“Police remand married couple for watching porn at home: a followup”

By Jiang Xue & Zhang Xiaobin

After our first coverage of the police responding to a report that a married couple was watching pornography at home, our follow-up reports have led to widespread attention around the country, with legal experts both in Shaanxi Province and nationwide discussing if watching pornography at home is illegal and if their clash with the police constituted the crime of “obstructing official duties.”

Background

Around 11 pm on 18 August 2002, the Wanhua Police Substation in Baota District, Yan’an City of Shaanxi Province received a tipoff that a couple, surnamed Zhang, were watching pornographic videos at home. Four police officers were dispatched to the Zhangs’ residence, where they clashed with the couple upon entering the premises, resulting in injuries to two officers. Subsequently, the police took the husband into custody, on the grounds that he was obstructing official police duties. Additionally, they seized three video discs, a television set, and a video disc player. Mr Zhang was later released after posting 1000 CNY bail, but was retaken into custody after two months at noon on 21 October by the Baota District Public Security Bureau, and detained under the criminal charge of “obstructing official duties.”

Key points

• Did the police actually receive a “tipoff,” and how did they gain entry into the Zhangs’ residence?

• Were the police in uniform, and did they clearly present identification? Did they act in accordance with the law?

• How did Mr Zhang clash with the police, and did his actions constitute obstruction of official duties?

The protagonists in this incident were a young couple who had just married more than a month ago: Mr Zhang, aged 25, and his wife Ms Li, aged 23. Two months after the initial incident, police in Baota District, Yan’an City arrested Mr Zhang on the criminal charge of “obstructing official duties,” leading to anxiety, anguish, and anger among Ms Li and the couple’s families. The key points raised above are inextricably tied to this incident. As legal experts who have closely watched developments note, the question lies in who exactly acted against the law.

Journalist’s first-hand account

Around midnight on 18 August 2002, our Yan’an-based reporter arrived at Wanhua Police Substation in Baota District, after receiving calls from locals about the incident. Zhang was already in the detention chamber when the reporter arrived, and our request for an interview was denied. He Hongliang, head of the Wanhua Police Substation, agreed to an interview the following morning. Our reporter then went to the Zhangs’ residence, where they took photos of the bedroom lying in disarray, a clear indication that there had been a scuffle in the room.

At 10 am the following morning, our reporter arrived at Wanhua Police Substation at the prearranged time. Chief Officer He Hongliang described his account of events.

Around 11 pm on 18 August, the station received a tipoff that someone in the Zhang residence, which was located in the station’s jurisdiction, was watching pornographic videos. He immediately dispatched four of his officers to the scene, who ordered Zhang to open the door, and immediately went into Zhang’s bedroom, by which point the television in the bedroom had already been turned off.

When the officers tried to take the video disc from the machine, Zhang tried to prevent the officers from conducting their duty, and even struck an officer with a wooden stick, causing the officer to suffer a swollen hand, while another officer had their clothes torn. As a result, the officers took Zhang into custody on the grounds of obstructing official duties. Chief officer He then summoned the injured officer so that the reporter could see his wounds, and had another officer show the reporter the T-shirt that Zhang tore apart.

Chief Officer He then led the reporter to the detention chamber, where Zhang was interviewed in the presence of He and other officers. Zhang was reluctant to respond to the reporter’s questions, instead repeatedly stating that he merely hoped for a swift resolution. Zhang then confessed to hitting an officer with a wooden stick during the altercation. As for whether he himself was hit, Zhang said that someone did punch him in the back, but was told by the others to stop.

When asked why he had escalated to physical fighting, Zhang was unequivocal: the four officers did not wear police caps, police badges, or identification numbers, and because he did not know these were police officers, he naturally resisted when they attempted to take his possessions. At this point, Chief Officer He pointed to the uniform he was wearing and told the reporter that his officers always wore the same set of clothes when out and about, so everyone in the precinct should have no trouble recognizing them.

Later that day, Wanhua Police Substation issued Zhang a list of seized items and a bond postage notice. The text on the list read as follows: “On 18 August 2002, in Piyidu Village, Wanhua Township, the following indecent materials were seized on the scene from the undersigned Zhang.”

The bond notice read: “To the undersigned Zhang, you are hereby required to post a bond of 1000 CNY because you have obstructed officers carrying out official duty. You are required to post the requested amount to the substation on the same day of issuance of this notice.” After posting the 1000 CNY bond, Zhang was released and was allowed to take his television set and video disc player back home with him. Zhang’s wife, Ms Li, told our reporter that the police initially demanded 3000 CNY, which was reduced to 1000 CNY after some haggling.

After the incident, Zhang’s family took the injured officer to the hospital; in addition to purchasing medicine, milk powder, and cigarettes for the officer, they gave him a cash gift as well as a token of apology. Thinking that the incident had now been resolved, Zhang later called the reporter to tell his account of what really happened that day: he was beaten in the police substation and was taken to the hospital afterwards.

During the interview with the reporter in the detention chamber, he was afraid to tell what really happened, since he had been warned not to speak the truth beforehand, and officers were also present during the interview. Little did Zhang and his family know, some two months after the incident, at noon on 21 October, officers from the Baota District Public Security Bureau took Zhang away for “investigation,” and then remanded him again in custody under “suspicion of obstructing official duties.” Zhang’s wife Ms Li refused to sign the official notice, as she felt the charge was unjust. 

Ms Li confounded by her husband’s criminal detention

In Ms Li’s words, “We were already asleep by then, the television had already been turned off roughly half an hour ago. When they came in, they tossed our blankets off from the bed and snatched away the video disc player and television. All four of them were in plain clothes, and one was wearing a T-shirt, none of them presented any official ID. My husband was distressed by all this, so he struck them with a stick, but he was then pinned down on the bed. After they managed to stick a pair of pants on him, they cuffed his hands behind his back and took him away. The substation is about 200 metres away from our home, and they dragged him there without any shoes!”

“I don’t understand, what did we do? Why did they take my husband away like that?” At this point, tears began to stream down her face.

On the afternoon of 23 October, our reporter visited the Baota District Public Security Bureau. Squad officers declined to comment on why Zhang was remanded two months after the initial incident, stating that they would need to ask their superiors for instructions. In terms of the “obstructing official duties” charge, the officers stated that this was determined by officers at the substation, and they themselves had not investigated Zhang on this charge. 

Readers’ responses

Police action inappropriate, Zhang’s detention wrongful

After China Business News opened a hotline yesterday to collect public comments, a total of 78 readers called within eight hours. Their main arguments included:

1. Police should not investigate married couples for watching pornography. (Only two out of 78 callers, or 2.56% of all respondents, thought that the police should investigate this.)
2. In charging Zhang with “obstructing official duties,” a criminal offence, public security authorities may be retaliating against him for speaking out. (80% of all respondents mentioned this possibility.)

The hotline was kept busy with readers calling in, not just from within Shaanxi Province, but also from as far as Beijing, Guangzhou, Shandong, and Jiangxi, who read our report online and phoned in to vent their frustration. Almost all callers believed that the police should not investigate married couples for watching pornography at home; only one thought the opposite because pornography causes “dirty thoughts.”

A law enforcement official in Baoji City, Shaanxi Province:

As an administrative law enforcement official, I see two fundamental problems in this incident: illegal procedure and unclear facts.

As clearly defined in Article 3, Section 2 of the Administrative Punishment Act, punishments shall be considered null and void if the relevant procedures are illegal. Everyone in our line of work knows the importance of proper procedure, especially with increased legal awareness in the general population nowadays. Following proper procedure is a must for law enforcement authorities.

According to news reports, the police entered a private residence and seized equipment without wearing their proper uniform and, most importantly, without showing proper identification. This clearly did not follow the proper procedure: under these circumstances, if you were beaten up by someone, they wouldn’t need to bear any legal consequences—how would they know who you really are? Furthermore, if we simply look at the facts, there are no laws forbidding a married couple from watching porn at home. If there are no laws governing such behaviour, then public security authorities have no legal basis for sending the police. I do believe that the Baota District officials are trying to protect their own ilk by remanding Zhang in criminal detention two months after the fact. The police have already crossed the line with their actions that day, and now they’ve crossed the line even further!

Wei Yahua, columnist for Prosecutors’ Journal: 

As defined in the Criminal Code, criminal acts related to indecent materials are primarily centred on the illegal selling, manufacture, and dissemination of such materials. There are no regulations whatsoever regarding married couples watching pornography at home. Since criminality cannot be assessed if there are no relevant laws, citizens should not be harassed for acts that cannot be defined as criminal. In addition, Zhang has the right to sue the police for illegal entry. The police should apologise for their mistake, since what sort of “official duty” were they conducting? Because this cannot be considered an official duty, there exist no grounds for such a charge.

Yao Wenzhi, deputy director of a law firm in Shaanxi Province:

The public security bureau was extremely wrong in its actions. Since their actions were illegal, they cannot be considered to have been on “official duty” that day. A married couple watching porn at home poses no threat to society, and thus there is no ground to consider this an illegal or criminal act. As for Zhang, he could have had no idea that those were officers on official duty. Additionally, he did not do anything illegal, so sending law enforcement in is completely ridiculous.

Other readers, including a Mr Wang Guoqing in Xi’an, a Mr Xu, and a Mr Zhu, also suspected that substation officials were retaliating against Zhang.

Mr Li, one of our readers, hopes that there will be a legal resolution to the matter: “I hope that relevant authorities can come in and clear everything up because this concerns not just a single person but rather all citizens. Law enforcement authorities should issue an explanation, because rank-and-file officials might try to scare citizens, and citizens are often already afraid of the authorities. This has to change!”

Mr Zhao, another reader, notes that if either husband or wife suffers from sexual dysfunction, they are completely in their legal and human right to watch pornography, and other countries even have dedicated adult movie theatres.

Mr Chai, from Jinan City, Shandong Province, read about the incident from our website; he also believes the police were wrong. Mr Zhu, a businessman in Xi’an who originally came from Guangdong Province, and a long-time reader of China Business News, commends our reportage for being objective, which can help keep law enforcement in check.

Even though many legal experts, lawyers, and law enforcement officials who called in believe that the police had no legal basis to enter a private residence to arrest someone for watching pornography, a Chang’an District police officer, surnamed Chen, thinks that the police should be allowed to conduct such actions: in his opinion, since the law does not allow people to watch pornography at home, the police are in the right to inspect if people are watching such socially corruptive materials, and thus watching pornography at home is illegal.

Expert opinions

Actions taken by Wanhua Police Substation officials lie at the heart of the debate

Many legal experts have weighed in on the incident, focusing on the following key points:

1. It is common sense that it is not illegal for a married couple to watch pornography at home.
2. The police have severely trespassed on the private lives of ordinary citizens.
3. The only legal basis for police action was the Rules on the Strict Prohibition of Indecent Materials issued by the State Council, which was repealed on 6 October 2001.
4. The charge of “obstructing official duties” is null and void, since there is no legal basis to consider this an “official duty.”

Fundamental issues pointed out by legal experts

Police actions had no legal basis

Some two months after the initial incident, Zhang was suddenly remanded in detention on the criminal charge of “obstructing official duties.” After we covered the detention, we saw a nationwide outcry in the past two days, and more than 70 readers from as far away as Beijing, Guangzhou, Hubei, and Shandong have called our hotline yesterday to give their opinions after reading about the incident online. We have also asked legal experts for their opinions, who have the following consensus: the police should not be sent to investigate married couples watching pornography at home; the police did not follow adequate procedures throughout their course of action; and criminal detention two months after the incident is a clear sign of retaliation.

Fundamental issues pointed out by legal experts include:

1. It is common sense that it is not illegal for a married couple to watch pornography at home, and the entire incident in Yan’an is extremely unfortunate.
2. By intruding into a private residence using such brute force, the authorities have seriously violated citizens’ right to privacy. If this was indeed the result of a tipoff, the informant has also violated others’ right to privacy.
3. Any person with a proper sense of civic consciousness will agree that it is nobody else’s business if a married couple wants to watch pornography at home, as long as they do not interfere with anyone else.
4. The only legal basis for police action was the Rules on the Strict Prohibition of Indecent Materials, which was repealed on 6 October 2001.
5. The charge of “obstructing official duties” is null and void, since there is no legal basis to consider this an “official duty.”

A summary of expert opinions

Dr Jia Yu, director of the China Association of Criminal Law, and chairman of the Department of Law at the Northwest University of Political Science and Law:

If a married couple wants to watch porn at home, it is entirely their own private business. This has nothing to do with legality, but rather common sense! 

If citizens cannot ensure what they do in their private lives remains private, how can anyone be sure they have privacy? Whether it is watching porn at home or anything else, as long as it happens in the confines of one’s home and does not harm anyone else, it does not pose any threat to society, and the authorities should not interfere, because public authorities have no say in what people do in private! The law protects the legal rights of individuals vis-à-vis society and the country; since no harm was done to anyone, the law should have no say in what husband and wife do in private. If public authorities can arbitrarily invade the private lives of anyone, or even be nosy about the sex lives of married couples, the result would be completely unimaginable. Never mind watching porn at home—even if they were shooting porn at home, who has the right to interfere?

In terms of the rules prohibiting indecent materials, these are supposed to regulate the sale, manufacture, and dissemination of such materials, which can indeed be harmful to society. Even though the State Council did mention the “viewing” of such materials in their rules, this merely covered watching pornography in groups or in public. It would be ridiculous if our laws prohibited married couples from watching porn in private.

In terms of whoever reported the act to the police, if they were spying on the couple, this would be a serious invasion of others’ privacy. If a married couple watches porn at home, it’s not a question of legality, nor even whether the law should regulate such behaviour, but rather a matter of common sense. Anyone with a sense of modern-day civic consciousness will know that the police should stay out of it, as it is nobody else’s business.

Acts of murder, arson, and robbery do occur frequently, and we do need to crack down on the manufacture and sale of indecent materials. To counter these crimes, we do need manpower in the police force. In this instance, however, the police inexplicably turned their attention to what a married couple was doing in private. If the news reports are indeed accurate, it would be a most unfortunate incident, and our judiciary will need to reflect on this.

Chen Zhenxue, attorney-at-law, director of Hengda Law Offices in Shaanxi Province:

As defined in the Criminal Code, “obstructing official duties” entails the use of force to obstruct state employees from carrying out official duties in accordance with the law.

There are several requisites for the charge to stand: the victim must be a state employee; and the perpetrator must have been obstructing said state employee from carrying out official, legal duties. Crucially, these duties must be carried out in accordance with law. They must be the legal responsibility of the state employee in question and be carried out legally. If state officials act outside their legally defined capacity or abuse their authority, they are acting against national and societal interests, and thus anyone who prevents such actions cannot be said to be obstructing official duties.

Furthermore, for the charge to hold, there must be criminal intent, i.e. the perpetrator clearly knows that the target of his actions is a state employee carrying out official business, and the purpose of his actions is to prevent the state employee from carrying out the said business. However, if he does not know that his target is a state employee on official business, or if he mistakenly believes that the state employee’s actions are illegal when in fact they are not, this does not constitute the crime of obstructing official duties.

For example, if a train conductor catches a thief on the train, and the thief calls out “Thief!” to deliberately obfuscate the situation, resulting in a passenger mistaking the conductor for the thief, leading to a scuffle where the real thief escapes, the passenger in question should not be considered to have obstructed official duties. In the present case, since the charge of “obstructing official duties” requires that the duty in question be in accordance with the law; if the officials’ actions are illegal, the charge cannot stand.

When public security officials enter private residences, they must be in uniform and present identification; to conduct a search, they must present a search warrant. If it is clearly not an emergency situation, the police must adhere to proper procedures even more strictly. The incident in question clearly did not meet any of the aforementioned requirements. What is a citizen supposed to do under these circumstances? If law enforcement officials break the law themselves, citizens should not resort to violence; instead, they should try to steer clear of conflict, clarify the situation, and seek out other legal remedies.

In this incident, the public security officials cannot be said to have carried out official duties, since they did not follow proper legal procedures, and hence the charge of “obstructing official duties” cannot be sustained. Charging Zhang with such a crime is completely inappropriate. Zhang should hire a lawyer to seek legal recourse.

If Zhang is convicted of obstructing official duties, then our judicial system is severely flawed: this means that there are issues with our understanding of the law, in particular the ambiguity surrounding the definition of “official duties.” It would truly be inexplicable if law enforcement officials break the law with impunity while citizens get punished.

An anonymous official from the Shaanxi Province Public Security Bureau:

Instead of commenting on whether police should investigate people for watching pornography at home, I would like to remind everyone, especially first-line law enforcement officials: the only regulation that could potentially prohibit such acts is the Rules on the Strict Prohibition of Indecent Materials issued by the State Council in 1985, which has already been repealed. State Council Order No. 319, issued in 2001, repealed a number of pre-2001 administrative regulations, of which Rules on the Strict Prohibition of Indecent Materials is item no. 10 on the list of repealed regulations.

Since the only relevant legal regulation has been repealed, and no other laws governing indecent materials say anything about “viewing” such materials, the police in this incident have clearly acted without any legal basis.

Xiang Yang, attorney-at-law, head of Xiang Yang Legal Offices in Beijing. Mr Xiang was particularly agitated during his call. In his opinion:

What Mr Zhang and his wife did was far from criminal, it couldn’t even be considered illegal in any sense, much less lead to punishment in the name of public security. Regulations concerning the prohibition of indecent materials only cover the sale, manufacture, and group viewing of such materials.

If more than three people gather to watch, one could argue that this constitutes dissemination, even if it was not done for profit. But a married couple watching pornography at home is not illegal behaviour at all, since nobody else was affected.

The couple were not prosecuted at the time of the incident, but rather an arrest was made two months after the fact under the charge of “obstructing official duties.” This begs the question: what “official duty” did Zhang obstruct? If one argues that everyone must obey uniformed police, I could point out that there have been numerous cases of people fraudulently donning police uniforms. However, we can’t even be certain that the police in this incident were wearing their uniforms!

If they attempt to enter a private residence in the dead of night, they must present a search warrant to do so, otherwise, people have every right to resist! Plus, in this incident, it was four police officers against two civilians! Furthermore, going after a married couple watching porn at home is in no sense part of their everyday duties, and thus even if they are met with blows, it can’t be considered “obstructing official duties,” since it is not an official duty at all!

I have been paying attention to further developments since the incident first broke in August. I believe the Public Security Bureau is abusing its authority to retaliate against a private citizen: an officer got beaten and lost face, so the bureau found a way to harass the people involved. In that case, they are not enforcing the law, but merely abusing it for personal interest!

Furthermore, there is the issue of state compensation. Even though the authority involved was a branch of the county’s Public Security Bureau, it is still an administrative organ of the state, and whenever administrative authorities make an error, in this case the police substation, they must compensate the victim. This involves psychological compensation in addition to material compensation since Zhang has clearly suffered significant psychological trauma. 

Mr Xiang further stated that he is willing to offer Zhang legal assistance.

Mr Yue, from the prosecutor’s office in Xi’an City:

Authorities must exercise their power in accordance with rules and procedures, otherwise they may infringe upon the legitimate rights of others. Procedures must be legal, something that law enforcement officers often neglect. If they want to enter a private residence, they must follow all relevant procedures. The abuse of power can result in extremely dire consequences. What is illegal is illegal, what is criminal is criminal, and what is not illegal is simply not illegal–and cannot be escalated into a crime. 

The local prosecutor’s office should intervene in this instance since this is the responsibility of their supervision department. In this case, the police filed a criminal case when one shouldn’t have been filed, so the person involved can sue the police, or the prosecutor can choose to directly intervene. If public security officials are indeed found to have abused their authority to retaliate against a private citizen, disciplinary authorities at the prosecutor’s office can take punitive measures, and report them to the Public Security Bureau’s supervision department.

Jiang Xue and Zhang Xiaobin contributed to this report.