文獻速遞（2022年8-11月）
Literature Database (Aug-Nov 2022)
更新和匯總近期出版的平等權領域學術研究和實務報告
Update and compilation of recent academic research and reports in the area of equality rights
Gender-based Violence 性別暴力
1. Sexual Assault 性侵犯
Cheung, Alec Man Lap, “#WhyIDidntReport Why Sexual Offences’ Victims Do Not Report in the Hong Kong Context”
The University of Hong Kong, Master of Social Sciences in Criminology dissertation. 2022.
Abstract:
Purpose: This research seeks to examine the main barriers behind sexual offences victims of why they hesitate and choose not to report the crime to authorities.
Design/ Methodology: The research data were gained from semi-structured interviews with a sample of seven respondents in Hong Kong.
Findings: The main barriers behind the victims include three main categories, personal, social, and institutional. The main barriers include lack of family support, Chinese culture, education, attitudes toward police and criminal justice system, and criminal justice procedure. Sexual offences victims often suffer short to long term psychological impact, and those who do not report to authority is believed to suffer more serve impact. The findings show that there should be more sex education offered to the general public, especially to the family. More training should be given to law enforcement and related professionals so victims can be treated fairly and be better protected.
Dyer, Andrew, Thomas Crofts, “Reforming Non-consensual Sexual Offences in Hong Kong: How Do the Law Reform Commission of Hong Kong's Proposals Compare with Recent Recommendations in Other Jurisdictions?”
Common Law World Review, vol. 51(3), 2022, pp. 145-171.
Abstract:
In this article, we consider the reforms to non-consensual sexual offences that the Law Reform Commission of Hong Kong ('LRCHK') has recently advocated in its Final Report about the law relating to sexual offending in that jurisdiction. We argue that a comparison between the LRCHK's proposals and those supported in recent years by Law Reform Commissions in other jurisdictions – most particularly, in New South Wales ('NSW') and Queensland – reveals the LRCHK's recommendations generally to be sensible, balanced and progressive. The LRCHK's approach to the question of what it is to consent, and to the issue of how a person withdraws consent, is preferable to that supported by the NSW Law Reform Commission ('NSWLRC'). Further, it seems right to have supported an objective culpability requirement for the non-consensual offences with which it was concerned. And while there are difficulties concerning certain of the LRCHK's proposals – especially, perhaps, those pertaining to fraudulently procured sexual activity – the NSWLRC's and the Queensland Law Reform Commission's respective approaches to the last mentioned topic also seem imperfect.
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2. Sexual Harassment 性騷擾
Wang, Hao, "Legislative and judicial responses to workplace sexual harassment in mainland China: Progress and drawbacks"
Frontiers in Public Health, vol. 10, 2022.
Abstract:
Background: China has recently upgraded its anti-sexual harassment laws and regulations. The first-ever Chinese Civil Code, which took effect in 2021, has explicitly defined sexual harassment and imposed affirmative duties on employers to prevent and correct work-related sexual harassment. This study aims to map the status quo of China's anti-sexual harassment legal system and explore its progress and limits in dealing with workplace sexual harassment.
Methods: We reviewed China's anti-sexual harassment laws at the national, provincial, and municipal levels and observed how they were enforced in courts. All judicial cases of workplace sexual harassment published by Chinese courts between January 2021 and June 2022 were examined. From a comparative law perspective, we then identified the progress and drawbacks of China's legislative and judicial responses to workplace sexual harassment.
Results: China's current anti-sexual harassment legal system, while have made commendable progress, has its drawbacks: the definition of sexual harassment remains to be clarified and expanded to make it clear that sexual harassment is a form of gender discrimination and can include hostile environment harassment that is not directed against a specific person; the employer's obligations to prevent and correct sexual harassment need further delineation; employers lack guidelines for establishing a fair and effective grievance procedure; the difficulty of proving sexual harassment in litigation remains unsolved; the employer liability doctrine for sexual harassment lacks clarity; workers not in a traditional employment relationship receive inadequate legal protection from work-related sexual harassment.
Conclusion: The issues mentioned above merit consideration in China's future law revisions and judicial practice. In China and other societies where gender inequality remains high, it is recommended to regulate sexual harassment as a form of discrimination and to set clear compliance standards for employers in preventing and correcting sexual harassment.
Wang, Sasa, Lisa Eklund, and Xueyan Yang. “The Association Between Sexual Harassment and Mental Health Among Chinese College Students: Do Gender and Social Support Matter?”
International Journal of Public Health, vol. 67, 2022.
Abstract:
Objectives: This study examined the association between sexual harassment (SH) and college students’ mental health in the Chinese context and its gender differences, exploring the moderating role of social support.
Methods: Data were from the Third Survey of Chinese Women’s Social Status and included 5,032 college students. We employed the ordinary least squares (OLS) regression models with interaction terms to report the moderating effects of gender and social support on the association between SH and mental health.
Results: Gender harassment and unwelcome sexual attention were negatively associated with mental health among all students, with no observed gender difference. Financial and large-scale emotional support moderated the association between unwelcome sexual attention and women’s mental health but were not buffer factors for men. Learning support aggravated the adverse association between gender harassment and men’s mental health.
Conclusion: SH is a significant trigger for men’s and women’s mental health problems. When they are subjected to SH, financial and emotional support are protective resources for women, but learning support is risky for men.
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3. Domestic/Intimate Partner Violence 家庭/親密伴侶暴力
Chan, Mei Kwan, Siu Hang Cheung, Lap Shing Lin, Cheuk Kan Wong, “Victimization and Help-seeking Process of Female Experienced Intimate Partner Violence”
The University of Hong Kong, Master of Social Sciences in Criminology dissertation. 2021.
Abstract:
Intimate Partner Violence (IPV) which includes physical violence, sexual assault, and psychological abuse by current or former intimate partner, is a significant health-care issue and global social concern. A lot of women are the victims of IPV and face different problems and challenges in their help-seeking process and hence affect their help-seeking decision. This research aimed to identify the difficulties battered women face when they seek help from different sources including the Social Welfare Department (SWD), the law enforcement agency as well as the non-governmental organizations (NGOs) in Hong Kong. In order to enhance the understanding towards the battered women’s’ considerations and limitations in the help-seeking process, individual and social factors affecting their help-seeking behaviors were also examined. Five victims of IPV and two social workers from NGOs were interviewed to examine the practical situation of IPV in Hong Kong. The common causes of IPV and evaluation of the social support in Hong Kong have been thoroughly discussed and examined. Through the semi-structured interviews, the research revealed interviewees’ perception and evaluation towards the performance of different service providers. Results of the research helped to identify strengths and shortcomings of different service providers as well as provide recommendations to the government to review the overall situation of the laws, policies and services regarding IPV in Hong Kong.
彭文華,“受虐婦女綜合癥與殺夫案中正當防衛的認定”
法學評論，2022年05期，第66-77頁。
摘要：
受虐婦女綜合癥是指生活在暴力虐待關系中的婦女所表現出的某些共同心理和行為反應，其主要理論依據是習得性無助理論和暴力循環理論。受虐婦女綜合癥理論重塑了正當防衛緊迫性的內涵，為非對抗性殺夫案中的正當防衛認定提供了理論依據，拓展了正當防衛制度的適用范疇。運用受虐婦女綜合癥理論需具備如下條件：適用主體與對象是受虐妻子與施暴丈夫；受虐者遭受施暴者持續性暴力虐待；受虐者難以脫離施暴者控制；存在緊迫性暴力威脅。非對抗性殺夫成立正當防衛需要受到嚴格的條件限制，對抗性殺夫能否成立正當防衛要區別而論。我國以往的司法解釋有關受虐者傷害家暴者之正當防衛認定規定存在不協調之處，最新司法解釋在很大程度上接納了受虐婦女綜合癥理論的合理內核。
LGBT+ Rights 性小眾權利
Bao, Hongwei (2022), Contemporary Chinese Queer Performance.
Routledge.
Abstract:
In this ground-breaking study, Hongwei Bao analyses queer theatre and performance in contemporary China. This book documents various forms of queer performance – including music, film, theatre, and political activism – in the first two decades of the twenty first century. In doing so, Bao argues for the importance of performance for queer identity and community formation. This trailblazing work uses queer performance as an analytical lens to challenge heteronormative modes of social relations and hegemonic narratives of historiography.
Disability Rights 身心障礙權利
李勇，“殘障女性的權利困境及其回應理路”
山東女子學院學報，2022年06期，第68-79頁。
摘要：
1995年的第四次世界婦女大會，是殘障女性以組織形式跨入國際政治舞臺的第一次嘗試。此后，《殘疾人權利公約》第六條和殘疾人權利委員會第3號一般性意見的發布，代表著殘障女性在國際人權法上正式出場。在性別和殘障的雙重作用下，殘障女性生命周期中多種與性別質素直接相關的權利都面臨著嚴重困境。身心障礙和女性經歷導致的脆弱性、文化帝國主義支撐的殘障和性別歧視、公私二元理論結構對殘障女性的放逐、法律制度的推波助瀾以及司法者的“共謀”,共同導致了殘障女性的權利困境。要克服困境，需要引導歧視性文化的變革，弱化公/私領域的二元劃分，展開針對性的數據統計，完善法律制度設計，并增強司法救濟的作用發揮。
Reproductive Rights 生育權利
Shanyun, Xiao, “Uterus Rental: Regulating Surrogacy in China.”
Medico-Legal Journal, vol. 90, no. 1, Mar. 2022, pp. 41–44.
Abstract:
The development of surrogacy technology has brought hope to families with reproductive disorders. The current surrogacy regulations show that China has always been strictly against any form of surrogacy, but illegal surrogacy is still widespread. The departmental rule on surrogacy has a legal loophole; it does not clearly stipulate the legal consequences for involved parties who breach the regulation. China has not yet established a mature supervision and implementation hierarchy. The monitoring system for surrogacy is restricted to administrative special rectification; the prevention mechanism and the deterrence effect are not in place. Therefore, this article investigates illegal surrogacy in China, re-examines the current regulatory framework of surrogacy in China from the perspectives of legislation and supervision and suggests some changes needed to deal with the legal challenges posed by surrogacy.
Wang, Di, “Differential Coalescing: Re-Building the Coalition for ‘Single Women’s’ Reproductive Rights in China”
Journal of Contemporary China, 2022.
Abstract:
During the 2020 Two Sessions of Chinese Government, national representatives debated ‘single women’s’ reproductive rights (SWRR), a cause spearheaded by a coalition of queer feminist activists and lawyers in China. In light of state retaliation against feminist and LGBTQ movements since 2015, why have feminist activists, LGBTQ activists, and legal activists been able to coalesce around SWRR? My analysis shows a differential coalescing process, in which Chinese queer feminist activists have driven the coalition to constantly re-center queer women’s lived reality. I argue that these activists’ movements between and around different dominant strategies for challenging China’s state-family project and their commitment to rallying others who may differ in their approach have made SWRR a site around which to coalesce in post-2015 Chinese civil society.
Miscellaneous 其他
林麗霞,“關于農村集體經濟組織成員資格權立法的思考和建議——打破外嫁女維權的死循環
中華女子學院學報，2022年9月，第5期，第51-56頁。
摘要：
目前全國人大正在起草制定《農村集體經濟組織法》，集體經濟組織成員資格權問題無疑是該法的核心內容。但成員資格權應如何界定，國家立法是進行原則性規定還是具體規定，怎樣規定才能消除傳統觀念和習俗對農村婦女造成的不利影響，更好地保障她們的成員權益，這些都是需要深入思考和解決的問題。從實踐經驗和操作層面考慮，應將戶籍作為集體成員資格認定的唯一必要條件，將是否享有國家財政收入和保障作為排除要件，這樣才能體現公平公正，保障每位集體成員的合法權益，也才能有效解決外嫁女的權益糾紛問題。