```

[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]

 
  HOLDING UP HALF THE SKY: WOMEN'S RIGHTS IN CHINA'S CHANGING ECONOMY

=======================================================================

                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 24, 2003

                               __________

 Printed for the use of the Congressional-Executive Commission on China

         Available via the World Wide Web: http://www.cecc.gov

                    U.S. GOVERNMENT PRINTING OFFICE
                           WASHINGTON : 2003

86-631 PDF

For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

House                                   Senate

JIM LEACH, Iowa, Chairman               CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska                 CRAIG THOMAS, Wyoming
DAVID DREIER, California                SAM BROWNBACK, Kansas
FRANK WOLF, Virginia                    PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania                 GORDON SMITH, Oregon
SANDER LEVIN, Michigan*                 MAX BAUCUS, Montana
MARCY KAPTUR, Ohio*                     CARL LEVIN, Michigan
SHERROD BROWN, Ohio*                    DIANNE FEINSTEIN, California
JIM DAVIS, Florida*                     BYRON DORGAN, North Dakota

                     EXECUTIVE BRANCH COMMISSIONERS

                 PAULA DOBRIANSKY, Department of State*
                 GRANT ALDONAS, Department of Commerce*
                D. CAMERON FINDLAY, Department of Labor*
                   LORNE CRANER, Department of State*
                   JAMES KELLY, Department of State*

                      John Foarde, Staff Director

                  David Dorman, Deputy Staff Director

* Appointed in the 107th Congress; not yet formally appointed in 
  the 108th Congress.

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Woo, Margaret, professor, Northeastern University School of Law, 
  Boston, MA.....................................................     2
de Silva, Rangita, director, International Programs, The 
  Spangenberg Group, Newton, MA..................................     7
Gilmartin, Christina, associate professor of history, 
  Northeastern University, Boston MA.............................    11

                                APPENDIX
                          Prepared Statements

de Silva, Rangita................................................    28
Gilmartin, Christina.............................................    36

  HOLDING UP HALF THE SKY: WOMEN'S RIGHTS IN CHINA'S CHANGING ECONOMY

                              ----------                              

                       MONDAY, FEBRUARY 24, 2003

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The roundtable was convened, pursuant to notice, at 2 p.m., 
in room 2200, Rayburn House Office building, John Foarde [staff 
director] presiding.
    Also present: Jennifer Goedke, office of Representative 
Marcy Kaptur; Susan Weld, general counsel; Andrea Worden, 
senior counsel; Keith Hand, senior counsel; Selene Ko, chief 
counsel for trade and commercial law; Lary Brown, specialist on 
labor issues.
    Mr. Foarde. As I told our panelists a moment ago, people 
come and go during our roundtables, which of course they should 
do if they cannot stay the whole time. So, we will expect to be 
joined by others as we go on.
    Before I introduce our three panelists, I would like to say 

welcome to this staff-led issues roundtable of the 
Congressional-
Executive Commission on China [CECC].
    On behalf of Congressman Doug Bereuter, the chairman of the 
CECC, and Senator Chuck Hagel, the co-chairman, today's 
roundtable concerns women's rights in China, and particularly 
in the context of China's changing economy.
    We have three distinguished and learned panelists this 
afternoon. I will introduce them in a moment. But, first, I 
would like to make an administrative announcement or two.
    Our next staff-led issues roundtable will be an open forum 
on Monday, March 10, at 2 p.m. in this very room, room 2200, 
Rayburn. The open forum format was very successful for us last 
year.
    The rules are, roughly, that any person who wishes to speak 
for 5 minutes on a topic within the Commission's mandate is 
welcome to sign up with us--the deadline is just a couple of 
days before the roundtable date itself--and then can sit and 
make a presentation and give us a written statement, if they 
wish, that goes into the record. Each panelist will be asked 
questions by the staff panel once all of the panelists have 
spoken. So, again, that is Monday, March 10.
    On Monday, March 24, at 2:30 p.m. in room 2255, Rayburn, we 
will hold another issues roundtable on non-governmental 
organizations in China and freedom of association issues. We 
will put more information about that roundtable on our Web 
site, and also out to our e-mail information list.
    While I am on that topic, you are all welcome to sign up 
for e-mail announcements from us about CECC roundtables and 
hearings, and occasionally other bits of news related to our 
mandate, via the CECC Web site, which is www.cecc.gov.
    There is also a physical sign-up sheet for those of you who 
prefer to do things that way that is being circulated, and you 
can give us your name and your e-mail address and we will sign 
you up. If at any time you need to unsubscribe from the list, 
you can do that on our Web site very easily.
    Another feature of the Web site is that all of our 
roundtable and hearing transcripts are available for both 
viewing and downloading as PDF files. Normally, there is a 4- 
to 6-week time lag between the date of one of our events and 
the appearance of the final transcript. That is so we can give 
our panelists time to correct the draft and get it back to us, 
process it, and put it up. But normally we have their written 
statements online the day of the event, so you can find them 
there.
    Helping us today understand more about women's rights in 
China's changing economy are Margaret Woo, from the 
Northeastern University School of Law. She is going to look at 
one aspect of the set of issues for us on women's use of the 
court system in China.
    Following her will be Rangita de Silva from The Spangenberg 
Group, looking at the grassroots enforcement of women's rights 
and interests.
    And, finally, Christina Gilmartin from the Department of 
History at Northeastern University about marriage migrations in 
contemporary China.
    Panelists, we have a high-tech system here with a set of 
lights. Once I introduce you, I am going to hit the button and 
the green light will light. You have 10 minutes to make your 
presentation.
    Unfortunately, we do not have an amber light, so I will 
kind of look at you and wave after about 8 minutes so you know 
you need to wrap things up. Then when the red light turns on, 
we hope you could wrap up extremely quickly so we could go on 
to the next 
panelist.
    When all three of you have had a chance to make your 
presentations, then we will open it up to questions from the 
staff group up here. We will go as long as the conversation is 
interesting, or until 3:30, whichever is first, since we have 
pledged to the International Relations Committee to vacate the 
room by 3:45.
    So, without further ado, let me ask Margaret Woo to make a 
presentation. Let me also ask you to speak directly into your 
microphones so that we can get a good transcript of today's 
roundtable.
    Margaret, thank you.

 STATEMENT OF MARGARET WOO, PROFESSOR, NORTHEASTERN UNIVERSITY 
                   SCHOOL OF LAW, BOSTON, MA

    Ms. Woo. Well, it is certainly an honor to participate in 
this roundtable before the Commission on the People's Republic 
of China, focusing on private property rights and women.
    My fields of specialization are comparative law and Chinese 
legal reforms. In the last 15 years, I have worked on topics 
looking at legal reforms and economic developments in China, 
and in particular its implications for Chinese women and 
equality.
    Certainly, one cannot understand the extent of substantive 
private property protections in China without understanding how 
such rights are enforced in the courts today.
    The question of how women's rights have been implemented 
through the legal system has added significance. Certainly, the 
test of a legal system is its ability to protect the most 
vulnerable. Women, arguably, make up the subgroup of the 
Chinese population with the most ambiguous relationship to the 
Chinese state.
    So how Chinese women are using the courts to enforce their 
rights entails an assessment of whether, and how, law is being 
used as an instrument for citizen empowerment.
    For rule of law ideals truly to take root, the idea of 
legality and legal instruments to settle rights and social 
problems must exist at the grassroots and at the level of 
ordinary citizens.
    Now, to understand Chinese women's use of the legal system, 
it makes sense to begin with a brief summary of the kinds of 
issues Chinese women are facing since the reform and how the 
legal 
system responded.
    Certainly with the deepening of economic reforms and 
greater 
reliance on markets, women's social status has increased in 
some ways, but decreased in others. While the market economy 
has offered women greater freedom and mobility, such mobility 
also has resulted in greater threats for women at home and in 
the workplace.
    As I have written elsewhere, the market economy has led to 
two kinds of contrasting migratory trends for women: (1) in the 
private sector, Chinese women are migrating out of the rural 
areas to urban areas for labor and for marriage; and (2) in the 
state sector area, Chinese women are asked to ``migrate'' from 
the public ``workplace'' to the private sphere of home and 
hearth.
    Now, as to the first trend, very quickly, to summarize, it 
is estimated that over 50 million women have given up farming 
for industrial sector labor. Known as ``dagongmei,'' or 
laboring sisters, these migrating women constitute the majority 
of migrant workers in the exploding numbers of foreign-invested 
township and private enterprises, which have been the focus of 
economic reforms.
    Now, since these migrating women often take non-
contractual, less desirable temporary jobs without urban 
residence registration, they work without the social benefits 
normally guaranteed for state workers. Since they are often 
uneducated, they can be subject to sexual abuses.
    In 1999, women workers earned an average of 70 percent of 
men's pay, really a decrease from the 83 percent back in the 
early 1990s.
    Rural women are also migrating outward from rural areas to 
wealthier areas for marriage. I know that Professor Gilmartin 
will be speaking on that, so I will just leave that issue 
aside.
    But just to mention that, even in the best of 
circumstances, the fact that women are migrating out of their 
local localities leaves them vulnerable, since they cannot 
significantly draw on the 
support of their natal families, resulting in greater 
dislocation and possible abuse for Chinese women.
    Now, the second form of migration which I will again 
summarize very briefly is in the state sector, where women are 
asked to leave the public workplace to return to the private 
sphere. China's economic reforms have led to redundancies in 
the workforce, with women often the first to be laid off, last 
to be hired.
    So, while constituting only 39 percent of China's 
workforce, women constitute nearly 60 percent of its laid-off 
workers in some areas, such as Liaoning Province, and are 
officially recognized as being 50 percent of the laid-off 
workers nationwide.
    More than 75 percent of the women laid off were still 
unemployed after 1 year, in contrast to 50 percent of their 
male counterparts. So, there is a great problem that women are 
facing in the labor area.
    In combination with this, of course, is the increased 
commodification of women as ``beauty objects.'' With 
marketization and privatization, women are now viewed as both 
consumers and products, and often in the market sphere 
relegated to the role of wives and mistresses rather than as 
equal workers ``holding up half the sky,'' as they supposedly 
did during the Mao era.
    So the relocation of women to the private sphere of home 
can add to women's loss of status as they no longer contribute 
to the family funds. Extramarital affairs have grown, as has 
the number of divorces. In divorce, women can suffer both 
financial and emotional setbacks because the often receive the 
short end of property and housing divisions.
    So what are the Chinese laws and legal system doing about 
this? Well, there are a number of formal legal protections for 
women. Women's equality and civil rights are guaranteed both by 
the Constitution and the civil code.
    There are a number of national laws that contain specific 
equality protection for women. These include the Marriage Law 
that was revised in 2001, the Inheritance Law, the Labor Law, 
and the Law on Maternal and Infant Health Care.
    In 1995, China even enacted ``Funu Quanli Baozhang Fa,'' 
which is The Law on the Protection of the Rights and Interests 
of Women, known generally as the Women's Rights Law.
    So the Women's Rights Law and the Marriage Law set forth 
protections for women's freedom in marriage, as well as 
equality in property ownership in marriage, divorce, and 
inheritance. This protection is especially defined for rural 
women, who often face great threats of discrimination in the 
distribution of village land.
    In the labor area, also, formal protection is contained in 
the Labor Law that specifically addresses problems of 
discrimination in promotion, hiring, layoffs. There is 
protective legislation with provisions for maternity leave and 
labor protections. The National People's Congress [NPC], was 
also considering legislation that would punish sexual 
harassment in the workplace.
    With reference to bodily harm, criminal law prohibits the 
abduction, sale, and kidnapping of women and children. The 
Criminal Code punishes traffickers. The recent Marriage Law, 
for the first time, recognized and prohibited domestic 
violence. So, it looks pretty good on the books in terms of the 
formal legal rights.
    My interest, however, is how are these rights being 
enforced, and how are Chinese women using the laws to protect 
their rights?
    Well, since the establishment of the legal system in 1979, 
courts in China have been in increasing demand. Between 1989 
and 1996, the number of civil lawsuits grew by 70 percent. This 
grew by a further 36 percent in the last 5 years, between 1997 
to 2001.
    Private litigants are going to court in China in growing 
numbers, and they dispute over, primarily, housing, debt, and 
family issues. In 1999, debt, family, and marriage cases 
constituted the bulk of civil cases that comprise, 
respectively, 40.2 percent and 39.66 percent of all cases. So, 
you have debt and marriage cases really being the bulk of the 
civil cases.
    Women litigants have not shied away from civil litigation. 
It is generally understood that the cases involving women tend 
to coalesce around the civil and criminal realm and less in the 
economic realm.
    Interviews with Chinese lawyers, as well as surveys of the 
Chinese legal material, suggest that litigation involving women 
as plaintiffs usually concern matters of marriage, family, and 
bodily injury.
    Now, between 1997 and 2001, divorce cases increased by 14 
percent from the prior 5 years, with women often the initiators 
and plaintiffs of such litigation. That is consistent with the 
national statistics, where women were the petitioners in nearly 
70 percent of divorce cases tried by the civil court since 
1980.
    The main reasons for divorce are incompatibility and 
domestic 
violence. According to the All China Women's Federation, 
domestic violence is involved in some fashion in about 30 
percent of the 
divorce cases, with an even higher incidence in the rural 
areas.
    Significantly, there is an increasing recognition that 
emotional well-being can be key reasons for divorce. Reform and 
greater freedom has led not only to possibilities of greater 
chasms in relationships, but also to greater expectations for 
what a marriage should be, and a growing sense of entitlement.
    However, while seeking a divorce is no longer difficult for 
Chinese urban women, the same may not be the case for Chinese 
women in rural areas. There are still substantial problems with 

interference in their legal rights.
    Despite legal protections on paper, women can, in practice, 
suffer both financial and emotional setbacks in divorces 
because they often receive the short end of property and 
housing divisions.
    The housing problem for women in divorce is attributable to 
a combination of housing shortages, residuals from the 
``danwei'' allocation system, as well as, in general, to 
courts' lack of understanding of gender issues.
    Despite the 1996 Supreme People's Court directive urging 
courts to take account of a woman's situation in the 
distribution of housing, property, and especially housing, have 
often become the 
bargaining chip in contested divorces.
    I know my time is short, so let me just jump a little bit 
over to labor cases. It is surprising to me, but there are few 
labor cases in which individual women workers challenge state 
or company policies that are detrimental to her.
    While labor disputes must first be submitted to 
administrative resolution, this exhaustion requirement does not 
explain the low numbers of litigated cases because 
administrative decisions can be appealed to the court.
    In 1999, labor cases constituted only 1 percent of the 
total of civil cases. From 1997 to 2001, the number of housing 
and divorce cases filed increased by 71 percent, and 68 
percent, and debt was up by 60 percent. By contrast, labor 
cases increased only by 19 percent.
    There could be a number of reasons for the paucity of labor 
cases. There is, in part, the problem with women not 
understanding their labor rights. There is also the issue that 
many women do not have written contracts on which they can sue.
    But then there is also the issue of having a very short, 
60-day time period during which an aggrieved worker can 
challenge and raise labor issues to either the arbitration, 
mediation, or, finally, to the courts. So the very short, 60-
day time period makes it difficult for women to challenge these 
issues in court.
    Finally, though, it could also be that women might be more 
likely to assert their rights as plaintiffs in private 
litigation involving marriage and divorce and less likely to 
touch on pressing public issues such as labor policy, where the 
defendant tends to be powerful companies or the Chinese state.
    It may be that the court is now really more an avenue in 
the area of social rights than political rights, and more an 
avenue to contest local abuses than to oppose national policies 
such as 
economic development.
    Finally, just because I do want to mention the obstacles to 
the use of the courts, and perhaps I will save my 
recommendations until later when we have a little time to 
discuss what the Commission might want to propose, I think that 
the obstacles to the use of the courts are two-fold.
    One, is that China has been experimenting with an 
adversarial system. That is, they are very much focusing on 
developing a 
system of party autonomy to supplement its inquisitorial civil 
law-based system.
    In the Chinese court, this is now called ``dangshiren 
zhuyi,'' where the litigants have the obligation and 
responsibility to bring forth proof rather than the old system 
of having judges do the 
investigation and learn about the parties and the facts.
    Now, placing responsibility on individual litigants is 
great in the development of greater rights' consciousness, but 
it can present special problems for those without power.
    Certainly, without financial resources and legal knowledge, 
it is difficult for litigants to navigate this complicated 
judicial system to understand how to obtain proof, or even to 
know what proof is 
necessary.
    Some problems have already surfaced in the divorce area 
where, according to many Chinese lawyers, wealthy husbands 
often hide money and other family assets from a divorcing wife, 
and the wife is having a difficult time in proving and getting 
her share of the property.
    So what it does mean is that a more adversarial-based 
system requires the role and greater involvement of lawyers. 
Unfortunately, in China today, despite great growth in the 
legal profession, the number of lawyers is still really small 
in comparison to the population of 1.3 billion. Right now China 
has about 150,000 to 175,000 lawyers. Women constitute only 20 
percent of the legal profession.
    More problematically, the maldistribution of legal services 
over China's vast geography and in the subject areas requiring 
representation means that women litigants are left out.
    Family and marriage cases are not as profitable as 
commercial cases, so the marketplace of legal services has 
resulted in fewer lawyers going into that area. Even with the 
growth of lawyers, the number of lawyers is found to be greater 
in urban areas such as Shanghai, but found to be a scarce 
commodity in the rural areas.
    Mr. Foarde. All right. Margaret, thank you very much. We 
are going to come back to some of these very interesting issues 
in the question and answer period because it raises so many 
interesting questions.
    Ms. Woo. All right.
    Mr. Foarde. I would like to go on to Rangita de Silva, 
please.

    STATEMENT OF RANGITA de SILVA, DIRECTOR, INTERNATIONAL 
          PROGRAMS, THE SPANGENBERG GROUP, NEWTON, MA

    Ms. de Silva. Over the last few years, The Spangenberg 
Group, under the auspices of the U.S. Department of State and 
the Ford Foundation, has conducted research, and provided 
training and technical assistance to legal services 
organizations and women's studies centers in China, 
particularly on issues concerning low-
income women.
    Our programs are unique in that they are aimed at putting 
women's rights into action in concrete ways. Working with local 
programs, we identify areas of women's rights reform, which are 
pushing the boundaries of the law.
    Although facially equitable laws prohibiting discrimination 
in employment, property ownership, inheritance, marriage, and 
divorce have been enacted, the difference between equality in 
law and equality in fact lies with the implementation of those 
laws.
    The lack of corresponding enforcement mechanisms is a major 
drawback in the effectiveness of these laws. I wish to speak to 
you about some areas on labor, domestic violence, and property 
that deeply impact women in China, the strengths and weaknesses 
of these laws, and the efforts made by some creative women's 
rights advocates and organizations to overcome the challenges 
posed by some of these laws and, finally, how, with the support 
of the State Department and the Ford Foundation, The 
Spangenberg Group has been assisting in some of these programs.
    Although since China opened its doors to a program of 
economic reform there is much progress for women seeking 
employment outside the home, many women find that the very laws 
designed to protect them subject them to discrimination and 
disadvantage in the labor market.
    It is evident that, by emphasizing the biological 
differences between men and women, the law limits women's 
employment opportunities and places an added burden on 
employers who hire women.
    An emphasis on women's uniquely productive capabilities and 
their roles as child bearers and rearers, have the potential to 
perpetuate gender segregation in the workplace and relegate 
women into lower-paying, traditionally female tasks.
    On the other hand, while greater mobility has resulted in 
greater opportunities for women, many migrant women workers 
suffer exploitation and discrimination. Further, laws that 
might improve working conditions and provide work-related 
benefits are under enforced, and the capacity to monitor and 
enforce these laws is weak.
    The revisions made to the Marriage Law in 2002 are among 
some of the more significant changes made to the law in China. 
These revisions include domestic violence as a ground for 
divorce, and allow the spouse in a divorce proceeding to seek 
compensation from the other party if he or she is at fault due 
to certain specific grounds, including domestic violence.
    The reintroduction of fault into divorce is seen as an 
attempt to grapple with the feminization of poverty in divorce. 
Despite these ground-breaking reforms in the law, Chinese 
women's rights advocates have argued that, in the absence of a 
clear definition of domestic violence, it would be very 
difficult to institute an action for civil compensation for 
domestic violence.
    Domestic violence is not broadly defined to cover threats 
of violence to the woman and her family members, psychological 
damage, sexual abuse, and rape within marriage. Also, the 
question arises whether a claim for compensation can be made 
during the existence of the marriage. Due to the discretion 
left to the judges, similar cases can be decided differently.
    Women also find it difficult to meet the high standard of 
proof required under the criminal law to hold batterers 
criminally responsible. In order to invoke article 260 of the 
Criminal Law on crimes disrupting marriage and family, a woman 
has to prove that the crime was particularly ``evil'' and the 
abuse was ``continued, regular, and consistent.'' On the other 
hand, the crime of ``intentional injury'' requires the forensic 
authentication of the injury, and that the injury amount to at 
least a flesh wound.
    In the absence of a clear definition of what constitutes 
domestic violence, it is most often interpreted as an injury 
that results in severe bodily harm, broken limb, loss of 
eyesight, et cetera. Most courts and prosecutors will not 
address what is considered a minor physical injury as domestic 
violence.
    Another reason why the revisions to the Marriage Law might 
remain largely symbolic is the fact that the Public Security 
Bureaus often hesitate to intervene in family disputes.
    Thus, without corresponding intervention procedures to make 
it mandatory for Public Security personnel to intervene in 
domestic violence issues, it would be very difficult for women 
to gather forensic authentication and proof of domestic 
violence in order to seek protection during marriage, or civil 
compensation at divorce.
    The Chinese law also does not expressly recognize or 
exclude marital rape. There is a general recognition that where 
sexual intercourse occurred without the consent of the woman, 
that is, in a forced or purchased marriage, during separation, 
or after an application for divorce has been filed, it could 
amount to rape or a crime of intentional injury.
    The law provides that during the marriage, neither side can 
transfer property without the consent of the other party. 
However, often in cases involving domestic violence or adultery 
leading to divorce, spouses in China attempt to transfer 
property to a third party, so as to avoid equitable 
distribution of property. Many women find it difficult to trace 
the illegal transfer of property made by their spouses.
    Married women are frequently unaware of the full extent of 
their husband's income or property. Given certain procedural 
difficulties, it is very difficult to gather real evidence on 
property transfer or compel witnesses to testify as to 
concealed property. The challenges of proving the ownership or 
concealment of property constitute an enormous burden to women 
in China.
    Despite provisions in the law protecting women's property 
rights, the reality is that property division and divorce 
depend largely on availability of housing units. Frequently, in 
present day China, women are faced with the untenable situation 
of sharing a bedroom in the ex-husband's apartment. This 
arrangement has caused many serious problems, such as the 
increase in the incidence of domestic violence.
    Sometimes sharing housing with a former spouse is allowed 
by the court as temporary housing for a stipulated period of 
time, or until the woman remarries. Further, the Supreme 
People's Court has ruled that a house that cannot be divided 
should be assigned to one party, and that party should 
compensate the other party for half the value of the house.
    Unfortunately, the reality is that a woman often lacks the 
resources to reimburse her spouse, and the house automatically 
goes to the husband. As is manifest in court decisions, there 
is no uniform policy governing this area of the law.
    Even though the revised marriage law applies uniformly to 
both urban and rural women, rural women encounter unique 
challenges in property use and ownership that have not been 
fully addressed by the revised Marriage Law.
    Despite guarantees of equal distribution of 
``responsibility land,'' in practice, certain village 
committees will not allocate separate ``responsibility land'' 
to women who are divorced.
    A widow returning to her village could encounter similar 
problems. A married woman who leaves the village, in common 
parlance, is considered ``water splashed out'' and loses her 
right to the land in the village.
    In the case of migrant workers, too, so long as their 
residence has not been transferred to the city, they should 
retain the right to the responsibility land in their village.
    However, in reality, women who go to work as migrant 
workers to the city have their land reallocated. Even though 
this is against the law, very few of these migrant workers are 
able to come back to their village in the event that they lose 
their jobs in the city.
    Despite legal guarantees of equality, women's rights in the 
areas of marriage, divorce, employment, and property continue 
to face procedural obstacles. On the other hand, the changes in 
the law have not always had the desired impact on women.
    At the same time, a review of The Spangenberg Group's work 
in China in the last 5 years shows that there has been a rapid 
maturation and development in the area of women's rights 
advocacy in China.
    The work of some women's legal aid organizations in China 
has become a catalyst for change. These organizations have not 
only positively impacted the lives of the disadvantaged, but 
have brought to the surface many issues hitherto ignored, such 
as domestic violence, marital rape, sexual harassment, and 
employment discrimination.
    The women's legal aid centers have provided a forum for 
debate and discussion on these areas of the law and have 
engaged in a number of activities including: legal services for 
the poor, domestic violence hotlines, impact literature, law 
reform efforts, and training of law enforcement and judicial 
officers.
    The cases brought to court by these centers have formed a 
rich body of jurisprudence on women's rights. Claims lost in 
court are still publicized and used to raise gender 
consciousness.
    Our seminars help women's rights advocates in China address 
the inherent duality and contradictions in some of the 
protectionist provisions of the Chinese labor laws, and we view 
them in the context of analogous labor laws in other 
transitional countries and their disparate impact on women.
    Our programs focus on how to identify gender bias and 
sexual harassment in employment, and how to challenge these 
discriminatory practices. Our programs identify various laws 
and regulations that prohibit gender discrimination and 
emphasize vigorous advocacy skills necessary to make novel 
anti-discrimination claims.
    We also draw examples from successful litigation strategies 
used by Chinese women's legal services organizations. Even 
though successful outcomes for struggling female workers are 
not common, significant cases taken to court by some women's 
legal services groups demonstrate how women workers, after many 
a legal battle, have successfully vindicated their rights.
    Women's legal services organizations in China are also 
crafting novel and indigenous advocacy strategies to protect 
women's property rights. These range from advising women to 
enter into notarized agreements with their husbands so as to 
ensure equitable ownership of property and to argue for civil 
compensation for fault to be awarded during an ongoing 
marriage.
    In the area of domestic violence, our seminars assist 
women's rights advocates to identify some of the challenges 
women face due to gaps in the law and inaction on the part of 
law enforcement officials. Together, we look at ways in which 
to stretch the boundaries of advocacy and make women's rights 
and perspectives central to lawmaking.
    In doing so, we draw examples from advocacy strategies in 
the United States and other parts of the world. Our seminars 
also focus on how, in the absence of an explicit marital rape 
exemption, a broad interpretation of China's rape laws could 
include marital rape.
    By looking creatively, first, at local laws and then at 
international norms, women's rights advocates in China are 
developing exciting and innovative methods of problem solving.
    Women's rights advocates and lawyers in China have done 
much to advance the frontiers of the law in the area of women's 
rights reform in China. Their continuing critique of 
discriminatory laws and practices affecting women and their 
creative initiatives to challenge these discriminatory 
practices have brought about a transformation in the lives of 
women who seek to vindicate their rights.
    Even though much has taken place in the last few years, 
much remains to be done. Women's empowerment foreshadows the 
transformation of a society and is a benchmark of a functioning 
rule of law. Supporting the work of women's rights groups 
remain critical to the further strengthening of the rule of law 
in China.
    Thank you.
    [The prepared statement of Ms. de Silva appears in the 
appendix.]
    Mr. Foarde. Thank you very much.
    Let us go on to Christina Gilmartin, please.

          STATEMENT OF CHRISTINA GILMARTIN, ASSOCIATE 
   PROFESSOR OF HISTORY, NORTHEASTERN UNIVERSITY, BOSTON, MA

    Ms. Gilmartin. I want to thank the Commission for inviting 
me to come speak about some of my recent research that I think 
shows the need for much greater legal training for women.
    The economic reforms that were instituted in China in the 
late 1970s have brought tremendous changes, both positive and 
negative, for women. An explosion of internal migration streams 
of extraordinary proportions in China has drawn not only men, 
but also women.
    Migration can be seen as a form of human agency by women 
who are aiming to make use of global, social and economic 
transformations to improve their survival odds and achieve 
personal 
empowerment.
    However, a large segment of these Chinese migrant women 
have also faced an increasing vulnerability that has heightened 
public awareness and policy concerns.
    Much scholarly and journalistic attention has been devoted 
to Chinese labor migrations, including women labor migrants. My 
statement concerns one aspect of Chinese migrations that have 
thus far not received much Western attention: voluntary 
marriage migrations.
    Intertwined with both illegal marriage migration streams 
and economic migrations, this phenomenon has provided rural 
women with an important opportunity to improve their economic 
well-being.
    However, these women also face unusual risk as they move 
beyond the security network of their kinship lines, and thus 
have few resources to rely upon if subjected to difficult 
circumstances in their new communities.
    What constitutes a marriage migrant, one might ask? Women 
have almost always moved at the time of marriage in China. 
Village exogamy was held up as a norm and was widely followed.
    The great majority of rural women who observed the strong 
taboos against same-village marriages during the Mao period, 
1949 to 1976, however, married within a radius of 10 
kilometers, and usually in the same county.
    One study shows that women who did marry into wealthy 
villages from poor villages might move a bit further than that 
10 kilometers, often marrying the poorest men in the village.
    This marriage market migration that I am talking about in 
the economic reform era is, in many ways, a radical expansion 
of the Mao era. Women have begun to travel much larger 
distances, crossing county and provincial borders.
    Within a few years, some women began to venture hundreds, 
and even thousands, of miles in order to marry. By 1990, the 
numbers of marriage migrants were estimated to be somewhat over 
4 million, and this estimate is probably low.
    These female marriage migrants constituted 28 percent of 
overall female migration in China in the 1980s. Although the 
data for the 2000 census has not been published, preliminary 
indications are that this figure has continued to rise.
    In contrast to the millions of women who have migrated to 
marry, few men have been involved in this process. The main 
reason for such low male participation in this type of 
migration is the tenacity of patrilocal marriage patterns.
    Even after the establishment of commune systems in China in 
the 1950s, government initiatives were unable to motivate men 
to undertake virilocal marriages.
    Those few men who have moved to another village to take up 
residence in the homes of their wives have not been accorded 
full rights and social status in their new communities, and 
thus have led to very low participation of men in marriage 
migrations.
    What kind of women migrate to marry? The great bulk of 
these women come from agricultural backgrounds. In one study, 
we know that 97.2 percent of female marriage migrants 
originally farmed for a living.
    In this respect, then, they are very different than the 
labor migrants that we know much more about, who, according the 
1990 census, came disproportionately from farming and factory 
backgrounds.
    So essentially what we have here is a process where women 
migrants are moving from poorer rural communities into 
wealthier rural communities. Their destinations have primarily 
been rural because of the ``hukou'' system of residence 
permits.
    Those women who have managed to enter the boundaries of the 
large metropolitan areas of Beijing, Tianjin, Shanghai, and 
Chongqing have not ended up in the urban areas, but in the 
outlying rural districts.
    The main reason for these large-scale marriage migrations 
is the existence of a sex ratio imbalance that has been growing 
over the last two decades. The figures are showing that, in the 
rural areas, up through 1990, in fact, the sex ratios are not 
as great as they were afterward and they are going to be in the 
next two decades.
    However, in the rural areas the sex ratios were, in fact, 
great because of so many women leaving to work. So what we see 
in 1990 is the gender ratio of Chinese women to men, for 
unmarried people between the ages of 15 and 19, was 108.91. 
That is, almost 109 unmarried men for every 100 unmarried 
women. But if we look in the 20-24 age group, it would be 
161.97, and for the 25-29 age group, 508.91.
    It is clear that these marriage migrations are linked with 
both labor migrations and what I would call illegal involuntary 
marriage migrations. We know that the labor migrations, to 
start with, helped to decrease the type of stigma attached to 
single, unmarried women migrating.
    Once factories started to hire a large number of these 
women migrant workers, we see large numbers of women start to 
be willing to engage in marriage migrations.
    At the same time, we also know that male labor migrants 
stimulated female marriage migrants. For instance, in one 
village in Henan called ``Ten Mile Inn,'' there was a tendency 
to recruit Sichuan men to work in the mines because of the 
unwillingness of the local people to continue doing such 
dangerous work.
    These Sichuan men soon began to arrange for their female 
relatives to be married into the families of Ten Mile Inn, 
Henan, and by 1996 there were 20 Sichuan brides in the 
community. By 1999, the number had doubled.
    There is also evidence to show that illegal marriage 
trafficking in women spurred the emergence of legal, voluntary 
marriage migrations. Again, cases where women end up in a 
village far from their homes, and once they regain their 
freedom, they then start to arrange for neighbors to come live 
in their villages as marriage migrants.
    The marriage migration in the economic reform eras have 
tended to flow in certain geographical patterns. In general, 
they originate in the poorer areas of the southwest and travel 
to the rural areas of the richest sections of the eastern 
coast, particularly Jiangsu and Zhejiang Provinces. Also, 
Guangdong and Hebei are destinations.
    As early as 1989, the per capita net income in rural 
Zhejiang was more than 400 yuan above the national average, and 
approximately 450 yuan above Hunan's level. So we get some 
sense of the disparities early in the economic reform, and they 
are much greater now.
    Economic factors have been critical in the decisions of men 
to marry female marriage migrants from outside their 
localities. The bride price paid for immigrant women is usually 
significantly less than that which is required for local 
brides.
    In Zhejiang, for instance, the bride price for a local 
woman has been going up precipitously since the early economic 
reform years. We now know that many of these marriages to local 
women are costing over 100,000 yuan.
    Now, there are many concerns about this marriage migration 
for the status and the well-being of the women. They are using 
a traditional method of social mobility that has been used by 
women in marriage. In so doing, we find, in many cases, that it 
is very difficult for them to have egalitarian marriages.
    Many of these women do not have any legal rights to start 
with. Their marriages are not registered, in large part because 
they break up so easily and there is a high divorce rate of 
these marriages in the first years.
    Also, there is evidence that these women do not have a 
``hukou'' either, which means they do not have rights to land. 
The countless reports of wife battering and female suicides in 
rural areas suggest that such acts may well be 
disproportionately occurring in these types of marriages. We 
need more research to show if this is true or not.
    It does appear that these women face a great deal of 
discrimination and hostility in the communities, with the 
result that they cling to their new-found families and lead 
fairly solitary existences, refusing to assume jobs in the 
public domain.
    The relatively hostile environment, coupled with the 
absence of nearby relatives, means that, in the main, emotional 
and economic support for these woman comes from their husband's 
families. But when these marriages are ridden with conflict, as 
is often the case, women find themselves without many 
resources.
    The last thing I just want to point out, is that this is a 
situation in which women would benefit greatly from with more 
legal knowledge. I think that this would have to be done in 
different ways than has been the common practice of NGOs in 
China thus far. Particularly important is to get down to the 
county level.
    Last, I think that with a minimal amount of resources, much 
more research by Chinese scholars could be encouraged.
    Thank you.
    [The prepared statement of Ms. Gilmartin appears in the 
appendix.]
    Mr. Foarde. Thank you very much. Three fascinating, but 
also very sobering, presentations.
    We will now move to the question and answer session of our 
panel for the remaining 45 minutes or so. I would like to begin 
by posing a question, really to all three of you, but 
principally to 
Margaret Woo.
    I understood you to say in your presentation that when 
state-owned enterprises fail, women are more likely to be laid 
off than men. Is that so, in the first place? Then, if so, can 
women employees get access to money paid on their behalf into 
pension, health and social security accounts?
    Do women make effective use of the labor laws and 
regulations that are available to them? How well are they 
represented, if at all, by the All China Federation of Trade 
Unions and its branches?
    Ms. Woo. It is true that women are, by and large, bearing 
the brunt of the layoffs. China generally has a 2-year 
retraining program, theoretically, for all laid-off workers.
    Part of the problem, however, for women workers, is that 
once they are laid off, there is also a tremendous amount of 
pressure to stay being laid off. Not too long ago, in the 
1990s, there was even an official ``return home'' policy for 
women, that is, that they were encouraged to stay home.
    I think the latest revisions to the Labor Law recognized a 
variety of different kinds of labor, including temporary labor. 
It is the fear of women's rights groups that, yet again, this 
will be the track that most women will be encouraged to take.
    How well are they being represented by the Women's 
Federation? I have to say that the All China Women's Federation 
has changed throughout the years.
    In the past, they have primarily been a conduit for 
national policies. Increasingly, they are speaking up as 
advocates for women, and they have done a tremendous amount in 
terms of helping women understand their labor rights.
    By and large, part of the problem--in fact, my 
recommendation is similar, I think, to Chris' and Rangita's--is 
that there is a need to educate and spread the word to women, 
as well as to law enforcement professionals what the rights of 
women are. So, there are plenty of labor rights issues right 
now that women do not even know that they can contest.
    Mr. Foarde. You spoke about the Women's Federation. But 
what about the All China Federation of Trade Unions, the ACFTU? 
Are they doing anything at all for women, or anything special 
for women?
    Ms. Woo. Yes. The trade union is interesting. Part of the 
problem is that few of the violations occur in the state-owned 
enterprises where the trade unions are established.
    Many of the poor labor conditions happen in the special 
economic zones, in the joint ventures, and so on where trade 
unions have not been able to get as strong a hold.
    So, in fact, the All China Women's Federation is, by and 
large, where women go when they do have a problem. In fact, I 
would think that what your Commission can do is to encourage 
American companies, when they do go abroad to places like 
China, that they be open to allowing cooperation with trade 
unions or cognizant of labor standards.
    Mr. Foarde. Thank you very much.
    I would like to open it up now to my colleagues on the 
staff. We will start, I think, with Jennifer Goedke, who 
represents Congresswoman Marcy Kaptur.
    Jennifer, please.
    Ms. Goedke. Thank you. I guess my question can go to the 
whole panel. In the United States, and in many other countries, 
women and children who are victims of domestic violence can 
look toward shelters, whether it is through faith-based or non-
faith-based organizations. They can look to shelters for 
protection and even temporary housing. Does China have any 
similar establishments? If so, what are the legal ramifications 
of that?
    Ms. de Silva. Right. That is a problem that has been 
identified by women's rights advocates in China. But, at the 
same time, there are some creative and innovative organizations 
that are creating such shelters.
    For instance, in Hubei Province, where we have a program, a 
local philanthropist donated space in his hotel to shelter 
abused women. A group of women's rights advocates and Women's 
Federation cadres garnered support from the local Red Cross to 
support this shelter.
    The important thing is that this idea is growing and there 
is an expanding understanding that there is a need for 
shelters. Through innovative, localized, and indigenous means, 
these organizations have become part of the fabric of women's 
rights advocacy in China.
    Ms. Gilmartin. But I think it is also important to point 
out that until the Fourth World Women's Conference in 1995, 
this was a totally submerged issue. There was no public 
recognition of this problem and no public discussion.
    So, in a society that does not rely heavily on NGOs, these 
types of organizations do take a long time to emerge. So even 
though they are hopeful indicators here, I think it is very 
safe to assume that for most women who suffer domestic 
violence, there really is no place to go.
    Ms. Goedke. And if I have time for one more question.
    Mr. Foarde. You have plenty of time.
    Ms. Goedke. How does the legal system help women get access 
to better, or slightly improved, health care? Are women using 
the courts at all to get, whether it is better health plans at 
the workplace, or just even getting access into certain 
research activities, or any other areas like that?
    Ms. Woo. That is a very difficult question. As you know, 
now many of the social services have been privatized. In the 
past, if you were affiliated with the ``danwei'' or work unit, 
then the work unit was in charge of everything, from housing, 
to welfare, to health care. And, of course, the state, with a 
special interest with the one child policy, would keep very 
close track of a woman's health and monthly cycles.
    Today, many hospitals and doctors work on a private fee 
basis and the legal system really is not doing that much to 
meet that need because it is not something you could sue on. 
There are no grounds to sue when it is a matter of the market 
failing to provide sufficient health services at reasonable 
costs.
    Mr. Foarde. Next, I would like to recognize my friend and 
colleague, Susan Roosevelt Weld, the general counsel of the 
Commission.
    Susan.
    Ms. Weld. Thank you. I would like to follow up on the 
question of popular legal education; educating women on what 
their rights are on the books, and also on what their rights 
are under certain international conventions that China is party 
to.
    In your opinion, each of you, in just a few words, what is 
the best way to provide that kind of education? How is it being 
provided now? How should it be best provided, and could this 
Commission consider any ways to promote that sort of education?
    Ms. de Silva. As you know, China was one of the first state 
parties to ratify the CEDAW at the convention in 1980, and it 
was ratified without any reservations, which is an extremely 
symbolic act considering that so many developing nations in 
Asia ratified with reservations.
    Ms. Weld. Does everybody know what CEDAW means?
    Ms. de Silva. It is the Convention for Elimination of 
Discrimination Against Women which was adopted in 1979.
    So, in our opinion, it has been a hugely powerful tool of 
advocacy in China, both symbolically as well as substantially.
    At different levels, it has remained powerful. At one 
level, as you know, CEDAW is not self-executing in the sense 
that you have to enact domestic legislation to give effect to 
CEDAW.
    The LPWRI, the Law on the Protection of Women's Rights and 
Interests, which Margaret mentioned, was enacted as part of 
China's obligations under Article II of the CEDAW. So, that was 
a step in the right direction.
    What is important about CEDAW is that it also establishes 
that not only should discriminatory laws be abolished, but also 
that any laws that might have discriminatory impact should be 
looked at very carefully.
    So, that is an issue that is huge in China right now, where 
women's rights advocates are looking at facially neutral laws 
and looking at what is the impact of these laws, and using the 
CEDAW as a guideline.
    So I feel that CEDAW provides the guidelines for 
accountability. It provides a standard to aspire to. Second, 
given the fact that there are certain vague and undeveloped, 
what Chinese advocates call ``imperfections'' in the law, the 
CEDAW provides a good fill-in.
    One way of using the CEDAW is to look at local laws and 
interpret those local laws in the spirit of the CEDAW. So it 
provides, once again, a good benchmark. One example of this is, 
as I 
mentioned, that domestic violence is not defined very well in 
the Chinese laws.
    So, given that there is no definition of that, women's 
rights advocates are looking at international conventions, and 
international declarations. Unfortunately, the CEDAW itself 
does not define 
domestic violence.
    Chinese advocates are looking at the DEVAW, which is the 
Declaration on the Elimination of Violence Against Women, 
because it is a U.N. declaration and, as a member nation of the 
United 
Nations, it does have authority, if not binding effect.
    So they are looking at the DEVAW and its very broad 
definition of domestic violence to tell the courts how domestic 
violence is defined. The DEVAW definition includes marital 
rape, it includes psychological damage, it includes threats to 
the family and to the person, so as to give a broad and wider 
interpretation to local laws. The reporting requirements are 
also very important.
    Obviously, the CEDAW itself does not allow access to the 
Committee on the Elimination of Discrimination Against Women by 
individuals or groups, but there is an optional protocol that 
was passed in 2001 which allows individuals and groups access 
to the Committee. Now, China has not signed that as yet, but it 
has just come into operation.
    We, in our advocacy, talk about how to engage the state in 
writing these reports, how it is possible for NGOs to write 
shadow 
reports to the Committee, how it is important to hold the state 
responsible for exercising what is known as due diligence under 
the Convention.
    The state is not accountable under the CEDAW for any 
private acts of violence, but the state can be held responsible 
for inaction, for not taking enough notice of violence or not 
passing legislation or enforcement mechanisms to enforce 
certain laws. So, there are all these levels at which the 
CEDAW, we feel, has been very powerful.
    Ms. Woo. I just want to quickly follow. There is no 
question that CEDAW is a great normative guide for Chinese 
grassroots groups to use to advocate for Chinese laws to 
formulate substantive rights protection.
    But I would also want to emphasize that legal education 
should not only teach the substantive rights that women in 
China have, or should have, but rather how they can enforce 
them.
    In other words, it really needs to be funding additional 
legal education as to simple steps that women can take to 
enforce their rights, whether it is going to the police, 
whether it is going to the courts. It needs to de-mystify the 
process such that women themselves can take authority into 
their own hands.
    Ms. Gilmartin. Yes. I would like to also add that often we 
see reports in the newspaper. For instance, yesterday there was 
a report in the Boston Globe which talked about a woman in 
Chongqing Shi using her legal rights.
    This may give a false sense that there is a growing 
cognizance of people's legal consciousness. But I think it is 
important to distinguish between rural and urban settings.
    There is such little knowledge in rural areas. I have been 
doing a lot of research in southwest China in Sichuan, 
Chongqing Shi, and also in Hubei and central China. I find that 
many older women are functionally illiterate and that younger 
women generally have no understanding of what their legal 
rights are.
    So, a program that tries to focus on rural situations in 
ways that not only are dispensing knowledge to women, but also 
at the same time retraining the legal personnel in the county 
courts so that they also are much more cognizant of the 
situations facing women.
    Mr. Foarde. Very useful. Thank you very much.
    Let us go on to my colleague and friend, Lary Brown, who 
handles labor issues for us. Lary, do you have a question or 
two?
    Mr. Brown. I do. I have two questions, actually.
    The first one: Dr. Woo mentioned in her presentation that 
the number of litigated divorces is increasing in China. My 
question is, are women getting a fair judgment from this 
litigation? Getting into court is only part of the battle.
    Ms. Woo. And your second? Or should I just answer the 
first?
    Mr. Brown. Answer that one and I will come back.
    Ms. Woo. It is an interesting question, because it is 
certainly hard to generalize and say, for the numbers of 
divorces filed for in China, that women are not getting a fair 
shake.
    I would say, however, that women are having difficulties in 
the divorce process, primarily because in the litigation 
process there are so many more procedural hurdles. For example, 
the latest evidence laws now make the entry of evidence very 
restrictive.
    I was looking at Women in China Today, and there was a 
story in there that talks about how a woman who wanted to sue 
under the latest Marriage Law for compensation from her spouse 
for a fault-based divorce could not come up with sufficient 
evidence to meet the court's requirements.
    She finally ended up getting a lawyer to help her and was 
thereby a little more successful. So, until we have better 
legal services for women, I think they will continue to face 
obstacles.
    Ms. Gilmartin. I just wanted to add that we have to realize 
there is another problem. Women rarely know what their 
husband's economic resources are, and there is no way to get 
this information. The husband is not filing income tax every 
year. Unless she has a bank account number and knows the 
specific branch that his accounts are in, she is unable to make 
claims on his resources.
    So this means, in terms of women getting any fair economic 
settlements in divorce cases, that they are extremely crippled.
    Ms. de Silva. I think that is why it is so important to 
have what women's legal advocates in China call a ``specialized 
cadre'' of women's rights lawyers who are able to handle 
women's rights issues, because this comes up all the time.
    That is one of the biggest barriers to the claims. It is 
impossible to trace property that has been transferred, or they 
do not have a good awareness of what the husband's property is.
    The narratives that the victims tell us, or the narratives 
the women's lawyers tell us, are very interesting. There are 
ingenious advocacy efforts that are being made right now to get 
this evidence.
    We have been told all the time about how they go and speak 
to the husband's work unit and find out, does he have a 
mistress somewhere, and if he has a mistress, do you have the 
telephone number? Or they ask the woman to call, to look at the 
telephone records and look to see whether there is a number 
that has been regularly called.
    So, it is just by the sheer willpower of the women's rights 
advocates that even the little evidence that can be submitted 
can be found. I want to add that it is difficult to subpoena 
witnesses and also that witnesses are reluctant to talk. Unless 
you have lawyers who are trained as advocates, it is impossible 
to get this kind of evidence.
    Mr. Brown. Thank you.
    My other question is: Margaret Woo mentioned in her 
presentation that a very small proportion of the civil cases 
are actually related to labor issues. I would ask all three of 
you, if you could, what is it going to take to increase that 
proportion?
    Ms. Woo. Oh, that is a tough one.
    Mr. Brown. You hinted at different things. But I would kind 
of like to hear your broader perspective on that.
    Ms. Woo. I will have to think about that. That is very 
difficult. There are procedural, systemic obstacles as well as 
the broader political obstacles. So, it really would be a two-
prong process, I would assume.
    I did mention the procedural obstacles, is the fact that 
many women workers do not have signed contracts, so it is 
difficult for them to sue. There is also a very short statute 
of limitations period. I think it is, like, 60 days, where they 
have to file with the Arbitration Board if they want to contest 
anything. So there could be laws that could be changed in that 
form or fashion that would be very useful. But the other, more 
kind of politically sensitive, would be really to push a 
greater recognition or give greater priority to rights.
    I think we have wonderful rights on the books right now to 
protect women, but it is unclear what happens to these rights 
when they run up against other goals of the state, or other 
rights within the legal system.
    So, I think one way, really, would be to push for greater 
clarification as to what the priority of these rights are, and 
thereby encourage people to understand that this is, indeed, a 
right that the state is supporting and will back through the 
litigation process.
    Ms. Gilmartin. Yes. A second factor, I think, is if the 
discourse, whether it is from the All China Women's Federation 
in their journals or in other TV/media types of presentations, 
started to address these problems so that women felt there was 
more public support and they had more understanding of the 
possibilities, I think that you would see some shifts. Right 
now, the All China Women's Federation is really focused on very 
different areas of pursuit.
    Mr. Foarde. Let me recognize our colleague, Andrea Worden, 
who is a senior counsel working on grassroots legal reform 
issues, if she has some questions.
    Ms. Worden. Thanks, John.
    I have a two-part question that I think probably makes 
sense for Rangita to address first. Then I would also love to 
hear from the rest of the panel.
    In addition to legal aid centers, I am curious what other 
sorts of NGOs exist in China that focus on women's rights 
issues?
    Ms. de Silva. Right. I think one of the most important 
organizations right now in China working on these issues is the 
All China Women's Federation. It is a quasi-non-governmental 
organization.
    But what is interesting about this network, is that it has 
these many layers and goes right down to the village and the 
county level, so you have a village-level Women's Federation 
offices, the county-level office, and then the provincial-level 
office. Depending on the seriousness of the case, it might come 
up to the provincial-level Women's Federation office.
    What is interesting about these organizations, is there is 
a 
discreet group of lawyers whom they call ``falu gongjiao,'' 
paralegals, working for these organizations. They are under the 
rubric of what is known as full-time rights protection cadres 
of the 
Women's Federation.
    They are the ones to whom women first come with their 
claims. These women's federation offices have now got the 
status and the clout to employ volunteer lawyers who belong to 
private law firms who volunteer their services.
    What is exciting about this, is that by volunteering their 
services, maybe at the beginning rather reluctantly, they have 
now realized how important and how fascinating an area of law 
this is and now there is this kind of enthusiasm to volunteer 
more of their services. So, it is almost contagious.
    What is important about some of the seminars that we do is 
not only to broaden the capacity of a rather discreet and small 
group of volunteer lawyers, but also to capture their 
imagination, to capture their attention to the importance of 
these rights and these new areas of law and new areas of rights 
protection.
    So we find that there is a growing group of private 
attorneys who are volunteering their services to the Women's 
Federation, and that is growing. They are doing more and more 
cutting-edge work.
    Then the Women's Federation cadres do the intake of the 
cases, and then they see those cases. What they can handle, 
they will handle, which is just talking to an administrative 
official or giving legal advice. When it comes to very 
important cutting-edge work, they will then contact the lawyer.
    Ms. Woo. Actually, I think Chris would probably be able to 
speak more in detail about this, but there is a whole growing 
body of women's studies in departments and schools around the 
country and that is definitely a result of the Fourth World 
Conference on Women, and a result of the various United States 
and Chinese 
exchanges. That group of very active women has been pushing 
Chinese reforms for greater protection of women's rights.
    Ms. Gilmartin. Yes. To add a little bit more besides the 
women's study centers, there are also hotlines in the large 
cities that have been very effective. Sometimes they have one 
specific day a week where they just deal with legal issues 
regarding women, and they have legal specialists on board.
    They then will publish some of the most interesting issues 
that they're dealing with so that there will be a great deal of 
dissemination of some of these cases.
    I think it is also important to talk about the role of the 
Ford Foundation, too, in terms of providing support for legal 
knowledge being disseminated. At Wuhan University, for 
instance, a very 
important legal center was set up.
    Lawyers were paid to provide services free to women. I 
spent a lot of time talking to some of those lawyers about the 
kind of cases that they took up that never would have been 
handled if that service had not been available.
    Ms. de Silva. I just want to add to that. There is, as she 
pointed out, a burgeoning feminist consciousness in China which 
I find is very exciting. Right now, the Ford Foundation is 
funding a women's rights research center at the Chinese Academy 
of Social Sciences.
    As a seminal project of this group, we are taking 
international and American feminist theory experts to teach a 
course on gender and the law. That will feed into actualizing 
some of these laws and theories because it is going to be 
feminist theory as put into practice in China. That is going to 
be very exciting.
    As she pointed out, hotlines are very important. The 
hotlines run by these women's organizations are more accessible 
than the 110 hotline that the police use, and also law schools 
increasingly are building legal aid clinics as one way of 
training their lawyers and providing legal services.
    Ms. Worden. I have a quick follow-up. Besides the All China 
Women's Federation, I am wondering if there are legal aid 
centers, legal aid clinics, or NGOs working on women's rights 
in western China, for example, in Tibet and Xinjiang.
    Ms. Woo. Yes, that is hard. Well, I do not know. You raised 
a very, very good point. A lot of research generally focuses in 
the eastern part of China and the more accessible areas. For 
the west, I cannot give you particular data. I do know that law 
schools, say for example in Sichuan, have very active legal aid 
clinics. Also, in Guizhou as well. So there are legal aid 
clinics affiliated to law schools in the western area.
    But, overall, however, the western area falls behind the 
coastal region in terms of the poverty index. I think the 
average person earns half of what people in the east would 
earn, so the availability of legal aid there is much, much 
less.
    Mr. Foarde. Let me recognize Selene Ko, our senior counsel 
for commercial rule of law development.
    Ms. Ko. Professor Woo discussed in her presentation the pay 
disparity and the lack of female managers in the private 
sector, as well as the pressure to stay home when women leave 
the state-owned enterprises in the public sector.
    Given the rapidly developing private sector in China, are 
there any official or unofficial efforts that are aimed 
primarily at improving women's status in the private sector in 
general, or specifically at improving their availability to 
take advantage of this growing sector of the economy? This is 
for any of you to answer. Thank you.
    Ms. Woo. I know a little bit about it. I cannot profess to 
be an expert in this area, but I know of some programs out in 
the poorer regions, where the government is doing what the 
World Bank has done in many poverty-stricken areas, which is to 
give what is called ``micro-enterprise credits'' to women.
    But, also, they would sometimes tie it to fertility 
policies. That is, you could get a credit if, in fact, you are 
following the family planning policies. So, the state is 
benefiting, and in the eyes of many women, too, that they have 
family planning, as well as some micro enterprise credits. It 
has been fairly successful. But, again, I do not know it very 
well, so I cannot profess to be an expert in that.
    Mr. Foarde. Keith Hand is another senior counsel, who works 
on national level legal reform issues.
    Keith.
    Mr. Hand. My question is really to the whole panel. I would 
like to get your sense for how accurate the Chinese media is in 
reporting on women's issues, and how much latitude the 
authorities tend to give the media, and also NGOs, to 
aggressively report on these issues.
    Ms. de Silva. I think most of the women's rights advocates 
in the women's rights organizations that we work with, both in 
Beijing, in Hebei, in Hubei, and in Hunan, all use the media to 
their advantage. They actually have learned to manipulate the 
media to their advantage.
    We have heard of cases where the women's rights lawyer will 
take the newspaper with them when they go to interview the 
client, and that has worked successfully in most cases.
    There are a couple of cases where the over-interference of 
the media has resulted in decisions that have not been always 
fair to the woman, just because the courts have seen the press 
coverage as interference or meddling with the court and judges 
have thought the stories are overly harsh or overly critical. 
But, overall, the media has been a very powerful tool in 
advancing women's rights at different levels.
    One issue that I wanted to talk about is that there is a 
lot of exciting advocacy work going on in the area of battered 
women and self-defense, where women's rights advocates are 
using cutting-edge theories that have resonated in the United 
States and in Canada in very creative and localized ways.
    For instance, the battered women's syndrome, the learned 
helplessness theories all grew here in the United States. But 
they have been identified in China, where Chinese attorneys are 
using a gender-neutral critique to look at the self-defense of 
provocation, and saying that women and men think and act 
differently.
    So provocation, which demands that the threat be imminent, 
is really unfair to women. So, they are using some of the 
critiques and the discourses that have grown and have had 
success in this part of the world in a very creative, localized 
way.
    Again, it is the tip of the iceberg. I am not trying to 
maintain that this is happening all over China. But there is 
this kind of very sophisticated thinking that is developing and 
being made use of in China. The media is using this, too. I am 
coming to the media. Yes. So the media is publicizing these 
creative advocacy decisions.
    Ms. Woo. The media is interesting in China because every 
time I open up the ``Zhongguo Fazhibao,'' which is the China 
Legal News, or even Women in China, I would see stories about 
the ``Qinguan,'' the wonderful judges who acted judiciously to 
protect women's rights.
    So, in part, the media is one way of advocating women's 
rights, but also advocating for the courts, as a kind of 
propaganda for the state of the importance or the legitimacy of 
the courts.
    One thing that the media does that I find very exciting is 
that it will conduct investigative reporting on local 
officials. I am sure, in your prior panels, you have focused on 
this issue, that China is a huge country and that the central 
government is having a hard time keeping abreast of local 
provincial problems.
    Sometimes when litigants and women have problems getting a 
fair shake in the local courts, they will go the media and 
national attention can sometimes bring correct results.
    Ms. de Silva. Given that there is no system of precedent in 
China, I think the media is a very good way of educating 
people.
    Mr. Foarde. Susan, do you have a final set of questions for 
our panelists?
    Ms. Weld. I do.
    Mr. Foarde. We are running out of time, but I am sure you 
have a question or two, so please go ahead.
    Ms. Weld. This is something I have been curious about for a 
long time. It is really the balance of power inside the hu 
unit. In many instances in the rural areas, land rights are 
owned by the hu, or household.
    Who really controls the economic nut of an agricultural 
family? Who controls it? Are there any laws that reach inside 
the household to see that women get their fair shake in that 
sort of a situation?
    Ms. Gilmartin. What I am aware of is very different 
patterns in China. In some areas, men are totally out of 
agriculture. In other areas, they pretty much dominate 
agriculture, so you are going to see different patterns there.
    What women report a lot of times is that the 
decisionmaking--it is not the legal rights, but the 
decisionmaking--around the land often is male, even if they are 
doing most of the labor. So, when women are working the land, 
it does not necessarily mean they are in full control in 
deciding about those situations.
    I just have not read that much--maybe Margaret has read 
more--where people have gotten to look at some of the legal 
issues in terms of land use and women going to court. I just 
have not seen anything on this.
    Ms. Woo. In terms of land use rights, I have seen some 
cases in which women tried to sue to get their rural land 
rights recognized as a collective body. It is often difficult 
for rural women, uneducated rural women, to act individually to 
challenge an authority like the village head, or challenge the 
authority of the household, to recognize their rights. 
Collective action actually has been quite useful for women in 
that regard.
    Mr. Foarde. We have got some time. Do you have another one?
    Ms. Weld. I get to go further! It seems to me from your 
testimony that one problem is bargaining power. In order to 
solve problems of bargaining power for women, especially in the 
rural areas, collective action, as you said, Margaret, is one 
way.
    But what are the other ways? What other kinds of 
organizations or entities can put their thumb on the balance of 
power in favor of women so that they can begin to get their 
rights under law, 
domestic law, or international conventions?
    Ms. Woo. Well, actually, getting back to the Women's 
Federation, I would encourage some coordination with the 
Women's Federation because they have changed so much, I think, 
in the last 10 years.
    But from the lawyers that I have talked to, when the 
Women's Federation gets involved in the litigation, if they 
actually send a representative to court, the judges will 
listen. So the Women's Federation has the potential to 
transition into being advocates for women.
    Ms. Weld. So for this Commission, what does that suggest?
    Ms. Woo. For the Commission?
    Ms. Weld. Yes.
    Ms. Woo. In general, I certainly would encourage greater 
coordination, greater contact, and greater support. So, if it 
would mean either funding or supporting groups in the United 
States that can work with both the Women's Federation as well 
as more independent women's groups in China, that would be 
terrific.
    I guess my basic point is not to leave the Women's 
Federation out of the picture. Oftentimes, the tendency is to 
say, we have got to promote civil society in China, that trade 
unions, and the Women's Federation, are really arms of the 
state, and so we really do not want to deal with them. That 
would really, I think, give the Women's Federation short 
shrift.
    Ms. Gilmartin. I also would like to see creative ways of 
funding more research out of the women's study centers at 
universities because the way that these women's studies center 
really exist is primarily through research and only 
secondarily, if at all, through teaching women's studies 
curricula. Funding obviously is highly competitive for any 
research project.
    I do feel that finding ways of making more funds available 
for these type of projects, which they would be very interested 
in undertaking, not only brings more knowledge into public 
awareness, but I think in so doing helps a variety of 
government and NGO agencies to be much more alert and cognizant 
of these issues.
    Ms. de Silva. A very active women's rights organization in 
Beijing has recommended introducing gender equality into the 
school curriculum, and I find that a very interesting 
proposition, to start them on it early.
    Another recommendation that has been made to us by both the 
NGO sector, the truly independent women's rights groups, as 
well as the Women's Federation groups, is to network locally 
among these groups. That is important.
    They do not speak to each other very well, so it is very 
important to find a mechanism to bring these groups together. 
One program that we hope to implement at the end of the second 
phase of our program is to have this networking conference 
where you get independent advisors, and more Women's Federation 
cadres to come together and think of these common issues. There 
is no doubt that they are all sincere about their commitment to 
these issues. It is a different approach.
    Ms. Woo. Just to reemphasize, the focus definitely needs to 
be at the local level as opposed to the national level. I think 
the national level, you would tend to get more of the status 
quo.
    So, in other words, it is great to have coordination 
between the truly independent NGOs and the Women's Federation, 
but some of the more exciting things that I have seen happen at 
the local level.
    Ms. de Silva. That is so true. When you go down to the 
grassroots level, there is no difference between the 
independent voice and the voice of the Women's Federation 
cadres, because they get that authenticity, get that passion 
for the work that they are doing and the use of law and 
processes.
    Mr. Foarde. We have come to the end of the time we have 
today, since we have to give up the room to another group.
    On behalf of the Members of the Congressional-Executive 
Commission on China, I would like to thank Margaret Woo, 
Rangita de Silva, and Christina Gilmartin for spending time 
with us this afternoon and sharing your expertise with us.
    I would like, also, to remind everyone here that the next 
issues roundtable will be 2 weeks from today. It is an open 
forum. An announcement will be going out later in the week 
about signing up, and the rules. But it will be at 2 p.m., 
again in this room, 2200 here in Rayburn.
    Thank you all very much for coming. Thanks to our panelists 
and to our staff colleagues for participating. We will gavel 
this issues roundtable to a close. Thank you.
    [Whereupon, at 3:32 p.m. the roundtable was concluded.]
                            A P P E N D I X

=======================================================================

                          Prepared Statements

                              ----------                              

                 Prepared Statement of Rangita de Silva

                           february 24, 2003
                              introduction
    Over the last few years The Spangenberg Group under the auspices of 
the United States Department of State\1\ and the Ford Foundation has 
conducted research, provided training and technical assistance to legal 
services organizations and women's studies centers in China, 
particularly on issues concerning low-income women. Our programs are 
unique in that they are aimed at putting women's rights into action in 
concrete ways. Working with local programs, we identify areas of 
women's rights reform, which are pushing the boundaries of the law.
---------------------------------------------------------------------------
    \1\ Future projects will be funded, in part, through grant Number 
S-LMAQM-03-H-0009. The opinions, findings and conclusions or 
recommendations expressed herein are those of the Author and do not 
necessarily reflect those of the Department of State.
---------------------------------------------------------------------------
    Although, facially equitable laws prohibiting discrimination in 
employment, property ownership, inheritance, marriage and divorce have 
been enacted,\2\ the difference between equality in law and equality in 
fact, lies with the implementation of those laws. The lack of 
corresponding enforcement mechanisms is a major drawback in the 
effectiveness of these laws.
---------------------------------------------------------------------------
    \2\ Women in the People's Republic of China enjoy equal rights with 
men in all spheres of life, in political, economic, cultural, social, 
and family life. See P.R.C. Const., arts.33, 34, 48,49 and The Law on 
the Protection of Women's rights and Interests ( LPWRI) of 1992. The 
LPWRI reflects China's desire to fulfill its state's parties 
obligations under the Convention on the Elimination of All forms of 
Discrimination Against Women ( CEDAW). Women enjoy equal rights to 
employment with men. See Labor Act of the People's Republic of China, 
ch.11, Sec.13 (1994).
---------------------------------------------------------------------------
    I wish to speak to you about some areas of the law on labor, 
violence and property that deeply impact women in China, the strengths 
and weaknesses of these laws and the efforts made by some creative 
women's rights advocates, and organizations to overcome the challenges 
posed by some of these laws. Finally, how with the support of the State 
Department and the Ford Foundation, The Spangenberg Group has been 
assisting in some of these programs.
                            women and labor
    Although, since China opened its doors to a program of economic 
reform, there is much progress for women seeking employment outside the 
home, many women find that the very laws designed to protect them 
subject them to discrimination and disadvantage in the labor market.\3\ 
It is evident that by emphasizing the biological differences between 
men and women, the law limits women's employment opportunities, and 
places an added burden on employers who hire women. An emphasis on 
women's unique reproductive capabilities, and their roles as child 
bearers and rearers have the potential to perpetuate gender segregation 
in the workplace and relegate women into lower paying, traditionally 
female tasks.\4\
---------------------------------------------------------------------------
    \3\ Women's employment opportunities are in certain instances 
limited by laws that prevent them from performing certain physically 
arduous jobs. Such legislation include generalized 
statutory laws, specific regulations, local regulations, and 
administrative rules promulgated by government departments. Women are 
altogether prohibited from engaging in work that is considered 
particularly hazardous, such as mining on hills or underground, 
scaffolding work, work that involves logging timber, high altitude work 
that entails continuously carrying the weight of twenty kilograms or 
carrying over twenty-five kilograms at different intervals, and other 
work categorized as physically intense. See Labor Act of the People's 
Republic of China, Ch. VII, arts. 59-63 (1994). Further, women laborers 
who have been pregnant for 7 months should not be arranged for night 
shifts or overtime. If women find it difficult to work, they can apply 
for prenatal leave. The salary during this period should not be below 
75 percent of the standard salary. Furthermore, pregnant women who are 
unable to complete the original work can on orders lighten their work 
assignments or be asked to be assigned to other work. See State Council 
of the People's Republic of China, Provisions of Labor Safety and 
Health for Women Workers, art.7 (1988). Regulations have also been 
promulgated to provide special on-the-job facilities for women, 
including health care rooms, anterooms for pregnant women, feeding 
rooms, nurseries, and kindergartens. See State Council of the People's 
Republic of China, Provisions of Labor safety and Health for Women 
Workers, art. 11 (1988). The law also directs special attention to 
women's sexuality and the gendered differences between men and women. 
Under Article 60 of the Special Protection for Female Staff and Workers 
and Juvenile Workers, ``It is prohibited to arrange for female staff 
and workers during their menstrual periods to engage in work high above 
the ground, under low temperature, or in cold water or work with Grade 
111 physical labor 
intensity as prescribed by the State.''
    \4\ The State Council has promulgated the Regulations on the 
Arrangement of Redundant Staff in State-Owned Enterprises, which allows 
employees at state-owned enterprises to apply for 
resignation or early retirement or to terminate labor contracts by 
proper procedure. These regulations also provide for a 2-year leave of 
absence for female employees during pregnancy or breast feeding. By 
giving women the option of early retirement or a 2-year leave of 
absence after childbirth, employers can request that women workers 
retire early. Further, female workers are 
required to retire at age 50 (certain female government officials 
retire at age 55), while male workers are allowed to remain employment 
until age 60.
---------------------------------------------------------------------------
    On the other hand, while greater mobility has resulted in greater 
opportunities for women, many migrant women workers suffer exploitation 
and discrimination.\5\ Further, laws that might improve working 
conditions\6\ and provide work-related benefits, are under-enforced and 
the capacity to monitor and enforce these laws is weak.\7\
---------------------------------------------------------------------------
    \5\ A case which illustrates this is the case of Ms. He and 24 
Migrant Workers. Ms. He and 24 other migrant women workers from Laishui 
County, Hebei Province, China, worked for Beijing's ``H'' garment 
factory from 1995 to 1997. The women often worked overtime under 
extremely harsh conditions. They were routinely beaten and insulted by 
their bosses. When wages were not paid at the end of each month, some 
of the women complained to the district labor supervisory committee. 
The committee took no action. A group of women workers then petitioned 
governmental departments for aid. When the Centre for Women's Law 
Studies and Legal Services of Peking University took over the case, the 
lawyer handling the matter contacted the department in charge of ``H'' 
Garment Factory and its controlling company several times. The 
department responded that, although it is a state-owned enterprise, the 
garment factory is operated by a private party to whom the state-owned 
enterprise contracted the business. When the lawyer contacted the 
manager of the factory, he challenged the women to bring suit in court. 
When the lawyer attempted to initiate a suit in court, the court 
informed her that she must first bring her labor dispute to the Labor 
Arbitration Department. When the lawyer petitioned the Labor 
Arbitration Department, however, she was told that the issue of payment 
must be settled in court. When the lawyer returned to court she was 
told that this issue of payment for labor was not clearly defined in 
the law and that there was insufficient legal basis to file the case. 
It was only after the intervention of higher authorities that the 
Arbitration Committee of the Municipal Bureau of Labor agreed to hear 
the case. Throughout the process, legal representatives for the garment 
factory failed to appear. In the face of the defendants' open defiance 
to the law, the Arbitration Committee passed a verdict by default. The 
Committee held that the factory's controlling company should pay 
160,000 yuan to the women workers in unpaid wages. The factory then 
refused to comply with the verdict. The legal aid lawyers persuaded the 
court to reopen the case and used the media to gain public support. 
Ultimately, the migrant women workers were awarded 170,000 yuan as back 
wages and economic compensation. It took three years to completely 
resolve the case. See Centre for Women's Law Studies and Legal Services 
of Peking University, A Research Report of the Legal Aid Cases 
Undertaken by the Center for Women's Law Studies and Legal Services 
Under the Law School of Peking University 9-11 (1996-2000).
    \6\ The employer is prohibited from terminating the contract of 
women workers during pregnancy and nursing. Law Safeguarding Women's 
Rights and Interests of the People's Republic of China, ch. IV, art 26 
(1992). This is further emphasized in regulations issued by the Labor 
Department: `` The labor contract with women employees should not be 
terminated during their pregnancy, maternity leave and breast feeding 
period even though the contract has matured. Instead the contract 
should be prolonged to the end of the breast feeding period.'' Ministry 
of Labor of the People's Republic of China, Response to the Termination 
of the Labor Contract with Women Employees During their Pregnancy, 
Maternal leave and Breast Feeding Period in the Foreign Investment 
Enterprises, No.21, art.4 (1990). The Labor Law of China provides that 
all laborers in enterprises within the nations boundaries enjoy 
reproduction insurance according to law as long as they have signed a 
labor contract with the employers. See Labor Act of the People's 
Republic of China, ch. IX, Sec.73 (1994). Further, every female 
employee shall be entitled to leave after childbirth for a period of 
not less than 90 days. Id at ch. VII, sec. 62 (1994). 
Further regulations have been promulgated to provide special on-the-job 
facilities for women, including health care rooms, anterooms for 
pregnant women, feeding rooms, nurseries, and kindergartens. The labor 
law also provides special consideration for pregnant or lactating 
women. For example, the time of ante natal examination of pregnant 
women employees should be treated as work time and employers should 
arrange for some rest time for pregnant employees during work time, and 
breast feeding mothers should be given thirty minutes for breast 
feeding twice a day. An additional thirty minutes will be added during 
the break for each baby. The time spent on breast feeding and travel 
time to the nursery should be treated as work time. See State Council 
of the People's Republic of China, Provisions of Labor Safety and 
Health for Women Workers, art. 9 (1988). Also, a pregnant woman worker 
may receive prenatal examination during her working hours and this time 
spent on the examination will be included as time spent on work. Id at 
art.7. Apart from the 90 days of maternity leave, 15 more days will be 
added for anyone who has a difficult labor. Id.at art.8. The unit may 
also assign a pregnant woman worker to any physical work falling within 
the Grade Three level of physical intensity as stipulated by the State. 
The work hours of a pregnant woman worker cannot be extended, nor can a 
woman over 7 months pregnant be allotted night work. Based on the 
hospital recommendations, the work unit should reduce the intensity of 
labor performed by pregnant women workers. Women workers over 7 months 
pregnant must be given adequate rest during the work day. Id. at art 7.
    \7\ Furthermore, private enterprises adopt rules known as rules of 
the enterprise, which often override Chinese labor legislation and deny 
payment of social insurance benefits. Migrant women often face greater 
exploitation, including unpaid overtime and unsigned contracts. 
Consider the following case: `` Starting from 1995, 36 women peasant 
workers came in succession to work in a certain fur processing factory, 
and signed work contract separately with the factory. In 1996, they 
signed another work contract with the factory collectively, on a term 
of 5 years. The contract would expire on December 1, 2000. On August 5, 
1998, the factory unilaterally terminated the work contract, with the 
reason that the factory had been adversely affected by the 
macroenvironment of the national economy, and there was a drastic 
decrease of the production materials and a redundancy of workers. As a 
result there was a serious problem in the management of production. In 
order to protect the employment of urban workers, the factory decided 
to terminate the work contract with peasant workers. According to the 
number of years from the time when they became contract workers to the 
time when their contract was terminated, the factory would pay an extra 
months wage for each full year to the women peasant worker as 
compensations. While the women peasant workers were still working in 
the factory, the factory had deducted a certain amount of money from 
their monthly wages on the ground of paying for the insurance of their 
old-age pensions, unemployment insurance, and medical insurance. But 
the factory did not really pay this amount of money for the workers 
insurance, but saved it for other purposes. After the termination of 
the work contract, the factory returned to the women peasant workers 
the deducted money for the insurance of old-age pension and 
unemployment insurance, but did not return the deducted money for 
medical insurance. The 36 women workers did not accept the factory's 
unilateral decision to terminate their work contract, and in August 
1998, they made a petition to the Labor Arbitration Committee. As 
attorney for the women workers, the lawyer from the Centre proposed to 
the Labor Arbitration Committee that it was illegal for the factory to 
terminate unilaterally the work contract and to pay the economic 
compensation according to the number of years since they had become 
contract workers. The factory should pay the compensation according to 
the number of years since they had actually worked for the factory. It 
was a disguised form of embezzlement if the factory refused to return 
to them the deducted money meant for medical insurance for the women 
workers. After the hearing, the Arbitration Committee for Labor 
Disputes supported the demand of the women workers, and passed a 
verdict on October 29, 1998, ordering the factory to pay another 40,000 
odd yuan to the 36 women workers as their economic compensation. But 
the verdict did not support the women workers demand for various social 
insurance benefits. Thus with the termination of their work contract, 
the women workers had lost their various social insurance benefits.'' 
See A Research Report of the Legal Aid Cases Undertaken by the Center 
for Women's Law Studies and Legal Services Under the Law School of 
Peking University ( 1996-2000).
---------------------------------------------------------------------------
                           women and violence
Domestic violence
    The revisions made to the Marriage Law in 2002 are among some of 
the most significant changes made to the law in China.\8\ These 
revisions include domestic violence as a ground for divorce and allow a 
spouse in a divorce proceeding to seek compensation from the other 
party if he/she is at fault due to certain specific grounds including 
domestic violence.\9\ The re-introduction of fault into divorce is seen 
as an attempt to grapple with the feminization of poverty on divorce.
---------------------------------------------------------------------------
    \8\ On April 2002, the Standing Committee of the Ninth National 
People's Congress, China's highest legislative body passed the long-
debated and much awaited amendments to the Marriage law.
    \9\ Civil compensation for fault can be awarded if there is a 
finding of: bigamy, co-habitation with another person, subjecting 
another to domestic violence and abandonment of family members. See 
Article 46 of the Revised Marriage Law.
---------------------------------------------------------------------------
    Despite these groundbreaking reforms in the law, Chinese women's 
rights advocates have argued that in the absence of a clear definition 
of domestic violence, it will be very difficult to institute an action 
for civil compensation for domestic violence. Domestic violence is not 
broadly defined to cover threats of violence to the woman and/or her 
family members, psychological damage, sexual abuse and rape within 
marriage. Also, the question arises whether a claim for compensation 
can be made during the existence of marriage.\10\ Due to the discretion 
left to the judges, similar cases can be decided differently.
---------------------------------------------------------------------------
    \10\ Even though civil compensation for abuse is available at 
divorce, it is not clear whether it is available during the existence 
of a marriage. Due to efforts of legal services lawyers there is at 
least one instance in which a court has granted compensation during an 
ongoing marriage. Zhang Xiulan had suffered severe burns when her 
husband Wang had poured gasoline on her body and lit it. When Zhang's 
elder sister reported the case to the local security authority, the 
local authority refused to file the case calling it a family matter. 
The court on the other hand requires forensic authentication of the 
burns in order to file the case. With the cooperation of the women's 
federation of the district and the efforts of the legal services lawyer 
from the Beijing Centre, the authentication was processed. On the basis 
of this, a public prosecution was initiated and the legal services 
lawyer instituted a civil suit for compensation for physical damages. 
At the first instance, the court dismissed the civil suit on the basis 
that the parties were still married and civil compensation can be 
awarded only at divorce. After much negotiation, the judge awarded 
80000 yuan to Zhang by way of compensation. This is one of the first 
known awards of this kind. See Report and Summary in Respect of the 
Sub-Project of Legal Assistance Against Family Violence. Centre for 
Women's Law Studies and Legal Services of Peking University, July 2002.
---------------------------------------------------------------------------
    Women also find it difficult to meet the high standard of proof 
required under the criminal law to hold batterers criminally 
responsible. In order to invoke Article 260 of the Criminal Law on 
Crimes Disrupting Marriage and Family, a woman has to prove that the 
crime was particularly ``evil'' and the abuse was ``continued and 
consistent.'' \11\ On the other hand the crime of ``intentional 
injury'' \12\ requires the forensic authentication of the injury and 
that the injury amount to at least a ``flesh wound.'' In the absence of 
a clear definition of what constitutes domestic violence, it is most 
often interpreted as an injury that results in severe bodily harm, 
broken limb, loss of eyesight etc. Most courts and prosecutors will not 
address what is considered a minor physical injury as domestic 
violence. Another reason why the revisions to the marriage laws might 
remain largely symbolic is the fact that the public security bureaus 
often hesitate to intervene in family disputes.\13\ Thus, without 
corresponding intervention procedures to make it mandatory for public 
security personnel to intervene in domestic violence issues, it will be 
very difficult for women to gather forensic authentication and proof of 
domestic violence, in order to seek protection during marriage or civil 
compensation at divorce.\14\
---------------------------------------------------------------------------
    \11\ In a certain case, 13 instances of abuse during a 20-year 
marriage was considered insufficient to prove a crime of evil. The 
court made the adjudication of the first instance, deeming, ``the 
private prosecutor and the accused have been married for over 20 years 
and often quarreled because of their different natures. The fact that 
the accused beat the private prosecutor 10 times has been proved. But 
the assault and battery of the accused occurred only by accident, it 
was not of regularity, continuity and consistency and there was a good 
reason for it. The accused had no intention to abuse the private 
prosecutor. Thus, the conduct of the accused has not constituted the 
crime of abuse.'' See Report and summary in respect of the sub-project 
of legal assistance against family violence. Centre for Women's Law 
Studies and Legal Services of Peking University, July 2002.
    \12\ Article 234 of the Criminal law of PRC.
    \13\ ``Ms Wei , female aged 34, physically and mentally abused by 
her husband during the dozen years of their marriage. On September 18, 
1998, after a dispute between the two, the husband poured gasoline on 
her body and lit the fire, with the result that several parts of Ms. 
Wei's body and face were severely burned. After this incident, the 
elder sister of Ms Wei reported the case to the local public security 
authorities, but the latter refused to take this case, on the ground 
that it belonged to the category of family dispute. . . . After 
accepting her request for legal aid services, the Center's lawyer went 
to the jurisdictional police station to report the case, and pointed 
out to them that the nature of this case had already formed the crime 
of intentional injury, and it had brought about serious consequences. 
The police station could not just reject the case on the ground that a 
family dispute was beyond the limit of legal restraint. Yet people at 
the police station still argued that if her husband had been arrested, 
who would pay the hospital bills for her medical treatment? With this 
as a pretext, the police station still refused to make necessary 
investigation of the case. With the help of the district federation of 
women, the lawyer made an application to Beijing Municipal Forensic 
Institution for Scientific and Technological Appraisals, to obtain a 
forensic appraisal of the degree of Ms Wei's injury and disability. The 
appraisal concluded that 30 percent of Ms Wei's face, upper limbs, and 
torso had suffered level 2 or level 3 severe burns. About 10 percent of 
her body had suffered level 3 severe burns. The degree of injury was 
classified as that of serious injury. With this forensic appraisal, the 
lawyer went to the jurisdictional police station again to demand the 
law enforcement authorities to take forcible measures against the 
perpetrator of this crime. Yet the police station was still indifferent 
to this case. They asked the lawyer instead to look for a witness, and 
when the lawyers found the witness, they again laid aside the case, on 
the ground that the person in charge of the matter was absent. As a 
last resort, the lawyer reported the case to the District Bureau of 
Public Security. Under the latters supervision and urge, the 
jurisdictional police station eventually arrested the husband of Ms 
Wei, and filed this case for investigation and prosecution.'' See A 
Research Report of the Legal Aid Cases Undertaken by the Center for 
Women's Law Studies and Legal Services Under the Law School of Peking 
University (1996-2000).
    \14\ Many women's rights advocates and women's legal services 
lawyers in China have drawn attention to the need to promulgate special 
sanctions and enforcement mechanisms such as restraining orders and 
mandatory arrest to control family violence. See Report and Summary in 
respect of the sub-project of legal assistance against family violence, 
Centre for Women's Law Studies and Legal Services of Peking University, 
July 2002; Summary of the Conference on Combating Domestic Violence 
against Women and the Commemoration of the Second Anniversary of the 
International Day for Elimination of Violence against Women, China Law 
Society. Certain provinces such as Shaanxi Province and Hunan province 
have passed innovative laws to address family violence. Shaanxi 
province has passed the Methodologies of the Implementation of the 
LPWRI and Hunan Province has passed the Decision to Protect and Stop 
Family Violence which includes sexual abuse as a form of domestic 
violence.
---------------------------------------------------------------------------
Marital rape
    The Chinese law does not expressly recognize or exclude marital 
rape.\15\ There is a general recognition that where sexual intercourse 
occurred without the consent of the woman, (1) in forced or purchased 
marriage, (2) during separation, or (3) after an application for 
divorce has been filed, it could amount to rape or a crime of 
intentional injury.\16\
---------------------------------------------------------------------------
    \15\ Article 236 of the Criminal law states: (1) Whoever by 
violence, coercion or other means rapes a woman involving one of the 
following circumstances is to be sentenced to not less than 3 years and 
not more than 10 years of fixed-term imprisonment: (a) rape a woman or 
have sexual relations with a girl where the circumstances are odious; 
(b) rape several women or have sexual relations with several girls; (c) 
rape a woman in turn with another or more persons; (d) cause the victim 
serious injury, death or other serious consequences. (2) Whoever has 
sexual relations with a girl under the age of 14 is to be deemed to 
have committed rape and is to be given a heavier punishment.
    \16\ Some scholars have recognized marital rape in specific 
instances, for example, when the husband, (1) forces wife to have sex 
with others; (2) aids and abets others in raping wife; (3) rapes his 
wife under mistaken identity; and (4) when husband and wife and living 
apart or in the process of divorce. Theory and Practice of Protection 
of Women's Rights and Interests in Contemporary China, Investigation 
and Study on the Enforcement of U.N. Convention on the Elimination of 
all forms of Discrimination Against Women in China. The Center for 
Women's Law Studies and Legal Services of Peking University, at 468.
---------------------------------------------------------------------------
                            property rights
    The law provides that during the subsistence of marriage, neither 
side can transfer property without the consent of the other party.\17\ 
However, often in cases involving domestic violence or adultery leading 
to divorce, spouses in China attempt to transfer property to a third 
party, so as to avoid equitable distribution of property.\18\ Many 
women find it difficult to trace the illegal transfer of property made 
by their spouses. Married women are frequently unaware as to the full 
extent of their husband's income or property. Given certain procedural 
difficulties, it is very difficult to gather real evidence on property 
transfer or compel witnesses to testify as to concealed property. The 
challenges surrounding proving the ownership or concealment of property 
constitutes an enormous burden to women in China.
---------------------------------------------------------------------------
    \17\ According to Article 47 of the Revised Marriage Law, during 
the subsistence of marriage, neither side can transfer property without 
the consent of the other party. Further, if a party transfers property 
held in common to a third party, such transfer is invalid. If the third 
party was acting in good faith, the spouse transferring property should 
compensate the other spouse for losses incurred. Further, Article 102 
of the Civil Procedure Law provides that, ``The side who has illegally 
concealed, transferred and refused to hand out the shared properties of 
both sides, or illegally sold or destroyed the shared properties should 
be designated a smaller share or even no property.''
    \18\ Ms. Gao and her husband got married in 1981. At the time they 
were both ordinary workers. In 1988, Mr. Gao went into business and 
made a success of it and amassed a lot of money and private property. 
As his wealth grew he began adulterous relationships with other women. 
Even though Mr. Gao told Ms. Gao several times that they had a million 
yuan in savings, he never told her where this was money was saved. 
Despite his wealth, Mr. Gao was very stingy toward his wife and child. 
However, Ms. Gao suspected that he spent lavishly on his extra marital 
affairs. When Ms. Gao confronted him with this information, he beat her 
savagely. In fear, Ms. Gao and the child went to her parents home. 
While she was at her parents, Mr. Gao filed for divorce. When Ms. Gao 
visited her husband's office to ask him for child support, by chance, 
she found a contract for a transfer of a restaurant owned by them. She 
sought advice from a legal services organization to seek equitable 
division of property. See Centre for Women's Law Studies and Legal 
Services of Peking University, A Research Report of the Legal Aid Cases 
Undertaken by the Centre for Women's Law Studies and Legal Services 
Under the Law School of Peking University (1996-2000).
---------------------------------------------------------------------------
Distribution of property at divorce
    Despite provisions in the law protecting women's property 
rights,\19\ the reality is that, property division on divorce will 
depend largely on availability of housing units. Frequently, in present 
day China, women are faced with the untenable situation of sharing a 
bedroom in the ex-husband's apartment.\20\ This can and has caused many 
serious problems such as increase in the incidents of domestic 
violence. Sometimes sharing housing with a former spouse is allowed by 
the court, as temporary housing for a stipulated period of time or 
until the woman remarries.\21\ Further, the Supreme People's Court has 
regulated that a house that cannot be divided should be assigned to one 
party, and that party should compensate the other party for half the 
value of the house. Unfortunately, the reality is that a woman often 
lacks the resources to reimburse her spouse and the house automatically 
goes to the husband.\22\ As is manifest in court decisions, there is no 
uniform policy governing this area of the law.
---------------------------------------------------------------------------
    \19\ According to Article 17 of the Marriage Law properties 
obtained during the subsistence of marriage belong to both husband and 
wife. Further, according to Article 39 of the Marriage Law, at 
divorce,common property must be divided based on mutual agreement. If 
the two 
parties cannot come to an agreement, property should be divided taking 
into consideration the economic needs of women and children. Article 44 
of the LPWRI provides that at the time of divorce, husband and wife 
shall divide their jointly owned house in accordance with their 
agreement. If the parties fail to reach an agreement, the people's 
court shall pass judgment in accordance with the principle of giving 
favorable consideration to the wife and children. The Supreme Court has 
also stipulated certain considerations to be taken in to account on 
distribution of property. These considerations include, women and 
children's interests, fault of a spouse, whether a spouse is guilty of 
illegal transfer of property, housing considerations of the parties and 
child rearing responsibilities. See Problem No. 3 of Solutions to 
Several Problems Concerning the Use and Leasing of the Public Houses in 
Trying Divorce Cases by the Supreme Court. In dividing property on 
divorce, different provinces also take into consideration whether a 
woman has lost her reproductive capacity due to birth.
    \20\ Article 9 of the Supreme People's Court's Explanation of a Few 
Problems Involving the Use and Rental of Housing in Divorce Case 
Trials, 1996 provides that each party can reside in half of the public 
housing allocated by the housing unit. The following case illustrates 
the point. Ms. Z was brutally beaten by her unemployed husband during 
the period of her marriage to him. If she ever complained to him about 
his neglect of his family, the beatings became worse and Ms. Z suffered 
from severe health problems due to the beatings. Ms. Z filed for 
divorce. At the first hearing, the court gave the custody of the child 
to Ms. Z and allowed Mr. Z to remain in the two bedroom unit. Ms. Z was 
asked to find her own accommodation. A lawyer with a legal services 
organization helped her appeal this decision. On appeal, the court 
ruled that Ms. Z could remain in the larger bedroom in the apartment 
while Ms. Z remained in the smaller room. What followed was a nightmare 
for Ms. Z. her ex-husband would frequently kick the door of her bedroom 
cursing and swearing in an effort to drive her away. Since it was the 
middle of the winter, Ms. Z bore this harassment rather than be 
homeless in the winter. Things began to degenerate in this unusual 
living arrangement. Mr. Z started to let out his room for prostitution 
and boasted to the daughter as to how much he made from this trade. On 
occasion, Mr. Z would pursue his ex-wife and daughter with a knife in 
his hand and once actually wounded Ms. Z. The situation became 
unbearable and Ms Z and her husband were forced to flee the apartment. 
Ms. Z once again went to court to ask for readjustment in the living 
arrangement. After much negotiation with the housing units, the housing 
unit agreed to give Ms. Z another apartment in exchange for her former 
apartment. See A Research Report of the Legal aid Cases Undertaken by 
the Center for Women's Law Studies and Legal Services Under the Law 
School of Peking University (1996-2000).
    \21\ In cases where neither party owns a house which can be shared, 
courts have allowed the wife to live in the house of the husband's work 
unit for a maximum, period of 2 years pending divorce. In cases where 
the couple rents a house, the wife seeking a divorce has been allowed 
to remain in the housing unit if the parties have been married over 5 
years.
    \22\ Even though Article 42 of the Revised Marriage Law states that 
a party who is having problems subsisting at the time of divorce should 
be helped by the other party, this provision without any corresponding 
enforcement mechanisms remains merely symbolic.
---------------------------------------------------------------------------
Rural women's property rights
    Even though the Revised Marriage Law applies uniformly to both 
urban and rural women, rural women encounter unique challenges in 
property use and ownership that have not been fully addressed by the 
Marriage Law. Despite guarantees of equal distribution of 
``responsibility land,'' \23\ in practice, certain village committees 
will not allocate separate ``responsibility land'' to women who are 
divorced. A widow returning to her village could encounter similar 
problems. A married woman who leaves the village in common parlance is 
considered ``water splashed out'' and loses her right to the land in 
the village. In the case of migrant workers too, so long as their 
residence has not been transferred to the city, they should retain the 
right to the responsibility land in their village. However, in reality, 
women who go to work as migrant workers to the city have their land 
reallocated. Even though this is against the law, very few of those 
migrant workers are able to come back to their village in the event 
that they lose their jobs in the city.\24\
---------------------------------------------------------------------------
    \23\ See Article 30 of the LPWRI.
    \24\ Certain provinces such as Hunan Province have enacted 
legislation stipulating that when rural women marry or divorce, the 
village where their residence belongs to should allocate the relevant 
fields or mountains to them. Article 4 of the Hunan Province 
Stipulations of the Legal Rights and Interests of Women and Children.
---------------------------------------------------------------------------
                               conclusion
    Despite legal guarantees of equality, women's rights in the areas 
of marriage, divorce employment and property continue to face 
procedural obstacles. On the other hand, the changes in the law have 
not always had the desired impact on women. At the same time, a review 
of The Spangenberg Group's work in China in the last 5 years shows that 
there has been a rapid maturation and development in the area of 
women's rights advocacy in China.
    The work of some women's legal aid organizations in China has 
become a catalyst for change.\25\ These organizations have not only 
positively impacted the lives of the disadvantaged but have brought to 
the surface many issues hitherto marginalized. These issues deal with 
the exposure of traditionally silenced or ignored areas such as 
domestic violence, marital rape, sexual harassment and employment 
discrimination. The women's legal aid centers have provided a forum for 
debate and discussion on these areas of the law and have engaged in 
multifarious activities including: legal services for the poor, 
domestic violence hotlines, impact litigation, test case 
litigation,\26\ law reform efforts,\27\ training of law enforcement and 
judicial officers, community empowerment and public education 
programs,\28\ working with the media, and conducting research on 
challenges facing the enforcement of women's rights. The cases brought 
to court by these centers have formed a rich body of jurisprudence on 
women's rights litigation. Claims lost in court are still publicized 
and used to raise gender consciousness.
---------------------------------------------------------------------------
    \25\ Some of the legal services organizations like Hubei Province 
Women's Federation and the Hebei Province Women's Federation reflect 
the decentralized nature of their networks. Most of these organizations 
are so structured that complaints and concerns are first dealt with 
locally at the village and town level, then at the city/council level, 
the district level and finally at the provincial level.
    \26\ There is a growing interest in litigating issues involving 
differential treatment of men and women in employment, sexual 
harassment in employment and defending battered women charged with 
crime.
    \27\ Some of the legal services organizations have influenced 
policy and been the force behind local domestic violence legislation 
implementing the rights enshrined in the LPWRI. The Shaanxi Research 
Association for Women and Family (SRAWF) was in the forefront of 
drafting and advocating for the adoption of the Shaanxi Methodologies 
of the Implementation of the Rights and Interests on Protecting of 
Women of PRC in China. This local law gives concrete expression and 
provides enforcement mechanisms to the values enshrined in the 1992 Law 
on the Protection of Women's Rights and Interests. SRAWF first 
convinced the Shaanxi Province Women's Federation to support the 
initiative. A speech made by the leader of the Federation to the 
Standing Committee of the Provincial People's Congress was prepared by 
the Association. Soon after, Congress accepted the motion on opposing 
domestic violence made by the Provincial Federation. The next step was 
to set up a collaborative working group of legal experts and scholars 
to draft the Regulations. The draft written in consultation with 
Chinese and international legal scholars, grass roots organizations and 
women victims of domestic violence was then 
submitted to the Provincial People's Republic.
    \28\ Many rural legal aid organizations employ creative ways in 
which to create rights awareness among the community. Gender awareness 
literature distributed by vans driven around villages is an effective 
tool of information dissemination. A person with legal training 
generally travels in the van and responds to rudimentary questions on 
how to seek help in the area of domestic violence.
---------------------------------------------------------------------------
    The Spangenberg Group's seminars help women's rights advocates in 
China address the inherent duality and contradictions in some of the 
protectionist provisions of the Chinese labor laws, and we view them in 
the context of analogous labor laws in other transitional countries and 
their disparate impact on women. Our training programs focus on how to 
identify gender bias and sexual harassment in employment and how to 
challenge these discriminatory practices. Our programs identify various 
laws and regulations that prohibit gender discrimination and emphasize 
vigorous advocacy skills necessary to make novel anti-discrimination 
claims.\29\ We also draw examples from successful litigation strategies 
chartered by Chinese women's legal services organizations. Even though 
successful outcomes for struggling female workers is not common, 
significant cases taken to court by some women's legal 
services groups demonstrate how women workers after many a legal battle 
have successfully vindicated their rights.\30\
---------------------------------------------------------------------------
    \29\ Many of the legal services organizations use the cases they 
handle to study common problems concerning women. Successes in certain 
cases have been achieved only through diligent investigation and 
advocacy. These efforts include a repertoire of advocacy efforts 
including talking to witnesses, collecting documents, using the media 
to harness public support and meeting with different government 
agencies. Based on their experiences they make comments and 
recommendations to the local governments on reforms needed in the law. 
One such report called upon the Eighth National Women's Representative 
Assembly to protect the rights of women experts over the age of 55. 
Since there isn't an explicit provision prohibiting employment 
discrimination based on sex, it is difficult to launch constitutional 
challenges to certain discriminatory practices such as the differential 
retirement ages for women and men.
    \30\ Most victories in court are achieved due to unrelenting 
advocacy on the part of women's rights lawyers and legal workers. 
Sometimes, even when a major victory is won in court, follow-up 
advocacy is needed to enforce the order. The following case is an 
example of this kind of advocacy: Li, an 18 year old mentally retarded 
high school student was allegedly sexually harassed by the principal of 
her high school in Hebei Province The County Bureau of Education had 
investigated Li's allegations and confirmed the victims account. 
Tragically, Li committed suicide. The relatives of the victim sued the 
school principal in court but during the trial, the family received an 
administrative penalty from the public security authorities. At the 
direct intervention of the Ministry of Public Security the trial was 
able to continue. However, the county procutorate and the trial court 
based the case on the charge of indecent behavior instead of rape. The 
defendant received a 3 years probated sentence. Two lawyers from a 
Legal Aid Centre visited the county to investigate this case. The 
lawyers were accompanied by a journalist from China Women's Daily. The 
investigation revealed that the school principal had abused his 
authority to sexually harass a mentally retarded girl and have sexual 
intercourse with the girl. The court had dismissed the case. The court 
had also not conducted any independent investigation. Second, the 
judges reasoned that a probated sentence will allow the defendant to 
earn money to compensate the victim. The court opined that a prison 
sentence would not have made it possible for the defendant to make 
civil compensation. After much persuasion the court agreed to grant 
compensation to the family. However, 2 years after the trial no 
compensation had been paid to the family. The legal aid lawyers 
persuaded the court to reopen the case and judges agreed to make 
changes to the original verdict. See A Research Report of the Legal Aid 
Cases Undertaken by the Centre for Women's Law Studies and Legal 
Services Under the Law School of Peking University (1996-2000).
---------------------------------------------------------------------------
    Women's legal services organizations are also crafting novel 
advocacy strategies to protect women's property rights. These range 
from advising women to enter into notarized agreements with their 
husbands,\31\ so as to ensure equitable ownership of property, to 
arguing for civil compensation for fault to be awarded during an 
ongoing marriage.
---------------------------------------------------------------------------
    \31\ Li and her husband opened a factory and through hard work 
amassed much wealth. Li's husband after a few years of marriage started 
beating her and threatened to kill her several times. Li petitioned the 
court for divorce, but persuaded by her friends consented to give her 
husband another chance. Her lawyer however advised her to enter into an 
agreement with her husband whereby she would become the sole owner of 
half the property acquired during the marriage. This agreement was then 
notarized. That way Li's property rights would be protected even if she 
decided to go ahead with a divorce. See Report and Summary in respect 
of the sub-project of legal assistance against family violence, Center 
for Women's Law Studies and Legal Services of Peking University, July 
2002.
---------------------------------------------------------------------------
    In the area of domestic violence, our seminars assist women's 
rights advocates to identify some of the challenges women face due to 
gaps in the law and inaction on the part of law enforcement officials. 
Together, we look at ways in which to stretch the boundaries of 
advocacy and make women's rights and perspectives central to law 
making. In doing so, we draw examples from advocacy strategies in the 
United States, and other parts of the world. Our seminars also focus on 
how in the absence of an explicit marital rape exemption, a broad 
interpretation of China's rape laws could include marital rape. By 
looking creatively at local laws, and international norms, women's 
rights advocates in China are developing exciting and innovative 
methods of problem solving.\32\
---------------------------------------------------------------------------
    \32\ There is a growing interest among women's rights advocates on 
the application of international conventions and norms especially the 
Convention on the Elimination of Discrimination against Women (CEDAW) 
in local lawmaking and to learn from advocacy and law reform efforts 
from across the world.
---------------------------------------------------------------------------
    Women's rights advocates and lawyers in China have done much to 
advance the frontiers of the law in the area of women's rights reform 
in China. Their continuing critique of discriminatory laws and 
practices affecting women and their creative initiatives to challenge 
these discriminatory practices have brought about a transformation in 
the lives of women who seek to vindicate their rights.\33\ Even though 
much has taken place in the last few years much remains to be done. 
Women's empowerment foreshadows the transformation of a society and is 
a benchmark of a functioning rule of law. Supporting the work of 
women's rights groups remains 
critical to the further strengthening of the rule of law in China.
---------------------------------------------------------------------------
    \33\ Some of the critiques focus on the following areas and range 
from defining domestic violence as discrimination against women to 
holding the state accountable to taking all appropriate measures to 
prevent violence against women. Many of the critiques focus on the 
inaction on the part of law enforcement officials, the need for 
community education, judicial bias in decisionmaking, ``imperfect 
legislation,'' the fact that there are no explicit provisions in the 
marriage law as to compensation for psychological injury or 
compensation for family violence during the subsistence of the 
marriage. Many women's rights advocates argue that in the absence of 
legislation on domestic violence only a small portion of cases are able 
to meet the standards of slight injury or severe injury defined by the 
criminal law. ``A lot of women who have been beaten or abused by their 
husbands tend to have their cases turned down by court when the court 
feels it is groundless or difficult to accept the case.'' See Research 
Centre of Women's Development and Rights, the Northwest Industrial 
University, Challenges to Legal Treatment of Violence against Women and 
Strategies in Response. Some of the critiques also draw upon the need 
to assimilate lessons learned in other jurisdictions and the need for 
analogous injunctive reliefs and civil protection orders similar to the 
reliefs available in the United States and other jurisdictions. As 
countermeasures against family violence, the Centre for Women's Law 
Studies and Legal Services of Peking University suggests: introducing 
theories of gender equality into the school curriculum and community 
education materials; being able to suspend the theory of joint 
ownership of property and dividing the marital property in the case of 
violence in an ongoing marriage; establishing a special family tribunal 
to deal with cases of family violence; improving the availability of 
housing for divorced women; establishing social support networks for 
women victims of abuse; building a specialized cadre of lawyers able to 
handle women's rights issues; work with the media to garner support for 
victims of abuse; making available compensation for injury during the 
marriage and dividing marital property and notarizing such division so 
that women's property rights are preserved. See Report and Summary in 
respect of the sub-project of legal assistance against family violence, 
July 2002.
---------------------------------------------------------------------------
                                 ______
                                 

               Prepared Statement of Christina Gilmartin

                           february 24, 2003

 Rural Women, Marriage Migrations, and Gender Equality In Contemporary 
                                 China

    The Economic Reforms that were instituted in China in the late 
1970s have brought tremendous changes, both positive and negative for 
women. An explosion of internal migration streams of extraordinary 
proportions in China have drawn not only men, but also women. It is 
noteworthy that these women have come from a wide variety of social 
groups and from both urban and rural localities. In addition, these 
migration patterns have been characterized by a shift from a 
traditional 
family migration to the migration of unmarried women. Migration can be 
seen as a form of human agency by women who are aiming to make use of 
global social and economic transformations to improve their survival 
odds and achieve personal empowerment. However, a large segment of 
these Chinese migrant women have also faced an increasing vulnerability 
that has heightened public awareness and policy concerns.
    Much scholarly and journalistic attention has been devoted to 
Chinese labor migrations, including the experiences of women labor 
migrants (i.e., Chow, 1998 and 2002; Salaff, 2002; Tan Shen, 1994 and 
2001). This statement concerns one aspect of Chinese female migrations 
that has thus far not received much western attention: voluntary 
marriage migrations. Intertwined with both illegal marriage migration 
streams and economic migrations, this phenomenon has provided rural 
women with an important opportunity to improve their economic well-
being. However, these women also faced unusual risks, as they moved 
beyond the security network of their kinship lines, and thus had few 
resources to rely upon if subjected to difficult circumstances in their 
new communities. Indeed these marriages have been very prone to 
conflict and dissolution.
                                origins
    Women have almost always moved at the time of marriage in China. 
Village exogamy was held up as a norm and was widely followed. The 
great majority of rural women who observed the strong taboos against 
same-village marriages during the Mao period (1949-1976), however, 
married with a radius of ten kilometers, and usually in the same county 
(Gu 1991). William Lavely (1991) found that the distances a women moved 
at the time of marriage varied depending on economic factors. Wealthy 
villages were able to lure women from farther way than less well off 
localities. Moreover, those women who came from afar generally ended up 
with husbands from the poor strata of the community, indicating that 
these men were less able to attract women from surrounding villages. 
This pattern clearly revealed the existence of a marriage market even 
at a time when economic forces were weak and 
marriage decisions were greatly influenced by political factors.
    The marriage market of the Mao era was radically expanded with the 
introduction of the Economic Reforms in 1978. Women began to travel 
much larger distances, crossing county and provincial borders. Within a 
few years, some women began to venture hundreds and even thousands of 
miles in order to marry. By 1990, the numbers had reached 4,325,747, 
and these female marriage migrants comprised 28 
percent of the overall female migration in China. Although the data for 
the 2000 census has not yet been published, preliminary indications are 
that these figures have continued to climb. In contrast to the millions 
of women who have migrated to marry, few men have been involved in this 
process. The main reason for such low male participation in this type 
of migration is due to the tenacity of patrilocal marriage patterns. 
Even after the establishment of a commune system in China, government 
initiatives were unable to motivate men to undertake virilocal 
marriages. Those few men who moved to another village and took up 
residence in the homes of their wives were not accorded full rights and 
social status in their new communities.
    What kind of women migrated to marry in the first decade of the 
Economic Reform era? The great bulk of marriage migrants came from 
agricultural backgrounds. In one Jiangsu case study, 97.2 percent of 
female marriage migrants originally farmed for a living. In this 
respect they differed from female labor migrants, who according to the 
1990 census, came only somewhat disproportionately from farming and 
factory backgrounds. Marriage migrants have not, for the most part, 
been able to switch their rural residences for urban ones through the 
migration process. Their destinations have primarily been rural, in 
large part because of the limitations imposed by the hukou system of 
residence registrations. Those who have managed to enter the boundaries 
of the large metropolitan areas of Beijing, Tianjin, Shanghai, or 
Chongqing have not ended up in the urban areas, but in the outlying 
rural 
districts.
    These marriage migrations owe their existence to the sex ratio 
imbalances that exist in rural China. To be sure, the imbalances of the 
1980s and 1990s were of a different magnitude than those that have been 
produced as a result of the one-child family policy after it was 
implemented in 1979. Indeed, the 1990 census data show that the gender 
ratio of the total rural population in the 15-39 year-old group was 
relatively normal. But local women leaving the countryside to work in 
urban areas or in the special economic zones led to a sizable shortage 
of women of marriageable age in many rural communities. As a result, 
the gender rations for the unmarried rural population were adversely 
affected. In 1990, for instance, the gender ratio of Chinese rural 
unmarried people between the ages of 15 and 19 was 108.91, that is 
almost 109 unmarried men for every 100 unmarried women. In the 20-24 
age group, it was 161.97 and in the 25-29 age group, it was a whopping 
508.91. In the older age groups, there were essentially no unmarried 
women in the rural areas. In such circumstances, the prevailing bias 
against the acquisition of an ``outsider'' as a bride dissolved among 
those families who were unable to secure a local woman.
       connections with labor migrations and marriage trafficking
    The demographic data show that marriage migrations began in a 
gradual manner in the first years of the Economic Reform era. Certain 
case studies in the prosperous province of Zhejiang indicate it was 
only after 1985 that this type of migration began to develop. It 
appears that in the early years rural women were not able to overcome 
family constraints and participate in these types of voluntary marriage 
migrations. It may well be that female labor migrations helped to 
stimulate marriage migrations. As factories showed an increasing 
interest in young women migrant workers, certain social practices 
changed. We find that by 1995 all the factory girls who had migrated 
from rural areas to the urban areas of Guangdong province (near Hong 
Kong) were unmarried. This is also true for many of the export 
processing factories in the special economic zones of Shenzhen and 
Tanggu. As small companies run by local rural governments, joint 
ventures and foreign companies increasingly preferred to hire young 
unmarried female workers, the customary constraints against any type of 
unmarried female migrant began to weaken in the rural areas. This 
changed attitude may well have provided a more conducive atmosphere for 
unmarried female migration, both for the purposes of work and marriage.
    Labor migrations were intertwined with marriage migrations in other 
ways as well. Ten Mile Inn, a village in Henan, for instance, began to 
recruit Sichuan men to work in its mines because of the unwillingness 
of local people to continue such dangerous work. These Sichuan men soon 
began to arrange for their female relatives to be married into the 
families of Ten Mile Inn. By the end of 1996 there were 20 Sichuan 
brides in the community, and by 1999 the number had doubled.
    There is some evidence to indicate that illegal marriage 
trafficking may also have spurred the emergence of a legal, voluntary 
marriage migration. In the first years of China's Economic Reform era, 
alarming stories appeared in Chinese and Western newspapers about women 
falling prey to kidnappers and being sold as wives to poor farmers. 
Traffickers usually targeted women from poor rural areas who were quite 
young, unsophisticated, and easily duped. Transported hundreds of miles 
from their homes, these women found themselves imprisoned in villages 
where everyone in the community sympathized with the men who had spent 
much of their life savings to acquire these wives. Some of these women 
managed to escape, but the majority gave birth to children. At this 
time, they were deemed trustworthy and released from surveillance on 
the assumption that they would not abandon their children. Allowed to 
communicate with their distraught natal families, they slowly became 
resigned to their circumstances and no longer sought to return to their 
natal communities. In order to reduce their isolation in their new 
localities and create a more 
supportive network in an unfriendly environment, they began to 
encourage other women from their natal villages to migrate to their new 
communities. Such an enclave of Yunnan women started in Huiyang county, 
Henan in 1990. In this way, illegal and legal marriage migrations 
became intertwined. Indeed, in the minds of some scholars, women who 
had been kidnapped and forced into a marriage against their will were 
also considered to be marriage migrants. One study that was conducted 
in 1994, for instance, found that involuntary marriage migrants 
constituted 14.21 percent of the almost 18,000 female marriage migrants 
in his survey.
                              destinations
    Marriage migrations in the Economic Reform era have tended to 
follow certain distinct geographical patterns. In general, they 
originate in the poorer areas of the southwest and travel to the rural 
areas of the richer sections of the eastern coast, especially Jiangsu 
and Zhejiang provinces. As early as 1989, for instance, in certain 
areas of Zhejiang, in every 51 households there was one female marriage 
migrant. Another study found that one county in Zhejiang accepted 71 
percent of its female marriage migrants from the four provinces of 
Sichuan, Guizhou, Anhui, and Yunnan. By the early 1990s, it was clear 
that the most common destinations for interprovincial marriage migrants 
were Jiangsu, Hebei, Guangdong, Shandong, Anhui, and Zhejiang. These 
geographical trends reflect specific economic realities. Jiangsu, 
Zhejiang, Guangdong and Hebei are among the richest provinces in China, 
while the southeastern provinces of Sichuan, Yunnan, and Guizhou are 
among some of China's poorest. Even as early as 1989, the per capita 
net income in rural Zhejiang was more than 400 yuan above the national 
average, approximately 450 yuan above Hunan's level, and more than 
double that of the rural areas in Guizhou, Guangxi and Sichuan. This 
economic gap has continued to grow in the last decade.
    Economic factors are critical in the decisions of those men who 
marry female migrants. The bride price paid for immigrant women is 
usually significantly less than what is required for local brides. In 
Zhejiang, for instance, the bride price for local women has gone up 
precipitously since 1982. From the engagement of the couple to the 
wedding party, the bride price might be as high as 100,000 yuan. For a 
sizable percentage of the men's families, this type of marriage might 
be the only possibility, as no woman in the local community would be 
willing to marry into a poor family.
                                concerns
    Marriage migrants are using a traditional method of social mobility 
for women: marriage. Many end up in much more affluent areas, and may 
well be satisfied. Many are never registered, which means that they are 
not official. In such cases, women are not able to rely on the legal 
protections if their marriages fail. And it does appear that these 
marriages are more problematic. Some case studies report that these 
women experience a higher level of dissatisfaction with their marriages 
than women who marry locally. One study in Shandong, for instance, 
found that only half of the marriages between local men and female 
immigrants were stable. The countless reports of wife battering and 
female suicides in the rural areas may well be disproportionately 
occurring in this types of marriages. It has also been found that these 
women report that their lives are more difficult than they had been in 
their home localities. It also appears that these women face a great 
deal of discrimination and hostility in the community, with the result 
that they cling to their newfound families and lead fairly solitary 
existences, refusing to assume jobs in the public domain. The 
relatively hostile environment coupled with the lack of nearby 
relatives means that the main course of emotional and economic support 
for these women is their husband's families. But when these marriage 
are ridden with conflict, as is often the case, these women can find 
themselves without many resources. If the marriages fail, these women 
rarely seek a legal divorce.
    While it has been argued that women's participation in these 
marriage migrations constitutes a type of female agency, it seems 
unlikely that these marriages are contributing to the creation of more 
egalitarian marriages. By relying on their roles as wives and mothers 
to effect this shift from the poorer to the richer regions of China, 
they are in fact reinforcing male power within marriage relationships.
                               conclusion
    Traditional method of using marriage as a means of social upward 
mobility. Numerous accounts of urban women pressing their legal rights 
in courts. Boston Globe on Sunday, February 23rd ran a very interesting 
example.

                                   - 

```