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Novel case about pornography, not prejudice

China Daily | Updated: 2018-11-22 06:58
[Shi Yu / China Daily]

Editor's note: Some Western media outlets have said the recent sentencing of novelist Tian Yi, who has earned about 150,000 yuan ($21,610) from the sales of about 7,000 copies of her novels including those with gay sex content, shows China's discriminatory attitude toward gay people. Such claims are misleading. But how should we view the debate sparked by the case? Three experts share their opinions on the issue with China Daily's Liu Jianna. Excerpts follow:

Judicial explanations should be upgraded

Tian Yi, the author of a dozen or so erotic novels, some with gay sex content, was sentenced to 10 years and six months in prison on Oct 31 on the charge of creating and selling pornography. The jail term triggered an outcry on social media this week, attracting the attention of netizens at home and abroad. Some activists even claim Tian Yi's sentence shows China's intolerance of homosexuality, which is ridiculous.

Tian Yi was sentenced because she created and sold pornography irrespective of whether the characters are homosexual or heterosexual. But if homosexuality is included as an issue in any discussion or debate, many could get carried away and lose track of the real point of the case.

First, the sentencing of Tian Yi is backed by law. Yet some netizens' claim that her jail term is severer than that given to some rapists is understandable. And Chinese people's opinion about pornography has changed quite a bit in recent years. For instance, a survey conducted by Renmin University of China shows the number of people who have watched pornography videos or pictures has been constantly on the rise since 2000, and about 75 percent of youths between 18 and 25 have viewed pornography at least once.

Compared with the past, creating and selling pornography is no longer a seriously harmful offense in some people's eyes, which could have led to the social media outcry over Tian Yi's sentencing. But the fact that netizens say Tian Yi's sentence is "disproportionately" severe suggests the judicial interpretation and explanation of the laws should be updated in accordance with the changes in society.

Still, public opinion should not influence court judgments, and judicial authorities' independence should be safeguarded. Yet Tian Yi can expect a commuted sentence as the judicial explanation provides a range of jail terms for such an offense.

Zhao Jun, a professor at the College for Criminal Law Science, Beijing Normal University

Extensive reform of Criminal Law needed

Tian Yi's case has touched many netizens' nerves, especially because she has made only about 150,000 yuan and yet she has been jailed for creating pornography while actress Fan Bingbing escaped criminal sentencing by paying tax arrears of about 800 million yuan. In fact, many believe the Criminal Law is not applied uniformly.

Somewhat tardy adjustments to the laws in accordance with the socio-economic changes have led to the misalignment between the judicial system and public opinion to a certain extent. The amendments to the Criminal Law in respect of certain crimes have led to contrasting cases-an actress evading tax worth hundreds of millions of yuan avoids criminal liability and some suspects getting prison terms for some inadvertent accidents.

Some legal experts believe it is good to encourage tax evaders to pay their arrears along with the administrative fines and avoid criminal sentencing according to the Criminal Law. But to advance the rule of law, it is important to enact a unified Criminal Code, or general principal of Criminal Law. And just like the Civil Code, the Criminal Code should be aimed at awarding criminal sentences according to the severity of the crime.

Also, public hearings should be held to solicit the opinions of legal and education experts, and scholars, so as to get public support for the judicial practices.

Qiao Xinsheng, a professor at Zhongnan University of Economics and Law

Not all gay-themed contents are porn

Some netizens believe Tian Yi's prison term is disproportionately high because there are no victims in the case, which is totally different from cases involving rape, murder and theft. They also say people have bought Tian Yi's books out of their own free will, and the books have not impaired or threatened their interests.

Also, the gay-themed contents in some of Tian Yi's novels have been classified as abnormal relationships comparable to incest, sexual perversion, sexual assault or sexual violence, according to the General Rules for the Review of Online Audio-Visual Programs issued by China Netcasting Services Association in June 2017. Just like not all heterosexual contents are classified as pornography, not all gay-themed contents should be listed as pornography as the general rules suggest.

Over the last decade, the tanbi culture, or the pursuit of beauty in Japanese, has become popular among women in East Asia, especially the fujoshi-female fans of Japanese manga and novels featuring romantic relationships between men. Being strictly supervised by parents and forbidden from developing a relationship at a young age, fujoshi often seek comfort and satisfy their yearning for pure love in tanbi creations and find solace in the romance between pretty men, even though it is far removed from their real lives. This should be differentiated from true gay culture.

Li Yinhe, a research fellow at the Institute of Sociology, Chinese Academy of Social Sciences

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