Legal Obstacles to #MeToo Cases in China’s Courts

Publication: China Brief Volume: 21 Issue: 9

Image: A scene from a sexual harassment trial in the People’s Court of Yangpu District, Shanghai, which concluded with a rare win for the plaintiff on March 8, 2021 (Source: The Paper).

Introduction

On March 8, a Shanghai court awarded $15,000 to a plaintiff in a sexual harassment lawsuit against her colleague in a rare legal win for the #MeToo movement in China (Sixth Tone, March 10; Washington Post, March 20). Although China has enacted a string of legal provisions targeting sexual harassment over the past sixteen years, with the new Civil Code’s Article 1010 being the most recent example, survivor suits against harassers are rare.[1] Meanwhile, successful labor contract suits against companies who fire employees for sexual harassment are numerous, as are defamation cases against survivors who make public allegations.[2]

Why the imbalance? Besides the social stigma and political sensitivity surrounding sexual harassment in China, legal rules play a significant role in hindering #MeToo (as they do elsewhere) (SupChina, January 28). To be sure, some reforms have improved access to courts. Since 2015, the case registration system has made it more difficult for courts to arbitrarily reject case filings.[3] And in 2019, the Supreme People’s Court rolled out a new cause of action specifically for sexual harassment.[4] But once survivors get to court, the rules of evidence still work against them. When alleged harassers bring litigation for defamation or illegal termination, the rules give them an advantage.

The Burden of Proof Is Heavy for Plaintiff Survivors

Generally, a plaintiff in civil litigation in China must prove the facts of the case to a “high degree of likelihood” to win.[5] “High degree of likelihood” does not have a universally agreed-upon definition, but some Chinese legal scholars have described it as the court having a certainty of “85 percent” or more.[6] Last year in the Procuratorate Daily, a local legal official described it as when “the probative force of one party’s evidence far exceeds that of the other party.”[7] China’s standard of proof is arguably similar to that of some other civil law countries, like Germany, whose Federal Supreme Court stated that judges should reach a certainty “that silences doubt without completely excluding it.”[8] In contrast, Anglo-American common law uses the “preponderance of the evidence” or “balance of probabilities” standard. The plaintiff just needs to prove the facts claimed are more likely than not to have occurred—even if more likely just by a hair.

Structural differences help explain the two systems’ respective standards. In the common law system, judges do not conduct investigations. Litigants are solely responsible for gathering evidence and constructing arguments to convince the jury or judge of their case. By contrast, civil law judges, including Chinese judges, have the power to gather evidence, call and question witnesses and then make determinations of fact. Since it is often easier to convince oneself of something than to convince someone else, it makes sense that judges in this dual role should be required to attain a high degree of certainty.

Although Chinese judges can conduct investigations, they infrequently do so. Chinese judges have crushing caseloads and neither the time nor resources for evidence collection. Since the 1990s, trials in China have also been moving toward an adversarial model where the litigants take a more proactive role. Although the work now falls on the litigants, they do not have the same evidence collection tools as the courts, and plaintiffs still need to meet the “high degree of likelihood” standard.

Collecting Evidence Favored by Courts Is Difficult

Sexual harassment often occurs in private, leaving little evidence. In cases that boil down to the litigants’ two conflicting accounts, the party who carries the burden of proof will almost certainly fail.[9] The Supreme People’s Court’s rules on evidence in civil litigation provide that the testimony of a litigant cannot be the sole basis for establishing a fact in a case.[10] Chinese courts also strongly disfavor witnesses related to a litigant, including friends, family, or employees.[11] China does not have restrictions on the use of so-called “character evidence.”[12] Lawyers can ask plaintiffs probing questions about their personal life and sexual history to insinuate that they had “invited” the sexual advance or to generally undermine their credibility before the judge. In a 2018–2020 case against Liu Meng (刘猛), a prominent NGO figure, Liu’s lawyer brought up the plaintiff’s social media posts, including an article about The Vagina Monologues. The plaintiff later told a journalist that the lawyer’s goal was “to demonstrate that I am a [sexually] open woman, therefore establishing that [the defendant’s] behavior did not constitute sexual harassment” (Sohu, July 15, 2019).

Survivors have a much higher chance of success if they have recorded evidence, as in last month’s Shanghai case where the defendant sent disturbing text messages to the plaintiff almost daily for six months (Workers’ Daily, March 18). In the case against Liu Meng, the plaintiff texted him after he had touched her inappropriately: “Just now, your behavior made me very uncomfortable. If you do something like that again, I will call the police.” Liu immediately responded, “I’m sorry,” which buttressed the plaintiff’s account (Beijing News, July 10, 2020). The court ruled in favor of the plaintiff, and ordered Liu Meng to apologize to her (he never did) (The Paper, February 2).

Image: People gather outside the Haidian People’s Court on December 2, 2020, holding signs that say “#MeToo” and “Together, we demand an answer for history” to support the pseudonymous Xianzi (弦子), whose sexual harassment case against the prominent media personality Zhu Jun (朱军) became a rallying point for the #MeToo movement in China. Zhu has counter-sued Xianzi for damages to his reputation and mental harm. After more than ten hours of testimony in a closed trial, the court adjourned without a verdict, and the case is still ongoing (Source: China Digital Times).

Employers Who Fire Alleged Harassers Are Often Sued for Illegal Termination, and Bear the Burden of Proof

Employees who have been fired for sexual harassment have regularly brought cases against their employers for illegal termination, contending that the allegations against them are baseless. China does not have an “employment-at-will” system. Instead, the Labor Contract Law (中华人民共和国劳动合同法, zhonghua renming gongheguo laodong hetong fa) allows an employer to fire an employee only for certain reasons, such as a serious violation of company policy (Pkulaw, December 28, 2012). And it is the employer—not the claimant employee, as would be the case under the general rule of civil litigation—who bears the burden of proof in an illegal termination suit. If the employer cannot meet its burden, the employee can demand reinstatement and lost wages or double severance pay.

Just like individuals who sue their harassers, employers in these cases have a hard time meeting the burden of proof. One person’s account—no matter how credible the company considered it as a basis for its termination decision—is not strong enough to win in court.[13] Even if there are other employees who witnessed the incident, courts often consider their accounts insufficiently credible because of their employment relationship with the company. Having several witnesses whose accounts corroborate each other can overcome this disadvantage.[14] Still, a company that fires an alleged harasser needs to be prepared to incur the costs of litigation. On the other hand, no employers to date have been sued, let alone successfully sued, for failing to adopt anti-sexual harassment policies or for failing to respond to a sexual harassment incident (The Diplomat: March 9; December 4, 2020).

On multiple occasions, people who have made public allegations of sexual harassment against named individuals have been sued for defamation.[15] Under the general rule for civil litigation, the plaintiff should bear the burden of proof and no law or judicial interpretation expressly says the rule should be different for defamation suits. Courts nonetheless often reverse the burden of proof in these cases.[16] The reasoning is that it is much harder to prove that something did not happen than to prove that something did happen.

For example, in 2018, Zhou Fei (周非), former Chief Program Officer at the World Wildlife Fund, sued a former colleague, Wang Qi (王琪), for defamation because she posted an account of how Zhou accosted her on a business trip in 2016 to the microblogging platform Weibo. An internal investigation by an outside law firm concluded that it was impossible to determine definitively whether or not the incident had occurred, since no evidence besides the parties’ accounts existed. Yet the court put the burden of proof on Wang, ruling that since she failed to provide sufficient evidence to prove her allegations, she had spread “false information.” The court ordered Wang to delete her post and give Zhou a written apology.[17]

In a similar 2018–2020 case, He Qian (何谦) had published an account online, with help from a friend, Zou Sicong (邹思聪), of an incident that occurred a decade earlier. He Qian recounted how Deng Fei (邓飞), her former supervisor and a well-known journalist, asked her to enter his hotel room to discuss work but then began to forcibly kiss, grope and undress her. Deng brought a defamation suit in response. The court ruled against He:

“He Qian has to the best of her ability recalled for the court from her “first-hand” perspective the incident in that closed room that is described in the article, but except for He Qian’s own description of an incident that happened almost ten years ago, the two defendants have not provided any other direct evidence . . . the indirect evidence provided by [He and Zou] is also insufficient to allow someone to firmly believe without any hesitation that what was described truly happened” (Sohu, January 6).

The court ordered He Qian to delete her account of the incident, apologize to Deng, and pay damages in the amount of RMB 11,712 (roughly $1,800) for Deng’s hurt feelings and litigation costs. He Qian’s lawyer bluntly assessed the judgement: “This is equal to telling someone who was humiliated, who was hurt, that if you don’t have audio recordings or videos of the event, then you better hurry up and shut your mouth” (AP, January 7).

Conclusion

Growing awareness about sexual harassment is likely to lead to more #MeToo cases landing in China’s courts, but the above mentioned rules will continue to thwart survivors who do not have smoking gun evidence. These rules are also likely to discourage employers and survivors from disciplining alleged harassers or speaking out, because they know they might be sued and be made to carry a heavy burden of proof. Without reasonable adjustments to give survivors a fair shot at winning in court or diminishing the risk of chilling litigation, legal rules—alongside ongoing social and political pressures—will continue to hold back China’s #MeToo movement.

Darius Longarino is a Research Scholar in Law at Yale Law School and a Senior Fellow of the Paul Tsai China Center. Prior to joining the Center, he worked for the American Bar Association Rule of Law Initiative in Beijing where he managed legal reform programs promoting LGBT rights and worked cooperatively with a number of Chinese public interest law organizations.

Yixin (Claire) Ren is a Research Associate with the Paul Tsai China Center of Yale Law School and a Master’s graduate of Cambridge University. Her work has appeared in The Diplomat and The Yale Review of International Studies.

Changhao Wei is a Postdoctoral Fellow at Yale Law School’s Paul Tsai China Center, where he focuses on China’s legislative process and constitutional enforcement mechanisms. He is the founder, manager, and editor of NPC Observer, a website that provides reporting, analysis, and original research on China’s national legislature, the National People’s Congress. He holds a J.D. from Harvard Law School.

Notes

[1] Civil Code of the People’s Republic of China (中华人民共和国民法典), effective January 1, 2021. The original Chinese version is available at http://www.npc.gov.cn/npc/c30834/202006/75ba6483b8344591abd07917e1d25cc8.shtml, and official English translation at http://www.npc.gov.cn/englishnpc/c23934/202012/f627aa3a4651475db936899d69419d1e/files/47c16489e186437eab3244495cb47d66.pdf; Beijing Yuanzhong Gender Development Center (北京源众性别发展中心), Breaking the Silence and Refusing to Compromise: A Research Report on China’s Laws and Judicial Cases on Preventing Sexual Harassment in the Workplace (打破沉默,拒绝妥协——中国防治职场性骚扰法律与司法审判案例研究报告), June 13, 2018, p. 7, https://cnlgbtdata.com/files/uploads/2019/07/%E6%89%93%E7%A0%B4%E6%B2%89%E9%BB%98%E6%8B%92%E7%BB%9D%E5%A6%A5%E5%8D%8F.pdf.

[2] See: Li Xi (李曦) & Yu Ning (于宁), “Study on Employers’ Response to Sexual Harassment in the Workplace: From the Perspective of Adjudicating Labor Dispute Cases (用人单位应对职场性骚扰问题探究——以劳动争议案件审理为视角),” Journal of China Women’s University (中华女子学院报), no. 1, 2020, pp. 32–38.

[3] Susan Finder, “New Docketing Procedures Come to the Chinese Courts,” Supreme People’s Court Monitor (最高人民法院观察), June 18, 2015, https://supremepeoplescourtmonitor.com/2015/06/18/new-docketing-procedures-come-to-the-chinese-courts/.

[4] Zhang Chenyang (张辰扬), “Cause of Action: Index List of Chinese Case Classification,” China Justice Observer (中国司法观察), July 5, 2019, https://www.chinajusticeobserver.com/a/cause-of-action-index-list-of-chinese-case-classification.

[5] Article 108, paragraph 1 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (最高人民法院关于适用《中华人民共和国民事诉讼法》的解释) provides: “If the competent people’s court, through an examination of the evidence provided by a party bearing the burden of proof and in light of the relevant facts, is convinced that it is highly likely that the facts to be proved by such evidence have occurred, the people’s court shall find that such facts do exist (对负有举证证明责任的当事人提供的证据,人民法院经审查并结合相关事实,确信待证事实的存在具有高度可能性的,应当认定该事实存在).” http://www.law-lib.com/law/law_view.asp?id=709741.

[6] Huo Haihong (霍海红), “Theoretical Reflections on Raising the Standard of Proof in Civil Litigation (提高民事诉讼证明标准的理论反思),” China Legal Science (中国法学), no. 2, 2016, pp. 258–279.

[7] Sun Yongshang (孙永上), “How to Accurately Understand the High Probability Standard of Civil Evidence (如何准确理解民事证据高度盖然性标准),” The Procuratorate Daily (检察日报), May 10, 2020, https://www.spp.gov.cn/spp/llyj/202005/t20200510_460701.shtml.

[8] Mark Schweizer, “The Civil Standard of Proof—What Is It, Actually?,” The International Journal of Evidence & Proof, 2016, Vol. 20(3), pp. 217–234, https://journals.sagepub.com/doi/full/10.1177/1365712716645227.

[9] See, e.g.: Gao Daxue (高大学) v. Medtronic (Shanghai) Management Co. Ltd. (美敦力(上海)管理有限公司), (2019) Hu 0115 Civil First No. 62266 ((2019) 沪0115民初62266号) (Shanghai Municipality, Pudong New District People’s Court (上海市浦东新区人民法院), September 27, 2019); Taconic Advanced Material (Suzhou) Co. Ltd. (泰康利复合材料(苏州)有限公司) v. Jin Gang (金刚), (2017) Su 0591 Civil First No. 9774 ((2017) 苏0591民初9774号) (Suzhou Industrial Park People’s Court (苏州工业园区人民法院), April 20, 2018); John Deere (Tianjin) Co. Ltd. (约翰迪尔(天津)有限公司) v. Liu Jinzhu (刘金柱), (2017) Jin 0116 Civil First No. 83656 ((2017) 津0116民初83656号) (Tianjin Municipality, Binhai New District People’s Court (天津市滨海新区人民法院), February 6, 2018).

[10] See: Article 90, item 1 of the Provisions of the Supreme People’s Court on Evidence in Civil Litigation (最高人民法院关于民事诉讼证据的若干规定), effective May 1, 2020, http://www.court.gov.cn/zixun-xiangqing-212721.html.

[11] See: Lu Jiefeng (卢杰锋), “Research on Proving Workplace Sexual Harassment Cases (职场性骚扰案件证明问题研究),” Women Studies Series (妇女研究论丛), no. 5, 2019, pp. 80–88.

[12] Ibid.

[13] See, e.g.: Gao Daxue v. Medtronic (Shanghai) Management Co. Ltd.

[14] See, e.g., Lu Weiming (陆伟明) v. Celanese (Shanghai) International Trade Co. Ltd. (赛拉尼斯(上海)国际贸易有限公司), (2019) Hu 0115 Civil First No. 30279 ((2019) 沪0115民初30279号) (Shanghai Municipality, Pudong New District People’s Court (上海市浦东新区人民法院), January 16, 2020).

[15] See: Beijing Yuanzhong Gender Development Center, Breaking the Silence and Refusing to Compromise, p. 7. See also, e.g.: Ren Guangjian (任光建) v. Yan Qingxia (严青霞), (2020) Zhe 0604 Civil First No. 431 ((2020) 浙0604民初431号) (Zhejiang Province, Shaoxing City, Shangyu District People’s Court (浙江省绍兴市上虞区人民法院), April 23, 2020); An Rongtian (安容天) v. Gao Shuang (高爽), (2020) Jing 03 Civil Final No. 2021 ((2020)京03民终2021号) (Beijing No. 3 Intermediate People’s Court (北京市第三中级人民法院), April 9, 2020).

[16] See, e.g.: Li Tailun (李太伦) v. Lu Lihui (鲁立惠), (2019) Chuan 0116 Civil First No. 994 ((2019) 川0116民初994号) (Chengdu City, Shuangliu District People’s Court (成都市双流区人民法院), September 2, 2019). For a discussion of the reversal of burden of proof in defamation cases, see generally: Wang Baoqing (王宝卿), “The Difficulties of Applying the Truth Defense in Cases of Infringement of the Right of Reputation by News and the Solutions Thereto (真实性抗辩在新闻侵害名誉权案中的适用困境与出路),” Journal of Jishou University (Social Sciences) (吉首大学学报(社会科学版)), no. 5, 2020, pp. 143–152, DOI: 10.13438/j.cnki.jdxb.2020.05.017.

[17] Wang Qi (王琪) v. Zhou Fei (周非), (2020) Jing 02 Civil Final No. 3536 ((2020)京02民终3536号) (Beijing No. 2 Intermediate People’s Court (北京市第二中级人民法院), April 30, 2020).