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.

Solitary Confinement with Chinese Characteristics

Solitary confinement was the theme of a side event held during the 19th session of the Human Rights Council on March 6, 2012. It is a widespread and global practice, but the event focused most extensively on abuses in the United States. China was given no verbal mention but was referenced once in a report that served as a catalyst for the event. In his August 2011 report to the United Nations General Assembly (hereafter, the interim report), Special Rapporteur on Torture Juan E. Méndez mentioned China as an example of a country where solitary confinement is used against people considered risks to national security—in this case a woman was allegedly held under solitary confinement for two years.

Her case was previously written up by the special rapporteur’s predecessor, Manfred Nowak, who was invited by the Chinese government to conduct a mission to China in late 2005. During the mission, Nowak noted several records and claims of solitary confinement in prisons, detention centers, and reeducation through labor (RTL) facilities that spanned from three weeks to two years—all exceeding domestic and international limits. His report also includes notes from a November 2005 interview with rights activist and petitioner Mao Hengfeng (毛恒凤) detailing allegations of torture by police. Eight months after the interview, Mao claimed to have been held in solitary confinement in Shanghai Women’s Prison for 70 days.

The United Nations Office at Geneva, Switzerland

Defining Solitary Confinement

The interim report defines solitary confinement as “the physical and social isolation of individuals who are confined to their cells for 22 to 24 hours a day.” It is called a “harsh measure” that is “contrary” to rehabilitation and reintegration and “may cause serious psychological and physiological adverse effects.” Research suggests that 15 days is the point at which some harmful psychological effects can become “irreversible.” Méndez, Nowak, and the two dozen international experts who authored the Istanbul Statement, a 2007 statement on the increasing global use and documented harm of solitary confinement, all conclude that solitary confinement can amount to torture in violation of several UN treaties and rules.

Solitary Confinement in China

China officially sanctions solitary confinement (禁闭) as a disciplinary measure that may be carried out for seven to fifteen days against prisoners and for no more than ten days against RTL detainees. RTL regulations, but not the Prison Law, call for “civilized management” of those in solitary confinement, including provisions requiring food and water, sanitation and medical care, and handling complaints in a timely manner. In line with international standards, they also stipulate that those in solitary confinement be given no less than one hour of daily activity outside their cell.

Residential Surveillance as Solitary Confinement

But before coercive measures like detention and imprisonment, for some, there is residential surveillance (监视居住). Despite its name, it is not always carried out in one’s home and is not often premised on the remote monitoring “surveillance” implies. It is an ill-defined, ostensibly investigative measure that is bound by few witnesses and few procedural protections.

Ching Cheong spent 105 days under residential surveillance
in 2005. He is pictured here with his wife Mary Lau.

The measure garnered international attention last August when China’s National People’s Congress proposed the addition of what would be called “disappearance clauses” to the Criminal Procedure Law (CPL). The provisions would have allowed police to hold suspects under residential surveillance for up to six months in a “designated residence” without notifying suspects’ families. A revised version of the amendments was passed into law in March 2012, requiring family notification but removing requirements that notices to families specify the grounds and whereabouts of the detention

Under residential surveillance, a person is kept in his domicile or a designated residence and prohibited from leaving or meeting with others without the permission of public security for up to six months. The revised CPL, effective in 2013, singles out suspects in cases of endangering state security, terrorism, and serious bribery as prime candidates for being held in designated residences. Such places are chosen by public security and exclude detention facilities and places where cases are handled (专门的办案场所).

Below are two accounts providing evidence that the conditions of residential surveillance in China often constitute not only solitary confinement, but the type of prolonged solitary confinement that amounts to torture under international law.

Ching Cheong: 105 Days

Veteran Hong Kong journalist Ching Cheong (程翔) was held under residential surveillance for 105 days in 2005. He was taken into custody on state secrets charges and eventually sentenced for espionage. In a recently released book chronicling the time he spent in custody (千日無悔：我的心路歷程 or My 1000-Day Ordeal—A Spiritual Journey), Ching writes that residential surveillance is tantamount to solitary confinement and psychological torture. He has committed himself to advocating for the abolition of solitary confinement in China.

Blinded by dark glasses and not questioned or “checked in,” Ching was taken to a guest house (招待所) in Beijing. He was put in a room that measured about 80 square feet, or 7 square meters, including a toilet. The room was typical of a low-grade guesthouse, only without TV, radio, reading or writing materials, and natural light. The room was perpetually lit by two light bulbs clustered on the ceiling and guarded by pairs of plainclothes guards who watched him “reflect on what he had done,” use the toilet, and shower. The guards were not allowed to talk to Ching or tell him their names.

(Paragraph 53 of the interim report states that access to “meaningful human contact” is essential to the psychological health of detainees in solitary confinement—meaningful human contact may involve being able to chat with guards; contact the outside world; and have access to reading material, TV, or radio.)

Ching was not let out for exercise or fresh air. He left the room only for interrogation, which happened at most once every three days and at one point, once in three weeks. Interrogation was virtually the only time Ching was allowed near the door or outside his room, the only time he saw sunlight—the windows of the interrogation room were covered by thin curtains, while heavy blankets shrouded the windows of his room—and the only time he had conversations with anyone but himself.

(Paragraph 52 of the interim report states that prisoners “shall have at least one hour of suitable exercise in the open air daily.” Paragraph 50 states that windows and light are of “critical importance to the adequate treatment of detainees in solitary confinement.”)

Ching believes that the stress induced by residential surveillance is often used to extort confessions in contravention of Article 43 of the CPL. He thus argues that the practice of residential surveillance itself should be outlawed in China. Under the stress of residential surveillance, Ching was plagued by insomnia, constipation, arrhythmia, and suicidal thoughts. He eventually made a statement, with several caveats, that investigators took along with his willingness to cooperate as a full confession.

(Paragraph 73 of the interim report states that “When solitary confinement is used intentionally during pretrial detention as a technique for the purpose of obtaining information or a confession, it amounts to torture.”)

As a reward for his “confession,” Ching’s wife was notified of his whereabouts, one month after he had disappeared.

(The amended CPL, effective January 1, 2013, states that when suspects are put under residential surveillance in a designated residence, their family shall be notified within 24 hours.)

Ching would stay under residential surveillance with no visitors for two and a half months more; none of which was credited to his prison sentence.

(While the Supreme People’s Court has interpreted the CPL to exclude residential surveillance as a means to reduce time served on the controversial grounds that it is not a complete deprivation of liberty, the amended CPL will require that it is credited towards completion of a fixed-term prison sentence. Time served for sentences of fixed-term imprisonment should be reduced by one day for every two days of residential surveillance, compared with a one-to-one deduction for time spent in criminal detention.)

He Depu: 85 Days

He Depu spent 85 days in residential
surveillance in 2002.
Photo credit: China Human Rights Defenders

Taken into custody on suspicion of inciting subversion, veteran democracy activist He Depu (何德普) was held under residential surveillance for 85 days starting in November 2002. In an open letter responding to the “disappearance clauses” proposed last year, He recounts the psychological torture of isolation, monotony, and indoor confinement, as well as the physical torture of beatings and the denial of food, hygiene, and medical attention. He described residential surveillance as “inhumane” and compared to prison and detention, “much more brutal.”

Blindfolded, He was taken to a designated residence, stripped of his clothes, and forced to stay in a fixed position on a wooden bed every day for 85 days. He needed approval to get up and was beaten and verbally abused for moving his wrists and ankles, leaving him frequently spread-eagled in a room with no heater or windows. His guards stood at his bed posts for two-hour shifts, and as his bed sores multiplied, denied him medical attention. He was not permitted to shower and ate daily fare of two small steamed buns (馒头) and either three slices of onion or five slices of turnip.

He never “confessed,” but like Ching Cheong, found interrogation to be the most welcome part of residential surveillance.

He’s wife was not notified that he was in custody until 11 months after he disappeared.

Ending Solitary Confinement

In 2008, then UN Special Rapporteur on Torture Manfred Nowak said that solitary confinement should be used “only as a last resort.” In 2011, current Special Rapporteur Juan E. Méndez recommended that countries “put an end to” solitary confinement used during pretrial detention, “abolish” solitary confinement as an extortion technique, and “abolish” indefinite solitary confinement. Speaking of his personal experience as a prisoner of war in Vietnam, US Senator John McCain had this to say of the practice:

It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment. Having no one else to rely on, to share confidences with, to seek counsel from, you begin to doubt your judgment and your courage.

China’s New Criminal Procedure Law: Death Penalty Procedures

The “disappearance clauses” headlined much of the commentary on recently passed amendments to China’s Criminal Procedure Law (CPL), but a number of provisions for death penalty cases also introduced notable protections while raising new questions. In this post, we take a detailed look at the most consequential of these changes: expanded access to legal aid, recorded interrogations, longer trials, mandatory appellate hearings, and more rigorous death penalty review.

Notes: The term “current law” refers to the 1996 CPL, while “amended law” refers to the amended CPL passed in March 2012 and effective January 1, 2013. In tables featuring specific CPL provisions, bold text denotes additions, while strikethrough text denotes deletions.

Expanded Access to Legal Aid

Under the current law, Article 34(3) requires only the court to ensure that defendants are represented by a defense lawyer in capital cases. Under the amended law, public security and procuratorate investigators will also be required to provide this guarantee if suspects do not retain attorneys on their own.

This change reflects one of the most lauded aspects of the amended law: to give lawyers a more significant role in defending suspects during the investigative stage. In Article 34(3), greater access to defense lawyers is also expanded to those facing life in prison.

Article 34(3)
Current Law	Amended Law
If a defendant may be sentenced to death, and such person has not appointed a defender, the people’s court shall appoint an attorney who provides legal aid to serve as his defender.	If a criminal suspect or defendant may be sentenced to life imprisonment or death, and such person has not appointed a defender, the people’s court, people’s procuratorate, or public security authority shall appoint an attorney who provides legal aid to serve as his defender notify the legal aid agency to assign an attorney as his defender.

Recorded Interrogations

Article 121 is one of several provisions in the amended law aimed at preventing the coercion of confessions through torture. It makes complete, unedited audio or video recording mandatory for the interrogations of suspects who face serious penalties like death or life imprisonment. Given that it is a stronger obligation than previously put forth—interrogations “may be recorded according to necessity,” says paragraph 11 of a 2007 opinion from the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice—this new provision should deter interrogators from committing abuses and assist courts in excluding illegal evidence.

Article 121 (Amended Law)

When a criminal suspect is being interrogated, the investigator may record the interrogation process in audio or video forms; for crimes punishable by life imprisonment or death and other serious crimes, audio or video recording of the interrogation process shall be recorded in audio or video format. The audio or video recording shall cover the entire interrogation process and shall be preserved intact.

Longer Trials

Courts have been given more time to decide death penalty cases under changes to provisions covering trials of first and second instance. Article 202(1) generally lengthens the applicable deadlines for courts of first instance to issue verdicts in all cases, doubling both the standard deadline, from one month to two, and the maximum deadline, from one and a half months to three. Death penalty cases are one of several types of potentially more complex cases for which an additional extension can be approved. The length of additional extensions has been increased from one to three months.

The provision, Article 232(1), covering deadlines for trials of second instance (or “appellate trials”) contains similar language. Deadlines for appellate trials have been doubled, with the option of an extension for complex cases, including those involving the death penalty. The length of the extension is slightly shorter for appellate trials than for trials of first instance.

These amended articles introduce some ambiguities in approving extensions and limiting the length of trials. Article 232(1) calls for the approval of trial extensions by a provincial-level high people’s court. Since all death penalty trials of second instance are heard by provincial-level courts, however, this appears to mean that in these circumstances, courts can approve their own extensions.

Moreover, both articles have a new provision allowing the Supreme People’s Court to approve additional extensions in “exceptional circumstances.” This creates the possibility for defendants to be stuck in trial indefinitely since no criteria are provided to limit the length or scope of such extensions.

Current Law	Amended Law
Article 168(1)	Article 202(1)
When a people’s court hears a public prosecution case, it shall announce a verdict within one month, and no later than one and a half months, after receiving the case. In cases falling under one of the circumstances provided in Article 126 of this law, subject to approval by the high people’s court of the province, autonomous region, or municipality, the trial period may be extended by one month.	When a people’s court hears a public prosecution case, it shall announce a verdict within one two months, and no later than one and a half three months, after receiving the case. In cases punishable by death and cases with adjoining civil action, as well as in cases falling under one of the circumstances provided in Article 126 156 of this law, subject to approval by the high people’s court of the province, autonomous region, or municipality people’s court of the next higher level, the trial period may be extended by one three months. Where the trial period needs to be extended further due to exceptional circumstances, application shall be made to the Supreme People’s Court for approval.
Article 196	Article 232(1)
Where a people’s court of second instance admits an appeal by the defendant or prosecutor, it shall conclude the case within one month, and no later than one and a half months. In cases falling under one of the circumstances provided in Article 126 of this law, subject to approval or decision by the high people’s court of a province, autonomous region, or municipality, the period may be extended by one month. However, for an appeal or protest by a defendant or prosecutor that is admitted by the Supreme People’s Court, such a decision shall be made by the Supreme People’s Court.	Where a people’s court of second instance admits an appeal by the defendant or prosecutor, it shall conclude the case within one two months, and no later than one and a half months. In cases punishable by death and cases with adjoining civil action, as well as in cases falling under one of the circumstances provided in Article 126 156 of this law, subject to approval or decision by the high people’s court of a province, autonomous region, or municipality, the period may be extended by one two months. However, for an appeal or protest by a defendant or prosecutor that is admitted by the Supreme People’s Court, such a decision shall be made by the Supreme People’s Court. Where the trial period needs to be extended further due to exceptional circumstances, application shall be made to the Supreme People’s Court for approval.

Mandatory Appellate Hearings

Article 223(1) of the amended law requires courts of second instance to hold trial hearings for all appeals involving the death penalty. In contrast to the corresponding provision in the current law, it enumerates the specific circumstances in which appellate hearings are mandatory.

Although the language of the current law implies that court hearings should be the general rule for trials of second instance, courts have routinely chosen not to hold hearings on the grounds that the “criminal facts are clear.” The amended law limits some of that discretion, especially when it comes to death penalty cases.

This amendment is one of many that are based on existing regulations or policies that have been in effect for many years. Requiring hearings for death penalty appeals was one of several important capital punishment reforms instituted under the leadership of former Supreme People’s Court president Xiao Yang (肖揚). Elevating this policy, which has been in force since the second half of 2006, to a provision of a basic law like the CPL strengthens its legal standing and solidifies its position.

Current Law	Amended Law
Article 187(1)	Article 223(1)
The people’s court of second instance shall form a collegial panel to hold a court hearing to hear an appellate case. However if, after consulting the case file, interrogating the defendant, and listening to the opinions of the other parties, defenders, and counsels ad litem, the collegial panel thinks the criminal facts are clear, it may open no court session. A people’s court of second instance shall hold a court hearing to hear a case appealed by a people’s procuratorate.	The people’s court of second instance shall form a collegial panel to hold a court hearing to hear an appellate case. However if, after consulting the case file, interrogating the defendant, and listening to the opinions of the other parties, defenders, and counsels ad litem, the collegial panel thinks the criminal facts are clear, it may open no court session. A people’s court of second instance shall hold a court hearing to hear a case appealed by a people’s procuratorate. for any of the following cases:      (1) Appeal cases where the defendant or private prosecutor and his legal counsel object to the facts found or evidence admitted in the first instance and where the conviction or sentence might be changed by such facts and evidence;      (2) Appeal cases where the defendant has been sentenced to death;      (3) Cases appealed by a people’s procuratorate; and      (4) Other cases for which a court hearing shall be held.

More Rigorous Death Penalty Review

Xiao Yang also oversaw reform of the death penalty’s final review process, which since January 2007 has been the sole prerogative of the Supreme People’s Court. The amended law includes two important changes with respect to this process. First, a new provision, Article 239, sets out the options available to the court in its review: to approve the sentence, remand the case for new trial, or change the sentence.

A crucial question about this provision is whether it provides the court with a generally applicable option to “change the sentence” directly when it rejects the lower court’s decision. Court regulations in force since February 2007 place strict limits on the circumstances under which the Supreme People’s Court may directly rule to change the sentence, and in most instances, the Supreme People’s Court is required to remand rejected cases for reconsideration by a lower court. The amended law seems to leave more room for the court to impose its own sentence. It is also possible, however, that current regulations limiting this function will remain in force or be adapted into new implementation regulations or interpretations that should be promulgated before the amended law takes effect.

Article 239 (Amended Law)

When the Supreme People’s Court reviews a death penalty case, it shall decide whether or not it approves the death sentence. Where it disapproves, it may remand the case for a new trial or change the sentence.

One of the most dramatic changes to the CPL occurred in Article 240. In the first draft of CPL amendments published in August 2011, the text of this provision required that defendants be questioned and defense attorneys be heard during the death penalty review process.

By December 2011, the text of the provision had been changed so that the court’s requirement to interview defendants went from mandatory (应当, meaning “shall”) to discretionary (可以, meaning “may”) and that the requirement to hear defense lawyers was contingent upon their request. Legal scholar Chen Guangzhong called the rewording a “rather serious setback” and urged legislators to restore the original language or adopt wording that would give defendants and their counsel the right to demand a hearing.

When the draft amended CPL was distributed to delegates on March 7, 2012, however, the loose language remained intact. Many delegates reportedly expressed concerns about the wording—so much so that it was one of a handful of provisions changed in the days before the amendment was passed on March 14. Ultimately, “shall” was restored, but the requirement to give defense lawyers a hearing remains contingent upon request.

While the new provisions add some clarity to the process, questions remain: Will SPC judges be required to meet defendants in person, or will interviews be set up remotely or with provincial-court officials acting as proxies? Similarly, will defense lawyers be limited to written submissions or will they be guaranteed a face-to-face meeting, and if so, will there be a more formal process than the “petitioner” channel that many lawyers have been forced to endure?

As with many other details of the amended CPL, answers to these questions and clues to their application are forthcoming in implementation measures expected out later this year.

Article 240
Draft (August 2011)	Draft (December 2011)	Amended Law
When the Supreme People’s Court reviews a death penalty case, it shall question the defendant and listen to the opinion of the defense attorney. During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion.	When the Supreme People’s Court reviews a death penalty case, it shall may question the defendant and; if the defense attorney requests, it shall listen to the opinion of the defense attorney. During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion. The Supreme People’s Court shall report the result of the review to the Supreme People’s Procuratorate.	When the Supreme People’s Court reviews a death penalty case, it may shall question the defendant; if the defense attorney requests, it shall listen to the opinion of the defense attorney. During the review of death penalty cases, the Supreme People’s Procuratorate may advise the Supreme People’s Court of its opinion. The Supreme People’s Court shall report the result of the review to the Supreme People’s Procuratorate.