383 total views, 4 views today
China’s much awaited Domestic Violence Law [English Translation] has finally been passed. The new law, which will take effect in March of 2016, is in many ways a combination of earlier drafts released by the State Council and National People’s Congress that have been previously discussed on this site. Like legislation anywhere, the law reflects a compromise among many competing interests and viewpoints and it would be an oversimplification and premature to label it either a major victory or setback. The law has much to offer, but there is also room for much improvement. Moreover, legislation is of course only one piece of the puzzle in fighting domestic violence, with vigorous enforcement and, more importantly, changes in societal attitudes still needed to ensure that domestic violence is universally condemned.
The brief comments below highlight some of the most salient points in the new law, and attempt to highlight areas where ongoing further work will be critical to discussing the future success of China’s efforts to combat domestic violence.
The definition of domestic violence has been greatly expanded since the second public draft to now include non-physical abuse. As was true in the original draft, the law now specifically mentions psychological harms and other violations, and it also goes further to specifically include recurrent verbal berating and intimidation.
The law stops short, however, of expressly mentioning sexual violence and it is not clear whether this is because the drafters believed that the listed categories of violence and the existing criminal law would already cover this or if it is due to a continued reluctance to have the state intrude into a family’s most intimate settings. Of course, the intersection of sexuality and law brings a host of challenges including social questions of public opinion and bias, and legal questions such as defining and demonstrating ‘consent’, but there is no question that including and condemning sexual violence would have been empowering to many victims, and might have started a deep national conversation about the nature of abuse—something the law aims to do.
As in the previous NPC draft, the law defines domestic violence as infractions between ‘family members, but does not define who will be considered as a ‘family member’. While the term ‘domestic violence’ is used in most translations, this term suggest violence between sexual partners to many English speakers, and it should be remembered that the Chinese law is meant to address ‘family violence’ including child abuse and elder abuse.
As mentioned in a previous article on this site, the definition of ‘family member’ has been a point of contention because the definition provided in the original draft of the law from the State Council excluded unmarried cohabitating couples – a move that had the added impact of excluding abuse between persons in homosexual relationships, who are unable to marry in Chinese law, and also violence between extramarital partners. The official explanation of that draft even added that “there is no real difference between violence in relationships such as romantic involvements, cohabitation or that between former spouses, and violent conduct between ordinary members of society;” a fairly extraordinary statement coming from drafters of a Domestic Violence Law, as it seems to entirely ignore the unique power dynamics and social forces at play in such relationships.
Despite the silence on the definition of family members , a new provision at the end of the law does offer some hope. The penultimate article holds that the law may be consulted in addressing violence between non-family members that live together. The use of ‘living together’ (共同生活) rather than cohabitating (同居)， may even be an intentional move to avoid a hetero-centric interpretation found in some of China’s legal authority on regulation of marriage, saying that ‘cohabitation’ is between persons a male and a female . Of course, the new provision only allows that reference may be made to the Domestic Violence Law, which is small consolation as it is unclear how well the law will be enforced even as applied to its core targets, and how effective its provisions will be even if fully enforced.
Another major innovation of the Domestic violence law is the written warning (告诫书)system, which allows for state intervention in domestic violence even when it has not reached the level of a crime or violation.
When police respond to a report of domestic violence and there is a crime or administrative violation, they are required to follow the relevant procedures to address the offense. Experience in China and abroad, however, has shown that police often fail to ‘find’ an offense, because they believe that domestic violence is a family matter. The new law provides a less punitive compromise option, that might encourage more and earlier intervention.
The written warning system appears to be a quasi-registration system, where a detailed incident record is created and sent to the local residents’ or villagers’ committee, who, along with the area police, are empowered to make inspection visits to monitor the household for domestic violence. Whether such visits will be regularly made in practice and their efficacy remains to be seen, and will be hampered by all the same problems that make police reluctant to get involved with domestic violence. A more tangible impact of the written warning system will be their use as evidence in future civil and criminal trials, authorized by the law. Perhaps they might even be used to pursue government liability for failure to act where several written warnings were issued, but no further action was ever taken.
The written warnings offer some promise for increased intervention, but it is only a minimal level of intervention, and it is possible that having this lighter option might also discourage stronger measures. The original draft of the law from the state council contained more specific provisions regulating police investigations of domestic violence calls, (including separating victims and offenders for interrogation etc.) but the final law leaves much room for police discretion. Under the new law, police can even choose to never use the written warning system at all as they have an even lighter measure of ‘criticizing and educating’ the offender.
The Domestic Violence Law also now allows courts to issue Protection Orders to victims of domestic violence and those facing a real threat of domestic violence. Where the would-be applicant is a person of limited civil capacity, or is unable to apply for a protection order due to duress, other designated organizations , including family and police, may apply on their behalf. Unlike in the earliest version of the law, these protection orders do not need to be to be connected to a pending case, but are independently standing rulings that may offer some level of protection for up to 6 months.
A curious question however, is the use of the word ‘party’ (当事人) to describe the applicant. Normally this wouldn’t be worth mentioning, but stands out because previous version of the law allowed for ‘victims’ to apply to the courts in the course of certain law suits- even prospective suits, relying on the courts’ previously existing power to issue rulings limiting parties’ conduct to ensure that trials proceed smoothly. That was already really quite a positive innovation, but it is widely considered even further progress and an expansion of protections that the protection orders may now be applied for independent of any case. Use of the word ‘party’ however, might suggest that at least the pretense of a prospective case is still required, although the consensus among many experts I have spoken with is that the use of ‘party’ is simply meant to expand the range of applicants to include not just victims, but persons facing a threat of violence, and that the ‘party’ need only be a party to the application itself.
Rulings on whether to grant a protection order are to be made within 72 hours—or within 24 hours in emergency situations and may include:
(1) Prohibitions on further abuse;
(2) Prohibitions on the offender harassing, following, or having contact with the applicant or their close family;
(3) Orders that the offender move out of the applicant’s residence;
(4) Other measures for the protection of the applicants’ personal safety
Unlike the written warning system mentioned above, the goal of a protection order is not punitive, but truly calculated at protecting victims. If victims are to rely on them, they must have substantial and effective enforcement to back them up. The Domestic Violence Law puts primary enforcement power in the hands of the courts, with their small department of bailiffs or wardens who execute other court orders and sanctions. The courts are empowered to give fines of up to 1,000 (~$150) yuan for violations and even detention of up to 15 days, but it is unlikely they have the capacity to respond to a currently occurring violation. The law calls for police and residents’ or villagers’ committees to cooperate in the enforcement of protection orders, but the extent to which regular police departments are involved in enforcement might be the most critical factor in determining how successful the orders are.
Applications for protection orders are the major tool for victims’ assertions of their rights under the law, but they are not the only method. Victims, their family members and their legal representatives may not only make reports to the police or courts, but may also make a complaint, give feedback or seek aid from the perpetrator’s or victim’s unit, residents’ committee and villagers’ committee, local womens federation or other relevant groups, that will then provide assistance. What form this assistance takes, the capacity of these organizations to offer meaningful assistance, and whether anyone prefers this route to seeking police protection, will be interesting questions to watch going forward.
In pursuing legal remedies, legal aid organizations are instructed to provide aid to domestic violence victims, and courts are instructed to reduce, waive or delay litigation fees. Three things are worth noting here:
- The law has dropped language from earlier drafts urging legal service organizations other than legal aid organizations to provide legal assistance to domestic violence victims; and has also dropped discussion of waiving costs of expert forensic evaluation of injuries;
- The benefits are provided only to ‘victims’ of domestic violence, and does not include potential victims of domestic violence, who are also entitled to apply for protection orders, so these benefits may not apply to potential victims’ applications for protective orders.
- Courts and legal aid organizations are to provide these benefits ‘in accordance with law’, which may mean that they are only required to do so where already authorized by other law.
Again, this is an area where interpretation and implementation rules will shape actual practice, and it is too early to make judgment, but these are issues to watch.
An expanded list of organizations and individuals are also required to make reports of suspected domestic violence, creating a duty to report for:
- Schools and kindergartens,
- medical establishments
- residents’ committees and villagers’ committees
- social work service organizations,
- relief management organizations and welfare organizations
- or staff of any of the above
The duty to report, however, is limited to situations where the victims are persons with limited or no civil capacity, such as minors and some persons with mental disabilities.
A document released in late 2014 already laid the groundwork for such a system as to children, but the new law expands on this, both in terms of the scope of reporters and the type of abuse covered. That earlier document, which remains in effect, concerns only sexual abuse, violent abuse, endangerment, neglect, abandonment, sale, or use of minors to commit crimes or beg. As mentioned above, the scope of domestic violence contains also psychological abuse and long term verbal abuse.
A guiding principle of the law is to respect the wishes of victims, and this may explain the limitation to persons who have civil capacity and are able to make reports on their own behalf. There is no exception here, as there is for protection orders, allowing for reporting on a suspected victim’s behalf when they are unable to do so due to duress- perhaps because this standard would be difficult for many of the mandatory reporters to assess and act on in practice. Interestingly, the law now calls for respecting the ‘actual wishes’ of victims, which depending on your orientation could be read as a dismissal of some wishes as not actual, or as a vigorous reminder to consider the victims’ actual wishes, as opposed to what one guesses victims desire.
Where a mandatory reporter fails to make a report and serious consequences result, they will receive sanctions that have not yet been articulated, given by either their own workplace or the authority responsible for supervising them. The managers at the place of the violation are also subject to penalties, as well as the person failing to make a report, but the organization itself, does not seem to be. That is to say that a teacher and his principal might get fined if the teacher fails to report, but the school itself will not be punished.
Another protection for persons with limited capacity, that also has its roots in the Guardianship document mentioned above , concerns termination and suspension of parental rights. The system is not fully developed in the law, but does allow for guardianship credentials to be revoked where there is domestic violence against a ward. Such an act requires an application be filed by the ward’s relatives, residents or villagers committees, civil affairs departments or others.
The General Rules of Civil Law have long provided that, upon application, courts could revoke the qualifications of guardians who fail to perform their duties or violate the lawful rights and interests of their wards, but no specifics were given for the procedure or consequences of such a revocation. The previous guardianship documents discussion of revocation of guardianship rights is much more extensive and may serve as a model for other situations and A summary of those rules is available here as a reference. Ending guardianship rights is a drastic step that should not be taken lightly, and this is another area where insufficient guidance is given in the law. It is however an area where regional pilot projects and development of local rules is ongoing, and will be an area for future progress.
Under the new law, people’s governments are also empowered, but not required, to establish residential shelters for victims of domestic violence. Where victims who lack full civil capacity face serious injury or neglect, the public security organs will actively seek their placement in coordination with local civil affairs departments.
The Domestic Violence Law is not only about protections for victims, but is concerned with raising awareness of issues of domestic violence, and addressing its root causes. All of the drafts have emphasized the combined use of education and penal measures (now also the use of corrections) – the focus of education has added a new phrase in the final draft along with anti-domestic violence awareness: ‘family values’ or ‘family virtue’ (家庭美德).
Certainly there is great value to offering counseling on marriage and parenting issues, but having grown up in a multi-cultural environment with a commitment to a diversity of understandings of what a ‘family’ means, this phrase suggests difficult terrain for legislation. Attempting to delineate ‘appropriate’ family conduct or even identifying a ‘family’ is a minefield in a rapidly evolving society. A quick online search shows that this term has been used when laying out obligations between family members etc. , usually at a high level of abstraction, including ‘respecting elders and loving children, equality between men and women, harmony between husband and wife, frugal household management, and unity among neighbors”. It is difficult to know how much emphasis will be placed on this in China, where legislation already calls for mandatory visits to elderly parents, and the national judicial examination had a question regarding whether one should save their mother or girlfriend first if both were drowning.
Interestingly, a similarly bothersome phrase in a previous draft of the Domestic Violence Law calling for guardians to ‘correctly’ carry out family education and perform guardianship duties, was dropped in favor of a requirement they so ‘in a civilized fashion.’
Throughout this brief overview, several other relevant sources of law have been mentioned, such as the document on abuse of minors by their guardians, and the law on protection of the elderly. Unmentioned thus far, and perhaps most important, is the criminal law and an opinion jointly drafted by China’s highest criminal justice organs on the handling of domestic violence crimes (the Opinion) [See an earlier discussion HERE].
While some have seen the Opinion as going further than the Domestic Violence Law, the approaches of the two documents are complementary, not contradictory. The Domestic Violence Law includes law enforcement as only one front in its anti-domestic violence strategy. It emphasizes prevention, education and corrections as being at least as critical and makes clear that all aspects of society, including the State, have a role to play in stopping domestic violence.
As national legislation, the DVL’s goal is not only to lay out specific practices, but also to make an overall plan and division of labor, assigning different responsibilities for furthering an anti-domestic violence policy to different levels of government and different departments, which will in turn further clarify their efforts.
As a final note, I have updated a chart showing a comparison of some ideas touched upon in both the Domestic Violence Law and the Opinion, comparing their practices. The chart is far from complete, and is hopefully not a substitute for the overview above and the previous commentary on this site.