|Executive Director John Kamm makes introductory remarks during the webinar on March 30. Composite image credit: The Dui Hua Foundation|
The United States is increasingly mainstreaming gender-specific justice reform, and the need has been identified in China as well. In 2019, Dui Hua found that even as the number of girls convicted by courts decreased until the end of 2016, the number of girls convicted as a percentage of juvenile convictions had increased.
When Dui Hua published its research and analysis in December 2019, it expressed concern that the draft of a proposed law on the Prevention of Juvenile Delinquency released that autumn omitted gender-specific measures, saying that “it is increasingly accepted that gender-specific needs require different approaches.” The International Symposium on Girls in Conflict with the Law, organized by Dui Hua and its partners, explored issues related to girls’ justice in the Chinese justice system with representatives from China’s Supreme People’s Court (SPC). The webinar “China’s Supreme People’s Court: Special and Priority Protection of the Legitimate Rights and Interests of Underage Girls in Accordance with the Law” featured Dr. Jiang Jihai, Director of Juvenile Offender Office of Research Office of SPC, and Ms. Dai Qiuying, Director of Center for the Protection of Minors of Applied Law.
Remarks by both panelists, speaking through an interpreter, provide insight into the causal factors of female juvenile offences and new laws for juvenile offenders, particularly girls. These remarks, statistics discussed during the webinar, and Dui Hua’s research provide a more informed understanding of juvenile female crime rates in China and changing approaches to juvenile crime.
Statistics from Dr. Jiang and Dui Hua research show that beginning in 2018, there was a sustained increase in the number of offending girls overall. Furthermore, the number of offending girls as a percentage of all offending juveniles has risen every year from 2013 to 2019 with a slight drop in 2020, yet percentagewise more than doubled over seven years earlier. Figures were unavailable for 2017 other than the total number of juveniles convicted.
The combined efforts of the SPC and the Supreme People’s Procuratorate (SPP) work to create a “whole society approach” to the criminal process for juvenile offenders that is focused on rehabilitation and education first, and punishment second. Table 2 shows that in 2019, the SPP prosecuted a total of 43,234 minors suspected of committing crimes. Table 3 shows that conditional non-prosecution (known in the United States as “diversion”) was applied for 7,663 of the juveniles who committed “minor crimes” and showed repentance in 2019, a number that had already been increasing year-by-year but had a sharp uptick between 2016 to 2019.
The Chinese government has been overhauling legislation for juveniles as recently as 2020, when the newest version of the Law on Protection of Minors was passed. This law works in tandem with the revised Law of the People's Republic of China on Prevention of Juvenile Delinquency to inform policy and approach. These revisions codify previous legal provisions into black letter legal provisions, basic principles of law that are undisputed and accepted by all judges.
The increase in minors given conditional non-prosecution in 2019 points to the continued emphasis on rehabilitation and education as the first response to juvenile offenders. It also underlines the relevance of the recent changes to the Law on Protection of Minors and the revised Law of the People’s Republic of China on Prevention of Juvenile Delinquency.
Dr. Jiang discussed “important innovations” in the revised laws that aim to improve the treatment of juvenile offenders. These include refining the family guardianship system, improving governmental guardianship measures, establishing a mandatory reporting system, establishing an information inquiry system for criminals as well as clarifying the prevention and control of internet addiction, campus bullying, new offenses, and punishment measures for the behavior of failing to fulfill the legal obligations.
The newly revised law also states that if a minor below the age of criminal liability commits an act which is prohibited by law, then government agencies may conduct an evaluation and, with the approval of a special education steering committee, provide corrective education at a special school. At these special schools, offenders reportedly receive moral, legal, and psychological health education, along with appropriate vocational training.
In December 2020, China passed 11th Amendment to the Criminal Law lowering the age of criminal responsibility from 14 to 12 years old for some serious crimes. The law holds children aged 12 to 14 criminally liable for “intentional homicide or intentional injury that leads to death or causes others severe disabilities by extremely cruel means.” If a crime not mentioned in the new law is committed by a child under the age of 14, they will be exempt from criminal punishment but may be given correctional education as mentioned above. Remaining unchanged is the law that holds those between the ages of 14 to 16 criminally responsible in serious crimes such as cases of rape, robbery, and intentional homicide.
The approach to “juvenile justice with Chinese characteristics,” spoken of by both Dr. Jiang and Ms. Dai, prioritizes diversion from conviction and ongoing involvement by the court as part of the rehabilitation and education process. Under these reforms, judges are responsible for building and maintaining relationships with juvenile offenders and their families to understand the causal factors of their offence and provide guidance. Courts must first conduct a comprehensive analysis of the possibility of recidivism of minor offenders, including consideration of the offender’s family and home situation, then assess the best approach for rehabilitation with an emphasis on the primary caregiver or parents as role models. According to Dr. Jiang and Ms. Dai, the courts are also in the process of drafting two pieces of legislation titled the Family Education Law and the Child Welfare Law that would allow judicial agencies to play a larger role in ensuring the proper education and mentorship of children.
There is not much gender-specific data available to clarify what trends in diversion and education mean for girls specifically. Dr. Jiang noted that the overall age of female juvenile offenders has been getting younger. He cited the “low age” and “rebellious psychology during adolescence” of girl offenders as factors that lead them to “handle issues in a very simplified and immature way without the proper foresight and prediction of the consequence” due to their lack of legal knowledge. To address this, the government has taken efforts to help young people understand Chinese law. Such measures include events, campaigns, and educational materials for use in classrooms, judges serving as adjunct teachers on school campuses for primary and middle schools, and a moot court experience as well as online courses for older students.
|Dr. Jiang makes remarks during the webinar. Image credit: The Dui Hua Foundation|
Evidence also points to poor general education as a common causal factor for girl offenders, many with below a middle school education and a “non-existent or limited” understanding of the law according to Dr. Jiang. He also cited parents’ low education level as a causal factor for criminal behavior in both male and female minors. This lack of a basic education coupled with limited understanding of the law, can lead to the development of bad habits and criminal behavior. Both Dr. Jiang and Ms. Dai cited contexts and environmental factors as fundamental pathways to offending for girls, expressing the sentiment that “there are no problem children, only problem families.”
Neglect was noted as another strong contributing factor for female offenders in China. In today’s economy, many children are left home unsupervised as both parents are working. This can result in young girls being negatively influenced by older female peers or people they befriend on the internet. Judges review these types of causal factors when assessing how to handle crimes committed by female juvenile offenders and deciding which course of action will bring the offender back to a “normal law-abiding citizen and useful talent for society.”
Ms. Dai emphasized that the family is the most important domain for the growth and improvement of minors, saying that “people should build a family upbringing model full of love, freedom, and respect.” Reflecting this emphasis, Article 7 of the Minors Protection Law in China allows the state or government to take “necessary measures” to guide, support, and supervise the parents or guardians in doing their duty” to raise law abiding citizens.
|Ms. Dai makes remarks during the webinar.|
Dr. Jiang suggested that the court is committed to continuing to improve gender-sensitive procedures for female juvenile offenders. These include increasing the use of female police officers, prosecutors, judges, and lawyers who are trained to handle girl’s cases and to protect the privacy of girl offenders. Taken together, these legislative and procedural changes suggest that juvenile justice policy reform, including gender-sensitive approaches, is increasingly seen as a priority.A Gender-Sensitive Future
The comments by Dr. Jiang and Dai on changes to the SPC’s approach to juvenile justice law, including the inclusion of gender-sensitive processes, are promising. The International Symposium on Girls in Conflict with the Law produced a list of recommendations for the promotion of effective girls’ justice policy. Dr. Jiang and Ms. Dai’s remarks on community-based solutions, reducing detention, and applying non-custodial solutions/alternatives to detention are in line with these recommendations and Article 37b of the Convention on the Rights of the Child.
The focus on addressing root causes of juvenile offending, including socio-economic vulnerability and family instability, by funding and supporting social services is promising. At the time of this writing, China does not have, and never has, gender-specific criminal laws. Similarly, such measures as the implementation of gender-specific measures like specialized training and having female personnel interact with girls have yet to materialize in legislation or official policy.
The Symposium recommendations also stress the need to systematically collect disaggregated data in order to better understand the pathways leading children to detention globally. More transparency on figures for female juvenile offenders and diversion programs would contribute towards a collective understanding and better research. Were China to increase its engagement with the international community on girl’s justice, this could help promote best practices and effective policy at the international level.
Finally, the issue of long-standing research gaps rooted in discriminatory thinking emerged repeatedly during the Symposium in a variety of contexts. Like other countries including the United States and Canada, funding and supporting research on girl’s lives, including a special focus on Indigenous girls and ethnic minorities, would help governments effect better policy for justice-involved girls. China’s policy success and challenges around juvenile justice are a vital part of that understanding and would be an important contribution towards greater clarity on how to address juvenile justice for girls in the future.