Tuesday, April 24, 2012

Bridging the Legal Gap for China’s Incarcerated Women

NPC study group visits Beijing No. 2 Prison, March 30, 2012.
Photo credit: bjrd.gov.cn
While putting the rights of political prisoners in jeopardy, amendments to China’s Criminal Procedure Law (CPL) add safeguards for women, juveniles, and people facing the death penalty. In line with certain aspects of the UN rules for the treatment of women prisoners (the Bangkok Rules), protections are specifically strengthened for pregnant women and girls. But as China’s population of women prisoners continues to grow, national standards to protect women’s rights must reach beyond these groups. One place to start might be China’s Prison Law, which has been in force for nearly 18 years.

Criminal Procedure Law

Effective January 1, 2013, the amended CPL gives pregnant women greater access to non-custodial measures and provides young women with additional support during questioning. In Articles 65 and 72 (Article 51 of the 1996 CPL), women who are pregnant or breastfeeding are added to the list of those who may be released on bail (取保候审) or placed under residential surveillance (监视居住). Article 72 also makes eligible for residential surveillance “the only caretakers of a person who cannot take care of her/himself.” Although this provision does not specify sex, women are more likely than men to assume caretaking responsibilities.

In the 1996 CPL, women who are pregnant or breastfeeding are eligible to temporarily serve outside prison if they have a fixed-term sentence. In the revised CPL, Article 254 expands this eligibility to women sentenced to life imprisonment—as was the case in the CPL enacted in 1980.

As part of the newly drafted section on juveniles, Article 270 states that female personnel shall be present during the interrogation of young women who are suspected of criminal acts and during the questioning of young women who are victims or witnesses.

  Amended CPL: Highlights for Women and Girls
  New Protections
  Article 65
Women who are pregnant or breastfeeding may be released on bail (取保候审)
  Article 72
In the instance that they meet the requirements for arrest, women who are pregnant or breastfeeding or individuals who are the only caretakers of a person who cannot take care of her/himself may be released under residential surveillance (监视居住)
  Article 254
Women sentenced to life imprisonment who are pregnant or breastfeeding may temporarily serve outside prison
  Article 270
When young women are interrogated as suspects or questioned as victims or witnesses, female personnel shall be present
  Current Protections
  Article 130
Physical examinations of women shall be conducted by female personnel or doctors
  Article 137
Searches of the persons of women shall be conducted by female personnel
  Article 251
Executions of pregnant women shall be suspended and immediately reported to the Supreme People’s Court
  Article 254
Women sentenced to fixed-term imprisonment who are pregnant or breastfeeding may temporarily serve outside prison

Criminal Law & Domestic Violence

Last year’s amendments to the Criminal Law also showed consideration for pregnant women by allowing them, along with juveniles and the elderly, to receive suspended sentences in lieu of criminal detention or prison sentences (of three years or less). But women’s rights groups like the All-China Women’s Federation (ACWF) contend that Criminal Law amendments did little to protect other groups of women, namely survivors of domestic violence. Back in 1996, Hunan became the first province to introduce anti-domestic violence rules. It was not until 2011—after an ACWF survey indicated that domestic violence played a role in more than 50 percent of crimes committed by Chinese women, however, that the Standing Committee of the National People’s Congress (NPC) announced plans to draft an anti-domestic violence law.

Prison Law

China’s Prison Law has protections for women akin to those found in the CPL, but, as noted by Yang Mugao (杨木高), the deputy director of the reform and education department of the Jiangsu Prison Administration Bureau, it does not have enough to say about women. Article 39 of the Prison Law requires that the reform of women prisoners take into account their physiological and psychological characteristics, but it does not elaborate on what form such considerations should take.

In an article published in an academic journal (犯罪与改造研究) in 2011, Yang proposed that the Prison Law be amended to include a chapter on the rehabilitation of incarcerated women. Earlier this year, an NPC study group stated that Prison Law reform would occur at the appropriate time and would focus on rights related to labor, medical treatment, and communications as well as how to balance punishing crime and protecting human rights—there was no explicit mention of women prisoners.

When the Prison Law went into effect on December 29, 1994, there were not that many women in China’s 15 women’s prisons. Between 1997 and 2002, the number of incarcerated women rose at an average annual rate of 13 percent. In 2010, it marked its highest annual growth rate (6.05 percent) since 2004 (6.44 percent). If growth remains at 2010 levels, the number of incarcerated women will exceed 100,000 in 2012, spread across 36 women’s prisons.

Legislative Gap

The absence of national legislation on women in prison became somewhat conspicuous in 1999 with the promulgation of national regulations on the administration of juvenile reformatories (未成年犯管教所管理规定). The 1999 rules restrict the use of torture implements and provide specific measures for the frequency of visitation, educational programs, psychological consultation, and hygiene. Given that women are more likely to be the primary caretakers of juvenile children and more likely to be survivors of domestic violence, added clarity on visitation rights and rehabilitative programs for incarcerated women would bolster existing protections. Considerations regarding medical treatment and hygiene are also necessary due to the sexual variance in the incidence of disease and the occurrence of menstruation among women.

At a 2003 symposium on the reform of women prisoners, the Prison Administration Bureau enumerated several ways in which women should be treated differently than men, not as a sign of lax management, but of more targeted and effective management. This call (要求) has yet to result in national regulations.

While domestic research on women in prison frequently discusses the unique characteristics of incarcerated women, measures that take these characteristics into account are unlikely to be implemented without increased public awareness or a clear national agenda. Along with ensuring that the CPL amendments are implemented next year, reforming or introducing additional national legislation with an eye towards the Bangkok Rules would be an important next step in protecting women’s rights.