Women's Rights in the People's Republic of China: Patriarchal Wine Poured from a Socialist Bottle


Women's Rights in the People's Republic
of China: Patriarchal Wine Poured

From a Socialist Bottle

ANN D. JORDAN'

INTRODUCTION

The government of the People's Republic of China (the "PRC") and
the Chinese Communist Party (the "CCP") are rightfully proud of the
improvements to women's lives that have occurred under their
leadership. Women's feet are no longer bound, women are no longer
legally purchased as slaves and concubines, women's literacy has
increased dramatically, and women now participate in practically all
spheres of business, industry and government. Nonetheless, there is
extensive evidence presented in the Chinese press and scholarly literature
that the PRC remains a patriarchal,' patrilineal and patrilocal society in
which inequality based on sex2 persists. Equally disturbing are the
serious doubts raised by many observers about the government's
commitment to the elimination of these problems and to the enforcement
of women's rights.3 They note that the situation of many women is quite

* Lecturer-in-Law, The Chinese University of Hong Kong; Fulbright Professor, People's

Republic of China (1990-91); Fulbright Professor. Hong Kong (1989-90); Columbia University
School of Law, J.D.; Columbia University School of General Studies, B.A. I would like to thank
the United College of The Chinese University of Hong Kong for providing me with funds to carry
out this research, my research assistants, Patsy Moy, Shirley Yeung, Ng Po Ling and Chan Mci
Yuet for their diligent work, and Michael Davis and Sharon Horn for their comments on earlier
drafts.

1. "Patriarchy is the process of differentiating women from men while privileging men. It
is the process of transforming (biological) females into women and males into men." Z.
Eisenstein, The Female Body and the Law 20-21 (1988).

2. The term sex is used rather than gender as sexual characteristics are innate, 'hile gender
is culturally defined. Gender roles may be adopted cross-sexually (i.e., transsexual behavior) but
even women who adopt male gender roles are not exempt from discriminatory treatment. Thus,
women's sex, not their gender role, is the basis upon which the law discriminates against women.

3. See, e.g., Paul D. McKenzie, China and the Women's Convention: Prospects for the
Implementation of an International Norm, 7 China L. Rep. 21, 55 (1991); Maria Hsia Chang,
Women: Human Rights in the People's Republic of China 250-267 (1988); Tamara Jacka, Back
to the Wok: Women and Employment in Chinese Industry in the 1980s, 24 Austr. J. of Chin. Aft.
1 (1990); Hooper, China's Modernization: Are Young Women Going to Lose Out?, 10 Mod.



JOURNAL OF CHINESE LAW

shocking; women are routinely and illegally purchased and sold in open
markets, forced into unwanted marriages, and suffer from
disproportionately high rates of unemployment and illiteracy.

The Chinese government does not dispute these facts. Instead, it
points as evidence of its continued commitment to women's rights to its
Constitution,' its signing of the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women (the
"Convention")5, and to the recent adoption of the Law for the Protection
of Women's Rights and Interests ("Women's Protection Law") 6. In the
government's view, the persistent existence of sexual discrimination is
due to the lack of implementation and enforcement of the laws, the
continued existence of remnants of feudal thinking among the public and
the negative influence of nascent capitalism and decadent Western
bourgeois thinking.7

As women are becoming increasingly marginalized under the
current economic reform policies, an important task for formulating any
new policies to improve women's status must be, first, to determine the
sources of the inequality, the role the government has played in
contributing to the situation, and the role it can be called upon to play
in reversing the current negative trends. Obviously, corrective action
would be vastly different depending upon which of the two
interpretations of the causes of women's inferior position outlined above
is more accurate. If, on the one hand, internal governmental policies are
the source of discrimination against women, then government officials
must engage in introspective behavior and search out the sources of their
own biases before they will be in a position to eradicate the source of
discriminatory policies. If, on the other hand, external forces and lack of
cooperation at the local government level are the source, then the role of

China 317 (1984).
4. Most Western scholars do not dispute this assertion, partly because they do not look beyond

the Constitution and partly because they do not understand the Chinese definition of legal sexual
equality. This article will, hopefully, dispel any notion that Chinese women have achieved formal
legal equality.

5. Opened for signature, Dec. 18, 1979, 34 U.N. GAOR, Supp. No. 46, at 193, U.N. Doe.
A/34/36 (1979) (adopted by the PRC on Sept. 29, 1980) [hereinafter Convention].

6. Funtl Quanyi Baozhangfa [Law for the Protection of Women's Rights and Interests] (Oct.
1, 1992) [hereinafter Women's Protection Law], reported in Renmin Ribao [People's Daily], Apr.
10, 1992, at 3.

7. China's Initial reports of States Parties to the Committee on the Elimination of All Forms
of Discrimination Against Women, CEDAW/C/5/Add. 14, May 25, 1983, at 15.

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WOMEN'S RIGHTS IN CHINA

government would be to educate the ptablic and to supervise law
enforcement more closely.

A primary question asked in this paper is whether or not (and, if so,
how) the laws themselves (and, by extension, governmental policies)
contribute to women's inferior status. The methodology employed is to
scrutinize numerous laws for sexual bias in the language or in the laws'
silence. One goal of this investigation is to develop a theoretical
understanding of governmental policy towards women by comparing its
commitment to equality in law with its stated theoretical perspective on
women's issues. The greater the gap between the law as written and the
theory as proclaimed, the greater the probability exists that the
government is concerned about upholding another set (or other sets) of
values, which values have not been articulated, even amongst the
government's policy makers themselves. Another goal of this paper is to
expose and recommend areas of the law that are urgently in need of
legislative reform.

Part I introduces the Chinese government's expressly-stated policy
towards women, which is based upon Engels' theory of women's
liberation through labor, and to the Chinese concept of rights, in general.
Part I also introduces the hypothesis that implementation of the theory
of women's liberation through labor and scope of the laws enacted to
promote equal rights is often circumscribed by a policy to protect the
patriarchal, patrilocal and patrilineal structure of Chinese society. The
male-dominated CCP and PRC government valorize patriarchy, however,
only to the extent that doing so does not conflict other more important
policy goals. I will argue that the emancipation of women and the
protection of women's rights, then, are not championed because the
principle of sexual equality is cherished by the political elite; rather, they
are encouraged and promoted only when it is convenient, expedient or
necessary for the implementation of other goals, such as economic
development, mobilization of women behind the CCP, or the destruction
of potential threats to CCP control from powerful patriarchal clans.

Part II contains a close textual reading of the language of numerous
important Chinese laws relating to women.8 The content and language

8. This paper is not intended to be a comprehensive survey of all laws affecting women.
Such laws are found, however, in Funal he Weichengnian Fall Baohu Quanshu [Compilation of
Laws for the Protection of Women and Minors] (1991) and Zhongguo Funil Fall Shiyong Quanshu
(Practical Compilation of Chinese Laws Affecting Women) (1993) (on file with author)
[hereinafter Compilation of Laws].

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of laws that directly or indirectly affect women serve as written
testament to the CCP's and the government's policies towards women.
They clarify the Chinese meaning of terms such as women's rights,
discrimination, and sexual equality and, in so doing, they reveal the
extent of the differences between the Western and Chinese definitions of
those terms. For example, where Westerners see legally-sanctioned
discrimination and relegation of women to second-class status, the
Chinese see legally-protected special rights for women and lawful
protection of the traditional right of the patriarchal head of the
household. The laws reveal a view of women's rights, women's place
and women's work that is consistent with the hypothesis set out in Part
I.

Part III contains the observation that the historical development of
women's rights and the present status of women in China and in the
West over the last century contain striking similarities and that those
similarities serve to undermine any moral authority claimed by the
Chinese government that women's rights in China are unique rather than
universal (or at least not shared by people from non-Chinese cultures).
Finally, I conclude with a generally pessimistic view that further
improvements to women's legal status cannot be achieved under the
existing Chinese policy towards women. Yet I offer the hope that
China's promise to implement the Convention could be a force for
change.

PART I: LIBERATION THROUGH LABOR, LEGAL RIGHTS AND

PATRIARCHY

Liberation Through Labor Theory Subsumed Women's Issues Within A
Class Analysis

Engels is responsible for depoliticizing women's issues under
Marxism by placing those issues into a class context, based on women's
relationship to economic productivity. Engels wrote:

To emancipate woman and make her the equal of the man is
and remains an impossibility so long as the woman is shut out
from social productive labor and restricted to private domestic
labor. The emancipation of woman will only be possible when
woman can take part in production on a large, social scale,

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WOMEN'S RIGHTS IN CHINA

and domestic work no longer claims anything but an
insignificant amount of her time.9

He predicted that, as women's economic independence increased
through participation in paid labor, women's liberation would naturally
follow. Engels failed to acknowledge that women might constitute a class
separate from, and totally unrelated to, economic class and, consequently,
did not consider women's subordination to be a result of male
domination. Sexual discrimination, he believed, was merely caused by
the division of labor into women's work (private) and men's work
(public) under capitalism, with men's work having the greater monetary
value. He believed that men traditionally have been able to rule over
women because of their superior economic power, which was achieved
when men came to produce goods outside the home that had a higher
value than that of the goods produced by women inside the home."0 To
achieve equality, women would have to emulate men by entering into the
economic life of the community. Engels argued that communism alone
could provide the necessary conditions for women's liberation because
it alone does not permit the development of an (economic) class-based
system. Whether or not such a system would permit the development of
a class system based on sex was never considered by Engels. As a result,
communists historically have treated women's issues passively, rather
than actively, as was the case in the areas of political and economic
reform."

Chinese communists had no difficulty in transplanting Engels'
analysis onto Chinese soil. Mao, like Engels, tied the end of men's
domination over women to the complete elimination of the pre-existing
economic system, which meant, in the Chinese case, to the end of
feudalism. According to Mao, the abolition of "inequality between men
and women" would occur as a "natural consequence of the victory in the
political and economic struggles," i.e., when feudalism is overthrown and
communism is practiced.2 Nonetheless, Mao was a realist who saw a
grave danger to the CCP if it promoted women's issues too forcefully
within a male-dominated rural society. He cautioned against "making too

9. F. Engels, The Origin of the Family, Private Property and the State 221 (1972).
10. R. Tong, Feminist Thought: A Comprehensive Introduction 48 (1989).
11. K. Johnson, Women, the Family and Peasant Revolution in China 221 (1983).
12. Mao Zedong, Report on an Investigation of the Peasant Movement in Hunan, I Selected

Works of Mao Tse-tung 23, 46 (1967).

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much of an effort" on behalf of women fearing that peasant associations,
which were dominated by men and which carried out the early reforms,
would be accused of standing for the "communization of wives."'3 As
articulated by Lucie Cheng,

[t]he CCP clearly saw the necessity of gaining women's
support and participation in the war and in the land struggle;
however, the Party's fear of alienating peasant men and its
understandable concern for survival limited the scope and
depth of the efforts to achieve gender equality.14

From these very early days of the Chinese Communist revolution,
the CCP made it clear that its policies and laws relating to women had
the purpose of liberating women from their domestic duties in order to
take up the Communist struggle by contributing to the task of economic
development outside the home.'5 In one of first laws it adopted after
assuming power, the new government "candidly admitted that the [new
1950] Marriage Law's purpose was 'to liberate women . . . in order to
promote the ... construction of a New Democratic China.""' 6 Thus, the
early liberation of women complemented the government's greater policy
objective of rebuilding China.

One would expect that laws based upon the "liberation through
labor" theory would prohibit and punish all forms of discrimination in
hiring, placement, wages, promotion, etc., and would recognize that the
burdens of childbearing, childrearing and housework are to be shared by
the sexes. Anything less would be counterproductive if the only goal
were to free women to work in the paid labor force. As is demonstrated
in Part II, this has not occurred because of the government's continued
support for varying degrees of traditional male domination in the family,
society, economy and politics.

13. Id. The tendency of the male-dominated CCP to entrench male power within the early
CCP is revealed very clearly by Christina Gilmartin. See Christina Gilmartin, Gender in the
Formation of a Communist Body Politic, 19 Mod. China 299 (1993).

14. Lucie Cheng, Women and Class Analysis in the Chinese Land Revolution, 4 Berkeley
Women's L.J. 62, 66 (1988-89) (citations omitted).

15. See generally D. Davin, Women-Work: Women and the Party in Revolutionary China
(1976); E. Croll, Women and Rural Development in China (1985).

16. Chang, supra note 3, at 256.

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WOMEN'S RIGHTS IN CHINA

Constitutional Promise of Equality Before and Under the Las

The liberation through labor theory can partly explain the law's
favorable treatment of women in the areas of labor, education and
marriage. That theory recognizes that an educated working woman who
is happily married can contribute more to the reconstruction and
development of a new China than can an illiterate, domesticated and
miserable one. However, it does not explain the negative aspects of those
laws or other laws, such as the property, inheritance or criminal laws, or
the one-child policy. To understand the source of the negative impact
legal reform has had upon women, it is necessary to turn to China's
Constitution, which promises equality "before the law" and equal
rights.7 These promises mark a fundamental shift from the attitude in
dynastic China when laws were applied unequally, when women's status
was always subordinate to men's and men were privileged at women's
expense.

The CCP abandoned this legal structure and replaced it with a more
egalitarian one. Since 1949, it has adopted a series of constitutions in
which various types of rights were imbedded. At the same time, it has
also revised laws relating to property, marriage, inheritance and criminal
sanctions in ways that benefitted women tremendously. Marriage rights
have been shifted from the family to the individual, with the result that
decisions about marriage and divorce now are legally held by individuals
rather than by the male head of the household. Property rights and
inheritance are no longer strictly male privileges and the extremely
complex Qing criminal code, which contained hierarchies of crimes and
punishments based on class and status, has been replaced with a simpler,
more egalitarian criminal code.

As the purpose of the CCP's revolution was to abolish the class
nature of Chinese society, it was only natural that laws would be written
in a neutral fashion in order to avoid privileging any particular segment
of society. The result in many areas of the law has been to create legal
equality between women and men. However, the constitutional promises
of equality have not resulted in equality of access and opportunity for
women in all areas because women's oppression was believed to be a

17. Zhonghua Renmin Gongheguo Xianfa [Constitution of the P.R.C.] arts. 33, 48 (1982)
[hereinafter 1982 Const.]. Similar language was also in the 1954 Constitution. See Zhonghua
Rennin Gongheguo Xianfa [Constituition of the P.R.C.] arts. 85, 86, 96 (1954) [hereinafter 1954
Const.].

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consequence of the economic system rather than the patriarchal system.
Thus, the tendency towards a more egalitarian society can only partially
explain the present legal status of women.

Unarticulated Policy to Protect the Patriarchal Structure

The reason for the failure of the liberation through labor theory and
the principle of equality before and under the law to achieve real sexual
equality can be explained by the existence of a third policy of the male-
dominated government and CCP: the policy to preserve (to the extent
practicable) the existing patriarchal structure. As discussed above, this
policy was openly acknowledged by Mao during the early revolutionary
days but the leadership since then has never openly admitted that such
a policy exists.

The laws discussed in Part II reveal that the government has never
abandoned its early decision to preserve many of the powers Chinese
men have traditionally held over women. Many laws assure that men will
continue to wield power or to dominate the society within a patriarchal
social, economic and political structure. For example, in the area of
labor, women's emancipation from the domestic sphere to participate in
the public labor sector has been a feature of past economic policies, first
and foremost, as a means to increase the supply of labor. When the
workforce needs to be increased, women's and men's constitutionally-
declared equal right to work is actively promoted. During the Cultural
Revolution, when the extent of the effort undertaken was so great that all
able women were pressured to work, liberation rhetoric was utilized as
a propaganda tool to convince women, and their families, that women's
responsibilities to society were more important than their responsibilities
at home. On the other hand, when the economy can no longer absorb all
able-bodied adults wanting to work, women, and not men, are called
upon to abandon their right to work and the laws are written in a way
that supports or permits this to occur. As a result of this interplay
between women's liberation, patriarchal privilege and economic
development during periods of high female employment women's gains
were strictly fortuitous and were not the result of campaigns to promote
women's rights or to meet the individual needs of women. They were,
and continue to be, a by-product of campaigns to carry out economic
policies.

During the current drive towards a socialist market economy, fewer
workers are needed, so the rhetoric has taken a decidedly conservative

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WOMEN'S RIGHTS IN CHINA

turn. The emphasis has shifted from the importance of women's
participation in economic production to women's role in reproduction
and family life. Significantly, a 1961 speech by Deng Xiaoping was
recently republished, in which Deng stressed women's new role in the
modem economic reform era. Deng outlined women's responsibilities in
the family and the way in which women's work in building up the
family also contributes to building up China.8 The government and the
press now denounce women's liberation as a remnant of Cultural
Revolutionary ultra-leftism that should be abandoned for women's real
liberation, which is to work in areas for which they are specially suited.
One Chinese commentator, for example, stated the problem as follows:

[D]uring the Cultural Revolution ultra-left ideas overstressed
"women's liberation" by its continual emphasis of the concept
that "women are equal to men," and by making them do work
for which they were obviously unfitted.19

Women are now deemed to be more 'fitted' to the housewife and
mother role and are urged to stay home for the good of the country and
family by helping to reduce traffic congestion and to solve the
unemployment problem.2° As an incentive to stay home, many work
units are willing to pay women a high percentage of their salaries for
several years after childbirth.2' The media, which continues to relay
messages from the CCP, now extols the virtues of the 'feminine' woman
who puts her family before her work and who is interested in her
physical appearance.22 Women who accept their traditional roles are

18. Most Important is to Get the RegularJobs Done, Renmin Ribao [People's Daily] Mar. 10,
1991, at 1.

19. Trend of Women Leaving Workforce Praised, Xinhua [New China], Sept. 17, 1988.
20. Ma Lizhen, Women: The Debate on Jobs vs Homemaking, China Reconstructs 66, 68

(Mar. 1989).
21. A mining plant in Shenyang, a major Northeastern industrial city, forced 1,000 women

with small children to take leave at 50-70% of pay (not including the bonus which can double the
salary). Gongmin Ribao [Worker's Daily], Mar. 23, 1985, at i. Nine million women are expacted
to be dropped from the country's labor force in this manner. New Labor System Encourages
Women to Spend More Time at Home, Xinhua [New China], Sept. 5, 1988.

22. For example, the lesson of one popular soap opera wvas that women whose marriages are
in trouble should take modeling courses and dress more attractively in order to save their
marriages. Fashion shows are very popular now among women ofall ages, presumably, in reaction
to the years of being forced into dull, unattractive unisex clothing. In another very popular series,
a working class woman married to a cadre's son was held up as the 'model' wife because she
sacrificed everything for her family, never complained and constantly served others. All the urban

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reported in the press to be happier then working women and, at the same
time, they are contributing to modernization by withdrawing their
'excess' labor from the work force. Some public rhetoric can still be
heard espousing the rights of women and women's central role in reform
of the economy, but the louder message now being sent is that equality
will not bring women happiness or wealth.23

The reason for this message is simple: a billion-plus population, out
of which 200-plus million are unemployed,24  and government
enterprises that are now compelled by the profit motive to rationalize
production by eliminating the expense of providing cradle-to-grave
services to millions of unproductive employees.25 The remedy selected
was crafted to safeguard men's frontline position in the new economic
order and this could only be done by abandoning the theory of liberation
through labor and the constitutional promise of equality under the law.

The fundamental principle in operation appears to be that men
should not be required to sacrifice their traditional patriarchal roles (and
all the rights and privileges those roles offer) unless absolutely necessary.
As a correlative principle, women should be granted rights only when the
benefit to the society as a whole is considered to be significantly greater
than the cost of any infringement upon, or diminution of, existing male
prerogatives. Thus, many laws permit men to retain traditional positions
of dominance in the family and society because there is no perceived
benefit to be reaped by society if women's right to equality is increased.
The review of laws in Part II shows that most laws touching upon the
status of women or male-female relations are infected to some extent
with such bias.

women I spoke with at the time told me that they detested this woman's character as they did not
want to be forced back into the traditional role of obedient wife and sacrificing mother. Also,
women are now being used in advertisements, as in the West, to sell everything from cars to dish
soap. The Women's Federation and female scholars correctly see this trend to place beauty and
passivity above talent and education as dangerous for women's liberation and equality.

23. Not everyone agrees that women are best served by staying home. Government-sponsored
women's federations and women leaders are strongly opposed to this new policy, recognizing it
is a step backward for women. They continue to insist that women's only hope for a better and
more independent life is through participation in paid labor. See, e.g., Xinhua [New China], Mar.
24, 1988.

24. S. China Morning Post, Mar. 3, 1993, at Bus. 2.
25. New Labor System Encourages Women to Spend More Time at Home, Xinhua [New

China], Sept. 5, 1988.

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PART II: CHINESE LAWS, SEX DISCRIMINATION AND SEXUAL
EQUALITY

Early Legal Reforms Dramatically Changed Women's Lives

The impact on women's lives of laws enacted by the early CCP
government cannot be underestimated.26 Taken as a whole, the laws
effectively transferred many of the powers traditionally held by the
patriarchal family into the hands of its individual members, including
women. Even if women were too intimidated to seek a divorce, demand
their share of land or vote, the absolute control husbands and patriarchal
clans and villages traditionally held over them was seriously and
permanently weakened.

Nonetheless, once the revolutionary dust had settled, it was clear
that the government had not been able, nor its leaders willing, to
redistribute all of the pre-existing balance of power that favored men.27

Men still predominated then, as they do now, in all avenues of access to
power, whether through control of the levers of power in the government
or in the workplace. The early reforms, while dramatic when viewed
from the vantage point of pre-communist Confucian society, had quite
limited objectives regarding women. As the CCP wanted to transform
peasant women into industrial workers, it needed to free them from the
tyranny of the family, to transform them from being dependent members
of a family into somewhat independent members of a civil society and
to educate them to become productive workers. Laws that encouraged
women to work outside the home, freed them from marriages in which
they were appreciated only for their domestic and reproductive
capabilities, and educated them to participate in a modem industrial
society served these goals very well.

Constitutional Law

A Chinese Constitution is not the same as a Western one, and the
rights granted in a Chinese Constitution are not comparable to the rights

26. Zhonghua Renmin Gongbeguo Hunyinfa [The MarriageLaw ofthe P.R.C.] (May 1,1950)
[hereinafter 1950 Marriage Law]; Zhonghua Retain Gongheguo Tudi Gaigefa [The Land Reform
Law of the P.R.C.] (June 30, 1950); Zhonghua Renmin Gongheguo Xuanjufa [Electoral Law]
(Mar. 1, 1953); 1954 Const., supra note 17.

27. See, e.g., M. Wolf, Revolution Postponed: Women in Contemporary China (1985).

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recognized in a Western one. Chinese constitutions are akin to
declarations of policy,2" and official proclamations that women and men
in China have achieved legal equality because the Constitution says so
are meaningless. First, rights in Chinese constitutions are not derived
from any theory of natural rights having universal applicability but are
implemented according to current policy, which is dictated by China's
'special' circumstances.29 Thus, Chinese rights-related laws are not
intended to meet any international standards; on the contrary, they are
positive expressions of domestic policy. Second, Chinese constitutional
rights are "programmatic," i.e., they are granted, modified, suspended
and withdrawn by the state for the sole purpose of implementing
particular policies." Third, the constitution itself only contains the
theoretical possibility of a right. Thus, in order to speak about
constitutional rights, it is necessary to speak about substantive legal
rights because that is where the government's actual policy is located.3

Lastly, even if substantive and procedural rights are set out in a
domestic law, the right to sue for infringement is never absolute and can
be curtailed if exercising the right would "infringe upon the interests of
the state, of society .... ,,3' As explained in the Chinese press, "[n]ot
all individual interests in accord with socialist laws are necessarily
morally legitimate. *** Whether they are legitimate or not depends upon
their relation to the collective interests of the society at a given time., 33

This means that the cost of compensating an individual for a rights'
violation must always be small when compared to the cost to the society
of providing that redress.34 As an example, Maria Chang has noted in
reference to the new freedom of marriage and divorce in the 1950
Marriage Law that "if the single-party state at any point judged that this

28. Stanley Lubman, Studying Contemporary Chinese Law: Limits, Possibilities and Strategy,
39 Am. J. Comp. L. 293, 325 (1991) (Chinese rights are contingent, transitory and "arc goals to
be reached rather than prerogatives of personhood").

29. Human Rights in China, Preface at I-II (Info. Office of State Council, Nov. 1991).
30. A. Nathan, Chinese Democracy 116 (1985).
31. "A [Chinese] constitution is a general summary of present policy. Laws are more

particularized statements of policy." William C. Jones, The Constitution of the People's Republic
of China, 63 Wash. U. L.Q. 707, 714 (1985).

32. 1982 Const., supra note 17, art. 51.
33. Guangming Ribao [Bright Light Daily], Nov. 15, 1980, at 3, quoted in A. Nathan, Sources

of Chinese Rights Thinking, Human Rights in Contemporary China 125, 144 (R. Edwards, L.
Henkin and A. Nathan eds., 1986).

34. Nathan gives the following example: "[A]ppeals which demand compensation that the
state cannot afford to provide have been ruled 'unreasonable' even if the citizen involved has the
law on his side." Id.

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WOMEN'S RIGHTS IN CHINA

'freedom' to marry and divorce worked against the larger objective of
economic development, the state would not hesitate to suppress the same
individual 'rights and liberties' it once championed . . *" This
limitation applies equally to the right recently granted women in the
Women's Protection Law to sue for certain rights violations.3 6 Access
to a remedy is controlled by the government-controlled Women's
Federation, the woman's work unit and the courts, all of which can
refuse to pursue a claim if the political climate dictates that enforcement
is subversive, immoral, unworthy or otherwise deemed inappropriate for
whatever reason.

Thus, the use of the English words 'constitution,' 'rights,' 'equal'
and 'egalitarian,' to describe Chinese phenomena is misleading. It tends
"to give 'familiar language about rights and procedural safeguards...
the connotations that such language carries in our own legal culture."'37

For example, among Westerners, the word 'constitution' carries
connotations of legally-enforceable rights and the term 'rights' carries
meanings derived from the European theory of 'natural rights.' Neither
of these definitions apply in China. Therefore, I assume that Chinese
laws that permit discrimination against women have been intentionally
drafted that way and are not simply the result of a failed attempt to meet
Western or international standards. As will be evident in the laws
analyzed below, the Chinese definition of the term 'women's rights' is
a highly-restricted and flexible one.

Labor Laws

The limited goals of the CCP regarding the liberation of women,
that is, to create conditions to enable women to enter the public labor
force, has meant that the elimination of discriminatory practices and
paternalistic policies in the workplace were not necessary. As a result,
women have entered the labor force in large numbers38 but not equally.
In 1949, women constituted only 7.5 percent of the paid labor force and,

35. Chang, supra note 3 at 256.
36. Women's Protection Law, supra note 6, art. 48.
37. William P. Alford, On the Limits of'Grand Theory' in Comparative Law, 61 Wash. L.

Rev. 945, 947 (1986), quoted in Lubman, supra note 28, at 327.
38. The 1990 census reports that women now comprise 37.6% of the work force (and 48.4%

of the population). Women: A Force in Public Life, Beijing Rev., Mar. 9-15, 1992, at 19.

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by 1988, they made up 37.5 percent,39 with the majority of them
concentrated in the-lower paid and less secure private and collective
sector.4" They now predominate in manual labor (almost half are in
agriculture, animal husbandry and fisheries) and occupy a very low
percentage of the technical or managerial-level positions. Women also
suffer from discriminatory treatment in hiring,4' training and
promotion,42 and bear a disproportionate share of unemployment43 and
layoffs.44 In the political arena, they have fared even worse. In the 13th
Party Congress, there were no women on the influential State Council,
in leadership positions in the National People's Congress (but 21.3
percent of the representatives were women) or the Party, or as heads of
any of the 41 ministries.45

As a result, women receive 84 percent of men's average monthly
salary between the ages of 20-45 and only 56 percent by age 55.46 The

39. CongZhibiao Tixi Kan Woguo Funti Diwei [Analyzing Women's Status Using an Index
System], I Xuexi yu Tansuo [Study and Explore] 51 (1991) (on file with author).

40. In Longkou City in Shandong Province, 80% of workers in the textile, garment and
household electronic appliance industry workers are women (Chinese Women: Active in Society,
Beijing Rev., Nov. 12-18, 1990, at 20, 21) and women constitute 90% of the labor force in small
town industries of wool spinning, clothing, handicraft weaving, toys and electronics (Working
Women, 1334 China News Analysis 1, 2 (May 1, 1987). See also Jacka, supra note 3 at 15; Hu,
Li and Shi, Analysis of Wages and Bonus Payments Among Tianjin Urban Workers, 113 China
Q. 77, 81 (1988).

41. A 1987 survey of 660 enterprises in II provinces, autonomous regions and municipalities
conducted by the Women Workers Committee of the All-China Federation of Trade Unions,
revealed that "only 5.3% of employers were willing to hire women forjobs that can be performed
by either sex." Women Demand Equal Employment Opportunities, Xinhua [New China], Feb. 25,
1988. Even those employers willing to hire women often require women to score higher on
entrance tests than men. Working Women, supra note 40, at 2.

42. Working Women, supra note 40, at 3.
43. In one city, "70 percent of the jobless youth are female" (Problems Facing Employment

of Women Explored, Xinhua [New China], Oct. 22, 1988) and in some other cities up to 80% of
all unemployed youth are women (New Labor System, supra note 25, at 32).

44. The 1987 survey reports that 64% of redundant workers are women. Preliminary Analysis
Report on the Survey of the Social Status of China's Women, 26 Chinese education and Society
7 (1993). It should be kept in mind that women only constitute 37.6% of the total work force.

45. Zhonggong Zuigao Lingdao Ceng [The Highest Leaders of China's Government and
Party] 309-320 (1989); Zhongguo Funtil Tongji Ziliao [Statistics on Chinese Women] 571-72
(1991) (on file with author).

46. Zhongguo Funtil Shehui Diwei Gaiguan [General Observations on the Social Status of
Chinese Women] 86 (1993). Only 1.43% have leadership positions in the CCP, government,
professions and industry, 9.12% are specialized and technical personnel, 6.03% are office workers,
12.38% are in the commercial service sector, 48.36% are in agriculture, livestock, forestry and
fishery, and 21.11% are in manufacturing and transportation. Preliminary Analysis Report, supra
note 44, at 9. The complete study is contained in the General Observations cited immediately

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WOMEN'S RIGHTS IN CHINA

difference cannot be explained by educational level as women
consistently make less than men at all educational levels.47 Salary
differentials only tell part of the story. The differential is actually much
larger due to men's greater ability, through their near monopoly on
public and private managerial and administrative jobs, to obtain in-kind
perquisites, such as personal and exclusive of a company car, assignment
of bigger and better housing, the ability to travel and give frequent
banquets at company expense. Also, such positions of power bring the
ability to sell or exchange favors (otherwise known as corrupt practices)
for scarce or expensive commodities. Consequently, for those holding
positions of power, salaries constitute only a fraction of the real value of
the job.

Discriminatory treatment is not always result of misinterpretation
or improper implementation of the law, or a willingness of people to
violate the law. It is often legal. For example, female laborers
(nUgongren) must retire at 50 while male laborers can work until 6 04S

Female cadres who are not professionals or intellectuals must retire at 55,
while their male counterparts can work until age 60. Certain female
teachers, doctors and scientific and technical personal can retire at 60,
while their male counterparts retire at 65.50 This age difference has been
cited by numerous employers as an excuse not to hire women because
early retirement results in work units having to make pension payments
for five or ten years longer to women than to men.5' Alternatively, the
fact that women will work five or ten years fewer than men has also

above. The study was conducted by the All-China Women's Federation and the State Statistical
Bureau in 1990-1991.

47. General Observations on the Social Status of Chinese Women, supra note 46, at 87.
48. Guowuyuan Guanyu Gongren Tuixiu, Tuizide Zanxing Banfa [State Council Interim

Procedures Concerning Retirement or Resignation of Workers], art. I(1) (June 3, 1978), reprinted
in Zhonghua Renmin Gongheguo Falli Quanshu [Collection of the Laws of the PRC] 1393 (1990)
[hereinafter Law Collection].

49. Guowuyuan Guanyu Anzhi Lao, Ruo, Bing, Can Ganbude Zanxing Banfa [Temporary
Procedures Regarding Placement of Cadres Who are Old, Weak, Ill or Disabled], art. 4 (June 3,
1978), reprinted in Law Collection, supra note 48, at 1380. Only women intellectuals "can now
retire at the same age as their male colleagues - 60." New Rule for Female Professionals, China
Daily, Feb. 25, 1991, at 4.

50. Guowuyuan Guanyu Yanchang Bufen Gugan Laoshi, Yisheng, Kejirenyuan Tuixiu
Nianlingde Tongzhi [State Council Circular Extending the Retirement Age of Some Essential
Teachers, Doctors, Scientists and Technicians] (Sept. 12, 1983), reprinted in Law Colleetion, supra
note 48, at 1389.

51. Equal Rights to Education Should Be Guaranteed, China Daily, Dec. 4, 1990 at 4.

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provided work units with an excuse not to train or promote women.52

Many women I met in China were deeply angered at the unfairness of
being forced to retire at an age when they were still healthy and able to
work, while their male counterparts were not.

Perhaps the major legal source of discriminatory treatment of
women is the Labor Protection Regulations, which were promulgated to
"reduce and resolve special difficulties encountered in labor and work.
. by female staff and workers due to their physiological characteristics,

[to] protect their health and contribute to the building of socialist
modernization."53 The Labor Protection Regulations prohibit women
from working in mine pits54 or in certain unspecified types of labor that
are determined by the Ministry of Labor as "unsuitable" for women.55

Similar power is delegated under the Hiring Regulations to individual
enterprises, which may legally refuse to hire women if, in the opinion of
enterprise management, women are unsuitable for the job. 6 The law
contains the assumption that, unless the contrary is shown, men are
suitable for all types of jobs while all women are assumed to be
unsuitable for certain types of work. Further, the law can be applied
arbitrarily as neither set of regulations contains any criteria for
determining which circumstances are unsuitable for women. Both sets of
Regulations appear to have been written by people who believe that the
nature of women's "special characteristics" is so well understood by the
public that there is no need to describe those characteristics or to prove
any causal connection between those characteristics and women's
presumed inability to perform certain types of work. The drafters simply
assumed that all women are constitutionally unfit, due to their sex, to
perform the same work as men. These laws confer a second-class status

52. Working Women, supra note 40, at 3.
53. NUzigong Laodong Baohu Guiding [Regulations for the Protection of Female Staff and

Laborers], art. I (Sept. 1, 1988) [hereinafter Labor Protection Regulations] (on file with author).
These regulations only apply to "state organizations, mass organizations, enterprises and
institutions" and not to agriculture, collectives or the private sector where most women work.
Thus, mainly city women are affected. Id. art 2.

54. Id. art. 5.
55. Id. art. 16.
56. Guoying Qiye Zhaoyong Gongren Zanxing Guiding [Provisional Regulations on Hiring

of Workers in State Enterprises], art. 8 (Oct. 1, 1986), trans. in H.K. Josephs, Labor Law in China:
Choice and Responsibility 160 (1990). This renders ineffective another provision requiring
enterprises to hire workers "from society at large" by taking those "who have scored highest on
a comprehensive examination." Id. art. 2.

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WOMEN'S RIGHTS IN CHINA

upon all women and support the deeply-ingrained Chinese belief that
women are physically inferior to men.7

The regulations also assume that, once women do find work, they
must be protected. During menstruation, women are prevented from
working at "high altitude[s], in places with low temperature[s], in cold
water, or on jobs with a labour intensity of third grade, as stipulated by
the state."58 During pregnancy, women may not engage in labor
involving any work "which should not be done during pregnancy," may
not work overtime or on night shifts and must have rest periods at
work.59 Again, the drafters believed, without supporting evidence, that
certain (unspecified) "physiological characteristics" render women
physically unable to work up to capacity during menstruation and during
the entire nine-month term of pregnancy.

The drafters also assumed (and made sure) that women are solely
responsible for burdens associated with reproduction and childcare. The
Labor Protection Regulations impose all pregnancy and child-care-related
expenses upon the employers of women workers.60 An enterprise that
has women workers with small children must provide nursing mothers
with two thirty-minute breaks for baby feeding,6' and, if it employs a
large number of women, it must "establish health clinics, restrooms for
pregnant women, breast-feeding rooms, childcare centres and
kindergartens."62 In addition, work units often must pay the entire
government-mandated "one-child allowances" to mothers, but not to
fathers.63 By imposing child-bearing and childeare costs on the
woman's work unit, the regulations explicitly support the view that

57. The Deputy Director of the Department of Labor Management and Employment of the
Ministry of Labor, has expressed this assumption openly: "Because of the physiological and
psychological differences between men and women, the difference between them in physical
strength, intelligence and capability, and personality traits is fairly large." Vigorously Open Wide
Employment Channels, Find Places for City-Towrn Women, Gongren Ribao [Workers' Daily], Apr.
9, 1991, at 5 (on file with author).

58. Labor Protection Regulations, supra note 53, art. 6.
59. Id. art. 7.
60. There have been some attempts to share this burden between the wife's and husband's

work units and suggestions have been made that a fund should be set up to pay these expenses so
that they do not fall exclusively on the women's work units. However, there is no evidence yet
that these suggestions have been implemented extensively.

61. Labor Protection Regulations, supra note 53, art. 9.
62. Id. art. 11.
63. Working Women, supra note 40, at 3. Some local regulations require the cost to be split

between the parents' work units but in the majority of localities, the women's work units normally
pay the entire sum.

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JOURNAL OF CHINESE LAW

women alone are responsible for child care. This view of women is also
reflected in a regulation that permits work units to punish unmarried
pregnant women but not the unmarried fathers."

Lastly, the Labor Protection Regulations assume, and support the
belief, that women are intellectually inferior to men. Women, unlike
men, are not permitted to decide for themselves whether or not to
assume work-related risks, such as in mining, despite the fact that, in
some areas of China, mining may be the only work available.65 They
are also not permitted to decide whether or not they are able to work
when menstruating or pregnant. Men do not suffer from any similar
restrictions regarding work-related risks or illness. It could be argued that
such laws protect women from exploitation and possible damage to their
reproductive organs. This argument fails on two counts. First, an
employer in a socialist country is presumably unable to exploit workers
who collectively own the means of production. Second, if a woman's
reproductive organs are at risk, evidence from studies outside China have
shown that men's reproductive organs are also at risk under the same
circumstances. The best explanation for the existence of paternalistic
laws applicable only to women is the belief among many Chinese people
that women are simply inferior to men and, as such, men (either
personally, or in the form of the employer or the government) have a
right, perhaps even a duty, to make certain decisions for women.6

The consequences of the "special" treatment of women has been
extremely negative.67 In the new socialist-market economy, factory
managers are responsible for profits and losses and cite such costly

64. Guanyu Nizigong Feihun Shengyushi Shifou Xiangshou Laobao Taidai Wenti (Jielu)
[Relating to the Issue of Whether or Not When Unmarried Women Workers Giving Birth Can
Receive the Special Labor Treatment (Extract)] (Sept. 10, 1965), reprinted in Compilation of Laws,
supra note 8, at 171.

65. Debate Over Women's Labour Laws, China Daily, Dec. 10, 1990, at 1. It may be the
case that such laws were drafted in response to particular cases of exploitation or mistreatment of
women. Laws could have been drafted to protect all workers from such treatment without creating
a sex-based class of workers.

66. The lack of any special provisions in Chinese laws to protect men, as a class, indicates
that women are power-less and men power-full, and supports the view that the government believes
that men have a paternalistic obligation to protect power-less women. For a more sympathetic
view of China's protectionist labor laws, see Margaret Y.K. Woo, Biology and Equality:
Challenge for Feminism in the Socialist and the Liberal State, 42 Emory L.J. 143 (1993).

67. Western feminists have been highly critical of laws that treat women as 'special' in the
context of a legal system that treats men as the 'norm.' See, e.g., Eisenstein, supra note i; Ann
C. Scales, The Emergence of a Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373 (1986).

[8:47



WOMEN'S RIGHTS IN CHINA

regulations as a justification for not hiring women.68 They point out
that factories employing a large number of women workers suffer losses
due to the extra costs associated with women workers.69 Even factories
that do hire women often refuse to provide the required special facilities
for women or implement the special work rules for women.7" Laws like
the ones providing for women's early retirement and expensive social
welfare benefits at work have provided enterprises with excuses for
discriminating against women in hiring, promotion, training and layoffs.
No matter what the stated purpose of the laws is, the bottom line for
women is that the regulations cost them dearly in terms of a
disproportionately high rate of unemployment (often hidden under the
euphemistic title "waiting for work") and lower wages.

The liberation through labor theory, then, does not mean that
women can exchange their traditional household and caregiving roles for
a job and shared household and childcare responsibilities. Neither does
the constitutional promise that "women enjoy equal rights with men"7'

mean that women have equal access to employment opportunities or
equal treatment once employed. Rather, it means separate but equal:
separate because women have access to some jobs but not necessarily the
same jobs as men and equal in the sense that, if the government fulfills
its promise of providing some type of work for all able adults, women's
and men's right to work has been realized.7 2 According to this rationale,
if there are no jobs available in the fields classified as 'women's work'
(e.g., factory work in the collective sector), then the fact that women find
it more difficult than men to find jobs is attributable to a lack of jobs
rather than to discrimination. The legal justification for separate but

68. "[E]nterprises have exercised theirgrowing autonomy by hiring fewer women. Enterprise
administrators have stated that they hire as few women as possible, for a variety ofreasons. '**
Another reason given is that protective regulations allowing time off for maternity leave and child
care impose an economic cost on the enterprise. In addition, the fewer the numb-r of female
employees, the lower the investment necessary in enterprise nurseries and schools." Joscphs, supra
note 56, at 50-51 (footnotes omitted).

69. Factories Employing More Women Suffer Losses, China Daily, Mar. 26, 1988, at 3.
70. More Than Half of 425 Enterprises Have Not Yet Implemented the Regulations for the

Protection of Female Staff and Workers, Zhongguo Funibao [Women of China], Nov. 8, 1989,
at I (on file with author).

71. 1982 Const., supra note 17, art. 48.
72. A representative of the Women's Federation in Changchun, Jilin Province, told me that

a woman who is not hired because an enterprise does not hire women would be assigned to another
job by the government. She did not believe that women in this situation have any right to
complain because individual choice of work is not the issue. The issue is whether or not women
are able to find work. See 1982 Const., supra note 17, art. 42.

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JOURNAL OF CHINESE L4W

equal treatment is based on the assumption that women are physically
and intellectually inferior to men. This does not conflict with Chinese
rights theory because programmatic rights are not founded on the 'natural
rights' theory but are created and defined by the state. The Chinese
definition of equality in labor, then, simply means that women have an
equal right to some type of work, if and when the government needs
their labor.

Likewise, the Constitutional promise of "equal pay for equal
work"7 3 is qualified. Equal pay requires the existence of equal work,
and equal work requires that women and men perform the same or
similar type of work. As women's work is ghettoized into the textile,
garment, household electrical appliance industries and collective sectors
and men work predominantly in the higher-paid public sector, women
cannot perform the same type of work as men, leaving a majority of
women unable to demand higher pay. Similarly, women who are hired
for the same jobs as men cannot be expected to be paid equally if the
law requires them to be excused periodically from working or to be
given lighter duties due to their "special characteristics." Women who are
not permitted by law to perform the 'same' quality or amount of work
as men can justifiably be paid less than men.

Given the limited, programmatic and relativistic definition of
equality and the limited goals of the liberation through labor theory, the
government can assert that legal equality in the labor field has been
accomplished and that the existing female unemployment problem is a
result of other factors, such as economic restructuring. It can also cite the
number of women who now work in the public sector as proof of the
efficacy of its policy since the primary goal of the labor through
liberation policy was to increase the number of women in the paid work
force and not to provide equality of opportunity and treatment. Likewise,
the government can maintain that women do not suffer from negative
discrimination because the laws that treat women differently from men
are actually instances of positive discrimination for women because those
laws provide women with privileges unavailable to men.

73. Id. art. 48.

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WOMEN'S RIGHTS IN CHINA

Education

All Chinese children have a constitutional "right to receive (an]
education.7 4 The substance of this right is found in the Compulsory
Education Law, which mandates nine years of education for all
children." Despite its gender-neutral language, seventy percent of all
illiterates and semi-literates in China are women,76 which means that,
out of over 500 million women, over 150 million are illiterate or semi-
literate77 and 64 percent of all school dropouts under the age of fifteen
are girls.78 Either the law is not being enforced equally against parents
of boys and girls or parents are more likely to keep their daughters at
home and send their sons to school.

While it is certainly true that parents see no benefit in educating
daughters who will become members of their husbands' families upon
marriage, it is also true that the problem is aggravated by the law.
Parents who illegally keep their children out of school are merely
required to undergo criticism and send the children to school, that is, if
the local authorities decide to enforce the law (which it appears they
seldom do).79 Under the current economic reform policy, individuals are
allowed to earn cash from private or collective enterprises, which, in
turn, provides families with a strong incentive to put their daughters to
work during the short term before their marriage. Even the risk of
punishment for breaking the Compulsory Education Law is not a
deterrent because the punishment is so slight."0 There is less incentive
to keep sons at home since investing in the education of a son holds the
long-term possibility of a future reward in terms of the son's potentially
higher income and greater ability to support his parents in their old age.

Parents can also legally keep their children out of school if they can
prove to local authorities (who probably share the parents' views) that
"special circumstances" (undefined) exist.81 This combination of a weak

74. Id. art. 46.
75. ZhonghuaRenmin Gongheguo Yiu% Jiaoyufa [Compulsory Education Law ofthe P.R.C.],

art. 2 (July 1, 1986) [hereinafter Compulsory Education Law], trans. in The Laws of the P.R.C.
(1979-1982) 250-253 (Beijing, 1987) [hereinafter Laws of the PRC].

76. Statistics on Chinese Women, supra note 45, at 63.
77. Zhiding Funtifa de Shikao [Thoughts on the Proposed Women's Law], I Funtl Yanjiu

[Women's Research] 3, 4 (1990).
78. Statistics on Chinese Women, supra note 45, at 219, 223.
79. Compulsory Education Law, supra note 75, art. 15.
80. Girls Strike for Right To Attend School, S. China Morning Post, Dec. 5, 1988, at 1.
81. Compulsory Education Law, supra note 75, art. 11.

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JOURNAL OF CHINESE L4W

enforcement mechanism and a standard-less exemption provision does
little to change the public's belief that educating a daughter is like
watering a neighbor's garden.2

Girls who do manage to attend school beyond the primary grades
face further discrimination. Entrance to Chinese universities is reasonably
fair as, until recently, it has been based upon comparable entrance
examinations scores of boys and girls (at least at the undergraduate
level).83  However, because fewer girls are graduated from high
school, 4 fewer are able to enter college and fewer graduate,85 or go
on to obtain master's or Ph.D degrees.6

Girls who do not attend university but who are channelled into one
of the special secondary schools are often discriminated against in
admittance and types of training offered. Even though girls constituted
45 percent of the graduates from such schools in 1990,87 that figure is
misleading. It hides the fact that these schools often have explicitly-
discriminatory admissions policies and often operate as separate schools
for girls and boys, with each having its own gender-related training
courses.

Typical is Shanghai where a report on the status of women in
polytechnic and vocational schools found that "women accounted for 70
percent of the students" denied admittance to senior middle school,
polytechnic and vocational schools.8 The Shanghai Education Bureau's
response was not to prohibit the use of discriminatory admission
requirements; instead, it drafted regulations to assure women a certain
number of positions in the city's polytechnic and vocational schools. It
also set up several women-only vocational schools "in a bid to guarantee
women's.fill right to education."9 Presumably most of the women-only

82. This belief is also captured in the expression, 'a woman without ability is a woman of
virtue' (nt! wu cai jiu shi de).

83. Higher education is becoming a market commodity with the highest bidder obtaining
admission to some universities. See For Sale: Degrees in Guangdong, S. China Morning Post,
July 18, 1993, at 3 ("Half the places at Guangdong [Province] universities are for sale....").

84. Girls constitute 38% of high school graduates. Zhongguo Jiaoyu Tongji Nianjian
[Educational Statistics Yearbook of China] 60 (State Ed. Comm., 1991/92).

85. Girls constitute 33% of the entering and 20% of the graduating classes. Id. at 22.
86. Master's degree: women constitute 27% of the entrants and 25% of the graduates; Ph.D.

degree: women constitute 11% of the entrants and 10% of the graduates. Id. at 38-39.
87. Id. at 71.
88. Equal Rights, supra note 51.
89. Id. (emphasis added). The use of the term "full" rights is ambiguous. Apparently, it is

satisfied by providing separate and unequal or dissimilar educational opportunities to girls and
boys.

[8:47



WOMEN'S RIGHTS IN CHINA

slots will be filled by women studying in women-only vocational schools
(instead of in the existing, predominantly male, schools). The Bureau
also set aside certain subjects, such as "nursing, typewriting, long-
distance telephone operating, and kindergarten teaching" for women.P'
Unfortunately, the fields selected are already occupied almost entirely by
women and so the set-aside will not provide additional employment
opportunities for women graduates. The set-asides and the women-only
schools will only further ghettoize women's work and make it practically
impossible for women ever to 'catch up' with men who will continue to
receive training that prepares them for the more technical, higher-paying
and/or more important work. This type of women's education makes it
virtually impossible for women to move out of 'women's work' into the
more challenging fields now occupied predominantly by men.

The Education Law and other, similar facially-neutral laws provide
legal equality without sexual equality. As described by Zillah Eisenstein:
"Legal equality is part of, but not the same as, sexual equality, which
involves extralegal relations of power."9' In China, those extralegal
relations of power are the existing political, economic and social
structures that favor and privilege men over women and boys over girls.
A facially-neutral law ignores this reality because it contains an
assumption of an equality that does not exist; therefore, the law
perpetuates rather than solves the existing sexual inequalities that become
apparent upon implementation. In this sense, the laws are dishonest and
misleading because they appear to treat both sexes equally but, in fact,
do not.

The government currently has no incentive to intervene and assure
equality of opportunity and treatment of girls and boys because of the
continuing high overall rate of unemployment. Under these
circumstances, the cost of educating girls is high when compared to the
low demand for an educated female labor force. Women's education is
simply less important than men's under the current economic reform.
Just as women are now expected to give up their jobs to men, they are
also expected to abandon their hopes for an education equal to that given
to men. From the government's perspective, any increase in the level of
women's education would be counterproductive and an expensive waste

90. Id. Women who are "short, clumsy and unattractive," need not apply, however, to nursing
school in Beijing. Authorities Get Sick of Ugly Nurses, S. China Morning Post, Oct. 18, 1991,
at 12.

91. Eisenstein, supra note 1, at 71.

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of resources. Thus, girls' and women's low level of education actually
plays a very important role in making women less desirable employees,
thereby increasing men's job opportunities and ensuring the dependency
of women upon men.

The Women's Protection Law makes some attempt to address this
problem. It gives the Women's Federations, the supervising department
and the courts the power to order "corrections" and impose
administrative sanctions in cases where a work unit or an individual has
violated "the principle of equality between men and women in such
aspects as starting school [or] entering a higher school."92 This
provision will not serve to increase the attendance of young girls unless
someone makes a complaint on their behalf. It is unlikely that any girl
would charge her parents with a violation. As to older female students,
given the Chinese view that separate but equal satisfies the requirement
for 'equality,' this provision will probably not be used to require school
districts, such as the one in Shanghai, to admit girls to vocational and
technical schools on a non-discriminatory basis. The Chinese view,
presumably, would be that the principle of equality has not been violated
by the Shanghai authorities or any other similar local authorities as long
as girls have been provided with some type of opportunity to study.
Whether or not girls should be treated the same as boys is irrelevant to
this view of equality in education.

Marriage and Divorce

Women's status in marriage has been raised dramatically by the
implementation of laws granting men and women the right to choose
their own marriage partners, prohibiting forced marriages, and permitting
non-consensual divorce.93 The underlying principle is that marriage is
"based ... on equal rights for the sexes.94 The extent of the changes
brought about as a result is shown in a recent study in which it was
found that over 79 percent of women under the age of 40 have made
their own marriage decisions while only 24 percent of the women over

92. Women's Protection Law, supra note 6, art. 50.
93. 1982 Const., supra note 17, art. 49; Zhonghua Renmin Gongheguo Hunyinfa [The

Marriage Law of the P.R.C.],arts. 24-25 (Jan. 1, 1981) [hereinafter 1981 Marriage Law]; General
Principles of the Civil Code, art. 103 (Jan. 1, 1987) [hereinafter Civil Code]; Women's Protection
Law, supra note 6, art. 41.

94. 1981 Marriage Law, supra note 93, art. 2.

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WOMEN'S RIGHTS IN CHINA

the age of 40 had married according to their own choice.95 The 1950
and 1981 Marriage Laws can be credited with bringing about this
dramatic increase in free-choice marriages.

Nonetheless, the same statistics also reveal that over 20 percent of
women under the age of 40 have entered into forced marriages, which,
although they have been registered, are unlawful. One consequence of
the waning influence of the government over people's daily lives has
been a dramatic increase in unregistered "marriages,"96 which are also
unlawful even though both partners have freely consented to the union.
Many union are unregistered because women have not reached the legal
age and cannot be registered.97 Also, many families simply wants to rid
themselves of the expense of supporting their daughters, preferring
instead to collect the brideprice as soon as possible. Unfortunately, even
after couples reach the legal age, many simply never bother with a
registration as in Chinese society the real 'marriage' occurs during a
traditional, formal ceremony and banquet. Registration is viewed as
merely a bothersome legal formality having no effect upon whether, in
the public's view, the couple is married.

Serious consequences flow from unlawful marriages as neither
partner can turn to the Marriage Law for protection in the event of
separation. The law simply does not recognize common-law type
marriages. Women are more at risk than men in this situation and rural
women are particularly vulnerable. Many of them are in unregistered or
non-consensual unions and they typically live in the men's villages or
towns. They will find it difficult, if not impossible, to find justice in the
courts, as it is unlikely that anyone from the man's village or town
would support a woman's claims against the claims of the local man and
his family. Thus, if couples in unlawful marriages go to court to divide
up their wealth, the woman is likely to lose. Without the support of the
Marriage Law, the woman will have to prove a contractual or other right
to a share of their property. The local courts would be more sympathetic
to the local man and give the women little or none of the couple's assets,
especially if those assets consist of property held in the man's village,
such as land or a business. As outsider, the woman would find it difficult

95. Preliminary Analysis Report, supra note 44.
96. E.g., Fazhi Ribao [Legal Daily], Feb. 28, 1990, at 3. Most unregistered marriages are in

the countryside (up to 57% in one region) but there still exists a substantial number in urban areas
(e.g., between 15-20% in Harbin, Heilongjiang Province).

97. Twenty for women and twenty-two for men. 19S1 Marriage Law, supra note 93, art. 5.

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for her to prove that any of that property belongs to her, even if her
labor has contributed to the property's value. It is possible, however, if
there was a long-term relationship and children, that the property might
be divided more evenly between the two parties.98

Women face other problems that are hidden in the neutral language
of the Marriage Law. All mothers, married or not, are treated the same
with regard to child custody decisions.99 Thus, breast-feeding mothers
are guaranteed custody of the infant00 but otherwise women must
compete with fathers for custody. Rural women, whether in lawful or
unlawful marriages, are disadvantaged by patrilocal residence patterns
and patrilineal descent practices that prevent women from accumulating
wealth, which in turn prevents them from arguing that they are equally
able to support their children. Urban women, who are statistically more
likely to divorce and who do have more financial independence, still may
fail to obtain custody, or are forced to give up custody, because they
have no place to live after divorce. The reason for this is simple. Until
recently, work units, which have the responsibility of providing workers
with housing, could legally refuse to allocate housing to women or else
make it exceedingly difficult for women to obtain housing.'0' At most,
a work unit would allocate a bed in a dormitory for unmarried female
employees. The only other alternative for divorced women is to live with
their parents.0 2 This discriminatory housing practice has caused many
women to lose their custody battles to fathers who have housing.

Another facially-neutral provision of the Marriage Law more
obviously reflects the government's sexual bias against women. Persons
married to someone who is "on active service" in the military cannot
obtain a divorce without the spouse's consent.'0 3 This benefits men
almost exclusively as men constitute the overwhelming majority of
members of the military, which means that military wives do not have

98. See, e.g., Lun Woguo Weifa Jiehun, Wuxiao Xuangao Zhidu [A Discussion About
Unlawful Marriages and the Announcement of a System for Invalidating Such Marriages], I Funto
yu Jiating [Women and Family] 22-25 (1990).

99. Id.
100. 1981 Marriage Law, supra note 93, art. 29.
101. Women Wake Up to Legal Rights, China Daily, Jan. 4, 1993, at 4; E. Honig & G.

Hershatter, Personal Voices: Chinese Women in the 1980's 140-41, 225-26 (1988).
102. 1 do not know what happens in child custody cases in the countryside. Peasant women

probably face even more discrimination because the courts are located in the man's community and
might be exceedingly ill-disposed to give custody, especially of a son, to a woman who would no
longer live in the man's village or town.

103. 1981 Marriage Law, supra note 93, art. 26.

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WOMEN'S RIGHTS IN CHINA

the same right of divorce as non-military wives have. Recent evidence
from the non-military sector has shown that, in the majority of divorce
cases filed in Beijing, the complainant is the woman."4 Assuming that
the same situation exists in the case of military divorces, then military
wives are doubly harmed by this law: the majority of the military
spouses denied the right to divorce are women and the majority of the
spouses who would want to divorce are women. The effect of the law is
to ensure the patriarchal structure of military marriages by giving men
total control over their wives' freedom in marriage for the duration of
the husband's military career."0 5 This power of control is another
expression of the CCP's desire, evident from the very beginning days of
the Party, to avoid alienating men who may be called upon to enforce
CCP rule.' 6 Equality in marriage, as in work and education, means
that some are more equal than others.

The Women's Protection Law only addresses women's housing
problem. It offers two solutions. One, men and women are to be "treated
equally when it comes to housing assignments, . . ." and women who
feel that they have been discriminated against can now force their work
units to allocate housing in a non-discriminatory manner."' Since
implementation of the Women's Protection Law, a group of women has
successfully resorted to this new legal protection to force its work unit
to cease discriminatory housing practices. 8 Two, upon divorce, a
husband must "do all he can to help the wife solve her housing
problem."'0 9 Unfortunately, until housing becomes a commodity rather
than a work-related benefit, divorced women's housing problems will not

104. In 1990, 30% of all civil cases in the Beijing Intermediate People's Court wre divorce
cases and 60% of all divorce cases were "initiated by women.' Divorces Top List of Civil Cases
in Beijing, China Daily, Apr. 12, 1991, at 3.

105. The Marriage Law also prevents men from divorcing their wives during pregnancy and
until the child is one year old, unless the court decides that the divorce is "absolutely necessary."
1981 Marriage Law, supra note 93, art. 27. So, while military wives may never be able to divorce,
husbands vith pregnant wives must wait, at most, only a twenty-one month period for a divorce,
and with the court's permission, even less time.

106. "[I]t is essential truly to understand the principle ofprotecting the marriage and family
of members of the armed forces on active service and resolutely to oppose and destroy any
unlawful conduct pertaining to their marriage and family." Li, Post-divorce Problems in the
Rearing and Education of the Children and in the [Division of the] Conjugal Estate, Talks on the
New Marriage Law 46 (1980), quoted in Michael Palmer, The People's Republic ofChina: Some
General Observations on Family Law, 25 J. Farn. L. 41, 63 (1986-87).

107. Women's Protection Law, supra note 6, arts. 23, 50.
108. Women Wake Up, supra note 101.
109. Women's Protection Law, supra note 6, art. 44.

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and cannot be solved. As a commodity, the couple's residence could be
given to either party; as a work-related benefit, their residence will
always belong to the husband. The divorced (or never married) woman's
ability to obtain housing will depend upon the availability of housing in
the woman's work unit.

The Marriage Law, therefore, does not in fact provide for sexual
equality. Like the Education Law, it contains impediments to true
equality in marriage and marriage-like unions for all women even though
it appears to express no preference for one sex over another.

Inheritance Rights

The Constitution,"' the Civil Code"' and the Marriage
Law" 2 guarantee the right of inheritance, but the meaning of that right
is not obvious and must be interpreted in light of the Inheritance
Law. 13 The Inheritance Law gives women and men the same right to
dispose of their property in a will," 4 and in the absence of a will, it
gives daughters and sons an equal right to inherit."' Widows and
widowers as well have an equal right to inherit from each other's
estate."'6 Especially favorable to women is the ability of widows who
remarry to keep the property they inherited from their deceased
husbands' estates,' whereas widows previously left their in-laws'
homes empty-handed.

Although the Inheritance Law is facially neutral, the fact that rural
men rarely move into their in-laws' homes or villages means that the
Law has a disparate impact upon rural women."' While rural widows
may have gained new legal rights of inheritance, they may not be able,

110. 1982 Const., supra note 17, art. 13.
111. Civil Code, supra note 93, art. 76.
112. 1981 Marriage Law, supra note 93, art. 18.
113. Law of Succession of the P.R.C. (Oct. 1, 1985) [hereinafter Inheritance Law], trans. in

Laws of the PRC, supra note 75, at 169-175.
114. Id. art. 16.
115. Id. arts. 10, 13.
116. Id. arts. 10, 26.
117. Id. art. 30.
118. Most urban women should face fewer inheritance problems because urban families, until

recently, did not own real property and the limited amount of cash and personal property they
possessed was much easier to divide and distribute. Additionally, urban women are more likely
to work and have their own work-related retirement benefits whereas rural women typically work
on the land and have no such benefits.

[8:47



WOMEN'S RIGHTS IN CHINA

as a practical matter, to exercise those rights. Daughters-in-law may face
difficulties enforcing their statutory right to inherit directly from their in-
laws. 9 A rural widow who remarries and leaves her deceased
husband's village will find it difficult to take any family property that is
tied to the livelihood of her husband's family, despite the fact that she
may claim whatever she has inherited from her deceased husband and/or
her deceased in-laws . 2 At most, she might sell her interest in the
property to the family, but, more typically, she would simply be forced
to abandon her property right.

As for inheriting from her own family, all of a rural family's
property traditionally passes to the sons, notwithstanding legal provisions
to the contrary, thus making it difficult for a woman to assert her legal
right to a share. A married daughter would hesitate to take her share of
her natal family's property because doing so would enrich her husband's
family to the detriment of her own parents and male siblings.

These statutory rights of inheritance may be avoided by the
execution of a will.' 2 ' This was added, notes Louis Schwartz, in an
attempt to resolve the conflict between the right of an individual to
dispose of her or his own property and out of the desire to prevent
generally discriminatory treatment of women. Schwartz points out that
the majority of Chinese scholars have come down on the side of the right
to dispose of property, leaving it to the "legal propaganda machinery" to
change people's erroneous thinking.2 2 In a weak attempt to address the
problem of indigent widows, daughters and daughters-in-law, the drafters
have added the provision that "the will should set aside a certain portion
of the left-over property for inheritors who lack work ability and have
no income for living."'" It is unclear whether or not a court has the
power to set aside a portion of the estate passed through a will or to
render the will invalid if the will does not contain a provision for the
support of a destitute wife, daughter or daughter-in-law. A literal
interpretation would not give the court such powers as the clause appears
to provide that, if there is 'left-over property' and, if an inheritor named
in the will is destitute, then the court has the power to allocate that

119. Inheritance Law, supra note 113, arts. 10, 12.
120. 1981 Marriage Law, supra note 93, art. 12.
121. Louis B. Schwartz, The Inheritance Law of the People's Republic of China, 28 Harv.

Int'l. L.J. 433, 453 (1987).
122. Id. at 454.
123. Inheritance Law, supra note 113, art. 19.

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property to that person. Otherwise, the court has no power to reallocate
property to a destitute wife, daughter or daughter-in-law.

The Women's Protection Law has attempted to clarify only one of
these problems. It reaffirms a woman's right to property in her husband's
village by stating that women have an equal allotment, during and after
marriage, to the family's "responsibility farmland, or grain ration'
farmland and ... housing sites" and that administrative sanctions can be
imposed against anyone interfering with this right to an allotment.24
This means that rural divorced women and widows (but not women in
unlawful unions) have a legal right to stay on their share of the land or
to sell their right to farm the land. However, the reality is that very few
women will ever go to court to assert ownership of land located in the
man's village, especially after divorce or widowhood. The patriarchal
family within the patrilocal community will always have greater control
of the family's assets and a greater perceived right to the land than a
women can ever have, no matter what the law dictates.

The superficially even-handed approach of the Inheritance Law,
then, fails to recognize and deal with the problems of traditional attitudes
and practices, thereby failing to provide women with any real
opportunity to equal treatment in inheritance. It does little to ensure that
unmarried, divorced or widowed rural women will have a means or
support, much less receive just compensation for their contribution to
their natal family's and husband's families' wealth. The Law does not
mandate or guarantee equal treatment; rather it permits testators to avoid
the law's provisions by the stroke of a pen. In intestate estates, it
requires women to enforce their rights by themselves against those who
are closest to them and whose support is vital to their existence.

Violence Against Women125

Abduction and sale of women and children. Until 1906, women
and children were routinely sold as slaves, wives or concubines, usually
without the intervention of law or society.2 6 For example, families

124. Women's Protection Law, supra note 6, art. 30 (nungcun huafen fuzitian, kouliangtian,
pizhun zhaijidi) and art. 50(5).

125. For an introduction to the issue of violence against women in China, see Honig &
Hershatter, supra note 101, ch. 8.

126. S. van der Sprenkel, Legal Institutions in Manchu China: A Sociological Analysis 27
(1977); see also E. Alabaster & Sir C. Alabaster, Notes and Commentaries on Chinese Criminal
Law 189 (1968) ("the common practice of selling a wife" was illegal, but "winked at").

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WOMEN'S RIGHTS IN CHINA

were permitted to sell their women and children in "times of
distress.127 One of the major accomplishments of the Communist
revolution was the eradication of this practice. However, since the
institution of the open-door policy and economic reforms, the sale of
women and children has returned nationwide.128 Women are now
kidnapped or sold by their families for instant cash and each year, tens
of thousands of Chinese women and children are sold (some in open-air
markets),"2 9  raped, tortured, permanently crippled, forced into
prostitution or left by their abductors with no choice but to commit
suicide.30

One response to the problem has been to blame the victim. Women
are chastised for being ignorant about their legal rights, for allowing their
greed to let them be misled by conmen, and for their lack of feminine
virtue. Despite the appearance in article after article of the many ways
in which villagers and the rural men's families prevent sold, kidnapped
and abducted women from returning home, those same articles often end
with a statement lamenting the woman's role in bringing about her
condition.' Until the government decides to tackle the status of
women in the family and encourage, even demand, equality and non-
discriminatory treatment of women and girls in the home and society, no
amount of blaming the victim will solve the problem.

The villagers' attitude has made it especially difficult to detect and
prosecute because villagers often protect the purchasers. Villagers are
notoriously sympathetic to the plight of unmarried peasant men who
cannot afford the expensive brideprice that is often demanded by the
prospective bride's parents.32

127. Van der Sprenkel, supra note 126, at 27, 63 n.2 (citing P. Hoang, Le Manage Chinois
au point de vue 1dgal, 14 Varidt6 Sinologiques 127 (1915)); Alabaster, supra note 126, at 157-58,
183.

128. Gulau de Fei'e [Ancient Evil], Wenhui Yuckan [Cultural Collections Monthly] (Feb.
1989). The numbers are huge; 32,679 abducted women lived in one county of Anhui Province
between 1980 and 1990, with 30,481 of them brought in from other provinces. Rescuing
Victimized Women, Protecting Innocent Children,8 Shanghai Shchui [Shanghai Society] 4-7 (Aug.
20, 1990) (on file with author).

129. CPPCC Exposes a Women Slaves Market on the Mainland, Hsin Wan Pao [Hong Kong
New Evening News], Mar. 27, 1989 at 3.

130. Johnson, Return of Medieval Evil, Time Magazine, Nov. 11, 1991, at 25; Sichuan
Fazhibao [Sichuan Legal News], Jan. 21, 1991, at 2.

131. See, e.g., Causes of the Crime of Abducting Women, Renmin Gongan Bao [People's
Public Security News], Aug 16, 1991 at 3; Rescuing Victimized Women, supra note 128 at 70.

132. See, e.g., Gulau de Fei'e, supra note 128.

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[P]ublic opinion tends to favor the buyers (especially in poor
regions). When women who were bought flee, the public gets
angry. The public regrets people being rescued, and accuses
the rescuers of being 'wicked and unreasonable.' *** This
situation has objectively provided market and haven for those
criminals.1

33

In a typical case, local villagers forced the police to agree to return the
rescued woman or keep her and compensate the buyer for his lost
investment.134 Punishments have been exceedingly light; the typical
response has been a warning or reprimand.35

Gaps in the law have also contributed to the problem. Until
recently, the law covered the situation where one person both abducted
and sold women,136 but not the situation where one person abducted
a woman and another person sold her.'37 Even if one person both
abducted and sold a woman, she or he was seldom punished. Instead,
these criminals were often required to engage in self-criticism for
participating in the commodity economy and/or to undergo some re-
education,'3 despite the existence of provisions requiring
imprisonment.3 9 Abductors were treated harshly only during anti-crime
campaigns when, if the abduction occurred under "especially serious"
circumstances, they were executed.4 °

133. Causes of the Crime of Abducting Women, supra note 131, at 69.
134. Sichuan Fazhibao [Sichuan Legal News], May 8, 1990, at 3. The woman was eventually

sent to her natal home and the villagers were not punished for interfering.
135. The villagers could have been sentenced to up to three years imprisonment for violently

or with threats obstructing "state personnel from carrying out their functions according to law."
Zhonghua Renmin Gongheguo Xingfa [The Criminal Law of the P.R.C.], art. 157 (Jan. I, 1980)
[hereinafter Criminal Law], trans. in Laws of the PRC, supra note 75, at 87-119. Alternatively,
the villagers could have been sentenced to fifteen days' detention, a fine or a warning if they used
non-violent means. Zhi'an Guanli Chufa Tiaoli [Security Administration Punishment Act], art.
19(7) (Oct. 22, 1957) [hereinafter SAPA] (on file with author).

136. Criminal Law, supra note 135, art. 141.
137. In Shandong Province recently, 150 peopled were released because they had not both

abducted and sold any of the victims. Zhongguo Funtlbao [Women of China], May 6, 1991, at 3
(emphasis added).

138. Id.
139. Criminal Law, supra note 135, art. 141.
140. Guanyu Yancheng Zhongweihai Shehui Zhiande Fanzuifenzide Jueding [Decision

Regarding the Severe Punishment of Criminal Elements Who Seriously Endanger Public Security],
art. 1(3) (Sept. 2, 1983) [hereinafter Serious Endangerment Decision], trans. in Laws of the PRC,
supra note 75, at 32-34.

[8:47



WOMEN'S RIGHTS IN CHINA

The law also failed to criminalize sales by the women's families or
purchases directly from the family, the kidnapper or the abductor. The
only punishment for a man who purchased a women and forced her to
marry him was a void marriage and nothing else.'4 1 The law, in effect,
gave thousands of potential purchasers the right freely to purchase
women directly or to induce others to find women for them to buy.

Two of these gaps were closed with the passage of the Decision
Relating to the Severe Punishment of Criminal Elements Who Abduct
and Kidnap Women and Children (the "Abduction Decision"). 42 The
Abduction Decision makes it clear that abductions and kidnappings are
not domestic matters and that persons who use violence or coercion to
interfere with rescues should be punished according to existing law.43

The Decision might have some effect upon deterring villagers from using
violent means but it will have little impact upon villagers' willingness to
use equally effective, but passive, means to prevent rescues. The focus
of the Decision, unfortunately, is not on the woman. From a woman's
point of view, it makes no difference whether villagers use violence or
not; either way the villagers are accomplices whose actions deprive her
of her freedom. One reason for the government's failure to consider the
problem from the woman's point of view arises from the dual nature of
the policy towards women and criminal violence within the domestic
sphere. On the one hand, it is apparent that there is a desire to protect
women, but on the other hand, there is an even greater desire to
minimize any infringement upon the right of a patriarchal community to
resolve its own 'domestic' affairs.

The Abduction Decision did, however, close the enforcement gap
that previously permitted someone who abducted a woman but did not
sell her to avoid punishment. The scope of prohibited activities has been
broadened to include all persons who abduct, buy, sell, escort or
transport women or children for the purpose of selling them. 44

Whereas, the law previously only included the category of abduction, the

141. Jiehun Dengji Banfa [Marriage Registration Method], art. 9 (Mar. 15, 1986), reported
in 1-35 Zhongguo Renmin Gongheguo Guowvuyuan Gongbao [State Council Bulletin] 183 (1986).
The regulation also refers to possible criminal sanctions, presumably for crimes such as rape, but
I did not come across any such cases reported over the years 1985-1990.

142. Guanyu Yancheng Guaimai, Banglia Funi, Ertongde Fanzuifenzide Jueding (SepL. 4,
1991) [hereinafter Abduction Decision], reported in 22 Hong Kong LJ. 81-83 (1992).

143. Id. art. 4. This was done by incorporating the pre-existing provisions for interfering wvith
government officials into the Decision. See SAPA, supra note 135.

144. Abduction Decision, supra note 142, art. I.

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Abduction Decision divides the offense into two categories: (1) abduction
and/or selling an abducted woman or child 145 and (2) kidnapping
women or children for the purpose of selling them. 46 Now, each
person in the chain who kidnaps or abducts women or who buys or sells
abducted or kidnapped women will be tried and punished (except under
certain circumstances discussed below).147

Despite the seriousness with which the Decision now treats this
crime, two glaring exemptions remain: one is an explicit exemption
benefitting the ultimate purchaser of abducted or kidnapped women (and
children) and the second is an implicit exemption in cases of direct sales
and purchases not involving abductions or kidnappings. The explicit
exemption provides buyers (who are predominantly, or perhaps
exclusively, men) of kidnapped or abducted women with a means to
avoid any criminal liability whatsoever if they "do not prevent the
women from returning to their original domicile in accordance with their
wishes and do not mistreat the children they have bought or prevent their
rescue."14' This exemption could be used to exonerate purchasers from
all liability if, at some point, they permit the women to return home. It
is not unreasonable to imagine that all abducted or kidnapped women
would desire to return home from the minute they are abducted,
kidnapped or purchased until the time they finally are able to leave the
home of the complete stranger they are forced to marry. As described in
one article, "[a]fter they buy women and bring them home, quite a few
buyers tie them up and beat them, rape them and then marry them,
coercing them to become wives.' 49 Obviously, every action taken by
the buyer, including the very act of purchasing the woman, would have
been against the woman's will. The only circumstance under which a
buyer should be exempted from criminal punishment under this
exemption would be the case of the good samaritan who buys and
returns the woman without having harmed her physically. This is a
totally unrealistic scenario as purchases are made by poor peasant men

145. Id. Abduction does not involve any force, coercion or narcotics and brings an 8-10 year
prison term.

146. Id. art. 2. Kidnapping involves force, coercion or narcotics and carries a term often
years to life. Both abductions and kidnappings carry the death penalty in "especially serious"
cases. Id. arts. 1, 2.

147. Id.
148. Id. art. 3. 1 call this the "poor unmarried male peasant" exemption as such men are the

main, or even the sole, beneficiaries of this loophole in the law.
149. Rescuing Victimized Women, supra note 128, at 71.



WOMEN'S RIGHTS IN CHINA

whose only interest is self-interest, that is, to find a wife who will give
them a son.

The only reasonable interpretation then is that the exemption applies
to all ultimate purchasers, even to those who are not good samaritans.
Under this interpretation, the exemption is a license for men to purchase
women, try them out and return them if they change their mind or fear
being reported to the authorities. It treats women as commodities, much
like goods purchased in a store that are returnable if defective. It also
protects the purchaser whose 'wife' does not want to, or is afraid to,
speak out against her 'husband.' One commentator, while conceding that
"the drafters have arguably come down too heavily on the side of the
men," has suggested that "[i]n some respects, this is a sensible result" for
cases where the abducted woman wants to stay with her 'husband.""0

More than simply coming "down too heavily" on the man's side, this
exemption expresses the view that women's rights are subordinate to the
rights of the patriarchal and patrilineal family.

In fact, women who are "returned" by their purchasers may find
that, not only will there be no criminal charges brought against the
ultimate purchaser, but that they have been stripped of their right to sue
the purchaser for damages, despite the fact that their rights under the
Women's Protection Law"'5 and the Civil Code'5 2 have been
violated. The exemption could be used to defeat a woman's claim for
damages. By stating that the man's actions are not criminal, the
exemption could be interpreted to mean that the woman's rights have not
been violated.

The Abduction Decision ignores the vulnerable position of the
women who are kidnapped or abducted and taken to live in remote towns
or villages in other provinces. The overwhelming majority of these
women are ignorant, illiterate or semi-literate and come from poverty-
stricken communities.' Without money, or a way to return to their

150. A.E.W. Connor, Commentary: Standing Committee Passes Two Criminal Law
Amendments, 22 Hong Kong LJ. 68, 75-76 (1992).

151. Women's Protection Law, supra note 6, art. 48. Article 49 requires the woman to sue
under the Civil Code in this type of case.

152. Civil Code, supra note 93, art. 119 (limits recovery to actual direct or indirect damages
for physical injury), and art. 120 (limits recovery to an apology and compensation for provable
losses in cases of loss of reputation or honor).

153. Zhuang Ping, On the Social Phenomenon ofTrafficking in Vomen in China, 26 Chinese
Educ. and Soc. 33,35-36 (1993), originally in ShehuixueYanjiu [Sociology Research] 101 (1991);
A Simple Analysis of the Crime ofAbducting and Selling Women and Children, Shanghai Shehui
[Shanghai Society] 1-4 (July 20, 1990) (on file with author).

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natal homes, they are trapped. They are in an especially tragic situation
if they become mothers, as leaving would probably mean abandoning the
children.54 Without the aid of local government officials or help from
an outsider, rural women have no choice other than to 'consent' to the
'marriage,"55 thereby abandoning their right to sue for violations of the
Marriage Law or to bring charges under the Criminal Law.

The second exemption is implicit in the Decision's silence about
cases involving direct sales and purchases between women's families and
the unmarried men themselves. While the Abduction Decision defines
'abducting and selling' to include 'abducting, buying, selling,' it is clear
from other language in the Decision that the women or children must
first have been abducted or purchased "for the purpose of selling them"
before the punishment for selling or buying becomes effective. This
would exclude purchases and sales made directly between the purchasers
(typically men) and the woman's family (typically rural) as the
transaction does not involve an abduction or contemplate a subsequent
sale.56 In these situations, the only crimes with which the seller or
buyer could be charged are (depending upon the circumstances) rape,
hooliganism, intentional injury, unlawful detention, etc.

The Abduction Decision's silence is revealing, especially in light of
the fact that the Decision was meant to remedy the inability of existing
law to address the increasing trade in human beings.57 The fact that
this serious gap still exists cannot be accidental or due to ignorance as
the media is full of stories about families that have sold their daughters.
Connor notes that many commentators, prior to promulgation of the
Abduction Decision, "argued that buying had not been made specifically
criminal" because of the "poverty and backwardness" of peasant
villages.58 Those peasant villages are patriarchal societies in which
fathers traditionally hold absolute authority over their children. The
Decision intentionally upholds the right of fathers to sell their daughters.
It says that fathers (and mothers) can treat their daughters as

154. I met a woman who had waited 16 years to escape Inner Mongolia where she had been
sold into marriage by her uncle. In escaping, she had to leave her two children, whom she will,
in all likelihood, never see again.

155. Cases have been reported of women slipping notes to visitors from outside the village
(Sichuan Fazhibao [Sichuan Legal News], Aug. 9, 1990 at 4) and, in one case, a Public Security
official took it upon himself, in his individual capacity, to rescue women when government
officials failed to act (Zhejiang Fazhibao [Zhejiang Legal News], Aug. 15, 1991, at 2).

156. Abduction Decision, supra note 142, art. 1.
157. Connor, supra note 150, at 74-75.
158. Id. at 75.

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WOMEN'S RIGHTS IN CHINA

commodities because girls have no rights within their natal family.
Instead of recognizing the daughter's dilemma, the government has
legalized the view of the majority of the peasant population that direct
purchases and sales of women is strictly a private domestic matter under
the control of the father.

The government's insensitivity to the abducted or kidnapped
woman's plight is also evident in the lack of coordination between the
Abduction Decision and the Marriage and Inheritance Laws. None of the
thousands of marriages forced upon abducted and kidnapped women are
recognized by law.'59 The problems discussed earlier about the plight
of women in unlawful unions applies to these women also. The failure
of the Abduction Decision (or any other law) to deliver these women
from a legal limbo only further increases their vulnerability.

The Women's Protection Law could have resolved these problems,
but did not. Instead, its language harkens back to pre-Abduction Decision
law in that it only addresses those situations where someone both abducts
and sells a woman6' and ignores the situation of direct sales and
purchases. In so doing, the government passed up an opportunity to
implement the Constitutional prohibition against "[u]nlawful deprivation
or restriction of citizens' freedom of person by detention or other means
. ... ,""' The Women's Protection Law only recognizes a violation of
a woman's right if she has been abducted or kidnapped and has not been
set free by her purchaser. Only then will she have a right to a civil
remedy for infringements of her "lawful rights and interests."'6 The
underlying message of the Law confirms the message carried in the
Abduction Decision, which is that women's rights are can be
subordinated to the power of men to control women.

Prostitution. Prostitution has also been steadily increasing since the
institution of market reforms, especially in the more affluent southeastern
provinces.6

' The majority of the women reportedly enter the
profession voluntarily,'64 but those reports fail to link prostitution to

159. 1981 Marriage Law, supra note 93, arts. 3, 4, 7; Marriage Registration Method, supra
note 141.

160. Women's Protection Law, supra note 6, art. 36.
161. 1982 Const., supra note 17, art. 37.
162. Women's Protection Law, supra note 6, art. 48.
163. China Launches Anti-Prostitution Campaign, Beijing Rev., Dec. 16-22, 1991, at 23.
164. Don'tLeta[n] Historically Ugly Phenomenon Be Revived, Minzhuyu Fazhi [Democracy

and Law], Jan. 12, 1991, at 32.

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the disproportionate rise in female unemployment.165 For example, in
Shenzhen, where a high concentration of prostitutes is located, at least
70 percent of the women who have come from other provinces are
jobless (and presumably penniless), making them vulnerable to
prostitution rackets.66 Many other women and girls are kidnapped or
abducted and then forced into prostitution. 67 Chinese sociologists and
other commentators typically attribute the rise in prostitution to decadent
Western influence, the breakdown of the traditional family, disparity in
wealth between the urban and rural areas and increased mobility of the
rural population.168 The response has been to attempt to 'rehabilitate'
the women in reform through labor camps rather than by finding them
alternative forms of employment or sending them home. By one report,
in late 1991, 560,000 prostitutes were confined to re-education
camps.

69

The focus on prostitution as a criminal, rather than an economic and
social problem, has resulted in a series of unsuccessful legal campaigns
to stem the tide. Originally, the law only punished those who forced
women into prostitution. 70 Later, as prostitution increased, luring into,
or sheltering women in, prostitution for the "purpose of reaping profits"
was criminalized, and the penalty for luring, sheltering or forcing women
into prostitution under "especially serious" circumstances was increased
to the death penalty.'7' Unfortunately, these changes did little to stop
the growth and spread of prostitution, so the actual act of prostitution,
"visits to prostitutes," soliciting and sheltering prostitutes and being a
john or client were added to the list of crimes. Criminalizing those acts

165. See, e.g., The Social Background of Prostitution, 68 Shanghai Shehui [Shanghai Society]
38 (Oct. 20, 1990).

166. Prostitution in Shenzhen, Ming Pao [Ming Pao Daily], Nov. 11, 1991, at 6.
167. See, e.g., Farmers Run Huge Brothel, S. China Morning Post, July 22, 1993, at 10;

China Launches Anti-Prostitution Campaign, supra note 163; Zhcjiang Fazhibao [Zhejiang Legal
News], Oct. 3, 1991, at 1.

168. China Launches Anti-Prostitution Campaign, supra note 163, at 24; Social Background
of Prostitution, supra note 165, at 65.

169. China Launches Anti-Prostitution Campaign, supra note 165, at 25. 1 assume that
penalties are assessed and punishments carried out only against the women as, although there were
statements about johns being arrested, I was unable to find similar statistics regarding the
punishment ofjohns. It could be that their punishment is limited to the payment of fines. See,
e.g., Don't Let a[n] Historically Ugly Phenomenon Be Revived, supra note 164, at 85.

170. Criminal Law, supra note 135, art. 140 (imposing anywhere from a three- to ten-year
sentence).

171. Serious Endangerment Decision, supra note 140, art. 1(6), modifying Criminal Law,
supra note 135, art. 169.

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WOMEN'S RIGHTS IN CHINA

had little, if any, effect, partly because the punishments were so
light.'

72

In its latest effort to use the law as a tool to combat prostitution, the
Standing Committee promulgated a Decision Relating to the Strict
Prohibition of Prostitution and Patronizing Prostitutes (the "Prostitution
Decision").73 The Prostitution Decision created the new criminal
offenses of organizing or introducing others into prostitution and
assisting in organizing others for prostitution, increased prison terms
across the board and increased fines to up to 10,000 yuan.74 It also
reduced punishments against those who lure, shelter or introduce others
into prostitution under 'minor' circumstances.1 75 This will probably
have little effect upon the mushrooming of prostitution as the inflow of
poor girls and women from the countryside continues unabated and the
organization of prostitution by triads continues to grow. Until the
economic and social problems underlying prostitution are solved,
criminal laws will have little or no effect.

Prostitutes are also being blamed for the recent increase in the
incidence of venereal diseases. The Prostitution Decision mandates a
five-year maximum term for persons who, knowing they are infected
with syphilis, gonorrhoea or other serious venereal diseases (such as
"AIDS"), engage in prostitution or patronize prostitutes.1 76 The
Decision appears to be neutral in that it is equally applicable to
men/customers and women/prostitutes. However, punishments will surely
be limited to the prostitutes. Just as there were over a half a million
prostitutes, and few johns, in reform through education camps in 1991,
women/prostitutes and not men/customers will be the target of the anti-
venereal disease campaign. The Decision's implicit message is that

172. SAPA, supra note 135, art. 30 (fifteen days of detention, and, in more serious cases, an
unspecified term in a labor reform camp and/or a fine of up to 5,000 yuan).

173. Guanyu Yanjin Maiyin Piaochang de Jueding (Sept. 4, 1991), trans. in 22 Hong Kong
LJ. 78-81 (1992).

174. Id. Ten years to life for organizers (art. I), three to ten years for those who assist (art.
1), five to ten years for forcing others into prostitution (art. 2), up to five years for luring.
sheltering or introducing others into prostitution (art. 3), and death for those w ho organize or force
under especially serious circumstances (arts. 1, 2).

175. Id. art. 3.
176. Id. art. 5. The first arrest under this Decision of a prostitute with venereal disease was

made in 1992. The nineteen-year old girl was portrayed as using hervenereal disease as a weapon
to revenge a rape at age 14, fitting the image the government seeks to portray of prostitutes and
the need for a special venereal disease law directed solely at them. S. China Morning Post, Nov.
24, 1992, at 11.

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JOURNAL OF CHINESE LAW

certain bad women are the root of the evil and should be punished. The
neutrality of the language masks the misogyny of the message. It is
saying that men who are increasingly willing and able to pay for sex,
who have multiple sex partners and who pass on venereal diseases to
their wives and girlfriends are reprehensible, but they not the source of
the problem. Women are.

The Decision's focus on the prostitute-john situation means that the
government is unwilling to recognize (or deal with) the fact that venereal
diseases can be spread from a man to his wife, girlfriend or male lover
(or vice versa). It is only when the man infects a prostitute that he can
be punished, provided, of course, that the prostitute can prove that she
was disease-free before this particular client (assuming she could ever
find him once she became aware of being infected). As a practical
matter, it is obviously much easier to prove a case against the woman as
prejudices against prostitutes make it easy to assume that they are the
transmitters and carriers of diseases rather than the men. The
discriminatory impact of this provision will surely be felt almost entirely
by women as it will be very difficult for them to prove that they were
infected by any particular man.

The Decision reduces the extremely serious problem of venereal
disease and AIDS to blaming a few "bad" women for spreading the
diseases while avoiding the truth about the many ways in which such
diseases are actually being spread among the public. If the real goal were
to punish persons who knowingly transmit venereal diseases, the
government would have enacted a law of general application but it has
not done so. If the real goal were to eradicate venereal diseases, it would
have offered public health strategies rather than point the finger at certain
women as the source. It cannot seriously be contended that, if prostitutes
are free of venereal diseases, venereal diseases will disappear in China,
or that the rate of the diseases' spread will be appreciably reduced among
the general population. For example, most AIDS in China is reported
among drug addicts, not among prostitutes.'77 Thus, AIDS-free
prostitutes will not result in an AIDS-free PRC. The Decision is simply
evidence of the how the patriarchal nature of Chinese society permits
discrimination against women who are perceived as "bad" women
because they do not conform to the male-defined image of the virtuous
woman/wife.

177. HIV Carriers Pass 1,000, S. China Morning Post, June 25, 1993, at 9.

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WOMEN'S RIGHTS IN CHINA

Rape. The incidence of rape is also on the rise in China.'78 The
size of the increase is difficult to determine due to underreporting, either
because the victim (or her family) is unwilling to report the rape or
testify at trial or because the matter is settled privately through illegal
settlements with the rapist or his family.'79 Underreporting may also
be partly attributable to the fact that the punishment for rape can be
execution.1' Evidence available from other parts of the world indicates
that girls and women are more likely to be raped by an acquaintance or
family member than by a stranger, which would explain victims'
hesitation to report rapes if reporting could result in a family member or
an acquaintance being executed.

Under Chinese law, rape involves sexual relations with girls under
fourteen or sexual relations with girls or women fourteen or older
involving violence, coercion or other means."'t "Violence" means
physical assault, kidnapping or any other action that threatens the
personal safety or freedom of the victim; "coercion" requires a special
relationship between the defendant and the victim, such as exists between
a girl and her stepfather or natural father, or the use of superstition; and
"other means" involves the uses of drugs, alcohol, fraudulent medical
treatment or sexual intercourse with a sleeping or ill victim."8 2 The law
seems to be straightforward, but the interpretation of the law is not.

First, the status of non-consensual sexual intercourse in marriage is
now unclear. As was the case for women throughout the United States
and the United Kingdom until recently, women in China have
traditionally been considered by law to have given blanket consent to
sexual intercourse with their husbands at any and all times from and after
marriage. However, in the first case of its kind, a court in Henan
Province recently undermined that notion, albeit only in certain highly-
particularized circumstances.'83 The court found that a women who had
obtained court approval for divorce and whose husband planned,
conspired and prepared to have, and did have, sexual intercourse with her

178. Honig & Hershatter, supra note 101, at 277.
179. See, e.g., Zhejiang Fazhibao [Zhejiang Legal News], Feb. 13, 1992, at 4; Liaoning

Fazhibao [Liaoning Legal News], Nov. 28, 1990 at 2.
180. Criminal Law, supra note 135, art. 139.
181. Id.
182. Guanyu dangqian banli qianglian anjianzhongjutiyingyong falO de ruogan wentidejieda

[Answers to some questions about how to apply the law in actual rape cases] (Apr. 26, 1984),
reprinted in Law Collection, supra note 48, at 177-179.

183. Tianjin Fazhibao [Tianjin Legal News], Jan. 17, 1991, at 2.

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against her will and consent, had been raped. The scope of the decision
is quite limited. It does not cover women who are cohabiting with their
husbands or even those who have separated from their husbands. Neither
does it includ wives who have filed for divorce but have not yet received
court approval for the divorce.

The case provoked much controversy. One Chinese commentator
argued against the decision on the grounds that, because the parties were
still legally married, the victim had a "marital duty" towards her
estranged husband and the husband had a "right of cohabitation" with her
until the divorce was finalized.8 4 The commentator claimed that, at
most, the husband could have been charged with insult, humiliation or
abuse of his wife. It remains to be seen whether other courts will follow
the lead of the Henan court or adopt the type of solution suggested by
the commentator. In China's civil law system, cases have no precedential
authority, although other courts might decide to consider the legal
reasoning of an analogous or similar case.

Second, the definition of rape is tied closely to traditional notions
of how a woman is expected to behave and the paternal role of society
to protect women. In law and society, women are expected to refrain
from pre-marital affairs and men are not. The law treats certain
consensual sexual relations between a man and a woman as akin to rape.
A man who deceives several unmarried women into consenting to have
sexual intercourse with him can be charged with hooliganism
(liumangzui).'5 According to this view of women, unmarried women
are passive participants and men are the active participants in sexual
relations. Women who choose to engage in pre-marital sexual relations
are treated as victims if the man turns out to be a scoundrel. The purpose
obviously is to protect a woman's virginity as a man who has affairs
with married women is not guilty of a crime despite the fact that his
behavior in both situations is the same. The protective, paternalistic
nature of the law robs women of the ability to make decisions
concerning their own sexuality simply because they are unmarried. A
women's autonomy to make decisions is overridden in order to protect
women from their own stupidity or gullibility. The law effectively
declares the woman's consent null and void, presumably on the
assumption that if she had known what a rogue the man was, she would
not have consented. As she did not know, then the government has the

184. Shenzhen Fazhibao [Shenzhen Legal News], Nov. 7, 1991, at 3.
185. Answers to some questions, supra note 182, art. 3(1).

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WOMEN'S RIGHTS IN CHINA

responsibility, just like a father in a shotgun wedding, to protect her.
Men do not receive equal protection, however, as the law respects the
right of men to be seduced into having pre-marital sexual relations with
roguish women. The legal double standard promotes gender stereotyping
of male and female sexuality and is meant to scare men into abstaining
from being sexually active prior to marriage (except, of course, with
married women or prostitutes) and to encourage unmarried women to
avoid pre-marital sexual relations altogether prior to marriage. The law's
message is clear: a woman's sexuality before marriage is not the
woman's to control (unless, of course, the seducer marries her and then
her consent to premarital sex is valid).

Third, a rape charge may also be reduced to hooliganism under
some circumstances. For example, in one reported case, it appears that
the rapist's good reputation in the community was enough to reduce the
sentence to hooliganism, despite the fact that the man had raped two
female subordinates, one of whom was only fifteen years old." 6

Last, rape charges will not be brought if, after the rape, the victim
later voluntarily has sexual relations with the man.18 In other words,
a man who, for example, kidnaps or buys a woman and rapes her, and
then forces her to marry him can argue that she 'voluntarily' had sexual
relations with him. Or a man who rapes his girlfriend, can claim it was
not rape if the woman later consents to having relations in the hopes that
he will marry her if she consents. Chinese women are under tremendous
pressure to prove their virginity on their wedding night and so any
woman who is raped by her boyfriend prior to marriage is bound to do
anything to convince him to marry her, including having further sexual
intercourse. In fact, a man who plans to marry a woman who refuses to
engage in premarital sex may be encouraged to rape her in order to
reduce the costs to his parents for a wedding banquet, as large and
elaborate banquets are only necessary when the bride is a virgin. 8

This exception then could actually encourage a man to rape his
girlfriend.

The rape creates categories of permissible and impermissible
behavior for women. All women should be protected from stranger rape.
Virtuous women should remain untouched by anyone until marriage and

186. Sichuan Fazhibao [Sichuan Legal News], Apr. 10, 1990, at 4.
187. Answers to some questions, supra note 182, art. 3(2).
188. See, e.g., Xiao Zhou, Virginity and Premarital Sex in Contemporary China, 15 Feminist

Studies 279 (1989).

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married women or women whose virtue has been compromised by pre-
marital sexual relations are permitted to control their own sexuality. By
classifying sexual intercourse as rape, non-rape, or hooliganism according
to the relationship between the defendant and the victim, the law and the
legal system ignore the fact that all instances of non-consensual sexual
intercourse violate the woman's right to physical integrity. Again, the
patriarchal view of male rights and female subordination within the
family and personal relations has limited the definition of 'women's
rights.'

Battered women. Historically, Chinese husbands had the legal right
to batter their wives, subject to punishment only in extreme cases.'89

While the current government has carried out intensive campaigns to
eliminate rape, prostitution and the purchase and sale of women and
children, it has never had a similar campaign to eradicate the practice of
wife battering. Consequently, there is no reason to believe that the
incidence of wife abuse diminished after the Communist takeover. There
is little data on the incidence of the crime. Most cases are reported only
when a woman has been driven to kill, maim or attack her abusive
husband.'90 However, a recent report on the situation in Shanghai
shows that 29 to 33 percent of all domestic disputes between 1991-92
"involved physical violence" and another 1993 study shows that 21.2
percent of urban wives and 31.4 percent of rural wives experienced
violent quarrels.'9'

Wife-battering is covered by a chapter of the Criminal Law entitled
"Crimes of Disrupting Marriage and the Family," which provides for
sentences of up to two years in prison in cases of particularly "odious"
physical abuse and sentences of up to seven years if the violence results
in "serious injury or death."'9 2 If the husband (or any other family
batterer) is careful not to inflict an odious blow or one that does not

189. See, e.g., Alabaster, supra note 126, at 186-90; Van der Sprenkel, supra note 126, at 106-
07.

190. See, e.g., Guo, An Analysis of 100 Cases of Criminal Domestic Violence, 26 Chinese
Women and Society 14 (1993), originally in Qingshaonian Fanzui Yanjiu [Studies on Criminality
Among Young People and Juveniles] 8 (199 1); Sha Fu [Killing Husbands], Falil yu Zhengzhi [Law
and Politics] 12 (August 1992) (55% of all victims killed by women in one county were the
women's husbands); Zhejiang Fazhibao [Zhejiang Legal News], Nov. 21, 1991, at 2; Liaoning
Fazhibao [Liaoning Legal News], Dec. 1, 1990, at 2; Sichuan Fazhibao [Sichuan Legal News],
Sept. 13, 1990 at 3.

191. Report on Human Right in China 21 (U.S. Dept. of State, 1993).
192. Criminal Law, supra note 135, art. 182.

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WOMEN'S RIGHTS IN CHINA

produce a serious injury or death, the government will not prosecute him;
the victim must prosecute. The Criminal Procedure Law provides for
private prosecution of criminal cases where the injuries are considered
to be minor.193 If the victim is successful in her prosecution, the
government will then punish the batterer. In one such case, a court ruled
that a wife's broken eardrum was a "minor injury" and, thus, the wife
personally had to prosecute her husband for criminal battery.'94 The
husband was sentenced to a one-year prison term. The process and the
result would have been different if the husband had broken a stranger's
eardrum or if the wife's eardrum had been broken by a non-family
member. The government would have prosecuted the husband or the
non-family member, in both cases, and the sentence could have been
greater.

This law, like many others discussed in this paper, is written in sex-
neutral language, but the social reality means that the law has a
discriminatory impact upon women. In fact, the law is very similar to
status-based Qing laws in which the punishment for battering a stranger
was much greater than for battering a family member.9 The only
difference in the modern version is that the language has changed,
though the effect has not. Although the modern Criminal Law does not
refer to status, the effect of separating the crime of battery based on
whether or not the victim and defendant are members of the same family
effectively creates a hierarchy of crimes based on status relations. A
comparison of the various degrees of battery inside and outside the
family shows that the law treats violence within the family more
leniently than violence outside the family. 96

193. Zhonghua Renmin Gongheguo Xingshi Susongfa [Criminal Procedure Law of the
P.R.C.], arts. 126-28 (Jan. 1, 1980) [hereinafter Criminal Procedure Law], trans. in Laws of the
PRC, supra note 75, at 120-149.

194. Liaoning Fazhibao [Liaoning Legal News], Jan. 6, 1990, at 2.
195. If the perpetrator had a higher status than the victim, the punishment %as milder than

in a case involving the same act by the lower-status perpetrator against a higher-status victim.
Alabaster, supra note 126, ch. 5. For example, a husband's sentence for killing his wife was less
severe and more easily commuted than a wife's sentence for killing her husband. Id. at 186-93.

196. (a) Intentional but minor injury, under non-odious circumstances: threyears maximum
if battered by a stranger, a private suit with a short sentence if battered by a family member.
(b) Maltreatment under flagrant circumstances: maximum oftwo years ifdone by family member.
(c) Serious injury under non-odious circumstances: three to seven years if caused by a stranger,
no punishment stipulated if caused by family member.
(d) Battery resulting in death under non-odious circumstances: minimum seven years ifcaused by
a stranger, no punishment stipulated if caused by a family member.

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The sex-neutral language does not avoid the charge that the law is
discriminatory. Generalizing from available evidence, most batterers are
men and most victims are women. This is consistent with the findings in
other countries. Thus, imbedded in the hierarchical structure of the law
is the implicit message that a certain amount of violence against wives
is tolerable and acceptable. The 'family violence' law supports the
traditional patriarchal structure by encouraging Confucian notions of
family 'harmony' in which wives must obey their husbands. It also
encourages traditional concepts of social 'harmony' by punishing
strangers more harshly than family members.97 It cannot be honestly
claimed that this special battery law was necessary as family members
who batter could just as easily have been treated the same as other
batterers. Women's rights are again subordinated for the purpose of
achieving other goals.

One-child policy andfemale infanticide. The One-Child Policy (the
"Policy") has never officially been codified but it, nonetheless, has the
effect of law.'98 It was adopted in 1979, thereby reversing Mao's
twenty-year policy of promoting births to increase the labor pool. The
Policy is intended to decrease the size of the labor force and number of
mouths to feed, thereby hopefully increasing the people's standard of
living.' 99 Although the Policy is stated in sex-neutral terms, its
unintended effect has been to legalize particular types of violence against
women, baby girls and female fetuses. It is enforced through coercive
and punitive measures such as involuntary birth control (IUD insertion),
involuntary sterilization, involuntary abortions, and fines, demotions at
work, and termination of privileges.20 0 The impact of enforcement is
discriminatory as between two to three times as many women as men are

(e) Serious injury or death under odious circumstances: death if caused by a stranger; two to seven
years if caused by a family member.
Criminal Law, supra note 135, arts. 134, 182; Serious Endangerment Decision, supra note 140, art.
1(2).

197. This special right of violence is used in an ingenious way. For some men use "violence
as a substitute for divorce." Men may physically abuse their wives, while encouraging them to take
their own lives. Honig & Hershatter, supra note 101, at 292-93. Death by suicide is blamed on
the wife; divorce, on the other hand, involves a loss of face for the man and his family.

198. The policy is strictly applied only to Han Chinese who constitute the overwhelming
majority of the population. Non-Han Chinese can have more than one child, although that number,
too, is controlled.

199. Human Rights in China, supra note 29, at 49-50.
200. Chang, supra note 3, at 258-263.

[8:47



WOMEN'S RIGHTS IN CHINA

sterilized,"' only women bear the pain (and danger) of forced
abortions, and women are the main focus of invasive enforcement tactics
carried out in work units, communities and homes. Lastly, rural dwellers'
preference for sons and the unnaturally low rate of female births lead to
the conclusion that more female than male fetuses are aborted. The
introduction of the ultrasound scanner throughout China has served only
to increase the abortion of female fetuses. We will probably never know
the actual number of female fetuses that have been identified by the use
of ultrasound and then aborted, but the number could run into the
millions.0 2

While the discriminatory impact of the Policy is not necessarily
caused by intentionally misogynistic policies, the discriminatory impact
of numerous local regulatory exemptions is. Each province has the
authority to draft exceptions to the Policy to fit local conditions.
Unfortunately, this has resulted in implementation of many local
exceptions that permit families to have a second, hopefully, boy child.
Numerous regulations permit people to have a second child when the
male lineage is threatened. For example, couples in Sichuan Province can
have a second child if the husband is from a rural area, lives with his
wife's family and is the "the only one of several brothers in rural areas
who can have children," or if the couple lives in certain rural areas with
labor shortages and have "only" a daughter.203 Couples in Heilongjiang
Province can have a second child if the wife's family has no sons!"
While these exceptions may simply be interpreted as a means of
controlling the number of second births, the language of the regulations
makes it quite clear that the intent is to ensure the continuance of the
patrilineal family structure. The only circumstances under which this type

201. Id. at 259; S. Hom, Female Infanticide in China: The Human Rights Specter and
Thoughts Towards (An)Other Vision, 23 Colum. Hum. Rts. L. Rev. 249, 267 n.63 (1992).

202. Lonely Nights Ahead for Nation's Bachelors, S. China Morning Post, Mar. 2, 1993, at
10, citing China Daily (full cite not given in original); Nicholas Kristoff, A Lost Generation:
China Weeds Out Baby Girls, S. China Morning Post, July 22, 1993, at 17; Paper Says Scans Used
Before Girls Aborted, S. China Morning Post, June 22 1993, at 10. In one county alone,
ultrasound was used to abort 1,006 of 2,316 fetuses. Most, if not all, of the 1,310 fetuses that
survived were probably male. In one city, 74.8% of all births in 1992 were boys, thus
undermining the contention that female infanticide occurs only among the "backwvard" elements
of the society. Id.

203. Sichuan Provincial Family Planning Regulations, sees. 8(2), (7), (9) (July 2, 1987),
reprinted in Sichuan Ribao [Sichuan Daily News], July 4, 1987.

204. Heilongiiang Holds Family Planning Meeting, Heilongjiang Ribao [Heilongjiang Daily],
Aug. 13, 1984, at 1.

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JOURNAL OF CHINESE LA W

of regulation permits a family to have a second child is when the male
lineage is threatened with extinction. There is no similar provision to
assure the continuation of the female lineage. The conclusion to be
drawn from the language of these, and other similar, provincial-level
regulations is that local and central governments agree that the only
worthwhile heir is a male heir.

The Policy has also had a discriminatory effect on the ability of
girls to be born and survive infancy. Victims of infanticide appear to be
almost exclusively, or at least disproportionately, female.2" 5 As a result
of female infanticide and abortions, a recent Chinese report has shown
that by the year 2000, there will be approximately 70 million more men
than women of marriageable age.206 Statistically, approximately one-
half of those men should have been women, which means that, by the
year 2000, approximately 35 million girls will have been either aborted
as fetuses, killed or permitted to die as infants. It is also possible that the
birth of many of those infant girls are not registered so that the parents
can claim that they do not yet have a child, thereby enabling them to
obtain permission to have a second, hopefully boy, child.0 7

The existence of so many deaths is not accidental. It is the direct
consequence of the effect that the traditional Chinese preference for male
children has had upon the Policy. In rural areas, patrilineal communities
and patrilocal residence patterns still predominate and the elderly still
depend entirely upon their sons to support them in their old age. Quite
naturally and rationally, couples want to make sure that the one child
they are permitted to have is a son because sons do not marry out of the
community. Couples who cannot fulfill the requirements for an
exemption to have a second child and those who have obtained the
exemption but end up with a second daughter are forced to resort to
female abortion or infanticide (or unregistered female births) in order to
try again for a son. These alternatives pose very little risk of punishment

205. Hom, supra note 201, at 256-57 nn. 26, 28, 29; Maria H. Chang, Birth Control and
Women's Rights in PRC, China Spring Dig. 24, 27 (July/Aug. 1987).

206. Lonely Nights Ahead for Nation's Bachelors, supra note 202.
207. Girls whose births are unregistered cannot attend school or obtain any type of

government-sponsored benefits, contributing to the high level of female illiteracy and
unemployment.

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despite that fact the law recognizes the crime of intentional killing2 3

and can punish parents who refuse to support their children.209

The government, in the short-term, has very few incentives to turn
the present situation around. Thirty-five million fewer girls by the year
2000 meets a short-term goal of reducing the population and, more
importantly, will reduce the future population as there will be 35 million
fewer women having babies. Thus, unless and until the shortage of
women becomes a social problem affecting the country's stability (e.g.,
the present trafficking in women increases to dangerous levels of inter-
provincial warfare), there is little reason to believe that the present Policy
will be altered to protect women, girls and female fetuses. Again,
women's rights have been curtailed in order to promote other policy
objectives, including the support of the patrilineal structure of society.

Women 's Protection Law Reaffirms Government's Limited Definition of
Equality and Women's Rights

As previously discussed, the government recently had the
opportunity to correct the country's discriminatory laws but failed to do
so, except in the few areas already mentioned. The Women's Protection
Law could have marked the beginning of an aggressive campaign to
enforce a more egalitarian, non-sexist policy towards women, could have
recognized the sexist assumptions implicitly and explicitly given
expression in the law and could have proclaimed a new intolerance for
sexual discrimination.1 However, the government backed away from
passing a truly revolutionary document and finally adopted a draft that
reaffirmed its existing sexist policies. For example, the final version
dropped the earlier proposal to require that 25 to 30 percent of the
representatives to the National People's Congress would be women. The

208. Criminal Law, supra note 135, art. 132. The Constitution also prohibits maltreatment
of children. See 1982 Const., supra note 17, art. 49. The Women's Protection Law (supra note
6, art. 35) prohibits "[d]rowning, abandoning or cruel infanticide in any manner of female babies.'
Neither law contains any criminal sanctions and so have no effect upon people's behavior. At
most, a civil suit could be brought under the Women's Protection Law, but there is no one who
would sue as the only persons who might have standing to sue are either dead (the infants) or the
perpetrators (the parents).

209. Criminal Law, supra note 135, art. 183.
210. The Women's Protection Law was intended to perfect the law by consolidating into one

law all the various provisions relating to women and by filling in the remaining legal gaps.
Zhongguo Funtibao [Women of China], Mar. 25, 1991, at I; Thoughts on the Proposed Women's
Law, supra note 77, at 3.

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proposal was dropped in favor of the unenforceable requirement that
national and local congresses "should have adequate numbers of women
deputies."'' It also dropped a proposal to set up a birth expenses fund
that would have required all work units (instead of the mothers' work
units only) paying for maternity leave expenses and thereby eliminating
one of the disincentives to hiring women.212

In almost every other area, the language of the Women's Protection
Law was lifted directly out of pre-existing laws. The most important new
provisions are the new right of women to sue for monetary and non-
monetary damages213 (the Civil Code provides only for monetary
damages) and the new ban on discriminatory housing practices. Even the
women's new right to sue is limited because it does not provide a
remedy for all infringements. It only covers infringements where another
law or regulation provides a punishment or where someone interfered
with a woman's right to redress, discriminated against a woman in
hiring, firing, promotions or housing, infringed on a woman's right to an
allocation of farmland or housing sites, or discriminated against women
or girls in education.214 Unfortunately, the Women's Protection Law
is silent about discriminatory practices in other areas such as marriage,
divorce, inheritance and criminal matters.

PART III: WOMEN'S RIGHTS HAVE No CHINESE

CHARACTERISTICS

The survey of laws in Part II reveals the Chinese government's
view of women's rights, equality, discrimination and liberation. The
socialist view that women's liberation can be realized only through
changes in women's economic conditions means that absolute legal
equality is not a goal and that legal equality, in general, is not an
absolute standard against which laws are to be judged. As a result, many
laws set male-defined norms that contain the unquestioned assumption

211. Women's Protection Law, supra note 6, art. 10.
212. I wish to thank Jonathan Hecht for bringing this to my attention.
213. Women's Protection Law, supra note 6, arts. 48-52. Complaints under the Labor

Protection Regulations are handled by the local labor department or the department in charge of
the employer. Claims can be rejected but, if a violation is proven, no one has the power to force
the work unit to (re)hire, train or promote the complainant, impose civil penalties or award
damages. Women can appeal to the People's Court. The chances are small that a court would
agree to hear a case after a decision has been rendered by the labor or other department. Labor
Protection Regulations, supra note 53, art. 12.

214. Women's Protection Law, supra note 6, art. 50.

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WOMEN'S RIGHTS IN CHINA

that women's "special characteristics" render women physically and
intellectually inferior to men. It is also apparent that, within the
patriarchal Chinese family structure, men control access to wealth, power
and status and, as such, are perceived to be more important than women
to the economic life of the family and the country. Biological
determinism and a sex-biased approach to economic problems place
women at risk, especially in difficult times. Women workers are the first
called upon to make adjustments, either by shifting to less desirable and
lower-paying jobs or by quitting work altogether. Women are expected
to abandon their rights to property, to bear the brunt of the One-Child
Policy, to sacrifice their right to an education and to abandon their rights
when the (male-dominated) society dictates.

From the Chinese point of view, laws that treat women differently
from men are 'special rights' that privilege women over men?"
Women are not being treated unfairly merely because they are denied
equal access to the same work and education as men, treated differently
from men in the criminal law, and made to bear the social costs of
childrearing and childcare, etc.; the law is merely recognizing and
protecting women's special (i.e., non-male) characteristics. Implicit in the
laws is the expectation that, for the greater benefit of society and social
stability, women should be willing to give up (or not expect to hold)
certain legal rights held by men, especially in light of the fact that
inequality is counterbalanced by legal provisions in which women are
'protected' by men.

Such a view of women is familiar to Western women; Chinese and
Western women's experiences are remarkable similar. Sexual
discrimination may take different forms in the West and in China but the
negative effect it has upon women and the privileges it grants to men is
more or less the same. In conversations with Chinese women about
problems in our respective countries, I find we are speaking a language
that, when all the cultural differences are stripped away, is devoid of
specific cultural content. Chinese women recognize immediately, from
their own lives, the problems of women's double burden, the glass
ceiling, tracking of women into "women's" work and men's hostility to
women's demands for equality. The reason that we are able to
communicate so easily about women's problems is the existence of a
fundamental constant in both socialist and capitalist (and other) societies:

215. For a discussion of "special rights" treatment or different treatment approach in the law,
see, e.g, Scales, supra note 67.

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a patriarchal social and political order. Patriarchy is the glue that binds
most women in the world together, that gives us a common language and
a common goal. The specific manifestations of our oppression (and our
solutions) will vary from culture to culture but our subjugated position
is the constant source of our similarities. The foundation for our present
similar situations can be found in our pasts. Women in both societies, up
until the beginning of this century, were controlled by a rigidly and
avowedly patriarchal society in which their every movement was dictated
and designed by men and in which they were forced to rely upon men
for all the necessities of life, including access to the legal system. Over
the last century, laws in both societies have gradually been changed, with
the most oppressive and blatantly sexist laws having been eliminated.
Nonetheless, in both societies, sexism remains a constant in the law; it
is simply more obvious in Chinese law.

For this reason, I reject the assertion that women's rights are
relativist and contingent and support the universalist principles of
women's rights contained in the Convention. At the same time, I
recognize and support the necessity for the governments of different
cultures to implement those principles within a specific cultural context.
However, this does not mean that sensitivity to indigenous cultural values
can be the basis for ignoring the universalistic principles or specific goals
of the Convention. Much of the Convention is directed at eliminating
many of those indigenous cultural values precisely because they
undermine women's rights and subjugate women within a patriarchal
society. The line between upholding universalist principles of women's
rights and preserving non-sexist cultural values is one that must be drawn
carefully by each country's legislature. Legislative drafters cannot use the
excuse of sexism in society to excuse their failure to draft a law that
takes social inequality into consideration. Simply drafting sex-neutral
laws is not enough if the implementation of the laws has a discriminatory
impact upon women.

Given the Chinese government's insistence that rights in the PRC
must have Chinese characteristics and that the government has stated, in
its latest report the United Nations on its compliance with the
Convention, that it "has consistently adhered to the Convention... and
has taken many corroborative measures to that end,"'2 16 I do not expect
there to be any drastic improvements soon to the laws discussed in Part

216. China's Second Periodic Reports of States Parties, Addendum, CEDAW/C/13/Add. 26,
July 13, 1989, at 2.

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WOMEN'S RIGHTS IN CHINA

II in the near future. The focus of any effort, at most, will be upon the
gap between "de facto and de jure equality of the sexes,"217 which is
blamed for existing discrimination, e.g., in employment.211 In other
words, the government's position is that formal legal equality, in
conformity with the Convention, exists but the remaining sexual bias
encountered by women stems from poor or improper implementation by
persons who do not share the government's enlightened and unbiased
view of women. This view clearly fails to recognize the role that law
plays in legalizing, encouraging or supporting discrimination.

While it is true that serious gaps do exist between formal legal
equality and enforcement, the more serious and dangerous problem for
women arises from the gap between the Chinese definition of women's
rights and the Convention's basic principles of equality of treatment and
result. Hom has pointed out that, although the rights granted in the
Women's Protection Law "echo rights set forth in the Women's
Convention *** these women rights are still clearly woman/human rights
'with Chinese characteristics."'"9 This observation applies equally to
other rights granted to women as apparently, in the Chinese view,
women's rights are not tainted by human rights principles, such as those
that form the basis for international conventions. China has consistently
refused to become a party to the Universal Declaration of Human Rights
or to any of the other basic international human rights instruments
because it is adamantly opposed to the idea of any fundamental human
rights arising from the autonomy of the individual. Apparently, the
government has taken (and continues to hold) the view that the
Convention is a benign instrument devoid of universalistic human rights
principles. Perhaps it believed that, because the world's preoccupation
with China and human rights abuses is narrowly focussed on political
rights, no one would look at its implementation of a document dedicated
to the less-important rights of women.

Nonetheless, the Convention clearly sets forth standards that are
founded on universalist human rights' standards. The opening paragraphs
of the Convention expressly affirm that the role of the Convention is to
supplement existing international human rights conventions, namely the
Universal Declaration of Human Rights and the International Covenants
on Human Rights. It also states that human rights are based upon the

217. Id. at 16.
218. Id. at 5.
219. Hom, supra note 201, at 284.

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universalistic principle that "all human beings are born free and equal in
dignity and rights and that everyone is entitled to all the rights and
freedoms set forth" in the Convention. By acceding to the Convention,
China explicitly agreed to adopt, as regards to women, girls, female
infants and female fetuses, the universalistic principle underlying the
Convention, to recognize the definition of discrimination contained in the
Convention, and to implement the specific equal rights and anti-
discrimination laws, policies and practices required by in the Convention.

In this regard, China has agreed, among other things, that the legal
protections of the rights of women must be "on an equal basis with
men."22  It must take "[a]ll appropriate measures," including
legislation, to implement the following objectives: to guarantee women
"the exercise and enjoyment of human rights and fundamental freedoms
on a basis of equality with men""22 and to achieve "equality of
opportunity and treatment."'222 Further, it has agreed to take measures
to eliminate "prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women.223

China has thus placed itself in the position of having adopted
individual-based human rights standards for women that conflict with its
own contingent, relativist and programmatic human rights standards and
its own deeply-entrenched sexist traditions and practices. It has adopted
the inconsistent positions of "maintaining a rigid Marxist/socialist
conception of rights as contingent and relative to a particular system,
culture, and stage of development and yet adopt[ed] as domestic norms
an international document which sets forth universalist standards for
rights for women.224 China may still argue that it can adopt laws and
practices that conform to its own view of rights, as some of the
Convention's language is vague and other important language is missing.
But, even then, all signatories are constrained by a commitment to
reaching the ultimate goal of attaining "equality of opportunity and
treatment.,

225

Given the Chinese relativist and contingent view of rights, and the
male-dominated government's preference for a male-privileged society,

220. Convention, supra note 5, art. 2(c).
221. Id. art. 3.
222. Id. art. 4(1).
223. Id. art. 5(a).
224. Horn, supra note 201, at 304.
225. Convention, supra note 5, art. 4(1).

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WOMEN'S RIGHTS IN CHINA

it is not surprising that the laws discussed in Part II fall so far short of
meeting the Convention's goal of "equality of opportunity and
treatment." It could not be otherwise as the Chinese definition of
impermissible discrimination is diametrically opposed to the following
principle established in the Convention:

[T]he term "discrimination against women" shall mean any
distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women,
of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field?26

The Chinese view of women's rights is much more narrowly
focused than the Convention's, which explains the failure to develop a
legal system or promote cultural attitudes in the form or having the
substance envisioned by the Convention. As revealed in Part II, many
Chinese laws fail to realize the above ideal in that they expressly
discriminate in a manner that privileges men in direct violation of fact
that "[t]he Convention requires suspicion of any gender-based distinction;
only where differential treatment is required to effectuate equality should
it be tolerated.,227 Other facially-neutral laws are biased in favor of
men because enforcement within a a sexist society has the effect of
privileging men over women. Neither type of law accords with the
Convention.

In addition to violating the general principles of the Convention,
Chinese laws also violate numerous specific provisions of the
Convention. The Convention contains an extensive list of very specific
types of legislation that must be adopted by signatories."8 In these
areas, where the language is clear, China has no alternative but to
comply. China has agreed, but failed, to meet the following Convention
requirements:

226. Id. art. 1.
227. McKenzie, supra note 3, at 36.
228. How quickly they must adopt such legislation is not clear as the Convention speaks

vaguely of "appropriate measures," which acknowledges that some countries might have to move
at a slower pace than others in satisfying the demands of the Convention. Convention, supra note
5, arts. 2, 3, 5-14, 16.

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- To repeal all discriminatory criminal laws229 and "to suppress
all forms of traffic in women and exploitation of prostitution of
women" ;230

- To eliminate discrimination in education, ensuring women the
same educational opportunities as men;23'

- To eliminate discrimination in employment, ensuring women the
same rights to work, including the same employment opportunities;232

- To safeguard women's reproductive functions and women during
pregnancy in types of work proved to be harmful to them;233

- To eliminate discrimination in health care services, including
family planning;234

- To "modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women.''235

As long as the wide chasm remains between the Chinese view and
the Convention's view of women's rights, improvements in the legal
status of women in China will not improve. The laws discussed in Part
II are perfectly attuned to the government's policies regarding the
economy, patriarchy and women, while falling far short of the
Convention's requirements. The consequences for women, if policies are
not changed dramatically, are disastrous. Women will increasingly be
marginalized in the labor market and relegated to the role of mother and
wife. The commodization of women will continue apace with economic
reform in which men have privileged access to power and money and
women's issues will increasingly be ignored by those in power.

There are many concerned Chinese scholars who write about
women's problems and they will, assuredly, continue to write forceful
and valuable essays. They may even have some influence upon policy.

229. Id.art. 2(g).
230. Id. art. 6.
231. Id. art. 10.
232. Id. art. II.
233. Id. art. I I, secs. (1)(f), (2)(d).
234. Id. art. 12(1).
235. Id. art. 12(2)(f).

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]WOMEN'S RIGHTS IN CHINA

However, their ability to turn a critical eye to the continuing power of
the patriarchal structure of society is limited because they are forced to
analyze women's problems within the permissible contours of socialist
academic discourse. Members of the Women's Federations will also
continue to speak out for enforcement of women's rights whenever
possible but their role is limited. The best work done by Women's
Federations is in the areas in which they have power, which is, in
responding to the problems of individual women, one at a time. Neither
group, then, is in a position openly to confront sexist policies or the
government's failure to implement the Convention. This became quite
clear when the presence of women scholars and activists on the drafting
committee for the Women's Protection Law failed to result in the
promulgation of a revolutionary, non-sexist law for women.

Thus, without some outside voices exposing the patriarchal structure
of the society and the privileged position that has been given to men, the
focus of discourse about women's status and problems will remain upon
women's inadequacies and lack of knowledge about their legal rights or
upon the sexist activities of 'unenlightened' or criminal elements, rather
than upon the patriarchal system itself. This is where, I believe, the
international community can play an important role because it can
challenge China's claimed compliance with the Convention. Scholars and
women's organizations outside of China are in the position to discuss
and debate the status of Chinese women and, ultimately, to bring the
situation to the attention of human rights' organizations and other
international organizations, including the United Nations.

One way this can be done is through the submission of reports on
women's status under the Convention. States parties are obligated to
submit a country report every four years on their progress under the
Convention. 6 China has submitted two reports so far. 7 Country
reports are reviewed by a United Nations Committee that, in turn, sends
a report on each country's compliance with the Convention to the United
Nations General Assembly.?8 The Committee's powers and resources
are severely limited. For example, the Committee has no power to force
a country to comply with the Convention's provisions or to order an
independent investigation of a country's compliance. Its time to review

236. Id. art. IS.
237. China's Initial Reports of States Parties, CEDAWICI5IAdd. 14, May 25, 1983; Second

Periodic Reports, supra note 216.
238. Convention, supra note 5, arts. 17-22.

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each report thoroughly and engage in follow-up is limited by the backlog
of cases it must review during its annual two-week (maximum)

239meeting. 3 Its reports are, predictably, incapable of bringing an
unbiased view of women's situation in each country to the attention of
the international community, because the basis for its report is usually
only the materials submitted by each country.

Concerned parties can assist the Committee on a voluntary basis as
the Convention does not limit the source of information upon which the
Committee may base its report to the reports submitted by states parties.
This means that independent non-governmental organizations and
individuals may submit their own findings to the Committee for
consideration. Hopefully, this would lead to more unbiased and accurate
reports being submitted to the General Assembly. These reports would
have a two-fold purpose. First, they should encourage the government to
recognize that the preference for a patriarchal, patrilineal and patrilocal
social structure is not simply a feudal remnant existing only in the minds
of the peasants, but that it is a deeply imbedded belief still existing in
the minds of those who create policy and draft laws. Second, it should
bring problem areas in the law and in society that must be addressed in
order to implement properly its obligations under the Convention.

Even though the difficulty of enforcing the laws at the local level
would obviously remain a tremendous barrier to equality and require
legal and non-legal methods to solve, such difficulty does not justify
governmental inaction. Centuries of gender stereotyping based upon
classifying certain attributes as male, and therefore positive, and other
attributes as female, and therefore negative, will not disappear overnight.
However, a first step in the right direction would be to eliminate the
biases and sexist assumptions that exist in the laws. China must be
encouraged to create a truly non-sexist equal legal environment in which
equality of opportunity and treatment are the norm and discrimination is
permitted only when necessary to effectuate equality, as that term is
defined in the Convention. Until those fundamental changes are made,
China's present laws will continue to send a very strong message to the
public that traditional discriminatory practices and beliefs are permissible
and even desirable, both in law and in practice.

239. Id. art. 20(1). For a more detailed discussion of the Committee's problems, see Andrew
Byrnes, CEDAW's Tenth Session, 9 Neth. Q. of Hum. Rts. 332 (1991).

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