No Excuse: Issues in China’s legal framework for combatting domestic Violence

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS --THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

This article is written in part as a response to my colleague Sulin Han’s recent Chinafile piece on domestic violence in China, and is an attempt capture and share some of an excellent discussion we had following its publication.

Passage of China’s Domestic Violence Law (DVL)[i]was not accompanied by the creation of a specific crime of domestic violence. This has led some to feel that the law fails to recognize the seriousness of domestic violence because it is not treated as a crime. While China’s efforts to combat domestic violence have not yet lived up to their full promise; the DVL is better understood as a supplement to the Criminal Law, not as a substitute for it. The DVL expressly acknowledges that domestic violence can be criminal, but also recognizes the need for government intervention in domestic violence even before a household becomes a crime scene.

The DVL emphasizes preventative education, warnings, and protective orders; but Chinese Law is clear that when penalties are justified they should be strictly imposed. Shortly before the DVL’s passage, a binding joint legal interpretation (Joint Interpretation)[ii] was issued by China’s highest criminal justice and law enforcement authorities, clarifying how the criminal law applies to domestic violence. That Interpretation emphasizes that domestic violence must not be dismissed as a ‘family matter’, and requires proactive efforts to stop and punish it.[iii] Courts hearing divorce cases and related matters are required to be alert for potential domestic violence crimes and to transfer them to the public security organs for investigation when discovered.[iv] Moreover, the Interpretation explains in detail how a wide range of specific criminal charges are to be applied to domestic violence cases, including, but not limited to rape, homicide, assault, unlawful detention, abuse, humiliation, indecency, and abandonment. [v]

Whether a specific crime of domestic violence is needed is as thorny a question as defining domestic violence. It is now widely accepted that violence between intimate partners and family members involves a complex victim-offender dynamic absent in most other crimes. In recognition of this complexity, and the patterns of escalation typical of domestic violence, any controlling, coercive, or threatening behavior, and psychological, physical, sexual, financial, and emotional abuse is considered to be part of domestic violence in many nations. China’s definition of domestic violence is comparatively narrow, but still acknowledges the unique nature of domestic violence by including “physical, psychological or other infractions between family members through the use of methods such as beatings, restraints, maiming, restrictions on physical liberty as well as recurrent verbal abuse or intimidation.”[vi] No crime targeting domestic violence can encompass all conduct that is part of the pattern of abuse, but recognizing that domestic violence includes a spectrum of activity, which tends to escalate over time, encourages early government intervention and provision of services, without precluding the forceful use of criminal sanctions to protect victims.

In the Chinese context, the question of ‘criminalizing’ domestic violence has a few additional wrinkles of language and law, which are worth mentioning. First, many illegal acts that constitute minor crimes in other nations are not considered ‘crimes’ at all in China, but are viewed as administrative or ‘public security’ violations. This includes fairly substantial offenses, such the use and possession of drugs, public nudity, and even assault if the injuries are minimal. [This is also worth keeping in mind when comparing China’s ‘crime’ and conviction rates with those of other nations.] The distinction between violations and crimes isn’t only one of terminology and severity; the procedures and punishments used in the two systems are distinct. In the administrative punishment system, the police directly impose and enforce penalties through internal proceedings without requiring a court judgment. The available punishments range from fines up to 15 days of detention, while the criminal laws authorize detention of 30 days or more, or even death; and a court trial is required.

Administrative and Criminal punishments are both currently available in the fight against domestic violence.[vii] There is a specific administrative violation of ‘abusing family members’[viii] on the books, which requires a victim complaint for enforcement, but there are also many other offenses that apply. The joint interpretation on criminal domestic violence, mentioned above, explains how to distinguish the equivalent crime of abusing family members from other intentional crimes against family members, making clear that all charges are available.[ix] This same reasoning should logically be referenced in applying the corresponding administrative violations. The Domestic violence law also restates that both administrative and criminal punishments must be used when applicable, but In practice, police have a great deal of discretion in determining what violation or crime may have occurred, and remain reluctant to intrude into the domestic sphere.

The goal of creating a separate charge of DV is largely to send a strong message to police, mandating action to combat DV– the same message of proactivity that the Joint Interpretation attempts to send. It should be understood, however, that discussing “criminalization” in China will likely not be heard as urging a hardline stance against DV, but as specifically urging ‘criminal’ over ‘administrative’ handling of DV offenses. There are many reasons to be wary of the administrative punishment system- the lack of independent court oversight on the use of police power invites abuse, but this issue is distinct from the concern of spurring police action. Rather than advocating ‘criminalization’ in China, it might be better to articulate specific goals, and to promote awareness and implementation of the existing options for achieving them. The most pressing goal seems to be eliminating barriers to the removal of an offender from a DV situation for the victim’s safety, a need that should be pursued through all available legal tools, civil, administrative, or criminal.

One such tool, an innovation of the DVL, is the implementation of a system of written warnings by police. The written warnings amount to a quasi-registration system where detailed reports on domestic violence issues are to be filed with community government offices, encouraging continued monitoring and follow-up visits. The system creates multiple opportunities for police to make victims aware of available of services and assistance, which is critical as such offers may be refused several times before a victim realizes their own need. It also builds a record of abuse, so that after several such calls, an administrative or criminal violation might be found in the sustained lower level abuse. Issuance of written warnings, however, is optional, and some areas are said to have still not issued a single one. Even if police begin to more regularly rely on the system, there is also a concern that it would become a substitute for stronger, penal measures. Police need to be willing, able, and even required to make arrests when necessary.

This brings us to a second linguistic and legal pitfall of comparative criminal procedure law that needs to be addressed: the word ‘arrest’. The Chinese criminal justice system contains two distinct procedures that are sometimes translated as ‘arrest’; with one referring to police taking someone into custody, and the second indicating an approval of continued detainment by the prosecutors’ offices on initial evidentiary showings. [xingshijuliu and daibu (刑事居留 、逮捕)] The first, taking someone into custody, usually lasts up to 3 days, but can potentially last up to 37 days, before the prosecution’s approval of continued detention is even applied for. While the prosecution might be quite demanding in establishing a basis for arrest approvals, possibly requiring forensic assessment of injuries showing the necessary harm and so forth, the standard for simply taking someone into custody, even without a warrant, is relatively low. Police may take anyone seen committing a crime, or who is a major criminal suspect, into custody without first getting a warrant.[x] Of course, police must have grounds to believe a ‘crime’ is involved at all, and crimes can sometimes require fairly serious harms, which might well be a barrier although attempted crimes and criminal preparations are also sufficient to take someone in. Under the administrative system for more mild offenses, physical custody of a suspect for questioning is possible strictly on approvals internal to the police department, and may be implemented immediately as needed.

The law permits police to take abusers into custody, but in practice, ‘arrests’ necessary for victim safety still aren’t being made. One way to improve that situation is to make warrantless ‘arrests’ of persons violating protection orders mandatory. The DVL empowers courts to issue protection orders for victims who face a threat of domestic violence. Unfortunately, the Law puts primary enforcement power in the hands of the courts, with their small department of bailiffs, or wardens, who generally enforce collection on other types of civil judgments and awards. Victims can go to the court and apply to have abusers fined up to 1,000 yuan (~$150) or detained up to 15 days for violating a protection order, but the courts don’t realistically have the capacity to respond to a currently occurring violation. The DVL does call for police and residents’ or villagers’ committees to cooperate in the enforcement of protection orders, but if the protected victim cannot rely on the protection order to call for aid at any hour, it won’t really offer much protection at all.

Intentionally violating a court ruling or judgement, where the circumstances are serious, is a crime;[xi] and there is no question that DV protection orders are court rulings.[xii] This is important because it creates a legal basis for police to take a person into custody, without a warrant, if they are violating a protection order.[xiii] The criminal offenses and its interpretations anticipate this charge being applied to enforcement of financial judgments, but it would be counter to the plain language of the law to insist on such a limitation. Moreover, the Criminal Law provides that violations of some criminal injunctions are to be punished as this crime, showing that it is not at all restricted to financial judgments.

The requirement that the ‘circumstances are serious’ is only a barrier if law enforcement culture and policy allows it to be. Two legal interpretations concerning this crime give numerous situations in which the refusal to perform on a financial court judgment should be considered “serious”, such as refusing to vacate a property that has been seized.[xiv] Violations of a protection order, a ruling designed to protect someone’s physical safety, should always be considered serious. Insisting that police take someone into custody, whenever they are found in violation of a protective order ruling, would not only err towards victim safety, but would also protect the authority of the courts through enforcement of their orders. At any rate, the question of whether the ‘circumstances are serious’ can reasonably be left to the prosecution and courts, with the police taking custody of anyone found in violation of an active protection order, who is clearly a suspected criminal violator. Finally, a recent proposed addition to the Public Security Administration Punishments Law, adds a corresponding offense of violating a criminal court judgment, which hopefully will be expanded to include even less serious violations of protective orders, and double-down on police enforcement of protection orders.

Incomplete reporting and records make it difficult to know the full extent of domestic violence in China, as elsewhere. Still, it is clear that domestic violence is a global epidemic that no system has successfully eradicated. China’s DVL, just over a year old now, seeks to educate the public, and law enforcement, on the nature of domestic violence, to gradually increase awareness that DV is a legal as well as social problem. At the same time, the full force of the criminal law and administrative penal systems needs to be mobilized, not only to punish and deter, but to protect. There is no ‘magic bullet’ strategy for ending the problem, but there is also no excuse for failing to protect the vulnerable, and the current law must be aggressively implemented to do just that. Innovations on information sharing, and providing law enforcement with guidance on recognizing and assisting risk levels are key to encouraging their proactive engagement.

 

[i] http://www.chinalawtranslate.com/%E5%8F%8D%E5%AE%B6%E5%BA%AD%E6%9A%B4%E5%8A%9B%E6%B3%95-2015/ [Chinese with English Translation Available]

[ii] http://www.chinalawtranslate.com/dvopinion/ [Chinese with English Translation Available]

[iii] Id. 1

[iv] Id. 7

[v] Id. 16

[vi] Domestic Violence Law, Article 2

[vii] Id. Article 33

[viii] Public Security Administration Punishments Law, Article 45

[ix] Joint Interpretation, 17

[x] Criminal Procedure Law, Article 80 – A major suspect refers to having been identified by witnesses or victims, has criminal instruments on hand, or where there are other such grounds for believing they are the offender.

[xi] Criminal Law, Article 313.

[xii] Domestic Violence Law, article 26

[xiii] Criminal Law article 80.

[xiv] See e.g. Supreme People’s Court Interpretation of Several Issues on hearing criminal cases of refusal to enforce judgments or rulings (2015) ; 全国人民代表大会常务委员会关于刑法第三百一十三条的解释 (2002).

 

Print Friendly, PDF & Email
打赏

Be the first to comment

Leave a Reply

Your email address will not be published.


*