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Notes on Trafficking interpretation.

[I am going to begin making my own notes on various laws and legal documents available on CLT more often. I regular make such notes as a way to remind myself of the context and major points in a new document, to refresh my memory later. I hope they are useful to you as well-- Jeremy Daum]

Last month, China’s Supreme People’s Court (SPC) issued a new judicial interpretation on the crime of abduction and sale of women and children, which was finally released today, and will take effect next month. The release of the new interpretation comes shortly after news of a high-profile, but far from unique, bust of a child sale ring, which rescued 36 infants and implicated over 100 suspects. While it is unclear how prevalent such offenses are in China , official reports from China’s Ministry of Public Security show that in 2015 there were 637 cases pursued involving women and 756 cases involving children ; and that 1,362 perpetrators were convicted.

Articles 240 and 241 of China’s Criminal Law prohibit the ‘trafficking’ and purchase of women and children. These crimes include trade in abducted women or children for any purpose, not solely for forced labor or sex work as is often required in other definitions of ‘trafficking’. The law specifies that it covers any “abducting, kidnapping, buying, selling, delivering, or transferring of women and children for the purpose of selling them.” (article 240), and the purchase of trafficked persons (article 241).

Criminal punishments for trafficking can range from 5 years to the death penalty for trafficking, depending on the specific facts of the case, including the methods used, the number of victims, and the treatment of the victims. For purchasing trafficked women and children, the punishments are only up to 3-years imprisonment absent other criminal conduct. More cases still may be handled as cases under China’s administrative punishments system, which are not considered criminal.

Recent amendments to the Criminal Law, modified a controversial provision that allowed for some purchases of women and children to avoid prosecution entirely. The law had allowed that those who bought abducted children, but did not abuse them or block their rescue, might not be prosecuted. Following the revision, buyers can no longer avoid prosecution, but may still be given a lighter sentence. Similarly, under the old version of the law, those who purchased abducted women could avoid prosecution where the woman was willing and was not impeded from returning to her prior residence”, but may now be given a lighter or even commuted sentence.

The new SPC interpretation holds that where the woman has formed a stable family and marital relationship after being abducted and sold, and voluntarily remains when there is an attempt to rescue her, it can be considered that there was not obstruction to her return. Determining true voluntariness to remain will be quite difficult, especially where there may be factors such as a desire to remain with children or hidden coercion at work. It also seems to suggest that despite the reforms to the Criminal Law requiring that a prosecution is still pursued where the victim willing to remain, the desire to keep the family unit intact, even where that family may have been established by force, will remain a priority and possible barrier to vigorous enforcement. This sentiment echoes one of the interpretations stated purposes, preserving family harmony.

Another area where the law has apparently had trouble with voluntariness is in delineating legitimate matchmakers fees from the crime of selling women for marriage. In both situations, payment might be requested upon introducing a bride, either for matchmaking services or for the illegal sale of a human being. The distinction, of course, should be the voluntariness of the woman in question, but this has not always been as easy to determine as one might expect.

The interpretation provides that where the woman’s identity documents are taken from her, she is isolated geographically in an unfamiliar area or by a language barrier, and this allows her to be sold against her will, this can be prosecuted as trafficking. As involuntariness was long a part of the crime, it is best to see this as elaborating on some of the ways in which a person’s will might be overcome other than physical force.

The marriage introductions scenario has also led to another often discussed issue: distinguishing fraud from the trafficking in women. These offenses are so distinct that the connection might not even be obvious, but in practice there are said to have been women who conspire with others to have themselves sold, or introduced for marriage to a third party, who they then extort or rob before leaving, sometimes after several years. The interpretation holds that this should be considered fraud if the amount in question meets the relevant standards.

Another important note in the interpretation is the clear delineation of ‘infant’, ‘young child’ and ‘child’ as used in these offenses. Children is defined as all those under the age of 14, with ‘infants’ meaning under 1 year old, and young child meaning under 6 years old.

These age distinctions are critical to the application of some of the law’s provisions. For example, the law does not apply at all to non-child male victims, although their abduction can be prosecuted under other offenses such as for kidnapping and forced labor. Aggravating factors involving prostitution and sexual activity in conjunction with this offense apply only to women (14 and over), although again, other criminal law would apply with younger victims. Infants and young children (0-6) are also the only group covered by the aggravating factor of ‘child snatching’.

Some of the new interpretation’s provisions seem aimed at clarifying what level of force is necessary in the abduction before a sale for the charge to apply. For example, it clarifies that tricking or luring infants or young children away from their guardians is ‘child snatching’, an aggravated form of abduction that can raise the minimum penalty to 10 years. Where employees at medical facilities or social welfare organizations sell children that they are caring for, this can also be abduction and sale, if done for the purpose of unlawful benefit. This final caveat is likely intended to leave room for those trying to house a child with no identifiable guardians, but recognizing the potential risk.

The interpretation also clarifies a few technical issues, such as that where aggravating factors for the trafficking offense, such as forcing prostitution, forcing begging, or resisting officials coming to the victims’ rescue, these are to punished as separate offenses.

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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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