China’s legal system must change to protect sexual harassment survivors
- The sad truth is that the system tends to favour the defendant in civil litigation. Courts should place more weight on testimony and reconsider the ‘high degree of likelihood’ standard, which is challenging compared to other parts of the world
As a victim of sexual abuse at the hands of a maths teacher at my primary school, I am bitterly disappointed by the court ruling, yet I am not too surprised. The sad truth is that China’s legal system tends to favour the defendant in such cases.
“When survivors sue harassers, they, like most plaintiffs in civil litigation in China, must prove their claims to the court to a ‘high degree of likelihood’, but meeting this high bar is extremely challenging,” Darius Longarino, a senior fellow of the Paul Tsai China Centre at Yale Law School, told me.
Since sexual misconduct usually takes place in private space and between two people, there are not always witnesses or hard evidence such as recordings or text messages. Without them, however, survivors almost always lose because the Chinese judges give little credence to litigant testimony.
Even if there is hard evidence, it is not certain that judges will see it. Zhou said that the court rejected her lawyer’s efforts to present evidence, including video footage from outside the dressing room. “Ultimately, the court didn’t give us any space for making a statement,” she said in a statement after the verdict.
Among the more than 50 million court cases from 2010 to 2017, only 34 of them involved sexual harassment. Of the 34 cases, only two were brought by victims suing their abusers, and both lost.
Apart from the legal barriers, societal prejudice against survivors has also shamed many into silence. Zhou has experienced plenty of criticism and attacks. Someone reportedly told her, “Your voice is very dia [coquettish or flirtatious]. So you should take some responsibility for what happened to you.” The culture of victim-blaming is deeply rooted.
In recent years, educational institutes have started to pay a little more attention to sexual harassment. Some of their safety guidelines, however, contain dubious information.
In the section titled “Factors that cause sexual assault”, it first made reference to the “internal characteristics of women”, which includes “focusing too much on dressing” and “being beautiful and frivolous”.
Judges should place more weight on litigant testimony, which would require them to spend more time assessing the evidence provided by both parties. In Zhou’s case, the defendant wasn’t even required to appear in court.
The court should also reconsider the “high degree of likelihood” requirement, which some legal scholars believe to be 75 per cent to 85 per cent certainty. It is high compared to other parts of the world.
Germany uses the civil law system, like China. There, judges are willing to shift the burden of proof back and forth between the parties to bring the truth to light.
Lijia Zhang is a rocket factory worker turned social commentator, and the author of a novel, Lotus