Some problems with China’s domestic violence warning system

One major innovation in China’s Domestic Violence Law[i] is the written warning (告诫书) system, which allows for state intervention in domestic violence even before it has reached the level of a punishable offense.

When responding to a domestic violence call, but not finding a punishable offense, the system allows police to create a detailed incident record which is sent to community organizations and local law enforcement. These organizations are then empowered to make home visits to monitor for domestic violence and provide counseling. The written warnings can also be used as evidence in any future civil and criminal trials arising from the domestic violence.

The goal of the written warning system is prevention and control rather than punishment. Where there are punishable offenses, however, the law is clear that punitive measures should be used. Criticism and education, or the more formal warning system, are forms of dissuasion to be used only where punishment is inappropriate.

Domestic Violence Law

Article 16: Where the circumstances of domestic violence are lighter and public security administrative sanctions are not given in accordance with law, the public security organs are to give the perpetrator criticism and education or issue a written warning.

Article 33: Where perpetrators commit domestic violence with conduct that constitutes a violation of public security management, public security punishments are to be given in accordance with law; where a crime is constituted, criminal responsibility is to be pursued in accordance with law.

The concern with the Written Warning system is that rather than supplementing punishments, it might become a compromise option which allows police to use less than the full force of the law in fighting domestic violence. In China, as elsewhere, police have been reluctant to intervene in family conflicts, and the new measures might easily become substitutes for fuller intervention.

Unfortunately, this concern seems to be being borne out, with many examples of serious physical violence being responded to with only a written warning:

Striking or beating another person, is unquestionably activity within the scope of China’s Penal Laws. Consider article 43 of the “Public Security Administration Punishments Law (PSAL), the law which addresses low level offenses:

Article 43: Those who beat or intentionally harm others’ person are to be detained for between five and ten days, and concurrently fined between 200 and 500 RMB; where the circumstances are lighter, detention is for up to five days.

In any of the following situations, ten or more days of detention and a concurrent fine of between 500 and 1,000 RMB is given:

1. Ganging up to beat or harm others;

2. Beating or harming persons with disabilities, pregnant women, persons not yet 14 years old or over 60 years old;

3. Beating or injuring people multiple times, or beating or injuring several people in one instance.

Note that the PSAL is clear that even ‘lighter’ physical violence can merit detention, and should be given at least a fine. The lowest punishment available under the PSAL, a warning, is not applicable to this offense at all.  Recurring beatings, typical of domestic violence, are considered a more serious version of the offense.

-Physical domestic violence can always meet the harm requirements for administrative punishment.

Of course, there must be a certain level of harm caused to justify punishment under article 43. The article does not contain an express standard as to the requisite harm, but the Public Security Administrations Regulations, replaced by the PSAL, required that there be ‘slight injury’ [ a term of art in Chinese law that is defined in great detail]. This requirement was removed to expand the scope of enforcement to incidents where harms were less serious, allowing more enforcement even where that standard wasn’t met.

Moreover, most of the examples above are situations where the injury, and risk of further harm, is already quite serious.  Sanctions would likely be appropriate even under the former ‘slight injury’ harm requirement, because bruises, contusions, injuries to the face and eyes, are all included in the legal definition of ‘slight harm’.

While there may be situations where police decide that the best way to deal with street brawling or bar fights is to simply break it up and send the parties home to sleep it off, this is less likely appropriate in a domestic violence situation where the parties will remain under the same roof, and police will have no way to prevent harm from escalating.

–Family Abuse is not the sole charge used in prosecuting domestic violence.

Some have justified the use of written warnings over punishments for physical domestic violence by saying that article 43’s prohibition on beatings doesn’t apply to violence between family members at all. They argue that article 43 is superseded by a separate violation specifically concerning abuse of family members, which is found in article 45. This is a lighter offense, and only actionable when the victim wants to press charges. The argument then, is that when victims don’t cooperate, there is no PSAL punishment available, and a written warning is the appropriate response.

Article 45: Any of the following conduct is punishable by up to 5 days of detention, or a warning:

(1) Abusing a family member, where the abused person requests the matter be handled; 

(2) Abandoning a person one supports that cannot look after themselves.

This reasoning reflects an incorrect understanding of the relationship between articles 43 and 45. The overall purpose of article 45 is to grant further protections to persons in special relationships. 45(1) provides protections to family members from abuse (should they choose to seek it out), and 45(2) provides special protections against abandonment to dependents who lack capacity to care for themselves. There is nothing in the article that suggests abuse is the exclusive offense that can be committed between family members (or abandonment for dependents), rather it is an additional offense that can be committed only between persons with this special relationship.

Further guidance is provided by a recent Supreme People’s Court judicial interpretation considering the Criminal Law equivalents of PSAL articles 43 and 45 and specifically regarding the intentional infliction of harm, abuse, and abandonment in a domestic violence context.

The interpretation makes clear that the existence of a specific crime of family abuse does not preclude the use of other charges to combat domestic violence. Quite the contrary, it expressly states that intentional homicide, intentional harm, rape, indecency to children, unlawful detention, humiliation, violent interference in marital freedom, and abandonment might all occur in the domestic violence context. Where the same conduct constitutes several crimes, the Court admonishes that the more serious offense should be charged. This same reasoning is equally applicable to the corresponding PSAL offenses.

The Court’s interpretation continues by exploring how to distinguish the crimes of familial abuse and intentional infliction of harm.  Abuse is said to generally include physically or mentally tormenting family members through the use of beatings, cold and hunger, forced overworking, restrictions of personal freedom, intimidation, humiliation, berating and other means of physically and mentally torturing and tormenting family members. This shows that there is some overlap between the acts that might constitute an assault and familial abuse.

As to when a charge of abuse or, a charge of intentional infliction of harm, is appropriate, the SPC notes that this requires a comprehensive assessment of the perpetrator’s intent, violent acts, and how directly they caused the injury.  The hallmarks of abuse versus intentional harm are the intent to cause suffering rather than injury, sustained ongoing abuse that gradually causes harm over time, and injury caused either through negligence or by driving the victim to harm themselves, rather than direct intentional infliction of harm. Where there is intent to injure, or where a weapon or other seriously violent means are used to directly cause the requisite harm, intentional harm is always the correct charge.

Again, this same reasoning is readily applied to the corresponding administrative violations. Where there is physical violence, the intent is almost always to injure, and more serious punitive measures are called for. The written warning system has the potential to be a powerful force for encouraging early intervention in domestic violence, but it must not become a halfway measure when dealing with serious violence.

–Local rules are inconsistent in delineating the warning and punishment systems, with some discouraging punishment.

A number of regions have recognized the danger of overusing the warning system, and have added language to their implementation procedures expressly stating that written warnings must not be used in place of penalties. [ii] As discussed above, this seems true to the spirit of the Domestic Violence Law, encouraging the use of the full range of law enforcement tools, but emphasizing that the most serious available penalty should always be invoked in accordance with law.

The local rules of other areas, however, have taken a different tact, undermining the system.  Remember, the DV Law allows that written warnings can be given where a) the circumstances of domestic violence are lighter, and b) public security administrative sanctions are not given in accordance with law. Some regions’ local rules, however, address this second requirement by providing that written warnings must be used whenever the law provides that an administrative sanction is not required.  [iii]

This subtle linguistic difference prioritizes the use of written warnings over punishment.  It suggests that wherever there is legal basis to not give a punishment, even if there is also a legal basis to give a punishment, no punishment should be given.  The rule requires that discretion always be resolved in favor of written warnings over punishments.

Consider Yunnan’s rules[iv]

Article 4: In any of the following situations, a warning shall be given against domestic violence.

(1) The acts of domestic violence are lighter and do not reach the standard for public security administration punishments.

(2) The acts of domestic violence have already reached the standard for public security administration punishment, but, on the basis of the “Public Security Administration Law,” punishment is not required to be given.

In some cases, this formulation stops just short of turning the warning system into a ‘one free minor domestic incident’ policy. This is most clear in provisions discussing violations of written warnings through continued violence. The only consequence of such a new violation is that the PSAL and Criminal Law should be enforced if applicable- something that is, of course, always true in responding to any call. This means that in these cases, the written warning system is more concerned with when punishment will be waived than about prevention of domestic violence.

Consider Yunnan’s rules again to see that violation of the written warning only removes the preference for punishment and restores the status quo:

Article 10: Where perpetrators refuse to correct their conduct, and again commit domestic violence with conduct that constitutes a violation of public security management, they are to be given a public security administrative sanction in accordance with law; and where a crime is constituted, criminal responsibility is pursued in accordance with law.

The PSAL provides for only a limited number of situations where there is a violation of public security but punishment is not required, or must be waived- the conditions provided for in article 4(2) of Yunnan’s rules. This means that it is possible to consider each situation individually to understand the scope of the problem:

• A. Situations where violations such as fighting or destruction of property arise from a civil dispute, the circumstances are minor, and the police are able to mediate an agreement between the parties. (9)
• B. Offender Trait Based
  1. Where perpetrators lack capacity for responsibility due to minority (<14yrs) or mental illness. (12,13)
  2. Where a blind person, or deaf mute, commits a violation.(14)
• C. Situational: (19)
  1. Where the situation is especially minor,
  2. The perpetrator alleviates or reduces the harm and obtains the victims forgiveness
  3. Acted under duress or enticement.
  4. The perpetrator turns himself in and recounts his illegal conduct.
  5. Meritorious contribution

For the first two items, waiving punishment is required, so the changed phrasing would not have any negative impact. The law already requires the punishment be waived (reserving judgment on whether that is a good policy) , so mandating that at least the written warning system is initiated allows earlier intervention in a greater number of situations. The same is true of Yunnan’s article 4(1), holding that where punishment is not allowed by law, the warning system is to be initiated.

In items B(1) and the list at C, however, the PSAL allows for some discretion which is removed by the Yunnan rules. Under the PSAL, the presence of the listed factors means either the punishment may be reduced OR waived. Here, Yunnan’s language requiring that warnings be given whenever waiver of punishment is even authorized means there will be some situations where police might have chosen to give a reduced penalty, but are forced to waive punishment and begin the warning system instead.

Of the five specific conditions listed in item C, the first two are most problematic. The first, requiring that the situation is especially minor, requires a subjective professional assessment by the police about the severity of the situation. Police might be encouraged to find that more situations are ‘especially minor’ in order to comply with the preference for the warning system.

The second condition is likely to be regrettably common in the domestic violence context.  Descriptions of the domestic violence ‘cycle of abuse’ generally recognize a period of reconciliation following an acute abusive incident. The perpetrator during this phase is likely to express remorse and affection, and attempt to make amends or promise that things will get better. The victim may be so eager to believe the situation can improve that they are quick to forgive. That the immediate incident has resolved, however, should not be interpreted as meaning that the victim is now safe.

This shows the difficulty in balancing the Domestic Violence Law’s ideals of education, protection and corrections with the sometimes conflicting interest of respecting victims’ wishes. The same problems were evident in the discussion of offenses requiring a victim’s cooperation to prosecute described above. This balancing act can even be a barrier to the written warning system, with some provinces requiring that victims request it be initiated (Zhejiang) or allowing them to veto it (Guangdong).

The ultimate goal of course is not the punishment, but prevention of domestic violence, and the protection of its victims. The administrative and criminal punishment systems are only preferable to the written warning system where they authorize a greater degree of police intervention to protect a victim from harm, including removing the perpetrator.

Suggestions for Future reforms

The discussion above is only meant to suggest that where there is physical violence, or threats, the scale should tip heavily in favor of punishment. Domestic violence is an inherently difficult situation involving multiple dependencies between victims and perpetrators, and police should have a diverse toolkit for assessing and handling each situation. At this early phase of the implementation of China’s domestic violence law, emphasis should be placed on removing barriers to police intervention, rather than creating new ones.

In addition the following suggestions are made:

1. Victim risk assessment as the focus of DV responses

The first recommendation is that domestic violence responses be more fully focused on victim safety than the offenders’ culpability. Culpability concerns determining the appropriate punishment, but the Domestic Violence Law and its written warning system, are aimed also at prevention and protection. This requires an assessment of the immediate risk of harm to the victim.

A few areas’ implementation rules do determine the extent of supervision under the warning system by based on an assessment of the perpetrator’s dangerousness, and this is likely to overlap in part with a measure of victims’ safety. These are often optional, however, and are still too focused on the perpetrator. [v] As discussed above, DV survivors may be in danger of becoming a threat to themselves after sustained emotional or physical abuse.

The victim safety assessment needs to be a comprehensive assessment of all factors related to the victim’s safety, including not just the present harm, but environmental factors and other stressors. Culpability may determine when the perpetrator can be taken away, but a risk assessment tool will determine when the victim should not be left alone with them.

2. Heighten consequences of violating a written warning.

Written warnings, at their best, open the door for provision of services before an offense is committed. They can also serve as a form of protection order limited to prohibiting further violence. The DV Law empowers courts to issue protection orders, but their enforcement mechanism is also through the courts, meaning that it may sometimes come too late for a victim in crisis. This could make the role of the warning system even more critical.

In contrast to protective orders, the written warnings are issued by the police, not courts, who will also be the first responders to a subsequent call. This means that police will be invested in the efficacy of the warnings. If the warnings are ineffective, it is the police who will again be called out, wasting their time and resources.  This frustration might lead to the police giving up on the system, or finding a way to make arrests;

This frustration could be avoided by making clear that the violation of a written warning has distinct consequences. This could be as simple as providing that requiring a second call should be considered an aggravating factor, as Jingyuan county in Gansu Province does[vi], or even treating violation of the order as its own offense requiring detention. Otherwise, as discussed above, the written warning system becomes more about when not to punish than about earlier intervention.

3. Inclusion in Police performance reviews:

At the end of the day, one’s decisions on how to do their job is often based on how they will be evaluated. Inclusion of domestic violence response as a factor in the evaluation of police departments and officers can show that this work is truly a priority.  Hunan and Jingyuan County in Gansu,[vii] have already included language to this effect in local rules, but no specifics are available.

The specifics are the challenge however, as poorly crafted evaluation indexes can alter police behavior in unexpected ways. For example, measuring only how many punishments are given out might discourage use of warnings, and vice versa. Measuring the number of DV calls responded too, might encourage police to be broader in identifying calls as DV calls, but this might be appropriate given the current reluctance to respond aggressively to such calls.

[i] Available in Chinese and English at https://www.chinalawtranslate.com/%E5%8F%8D%E5%AE%B6%E5%BA%AD%E6%9A%B4%E5%8A%9B%E6%B3%95-2015/?lang=en

[ii] “公安机关不得以告诫代替治安管理处罚或者刑事处罚” Changchun article 19, Zibo article 11 Jingyuan County (12)

[iii]依法可以不予治安管理处罚的.  See e.g.: Hunnan article 4, Yunnan Article 4, Guangdong article 5.

[iv] Available in Chinese here: http://www.qjwomen.cn/html/2017/fgzc_0208/2085.html [Translation ours]

[v] Jingyuan County, Article 6 paragraph 2:  确有必要的，可以填写《家庭暴力案件危险性评估量表》，对案件的危险性进行评估。 Where it is truly necessary, a “Domestic Violence Case Threat Assessment Form” may be completed, to assess the dangerousness of the case.

[vi] Article 13 加害人经告诫后拒不改正，再次实施家庭暴力且受害人不同意调解的，公安机关应依法从重处理 “Where the perpetrator refuses to make corrections after receiving a written warning and again perpetrates domestic violence, and the victim does not agree to mediate, the public security organs should give a heavier punishment.

[vii] Hunan 13, Gansu 10.