Tuesday, June 20, 2017

Chinese Court Decision Highlights the Need for Full Implementation of Anti-Domestic Violence Law


A woman stands near videos from an exhibition on domestic violence in China. Image Credit: The Guardian.

The Ordos Intermediate People’s Court in Inner Mongolia recently convicted a local government official of battering his wife—the journalist Hong Mei—to death. The case has received significant attention largely due to Hong’s standing as a successful journalist who had been reporting on domestic violence and the implementation of China’s year-old Anti-Domestic Violence Law. Major Chinese news organizations covering Hong’s death include Xinhua, Caixin, Sina, and Tencent News. Digital media outlets Quartz and Sixth Tone also reported the story.

Brutal Death of a Promising Woman Journalist Strikes a Nerve

Hong’s death touches a raw nerve with the many Chinese citizens who recognize domestic violence as a major social problem. As described in a mournful report published shortly after her death, Hong was an especially poignant victim. Personal artifacts remaining in her office at the Hangjinqi Broadcasting and Television Bureau speak to a respected journalist devoted to her work and family.

While China’s post-1978 reform era has brought about a degree of economic and social liberalization that has created greater opportunities for women, according to The New York Times it “has also fostered a resurgence of long-repressed traditional values. More and more men and women say a woman’s place is in the home, wealthy men take mistresses in a contemporary reprise of the concubine system, and pressure for women to marry young is intense.” Increasing numbers of professional women in China, such as Hong, encounter obstacles to professional achievement stemming from domestic violence and a male-dominated workplace culture. Although China’s Anti-Domestic Violence Law came into effect on March 1, 2016 and receives strong support from the public, it still suffers from weak implementation, and the number of domestic violence cases continue to be alarmingly high. The All-China Women’s Federation found that a quarter of all married women in China experience some form of domestic violence.

Domestic Violence and Women in Prison

Women make up an overwhelming majority of the victims of domestic violence. While spousal abuse perpetrated against women is often trivialized or ignored by local law enforcement, survivors’ defensive strategies are routinely criminalized. In some provinces, the number of female offenders who are in prison for committing crimes related to domestic violence (such as fighting back to defend themselves or their children) can account for up to 22% of the total serious female offender prison population. Recognizing the gendered nature of domestic violence and the importance of putting in place preventative and interventionist measures to protect potential victims and survivors would go a long way in reducing China’s female prison population, which has been on the rise in recent years.

The Anti-Domestic Violence Law rightly addresses the issue. Of special significance is the introduction of “personal safety protection orders.” The law marks the first time on a national legislative scale that protection orders (essentially a restraining order) can be issued by a court without the need for a lawsuit to be filed. Alongside the orders, the law also emphasizes the importance of public education and a community-based approach towards intervention whereby groups such as schools, medical facilities, and neighborhood committees are responsible for reporting cases of domestic violence. With the rising number of women in prison and the fact that their crimes are often the last resort of an abuse victim, preventative measures not only ensure that victims are protected as early as possible, they also have the long-term collateral impact of reducing a woman’s risk of incarceration.

However, preventative measures can only be successful if implemented. It is crucial that police and courts are responsive and protective of victims before domestic violence cases escalate. Currently, even with the Anti-Domestic Violence Law well into its first year of implementation, numerous women’s rights groups have expressed disappointment in law enforcement and judicial handling of domestic violence cases—the former for failing to intervene and provide refuge for victims, and the latter for the long turnaround time in issuing protection orders.

Court Decision Documents a Sad History of Abuse

If Hong’s story generates sympathy among Chinese citizens and women’s rights advocates, the background of her abuser, Jin Zhu, likely also taps into the broader societal anger directed at government officials within China. Jin was a government official in Ordos, giving Chinese citizens yet another example of a lawbreaking official to rail against (according to a Pew Global Attitudes survey, four out of five Chinese citizens consider malfeasance in office by government officials a big problem).

The facts of the case indicate that Jin is a serial domestic abuser who showed no remorse for his criminal actions. In its decision, the court made clear that Jin’s violence against Hong was hardly an isolated incident—it not only detailed Jin’s terrorizing Hong over the several hours that led to her death on April 6, 2016, but also noted specifically that Jin physically attacked Hong many times throughout their relationship. A Caixin summary of the court’s full opinion recounts that in 2013, Jin battered Hong so badly she had to go to the hospital; she initially refused to return home, but finally did so after Jin promised that he would not batter her again.

Jin showed no remorse in court, offering a flimsy intoxication defense: according to Cao Chunfeng, the lawyer representing Hong’s family, Jin blamed his actions on “getting blackout drunk” and stated that, as such, “it couldn’t be ruled out that another person committed the crime.” Jin never admitted guilt in court.

Did Local Procuratorates Pursue the Correct Charges Against Jin?

The court found Jin guilty of “intentional injurious assault” (guyi shanghai zui) and ordered a suspended death sentence (which can be commuted to life in prison after two years). It isn’t clear why an intentional homicide (guyi sharen) conviction was not pursued since the court stated that Jin “battered victim Hong Mei on the evening of April 5, 2016 because she went to a social event, and after getting drunk he battered her until she was dead.” The definitions of these crimes are simple, and under Article 232 of the Criminal Law “anyone who intentionally kills a person” is guilty of intentional homicide, liable for punishment ranging from three years in prison to the death penalty.

Under Article 172 of the PRC Criminal Procedure Law, the people’s procuratorate possesses authority to bring specific crimes to court for criminal prosecution. Although the specific factors considered by the procuratorate in its charging decision are unclear, it would be a poor precedent if the court was persuaded by Jin’s intoxication defense and found that he lacked the requisite criminal intent to commit homicide. In its full opinion, the court emphasized that Jin’s intoxication was wholly voluntary and that he exhibited a long history of physically assaulting Hong. His intent to kill can be deduced from his actions over several years. If China’s legal authorities refrained from prosecuting Jin to the fullest extent of the law, they risk sending the message that alcohol intoxication is at least a partial defense to domestic violence charges.

Leniency for domestic abusers like Jin might also contribute to rising numbers of incarcerated women in China. Domestic violence is a major contributing factor to crime among women, as women who fight back against their abusers can receive severe prison sentences and heavy criminal charges. The Supreme People’s Court has recognized the importance of this issue by developing national sentencing standards for cases involving domestic violence and women. The case of Li Yan (李彦), who had been beaten and tortured by her spouse, is perhaps the most famous example of violent self-defense by a victim of domestic abuse. Li was initially sentenced to death for killing her husband in self-defense before her sentence was reduced in the wake of mounting public pressure in 2015.

China’s Anti-Domestic Violence Law Must Be Fully Implemented

Unfortunately, China’s Anti-Domestic Violence Law came too late for Hong Mei. She was killed on April 6, 2016, just a few short weeks after the law took effect on March 1. Had the law been passed earlier, Hong might have obtained a “personal safety protection order” against her husband in 2013 after she was hospitalized for injuries he inflicted on her during a violent beating. As it was, Hong sought a divorce, but abandoned her effort “under pressure from those around her.” The new law is designed to make it easier for victims of domestic abuse to overcome societal pressure that makes it difficult for women to protect themselves against male perpetrators of domestic violence.

According to the Anti-Domestic Violence Law, victims can apply for personal safety protection orders through their local courts, which must respond within 72 hours, or 24 hours in the case of emergencies. If an application is successful, protection orders can forbid contact between the victim and their abuser and demand that the abuser move out of their residence. If a victim of domestic violence is unable to apply for protection orders on their own, relatives or welfare organizations can apply for the orders on the victim’s behalf. The efficacy of protection orders in stopping domestic violence has already been proven in China. In 2008, the Supreme People’s Court experimented with allowing local courts to use protection orders in lawsuits involving domestic violence; over 90% of the orders proved successful in stopping the violence. However, prior to the introduction of the Anti-Domestic Violence Law, getting a protection order required filing a lawsuit, which took time and placed the burden of proof on the victim. Under the new law, the court can grant a protection order without bringing a lawsuit.

Now that the Anti-Domestic Violence Law has taken effect, proper implementation is key. Hopefully, Hong’s case will inspire tougher enforcement and greater societal support of victims. Although a promising first step, handing down harsh punishment to perpetrators of domestic violence does not address the root causes nor the rising number of women such as Li Yan who, after years of suffering domestic abuse, end up in prison. That said, the Anti-Domestic Violence Law has the potential to make a difference, particularly in the lives of female victims of domestic violence. If fully implemented, it offers them, their children, and other victims of domestic abuse a legal way out of a dangerous situation. For some of these women, it may also mean the difference between freedom and incarceration.

Thursday, June 1, 2017

Revitalization of “Work-Study Schools” for Juveniles?


A boy work-study school in Shanghai. With difficulties in school enrollment this class only has two students. Image Credit: ThePaper.Cn

As China’s juvenile crime rate continues to rise and panic over the prevalence of school bullying and violence sets in authorities in China are turning to new and more effective ways to deal with the problem of correcting serious misbehavior by juveniles—especially those between the ages of 13 and 16.

Lately, there has been renewed attention on the possibility of revitalizing an institution from the past: the “work-study school (gongdu xuexiao).” In Hubei, for example, provincial authorities recently issued a joint opinion authorizing use of work-study schools for students who engage in repeated acts of bullying or violence and fail to respond to other disciplinary measures. Following recent measures adopted by several other provinces including Shandong and Jiangsu, work-study schools are poised to once again play a role in preventing and correcting juvenile crime.

Unless the implementation of work-study schools is accompanied by national legislative reform and a commitment to providing the necessary associated resources, it is unlikely that these schools will be able to play a significant role in addressing the root causes of school-based violence or other types juvenile delinquency.

***

Originally established in the Soviet Union as a means of dealing with the problem of orphans after the Second World War, work-study schools first arrived in China in 1955 and became one of several means for handling the problem of juvenile delinquency.

As the name implies, “work-study schools” once included workshops so that students could engage in productive labor to complement their studies. Into the 1980s and early 1990s, police continued to place juveniles in work-study schools, particularly juveniles who had committed minor infractions of the law or those who committted more serious offenses but who could not be held legally responsible due to their age.

With the passage of the Law on Prevention of Juvenile Delinquency in 1999, work-study schools became officially voluntary. Parents or guardians of school-aged children who engaged in one of nine categories of “serious misbehavior,” ranging from disruption of public order to repeated theft to drug usage, could apply to education authorities to transfer their children to a work-study school for a combined course of education, treatment, and correction.

These reforms have generally brought significant changes and improved conditions at the schools. Though still commonly known as “work-study schools,” the institutions no longer require students to participate in productive labor. Instead, the focus is on providing students with an environment in which they can complete middle-school curriculum as part of the national nine-year compulsory education system and receive treatment targeted at correcting their behavioral issues. Though this environment remains highly regimented, with continuous monitoring and an emphasis on instilling discipline, physical punishment is a much rarer occurrence.

But the voluntary nature of the schools has also contributed to their general decline. Stories of the prison-like conditions and corporal punishment of former work-study schools have meant that parents are often reluctant to send their children to these schools, fearing both the stigma attached and the potential for bad habits and behaviors to be reinforced through proximity to other troubled teenagers. Even with a name-change to “special education schools” (zhuanmen jiaoyu xuexiao), the negative reputation of the “work-study school” still lingers.

***

As a result, across the country once-full “work-study schools” have seen their student numbers decline despite an increase in delinquency rates. In some schools, teachers have come to outnumber students. Many institutions have been forced to close. This may be one reason why supporters of these institutions are seeking to present them as a valuable asset to society that can help respond to the problem of school violence. Experts on juvenile delinquency like Yao Jianlong see work-study schools as an important form of community-based corrections that can be used as an intermediate measure between doing nothing and mobilizing the machinery of the criminal justice system. For the schools to have that impact, however, there needs to be a mechanism through which students most in need of the schools’ educational offerings would be sent there.

This would, at the very least, necessitate amendments to the Law on Prevention of Juvenile Delinquency and would most likely require complementing legislative changes to ensure that any administrative or judicial decision compelling a child to attend a “special education school” is accompanied by a right to appeal and other procedures aimed at protecting the rights of the child and their parents. Unless such actions are taken, it seems doubtful that even widespread public concern about school violence will see a resurgence of China’s work-study schools.