Safeguard of Women’s Personal Rights
Chen Mingxia
Women’s personal rights are essential to women’s human rights. Infringement on
women’s personal rights shall not be neglected.
I. Two major issues for the infringement on women’s personal rights
in recent years in China
(1) Violence against women constitutes serious violations of women’s personal rights.
Violence against women offences women and girl’s right of personal freedom,
human dignity, right to sexual privacy, as well as their rights to life, health and
development.
Due to available spaces, here we shall only deal with issues in the following four
aspects.
1. The re-occurrence of abducting and trafficking of women since late 1970s remain
to be one of the main social issues concerning the violation of women’s personal
rights. Strong measures have been taken in some places to suppress such crimes.
However, the past efforts have yielded little results, and new crimes have begun to
emerge in which women are forced to engage in prostitution after being abducted.
According to the Public Security Bureau of Shanwei City, Guangdong, 20%~25% of
the women who have been abducted were forced to engage in prostitution ①.
2. Sexual harassment against women. As a word of foreign origin, the term “sexual
harassment” was introduced into China in 1990s. As a sex discrimination and
occupational discrimination, the core of sexual harassment is those having rights
harass those having no rights, a humiliation on women and assault on their body and
right to sex. Such issue was placed on the agenda in China till in recent years, and

Professor of Institute of Law of the Chinese Academy of Social Sciences.
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emerges as public concern. As shown in a survey in 2000 attended by 600 people in
Shenzhen City-- the earliest economic development area in China, 32% of the people
surveyed have suffered sexual harassment, of which, 43% of the victims are female
and 19% are male ②. As indicated in an updated survey report in 2002, among the 200
sampled residents in Beijing, 120 women used to victims of sexual harassment,
accounting 71% of the total women surveyed; and, the occurrence of sexual
harassment at working places where women are assaulted by their high authority takes
up 61%③. As indicated by an additional report on sexual harassment conducted by a
female-oriented survey center, 84% of the women have been sexually harassed,
especially the unmarried working women aged under 30; 50% of the assaults
happened at working places and 36% are by their higher authority④. Sexual
harassment, especially those happening at working places have been widespread in
China and grown to be a great concern of the society.
3．Violence against women is a common social problem. According to the survey in
“Research and Interference on the Countermeasures for Domestic Violence against
Women” Program launched by China Law Society (hereinafter “Anti-domestic
Violence” Program, 2/3 of the sampled people in the surveyed area have suffered
domestic violence in their childhood and 1/3 have witnessed domestic violence
between the spouses, of which 80% are against women⑤. Fact proves that the
violence against women is a serious infringement on women’s personal rights.
Violence against women, especially the domestic violence deprives women of their
dignity and confidence and further discourages them in their development or even life.
It appears to be a great barrier to safeguard women’s human rights.
“Violence against Violence” has been adopted by victimized women in long-time
domestic violence as an outlet by killing or injuring their husbands, which is called as
“Syndrome of Abused Women”, which can exempt the women from criminal
punishments and therefore protect the women by testimony of psychologist. In China,
“Violence against Violence” cases are many⑥. Taking women prison in Liaoning as
an example, 70% of the women manslayers are victims of violence. Despite many of
them receive mitigation of punishment through the efforts of the lawyers, no cases
have ever applied the above theory and therefore no women have been exempted from
criminal punishments.
4. The drowning and discarding of infant women and abortion of the embryo women
are outlawed as a serious discrimination against women
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The drowning and discarding of infant women is by no means a new phenomenon in
China, for which legislations have been stipulated to prohibit the drowning,
discarding and killing of infant women. However, such problem rises to be a social
issue in the present China. In addition to the traditional ill-treating on women, the
modern technology fueled the prejudice against women, such as using B-ultrasonic to
choose sex before childbearing, which may lead to unbalance of sex.
The discrimination against the women giving birth to girls and against the infant
women reflects the traditional idea of “Men are superior to Women”, whereas the
drowning and killing of infant women are complete crimes. As explicitly indicated in
Beijing Declaration and Program of Actions at World Conference on Women 1995,
“the drowning and killing of infant women and sex selection before child-bearing is a
violence against women”. It deprives the living right of the infant women and is a
serious violation of women’s human rights.
(2) The women’s rights to life and health shall be paid great attention to
Women’s right to life and health is an important right to women. Women have the
right to enjoy the highest standard of physical and mental health; the right to
procreation health and the right to access appropriate, affordable and high-quality
health protection, information and service during their whole life. They are important
component of Beijing Declaration and Program of Actions. A total of 21 provisions in
the Program of Action have been designed for this purpose. At present, two aspects in
women’s right to life and health shall be focused:
1. Women’s suicide should not be neglected. As indicated in the surveyed figures, 28
7000 people commit suicide each year in China, accounting for 3.6% of the death toll.
Suicide ranked 5th during 1995 to 1999 among the major causes of death. It is the
primary cause of death among the populations aged between 15 and 34, for which, the
women’s suicide rate is 25% higher than men and the suicide rate in the rural areas is
3 times of that in urban areas⑦. Another fact is that it is only in China that the suicide
rate of female is higher than that of male
2．Women’s procreation health is an important component of women’s right to life and
health
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Women’s procreation health faces many problems, for example, childbearing rate in
rural areas and remote areas is comparatively low and the death rate is high. Induced
abortion jeopardizes women (many operations are done under unsafe and unsanitary
conditions), especially the physical and mental health of the young women; a large
proportion of women suffer gynecological disease and genital tract infection; the rate
of infection of venereal disease and AIDS is on the rise; the society pays little
attention on the procreation health and sex education on the juveniles, women’s
mental health and the senior citizen’s health. The systemic separation of birth control
and sanitary department has affected the quality of the health care on women. The
knowing selection and insufficient participation of the male greatly affect the
women’s right to procreation health.
II. Analysis on the causes of infringement on women’s personal rights
(1) The common occurrence of infringement on women’s personal rights is the result
of sex discrimination and traditional cultural mechanism.
The discrimination against women and sex inequality is the root cause of infringement
on women’s personal rights.
Unfortunately, discrimination on women, a dross left over from the feudal society has
not been eradicated with the social development and the changes of the times, the
traditional idea and cultural psychology still dominate and control the people’s idea,
action and judgment on value. It is becoming increasingly intense in such a
transitional era. Therefore, the infringement on women’s personal rights still exists in
the society. ⑧.
(II) Absence of anti-sex discrimination provisions in the legislation
1. Provisions concerning the protection on personal rights are two general
China’s Criminal law, Civil Law, Women’s Law and Punishment in Respect to
Management of Law and Order have provisions intended to protect the women’s
personal rights, for example, Article 33-39, Chapter 6 of Women’s Law has provisions
to safeguard the women’s personal rights, however, they are either “neutral” clauses
or principle regulations, all of which are too general, abstract and difficult to execute.
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2. Absence of legislations on protection of women’s basic personal right
First, the prevention of violence against women calls for legislation. To prevent the
violence against women, many countries in the world have embodied “Prohibition on
Violence Against Women” into their laws, in addition, more than 40 countries have
laid down legislations and regulations specifically designed for domestic violence
against women. However, China has no such legislations in this respect. After the
holding of World Conference on Women, violence against women has aroused more
and more attentions from the public. However, there is no clear concept of “violence”
in the legislation in China and there are no clear definitions of “violence” and
regulations outlawing the sexual harassment, killing of infant women and embryo
women and specific laws concerning the prohibitions of domestic violence.
Second, Chinese law, especially the Women’s Law, has no provisions on protection of
women’s right to life and health. Though Law on Maternal and Infant Health Care and
Women’s Law stipulate that women have the right to give birth to child or not to give
birth to child; for the planned parenthood of spouses at the maternal age, relevant
department shall provide safe and effective contraceptive and technology and
safeguard the health and safety of the women subject to contraceptive operation, but
fails to provide comprehensive and detail regulations on women’s right to procreation
health as well as operational safeguard measures. Due to weak measures in
safeguarding women’s right to life and health, many cases in which the women’s right
to life and health are offended can not be solve satisfactorily.
3．Lack of procedural regulations and sex absence in the procedural law
More focus on entity and little on procedure is a prominent problem in Chinese
legislations. Though changed in recent years, it is still far from satisfactory. In
addition, because of the absence of view of sex in the procedural law, the evidence
principle herein fails to embody the impartiality and equality in safeguarding the right
of women and underprivileged, especially their personal rights.
(III) Absence of Social Assistance
Safeguard on women’s personal right is the common duty of the whole society.
Therefore, the community-based social assistance is an important approach to oppose
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discrimination against women and the safeguard on women’s rights. However, the
current law has no such regulations and there are no relevant measures and concerns
in the society,
III. Affirmative actions taken by International Covenant on Human Rights
and Women’s Personal Right Safeguard Initiatives
(1) Relevant regulations of International Human Right Document
1. Article 3 of International Covenant on Civil and Political Rights
2. Clause 1, Clause 2, Clause 3 and relevant clauses of Article 2 of International
Covenant on Economic, Social and Cultural Rights
3. From Article 1 to Article 6, Convention on the Elimination of All Forms of
Discrimination Against Women ⑨, legislations with regard to the contracting parties
should condemn all kinds of discriminations against women and adopt all kinds of
applicable measures to promote the policy, including legislations and other initiatives,
provisional special measures and other activities to achieve the goal of eliminating the
discrimination on women.
4. No.19 general suggestions ⑩of Committee on the Elimination of Discrimination
against Women
5. On the 4th World Conference on Women, Beijing Declaration and Program of
Action further addressed women’s personal rights are their human rights, “to fully
safeguard women and young women’s right as an imprescriptible, indispensable and
inalienable components of all human rights and basic freedom”. The conference also
focused relevant issues concerning women’s personal rights as a highlighted sphere,
indicating that all governments, non-government organizations and women’s group
shall advocate affirmative and clear policies and include the view on sex into all
legislations, public policies and programs; and adopt special measures to eradicate the
infringement on the personal right of women, especially the young women, refugee
women and homeless women, including the set-up of new legislations.
(II) Complete the legislations and strengthen the protection on women’s personal
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rights
Based on the above International Covenants, our government shall take affirmative
actions and relevant measures to strengthen the protection on women’s personal
rights.
1．New legislations on prohibition of violence against women
As indicated above, the opposition to violence against women is important aspect in
protecting women’s personal rights. Women’s Law and relevant laws shall prescribe
“violence against women is a kind of sexual discrimination. The state ensures women
to enjoy the same personal rights as man and all kinds of violence against women are
prohibited.”
2. New legislations on sexual harassment. The laws of U.S, Australia, Canada, France,
Belgium and Spain has embodied provisions against sexual harassment. The United
Nations has included sexual harassment into Article 2 of Declaration on the
Elimination of Violence against Women approved in 1993. In July, 2000, EU has
proposed relevant legislations to oppose the discrimination against women at the
working places, demanding each of the member state to set up an individual
institution to adjudicate the cases concerning sexual harassment, where the defendant
is obliged to show evidence to prove his innocence, or he, and the leader of the
enterprise who turned a blind eye to the harassment will be punished. Such
legislations are also available in Taiwan and Hong Kong.
Sexual harassment shall be included in Chinese laws. First of all, the Women’s Law
shall include the prohibitions on sexual harassment into the regulations on protection
of personal rights and prescribe several effective provisions. For example, firstly,
regulations on prohibition of sexual harassment on women and clarify the definition
of sexual harassment; secondly, in view of sexual harassment at the working places
emerging as the main problem for sexual harassment, relevant provisions on
preventing and prohibiting sexual harassment at the working places shall be laid down.
The opposition against sexual harassment is a program involving the whole society,
the legislature is therefore requested to complete relevant laws and regulations, such
as Civil Code, Company Law, Labor Law and Criminal Law in addition to amending
Women’s Law to better protect people’s lawful right to labor and sex to create a
favorable working environment where people live in equality and safety.
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3．Detail operational provisions concerning “prohibition of domestic violence against
women” and clear definition on domestic violence. The Marriage Law revised in
April, 2001 has provisions on “Prohibition on domestic violence”, however, the
judicial interpretation at the end of 2001 limited the domestic violence to the
customary violent force, which did not include other means of violence and lacks the
specific interpretations on family members. In addition, there is no procedural
regulations and social assistance. The victims of domestic violence are not under the
effective protection of law. So, we propose to give special interpretations on the
“domestic violence” and “family members” in the Women’s Law and Anti-Domestic
Violence Law so as to better protect the lawful rights of the women and the victims,
4．To better protect the victims of domestic violence, the following provisions shall be
included in the relevant laws; first, “Civil Protection Order”, which can be applied by
the victims and their near relatives, public security and inspection body or relevant
organs. The protection order will include numerous items, including: stop the
violators to continue domestic violence; prohibit the violators to harass the victim and
the residence, working place and studying place of the victim; stop the violator’s right
to supervise and visit the under aged victims. The protection order ill be issued by the
court; second, the implementation of judicial rectification punishment. Such
punishment applies to the potential violators and those who have committed domestic
violence but with minor violations where criminal punishment is not applicable. As a
special judicial punishment, it is capable of effectively preventing the domestic
violence and helping the offender who commits domestic violence to reunite with the
society to contribute to the social stability; third, to outlaw domestic violence as a
crime, including the crime of willful murder, crime of willful and malicious injury to
the family members that have been included in the criminal law……crime of forced
abortion, and crime of violation of the protection order to better protect the interests
of the victims suffering the domestic violence.
5．Regulations in pertinent laws, especially the Women’s Law on the promotion of
women’s procreation health. “Women have the right to give birth to child and not give
birth to child. The state will establish the health care system on women’s procreation
health to develop the maternal and infant health care and to raise the standard of
women’s procreation health.” will be stipulated.
(III) Procedural legislations on the protection of women’s personal rights
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As mentioned above, the abstract and principle provisions without the support of legal
assistance and approach is the main barrier to implement relevant laws, especially
Women’s Law. Women’s Law is being revised in China, which will include
procedural regulations on the safeguard of rights.
1. Clarify the approach for the victims to claim their rights.
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Establish rational evidence regulations
IV. The government shall give full play to the community and strengthen
the social assistance
Social assistance refers to the legal action of urban (rural) residents' committees,
enterprises, public institutions and social organizations to prevent and stop the
violence against women, including domestic violence and sexual harassment, etc.
Women’s Law should include provisions to strengthen the functions of the above
organizations in communities. First of all, the community and each unit and institution
shall assist governments at the grassroots level in setting up complaint departments,
consultation and service centers and shelters for the victims so as to vigorously, timely
and effectively assist the policemen within the community in prohibit violence and
protecting the victims. The social workers at the grassroots level, employees of
Women's Federations, law firms and medical workers in the community are entitled to
provide assistances for the victims. In addition, courses designed to oppose and
prevent domestic violence, sexual harassment and sex discrimination shall be
available in colleges, middle schools and primary schools as required by the State for
the purpose of teaching students how to report the crime and seek assistance when
threatened by violence. The news media are expected to popularize the opposition to
violence on women to raise the public’s awareness. “It is the common responsibility
of the whole society To safeguard the legal rights of women” as stipulated in Article 3
of Women’s Law will be implemented effectively if the above efforts yield.
V. Conclusion
As indicated in Program of Action proposed in World Conference on Women which
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was held in 1995, infringements on women’s personal rights are reflections of the
inequality between man and women in history, which has led to men’s dominance and
discrimination on women and obstructed women’s development. It is an arduous
historical task for us to eradicate infringements on women’s personal rights. We
should take a series of positive measures, work out an integral and
multi-subject-based system of countermeasures, maintain the equality between men
and women and raise the awareness of respect to others in all stages of the
socialization process. Let’s join hands and make our best efforts to achieve our goals!
September, 2004
Note:
① refer to Information on Rights Safeguard, National Coordination Team on
Safeguarding rights of Women and Children Vol.9, 2003
②refer to Survey Report on Sexual Harassment, conducted by precise news
investigation center, social science department, Law Institute of Shenzhen University,
Shenzhen Weekly (April 22, 2000）
③ “Survey on Sexual Harassment” 2002 by Datasea Marketing Research Group,
Beijing Youth Daily. April ,10.
②③quoted from Research Report on Sexual Harassment at Working Places and its
Countermeasures, Tang Chan
④refer to Let Legislation Say No to Sexual Harassment, a well-known article
published on Legal Daily , November 14, 2003
⑤refer to Present, Attitude and Prevention---Survey Report on Domestic Violence
Against Women, Zhang Lixi, Liu Meng, November, 2002, to be published by China
Social Science Documents Publishing House
⑥refer
to
Oppose
the
Domestic
Violence
Against
Women — —
Problem · Meditation· Countermeasure, published in September, 2003
Oppose the
Domestic Violence Against Women—Dictation, published in September, 2003, China
Social Science Documents Publishing House.
10
⑦refer to Report on Physiological Crisis and Interference Centre in Beijing,
September 10, 2003.
⑧refer to Chinese Women in the Transitional Society, China Social Science
Publishing House, 2004, 6, P.342—345.
⑨refer to International Human Rights Documents and International Human Rights
Institutions, Institute of Law of the Chinese Academy of Social Sciences, China Social
Science Documents Publishing House , 1993 edition, P. 125—138.
⑩refer toUN.DOC.CEDAW/C/1992/L.1/Add.15(1992)
refer to documents of UN 4th World Conference on Women, September 4 to 15, 1995,
Beijing, China.
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