Friday, February 24, 2017

Will a New Judicial Interpretation on Cults Lead to Greater Leniency?

Underground church goers watch a service on a video screen in Beijing. Image Credit: Express UK.

Since coming into force in October 1997, Article 300 of the Criminal Law “organizing/using a cult to undermine implementation of the law” has been frequently used to suppress groups such as Falun Gong, unofficial Christian groups, Buddhist sects, and over a dozen qigong groups including Zhonggong. Accompanying this law, two judicial interpretations were jointly issued by the Supreme People’s Court and Supreme People’s Procuratorate on October 1999 and June 2001, respectively, to explain the law's specific application. Effective since February 1, 2017, the latest joint interpretation of Article 300, consisting of sixteen articles, adds a new penalty range based on leniency and serves to redefine the sentencing standard.

New Sentencing Standard

The new interpretation incorporates previous changes made to the ninth amendment of the Criminal Law in November 2015 concerning the standard of punishments for cult crimes. Of significance is the elaboration of what is meant by “relatively minor circumstances” that can result in a sentence of three years or less, detention, surveillance, deprivation of political rights, fines, or combined penalties with fines. Such “circumstances” are defined in the interpretation as acts that inflict lighter social harm, which are measured by quantifiable factors such as: the number of cult propaganda materials produced and disseminated, the number of views or downloads of a cult propaganda video, the amount of economic loss caused by cult activity, or the number of members recruited by the cult. An act is considered relatively minor when such an amount or number falls below one-fifth of what is accepted as the new normal standard (see below).

In the future, we can expect to see more cult offenses deemed as “relatively minor” cases, partly because by raising the benchmark for evidence necessary to imprison cult prisoners for up to three to seven years, the new interpretation has expanded the scope of activities that fall under the category of “minor” cases. For instance, the quantity of print propaganda materials (such as leaflets, banners or newspapers) produced or disseminated for cult purposes that constitute a normal offense has now been raised to 1,000, a significant leap from 300, as stated in the 2001 interpretation. For propaganda in the form of books or publications, the quantity for a normal offence requires evidence of at least 250 materials, again a significant leap from the previous count of 100 publication materials. The interpretation also quantifies a number of additional criminal behavior used to determine sentencing.

List of criminal behaviors revised in Article 2 of the interpretation:

  • Recruiting over 50 members;
  • Swindling or leading to an economic loss of over one million yuan;
  • Using at least 500 banknotes as a means to disseminate information about a cult;
  • Manufacturing or disseminating cult propaganda over a certain amount:
    • over 1,000 leaflets, spray paints, pictures, banners and newspapers;
    • over 250 copies of books or publications, cassettes or audio-videotapes; or logos or signs;
    • over 100 CD-ROMs, U-disks, memory cards, mobile hard drivers or other mobile storage devices;
    • over 50 banners.
  • Using the Internet to disseminate information about a cult:
    • manufacturing or disseminating over 200 digital pictures or articles, over 50 copies of e-books, publications, audios or videos, electronic files with over five million characters, or electronic files exceeding 250 minutes;
    • composing or making over 1,000 messages or phone calls;
    • using online chatrooms, chat groups, WeChat, microblogs or other social networking services to spread information about a cult involving over 1,000 members or followers;
    • cult messages with over 5,000 views or clicks.

A circumstance is considered “especially grave” when the quantity is five times more than the numbers stated above, and can lead to imprisonment of seven years or more. Although the ninth amendment to the Criminal Law increased the maximum sentence from 15 years to life, it has not been imposed for the single offense of Article 300. For example, while the Buddhist leader Wu Zeheng (吴泽衡) received a life sentence for charges of fraud and rape, his crime related to cult activity afforded him a sentence of 12 years.

Greater Leniency Despite a Surge in Cult Cases

Dui Hua’s Political Prisoner Database has collected information on over 8,000 individuals convicted of Article 300 of the Criminal Law between 2000-2016. Most convictions in the early years after Falun Gong was labelled an “evil cult” in 1999 are now considered “particularly serious circumstances” under the new interpretation. During that time, a number of high-profile leaders such as Wang Zhiwen (王治文) and Li Chang (李昌) were given lengthy sentences of over 10 years for multiple offenses.

Image Credit: Dui Hua Foundation.

Since December 2012, the total number of cult convictions recorded in the database has surged as a result of the nationwide clampdown on the group the Almighty God, and an improved level of judicial transparency due to the more regular online posting of court judgments. Nonetheless, the appearance of a new religious threat does not appear to be met with the same intensity compared to the Falun Gong crackdown of the early 2000s. Most convictions of Almighty God members resulted in sentences of three to four years' imprisonment, and fewer than 10 percent of all cult sentences in the same period exceeded seven years. Also noteworthy is the surge of cases now considered relatively minor with sentences of three years or less. In 2016, over half of the convictions for cult activity are now considered relatively minor cases according to the new interpretation, superseding the number of ordinary cult cases for the first time since the offense was codified in the Criminal Law.

Leniency in the form of shorter sentences is a further indication of an overall relaxation of the clampdown on cults. Article 9 of the interpretation states that:

“a perpetrator can be exempt from indictment or criminal punishment if he or she expresses sincere remorse about his wrongdoing, and exhibits a willingness to leave the cult and cease joining in its activities. Those who are deceived or intimidated into joining the cult will not be handled as criminals.”

Showing remorse is a prerequisite for prisoners seeking clemency, and it is not uncommon for prisoners charged with cult crimes to receive sentence reductions after expressing remorse for their behavior. Dui Hua’s Political Prisoner Database recorded over 300 instances of clemency in 2014 for cult prisoners and in 2015, the number surged to nearly 500.

Deprivation of Political Rights

Despite the trend towards greater leniency in sentence reductions, public security authorities also appear ready to continue exercising control over cult prisoners even after they have completed their sentences. Article 14 of the interpretation states that a supplemental sentence of “deprivation of political rights” (DPR) up to five years may be imposed on cult prisoners. Prior to the interpretation, only prisoners sentenced for the crime of “endangering state security” and a number of violent crimes were subject to a supplemental DPR sentence, depriving them of the right to vote, the right to stand for office and the right to hold a position in a state-owned company, regardless of the fact their sentences had already been completed. Of particular concern to cult prisoners is that individuals under DPR are prohibited from writing articles or giving interviews.

Dui Hua will closely monitor the application and impact of this new interpretation for cult prisoners. The new sentencing standards suggest an expansion of crimes considered “minor” and hopefully a reduction of cult prisoners serving long sentences. That said, the enhancement of the use of DPR may present new opportunities for public security authorities to exert control over cult members even after their release.