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.