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 China’s most prominent sexologists, is on a roll. Following her recent call for an end to ‘group licentiousness laws’, Li is now proposing that Chinese law on ‘obscene goods’ should also be reformed.

According to the CCP Customs Bureau’s explanation of its smuggling law, ‘obscene goods’ (淫秽品) include but are not limited to “obscene films, videotapes, audiotapes, pictures and publications”.

Li argues that the current law is unconstitutional, first citing the right to free speech:

The 35th article of the constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the ‘freedom’ article of the constitution contradict each other […] I propose to preserve the freedom article of the constitution, and the logical result of this is to change the obscene goods law.

…then on the grounds of the right to personal freedom:

Just as the constitution doesn’t contain the likes of “Citizens of the PRC have the right to eat”, neither does it contain “Citizens of the PRC have the right to have sex”, 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 ‘instant detention centres’.

Given that the CCP tends to defend obscenity laws on an “If you had kids, you’d understand” tack, Li Yinhe points out that it could be possible to protect the nation’s 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 […] Every country has measures to protect adolescents, such as film classification, age restrictions on erotic websites, and so on. However, there’s 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 law’s 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 ‘literary imprisonment’, 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, Li’s 2006 post explained the absurdity of a law that effectively criminalises a very large portion of the population simply for having “crude tastes”.

Translation

The current obscene goods law is an unconstitutional law that encroaches on basic citizen’s 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 People’s Republic of China states: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Obscene goods are the product of human imagination, [so] they are speech [expression] and not action, therefore the obscene goods law and the ‘freedom’ 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 doesn’t contain the likes of “Citizens of the PRC have the right to eat”, neither does it contain “Citizens of the PRC have the right to have sex”, 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, it’s 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 people’s 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 ‘instant detention centres’. 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 ‘the head of a tiger, the tail of a snake’ [a strong start but a weak finish], and the matter was ‘settled by being left unsettled’.

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 citizen’s right to freedom of speech (most of them don’t 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, there’s an important proviso: we must also protect the right of adults to consume obscene goods.

5) The current obscene good law’s 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 ‘literary imprisonment’, punishment on the basis of speech, and cultural absolutism.

In order to ensure the citizen’s 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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0 thoughts on “Guest Translation: Li Yinhe on Porn and the Law”

  1. This won’t 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. Here’s the replacement:
    http://blog.sina.com.cn/s/blog_473d53360100hmun.html

    …maybe it’s a reposting after a run in with some river crabs?

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  2. Hmm…I can still see her article using the link in Alex’s translation, so it hasn’t 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…

    Effin’ river crabs…

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  3. Li’s post was actually promoted to sina blog’s front page so river crab theory doesn’t make much sense. and the article is still available if you browse her blog, but the article’s link has been changed. It could be that the author doesn’t 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.

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  4. 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.

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  5. Perhaps because it’s 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 there’s plenty of porn that doesn’t, and that’s made by women (and men) who aren’t mistreated and are making the films because they’re into it.

    Anyway, that’s the sort of stuff most of my sexologist/”sexpert” friends watch in the States, my guess is that it’s that kind of stuff Li Yinhe deals with most, too (as opposed to the crap that’s on YouPorn or whatever).

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  6. Well here we disagree 🙂 , But I don’t want to start a discussion on the legitimacy of porn, as it’s 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). It’s 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 it’snot a very positive role too. I’m curious if Prof. Li has anything to say about that.
    Maybe I’ll just try asking her. Anyway, if anyone knows of such discussion within Chinese academic or non-academic circles, I’ll be very interested in hearing about it.

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  7. I don’t disagree that it plays a role, I think it’s 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, I’d suggest that stuff like fashion magazines does way more damage, since consumers of porn, especially the sort of porn I’d consider “damaging”, are overwhelmingly male.

    That said, you’re right that it’s a topic that doesn’t 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 doesn’t personally approve of because she feels people should have the right to do that anyway, as long as it’s 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.

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  8. 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 it’s redundant in terms of the industry’s 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, I’d 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.

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  9. I completely agree that the “good porn” probably makes up an insubstantial part of the industry’s profits, although I don’t 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).

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