China's #MeToo accusers crushed by burden of proof and counterclaims

PHOTO: South China Morning Post/Perry Tse

At a classroom screening of North Country at a US university in October, students were startled to find their Chinese-born teacher sobbing uncontrollably.

Little did they know that the film — based on the woman who won the first class-action sexual harassment lawsuit in the United States —had struck a personal chord with He Qian, 33, an Oklahoma State University faculty member.

Like the lead character Josey Aimes, He Qian had accused a man of sexual harassment and gone to court for it. But, unlike Aimes, she was the one sued — and she lost.

In January last year, a Chinese court ruled that He's allegations — that prominent journalist and philanthropist Deng Fei forcibly kissed and groped her — "lacked factual evidence and legal basis". She and a friend who helped share her story online were ordered to pay Deng 11,712 yuan (S$2,482) in legal fees and damages for defamation.

The same year, another high-profile sexual harassment case — filed by former CCTV intern Zhou Xiaoxuan against TV host Zhu Jun — was rejected after the Beijing court ruled the evidence submitted was not sufficient to prove the claim.

Like He, 28-year-old Zhou was also sued by the man she had accused of sexual harassment. That case is still pending.

He and Zhou's cases, both of which gained public attention at the height of China's #MeToo movement in 2018, show the legal and personal perils that persist for women speaking out about sexual assault in the country.

Speaking out, being sued

Both He and Zhou chose to share their stories in the summer of 2018, amid the country's burgeoning #MeToo movement when, seemingly for the first time, women were going public with allegations against celebrities and other powerful men.

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He Qian, who was born in China's southwestern province of Sichuan, initially shared her story anonymously in August 2018, on the WeChat account of a friend, journalist Zou Sicong. But she identified herself in November 2020 — two days before the first hearing — after a barrage of online comments accusing her of hiding behind anonymity.

According to her account, she was a 21-year-old intern at the Phoenix Weekly news magazine at the time of the alleged incident in 2009.

Deng, the chief reporter and one of her supervisors, allegedly invited her to his hotel room to discuss stories. But while there, he forcibly kissed and groped her, she said.

Months after the story went viral, Deng sued Zou, and then named He as co-defendant in July 2019.

Deng won the defamation case in December 2020, and He and Zou were ordered to pay him damages in January last year.

In court, Deng denied all allegations. "I've never done such a bad and stupid thing," he wrote in a post on WeChat after the ruling, adding that he did not recall meeting her.

The South China Morning Post tried to reach Deng for comment but several calls to his phone number went unanswered.

Zhou, known by the pseudonym Xianzi, was also an intern in the media industry when she said she was harassed by Zhu.

While an intern at state broadcaster CCTV in 2014, Zhou said she tried to interview Zhu — the host of state broadcaster CCTV's annual Spring Festival Gala — in the make-up room one afternoon for her class project.

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According to Zhou's account, during the encounter Zhu allegedly touched her repeatedly and then forcibly kissed her.

After the alleged incident, Zhou said a teacher accompanied her to the police station, but the police told her to keep it to herself as Zhu was "positive energy" for society and it would "hurt many people's feelings" if she spoke out.

She stayed silent for four years before sharing her allegations in 2018 because she wanted to express solidarity with survivors, particularly a friend who revealed she had been raped, Zhou said.

"I wanted my friend to feel that there were people in this with her, so she wouldn't be so sad."

Zhou's story went viral after it was re-shared by Xu Chao, an online influencer who went by the screen name Maishao Tongxue.

Zhu sued both Zhou and Xu for defamation, but Zhou countersued him.

At the time, sexual harassment was not accepted as grounds for civil lawsuits in China, so she filed her case under the country's nebulous "personality rights" law, which covers rights relating to an individual's health and body.

A clause concerning sexual harassment became effective at the start of 2019, but the court turned down her lawyers' request for the case to be considered under the new clause.

Three years after the case was filed, a Beijing court dismissed it in September, saying Zhou did not meet the burden of proof.

Zhu did not respond to the Post's requests for comment. In a Weibo post in December 2020, about 20 days after the first hearing, he denied the allegations and wrote that he "never touched that woman".

A high degree of likelihood

In civil suits in China, it generally falls on the plaintiffs to prove the facts of the case to a "high degree of likelihood".

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For victims, proving harassment that occurred behind closed doors is challenging without recorded evidence. Those claiming damage to their reputations from sexual harassment allegations, on the other hand, are more successful.

One organisation looking at those cases is Beijing Yuanzhong Gender Development Centre, one of China's top women's rights groups. It found 24 cases involving alleged sexual harassment victims suing for damages between 2019 and 2021 on China Judgments Online, the Supreme People's Court database.

Six of them were withdrawn by the plaintiffs, according to a report by the group in November. Sexual harassment was found to be partially established in only four — or 16.6 per cent — of the cases.

In the same period, 33 people accused of sexual harassment sued their accusers for defamation, according to the Yuanzhong report. Some 23 of these — or about 70 per cent — won.

"Does it mean that only four women were sexually harassed in China in the past three years?" Zhou asked. "No, it couldn't be. This only proves that existing laws do not support women who come forward to win the case. They don't support them for speaking up."

Yuanzhong director and lawyer Li Ying said: "Often in a closed environment, collecting direct evidence is difficult and the victims will bear a huge mental stress when they speak out about their ordeal. So a special standard of proof that is relatively favourable to the victims, such as attaching importance to circumstantial evidence, would be better."

For example, He reported talking with friends and psychologists many times after the incident. Testimony from these witnesses could have been considered, Li said.

In a statement after the verdict, Zou and He's lawyer Xu Kai said the court had put the burden of proof entirely on the accused.

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"This is equal to telling someone who was humiliated, who was hurt, that if you don't have audio recordings or videos of the event, then you better hurry up and shut your mouth," Xu Kai said.

Zhou called police the day after she was allegedly harassed and the police pulled surveillance footage and conducted a DNA test on her clothes but, with both pieces of evidence remaining with police, she said the court rejected requests by her and her lawyer to screen the footage and re-test the DNA.

"China hasn't had a full discussion about sexual harassment and let the judges reach a consensus on what sexual harassment is so the judges can really understand the situation a woman faces in sexual harassment," Zhou said.

"If we want to achieve it, it requires many women to get into the system to 'roll on a bed of nails'. And that is a very cruel thing."

Personal costs

Both He and Zhou said the sexual harassment cases and subsequent verdicts had changed their lives.

Zhou recalls how "scared" she was when she received the verdict of the first trial in September.

"I don't know how I got through that time. I kept crying, it was a very difficult process," she said, adding she was worried she would be further punished if Zhu's defamation lawsuit against her proceeded.

PHOTO: Screengrab/YouTube/South China Morning Post

After the case went public, Zhou was accused of lying and was harassed online. On Weibo, searches for her name mainly turn up posts criticising Zhou and supporting TV host Zhu's defamation case against her.

"When the case failed, [Zhou] was seen as a liar, lost her public reputation, lost her career. That's very serious," said Lu Pin, a veteran social activist and founder of women's rights group Feminist Voices.

Some even accused Zhou of colluding with forces outside China because she gave interviews to foreign media.

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Zhou said previous local stories that featured her had been deleted and taken down, and no national media had asked to interview her since. In 2021, her Weibo account, a Twitter-like social media platform in China, was blocked and deleted. Numerous accounts showing support for her or sharing the scenes of the hearings have disappeared from China's internet.

Zhou said she had to quit her job as a film and television screenwriter because of the case.

"Screenwriting is a team job, and I'm in the state of being interrupted all the time [by the lawsuit and related things]," Zhou said. "How could I keep making people wait, even though my colleagues care about and support me?"

The three-year journey for He, who has a doctorate in cinema and media studies from the University of Washington, Seattle, was also arduous.

In addition to crying in class, she also occasionally lost her cool at work, she said. Fighting a lawsuit in China — including a long power-of-attorney process — while living in the US had been cumbersome.

Zou, who helped He publish the original post, quit his job at a Hong Kong media outlet and moved to Shenzhen over the case. He now lives in Gottingen, Germany, where he is pursuing a master's degree in European studies.

"The case taught me to reflect [on] our previous knowledge, perhaps, which was unjust because there was no victim's narrative and language," the 30-year-old said. "The existing language and wording [of the law] are patriarchal."

Fighting a 'war'

Zhou was not only a victim but personally drove #MeToo activism in China, leading large-scale debates and offline activities, advocates say.

"[Her] case was seen as a war — a war between women and sexual harassers and men supporting them," Lu said. "Victims and activists are usually distinct groups, but [Zhou] played a dual role, for a brief time, because there was no longer room for professional social activists to survive."

There have been a string of crackdowns against Chinese feminist activists since 2015, when the authorities detained five young women for "picking quarrels and provoking trouble" over a plan to stage a protest on International Women's Day against the sexual harassment of women on public transport.

"Through [Zhou] and He Qian's cases, the authorities have communicated their attitude: They won't change," Lu said.

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"Perhaps others will be scared away, and some will continue to speak out, but it is no longer possible to mobilise a large group focusing on a case, advocating and pushing the [#MeToo] movement forward."

On the other hand, state repression of the larger movement would only further anger women, causing them to fight back, Lu said.

"Women's anger at male-dominated power and anger at feminism being suppressed by the state are two waves of anger that are entwined after feminism was labelled as a hostile foreign force," she said.

"We never know who will come forward next: For example, no one expected Peng Shuai to speak out about her experience."

Tennis star Peng drew international attention last year after a viral social media post on her account said she had been embroiled in a years-long affair with the country's vice-premier Zhang Gaoli and that he had forced her to have sex in one encounter.

She later said the allegations of sexual abuse had been a "misinterpretation" of a private matter.

Other prominent men accused of sexual harassment and assault last year include Chinese-Canadian singer Kris Wu and Hunan Television anchor Qian Feng.

Both Zhou and He have vowed to fight anew and to explore any remedies available within the judicial system.

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"These more than three years have been very precious to me," Zhou said. "I have encountered unavoidable pain and gained the determination to face it head on."

After her defeat in September, she started working with her lawyers to prepare her appeal, asking the public for help to better understand what was needed to win and to better prepare materials, such as a diagram of the room in the CCTV building.

"It seemed that after the hearings I should have had a break but I didn't. I had to write articles and draw diagrams. I knew I was very traumatised but there was no way to rest," she said.

If Zhu does win his defamation case against her, Zhou said "it will continue to be proof that I have been treated unfairly … it definitely does not prove that I should not have come forward with my experience back then."

He Qian also said she planned to appeal. "[The verdict] seemed like a really bad ending, the beginning of more chaos," she said.

"But it wasn't that bad. It's not an end, it's never an end."

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This article was first published in South China Morning Post.