Guest Translation: Li Yinhe on Porn and the Law
The following is a guest post written by Alex Taggart.
It seems Li Yinhe, one of Chinaās most prominent sexologists, is on a roll. Following her recent call for an end to āgroup licentiousness lawsā, Li is now proposing that Chinese law on āobscene goodsā should also be reformed.
According to the CCP Customs Bureauās explanation of its smuggling law, āobscene goodsā (ę·«ē§½å) include but are not limited to āobscene films, videotapes, audiotapes, pictures and publicationsā.
Li argues that the current law is unconstitutional, first citing the right to free speech:
The 35th article of the constitution of the Peopleās Republic of China states: āCitizens of the Peopleās Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.ā Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the āfreedomā article of the constitution contradict each other [ā¦] I propose to preserve the freedom article of the constitution, and the logical result of this is to change the obscene goods law.
ā¦then on the grounds of the right to personal freedom:
Just as the constitution doesnāt contain the likes of āCitizens of the PRC have the right to eatā, neither does it contain āCitizens of the PRC have the right to have sexā, because these two rights should be provided for in the [constitutional] article protecting the right to personal freedom. In the same way, just as we cannot use criminal law to prohibit eating, we cannot use criminal law to prevent people from taking part in sex acts and consuming sex-related goods.
Similar to her criticism of group licentiousness laws, Li then gives a clear example of an instance where the law has failed:
There was once a failed experiment: in the early 80s, the Beijing police department ambitiously began [an action of] seizing all propagators of obscene goods. Before long, all prisons and detention centres were bursting at the seams, and they had no choice but to hurriedly outsource hotels and reception centres as āinstant detention centresā.
Given that the CCP tends to defend obscenity laws on an āIf you had kids, youād understandā tack, Li Yinhe points out that it could be possible to protect the nationās children whilst allowing free speech and ensuring sexual openness for adults:
We should think of a way to prevent adolescents from coming into contact with obscene goods [ā¦] Every country has measures to protect adolescents, such as film classification, age restrictions on erotic websites, and so on. However, thereās an important proviso: we must also protect the right of adults to consume obscene goods.
Finally, Li warns of potential consequences should the law remain:
The current obscene goods lawās biggest malady is that it has set a precedent for using criminal law to punish free speech. Since this special type of speech has become a crime, other types of speech can too. If we continue like this, we could once again end up with the disastrous policies of āliterary imprisonmentā, punishment on the basis of speech, and cultural absolutism.
This is not the first time that Li Yinhe has criticised obscene goods law. In a blog post in 2006, Li gave outlines of individuals who had fallen foul of the same law. As in her most recent post, Liās 2006 post explained the absurdity of a law that effectively criminalises a very large portion of the population simply for having ācrude tastesā.
Translation
The current obscene goods law is an unconstitutional law that encroaches on basic citizenās rights. It is a draconian law, left behind by the age of cultural autocracy.
1) The issue of being unconstitutional. The 35th article of the constitution of the Peopleās Republic of China states: āCitizens of the Peopleās Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.ā Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the āfreedomā article of the constitution contradict each other. In order to defend the rigorousness and authoritativeness of the constitution, we should either alter it, or alter the obscene goods law. I propose to preserve the freedom article of the constitution, and the logical result of this is to change the obscene goods law.
2) The right of citizens to consume obscene goods is protected by the constitution. Just as the constitution doesnāt contain the likes of āCitizens of the PRC have the right to eatā, neither does it contain āCitizens of the PRC have the right to have sexā, because these two rights should be provided for in the [constitutional] article protecting the right to personal freedom. In the same way, just as we cannot use criminal law to prohibit eating, we cannot use criminal law to prevent people from taking part in sex acts and consuming sex-related goods. Aside from this, itās worth reminding people to bear in mind: just as eating is fundamentally harmless to people, so is sex, as are its related goods.
3) Obscene goods are considered to be part of vulgar culture, a crude interest. We should vigorously promote the consumption of elegant consumerism, whilst resisting the consumption of obscene goods using the full extent of the greatest societal powers. But, we cannot use criminal law to penalise peopleās crude tastes, because if we do, those imprisoned would number in the tens of millions. This is unrealistic. There was once a failed experiment: in the early 80s, the Beijing police department ambitiously began [an action of] seizing all propagators of obscene goods. Before long, all prisons and detention centres were fit to bust, and they had no choice but to hurriedly outsource hotels and reception centres as āinstant detention centresā. The folly of this activity gradually became obvious, and finally, an order was passed down from the upper echelons that it should stop, and the entire activity left behind the result of āthe head of a tiger, the tail of a snakeā [a strong start but a weak finish], and the matter was āsettled by being left unsettledā.
4) We should think of a way to prevent adolescents from coming into contact with obscene goods. This is a commonly-faced problem by all countries that protect the citizenās right to freedom of speech (most of them donāt have an obscene goods law). Every country has measures to protect adolescents, such as film classification, age restrictions on erotic websites, and so on. However, thereās an important proviso: we must also protect the right of adults to consume obscene goods.
5) The current obscene good lawās biggest malady is that it has set a precedent for using criminal law to punish free speech. Since this special type of speech has become a crime, other types of speech can too. If it continues like this, we could once again end up with the disastrous policies of āliterary imprisonmentā, punishment on the basis of speech, and cultural absolutism.
In order to ensure the citizenās right to free speech, I propose to get rid of the unconstitutional obscene goods law that encroaches on the basic rights of the citizen.
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This wonāt gain any traction. The CCP is too busy concentrating on other things to concentrate on this, sadly. Too bad-though from my experience in China, sex shops, which I assume sell “obscene goods,” and places to buy porn dvds are pretty common, which would anecdotally suggest low enforcement of the law.
Also, the above link is broken. Hereās the replacement:
http://blog.sina.com.cn/s/blog_473d53360100hmun.html
…maybe itās a reposting after a run in with some river crabs?
It appears her article has been harmonizd
Hmm…I can still see her article using the link in Alexās translation, so it hasnāt been deleted from Sina. Has it actually been blocked? That would be sort of unusual, I would expect the Sina censors to delete stuff before the government stepped in and actually blocked it…
Effinā river crabs…
Liās post was actually promoted to sina blogās front page so river crab theory doesnāt make much sense. and the article is still available if you browse her blog, but the articleās link has been changed. It could be that the author doesnāt want it to be cited or she tries to keep low-profile to avoid tension with the conservatives. She disabled comments under all her posts for the same reason.
[...] back. After months of just posting Nietzsche translations, sheās finally posting original stuff again, faster than we can translate [...]
I like Li Yinhe but I wonder why in her defence of porn consumption she never deals with what happens to women employed in the porn industry. Nor does she mention the affect porn has on how men see women in general.
This whole issue is never mentioned in China at all, which is interesting, as it seems like a much stronger argument against porn than the family values/protect the kids one.
Perhaps because itās a bit hard to pin down? I would reject the idea that “porn” by definition affects the way men view women in any negative way. Certainly, some types of porn — pretty much everything free on the internet, for example — do have that effect, but thereās plenty of porn that doesnāt, and thatās made by women (and men) who arenāt mistreated and are making the films because theyāre into it.
Anyway, thatās the sort of stuff most of my sexologist/”sexpert” friends watch in the States, my guess is that itās that kind of stuff Li Yinhe deals with most, too (as opposed to the crap thatās on YouPorn or whatever).
Well here we disagree
, But I donāt want to start a discussion on the legitimacy of porn, as itās going to be a long tiresome one with probably no conclusion.
My point is that the argument, as far as I can see, is pretty much absent from any discussion about porn in China (not that there is much discussion anyway). Itās hard to find much material on body images, or on the perception women or even about how our sexual preferences and habits are being shaped (You probably disagree but I believe porn does have a significant role here, at least in developed countries, and itāsnot a very positive role too. Iām curious if Prof. Li has anything to say about that.
Maybe Iāll just try asking her. Anyway, if anyone knows of such discussion within Chinese academic or non-academic circles, Iāll be very interested in hearing about it.
I donāt disagree that it plays a role, I think itās just important that we specific certain types of porn rather than just “porn” generally. And in terms of body image, I wonder how much damage porn does than movies, video games, beer advertisements, fashion magazines, skin-whitening cream ads (in China, anyway) etc. etc. etc. In terms of female body image perceptions, Iād suggest that stuff like fashion magazines does way more damage, since consumers of porn, especially the sort of porn Iād consider “damaging”, are overwhelmingly male.
That said, youāre right that itās a topic that doesnāt come up much in the discussion within China; not really sure why. Another reason Li Yinhe might not mention it is that she does, on occasion, defend things that she clearly doesnāt personally approve of because she feels people should have the right to do that anyway, as long as itās consenting adults etc. etc. So perhaps porn falls into this category? You should ask her, I would be very interested in hearing her response. I am also jealous of your reporter credentials. Most people ignore me when I try to ask them things.
You are right about influence on body images from fasion magazines etc. One of the problems with massive consumption of porn, however, is the way pornographic images gradualy penetrate into more mainstream entertainment such as movies, video clips, ads etc.
There might be decent kind of porn which promotes values such as equlity. I believe itās redundant in terms of the industryās yearly revenue but I might be wrong here. Not an expert on the matter. Anyway, the kind of porn where for the sake of consumers momentary and dubious pleasure actresses are being repeatedly gang-raped is, Iād argue, somewhat beyond a matter of good taste and personal choice.
I very much hope to actually talk to Li. Will keep you posted
Reporter credentials in China… they are a mixed blessing in a way.
I completely agree that the “good porn” probably makes up an insubstantial part of the industryās profits, although I donāt know for sure. I do have some friends who work in that area, so I will ask them if I think of it. It might be significant, just because I think the vast majority of “bad porn” is consumed for free, whether it be through illegal downloading or through watching on one of the many sites that stream porn clips for free (though I suppose they do make advertising money off that, so never mind…)
As for gang-rape porn (or any kind of BDSM stuff)…there are women who are into that. This is not to say that all, most, or even many of the women in those films fall into that category but there are places (kink.com, for example) that run all of their porns with interviews with the women before and after where you can see that the women are actually into it and not horribly exploited eastern european immigrants (which seems to be a common thing in other porn).