The move is unprecedented in China's legal history. Cao Yin reports.

(LIANG LUWEN / FOR CHINA DAILY)

Having spent more than 10 years providing legal services to people dealing with sexual harassment, lawyer Lyu Xiaoquan received some good news at the end of April－he learned that such harassment would be officially banned and a definition would be included in China's first civil code.

"The code will not only clarify the ban on sexual harassment, especially in the case of unequal relationships－such as those between teachers and students or bosses and subordinates－but will also provide a definition of sexual harassment for the first time in China's legal framework," said Lyu, who works for the Beijing Qianqian Law Firm.

The code, adopted by the National People's Congress, the top legislative body, on Thursday, stipulates that sexual harassment by word or deed, or by taking advantage of a position of power, will be subject to civil action if the alleged perpetrator is sued by the victim.

It also lists government agencies, businesses and schools as responsible agents that must take measures to prevent sexual harassment and be able to receive reports and investigate alleged cases, especially in unequal relationships.

"It's a sign of progress that the fundamental civil law is backing sexual harassment victims. It underlines the country's determination to act against such misconduct, which has occurred frequently in recent years and become the subject of a large number of complaints," Lyu said.

On April 20, a month before the plenary session of the NPC, the education bureau in Guanghan, Sichuan province, issued a statement saying it had been working with other authorities to investigate a middle school teacher, surnamed Chen, who some students claimed had sexually harassed girls.

The report, which was published online, claimed that Chen had held the girls' hands, patted their heads, and even groped their breasts after calling them into an empty classroom, according to Red Star News.

Xu Hao, a lawyer from the Beijing Jingshi Law Firm, said: "Campuses and offices are the places where sexual harassment is prevalent, and much of this misconduct happens between people who know one another. Sexual harassment in such places causes physical and mental damage because unequal relationships often make it difficult to speak out, so victims are forced to tolerate it."

He praised the definition included in the civil code.

"It means sexual misconduct will be caught and punished, not only by criminal law, but also civil law," he said. "In other words, legal protection for people being sexually harassed has become stronger and more comprehensive."

Lyu said growing legal awareness among the younger generation means "more victims stand up and say 'no' to sexual harassers. That must be encouraged."

He believes the civil code will provide more support for the drive to protect people's rights by rule of law.

However, both lawyers expressed concern about enforcement and the effectiveness of the code.

"Collecting evidence in civil disputes related to sexual conduct will be much harder than in similar criminal cases," Xu said.

Lack of definition

According to Lyu, before the code was drawn up, there was no definition of sexual harassment in China, although it is mentioned in some laws and regulations, such as those on the protection of women's rights and interests.

"But, for a long time, there was no clear definition of what constituted sexual harassment and what behavior could be identified as sexual harassment, which caused difficulties in legal practice," he said.

"Everyone has their own understanding of sexual harassment. For some people unwanted bodily contact may be nothing, but for others it is deeply offensive. So, it's essential to have an official definition. Otherwise, judges may make different rulings in similar sexual harassment cases."

Xu held the same opinion. "A clear definition will make the crackdown on such misconduct more accurate and effective," he said.

"As a fundamental law, the civil code should play a leading role in regulating people's basic civil rights and duties, and give definite 'yes' or 'no' answers to some of the problems frequently seen in people's daily and working lives."

Although there is no official English-language version, the definition given may be paraphrased as: The civil code stipulates that sexual harassment means unwanted sexual behavior through words, written messages and images, or by abuse of social or work positions.

The code demands that government agencies, private businesses and schools take effective measures to prevent such misconduct and open channels to receive reports from people alleging harassment.

Unequal relationships

Committing sexual harassment by taking advantage of position is a global issue, and usually high-profile cases make headlines and prompt public outrage.

China is no exception. As the #MeToo movement gained momentum globally, younger Chinese women began speaking out about sexual harassment, especially acts committed on college campuses.

At the third full session of the 13th NPC, which ended on Thursday, deputies discussed the subject and welcomed the definition of sexual harassment in the civil code.

Before she attended the session in Beijing, Fu Yuhang, an NPC deputy from Sichuan, had been following a case at a middle school in her hometown.

"What parents care about most is our children's safety on campus. I'm delighted to see that the code has attached importance to that point and is urging schools to take action when students are sexually harassed," she said. "The good thing is that through gender equality the code allows victims of sexual harassment to protect their civil rights," the environmental engineer said.

She said she was delighted with the inclusion of sexual harassment in the code, as equal protection is essential in solving such problems.

She praised the civil code's clarification of the responsibilities of schools, government agencies and businesses, saying it will make the prevention of sexual harassment more practical.

Li Zongsheng, an NPC deputy from Liaoning province, believes that explicitly banning sexual harassment via unequal relationships is a strong legal response to a growing concern.

"The legislation must explain firmly what is allowed and what is opposed. Otherwise, law enforcement departments will become lost and unable to safeguard people's rights on the body and health," she said.

Lyu, the lawyer, said, "The nature of unequal relationships is unequal power, so I think the content in the code should be extended to include imbalances in a number of other places, including social associations and organizations.

"In other words, different educational backgrounds, differences in social status and a large age gap could also result in unequal relationships."

Lyu said that in recent years his firm has provided consulting services and legal aid for many people who have alleged sexual harassment, mostly acts committed on campuses.

"Some college teachers harassed female students by demanding sexual favors for helping them revise papers or for suggesting job opportunities," he said, adding that the circumstances caused mental anguish.

"The victims wanted to fight, but they were hesitant to do so because of the pressure of seeking work and writing essays."

Challenges

In addition to civil liability, sexual harassers will also be exposed and punished under the criminal law if their behavior constitutes a serious offense, such as sexual abuse, molestation or rape.

"Despite that, the challenges facing victims in terms of reporting attacks, filing cases, self-protection, winning lawsuits and obtaining compensation will still exist for a long time, especially in civil disputes. That's because they will have to prove to police and judges that they have been sexually harassed. Collecting such evidence has never been an easy task," Lyu said.

"For example, if a girl is unexpectedly kissed or touched by a teacher after being called into an empty office or classroom, it is extremely hard for her to prevent the sudden physical contact, let alone record it on a cellphone as evidence. Meanwhile, it's not possible for students to install cameras in private places," he added.

"When we encourage victims to call the police if they have been sexually harassed, we should do more to guide them to save related text messages and chat records on instant messaging tools, such as WeChat and QQ, as evidence.

"Evidence will be their strongest support if they want to file a case and win the subsequent proceedings."

Xu agreed with Lyu's view. "Sexual assault, abuse or rape may leave some physical record, including semen stains, scratch marks or injuries caused by struggling, which can be collected by investigators and used as evidence in a criminal case," he said.

"But in civil cases, victims must show the court how the misconduct happened. That will be difficult for those who lack experience."

As a result, the lawyers said more must be done to show women how to defend themselves against sexual attacks and also to ensure that known offenders are denied access to potential victims.

"A database of sexual abusers should be built and disseminated nationwide as quickly as possible, as a way of preventing people with a record of sexual offenses from entering schools or being employed in the education sector," Lyu said.

Contact the writer at caoyin@chinadaily.com.cn