In November of last year, China released a draft version of its long-awaited Domestic Violence Law (DVL) for public comment. The draft offered many promising features such as procedures for obtaining personal protection court orders and mandatory reporting requirements for some suspected domestic violence, but many experts still found it lacking. High on the list of complaints was that the law viewed domestic violence narrowly, excluding non-married cohabiting couples (which also necessarily excludes same-sex couples whose marriages are not recognized).
The draft DVL has still not been adopted, but China’s highest criminal justice organs have already jointly released an Opinion on handling domestic violence crimes. This new document (the Opinion),with its aggressive approach to combating domestic violence and a progressive approach to protecting victims, has been viewed as a positive expansion on the themes of the draft DVL. In its very first lines, for example, the interpretation makes clear that it does include non-married couples living together within the scope of domestic violence, although it likely still excludes same-sex couples.
Relationship of the Documents
The approaches of the two documents are complementary, not contradictory.
Domestic violence is both a criminal and social epidemic. In the debate over whether an independent law on domestic violence is necessary, many have argued that if properly enforced, the Criminal Law alone should be adequate to punish and deter domestic violence. Proponents of an independent DVL , however, counter that domestic violence can only be reduced through a more comprehensive and coordinated initiative including education, prevention and corrections; and that releasing a national law would further highlight society’s recognition of the problem.
Where the Opinion mobilizes the full force of the criminal law to effectively combat domestic violence, the DVL includes law enforcement as only one front in its anti-domestic violence strategy. It emphasizes prevention and education as being at least as critical as criminal punishment and makes clear that all aspects of society have a role to play in stopping domestic violence. As a national law, the DVL’s goal is not only to lay out specific practices, but also to make a division of labor, assigning different responsibilities for furthering an anti-domestic violence policy to different levels of government and different departments.
Not only do the documents not conflict with each other, but the draft DVL actually mentions many of the reforms elaborated upon in the Opinion. The Opinion builds on and affirms these provisions regarding the criminal justice system’s role in handling of domestic violence. It focuses on ensuring that violent crimes are not ignored because they happen within the family, offering heightened protections to victims, and clarifying the elements of crimes of abuse and abandonment.
Consider the chart below giving an overview of key content and comparing the two documents or skip ahead to the continued discussion [Skip].
So, given the many similarities, why was the Opinion better received than the draft law? Partly it is because people expected more from the DVL, especially those who had fought for years to advance such legislation. They understandably wanted the DVL to be take more concrete actions and go further, but in Chinese laws, the national law often provides a policy framework and work plan while later interpretations and implementation rules work out the details. The Opinion, however does contain some provisions that do go beyond anything in the draft DVL.
First, as a criminal law interpretation, it goes into considerably more depth than the DVL in analyzing specific charges that can be used in domestic violence cases. It also discusses treatment of domestic violence victims who are charged with harming their abusers. These are interesting not only for their very protective stance on behalf of victims of domestic violence, but also because they place an unusual amount of emphasis on the intent of the offender. Click to [SKIP CHART]
In the chart above, which summarizes article 17 of the Opinion, you can see that the crimes of abuse, abandonment and neglect are interpreted broadly, making clear that a broad range of domestic violence is to be addressed as a crime. For abuse, the “conduct elements” make clear that domestic violence is not only about physical beatings, but can include restricting freedom and humiliation that cause psychological harm. Clarification as to the degree of harm required to establish these crimes is provided in part in the ‘severity’ elements sections, where such conduct must either cause injuries, occur over an extended period of time or be against a vulnerable population. Given the reluctance of police to involve themselves in domestic violence, making clear that it is a criminal problem, will both spur their action and invite increased supervision by the procuratorate.
The Opinion also considers the special case of victims of domestic violence who harm their abuser. Article 19, begins by essentially summarizing the Criminal Law provisions on defense found in CL Article 20, which excuse defense against currently occurring acts that are harming the interests of oneself or others from criminal liability. Defense is undue or excessive when it “clearly” goes beyond the degree necessary to stop the harmful conduct and seriously injures or kills the original offender, and the overzealous defender might bear criminal liability for their actions, but defense may still be a mitigating factor.
One of the recognized traits of domestic violence, however, is that it follows a pattern of recurring and and escalating over a time. Considering a victim’s response only in light of the abusive conduct occurring when they defended themselves may not accurately reflect the threat the victim anticipated. To address this, the Opinion allows that in considering whether defense was “clearly excessive” courts may consider the past history of abuse as well as comprehensively considering the current abusive conduct, the means of defense and the actual harm to the abuser.
While this is already a recognition that victims of domestic violence should be shown lenience when acting to free themselves from perceived harm on the basis of past abuse, the Opinion goes further still to consider intentional harms by victims outside of the immediate self-defense context. Article 20 specifically allows that where a long term victim of domestic violence intentionally injures or murders their abuser, and the methods aren’t especially cruel, they may be given a lenient sentence. In the case of their murdering their abuser, the crime may be considered as having ‘minor circumstances’ reducing the sentence to between 3-10 years imprisonment, rather than the normal sentence of 10 or more years, life imprisonment or death. [see CL article 232].
A less than ideal test case for the Opinion
Interestingly, it was this last clause that was the basis for the first case reported as applying the new Opinion rather than a prosecution against an abuser. In that case, 33 year-old Ms. Yao (pseudonym) had been abused by her husband since she was 18, and when he demanded a divorce, leaving her to raise the children, she decided to kill him and was charged with his murder. In light of the history of abuse, the deceased’s parents offering forgiveness, that Ms. Yao had 4 child dependents, and that she turned herself in after the crime, she was sentenced to only five years for the murder.
In most ways, the case seems to have been handled very well. The court not only considered Ms. Yao’s psychological perspective, but even invited relevant experts to discuss this and take questions from both parties. The court began to clarify issues such as when a murder method is ‘cruel’ . It should be noted that” first cases” applying high profile new rules or laws are often conducted shortly after their adoption and receive heavy media coverage, so the real question is whether there will be a second case, and whether its procedures will be as carefully followed.
The only problem with this case is that the facts as reported in the papers seem to suggest that it was the husband’s threat to leave that motivated murder, not a desire to end the abuse. The purpose of including this defense is assumedly similar to that of laws on battered women’s syndrome in some US jurisdictions. It is a recognition that as a result of abuse, some victims may perceive threats differently and be unable to identify less drastic methods for addressing those threats and that this subjective state entitles them to leniency because they are less culpable for their actions. It should not be seen as an indication that that the murder of an abuser is viewed as a less serious crime than other murders, and there should be a real inquiry into the defendant’s individual response to the abuse and culpability in the current crime.
Without more information, it is difficult to know how the court actually made its determinations. It is not hard to imagine situations where threats to leave a partner would be part of a pattern of abuse, and this may be what the court saw. It is also possible that they simply saw the defendant as less inherently less culpable after years of abuse, and that the immediate context was less relevant. The media coverage and the Criminal Law phrasing of ‘fault of the victim’ however could easily lead one believe that the new law simply grants leniency to all victims of abuse attack spouses, and this could cause a negative public reaction or less respect for the legitimate consideration of a victims state.