China set to abolish forced labour detention system for sex workers

Linda Lew

China’s extrajudicial detention of sex workers or their customers, known as “custody and education”, is set to be abolished, in what experts called a long-overdue move.

The detention system has been used to crack down on prostitution, which is illegal on the mainland, since the 1980s. Sex workers and their clients could be detained for up to two years without trial in centres overseen by the police.

More than 300,000 people were detained in custody and education (C&E) between 1987 and 2000, according to a report by NGO Asia Catalyst. Although the government does not publish regular numbers of detainees, mainland media have reported a steady decrease in detentions in recent years, resulting in the closures of some detention facilities.

The punishment was considered comparable to two other extrajudicial measures: the re-education through labour system, which targeted petty criminals, and the custody and repatriation system for illegal migrant workers. Those were abolished in 2013 and 2003 respectively.

The Standing Committee of the National People’s Congress (NPC), China’s legislative body, is reviewing a bill to discontinue C&E that was submitted by the State Council, the country’s cabinet, state news agency Xinhua reported. The bill is expected to be passed by Saturday.

Beijing News reported that the NPC’s Legislative Affairs Commission made a recommendation to start a review of the system in 2018. Wang Xioahong, a vice-minister of public security, presented the proposal to the legislature on Monday, Xinhua said.

“This bill is better late than never,” He Haibo, a law professor with Tsinghua University in Beijing, told the South China Morning Post by email. “Abolishing the custody and education of those involved in prostitution is in keeping with the spirit of rule of law and protecting human rights.”

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C&E lacked due process because sex workers or their clients could be detained for up to two years without trial, according to He.

The system “lacks the most fundamental protection for due process. It is far from open, fair or just,” He wrote in his 2015 paper about the punishment.

The paper also said that the system disproportionately targeted alleged female sex workers from impoverished backgrounds.

A 2013 study by Asia Catalyst, which included interviews with 30 female sex workers from two cities, questioned the effectiveness of C&E in stemming prostitution.

“The ‘educational’ objective of C&E has been distorted into a profit-making mechanism,” its report said, citing jobs for detainees that included making toys and household items.

“Detainees are not given the opportunity to learn labour skills that might change their fates, and typically spend their day doing manual labour. All of the sex workers we interviewed returned to the sex trade immediately after release from C&E.”

The study found human rights violations in the holding facilities that included excessive force and extortion by police, and forced labour.

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Zhu Zhengfu, the vice-president of All China Lawyers Association – who is also a member of political legislative advisory body the Chinese People’s Political Consultative Conference – has been pushing to abolish custody and education since 2014, Beijing News reported.

“I have continued to call for abolishing custody and education because once detainees were held, they were working [in forced labour], not receiving education,” he was quoted as saying. “At the same time, they were deprived of freedom, which becomes a form of punishment.”

“The situation has greatly changed, especially after abolishing the labour re-education system in 2013,” Shen Chunyao, the chairman of the NPC’s Legislative Affairs Committee, was quoted as saying.

“The use of custody and education has reduced over the years, the number of people detained has significantly fallen and some places have stopped implementing this detention.”

Abolishing custody and education was long overdue but should not be taken as a precursor of further reforms in China according to the rule of law, said Harvard University law student Wei Changhao, whose blog NPC Observer tracks developments relating to the legislative body.

“The fact that custody and education has practically fallen out of use made it easier for decision-makers to get rid of it,” he said. “I wouldn’t read this move as part of a broader rule-of-law reform of China’s legal system.”

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Sex workers and their customers would still face other forms of punishment if the detention system were abolished.

Those involved in the sex trade can be punished by administrative detention of up to 15 days and fines of up to 5,000 yuan (US$713), according to the public security administrative penalties law.

This punishment has been criticised for being applied arbitrarily, and in some instances for political purposes.

In August, Simon Cheng Man-kit, a Hong Kong resident who was working for the British consulate in Hong Kong, was detained by police in the neighbouring mainland city of Shenzhen for “engaging in prostitution” while on a business trip.

Cheng claimed that he was tortured while in detention, and that he had been held for his connection to the consulate and for helping a mainland friend who had taken part in anti-government protests in Hong Kong.

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