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V. Harassment of Activists Working with Persons at High Risk of HIV Transmission

As China rapidly develops economically, the country is beginning to confront major social problems linked to growing economic inequality, such as the growing number of rural injection drug users and the parallel growth of the sex industry. One of the challenges posed to many countries by the AIDS epidemic is that it tends to hit hardest those who are most marginalized by mainstream society. The more that injection drug users, sex workers and men who have sex with men are stigmatized and driven underground, the less likely they are to step forward for HIV testing or to be in contact with government programs that offer information, preventive services and treatment.

One key to preventing the spread of AIDS is therefore protecting the rights of those on the margins; as lesbian and gay studies scholar Zhang Beichuan observes, in the context of AIDS, “Protecting the rights of vulnerable persons is equivalent to protecting the rights of the great majority of people.”¹⁰¹ The ability of injection drug users, sex workers, and men who have sex with men to defend themselves against the epidemic depends on their having space to mobilize collectively, to share information and compare experiences, and to do so in a way that protects their confidentiality.

Chinese officials have taken some steps toward greater understanding: China removed homosexuality from the official list of psychological diseases in 2001, and has begun providing methadone treatment and needle exchange services to drug users in some provinces, with plans to expand these programs nationwide.¹⁰² At the same time, other Chinese policies take a contradictory approach, by targeting large numbers of injection drug users and sex workers for administrative detention, and censoring lesbian and gay websites as part of nationwide campaigns against Internet pornography. These policies obstruct the work of AIDS activists working in those communities.

As China confronts rapid social change, Party officials often refer to an urgently felt need to “wipe out social evils.” This moral rhetoric fuels popular fears and stigmatization of men who have sex with men, sex workers and drug users; and in turn increases the fears these persons have of police and other authorities. At times, concerns about “social evils” and the need for “socialist spiritual civilization” are linked to notions of corruption by the West. In 2002, the amended Constitution of the Communist Party of China declared itself to be:

leading the people in their efforts to build spiritual civilization as well as material and political civilizations, and to combine ruling the country by law with ruling the country by virtue….It is essential to…imbue the Party members with the lofty ideals of communism, resist corrosion by decadent capitalist and feudal ideas, and wipe out all social evils, so that our people will have lofty ideals, moral integrity, a good education and a strong sense of discipline.¹⁰³

At other times, official statements refer to “social evils” as lingering from China’s “feudal” past, and refer nostalgically to the elimination of drug use and sex work through draconian measures in the 1950s. In a 2000 government white paper on human rights, the State Council asserted that

Prostitution, drug trafficking and addiction, and gambling are social evils left over from old China…. [T]he people's government, on [the] one hand mobilized the masses to struggle against and punish drug producers, drug traffickers, and gambling rings, and on the other it did extensive publicity work so as to enhance the consciousness of the masses, and reform drug addicts and gamblers. After two to three years of efforts, these social plagues…were basically wiped out.¹⁰⁴

An internal debate appears to be underway between Chinese health officials and public security officials about the merits of harsh criminal penalties for drug users and sex workers, versus more tolerant policies that protect their rights.¹⁰⁵ Meanwhile, injection drug users and sex workers continue to suffer arbitrary detention and face stigma and harassment from officials, law enforcement agencies, and the wider society in China. Police conduct regular “sweeps” of social “undesirables,” putting both drug users and sex workers in administrative detention centers, which differ little from prisons. Police censorship of Internet sites with frank discussions of sex between men who have sex with men are also closing the few public spaces where lesbians and gay men can mobilize to share information. All these campaigns drive underground persons who are most in need of state and NGO assistance in the AIDS crisis.

In the U.N. HIV/AIDS and Human Rights International Guidelines, the U.N. explicitly warns of the problems that can arise from associating law enforcement with public health measures:

HIV prevention and care programs with coercive or punitive features result in reduced participation and increased alienation of those at risk of infection. In particular, people will not seek HIV-related counseling, testing, treatment, and support if this would mean facing discrimination, lack of confidentiality and other negative consequences. Therefore, it is evident that coercive public health measures drive away the people most in need of such services and fail to achieve their public health goals of prevention through behavioral change, care, and health support.¹⁰⁶

Activists working with injection drug users and sex workers

China is now confronting escalating problems with drug addiction and with an exploding sex industry, and these issues pose major challenges for China’s response to the AIDS epidemic. Both injection drug users and sex workers are detained for extended periods without trial, and are subject to mandatory HIV testing without their consent. The ever-present risk of detention combined with harsh police treatment of both groups has created severe obstacles for AIDS activists working with them.

Individuals infected via the blood scandal discussed above still probably form the majority of those living with HIV in China, but most were infected with HIV prior to 1996; the main HIV transmission route today appears to be via injection drug use.¹⁰⁷ According to an official estimate, in some areas of south China, HIV prevalence is reported to be between five and ten percent of sex workers, and official reports say the majority do not use condoms.¹⁰⁸ Other scholars estimate that 22 percent of Chinese sex workers are HIV positive.¹⁰⁹

In response, China has recently initiated policies that will offer methadone treatment to injection drug users and clean needle exchange programs.¹¹⁰ As Min Xiangdong, deputy director of the Yunnan Province Center for Disease Control explains:

Fighting against drug addiction should begin from the root cause, but to those who cannot give up the addiction right now, there is no harm to take a step back. What we need to do is not only replace their dirty syringes for clean ones, but also try to influence them through awareness in order to eliminate their dangerous habit.¹¹¹

At the same time, Yunnan continues to imprison injection drug users by the thousands.

In China, drug users are rounded up by local police, often as part of sweeps of “undesirables” before holidays or political meetings.¹¹² In accordance with the Methods of Forced Detoxification,¹¹³ a State Council policy that is enforced by police as if it has the force of law, local police stations can consign drug users from three to six months to a forced detoxification center, without trial. In 2002, Human Rights Watch visited a forced detoxification center and interviewed drug users who had been detained in other, smaller camps, as well as NGO staff who had visited similar facilities.¹¹⁴ Human Rights Watch research found that such camps are militarized, with “re-education” consisting largely of rote repetition of slogans, marching in formation, and repetitive drills such as doing squats while shouting off numbers. Interviewees described conditions of poor sanitation, poor and inadequate food and drinking water, and serious overcrowding. Human Rights Watch observed inmates forced to work without pay. For former detainees, the overriding message is one of marginalization from mainstream society and distrust of those in authority. As a result, injection drug users and sex workers seek to minimize any interaction with government authorities, or any organized gathering, that could subject them to “reeducation through labor.”

Sex workers face similar forms of detention. Estimates of the number of sex workers nationwide range widely, between three and six million.¹¹⁵ The sex industry is exploding in China, both in cities and in impoverished rural regions, where brothels and karaoke lounges have sprouted up along major highways and near construction sites and mines. A significant number of sex workers work through massage parlors and hair salons, which are fronts for brothels.¹¹⁶ Police also have wide latitude to sentence sex workers to administrative detention without a hearing or trial in re-education through labor camps. The broad leeway granted police in their treatment of sex workers means that police can extort confessions and bribes with impunity. In recent years, growing attention to police abuse by Chinese media has brought to light some cases of police abuse of sex workers, including cases of extorted confessions, rape and sexual abuse, and even murder.¹¹⁷

Fear of government reprisals limits the ability of civil society groups to work with drug users or sex workers.¹¹⁸ For instance, in northwest China, where over fifty percent of injection drug users are HIV-positive and the government maintains tight political control, authorities have sometimes clashed with AIDS activists who are former drug users.¹¹⁹ A doctor running an outreach program for sex workers in Guangxi told a reporter that initially few sex workers participated in the program because of fears of detention.¹²⁰ Organizers told Human Rights Watch that a series of conflicts between AIDS activists and local authorities culminated in a police raid on a workshop on AIDS and law in November 2004 that was attended by seventeen people with HIV/AIDS, including some former drug users.¹²¹ Soon after, one of the organizers heard that he was at immediate risk of arrest and fled the region.

Xu, an organizer of the workshop, had repeatedly clashed with local authorities during 2003 and 2004 because of his AIDS activism. According to a colleague, Xu publicly criticized local authorities for failing to deliver on their public promises of free antiretroviral treatment. In retaliation for this public embarrassment, authorities asked Xu to leave a provincial AIDS organization with which he had been affiliated. Xu in turn went over the heads of the provincial authorities, and appealed to a national government agency to intercede. Beijing authorities reportedly did so, inviting Xu to set up a new AIDS support group. Once affiliated with the new support group, Xu began again to be outspoken in his criticisms of local authorities to Chinese press and in international meetings. ¹²²

Because of Xu’s frankness and outspokenness, members of Xu’s new group began to fear for their safety. As a result, Xu and his colleagues convened their AIDS and law workshop in a comparatively low-profile hotel conference room instead of in an official meeting hall, and met without any official government affiliation or political approval. They invited a lawyer and a group of people with HIV/AIDS to discuss laws on intentional transmission, divorce and family law, discrimination against people with HIV/AIDS, and other issues. A person living with HIV/AIDS for nine years who volunteered with Xu’s group described what happened next:

The police came in the door and told us to put our hands on the tables. There were eight police officers. They said, “Don’t touch anything,” – we had pens to take notes, and they told us not to even pick up our pens. I said [to myself], I’m not using [drugs], so I have nothing to fear.

We all went downstairs and there was a big van, and they took us all away. At the station…they registered our names and identity numbers, addresses, phone numbers. Then we took drug tests….We were there from noon until six p.m. We had no food, no water. At six…they let us go. As a result [of the tests], they knew we were HIV positive. They did detailed records of each of us. Not one person tested positive for drugs.¹²³

After the raid, Xu heard from friends that he was at immediate risk of arrest. He fled to another province to wait until the controversy blew over.¹²⁴

The ever-present fear of police retaliation also silences activists working on behalf of sex workers. For instance, when Human Rights Watch approached several Chinese organizations representing sex workers, they said they were reluctant to discuss the issue of police mistreatment because they feared reprisals.

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Given the contentious relationship between Xu’s group and local authorities over AIDS activism, it is not clear whether police raided the workshop because they believed they would find drug users there, or in order to intimidate and undermine a group that had been a thorn in the side of local government. In either case, such raids are not wise AIDS policy. The Chinese state should not use coercion to detain drug users in forced detoxification centers in the first place, and there is no legitimate basis for conducting raids of this kind to ascertain whether or not participants are users. Moreover, conducting raids on AIDS workshops such as this one for any reason will only discourage people at risk from publicly identifying themselves and getting together to share information. Testing people at risk of HIV/AIDS without informed consent, especially given China’s lack of protections of confidentiality and widespread problems with discrimination, will also drive them underground and away from government and independent AIDS outreach programs.

A related concern for injection drug users and sex workers is testing by police and prison officials for HIV without informed consent of those tested; the lack of anonymity in China’s testing systems is especially worrying in the context of the almost total lack of protections against discrimination for people with HIV/AIDS. Non-consensual medicalprocedures violate the right to the highest attainable standard of health, enshrined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights.¹²⁵ In the context of conducting surveillance testing and other research on HIV/AIDS, Guideline 5 of the U.N. HIV/AIDS and Human Rights International Guidelines calls upon states to “ensure privacy and confidentiality and ethics in research involving human subjects.” Guideline 3 states that “public health legislation should ensure that HIV testing of individuals should only be performed with the specific informed consent of that individual.”¹²⁶

Restrictions on AIDS information for men who have sex with men

In China, men who have sex with men are highly vulnerable to the spread of HIV/AIDS, and Chinese behavioral studies say that a high percentage still does not use condoms.¹²⁷ The State Council and UNAIDS have called for greater outreach to Chinese men who have sex with men with HIV education and prevention programs.¹²⁸ However, social mores and legal restrictions have made it difficult to provide information about AIDS to this group. China has no laws prohibiting discrimination against or harassment of lesbians and gay men.¹²⁹ Chinese scholars and activists say that homophobia and discrimination are common.¹³⁰ Zhang Beichuan has conducted research indicating that thirty-eight percent of men who identify themselves as gay have experienced incidents of violence and verbal abuse based on their sexual orientation.¹³¹ Many men who have sex with men also do not publicly identify themselves as gay or tongzhi.¹³² According to official statistics, eighty percent of gay men are married or will marry.¹³³

Even for those who choose to identify as gay or tongzhi, meeting collectively can pose difficulties. According to one gay rights activist, Dalian gay bars have in the past been targeted by police for harassment and men coming out of them have been detained and compelled to pay fines.¹³⁴ In 2002, a group in Dalian invited over one hundred lesbian and gay rights activists to a national conference in the northern city of Dalian. Learning of the conference and calling it an “illegal assembly” because it was not hosted by a government agency or approved by one, police halted the conference and told participants to return home.¹³⁵ As Chinese scholar Zhang Beichuan says, “The [societal] exclusion of homosexuals makes it difficult for them to receive scientific information.”¹³⁶

Internet censorship

In this climate, the Internet has emerged as a critical means of disseminating AIDS information. But as a result of government regulation of pornographic materials on the Internet—which in China, by definition, include lesbian and gay websites—Chinese activists face restrictions on their efforts to publish HIV/AIDS information aimed at men who have sex with men.

Cao, the manager of one lesbian and gay website, explained the role of the Internet as a forum for disseminating AIDS information:

We support people changing their behavior [to protect against AIDS], and to do that, people need to be able to get information. Chinese tongzhi don’t have the right to free speech, and we can’t run our own media. So our site has become a publishing center for information around the country. People come to us to publish their information and they expect us to report their news. We’re really a service center -- “wei tongzhi fuwu” – “Serve the comrades” – and we do it all for free.¹³⁷ We have about thirty volunteers, and they all work out of idealism.¹³⁸

In China, the Internet is governed by a wide array of laws, regulations, and official news agency guidelines. National regulations, including the Methods for the Management of Computer Information Network International Internet Safety Protection, forbid the publication of obscene (yinhui 淫秽) or sexual (seqing 色情) information.¹³⁹ The Regulations on Management of Publishing, which have been interpreted as applying to the Internet, also prohibit publishing or “promulgating” obscene materials.¹⁴⁰ These regulations do not define obscenity, and in practice, local authorities have wide discretion in how they implement these regulations, and have broad authority to determine what may or may not be obscene.

One of the few national regulations to define the term “obscene” is the Temporary Regulations on the Establishment of Obscene and Sexual Publications, issued in 1988 and still in force. These regulations define an obscene publication as any publication whose content “arouses peoples’ sexual feelings sufficiently to result in the corruption and degeneracy of ordinary people, and that also lacks artistic or scientific value.”¹⁴¹ Under these regulations, same-sex activity is by definition obscene. Article 6 of the Temporary Regulations states that material may be considered obscene if it includes: “Perverted (淫亵性) and specific descriptions of homosexual sexual behavior or other abnormal behavior, or specific descriptions of abnormal energy, ill-treatment, or humiliating behavior.”¹⁴²

Other regulations go even farther. For instance, the Regulations on the Severe Statement on Prohibition of Obscene Publications Regulations, which exclude materials used for scientific purposes from the category of “obscenity” or pornography, nevertheless allow censorship of much information necessary for protection against AIDS. These regulations note that:

Even those publications that are not obscene, but that have prominent sexual content, and that seriously harm the physical and mental health of young people, without exception may not be published, copied, sold, rented, or hidden.¹⁴³

Lesbian and gay rights activists who spoke to Human Rights Watch cited a case in Dalian in August 2003 as a major incident that demonstrated the government’s broad authority to shut down lesbian and gay websites without warning, on the charge that they publish obscene materials and corrupt youth. Police in the city of Dalian closed a “Dalian tongzhi” website without notice after a local newspaper reported in a series of articles that members of the website were using the site to make dates for casual sex. Although China has no legal minimum age of consent for lesbian or gay relationships, the article raised fears that site users under the age of eighteen were being corrupted by adult lesbians and gay men.¹⁴⁴ The article was immediately picked up by national news media. The following day, Dalian police closed the site and initiated a criminal investigation of the site managers.¹⁴⁵

One gay rights activist reported to Human Rights Watch that in the weeks following the Dalian case, other lesbian and gay websites that included AIDS information were temporarily blocked.¹⁴⁶

On July 16, 2004, Zhou Yongkang, the head of China’s Ministry of Public Security, appeared on national television and called on every region and every ministry in the country to join in a national campaign to shut down all pornographic websites on-line “for the sake of development of the Internet.”¹⁴⁷ Eleven days later, police reported that nearly 700 “obscene” or sexual websites had been shut down.¹⁴⁸

The 2004 crackdown temporarily closed dozens of lesbian and gay websites around the country, including many that provided AIDS information. According to Cao, a manager of a lesbian and gay website:

This past July, all of the tongzhi sites were shut down. People who tried to open them were bounced to a government site that said, “This is illegal information.” This was part of the government’s big cleanup of the web, where they swept everything away. They shut down everything, very broadly.¹⁴⁹

An activist running a non-profit website whose purpose is to provide AIDS information aimed at men who have sex with men said,

We opened one site, it was shut down, and now we’re trying to get permission again. We’ve been doing AIDS and sexuality education for a long time. Our goal is to give people health information.¹⁵⁰

Zhang Beichuan reported that authorities shut down the message board on his self-run website, which provides AIDS information targeted to men who have sex with men. The message board on his site was used for exchanges about many topics, including questions about AIDS and sexually transmitted diseases, while some sex workers used the message board to advertise. As part of the nationwide crackdown on pornographic websites, authorities ordered it shut down in January 2005.¹⁵¹

Some activists told Human Rights Watch that the pervasive threat of government censorship of lesbian and gay websites and the jailing of webmasters had created a chilling effect on efforts to share HIV/AIDS information on the Internet, which naturally often includes sexually explicit information.¹⁵² Cao, whose website provides a question-and-answer column about HIV/AIDS and sexually transmitted diseases, said that China’s obscenity laws prevented her from talking frankly about HIV prevention on the website. “We changed our materials as a result of the sweep,” she said. “If you have ‘yellow’ [sexually explicit] materials, you will have trouble.”¹⁵³ She added that her website has now eliminated much of its sexual content, especially photographs and drawings, and that she now censors submissions by website users.

Chinese lesbians, gay men, and bisexuals have internationally-guaranteed rights to non-discrimination, to free expression, to free association and to information about HIV/AIDS.¹⁵⁴ China is bound by its constitution to uphold free expression, and has signed but not yet ratified the International Covenant on Civil and Political Rights, which includes in free expression the right to “seek, receive and impart information and ideas of all kinds.”¹⁵⁵ While obscene material is not protected under international law, regulation of speech must be precise enough to avoid suppressing or inducing self-censorship of material that may be controversial, but permissible. China’s failure to define “obscenity” in a way that makes clear that sexually explicit information on HIV/AIDS directed at sexual minorities is permissible is a problem. Likewise, China’s closure of some websites without giving warnings or opportunity to identify and correct material deemed to violate the law also infringes on these rights.

China is also a state party to the International Covenant on Economic, Social and Cultural Rights, whose treaty body has interpreted the right to health to include the right to “access to health-related education and information, including on sexual and reproductive health.”¹⁵⁶ The state’s sweeping restrictions on lesbian and gay websites violate these basic rights and hamstring China’s response to the AIDS crisis.