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    On the Failure of ‘Custody and Education’ and the Importance of Rule of Law

    Now formally ended, China’s coercive approach to dealing with prostitution was doomed from the start.

    This is part one of a two-part series on China’s now-defunct custody and education system. Part two can be found here.

    Coercive correctional programs like “re-education through labor” have long been a controversial part of China’s justice system. Although that particular system was abolished in 2013, a similar form of extrajudicial confinement, known officially as “custody and education,” or shourong jiaoyu, was only formally eliminated late last year.

    Custody and education was a re-education program specifically aimed at those involved in the sex trade. According to the official line, it was meant to reform prostitutes and their clients through legal and moral education, as well as “productive labor.” In theory, it was also supposed to curb the spread of sexually transmitted diseases: The punished were required to be tested and undergo treatment if necessary.

    Chinese legal experts had been calling for the custody and re-education system to be shuttered for years, though they generally confined their critiques to the program’s paper-thin legal justifications. Such reasoning was as flawed as the system it purported to criticize. The real reason custody and education — as well as other, similar coercive programs — should be eliminated isn’t some legal technicality, but because they violate the precepts of rule of law and infringe on our fundamental rights. Not to mention the custody and education system utterly failed its core mission.

    After the establishment of the People’s Republic of China in 1949, sex workers were categorized among the “dregs” of old, pre-1949 China, making them both moral criminals and political enemies. Prostitution was outlawed and essentially eradicated. But the advent of “reform and opening-up” in the late 1970s and early ’80s brought a partial relaxation of social control, and prostitution quickly reemerged.

    The custody and education system was set up to combat this revival. In 1981, China’s Ministry of Public Security issued regulations requiring women suspected of prostitution be taken into custody and re-educated, after which they would be repatriated to their hometowns. Serious cases or recidivists could also be forced to perform agricultural or manufacturing labor before release. No trial was necessary: Local police had full sentencing discretion.

    In 1991, the emerging custody and education system was enshrined in the country’s legal code. The National People’s Congress passed a law stipulating: “Those who engage in the buying or selling of sex may be assigned compulsory education in law and morality and made to participate in productive labor by public security organs in conjunction with relevant departments, in order to rid them of their vice.”

    Punishment was to be carried out in special centers established by the local authorities for that purpose, and police departments were given the formal legal authority to hand out sentences of anywhere from six months to two years — still without trial.

    This may have formally legalized the custody and education system, but even back then it was clear that the practice was out of step with international standards on rule of law. The relevant statute was far too broad, and there was almost no recourse for those caught in its net. Essentially, it empowered public security organs to restrict the personal freedom of almost anyone for as long as two years, with almost no oversight.

    From the beginning, the system was plagued by unclear implementation standards and insufficient safeguards. Besides requesting the public security department fill out a written form and notify the family and workplace of the accused, there were no other administrative requirements. In practice, the decision to implement custody and education depended wholly on the public security bureau’s internal deliberations. No hearings were held in advance, those involved were not notified that their cases were under review, and there was no possibility of postponing the punishment.

    It should come as no surprise, then, that there were inconsistencies in how the law was enforced over the years. In some places, it was possible to avoid time in custody by paying a fine of 5,000 yuan ($715). In extreme cases, individual law enforcement officers demanded large bribes, or forced sex workers desperate to stay out of the system to pay police and middlemen sums far in excess of the legally stipulated fines.

    One reason suspects were so susceptible to extortion was the system’s opacity. Although it was technically possible to appeal a verdict, the fact that there were no hearings prior to the decision, combined with the speed of implementing said decisions, meant that implicated parties had little chance to prepare their cases. And any appeals for “administrative reconsideration” of a case resulted only in an internal review.

    In practice, such appeals were rare. Another option, filing suit in court, was also hardly better. Few had the will or knowledge to take their cases to the formal legal system. And the law granted public security organs wide latitude, with the courts almost never overturning their initial decisions. Generally speaking, rulings were only reversed when suspects were able to produce compelling evidence of their innocence.

    Even first-time offenders or those with young children to look after were rarely shown lenience. In one case, a man in his late 60s was given two years of custody and education for visiting a prostitute.

    If the sentencing procedures were already troubling, life inside a custody and education center painted an even bleaker picture. Government institutions and the media referred to those in custody in affectionate terms, like “women gone astray” or “trainees,” and they tended to emphasize that correctional facility staff were hard-working and full of love for their charges.

    But bright, spacious facilities and dedicated correctional staff did little to improve the system’s reputation among the public at large. Facility management was generally rigid, and it wasn’t uncommon for staff to insult trainees or subject them to corporal punishment. As for the “skills training,” in most places, trainees spent the majority of their time doing tedious busywork .

    And since custody and education centers were in principle “self-funding,” detainees had to pay for their own living expenses and for the costs of STD examinations and treatment. As in the sentencing process, this was problematic: The managers of some centers openly demanded “family visitation fees” or shook down inmates for bribes.

    China’s custody and education system ran counter to the basic principles of both rule of law and our fundamental rights. Its elimination is a good thing, and I hope its example will continue to serve as a reminder of what happens when you have laws without rule of law.

    Translator: David Ball; editors: Lu Hua and Kilian O’Donnell; portrait artist: Zhang Zeqin.

    (Header image: Wang Zhenhao for Sixth Tone)