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China’s landmark 2015 Law on Domestic Violence created a mandatory reporting obligation for domestic violence against children [article 14]. In the nearly 5 years that have passed since then, however, outside of local pilot projects experimenting with implementation, there has been almost no further guidance from central authorities. Last month’s release of new “Opinions on Establishing a Mandatory Reporting System for Violations Against Minors” indicates that we can expect reporting mechanisms to take shape in the near future.
While mandatory reporting may sound like a straightforward concept, it is both legally and logistically complex:
- Who is a mandatory reporter?
- What situations merit a report.
- Who do is reported to? (should reports be internal to superiors, or external to police or a specialized authority)
- How are reports addressed? (what are the procedures and timelines for reviewing a report of suspected abuse?)
- What are the consequences of a confirmed report?
- What are the consequences of a failure to report, or for making a false report?
The new multi-departmental “Opinions” are intended more as an initial framework, and focus on the general division of labor between the authoring agencies rather than specific mechanisms. Still, they do provide some insight into how the questions above will be answered, and unexpectedly provide some insight into the function of China’s new Supervision Commissions as well.
The Opinions are promulgated by a wide range of relevant agencies:
- Supreme People’s Procuratorate
- State Supervision Commission
- Ministry of Education
- Ministry of Justice
- National Health Commission
- Chinese Communist Youth League Commission
- All-China Womens Federation
While the reasons for including most of these groups are intuitive, the inclusion of the ‘Supervision Commission’ is particularly interesting. This is a new branch of the Chinese government, created by the Supervision Law in 2018. The supervision commissions reflect the integration of formerly distinct Party discipline structures into the state government and have the authority to investigate misconduct of officials and others wielding state power at all levels.
In the Opinions, the supervision commissions are given authority over public employees who fail to zealously implement mandatory reporting systems. While this is within their jurisdiction it shows a broader role in day-to-day governance for the supervision commissions which are often described as focusing on corruption.
Who is a mandatory reporter? [Article 3]
Public employees, those exercising state authority, and those in industries closely tied to children are all mandatory reporters.
This last category includes those with special duties towards children, such as educators, care takers, medical professionals, aid workers, and guardians, but also others who regularly interact with children.
The listed examples include people in the following groups:
Education and Childcare: Primary and secondary schools, kindergartens, daycare centers, extra-curricular training institutions, off-campus activity centers for minors and school transportation services;
Medical: Hospitals, maternal and child health-care institutions, emergency rooms, clinics, and other medical treatment establishments;
Child Welfare: child welfare establishments, care and management institutions, institutions for the aid and protection of minors, and social work service institutions;
Lodging/Accommodations: hotels, inns, etc.
This list is broader than that in the Domestic Violence Law, which included a similar group of professionals in child-related fields, but did not so broadly include all public employees and others authorized to exercise public authority. The newly added groups, again, seem included to cover the supervision commission’s jurisdiction.
Who Receives Reports
As in the Domestic Violence Law, reporting is made to the police. This is intuitive as police are already ubiquitous and prepared to receive reports of suspected illegal conduct.
It does mean, however, that the complaints will be limited to conduct suspected of being punishable under criminal or public security administration laws. The Opinions and the Domestic Violence Law do create mechanisms for addressing situations that are not yet punishable offenses, and call for police to coordinate with agencies that have more focused expertise such as social workers, but the initial screening by police is likely to focus more on illegality than on holistic risk to the child. They are however, required to record the report with other departments.
Reportable Conduct [Article 4]
The rules are most specific in identifying what signs of abuse that must be reported, likely because they track existing criminal and public security law provisions:
- Abnormal injuries to minors’ private parts or genitals.
- Signs of sexual violation, pregnancy, abortion or miscarriage in someone under 14, or pregnancy or abortion/miscarriage caused 由 a sexual violation in someone 14 or older. [The age of consent in China is 14]
- Multiple injuries, malnutrition, unconsciousness,
- Domestic violence, bullying, abuse, beatings, drugging.
- Injury or death from: Suicide, self-harm, workplace injury, poisoning, drugging
- Abandonment or prolonged period of being left unattended
- Children that are lost, unidentified, trafficked, or sold
- Organized child begging
The rules are more vague on the procedures involved, and it is likely that each of the issuing departments will soon put forward their own detailed implementation measures.
The Opinions do allow that the reporting organ can conduct an internal preliminary investigation before making a report. [Article 6]. No time limit is given for when a report is to be made, so it will be important to set time limits on these internal investigations to ensure that they do not become a way of avoiding reporting.
While police will only open a case where there is illegal conduct, a record of reports will seemingly be kept in all situations [article 5]. This is good for child protection, but also raises questions for civil liberties, such as how long the records will be kept, who will see them, and how they can be corrected if resulting from false or unjustified reporting.
The only specific timeline in the procedure framework is that police will give feedback on reports within 3 days of receiving the report. They are also required to notify the reporter when the investigation is complete if it is being passed to the procuratorate.
While most of the potential consequences are through the criminal justice and public security administration systems, the law also mentions what I would call “provision of services” for any children that police or prosecutors find are in danger. This includes financial assistance, psychological intervention, medical care, and so forth; to be provided by the departments for civil affairs or government-organized ‘mass organizations’ like the womens federation or communist youth league. [article 12]
Also in addition to punitive measures, parent or others found to be failing in their guardianship duties may be given parenting classes and guidance, with formal penalties for continues violations. [Article 12]
Failure to Report
Not much is said, but article 16 allows that where a failure to report causes serious consequences, not only the immediate reporter, but the managers of the unit may face consequences. This type of management in liability is typical in Chinese law and is meant to spur proper training and supervision by the managers. It is worth asking whether it is appropriate in a situation that requires subjective professional judgement of potential abuse, and calls for confidentiality.
Where management actively obstructs reporting, higher penalties are appropriately called for.
Rundown of oversight and protections
Oversight: The procuratorate is to review police efforts in accordance with its duty to oversee the implementation of laws [article 18], and the supervision commission has broader authority over the appropriateness of all public employees enforcement [article 17].
Protections: Article 15 Provides for protection of those making reports, and for pursuing accountability of those who interfere.
Confidentiality: Information on both the potential victim [article 14] and those making reports [article 13] is to be kept confidential, with punishments for those who leak information.
As mentioned at the start of this overview, mandatory reporting and child protection systems are deceptively complicated and touch on sensitive and private subject matter. It is wonderful news that China is working to improve these systems, although there is a long road ahead.
It is also wonderful that this remains an area in which Chinese professionals eagerly consider foreign models as they build their own. Child protection is of course an area of global concern, and an area for which no perfect system exists.
As political rhetoric grows increasingly inflammatory, it is important to remember that experts continue to collaborate on issues such as these, for the betterment of us all.