Internet, Legal News

Nude Web Chats Quite Revealing On State Of China Law

China criminal lawyer

A Reuters article entitled, China law blind to nude Web chats: Charges dropped on woman using a Web cam in the buff, gives an interesting peek into China jurisprudence.

Article is on how Chinese prosecutors were forced to drop a case against a housewife who had organized online nude chats, after discovering no Chinese law forbade such things. The case involved a 36-year-old woman, surnamed Li, who had been charged with “organizing pornographic activities” for “using a Web cam to chat with people on the Internet in the buff and for organizing online chats for nudists.”

Turns out that nude chat rooms “are not defined in China’s pornography laws, an oversight the official Xinhua news agency described as a legal ‘blind spot'” so prosecutors had to drop their case:

“Under existing laws, it is inappropriate to treat this as a criminal offense,” Xinhua quoted a prosecutor in the western Beijing district of Shijinshan as saying.

The Shijinshan district court found there was little legal basis for the charge and turned down the case, forcing prosecutors to withdraw the charge.

I am not going to claim this case means China should be viewed as a country of laws, but I will contend this case is further proof China is moving in that direction. I also find it interesting that when I discussed this case with a China criminal lawyer friend of mine, he was not surprised by its outcome.

Do you agree?

18 responses to “Nude Web Chats Quite Revealing On State Of China Law”

  1. On the surface it’s good news.
    I’d say beware of making an historicist error – I’m a big Popper fan, and this is exactly the stuff that he wrote about. You believe that history is moving in one direction, and you find plenty of evidence to back you up, perhaps not even realising how selective the choices you make are.
    This story could equally well be seen in the light of last year’s Guangzhou prostitute parade: the police are finding that standard legal methods aren’t working in their fight against vice, and are giving up on it in favor of other methods.
    But that’s a pessimist’s view. I’ll go with your happy interpretation for the minute.

  2. Phil —
    You are absolutely right. Two steps forward, one step back.
    In fact, after posting on this, I read a WSJ article on a crackdown against those petitioning the government, even though the petioners were abiding by the law. So I added that article at the end of this post as a sort of “but see also.”
    Did you leave your comment before or after I added the WSJ article?

  3. One has to be careful to distinguish between “rule of law” and the content of the law. In the case of China, there is no shortage of laws that you can use to put a demonstrator in jail if you want to. However, these laws don’t apply to nude web chats.
    This is why rule of law is important even if there are some vague and bad laws. Even with vague and bad laws, you get some protection from the state.

  4. On issues of love and sex I’m quite positive. By which I mean, my hazardous guess is that the law in this area is becoming clearer to people, especially to those charged with enforcing it.
    But it is a slow process.
    I suppose most people here heard that in the recent meeting of the National Congress one delegate raised the suggestion that the notion that it is ‘feifa’ for couples living together before marriage should be scrapped . When I first read it I took ‘feifa’ (??)to mean ‘illegal’, as I think most people would. The delgate argued that legally speaking living together before marriage has never been illegal, even though many people including police have often believed it to be. In fact, if the guys at chinesepod.com are to be believed, ‘feifa’ here should be ‘non-legal’. Apparently in the 80s people began describing this kind of relationship as ‘non-legal’ marriage, and, due to commonly held moral attitudes, this notion evolved into an understanding that it is actually illegal to live together before marriage. When I tried to raise this with a man with a Masters in politics and who hopes to be a lawyer, I was met with a blank face and a ‘no, that’s definitely illegal.’
    But the fact that some Chinese people are raising such issues in the media, and seeking greater clarity, is undoubtedly positiive. I don’t doubt that my political friend respects the law, there are just many areas of confusion that need to be worked through.

  5. A Chinese op-ed on this subject noted that when the court system was redone after the Cultural Revolution, it was permissible to extrapolate from existing laws to incorporate crimes that were not on the books, the rationale being that the body of law at the time was not at all comprehensive. It was only in the mid-90s that things were revised to be closer to an idea of “if it’s not expressly forbidden then it’s not against the law.”

  6. Anybody here is familiar with the Criminal Code?
    Used to be that three or moresome is an offense. I guess it still stays the same on the book. In exercising prosecutorial discretion, it seems that laowai or persons with foreign passports are always exempted. Can anybody anonymously testify to that?

  7. in reality… these things happen everywhere where the law hasn’t cought up to the current times.
    I know that in many US states, oral sex is illegal.
    I quickly googled this and got this website…
    Here’s what I found randomly regarding New York State laws:
    -It is illegal for a woman to be on the street wearing “body hugging clothing.
    -Women may go topless in public, providing it is not being used as a business.
    -New Yorkers cannot dissolve a marriage for irreconcilable differences, unless they both agree to it.

  8. other joe —
    Yes, but that is a bit different from what went on here. My whole point here is simply that the government wanted to prosecute this person, but then backed down when it realized it did not have a proper legal mechanism to do so.

  9. zhwj —
    Interesting history. In criminal law, even more so than in civil law, the law has to be clear. But China now, much more so than the US, does have the attitude (and I am talking about business law now) of “if it is not forbidden, it is allowed.”

  10. sepa —
    Can any Laowai testify to having been in a threesome, having the police come, and then NOT getting arrested? Wow, that is asking a lot. I will see if I can’t get my friends over at Sinocidal to run something on this.

  11. Mike —
    I hate dumb laws/laws that are never enforced. Such laws weaken law. We need prosecutorial discretion, but I generally trust laws more than I trust the governments that enforce them.
    But my point of this post was not in any way to make fun of the laws or even of the prosecutors going after this woman in the first place. Rather, it was simply to point out how the law trumped the government’s desires and that is a good sign.

  12. I was making a comment that the jailing of the petitioners in the WSJ article was evidence of absence of rule of law. This isn’t necessarily the case, if there is a law that allows their detention, which is almost certainly the case (I can think of a few right off hand.)
    One important Chinese law is Article 8 of the Legislation Law, which forbids person from being detained except as a consequence of a national law passed by the National People’s Congress. This is significant because it means that local officials and the State Council cannot detain people without citing some national law. It also means that local officials can’t create a law that detains someone.
    The laws that the NPC has passed are somewhat vague (i.e. what exactly is state subversion?) but they are not infinitely so (posing nude in front of a webcam is clearly not state subversion).

  13. Joseph Wang —
    Okay, now I understand. Good point. I actually thought you were saying the opposite, that the nude webcam thing was not evidence of going by rule of law.

  14. CLB – busy weekend, didn’t get online at all. I’m not a subscriber, so WSJ links pass me by, I’m afraid.
    Despite my gloomy reading above, I actually share your positive view of this piece of news. I’m not sure it shows increased rule of law, but it does at least seem to show good separation of powers, and that’s very important. I’ve read a few things about the independence (or otherwise) of Chinese courts recently, and even though I can’t get a real handle on it, the fact that people are talking about it is good.
    I might just say, unlike the bloody UK, where our beloved government is trying to roll back the independence of the court by introducing a “national interest” consideration in some cases. Move in the wrong direction, methinks.

  15. Phil —
    Don’t know anything about British courts so can’t speak to that, but I do think one of the fundemental problems with China’s court system is that the Courts are not independent and there is no movement to make them so.

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