Among the recommendations China accepted in its 2009 Universal Periodic Review (UPR) was one put forward by Mozambique “to continue efforts aimed at further enhancing the status of women.” In the corrections sector, China has taken some positive steps but has not consistently applied a gender-specific approach. For example, consistent with the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the “Bangkok Rules”), China revised its Criminal Law and Criminal Procedure Law in 2011 and 2012, respectively, to increase access to non-custodial measures for pregnant and breastfeeding women. However, China has yet to officially incorporate the Bangkok Rules into its national policies and to address the range of issues that apply to women more generally.
The Bangkok Rules cover the entire process of women’s encounters with the criminal justice system from admission to treatment and reintegration into society. In doing so, they take into account that incarcerated women are more likely than men to be the primary caregivers of minor children, to have histories of domestic violence and substance abuse, and to commit self-harm. They also acknowledge that women have health care needs that differ from those of men and are less likely to pose a risk to society (as they are less likely than men to commit violent crimes).
Domestic violence is one of the issues addressed in the Bangkok Rules and is a leading cause of crime among women in China. The Supreme People’s Court has created a task force and initiated a pilot project to develop national sentencing standards for cases involving domestic violence, and as part of the project, a set of guiding cases is expected to be released later this year.
Li Yan’s life is on the line as the Supreme People’s Court decides whether long-standing allegations of domestic violence provide sufficient reason to exempt her from the death penalty for killing her husband after he pulled a gun on her. Photo credit: The Guardian
Consistent with the Bangkok Rules, the Hunan High People’s Court issued the first provincial guiding opinion on domestic violence in 2009, encouraging lighter sentences and sentence reductions for women who “fight violence with violence.” However, nationwide, most women who fight back still receive severe punishments of 10 years’ imprisonment, life, death with reprieve, and, as in the case of Li Yan (李彦), death with immediate execution. These harsh sentences do not take seriously the realities of domestic abuse and do not account for the fact that women who have committed offenses while defending themselves against a loved one tend not to pose a threat to society. They also fail to recognize the equal status of women by accepting domestic violence as a normal, private affair for which the victim deserves blame.
About a third of all Chinese families have experienced domestic violence. The Standing Committee of the National People’s Congress announced plans to draft an independent anti-domestic violence law in August 2011, but the law is unlikely to come out before the end of this year.
In the time before a national law is passed, China can strive to continue efforts aimed at enhancing the status of incarcerated women by pledging to incorporate the Bangkok Rules into national laws and policies and exempting domestic violence survivors from the death penalty while sentencing standards are under review.