Since the late 1980s, Chinese police have tried to halt the development of a commercial sex industry in the PRC by implementing periodic anti-vice campaigns against illegal activities in recreational enterprises. Early campaigns were based on two articles contained in the PRC’s first Criminal Law of 1979, effective 1 January 1980. Article 140 stipulated that whoever forced a woman into prostitution should be sentenced to between 3 and 10 years’ imprisonment (Criminal Law of the PRC 1979). Article 169 stated that whoever lured or sheltered women in prostitution for profit should be sentenced to a maximum of five years’ imprisonment, with additional provisions for more serious offences. The abolitionist nature of these few articles reflects the PRC’s historical objection to the prostitution industry and the perception that commercial sex ‘did not exist’ in China.
A revised version of the PRC’s Criminal Law came into effect in 1997. That law contains multiple provisions designed to prohibit the third-party organisation of prostitution, demonstrating its spread throughout Chinese society. However, it does not criminalise the behaviours of first-party participants in a voluntary prostitution transaction, with the exception of clauses relating to sex with minors and the premeditated spread of STIs (Criminal Law of the PRC 1997, Article 360). Article 358 states that whoever organises or forces others into prostitution shall be fined and sentenced to between five and ten years’ imprisonment. Stricter sentences, including life imprisonment and even the death penalty, are stipulated for crimes such as forcing girls under the age of 14 years into prostitution, forcing a number of persons into prostitution, raping and then forcing others into prostitution, and causing severe injuries, death, or other serious consequences, to persons forced into prostitution. Article 358 stipulates that those who help others organise people for prostitution shall be sentenced to a maximum of five years’ imprisonment and fined and, in serious cases, sentenced to between 5 and 10 years’ imprisonment, plus a fine. Article 359 states that those who introduce and shelter other persons into prostitution shall be sentenced to a maximum of five years’ imprisonment and fined or, in serious cases, such as those involving underage girls, to not less than five years’ imprisonment and a fine.
Article 361 of the 1997 Criminal Law aims to restrict the conditions enabling the formation of a sex industry by introducing a system of controls over personnel in the hospitality and service industry. Article 361 states that managers or employees who take advantage of their work unit to organise, force, introduce, or shelter, others to engage in prostitution shall be convicted and punished in accordance with Articles 358 and 359. Article 362 states that personnel who leak information about prospective police investigations into prostitution activities at their work unit shall be convicted for obstructing the course of justice.
From 1 January 1987 until 28 February 2006, the activities of first-party participants in commercial sex were policed according to the ‘Regulations of the People’s Republic of China on Administrative Penalties for Public Security’ (1986) (hereafter the 1986 Regulations), and not the criminal code. During the Maoist period, the formal legal system fell into disrepute, being seen as a tool of class-based oppression. It was replaced in part by a system of administrative and party disciplinary sanctions. This system was used to police the activities of those deemed to have committed social offences or political errors, but whose criminal liability was not considered sufficient to bring them before the courts (Jeffreys 2012: 7).
Article 30 of the 1986 Regulations states that it is forbidden to sell and buy sex, to introduce others into prostitution, and to provide accommodation for the purposes of prostitution. Policing authorities could detain suspected offenders for investigation for a period of up to 15 days; then give them a warning and order them to make a statement of repentance; and fine them up to CNY 5,000. In more serious cases, policing authorities could detain offenders for rehabilitative education or reform through labour for periods of between six months and two years. This meant that the vast majority of prostitution-related offences — the processes of investigating, determining guilt, and ‘suitably’ penalising, the activities of sellers and buyers of sex — were dealt with by the Chinese police. Only serious cases relating to organised and forced prostitution were managed through the courts and criminal justice system.
While based in theory on a principle of leniency, the police handling of sex workers and their clients via the system of administrative punishments quickly became linked to policing abuses. In the 1990s, overseas human rights activists condemned China’s anti-crime campaigns in general as punitive and ‘extra-legal’, being based on the flexibility of the administrative system rather than the procedural rules governing the operation of the criminal justice system (Human Rights in China 1999). In the mid-1990s, Chinese policing scholars similarly expressed concern that campaigns against prostitution were harming the PRC’s international reputation, because regulations governing the types and periods of detention for apprehended offenders were imprecise and encouraged arbitrary sentencing (Wang 1995: 57).
By the mid-2000s, the media in China ran criticisms of anti-vice campaigns for encouraging police malfeasance and corruption, and hindering the efficacy of HIV/AIDS awareness programs by driving the sex industry underground. Numerous commentators complained that anti-vice campaigns were not only ineffective, but also motivated at the local level by income creation through extortion and the issuing of fines, rather than concerns about law-enforcement or abolition of the prostitution industry (Zhang 2006: 146; Pan 2002). Others noted that anti-vice campaigns hindered the work of HIV/AIDS prevention and encouraged violence against women in prostitution by reinforcing the illegality of the sex industry, thereby preventing sex workers from seeking legal and health protections (Zhang 2006: 159).
The 2005 Public Security Administrative Punishments Law on 1 March 2006, which replaced the 1986 Regulations, addresses some of these criticisms by reducing the penalties for first-party engagement in adult and consensual commercial sex (Quanguo renda changwu weiyuanhui 2005). The Act recommends that first-time offenders should not be detained (Article 21). It stipulates a maximum of 15 days’ administrative detention in serious cases and five days in less serious cases (Articles 66 and 67), and gives suspected offenders the right of appeal (Article 102). Moreover, it reduces the fines for those charged with prostitution offences to a maximum of CNY 500 (USD 78) (Articles 66 and 67), and on-the-spot fines, which must be issued with receipts, to CNY 200 (USD 31) (Article 100).
The problems associated with the policing of prostitution have also encouraged party members, academics and independent bloggers to argue that China’s sex industry should be legalised or decriminalised. Legalisation refers to the removal of criminal sanctions on the third-party organisation of the sex industry, and usually to a system of administrating the sex industry by licensing brothels, taxing sex workers and potentially subjecting sex workers to mandatory health checks for STIs-HIV/AIDS (Jeffreys 2004: 83—95). In contrast, decriminalisation refers to the repeal of laws against consensual adult sexual activity in commercial contexts, in order to protect sex workers from being exploited and harmed by clients, managers and police. Supporters of decriminalisation contend that sex workers should be free to determine the conditions of their work, rather than have their conditions dictated by a system of abolitionary laws, licensing regulations, or other controls (Jeffreys 2004: 83—95).
Zhou Ruijin (2006) — a Communist Party member and retired senior government official — published an article on the website of the Shanghai Municipal Government in January 2006 titled ‘Delegates at the National People’s Congress [NPC] and the Chinese People’s Political Consultative Congress Should Discuss [Legalising] the Underground Sex Industry’ (Zhou Jigang 2006). Zhou stated that China’s legislature should open the banned sex industry to a system of government management to prevent the spread of STIs-HIV/AIDS and protect the interests of sex workers. In March 2006, Chi Susheng, a lawyer and NPC representative, proposed legalising consensual adult prostitution, while continuing to criminalise forced prostitution and child prostitution (Li Yunhong 2009). Chi called on the NPC to remove criminal sanctions on the third-party organisation of voluntary prostitution and to permit licensed brothels, in order to provide women in prostitution with legal protections from violence, and to prevent the spread of STIs-HIV/AIDS by subjecting sex workers to mandatory health checks.
Li Yinhe (2008), a famous sociologist, responded to these proposals by explaining the feminist preference for decriminalising rather than legalising prostitution. Legalisation is viewed as problematic because it often results in expanded policing, bureaucratic controls and business controls over sex workers to ensure that they meet relevant health checks and licensing requirements. Legalised red-light districts often meet opposition from communities, leading to their being located in distant and potentially unsafe areas requiring constant police supervision and expanded business controls. Li (2008) therefore recommends removing legal restrictions on sexual activities between consenting adults, arguing that decriminalisation will reduce the cost of policing and allow interested parties to advertise and meet in discreet locations, such as massage parlours and sex shops.
A 2009 blog reprinted in the electronic newsletter ‘Xiaojie/Sex Workers’ reiterates and develops Zhou Ruijin’s call to legalise prostitution on libertarian grounds. Ji Ruijie (2009) argues that since the sex industry can be found throughout China, despite a thirty-year old policy of opposing it, its existence must benefit large sectors of society. Responding to Li Yinhe, Ji concludes that legalisation may not be a ‘cure-all’ for the problems associated with abolitionist policies but that legalisation has seven distinct advantages. These perceived benefits restate the standard arguments of civil libertarians regarding the sex industry, with some added Chinese inflections. According to Ji, legalisation will: promote human rights — that is, the right to work and sex; increase tax revenue; reduce the number of sexual offences, such as rape; help the work of STIs-HIV/AIDS prevention; promote the interests of sex workers, who are predominantly disadvantaged rural migrants; promote social equality by enabling ordinary men, not just wealthy entrepreneurs and government officials, to obtain easy access to sexual services; and promote the PRC’s policy goal of creating an harmonious society, because sex workers will be able to provide therapy and advice to couples with unhappy sex lives.
Although central government authorities remain committed to implementing anti-vice campaigns, they also advocate some changes. In late 2010, the Ministries of Public Security, Health, and Human Resources and Social Security, and the All-China Women’s Federation, issued a joint document proposing that the policing of prostitution should be transformed through the addition of a social welfare component (Zhou Bin 2010). The document suggests that police-led crackdowns should be run in conjunction with government-funded vocational skills training, rehabilitative programs and voluntary counselling, and testing and education programs for HIV/AIDS. It also urges the police to respect the rights to confidentiality and dignity of sex workers.
In response, Liu Shaowu, Director of the Security Administration Department of the Ministry of Public Security, said that anti-vice campaigns would henceforth demonstrate a new regard for women who sell sex. He described this approach as showing respect for female sex sellers (maiyin funu), who historically were denigrated as prostitutes (jinu), but are better described as ‘women who have taken a wrong step in life’ (shizunu). This new term stresses the need for care and social assistance, but has attracted controversy because it retains connotations of delinquency as in the term ‘fallen women’. Commentators variously suggest that it demonstrates the need for care and respect for a particular population, that it gives people who break the law voluntarily rather than because of socioeconomic hardship too much respect, and that it is moralistic and less respectful than the imported term, sex worker (xinggongzuozhe) (Sina. com 2010; Beijing Ribao 2010).
Conclusion
Questions regarding the most appropriate government response to the sex industry are now a prominent feature of public debate in the PRC, with implications for the formation of public policy. On the one hand, China’s governing authorities remain committed to a continued but potentially transformed policy of policing the sex industry. The punitive emphasis of police-led crack downs and clean-ups arguably will be directed in the future towards the sex industry, rather than towards the activities of sex workers and their clients.
On the other hand, there clearly is some support for the argument that the sex industry should be legalised or decriminalised in the PRC, in order to assist the task of controlling STIs and HIV/AIDS, prevent police malfeasance and government corruption, give sex workers legal and social protections, and allow the police to focus on child prostitution and forced prostitution. It is equally clear, however, that there is confusion regarding what the terms legalisation and decriminalisation mean. Insofar as the adoption of such policies will inevitably necessitate some form of governance of the sex industry, there is also no consensus as to what such policies would look like, and how they might be put in place and by whom.