Out of Line, Out of Reach

After shocking photographs of kindergarten teachers physically abusing their students went viral, China is having to confront some uncomfortable realities, chiefly its lack of a legal framework to prosecute child abusers

Smiling gleefully, a young woman lifts a five-year-old boy into the air by his ears as he, sobbing in visible pain, struggles to free himself. The boy’s classmates huddle, terrified, in one corner of the classroom.

This shocking photograph recently swept the Chinese blogosphere, inevitably leading to a public outcry. An online “human flesh search” by outraged netizens soon identified the young woman as Yan Yanhong, a kindergarten teacher in Wenling, Zhejiang Province. Having located Yan, those seeking to punish her for her misdeeds were shocked by scores of blog entries in which she had proudly documented other “punishments”administered to other children in her care, accompanied with photographs. One picture shows a young boy’s mouth sealed with Scotch tape. In another, a different boy has apparently been hurled head-first into a garbage bin.

“It is unbelievable that a teacher could abuse children so frequently, and yet no one ever tried to stop her,” ran one typical post on Sina Weibo, China’s biggest microblog platform, where the story initially broke.

Yan Yanhong denied she had “abused”her charges. Her defense was, however, even more shocking. “I did it just for fun… I just thought it would be quite interesting if I had[these incidents] photographed… I underestimated the consequences,” she explained to the media.

As a result of Yan’s statements, she found herself an instant hate figure, with many netizens calling her “brutal” and “a demon”who “treats children as toys.” Although her employer went to great lengths to inform the public that the kindergarten had fired Yan Yanhong on the same day the controversial images had appeared online, this did little to assuage the anger, with many linking Yan’s ability to abuse children with impunity to a general lack of standards in Chinese kindergartens.

“Will the sacking be the end to this? What if this woman someday gets a job in another kindergarten and continues to abuse children?” questioned Ma Zhenguo, a popular online critic. “Those who have abused children must be heavily punished,” posted actress Yao Chen, one of China’s most-followed microbloggers.

Criminal?

Wenling police, under pressure from a growing online campaign, detained Yan Yanhong for “stirring up trouble,” a charge with a broad range of applications in China which can range from assault to political protest. However, even this attempt to quiet critics was met with derision, with netizens criticizing the law itself as “ridiculous” when applied to a case of child abuse.

“There is no such crime as ‘child abuse’ in Chinese law, and Yan’s actions do not fit into other legal categories,” Lu Junxiang, a lawyer with the Beijing-based Crown and Rights law firm, told NewsChina.

According to Lu, China’s Constitution and some other laws all include clauses which mention “protecting children,” but none of them is applicable in Yan’s case.

“China’s Law Governing the Protection of Minors just covers dos and don’ts, without defining the subject of responsibility, making it impossible to enforce,” Lu told NewsChina. “Under China’s Criminal Law Statute, only family members [of the victim] can be charged with abuse and students are obviously not family members of their teachers.”

“Criminal intentional assault charges can only be alleged according to the injuries done to the victim,” Lu added.

Wang Xiaoming, a criminal law professor with Beijing Union University, agrees that the relevant laws on child protection are not specific enough. “The crime of ‘stirring up trouble’ is actually a controversial ‘pocket crime,’ like the already abolished crime of‘hooliganism’ which, ambiguously defined, could be applied to many types of acts,” he told NewsChina. “It is really embarrassing that the police had to fall back on a controversial charge just to ease public anger.”

Lu Junxiang believes that, from a legal standpoint, “stirring up trouble” may not be applicable to the Wenling abuse case, since the alleged crime “didn’t occur in public or disrupt social order.”

It is this legal ambiguity which has led a small number of commentators and legal professionals to defend Yan Yanhong, in principle at least, as to convict her on the current charges could set a dangerous legal precedent. However, even Yan’s defenders seem unsure of their legal footing. “I bet Yan‘s acts do not violate [existing] laws,” said Wang Zhi’an, a CCTV anchor, on his microblog. “We should carry out further investigation,” he added. His posts almost instantly attracted widespread criticism and explicit verbal abuse, and he was forced to quickly delete them.

The courts, however, sided with Yan, despite growing public calls for the harshest possible sentence. The procuratorate a judicial intermediary body which determines which cases will go to formal trial threw out the case on November 5 on the grounds that“further investigation and judicial expertise is required.”

Campaign

Yan Yanhong, while high-profile, is not the only person to be outed as a child abuser by China’s eagle-eyed blogosphere. In October alone, State media reported additional cases of alleged abuse in schools. One kindergarten teacher in the city of Taiyuan, Shanxi Province, was filmed slapping a student across the face over 70 times as punishment for answering a math question incorrectly. A second teacher in Wuhan, Hubei Province, reportedly rammed a disobedient pupil’s head into a classroom wall.

A particularly shocking case emerged in late October, when media outlets revealed that a number of teachers in an upscale kindergarten in Shandong Province charging 20,000 yuan (US$3,125) in annual enrollment fees were pricking students’ legs with needles whenever they misbehaved.

“I couldn’t believe such a high-end kindergarten would treat the children with violence until I saw the spots of blood on my son’s legs, and the school’s surveillance video proved what my son told me,” Wei Chunlan, a mother of one injured student, told the local media.

In their reports, the State media largely attributed these examples of child abuse to a lack of appropriate supervision and vetting of unlicensed schools and teachers. Reporters went so far as to claim that Yan Yanhong, for example, did not have a teaching certificate, and soon similar claims were made concerning the Taiyuan and Wuhan cases. However, some outlets were forced to retract their assertions when a further investigation into the Wuhan abuse case revealed that the teacher involved was once awarded the prize of “Outstanding Teacher” by their employer.

“Given the alarmingly high rate of exposure when it comes to child abuse cases, I think it is time to criminalize child abuse in the existing Criminal Law Statute,” Zhang Xingshui, a researcher specializing in family law at the China University of Political Science and Law, told China Youth Daily. A survey accompanying the article indicated that over 95 percent of respondents agreed with his views.

“The Criminal Law Statute is clearly applicable to the Shanxi and Shandong cases as obvious injuries had been inflicted,” said Wang Xiaoming, the law professor. “The real problem lies in how to deal with incidents that do not result in actual injury to the victim - as in Yan’s case.”

Tradition?

According to Chu Zhaohui, a researcher of the National Institute of Educational Sciences, a traditional tolerance for corporal punishment when administered by parents or teachers in order to discipline unruly children can often lead Chinese people to turn a blind eye to serious physical abuse.

“Traditionally, Chinese parents believe their kids are their private property and there is no need to respect them. Some even question whether their kids have a distinct personality,” he told our reporter.

“Take my school as an example,” said Cao Lin, a retired elementary school principal.“Many teachers, including me, beat students with sticks, made them stand upright in the corner of the classroom or made them do physical exercise or homework as a punishment.”

“If it hadn’t been for microblogs, corporal punishment would have remained ignored until now, unless it resulted in serious injuries,” he continued. “It is worth noting that many parents request that teachers use corporal punishment in order to better educate their kids, which, I believe, partly serves to fuel child abuse.”

A comprehensive survey carried out in 2005 by the UNICEF showed that nearly 75 percent of Chinese children had been “somewhat abused” by family members. In 2008, a child abuse prevention organization in Xi’an sponsored a survey of 300 school students which revealed that over 60 percent had been physically punished by their parents in the form of beatings, being forced to stand upright in a corner or by being deprived of food or sleep. Six percent said that they had been“seriously beaten” by their parents.

When our reporter clicked on an online forum thread titled “Is corporal punishment child abuse?” on China’s biggest bulletin board , they found little consensus on the issue, though a majority seemed to agree that “light corporal punishment should not be considered abuse.”

“I sometimes slap [my son] on the palm of his hand. Is that counted as abuse?” Shi Qing, mother of a four-year-old boy living in Hangzhou, asked NewsChina.

“Given that corporal punishment is very common in China, it would be very hard for lawmakers to clearly and correctly define what the crime of ‘child abuse’ is,” lawyer Lu Junxiang told NewsChina. “For example, on what level should corporal punishment be considered abuse? And should other acts such as verbal abuse or humiliation, as in the Yan case, fall within the [criminal] category of abuse?”

While some are calling for Euro-American-style child protection laws, which tend to go into exhaustive detail about what precisely denotes abuse, Wang Xiaoming believes that this “might not work as effectively in China if copied mechanically.”

“In the US, for example, someone can report a neighbor’s abuse of their child to the police, but in China there are no official procedures for the handling of such cases, even if such a report is received,” he said.

“According to Chinese laws, abuse is defined by ‘self-accusation,’ meaning the wrongdoing has to be alleged by the victims themselves with the proviso that their injuries are severe enough to warrant an indictment,”Lu Junxiang told our reporter. “How exactly is a child expected to understand this?”

“Right now, China now lacks any legal framework for dealing with child abuse,” Lu continued. “The increasing level of importance attached to individual rights and interests is a global phenomenon. China, of course, should not duck its responsibilities under the pretext of ‘tradition’ or ‘culture.’”