Since 2005, China has passed several laws and regulations aimed at curbing sexual harassment. Yet China’s courts still seem to give stronger protection to alleged harassers than survivors. When survivors sue harassers, they, like most plaintiffs in civil litigation, must prove their claims to a “high degree of likelihood” (i.e., to between 75 percent or 85 percent certainty). Meeting this evidentiary bar is challenging since judges in China give little credence to litigant testimony, and sexual harassment often occurs in private spaces, outside the view of other witnesses. On the other hand, when alleged harassers bring defamation lawsuits against accusers or bring complaints of unlawful dismissal against their employers, the burden of proof is reversed, putting the onus on the survivors and employers to prove that their sexual harassment allegations are true.
When, then, are courts likely to rule in support of sexual harassment allegations? To get a clearer picture, we searched large databases maintained by Wu Song and Peking University for civil cases decided between 2018 and 2020 that hinged on the issue of whether sexual harassment occurred. (A 2018 report covered similar cases between 2010 and 2017, and a 2021 report has looked at all available cases.) In order to cover the variety of terms used by courts in their written opinions, our search terms were “sexual harassment” (“性骚扰” and “非礼”), “harassment” (“骚扰”), and “molestation” (“猥亵”). We focused on sexual harassment suits against alleged harassers, as well as defamation and labor cases brought by alleged harassers claiming they were wrongfully accused.
Out of the 83 cases we found, only six (7 percent) were sexual harassment cases brought against harassers, while 77 (93 percent) were brought by alleged harassers against their accusers or employers. (The 2018 and 2021 reports found a similarly large imbalance.) In our set, courts found that sexual harassment occurred in 37 of 83 cases (45 percent): six of 23 defamation cases (26 percent), 26 of 54 labor disputes (48 percent), and five of six sexual harassment cases (83 percent).
Overall, survivors or employers whose cases rested on testimony and/or written accounts alone (27 cases) fared significantly worse than those who also provided some kind of recording: e.g., a video of the incident or screenshots of harassing messages (22 cases). (We did not count in the testimony category eight labor disputes that employers lost because they provided no witnesses to support their claims.) Courts decided the remaining cases based on the parties’ own admissions (15 cases, including one case where a woman told police she had made a false allegation), and by deferring to police investigations without examining other evidence (11 cases).
“He Said, She Said”
Among the 12 cases that boiled down to the conflicting accounts of the alleged harasser and survivor, courts supported a claim of sexual harassment in two cases (17 percent). Nine were successful defamation suits against accusers. For example, in a 2019 case in Chengdu, a male supervisor sued a female supervisee after she posted an account of his unwelcome sexual advances toward her in a WeChat group of ten colleagues. The supervisee claimed the supervisor regularly harassed her, and once forced her to drink excessively at a business dinner, after which he exposed his genitalia to her and clutched onto her in a staff dormitory. The supervisor reported her for “malicious libel” to the police, who then warned her not to post allegations without “conclusive proof.” A local court agreed, and ordered her to apologize to the supervisor.
In a 2019 defamation case in Henan, an administrative assistant reported to three high-level managers that her direct supervisor tried to rape her. According to her account, during a car ride to complete a work errand, the supervisor pulled the car over and pressured the assistant into sitting up front with him. When she did, he began kissing and groping her against her will. He demanded they have sex in the car, but backed off upon learning she was menstruating. After the incident, he started bullying her at work and lowered her salary. The supervisor argued that he cut her salary because she was incompetent and her accusations were baseless and retaliatory. Siding with the supervisor, the court ordered the assistant to stop spreading information damaging to the supervisor’s reputation.
We found only two instances of a court supporting a claim of sexual harassment based on a single person’s account. In a 2019 labor dispute in Dongguan, a company fired a male supervisor for molesting a female employee in a storage room. The supervisor claimed that he had only demanded that the employee return a 400 renminbi loan while in the storage room, and that she was trying to frame him to avoid repaying. A labor arbitrator ordered the company to pay the man 166,761 RMB for unlawful termination, but a local court reversed the decision. The court ruled that it “went against common sense” that the female employee would risk her reputation, job, and relationship with her boyfriend to get out of a 400 RMB debt.
In the other case, a 2019 Beijing labor dispute, a driving school fired an instructor after a female student filed a written complaint about the instructor’s harassment. A labor arbitrator ordered the school to pay the instructor 34,985 RMB for breaking his labor contract without cause, but a Beijing court disagreed. After checking with the student about the complaint, the court ruled that the instructor’s firing was justified. The court may have found the student’s account to be credible because it considered her to be a third party without a direct stake in the case.
“He Said, They Said”
In the 15 cases where there were multiple witness accounts against the alleged harasser, courts supported claims in four cases (26 percent). Courts strongly disfavor witnesses who have a relationship with a litigant, which tripped up employers in several labor disputes where their employees served as witnesses (this overlap is hard to avoid in workplace harassment cases). In a 2018 Tianjin case, a man brought his employer to labor arbitration for illegal termination of contract, claiming he was falsely accused of sexual harassment. Two female colleagues testified that they had filed complaints about him with the company. Still, the arbitrator ordered the company to pay the man 52,000 RMB. A local court affirmed the decision, dismissing the company’s evidence as “one-sided” and “impossible to confirm.”
Employers overcame this stumbling block either by presenting a large number of witness accounts (seven, in one case) and/or at least one non-employee account. In a 2018 Urumqi labor dispute, a company responsible for managing a swimming pool fired a lifeguard because he repeatedly entered the women’s facilities to peep. A local court dismissed the three testimonies of his colleagues, saying they had a relationship with the company. It also discounted a written complaint from a customer because she did not appear to testify in court. An intermediate court reversed this ruling on appeal. It reasoned that the colleagues’ accounts and the written complaint corroborated each other, and that the complaint could be trusted because it was part of the company’s “objective daily work records.”
Recordings
Survivors or employers who presented some form of recordings won 11 of 22 cases (50 percent). Generally, claims fared well when the videos or screenshots clearly depicted the harassing behavior or served as a record of self-admission, but failed when they were fuzzy or served as indirect evidence, such as showing a fight that broke out shortly after the alleged harassment happened.
Cases based on recordings instructively demonstrate how court decisions turn on establishing what actions took place and on how judges interpret those actions. In a 2018 Shenzhen labor dispute, security camera footage showed a man slapping the backsides of two female coworkers. The man claimed he was only trying to get them to clear his path so he could fetch something. The court rejected his argument, noting his coworkers’ upset reactions. In a 2018 Shanghai labor dispute, a male employee secretly took photos of a female colleague in the office and posted them on WeChat Moments, adding captions like “wife,” “goddess,” and “my woman.” The court found him to have exceeded “the normal scope of courting” and held his firing justified.
Compare this with another 2018 Shanghai labor dispute, in which five female employees complained of a male colleague’s behavior, including messaging them boorish pictures, inquiring about their personal life, and sending bothersome texts like “I want to feel your pulse.” The court, noting the male employee was a Traditional Chinese Medicine enthusiast seeking to practice measuring pulses, ruled that his behavior did not constitute sexual harassment. Similarly, in a 2018 Suzhou labor dispute, a female supervisee submitted texts from her manager asking her to sleep with clients. The court ruled that the manager’s “language was certainly inappropriate, but did not reach the level of sexual harassment,” and ordered the company to pay him 359,424 RMB in compensation for unlawful termination.
Police Investigations
Police investigations seem to strongly influence court decisions. Courts supported sexual harassment allegations in all eight cases in which the police administratively or criminally detained the harasser, without examining the evidence underlying the police’s decisions. Conversely, in seven of the eight cases in which police closed an investigation without a finding of sexual harassment (excluding the case involving a false accusation), courts concluded that the alleged wrongdoing did not occur or was not serious enough to warrant liability. In three cases, courts relied on the status of police investigations to rule in favor of alleged harassers without examining other evidence.
This level of judicial deference is problematic because police investigate whether a criminal or public order offense occurred, and “sexual harassment” is neither in China. In a 2018 Chongqing labor dispute, a company fired a male chef after a female colleague reported him to the police for touching her backside. The court held that since the police did not determine the behavior to be “illegal” or “criminal,” the company did not meet its evidentiary burden to justify firing the man. In the one case where judges diverged from police, the Guangzhou High Court ruled in a 2018 labor dispute that although the police did not find the male employee’s behavior to be criminal, the relevant question was whether his behavior harmed the workplace environment in violation of company rules. Since there was a record of him admitting his inappropriate behavior to the police, his firing was lawful.
Looking Forward
Legal reforms, like the passage of the Civil Code, represent big steps forward, but without changes to how courts handle sexual harassment claims, the law is likely to continue to work in alleged harassers’ favor and impede survivors. Consequently, many survivors and employers will continue to be intimidated into inaction, lest they risk getting mired in a legal battle – and an uphill one at that if they lack “hard” evidence.
To level the field, courts could give more weight to testimony, including from litigants or those related to them, and defer less to the police. Policymakers could also change what kinds of cases get to court by clarifying that people who report harassment are protected from defamation suits, and that employers who fail to address workplace harassment can face civil liability. By recalibrating the risks and incentives on each side, these adjustments could help ensure that topline legal reforms on sexual harassment are also felt on the ground.