A closer look at new rules for domestic violence protection orders

Last week the Supreme People’s Court issued new provisions aimed at clarifying the law on the issuance of protection orders in domestic violence cases (the Provisions). These build on the broader Opinions on Strengthening the Implementation of the Personal Safety Protection Order System (the Opinions) jointly released earlier this year by the court and several other agencies. Those earlier Opinions focused on increasing interdepartmental coordination in the early detection and prevention of domestic violence, and emphasized that courts should make it faster and easier for victims to apply for protection orders. The Court’s new Provisions work to fulfil the courts’ obligations under the Opinions.

To some degree, the Provisions also extend prior court rules on domestic violence crimes to the protection order context. The Domestic Violence Law was innovative not because it recognized that domestic violence was illegal, many existing crimes already encompassed domestic violence, but because it recognized the need for protections, and protection orders, even where the domestic violence had not yet constituted a crime. Still, some of the court’s earlier rules applied only to criminal cases, and unifying the language could emphasize the seriousness of all domestic violence.

Background on Protection Orders

The 2015 Domestic Violence Law first authorized the courts to issue personal protection orders independent of pending litigation such as divorce proceedings, making it easier for victims to seek immediate relief. Much of the groundwork for the current system, however, had already been laid out in the Opinions on Handling Violations of Minors’ Rights by their Guardians, which allowed for protection orders to be issued based on the courts’ power to prevent interference with a pending case.

Courts can use protective orders’ to stop specific abusive conduct, prohibit contact with victims, order abusers to leave the family residence, and to make other orders to protect victims. Where an order is violated, courts can directly impose fines or detention of up to 15 days under their authority to enforce their own rulings.

These remedies unfortunately require returning to the court, relief that may come too late for those facing imminent threats. The Domestic Violence Law vaguely calls for police to assist in enforcement, but the recent Opinions emphasize that this includes police immediately dispatching officers to stop ongoing violence, aid victims, and secure evidence.

What’s New?

The court’s new provisions are brief but meaningful. As is too often the case, the official discussion and its echo in subsequent media coverage has sometimes emphasized some of the more minor and less novel provisions, while neglecting potentially more significant additions. In considering the document, it is useful to consider all of these points, their potential impact, and the existing context that they build upon.

1. Expanding the scope of domestic violence？

The Domestic Violence law defines domestic violence as “physical, psychological, or other infractions between family members effected through the use of methods such as beatings, restraints, maiming, restrictions on physical liberty, as well as recurrent verbal berating or intimidation.”

The Provisions clarify that the Law’s definition is broad enough to include any conduct that is “physically or emotionally harmful carried out between family members through means such as cold, hunger, regular insult, defamation, following (stalking), or harassment.”

The new Provisions more directly track language from a Supreme People’s Court Opinion on criminal domestic violence indicating that the charge of domestic “abuse” could be established by “beatings, cold and hunger, forced overworking, restrictions of personal freedom, intimidation, humiliation, berating, and other means of physically and mentally torturing and tormenting family member.”

The addition of cold and hunger is thus less of a new addition to the understanding of domestic violence, than an acknowledgment that these methods can also be the basis for giving a protection order, even where a crime cannot yet be established. The inclusion of following or stalking (跟踪) is an even more meaningful addition as there isn’t yet an independent crime of stalking at all.

Overall, the more inclusive understanding of domestic violence in the Provisions is a welcome means of encouraging greater acceptance of applications, particularly as many address the forms of domestic violence beyond physical abuse.

2. Expanding applications made on behalf of others

 The Domestic Violence Law allows that an application for a protection order can be made by the authorities or family members where the victim is a minor, someone otherwise lacking full legal capacity, or someone unable to apply due to factors such as coercion or intimidation. The Provisions further allow that illness, age, or disability are among the other factors that might make a person unable to apply on their own, and allow a broad range of aid organizations to act on a victims behalf, assuming their consent. This is a real reform that will facilitate access to the courts for those who cannot easily contact them on their own.

3. Lowered standard and burden of proof for issuing

In its Interpretation of the Civil Procedure Law, the Supreme People’s Court holds that generally the party with the burden of proof, such as a person applying for a protection order, must provide evidence showing that there is a “high likelihood” that the facts required to sustain the ruling exist. The Provisions seem to lower this standard for protection orders, requiring only that the evidence shows a “larger likelihood” that the applicant has suffered domestic violence or faces an actual threat of domestic violence.

The new Provisions also make it easier for victims to present evidence, building on the earlier Opinion’s call for the court to be more active in collecting evidence itself when victims are unable to acquire it. The Opinions emphasize that the “private and abrupt” nature of domestic violence can make it difficult for victims to collect evidence and calls for both the courts and police to assist in securing evidence. The Provisions further include a detailed list of the types of evidence that might be used to document domestic violence which will guide judges and police alike. They also seem to minimize the need for bringing the alleged abuser into court, by allowing courts to contact them remotely, even by text or email, and expressly holding that a failure to respond will not preclude the issuance of a protection order.

Overall this heightened recognition of the unique challenges faced by domestic victim violence victims is aimed to help ensure that even plausible applications for protection orders are taken seriously, and removing procedural barriers.

4. Increased enforcement against violators.

The provisions add that a serious violation of a protection order may constitute the crime of refusing to implement a court judgment, punishable by up to three years imprisonment or even up to seven years in especially serious cases. Legally this was always the case, but the court here is clarifying that the Domestic violence law’s penalties for violating a protection order are not exclusive, and that this offense, as well as other criminal offenses, may be simultaneously established.

5. Persons included in the scope of domestic violence.

While the Domestic Violence Law only defined domestic violence as occurring between family members who live together, it also contained an article allowing that it might apply by reference to other, non-family, who live together. This is important because it could allow the inclusion of non-married cohabitating intimate partners, including same sex partners who are unable to be legally married. Some areas like Changchun, seeming embraced a broader reading in their local rules, by saying that these non-family members could include those with relationships of guardianship, support, foster care, or (intimate) cohabitation, who are living together, language that followed the SPC’s own opinions on domestic violence crimes.  Unfortunately, the new provisions limit the scope of this extended family, dropping cohabitating intimate partners and seemingly blocking their access to protection orders.