Thursday, December 26, 2013

Custody and Education Worse than Reeducation through Labor?

Women detained in Ningbo Custody and Education Center await medical examination. Photo credit: Ningbo Daily.

After the Chinese Communist Party announced that reeducation through labor (RTL) would be abolished, other compulsory extralegal measures seemed to move up on the human rights agenda of outside observers. Among them was custody and education, an administrative punishment targeting female sex workers and, to a lesser extent, their clients. The measures governing custody and education (translated below) were issued in 1993 and have remained largely unchanged.

As with RTL, decisions to impose custody and education are in the hands of police and can lead to years of deprivation of liberty. Terms of custody and education last from six months to two years. In comparison, RTL terms were set at one to three years by 2002 regulations and generally revised down (in theory) to one to one and a half years by a 2005 opinion issued by the Ministry of Public Security (MPS).

Public security organs are required to provide notice of RTL to an individual’s family members within two days of implementation. The notification period for custody and education is 15 days. (Last year’s revisions to the Criminal Procedure Law require notice of criminal detention within 24 hours, except in cases of endangering state security or terrorist activity.)

A report released by Asia Catalyst earlier this month emphasized that people held in custody and education are not only forced to work without pay, but are also required to pay for their living expenses and for compulsory testing and treatment for sexually transmitted diseases. Last week, The Mirror (fazhi wanbao) reported that the Tianjin Municipality Custody and Education Center also charges 200 yuan per time for family visits, which are granted under Article 16 of the rules governing custody and education. Although one of the goals of the coercive measure is to “rescue” people from the sex industry, all 30 of the working women interviewed by Asia Catalyst returned to the sex trade immediately after their release. The high cost of serving sentences in custody and education centers is unlikely to deter such decisions.

Police rules require that decisions to send juveniles to RTL be strictly controlled. In particular, first-time offenders or students with involved parents “must not be sent to RTL.” However, custody and education for children under the age of 14 and people who were abducted and forced into prostitution is at the discretion of police, who “may” choose to withhold punishment. Academic studies of custody and education detainees in Shenzhen and Fuzhou noted that the youngest detainees were 14 years old.

Several cases indicate that custody and education has also been used against government critics. In April 2004, Xiao Xiangjin, a journalist suspected of encouraging farmers to petition the local government over corruption and abuse of power, was reportedly sentenced to one year of custody and education in Fujian Province. The following month, another journalist, Liu Shui, was sentenced to two years in Guangdong. Liu had previously served two prison sentences for “counterrevolutionary propaganda and incitement,” and when arrested in 2004, was active in posting essays online calling for political reform.

In 1992, the MPS affirmed that Chinese citizens from Taiwan, Hong Kong, and Macao could be sentenced to custody and education despite prohibitions on placing them in RTL. Hong Kong Democratic Party member Alex Ho was placed in custody and education a month before Legislative Council elections in 2004.

More recently, allegations of patronizing prostitutes tarnished the public image of Chinese American investor and popular social media personality Charles Xue. Global Times called Xue’s detention in August 2013 “perhaps one of the most important moments in the rise of Weibo, as the authorities tighten control over the ‘Big V's’ [people with verified accounts on the Chinese micro blog tool] who could easily sway the public opinion.” He became popular by focusing on issues including child trafficking and poverty in China. His detention was highly publicized but no further announcements have been made regarding his legal fate. According to the 1992 MPS communique, custody and education may be applied to foreigners—Xue is a naturalized American citizen—although, in actual practice, the document says, it is rarely used for non-Chinese citizens. Instead, other punishments, such as administrative detention, revocation of residency permits, shortening of visas, or entry bans are applied.

A review of the custody and education system is timely not only given the announced abolition of RTL, but in light of the recent visit to China by the Working Group on the Discrimination against Women in Law and in Practice (WGDAW). While commending China for the attention it has given to the needs of some groups of women, the working group noted that: “other categories of women who are vulnerable to discrimination and violence equally require effective and empowering protection measures, such as women in detention, refugee women, women living with HIV/AIDS, and women of diverse sexual orientation and gender identity.” Some of these groups clearly overlap with custody and education targets. Although men are sentenced to custody and education, the majority of detainees are female sex workers. According to an article published in the Journal of Zhangzhou Normal University in 2011, the male clients of female sex workers are more likely to receive fines than to lose their liberty. The article says that custody and education centers were originally called “women’s education centers” (fujiaosuo).

WGDAW recommended a review of the gender impact of China’s existing policies, and the 20-year-old custody and education measures are a good candidate for scrutiny. In an interview with Southern Daily earlier this month, Vice President Yu Mingyong of the Guangzhou Intermediate People’s Court said that “although custody and education is different than RTL, in the future, it too will exit the stage of history.”

Measures for the Custody and Education of Prostitutes and Clients of Prostitutes: click to expand

Measures for the Custody and Education of Prostitutes and Clients of Prostitutes
State Council Decree of the People’s Republic of China (PRC)
No. 127

Measures for the Custody and Education of Prostitutes and Clients of Prostitutes are hereby promulgated and shall go into effect as of the date of promulgation.

Premier Li Peng
September 4, 1993

Article 1 In order to educate and rescue prostitutes and the clients of prostitutes and prevent the spread of sexually transmitted diseases (STDs), these measures have been formulated in accordance with the Decision of the Standing Committee of the National People’s Congress on the Strict Prohibition against Prostitution and the Patronage of Prostitutes.

Article 2 In the context of these measures, the term “custody and education” refers to administrative compulsory educational measures for prostitutes and the clients of prostitutes that carry out centralized legal and moral education, organize participation in productive labor, and carry out STD screening and treatment. Custody and education work implements the policy of education, reform, and rescue.

Article 3 The Ministry of Public Security (MPS) is in charge of custody and education work.

Article 4 Based on the need for custody and education work, public security organs at the level of the province, autonomous region, municipality or autonomous prefecture, or city district shall submit plans for the establishment of custody and education centers to the people’s government at the same level for approval. Local planning committees and finance departments shall include the infrastructure investments and operation expenses of custody and education centers in construction plans and financial budgets.  

Article 5 Counseling, medical, accounting and other staff members shall be allocated to custody and education centers based on work requirements.

Article 6 Custody and education centers shall be outfitted with rooms for shelter, as well as areas for education, labor, medical treatment, and cultural activities.

Article 7 Public security organs may decide to send to custody and education those prostitutes and the clients of prostitutes, with the exception of those punished in accordance with Article 66 of the Public Order Administration Punishment Law of the PRC,* whose [actions] do not warrant reeducation through labor.

In any of the following circumstances, prostitutes and the clients of prostitutes may be withheld from custody and education:

  1. They are under 14 years of age;
  2. They suffer from acute infectious diseases other than STDs;
  3. They are pregnant or breastfeeding their birth infant who is under the age of one;
  4. They were abducted and forced into prostitution.

Article 8 County-level public security organs decide whether to impose custody and education on prostitutes and the clients of prostitutes. Where a decision has been made to implement custody and education, the relevant county public security organ shall fill out a written Decision of Custody and Education. A copy of the decision shall be given to the person subjected to custody and education, and within 15 days of the date of the decision, notification shall be given to the person’s family members, work unit, and the police station in their place of household registration.

Article 9 The term of custody and education is from six months to two years and is counted from the commencement of custody and education.

Article 10 Custody and education centers shall conduct STD testing and treatment of people taken into custody and education. The cost of examination and treatment is generally the responsibility of the individual or their family members.

Article 11 Custody and education centers shall separately manage people held in custody and education according to their gender and whether they have STDs.

Women who are held in custody and education shall be managed by female staff.

Article 12 Custody and education centers shall manage in accordance with the law, establish and perfect all administrative systems, and strictly prohibit abuse, physical punishment, and other methods of humiliating people held in custody and education. People held in custody and education shall comply with all of the administrative systems of the custody and education center and obey the management.

Article 13 People held in custody and education shall be given legal and moral education and organized to participate in productive labor, learn production skills, and strengthen their work ethic. Revenue earned by people in custody and education who participate in productive labor is used to improve their lives in custody and education and the custody and education facilities. People in custody and education who participate in productive labor may be paid a certain amount of labor remuneration in accordance with regulations. Custody and education centers shall keep separate accounts for labor income and expenses and strictly manage them. Custody and education centers shall implement civilized management and organize people in custody and education to engage in beneficial cultural and sporting activities.

Article 14 The cost of living of a person in custody and education is generally the responsibility of the individual or their family members.

Article 15 During intake, the personal items of people sent to custody and education must be stored by the custody and education center. The center shall make an inventory register, keep items in a safe place, and return items to their owners upon their discharge from custody and education.

Article 16 Custody and education centers shall allow visits from family members of people in custody and education. If people in custody and education give birth, have a serious illness or death in the family, or another legitimate reason that necessitates leaving the facility, after their family or work unit acts as a guarantor and pays bond, and approval is received from the director of the center, they may leave the center. Time away from the center generally does not exceed seven days. The method for bond collection is determined by the MPS.

Article 17 While serving their term, people in custody and education who show true repentance or perform meritorious services, or in other special circumstances, may receive commendation or early release from custody and education. Where a person needs to be released early from custody and education, the custody and education center shall write an opinion and send it for approval to the public security organ that originally decided to send that person to custody and education. But, where a person is released early, their actual term served in custody and education must not be less than half of their original term for custody and education.

Article 18 People in custody and education who refuse to accept education or do not obey management may be given warnings or term extensions. Where a person requires a term extension, the custody and education center shall write an opinion and send it for approval to the public security organ that originally decided to send that person to custody and education. But, where a person’s term is extended, their actual term served in custody and education shall not exceed a maximum of two years. Where it is discovered that a person in custody and education has committed other illegal criminal acts that were not handled, they shall be handled in accordance with relevant laws and regulations.

Article 19 Upon completion of their sentence, people shall be released on time and issued a certificate of release from custody and education. Their family members or work units shall be notified to pick them up.

Article 20 People sent to custody and education who do not accept the decision against them may apply for administrative reconsideration in accordance with the law; those who do not accept the administrative reconsideration decision may file a lawsuit with a people’s court in accordance with the provisions of the Administrative Procedure Law of the PRC.*

Article 21 Where a person dies while serving their term of custody and education, the public security organ shall organize a forensic medical expert or appointed doctor to verify the cause of death; shall, after inspection by the people’s procuratorate at the same level, report to the public security organ and people’s procuratorate at the next highest level to put [the death] on record; shall fill out a death notice; and shall notify the family members, work unit, and police station in the person’s place of household registration. Persons not claimed by their family members will be handled by the public security organ after photographs are taken. 

Article 22 The MPS is responsible for the interpretation of these measures.

Article 23 These measures go into effect on their date of promulgation.

* Language revised in 2011 as per State Council Decree No. 588.

Chinese Source(原文):
Click on icon to expand




总理 李鹏

第一条 为了教育、挽救卖淫、嫖娼人员,制止性病蔓延,根据《全国人民代表大会常务委员会关于严禁卖淫嫖娼的决定》,制定本办法。

第二条 本办法所称收容教育,是指对卖淫、嫖娼人员集中进行法律教育和道德教育、组织参加生产劳动以及进行性病检查、治疗的行政强制教育措施。收容教育工作实行教育、感化、挽救的方针。

第三条 收容教育工作由公安部主管。

第四条 收容教育所的设立,由省、自治区、直辖市或者自治州、设区的市的公安机关根据收容教育工作的需要提出方案,报同级人民政府批准。地方计委、财政部门应当将收容教育所的基本建设投资和所需经费列入基建计划和财政预算。

第五条 收容教育所根据工作需要,配备辅导、医务、财会等工作人员。

第六条 收容教育所应当设置收容室以及教育、劳动、医疗、文化活动等场所。

第七条 对卖淫、嫖娼人员,除依照《中华人民共和国治安管理处罚条例》第六十六条的规定处罚外,* 对尚不够实行劳动教养的,可以由公安机关决定收容教育。



第八条 对卖淫、嫖娼人员实行收容教育,由县级公安机关决定。决定实行收容教育的,有关县级公安机关应当填写收容教育决定书。收容教育决定书副本应当交给被收容教育人员本人,并自决定之日起十五日内通知其家属、所在单位和户口所在地的公安派出所。

第九条 收容教育期限为六个月至二年。收容教育日期自执行之日起计算。

第十条 收容教育所对入所的被收容教育人员,应当进行性病检查和治疗。检查和治疗性病的费用一般由本人或者家属负担。

第十一条 收容教育所对被收容教育人员,应当按照性别和有无性病实行分别管理。


第十二条 收容教育所应当依法管理,建立、健全各项管理制度,严禁打骂、体罚或者以其他方式侮辱被收容教育人员。被收容教育人员应当遵守收容教育所的各项管理制度,服从管理。

第十三条 对被收容教育人员应当进行法律教育和道德教育,并组织他们参加生产劳动,学习生产技能,增强劳动观念。被收容教育人员参加生产劳动所获得的劳动收入,用于改善被收容教育人员的生活和收容教育所的建设。对参加生产劳动的被收容教育人员,可以按照规定支付一定的劳动报酬。收容教育所对劳动收入和支出应当单独建帐,严格管理。收容教育所应当实行文明管理,组织被收容教育人员开展有益的文化体育活动。

第十四条 被收容教育人员在收容教育期间的生活费用一般由本人或者家属负担。

第十五条 被收容教育人员入所时携带的物品需要由收容教育所保管的,收容教育所应当造册登记,妥善保管,在被收容教育人员离所时将原物交还本人。

第十六条 收容教育所应当允许被收容教育人员的家属探访。被收容教育人员在收容教育期间,遇有子女出生、家属患严重疾病、死亡以及其他正当理由需要离所的,由其家属或者其所在单位担保并交纳保证金后,经所长批准,可以离所。离所期限一般不超过七日。保证金收取办法由公安部规定。

第十七条 被收容教育人员在收容教育期间确有悔改表现或者有立功表现以及其他特殊情况的,可以给予表扬或者提前解除收容教育。需要提前解除收容教育的,由收容教育所提出意见,报原决定对其实行收容教育的公安机关批准。但是,提前解除收容教育的,实际执行的收容教育期限不得少于原决定收容教育期限的二分之一。

第十八条 对拒绝接受教育或者不服从管理的被收容教育人员,可以给予警告或者延长收容教育期限。需要延长收容教育期限的,由收容教育所提出意见,报原决定对其实行收容教育的公安机关批准。但是,延长收容教育期限的,实际执行的收容教育期限最长不得超过二年。收容教育期间发现被收容教育人员有其他违法犯罪行为尚未处理的,依照有关法律、法规处理。

第十九条 对收容教育期满的人员,应当按期解除收容教育,发给解除收容教育证明书,并通知其家属或者所在单位领回。

第二十条 被收容教育人员对收容教育决定不服的,可以依法申请行政复议;对行政复议决定不服的,可以依照《中华人民共和国行政诉讼法》的规定向人民法院提起诉讼。*

第二十一条 被收容教育人员在收容教育期间死亡的,应当由公安机关组织法医或者指定医生作出死亡鉴定,经同级人民检察院检验,报上一级公安机关和人民检察院备案,并填写死亡通知书,通知被收容教育人员家属、所在单位和户口所在地公安派出所;家属不予认领的,由公安机关拍照后处理。

第二十二条 本办法由公安部负责解释。

第二十三条 本办法自发布之日起施行。

* 根据2011年《中华人民共和国国务院令(第588号)》第68、87条有修改。