those men who
marry female migrants. The bride price paid for immigrant women is
usually significantly less than what is required for local brides. In
Zhejiang, for instance, the bride price for local women has gone up
precipitously since 1982. From the engagement of the couple to the
wedding party, the bride price might be as high as 100,000 yuan. For a
sizable percentage of the men's families, this type of marriage might
be the only possibility, as no woman in the local community would be
willing to marry into a poor family.
concerns
Marriage migrants are using a traditional method of social mobility
for women: marriage. Many end up in much more affluent areas, and may
well be satisfied. Many are never registered, which means that they are
not official. In such cases, women are not able to rely on the legal
protections if their marriages fail. And it does appear that these
marriages are more problematic. Some case studies report that these
women experience a higher level of dissatisfaction with their marriages
than women who marry locally. One study in Shandong, for instance,
found that only half of the marriages between local men and female
immigrants were stable. The countless reports of wife battering and
female suicides in the rural areas may well be disproportionately
occurring in this types of marriages. It has also been found that these
women report that their lives are more difficult than they had been in
their home localities. It also appears that these women face a great
deal of discrimination and hostility in the community, with the result
that they cling to their newfound families and lead fairly solitary
existences, refusing to assume jobs in the public domain. The
relatively hostile environment coupled with the lack of nearby
relatives means that the main course of emotional and economic support
for these women is their husband's families. But when these marriage
are ridden with conflict, as is often the case, these women can find
themselves without many resources. If the marriages fail, these women
rarely seek a legal divorce.
While it has been argued that women's participation in these
marriage migrations constitutes a type of female agency, it seems
unlikely that these marriages are contributing to the creation of more
egalitarian marriages. By relying on their roles as wives and mothers
to effect this shift from the poorer to the richer regions of China,
they are in fact reinforcing male power within marriage relationships.
conclusion
Traditional method of using marriage as a means of social upward
mobility. Numerous accounts of urban women pressing their legal rights
in courts. Boston Globe on Sunday, February 23rd ran a very interesting
example.
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