Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part II of II

Camp Glenwood One-on-One Counseling with Probation Officer. Image Credit: Dui Hua

Can China's Juvenile Justice Policymakers Receive Lessons from Abroad?

In “Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad” (Part 1 of 2), Dui Hua analyzed a number of challenges in juvenile justice, both in China and elsewhere, including deciding the age of criminal responsibility and alternatives to criminal confinement. In Part 2, Dui Hua looks at promising programs and important research findings from outside China that could be useful for Chinese experts in juvenile justice to study as part of China’s ongoing juvenile justice reforms.

World Health Initiatives Regarding Juveniles

The experiences and practices of other countries and institutions can play an instructive role in China’s efforts to reduce violent behavior by adolescents. Relevant international human rights principles include the 1989 UN Convention on the Rights of the Child, especially articles 37 and 40. UNICEF’s Child Protection Information Sheet on Children in Conflict with the Law, in its summary of key applicable human rights principles, states that “children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age, and aims at their reintegration into society. Further, UNICEF recommends that placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible.” In light of these provisions, UNICEF aims to “reduce incarceration while protecting children from violence, abuse, and exploitation,” while also promoting “rehabilitation that involves families and communities as a safer, more appropriate, and effective approach than punitive measures.” Mirroring some of the policies mentioned by China’s juvenile judges at Dui Hua’s 2017 expert exchange, UNICEF also strongly advocates diversion, restorative justice, and alternatives to confinement.

Experiences from Europe might help Chinese officials in adopting some of these principles as it adjusts its juvenile justice practices. In the European context, the World Health Organization’s (WHO) adolescent mental health programs focus on reducing depression and anxiety disorders, severe cases of which can contribute to violent acts. As evidence of the severity of mental health problems for juveniles, suicide is the “leading cause of death among 10–19-year-olds in low- and middle-income countries of the [European] Region, and the second-leading cause in high-income countries.” To reduce risk factors associated with juvenile violence, European member states of the WHO find that “supportive parenting, a secure home life and a positive learning environment in school are the key factors in building and protecting mental well-being, or mental capital, in childhood and adolescence.”

In 2015, WHO European member states formalized their approach to supporting the mental well-being of adolescents and others experiencing major life transitions. According to the Minsk Declaration, the WHO life-course approach “encompasses actions that are taken early and appropriately to transitions in life,” recognizing that “adolescence, the transition from child to adult, marks the pivotal change to greater personal autonomy. It could signify a new beginning for those who were disadvantaged in their start in life. It also represents an opportunity for policies and programmes to influence key decision-making processes such as the timing of sexual debut and parenthood, the onset or avoidance of risky and addictive behaviours, as well as the acquisition of life skills, the start of independent living, building resilience and the capacity to bounce back in the face of adversity…Effective intervention is also essential to modify the course of other critical phases in life in which people experience dramatic changes in roles and status, such as...the transition from adolescence to adulthood.”

Making Every School a Health Promoting School Image Credit: WHO/SEARO/Sanjit Das

One of the policy initiatives with potential to be used in tandem with the life-course approach is the Health Promoting School concept, developed by WHO and UNESCO. According to these agencies, “Health Promoting Schools have been recognized as a strategic vehicle to promote positive development and healthy behaviours such as physical activity, physical fitness, recreation and play, balanced nutrition, prevent (sic) tobacco use, and preventing being bullied.” Chinese policymakers might gain significant insights, for instance, by comparing the role of schools, parents, and work-study institutions to the Health Promoting School concept, to see if improvements to existing Chinese institutions can be made.

Using Lessons from Abroad to Limit Dominant Role of Police in Juvenile Cases

In addition to improving outcomes for juveniles, thoughtful consideration of the life course approach and health promoting schools concept might help reduce the dominance of police authority in juvenile cases and alleviate the caseload burden on China’s juvenile courts. Too often, police officials focus on exercising punitive measures, like fines and/or administrative detention in juvenile cases. When the police or procurators dismiss cases (which they often do to lower the crime rate and meet bureaucratic goals), they might also be failing to redirect youth to community resources that can help them from re-offending. Taking a holistic and inclusive approach to mental health intervention could be a way to limit police dominance in juvenile justice policy implementation, as, in most cases, local police lack the necessary training or proper tools to deal with juvenile offenders. A local police inspector suggested recently that although a child’s discipline is generally a parental decision, the police could still request young offenders to be sent to government rehabilitation with parental consent. This approach could be beneficial if police officials took a consultative approach to such requests, rather than treating the case solely as a criminal investigation. In the U.S., for example, since the early 2000s US juvenile judges have been “re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.”

Adopting lessons from the European and U.S. experiences that incorporate a stronger role for social workers and schools might also ease the caseload burden on China’s courts, which have been hearing cases involving juveniles at least since 1984, the year that the first specialized “juvenile courtrooms” were opened. Adding more juvenile cases to court dockets might simply overwhelm overburdened juvenile judges, who have generally been focused on delivering light sentences, but a focus on light punishment does not address affirmative steps needed to address adolescent mental health through community programs and non-custodial measures. The WHO “life course” approach taken in Europe sees a prominent role for schools as well in supporting adolescent mental health, by providing “a positive learning environment” that serves a key role “in building and protecting mental well-being,” a critical process in reducing violence among juveniles.

Towards Evidence-Based Juvenile Reform in Lieu of Lowering the Age of Criminal Responsibility

Instead of focusing on lowering the age of criminal responsibility as a principal concern, the WHO initiatives strongly suggest that reductions in juvenile violence result from providing a safe and supportive environment for children to grow. While European member states have come together in support of a life-course approach to juvenile mental health, they have not adopted a uniform age for criminal responsibility. According to the London-based Child Rights International Network, France and the Netherlands, for instance, allow children under 14 to be criminally sentenced, while Germany and Italy do not. This seems to suggest that the critical element in European juvenile justice has less to do with selecting a minimum age of criminal responsibility and more with identifying and implementing effective policy solutions based on non-custodial and preventive measures. Similarly, Dui Hua has previously written that the age of criminal responsibility varies significantly among different U.S. states, but there has been a trend to raise the age of criminal prosecution to 18 in light of two important findings: 1) recent neuroimaging studies showing important structural differences between adolescent brains and adult brains that persist well past the age of 20, and 2) evidence that criminal penalties for juveniles lead to more, not less, teen recidivism.

Mental health evaluations are critical for the administration of juvenile justice. Findings support legislation that would establish clear court procedures “regarding when and how juvenile defendants should receive mental health evaluations...A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders.” Changes to the age of criminal responsibility in China, such as lowering it to 12 from 14, are unlikely to reduce crime, and conversely, are likely to increase juvenile recidivism. Instead, a comprehensive approach to non-custodial measures that involves a variety of actors, and not just police and prosecutors, needs to be considered for implementation.

Although China’s courts and juvenile justice system have made great strides since the establishment of the first juvenile courtrooms in the mid-1980’s, Chinese policymakers should eschew a focus on lowering the age of criminal responsibility and instead work to fully establish a comprehensive juvenile system that focuses on non-custodial measures. Such an approach would also avoid over-reliance on the police and procuratorial organs and integrate social workers, schools, and parents into the process of promoting well-being among China’s youth.

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part I of II

Image Credit: NYU/Counseling

Calls for lowering the age of criminal responsibility in China have emerged again after a recent spate of violent acts committed by adolescents. Because these acts were committed by children under the age of 14, the offenders cannot be criminally punished under Chinese law, leading to societal pressure for greater criminalization of juvenile violence. Legal experts are among those calling for lowering the age of criminal responsibility.

Violence committed by very young offenders is a serious social problem and needs fresh approaches in China and elsewhere. It should be noted initially that violence represents a small percentage of overall instances of youth in conflict with the law, and that some attention should be paid to whether the media is sensationalizing the coverage of these cases. Regarding juvenile justice policy specifically, China could strengthen its non-custodial, preventive, and community institutions to address violent acts committed by children under 14. Furthermore, the role of parents, schools, and social workers in making interventions and referrals to programs for youth in conflict with the law could be reassessed. In China, juvenile cases are often dominated by the police and procuracy, and the role for others with juvenile expertise is frequently understated. On the bright side, juvenile justice reform is a top priority in China, and later sections of this article describe several international initiatives sponsored by the World Health Organization and others that could help integrate evidence-based community solutions into these reforms.

Lowering the Age of Criminal Responsibility?

Juvenile justice reform need not be over-simplified and framed around a polarizing issue like the minimum age of criminal responsibility. Rather, recent events can spark a discussion regarding non-custodial and preventive measures, the proper role of police in juvenile cases, and lessons that can be learned from other legal systems about evidence-based policies to help combat violence committed by young offenders.

There is no disputing that there have recently been disturbing cases of young people committing violent acts in China. In March, a 13-year-old Jiangsu boy killed his mother over a quarrel about money; a 13-year old Hunan boy brutally killed his parents in December 2018; and, in a case in Guangxi, a 12-year old girl killed a classmate, after which the girl did not receive punishment (financial compensation between families was arranged instead).

Although these are tragic events, policy need not be based on a small number of cases removed from the larger context of overall juvenile criminal justice trends. According to statistics reported by Caixin, general patterns in juvenile crime do not indicate a crisis in juvenile crime: although the number of arrests of juveniles increased to 29,350 in 2018, the number of indictments of juveniles based on these arrests decreased at a much higher rate. Additionally, Professor Zhang Hongwei of Jinan University’s Juvenile and Family Law Research Center conducted a statistical analysis (Figure 1) of juvenile offenders in China, which shows that the number of offenders younger than 18 remained flat between the years of 1991-2014, even though the overall number of offenders increased dramatically over the same period.

Figure 1. Professor Zhang Hongwei’s Multi-year Analysis of Juvenile Crime

Nonetheless, some legal experts have called for China’s age of criminal responsibility to be lowered to 12. For example, Li Chunsheng, of the Hubei Lawyers Association, who specializes in minor protection law, said in July 2018 that the age of criminal responsibility should be lowered because “children’s mental maturity was becoming accelerated and many juvenile offenders were showing similar cognitive ability to adults.” However, Li provided no evidence, scientific or otherwise, for her assertion that children’s “maturity” is “accelerated,” and her suggestion is directly contradicted by a variety of studies indicating not only that adolescent brains in fact mature several years after the age of 14 but also that adult penalties for younger offenders produce more teen recidivism--factors which have led many U.S. states to raise the age for “adult” criminal prosecution to 18.

Non-Custodial and Preventive Measures

Other experts have suggested that, instead of over-criminalizing and incarcerating the youth of a nation, the proper emphasis belongs on non-custodial and preventive measures for reducing juvenile violence. These are not only more grounded in scientific evidence but are also more fiscally responsible. Non-custodial measures emphasize rehabilitation over punishment, and often include programs involving community support and mental health counseling. Social workers can be trained in providing youth psychological examinations in cooperation with schools and parents to capture a fuller picture of the conditions that lead to violence.

In China, the Supreme People’s Procuratorate (SPP) is moving in this direction by pushing for renewed juvenile justice reform, hoping to implement preventive laws to reduce juvenile recidivism. The 2018-2022 SPP reform plan aims to reduce juvenile crime through family education, procedural adjustments, and preventive measures. In an interview, the president of the ninth procuratorate division (which is dedicated to juvenile cases) acknowledged that current law lacks effective correctional measures to address serious juvenile crime. The proposed solution: a “ladder” of different procedural levels to “realize individualized and effective correction.”

Although China’s current juvenile system lacks effective correctional measures, there are a few non-custodial programs already in place. In 2017, Dui Hua held an expert exchange with juvenile judges from mainland China who discussed China’s community-based alternatives to confinement. These include: “help and educate” (bangjiao 帮教) measures, which are based on Confucian doctrines of caring for the young and involve efforts to reintegrate juvenile offenders into the community as a means of crime prevention; diversion (fenliu分流), similar to US programs that redirect juveniles to short-term community interventions; restorative justice, in which offenders learn of the consequences of their actions for the victims, with the larger aim of developing a sense of responsibility; and work-study schools (gongduxuexiao工读学校), which have been proposed as a way to deal with juvenile delinquency “for students who engage in repeated acts of bullying or violence and fail to respond to other disciplinary measures.” Work-study schools receive students who have been referred to the school. The Juvenile Delinquency Prevention Law states that juveniles can only be sent to a work-study school upon application by their parents, guardians, or schools, but work-study has also been criticized for disproportionately targeting “left-behind” (liushouertong 留守儿童, rural children whose parents have gone to other regions to work and have left them in the care of family members, often grandparents) and migrant children.

Policy discussions indicate that clear alternatives to juvenile confinement exist, but that proper implementation determines outcomes. In a recent school bullying case that involved battery, none of the above interventions was attempted, and instead, a superficial “criticism and education” (piping jiaoyu批评教育) session was employed. In 2018, a 12-year old Hunan boy killed his mother, and the boy was released and later sent to a specialty school in Changsha to receive three years of “restrained education” (guanshujiaoyu管束教育). Instead of these ambiguous policies, there could be a more systematic implementation of evidence-based interventions.

Regarding preventive measures, counselors and educators in school could be trained to identify certain behaviors and provide counseling. What kind of behaviors can raise red flags? How are they empirically determined? Can civil society organizations work in cooperation with schools and the judicial system to identify solutions early on? In looking for red flags, Chinese policymakers might find it useful to reference a comprehensive, detailed mental health intervention guide published by the World Health Organization (WHO) in 2016 that is recommended for use with adolescents. Intervention guides could be used as a reference by a variety of interested parties, including parents, school teachers, judges, and law enforcement officials. The guides might also help circumscribe the undue focus on juveniles who commit violent crimes, which ignores the fact that the overwhelming majority of juvenile offenses are non-violent.

Continue reading Part II here.

Hurry Up and Wait: The Robert Schellenberg Case

Hurry Up and Wait: The Robert Schellenberg Case

Robert Schellenberg, Dalian Intermediate Court, Jan 14, 2019. Image Credit: cdn.hk01.com

As US-China relations sink ever lower, the list of urgent criminal cases involving Western citizens in China has increased. In just the last few weeks Canadians Michael Kovrig and Michael Spavor were formally arrested on espionage charges and American Mark Swidan was given a suspended death sentence for drug trafficking.

Amid so many arrests and sentences, a May 9 appeal hearing in the case of Robert Schellenberg, a Canadian sentenced to death for drug trafficking, went largely unnoticed. Although Schellenberg’s appeal hearing concluded without pronouncement of a sentence, the timing of the hearing—the day after a hearing in Vancouver for Huawei CFO Meng Wanzhou—points to the continuing role of international politics in the outcome of his case.

Schellenberg’s case is part of a larger emerging dynamic of tit-for-tat detention diplomacy, but it is also unique because it is both overtly political and carries a death sentence. No other case is so inextricably bound up with that of a Chinese national being held in the West. Schellenberg’s fate has unfolded in parallel to that of Meng, a Chinese citizen who is currently detained in Canada pending extradition to the United States. After her detention Chinese state media representatives ominously warned there would be retaliation. Schellenberg’s sudden, unusual retrial and capital sentence followed shortly thereafter, leading many to conclude that it is Canada, as well as Schellenberg, that is being punished in this case. The fact that Schellenberg’s most recent hearing in Dalian took place the day after Meng appeared in court in Vancouver suggests that the two cases remain linked. As Huawei has moved to the center of a global struggle over China’s role in technology markets in the last few weeks, the political stakes in the two cases have increased as well.

Mark Swidan with his mother, Katherine Swidan, in 1991.
Image Credit: Katherine Swidan

Schellenberg’s case stands out not just because it is one of a prominent set of political cases involving foreigners, but also because it is the only overtly political verdict carrying a sentence likely to result in death. (Swidan, an American detained on drug charges in 2012, received a suspended death sentence on April 30, which, in accordance with Article 50 of the Criminal Law, will be reduced to a prison sentence so long as he does not commit a new crime in the next two years). Western citizens have been executed in China before, but such cases typically become international causes of concern because of China’s use of capital punishment in general, rather than doubts about the intention behind the ruling. For example, another Canadian citizen, Fan Wei, was also recently sentenced to death for drug trafficking, but so far there have been no accusations that his sentence was intended to punish Canada; in Schellenberg’s case, by contrast, it seems that the death sentence is politically motivated. While Chinese authorities insist that the punishment conforms to the rule of law, state spokespeople have also provided not-so-subtle indications that the death sentence should be understood as retaliation for Meng’s detention. Canadian Prime Minister Justin Trudeau has accused China of “arbitrarily” applying the death penalty in the case. For better or worse, Schellenberg stands out as the capital test case in a new dynamic that one legal commentator has dubbed “death-threat diplomacy.”

What has happened in the case to date, and what might we expect in the future? So far, the case has unfolded in two phases. In the first phase, which stretched from arrest in 2014 to an initial sentence of 15 years in November 2018, the case was not overtly political, and the judicial process was slow and low-profile, perhaps because the evidence against Schellenberg was weak and central authorities were called in to deliberate. In the second phase of the case, which began with an appeal court remand for retrial immediately following Meng’s detention in December 2018, the case took on a new political valence. The judicial process was fast and well-publicized. The court operated with perverse procedural formalism, meeting legal deadlines and adhering to the letter, if not the spirit, of the Criminal Procedure Law.

Following the hearing this month it is likely that the pace of proceedings will again slow to a crawl. Formal deadlines for the next legal phases of the case are minimal. The Liaoning High People’s Court may draw out announcement of the sentence. If the appeals court does come down with a death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There are no procedural deadlines in that process; the judiciary can hold up the case indefinitely, or wait until an opportune political moment in the Meng case to announce a decision.

The Background of the Schellenberg Case

Robert Schellenberg, a Canadian citizen, was arrested in the city of Dalian in 2014. (According to Canadian officials, nearly 200 Canadians are currently detained or imprisoned in China.) He stood accused of participating in a scheme to smuggle about 500 pounds of methamphetamine from China to Australia inside car tires. He was tried in 2016. In November 2018, two years after his trial, Schellenberg and his co-defendants were sentenced by the Dalian Intermediate People’s Court. He was found guilty of drug smuggling and sentenced to 15 years in prison, along with a hefty fine and expulsion from China following completion of the prison term. No one involved in the case was initially sentenced to execution, though two of Schellenberg’s co-defendants—both Chinese nationals—were given stiffer sentences: a suspended death sentence and an indeterminate life sentence (wuqi tuxing 无期徒刑). (In contrast to the U.S. parole system, China’s sentence reduction policy entails the reduction of sentences based on a system of points for good behavior, and generally means that prisoners with indeterminate life sentences are not usually imprisoned until death). The harsher punishments for the co-defendants reflect the court’s initial judgment that Schellenberg did not carry principal culpability in the case.

Dalian Intermediate People's Court. Image Credit: chinaplus.cri.com

Following the initial verdict Schellenberg appealed his sentence, indicating he considered the punishment too severe. If a defendant appeals a verdict, a second-instance court may not increase the sentence on review. The prosecution may also choose to appeal a sentence in order to increase the punishment, but they did not do so, suggesting they considered the penalty appropriate at the time.

Typically defendants face no risk in filing an appeal, but the Liaoning High People’s Court took an unusual approach to the case: rather than rule on it, the high court returned the case to the lower court for retrial. The retrial gave prosecutors the power to amend the charges and seek a harsher sentence, something the appeal court could not do. Prosecutors quickly amended the charges, ostensibly introducing new evidence that increased Schellenberg’s culpability. (Schellenberg’s lawyer claims no new evidence was introduced.) The lower court retried the case in January 2019 and sentenced Schellenberg to death, a significant increase in punishment from the previous trial verdict. Schellenberg appealed his verdict to the Liaoning People’s High Court a second time. On May 9, 2019—days before the four month procedural deadline for a hearing—the appeal court heard the case. However, the court declined to issue a judgment, indicating it would do so at an unspecified later date.

Liaoning Province High People’s Court. Image Credit: Zhonglan Xinwen

A Tale of Two Cases

What sentence should Schellenberg receive? A defendant’s criminal culpability and punishment ought to be determined in light of his or her own crimes. But whatever chance Robert Schellenberg may have once had of having his case interpreted in isolation ended last year. Today his case is indelibly wedded to another defendant: Meng Wanzhou, the CFO of Huawei, the world’s second largest cellphone manufacturer and one of China’s flagship companies.

Meng Wanzhou, Huawei CFO. Image Credit: Mingbao

In December 2018 Meng was arrested in Vancouver during a layover flight between Hong Kong and Mexico. Canadian officials arrested Meng based on a warrant issued by the United States Eastern District of New York, which named Meng as part of an alleged conspiracy violating sanctions with Iran. Meng is currently free on bail in Vancouver. The United States has requested that Meng be extradited to the U.S.

Meng’s arrest precipitated a diplomatic crisis in China-Canada relations. China has demanded Meng’s immediate release, alleging that the arrest is part of a Western effort to obstruct Huawei’s entry into Western markets. A representative of China’s Ministry of Foreign Affairs stated that Canada would face “grave consequences” over Meng’s continued detention. Immediately after Meng’s arrest in December, China detained two Canadians, Michael Spavor and Michael Kovrig, on accusations of endangering state security. Shortly thereafter the editor in chief of state media outlet the Global Times made a statement in English that “if Canada extradites Meng to the U.S., China's revenge will be far worse than detaining a Canadian.”

It is in this context that Chinese and Western commentators interpret Schellenberg’s situation. When Schellenberg appealed his 15-year sentence in November 2018—just before Meng’s arrest—he had every reason to think that the re-consideration of his case at a trial of the second instance could only work in his favor. A defendant who appeals a verdict is not supposed to face a more severe sentence on retrial. And the prosecution did not file an appeal raising concerns about the severity of the sentence.

But circumstances changed between Schellenberg’s appeal in November 2018 and the Liaoning High People’s Court review in December. Meng’s case became an international flashpoint and China vowed to respond. The Liaoning High People’s Court took the unusual step of inviting foreign media to the second-instance trial. Western journalists who were present noted the ways in which the event appeared staged to send signals to the audience. Rather than reach a verdict on the case, the court took the unorthodox step of sending the case back to the lower court.

The remand to the lower court allowed the prosecution to amend the charges against Schellenberg, claiming new evidence in the case. This procedural move provided the trial court with a legal justification for resentencing Schellenberg to death. Numerous Chinese legal experts have noted irregularities in these proceedings. It is striking, for example, that although it took four years to initially sentence Schellenberg to a 15-year sentence, the justice system managed to re-sentence him to death in less than a month. His lawyers also contend the amended indictment in fact does not provide any new evidence of Schellenberg’s culpability.

What Are We Waiting For?

What comes next? Schellenberg’s case has so far proceeded in two phases with very different timelines. In the first phase, which ran from arrest in 2014 through Schellenberg’s initial sentence of 15 years in November 2018, there were no public announcements indicating the case carried political significance. The court moved extremely slowly, taking four years to deliver the initial sentence. Four years is an unusually long stretch for a criminal case in China. In waiting so long to produce a verdict, the Dalian trial court surely consulted higher authorities on the appropriate course of action. Why did this process take so long? The protracted wait might be the result of weak evidence in the case. Since China’s trials virtually never produce acquittals (as Dui Hua has recently noted), cases with shaky facts are likely to be sent to an adjudication committee for deliberation on appropriate sentencing. When a case involves a foreigner, the considerations may take even longer.

The second phase of the Schellenberg proceedings began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

The second phase of the began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

We are now entering a third phase in the Schellenberg case, one in which Schellenberg’s fate hangs like a sword of Damocles over Canada. A cynical reading of the situation suggests that Schellenberg must continue to dangle there until Meng has either been extradited to the U.S. or returned to China. Meng’s most recent hearing took place on May 8. Schellenberg’s appeal hearing notably took place the following day. The timing of Schellenberg’s hearing carried a two-fold significance. The court heard the case within four months of accepting it, as required by law. But in doing so the day after Meng’s hearing, the court also pointed to the ongoing connection between the two defendants (a signal that did not, however, get much Western media coverage).

When will the Liaoning High People’s Court issue a sentence for Schellenberg? The Criminal Procedure Law indicates that the court may announce the sentence at a set time after the hearing, but does not stipulate any procedural constraints on that announcement (Articles 202 and 242). Indeed, Mark Swidan waited more than half a decade for announcement of a verdict following conclusion of his trial.

Although the court may delay indefinitely, Schellenberg’s procedural experience suggests that a verdict may be announced as a response to a development in Meng’s case. She is scheduled to next appear in court for an extradition hearing on September 23, so a sentence may be forthcoming at that time. If the high court upholds Schellenberg’s death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There is no fixed statutory period for completion of this review. Although limited data suggests that many death penalty reviews are completed in a matter of months, anecdotal evidence also indicates that some cases are under review for years. Overall, however, the outcome is extremely consistent: the SPC eventually affirms the overwhelming majority of death sentences, although precise data on this is lacking. In 2007, around 15% of death sentences were not approved, but the percentage is believed to be lower now.

Once the SPC affirms the verdict, an execution order is issued and the execution usually takes place as soon as within a week, although there are exceptions: Li Yan, a woman from Sichuan, was sentenced to death for killing her husband in 2010 in self-defense, after enduring years of horrific domestic abuse at his hands, by each court that heard the case (local city/intermediate, provincial Sichuan High People’s Court, and finally, in January 2013, the SPC.) The case provoked broad condemnation and expressions of concern both inside and outside China, including by the Dui Hua Foundation. China’s 2016 anti-domestic violence law was invoked in wide-spread calls to take seriously the situation of domestically abused Chinese women who receive harsh sentences ranging from ten years to death sentences when they act in self-defense. On April 24, 2015, Li Yan’s death sentence was commuted to death with two years reprieve, and on September 8, 2017, the intermediate court commuted the 2015 sentence and sentenced Li Yan to life in prison.

Post settings Labels Criminal Justice, Law Enforcement Published on 5/30/19, 12:13 PM Pacific Daylight Time Permalink Location Options

Complaints with Retribution: China’s Muffling of Gaoyangzhuang

Hong Kong-based pro-Beijing newspaper Wen Wei Po accuses democratic legislators and organizers of Occupy Central, including Joshua Wong, of making complaints overseas about internal affairs of China and Hong Kong. Photo credit: Wen Wei Po

China celebrates National Youth Day every year on May 4th, a holiday commemorating the patriotic May Fourth Movement in 1919. On this day exactly a century ago, thousands of university students assembled at Beijing’s Tiananmen Square, urging the Chinese delegation at the Paris Peace Conference not to sign the Versailles Treaty because the Allied Powers had conceded to Japan’s demand to take over the German concessions in Shandong. The procession proceeded to foreign embassies in the Legation Quarter to demand nullification of special foreign privileges, such as extraterritoriality. This was a privilege by which China was forced to yield control of sovereign powers, one of many losses as part of a series of “unequal treaties” in force since the First Opium War. Student protesters hoped that the United States would side with China over the “Shandong question,” because the U.S. was a key proponent of national self-determination and the U.S. embassy was the only foreign embassy willing to meet with their representatives and accept their petition.

A century later, the patriotic act of petitioning westerners known as gaoyangzhuang (告洋状) carries a negative connotation. Petitioning refers to the administrative system for receiving complaints from people with grievances, mostly concerning corrupt officials. While China guarantees the right to complain so long as petitioners do not bypass local authorities, the government does not tolerate the act of complaining to foreigners, in part due to the traditional notion of “not exposing family scandals.” Recent usage of gaoyangzhuang is often associated with Taiwanese president, Tsai Ing-wen, when she speaks to foreign diplomats and journalists about her rejection of Xi’s offer of the “one country, two systems” framework for reunification with the mainland. Li Jing-yu, wife of imprisoned Taiwanese activist Lee Ming-che (李明哲), has also been accused of gaoyangzhuang for criticizing China from overseas because she was prevented from visiting her husband, who is serving a five-year sentence in Hunan for subversion. The term is no less frequently used against Hong Kong democratic legislators, supporters and localists if they tell foreigners about Beijing’s tightening control over the former British colony.

In Taiwan and Hong Kong, complaining about the Chinese government does not land individuals in legal trouble because both regions are independent jurisdictions. By contrast, critics on the mainland face imminent threat of loss of personal liberty. In August 2013, Global Times stated that petitioners, alongside exiled democracy activists and “splittist forces overseas” headed by the Dalai Lama and Rebiya Kadeer, were the major users of gaoyangzhuang. Petitioners were accused of taking part in a number of “illegal behaviours” such as wearing clothing traditionally associated with petitioning. These included, for example, signs hanging both down the petitioner’s front and back, waving banners, and chanting slogans at Beijing-based international organizations, such as offices of the United Nations and foreign embassies, with the intention to “create international influence” (zaocheng guoji yingxiang 造成 国际 影响). Unlike those in Hong Kong and Taiwan, petitioners on the mainland with assorted grievances, from forced demolitions to land disputes, are most likely to face reprisals for complaining to foreigners.

Hu-Wen Era

It is unclear when the term of gaoyangzhuang entered the official lexicon. An article originally published by Phoenix Weekly in January 2009 stated that the term began to come into vogue during the Hu Jintao and Wen Jiabao administration. China’s effort to improve its global image prior to the Beijing 2008 Olympics incentivized provincial governments to track gaoyangzhuang petitioners in Beijing. In 2005, a total of 37 people from Hubei were reported to have travelled to Beijing to make complaints to foreigners, compared to 77 people from Liaoning, which was ranked as the top fourth province nationwide. In the 19 months since July 2004, over 540 people in 50 different groups had filed complaints to the Beijing offices of UNHCR and UN Development Programme, according to statistics from the Sanlitun police station. A Liaoning official was quoted as saying that gaoyangzhuang “seriously damages the country’s reputation and external image” and “creates pressure on the capital’s social security and stability.” Another Shanghai official called gaoyangzhuang “despicable,” an act tantamount to “blackmailing the Chinese people.”

A Hebei government directive in 2007 states that gaoyangzhuang petitioners adversely affect Beijing’s social stability and vilify the national image. Underlining added by Dui Hua Foundation. Photo credit: Boxun

Public censure achieved little to deter petitioners from complaining about local governments to foreigners. In view of this, provincial public security, procuratorial offices, and courts started to jointly push for punitive measures. Anhui was among the first to release an opinion in 2006, listing foreign embassies and international organizations as “key areas” for stability maintenance alongside the central organs of the Chinese Communist Party, and subjecting anyone who disturbed social order to punishment in accordance to the Public Security Administration Punishments Law.

Government officials are keen to suppress gaoyangzhuang because they use low rates of gaoyangzhuang as an indicator of good governance. A performance appraisal document in Shihu Township, Jiangsu, in 2011 categorized the prevention of gaoyangzhuang under the section appraising “critical stability control” (zhongdien weiwen 重点维稳) during “sensitive days" (such as certain national holidays and anniversaries of events that are likely to inspire protests and other forms of public political expression); the section carries two evaluation points. Each occurrence of gaoyangzhuang leads to a deduction of half a point. Similar assessment mechanisms likely existed before 2011, since the 2009 Phoenix Weekly article mentions that local public security bureaus in Henan, Shanghai and Liaoning had publicized cases of petitioners apprehended or detained for gaoyangzhuang.

In the run-up to the 2008 Olympics, both official usage of the term gaoyangzhuang and punitive measures proliferated. In June 2007, an official in Heilongjiang’s Datong District called for “detaining or giving re-education through labor (RTL)” to gaoyangzhuang petitioners before resolving their problems. Petitioners would have to pay for all expenses the government incurred for handling their petitions if deemed “unreasonable.” In January 2008, an opinion from Hebei called gaoyangzhuang an “irregular form of petitioning to Beijing” (feizhengchang jinjing shangfang非正常进京上访) and a “serious breach” of the petition regulations. The opinion recommended that public security directly detain or give RTL to gaoyangzhuang petitioners without the need to give prior admonishment or warning. In March, Liaoning followed suit and issued a similar opinion to crack down on gaoyangzhuang petitioners.

Nor did the crackdown on gaoyangzhuang relax in the wake of the Beijing Olympics. A local government directive issued in 2009 continued to blame gaoyangzhuang petitioners for “complicating simple issues, internationalizing and politicizing domestic problems” by means of “creating international influence.” Throughout the year, a total of 2,862 gaoyangzhuang petitioners were caught in Chaoyang District, Beijing, and, of these petitioners, 1,118 were detained. In February of that year, then-Secretary of State Hillary Clinton visited China. Zhao Chunhong (赵春红) led a group of petitioners to put up a banner welcoming Clinton and called on Nancy Pelosi (scheduled for a separate visit in May of 2009) to put pressure on China over its human rights records. Zhang was subsequently sentenced to three years’ imprisonment for “picking quarrels and provoking troubles.”

About half a year before Xi’s rise to power in 2012, blind activist Chen Guangcheng (陈光诚) made a daring escape from house arrest to the U.S. embassy. In May, Chen and his family left China for New York. Some mainland observers opined that the episode had emboldened petitioners to make complaints to foreigners in the belief that the Chinese government would ultimately address their problems. On May 8, 2012, elderly petitioner Nie Muni (聂木妮) and his wife attempted to “barge into” the U.S. embassy, but were intercepted by the embassy guards and taken to the Jiujingzhuang Reception Center in Beijing, an unofficial detention center where petitioners are held. In an interview with Voice of America (VOA), the couple said they wanted to “beat drums and cry injustice” (jigu mingyuan击鼓鸣冤) at the U.S. embassy because the U.S. “gives people a sense of trust and respect for human rights and dignity.” They claimed to have been inspired by Chen, who received medical treatment from the Chinese government after he escaped to the U.S. embassy.

Xi’s Regime

Despite the abolition of RTL in 2013, many gaoyangzhuang petitioners have not fared any better. They are now more likely to be convicted of “picking quarrels and provoking troubles,” which carries a maximum sentence of ten years. In 2013, over a dozen petitioners from Fuzhou, Fujian, started a series of gaoyangzhuang petitions in the hope that then-U.S. Ambassador Gary Locke would respond to their plight. In April of that year, they even planned to intercept John Kerry’s vehicle during his Beijing visit on the 13th. Upon learning that the Fuzhou government had dispatched large numbers of interceptors to Beijing, the group proceeded instead to Ambassador Locke’s residence, where they threw stacks of leaflets and some of them chained themselves to the front gate. The group of petitioners grew to over two dozen in July, but many were removed and collectively charged with “picking quarrels and provoking troubles.” Some of them were released on bail after several months in custody.

Some of the Fuzhou gaoyangzhuang petitioners who attempted to complain about corruption and rights abuses in China to then-U.S. Ambassador Gary Locke in 2013. Photo credit: RFA

Lin Yingqiang (林应强) continued his effort to petition Locke alongside a dozen of the Fuzhou petitioners into early November. After 15 months in criminal detention, Lin was sentenced to three years’ imprisonment in February 2015. The judgment stated that Lin circulated 68 blog posts about the “Fuzhou victims” to satisfy his greed in the name of “anti-corruption” and “whistleblowing.” Among these posts, two recounted his stories of “barging into” the American embassy, which were viewed over 9,000 times in 2013. A day after his November petition, he and other Fuzhou petitioners put up another blog post, entitled “Please Follow Fuzhou Petitioners Who Complained to Foreigners,” which was viewed 51,159 times within one month of posting. At least four other individuals surnamed Tang, Chen, Shi and He were sentenced to two and a half years for the same offense of “picking quarrels and provoking troubles.” According to a Fuzhou activist, the above-mentioned five Fuzhou petitioners were sentenced at three different locations on purpose, because putting all of them on the same trial would have attracted unwanted publicity to this significant gaoyangzhuang case.

In February 2016, unofficial news media reported that the Ministry of Public Security would establish a “national petitioner database” as a preventive measure of stability maintenance. The database would not only track mainland petitioners, but also those who petitioned in Hong Kong, Macao, and Taiwan. An exit ban might be placed on the mainland petitioners, who also faced restrictions from entering various municipalities and cities. Public security would liaise with Chinese embassies to track and monitor petitioners who made complaints overseas.

The petitioner database was created with the intention of curbing the rising number of petitioners who traveled abroad to voice complaints about the Chinese government, according to Bowen Press, citing an informed source. On September 25, 2015, dozens of petitioners attempted to intercept Xi’s motorcade at the end of the Obama-Xi meeting in Washington, D.C. One of them, a petitioner from Jilin, managed to stop Xi’s wife Peng Lijuan’s vehicle. Bowen reported that the incident had “frightened” Peng and made Xi “lose face.” The petitioner was taken away by police and his petition materials were subsequently received by officials from the Chinese embassy. In March 2016, another group of 50 gaoyangzhuang petitioners from 10 different provinces and municipalities were accused of “creating a nuisance” when Xi attended the Fourth Nuclear Security Summit, again in Washington, D.C. At the time of writing, Dui Hua is not aware whether the petitioner database has come into operation.

Communicating with Foreign Media

While petitioning is not the only channel for Chinese citizens seeking to publicize or change policies that they deem unfair, anyone who makes negative remarks about China to foreign media can face accusations of gaoyangzhuang. In May 2014, journalist Xiang Nanfu (向南夫) was detained for the offense of picking quarrels and provoking trouble, a charge stemming from his use of Boxun, a U.S.-based Chinese language news website, to “fabricate" news about organ harvesting and violent land grabs in China in exchange for article fees. It is worth noting that although Xiang was not a petitioner, Xinhua News called his act of “smearing” China in front of foreigners gaoyangzhuang.

Lawyers, too, have been affected by Chinese government responses to communicating with foreign sources. There has been a growing trend of using administrative penalties against lawyers following the nationwide crackdown on Chinese lawyers and human rights activists that began on July 9, 2015. During the “Two Meetings” in March 2018, the Ministry of Justice (MOJ) warned lawyers not to give dissenting views on China’s constitutional amendment that removed Xi’s presidential term limit. A notice issued by a local justice bureau indicated that violators would have his/her license to practice revoked and be barred from resuming work for five years. The MOJ also explicitly warned lawyers not to give interviews to foreign media, including BBC, Voice of Russia, and American media outlets such as NBC, CBS, VOA, and Radio Free Asia (RFA). When asked by RFA about the health condition of his client Huang Qi, the webmaster of the legal rights website 64 Tianwang, in August 2018, defence attorney Liu Zhengqing apologized for not being able to give an interview because he was under a lot of pressure with regard to talking to foreign media. On December 25, 2018, Liu’s license to practice law was revoked.

Critics in- and outside of academia frequently face harassment for speaking out to foreign media. On August 2, 2018, Shandong police broke into the home of retired professor Sun Wenguang (孙文广) while he was giving a phone interview to VOA. In the interview, Sun criticized Xi’s One Belt One Road initiative, urging Xi to spend more money in China instead of wasting money overseas on aid, loans and investments. Sun was put under house arrest for over 10 days.

A recent case involving prison sentences for who spoke out to foreign media involved Tibetan language activist Tashi Wangchuk, who was sentenced to five years’ imprisonment for inciting splittism in May 2018. In 2015, Tashi Wangchuk gave interviews to The New York Times, in which he expressed worries about the disappearance of the Tibetan language, as the Chinese authorities have been prohibiting the use of Tibetan in spheres ranging from schools to commerce even on the Tibetan plateau. Tashi Wangchuk described China’s ethnic policy as a “systematic slaughter” of Tibetan culture. Speaking to foreign media was his last resort, because government bureaus had refused to lodge a petition for him. He had also been turned down by domestic media, nor could he bring a lawsuit against the language policy. Knowing full well of the risk of speaking to foreign media, Tashi Wangchuk stressed that he was not advocating for independence. He insisted that language rights are human rights protected by China’s constitution. However, the nine-minute film made by The New York Times was cited as evidence that landed Tashi in jail. Tashi is scheduled for release from a prison in Qinghai in January 2021.

The frustration of those who apparently feel driven to complain to foreigners is succinctly described by a Caixin columnist who witnessed a gaoyangzhuang incident at the U.S. embassy in March 2014: a middle-aged petitioner holding two crutches, along with three people who appeared to have come from the countryside, were intercepted by a plainclothes officer after they ignored the warning that they would be arrested. Speaking from his own petitioning experience, the columnist wrote that the only response he received from the petition bureau was a receipt acknowledgement of his complaint, and despite an indefinite wait, his petition was never addressed. He guessed that gaoyangzhuang petitioners did not genuinely think they could succeed in obtaining redress from foreigners; they were simply trying their luck because they believed they had nothing more to lose by “speaking out against injustice” in front of foreigners.

Many gaoyangzhuang petitioners who made this or similar assumptions, however, have been mistaken. The cases explored in this article demonstrate how those who complain about China to foreigners, including foreign embassies, visiting diplomats and leaders, and journalists, could very well face several forms of retribution. Not only are they stigmatized for “badmouthing” China, but they also face the risk of imprisonment for picking quarrels and provoking troubles, and even for the very serious crime of endangering state security in cases involving ethnic minorities.

For more on petitioning in China, see also Dui Hua’s earlier reporting on the Beijing city government’s efforts to prohibit the use of “black security firms” and “black jails” to prevent petitioners from outside Beijing from coming to the capital to petition the central government, and, potentially, foreign actors.

China Releases Detailed Statistics on Trials

Supreme People's Court of China Photo Credit: People's Supreme Court of China Website

In an important development in judicial transparency, China has released detailed statistics on sentencing and convictions by Chinese courts in 2017. The statistics are broken down by crime, length of sentences, and age and gender of defendants. The statistics, compiled by the Supreme People’s Court, are provided in two tables in the China Law Yearbook, 2018 Edition, available for purchase in China but not overseas. The yearbook also provides, for the first time, the number of cases that have been accepted by courts for trials of the first instance that have not yet been concluded.

Tables presenting the data can be found below.

Key findings for 2017 include:

• Trials rarely result in acquittal. More than 99.9 percent of criminal trials resulted in guilty judgments. Although the acquittal rate of 0.091 percent in 2017 is extremely low, it is actually the highest rate since 2010, when it was 0.099 percent.
• Forty-four percent of criminal judgments did not result in time spent in prison.
• More than 86 percent of trials in China resulted in sentences of less than five years in prison in 2017.
• A surprisingly high percentage of trials – 27 percent – resulted in suspended sentences in 2017.
• Deprivation of Political Rights and Deportation were rarely used as a stand-alone sentence in 2017.

• More than 83 percent of individuals convicted of crimes were between the ages of 25 and 60 in 2017. Only two percent of those convicted were over the age of 60.
• Women made up 9.3 percent of defendants convicted in criminal trials in 2017. This is a relatively high number and suggests that the number of women in prison continues to rise. The Ministry of Justice no longer publishes statistics on the number of female prisoners in China.
• 32,778 juveniles (defined as individuals between the ages of 14 and 18) were convicted by Chinese courts in 2017. Of these, 217 were girls. It is not known how many juveniles were placed under coercive measures. In 2010, Chinese police arrested 80,000 juveniles, of whom 64 percent or 51,200 were placed under coercive measures.

In addition, statistics on trials reveal that trials of the first instance for endangering state security (ESS) and dereliction of military duty accepted by courts totaled 441 cases in 2017; 448 cases were concluded. The great majority of these two crimes, grouped together as "other," were for ESS. These numbers are consistent with previous years. Of cases accepted by courts, 86 cases had not been concluded by year’s end.

Although the Supreme People’s Court has taken the lead in advancing judicial transparency, the same cannot be said of other judicial organs. As noted above, the Ministry of Justice has, since 2015, declined to provide statistics on the number of juveniles and women in prison. In its 2019 work report for the National People’s Congress, the Supreme People’s Procuratorate groups the ten categories of crimes into six segments, putting endangering state security in with graft and bribery, endangering national defense, dereliction of duty, and dereliction of military duty. "By grouping endangering state security – the most serious political crime in the criminal law – with five other crimes," Dui Hua’s executive director John Kamm pointed out, "it is virtually impossible to ascertain how many people were indicted for subversion, splittism, and other national security crimes by Chinese prosecutors in 2017."

Three Years On: The Anti-Domestic Violence Law

It’s been more than three years since China’s Anti-Domestic Violence Law came into effect on March 1, 2016. The law was celebrated as an achievement for women’s rights activists who spent decades fighting for legislative reform. The law introduced safety mechanisms for domestic violence victims through the introduction of protection orders and warning systems that involve employers, local governments, social workers, and law enforcement in the effort to better protect women from the scourge of domestic violence. However, three years since the law’s passage, its shortcomings are troublingly evident.

On November 25, 2018, International Day for the Elimination of Violence Against Women, People’s Daily reported several shocking statistics: of a sample of 270 million families, 30% of women suffer domestic violence; domestic violence is a cause of 60% of female suicide deaths annually; of women who die from homicide, more than 40% experienced domestic violence; and that women report domestic violence to police only after suffering an average of 35 incidents. Domestic violence is certainly not unique to China – one in three women suffer domestic violence globally. A study conducted by the All-China Women’s Federation and National Statistical Bureau in 2010 found that 24.7 percent of the population experiences domestic violence in their lifetime.

“Cooling off Period” in Divorce Cases

In June 2018, a Sichuanese woman by the name of Dong Fang (pseudonym) filed for divorce to a Chengdu court after suffering repeated domestic abuse from her husband. Dong applied for a personal safety protection order to the court after unsuccessfully filing for divorce. After three trials, the court finally permitted Dong’s request. After the initial hearing, Judge Zhang Yinbin claimed that it was necessary to give the parties a “cooling-off period” before he approved their divorce. Zhang claimed that because the abuse was not “chronic” it could not be considered domestic violence, even though the Anti-Domestic Violence Law does not require that abuse be chronic in order to constitute domestic violence and the Marriage Law mandates that domestic violence is grounds for divorce. Dong’s case received heavy media attention after she released a video describing her experience and called for “the rule of law to provide reasonable protections for vulnerable groups.” Dong’s video garnered more than ten thousand messages from supporters. The concept of a “cooling-off period” was originally designed to prevent “flash divorces” (闪离), divorces that were thought to be impulsive because of their swiftness. The fact that the concept has been applied to divorce cases involving domestic violence is a worrying sign. It reinforces the idea that victims’ testimonies are untrustworthy and that disputes should be resolved privately in the home, a dangerous message for judicial authorities to be sending to the public.

Female Incarceration

Although a number of Chinese courts have released guiding opinions that call for lighter sentences and sentence reductions for women who “fight violence with violence,” nationwide, most women who fight back still receive severe punishments including up to 10 years’ imprisonment, life sentences, death with reprieve, and, death sentences, as in the case of Li Yan (李彦) whose death sentence was eventually overturned. These harsh sentences do not take seriously the realities of domestic violence and do not account for the fact that women who have committed offenses while defending themselves against a family member tend not to pose a threat to society. They also fail to recognize the equal status of women by accepting domestic violence as a private affair for which the victim deserves at least some blame.

On September 14, 2017, after suffering more than 31 years of domestic abuse, 52-year-old Li Fang (pseudonym) killed her husband. In the early morning of that day, Li’s husband beat and kicked her. When Li’s husband fell asleep, she cut his feet with a knife. When Li’s husband awoke in shock, he attempted to chase her and died shortly after from blood loss. The Changshou Hanshou County Procuratorate charged Li with intentional assault and sentenced her to eight years in prison.

Li’s daughter later told reporters that said she understood why her mother reacted the way she did. Reporters discovered that Li had gone to the county women’s federation for help in the past and that she had visited the People’s Mediation Committee in October 2016 to apply for mediation for a divorce. On September 11, 2017 Li reported the abuse to police to no avail. The next day, Li visited her husband’s workplace community service hall to confront him in front of his colleagues. The next afternoon, two days before the incident, the community service hall leader, instead of taking Li’s complaints seriously, gave her three hours of “ideological education.”

Domestic Violence Against Children

The issue of domestic violence against children presents unique complications for reformers and those seeking to use the Anti-Domestic Violence Law to protect child victims. The case of fifth grader Wenwen (pseudonym) from Hangzhong, Shaanxi province who died at the hands of her abusive father illustrates the difficulty in protecting children from domestic violence.

Wenwen was eleven years old when she died on April 4, 2016. Neighbors and teachers of Wenwen’s were interviewed by media following her death; all of them were aware of the abuse against Wenwen and had confronted her father in the past on multiple occasions pleading him to stop his behavior. In one instance, the property manager of the housing compound in which Wenwen resided, confronted her father about the abuse. One neighbor, a woman surnamed Zhang, recounted a time when she found Wenwen kicked out of her home by her father and forced to stand on the street in the pouring rain without shoes and little clothes on. While neighbors and teachers were concerned for Wenwen’s well-being, the interviews suggest that they excused her father’s behavior due to his “high expectations” of Wenwen and his time spent in the military.

Wenwen’s case is not unique – violence against children inflicted by parents is often excused as “discipline” or as an effect of one’s parenting style. Violence takes many forms and is not always physical; neglect, abandonment, threats of intimidation, restrictions of personal freedom, witnessing violence, and mental abuse are all forms of domestic violence.

Verbal and mental abuse can be difficult for victims and outsiders to identify. In Wenwen’s case there was no question that she was being abused; her suffering was visible and her father admitted his actions. It was Wenwen’s community and school that failed to advocate for her. Underlying the silence of those who fail to advocate on behalf of domestic violence victims, particularly child victims, is the outdated belief that domestic violence is a “family matter” to be resolved privately and that children are in effect their parent’s property.

Media analysis by Huike News found 216 media reports about domestic violence cases involving children from September 2014 to September 2018. Of the 216 cases:

Dating Violence

In November 2018, Japanese model Haruka Nakaura released photos on social media revealing that her boyfriend, Jiang Jinfu, a Chinese model and actor, had been physically abusing her. Jiang admitted to beating her.

The reaction to the story on social media in China was unexpected – netizens applauded Jiang for his honesty and bravery. Lu Pin, a prominent Chinese feminist activist criticized the reaction stating, “People are always trying to find many reasons to justify violence and one reason they’ve found is ‘This woman is not one of us,’” alluding to Nakaura’s Japanese ethnicity.

China’s Anti-Domestic Violence Law is not limited to marriages, it also includes "persons living together other than family members." However, in practice police are less likely to register cases where the victim and perpetrators are seen as “just dating.” In such cases, the violence inflicted is treated as a form of regular personal assault, which carries a lighter penalty. Harassment within relationships is often dismissed by authorities as simply an “emotional entanglement” (情感纠纷) and when they are brought to court, judges often treat the cases as no different from a form of intentional assault, ignoring the familial and domestic context within which the abuse occurred.

Social Credit System

Lü Xiaoquan, a Chinese lawyer who has represented victims in several high-profile domestic violence cases, proposes that "dating violence" should be included in the personal social credit system. Lü cites progress made in Shandong’s provincial Anti-Domestic Violence Regulations to implement this practice.

The social credit system is a state-run national reputation management project that is due to come into full effect in the summer of 2020. The system rewards and punishes citizens depending on certain behaviors. For example, citizens can earn points for volunteering, donating blood, or practicing “family virtues” which they can exchange for benefits like discounts on public tolls or priority enrollment to schools for their children. On the other hand, citizens can lose points for tax evasion, failure to pay bills, and in some cities for domestic violence. A loss of points bars citizens from benefits like staying at luxury hotels or buying real estate. Whether including domestic violence in the social credit system will be a more effective deterrent than criminal punishment has yet to be determined. Given the obstacles that victims face in obtaining evidence of domestic abuse and in applying for protection safety orders, the social credit system – which is very controversial as it can be seen as infringing on personal freedoms – may prove to be a more accessible method for victims to report abuse.

Progressive Reforms Underway in Yunnan

On January 3, 2019 Yunnan province became the first province to implement a “mandatory domestic violence reporting system.” This is a significant development because under Article 260 of the Criminal Law, courts can only accept domestic violence cases under procedures for private prosecution (自诉) of criminal cases. By implicating government authorities as responsible parties in collecting and reporting evidence of domestic violence, the reporting system brings greater protection to individuals who face difficulty in filing private prosecutions such as the elderly, children, people with disabilities, or people in financially dependent relationships with their abusers.

The reporting system was the result of Measures promulgated by the Yunnan Provincial Women’s Federation, the Provincial Department of Education, the Provincial Public Security Department, the Provincial Civil Affairs Department, and the Provincial Health Committee. The Measures stipulate that “schools, kindergartens, medical institutions, residents’ committees, village committees, social work agencies, rescue management agencies, welfare agencies and their staff” are all responsible parties in the mandatory reporting system for domestic violence. A highlight of the implementation method includes defining domestic violence to include an array of actions such as sexual violence, neglect, abandonment, forced marriage, forced begging, forced drug use, drug trafficking, and theft. The measure also includes the establishment of a risk assessment tool for victims and states that the Women's Federation should be involved in informing the courts’ decision-making.

The implementation of the measures has been spearheaded by the Kunming Wuhua District Mingxin Social Work Service Center. In an interview, the Center’s Director Liu Ping stated “according to the experience of our institutional services, more than 70% of women who have suffered domestic violence have experienced sexual violence, and this is difficult for them to express. The Provincial Women’s Federation is seeing the harm and prevalence of sexual violence, so it is included [in the measures].” Liu reiterated the importance of including rarer cases such as forced marriages, where domestic violence is prevalent, into the measures. Liu stressed that police should be better trained in identifying and collecting evidence and issuing warning letters and handing down administrative punishments in the many cases where the actions of perpetrators do not constitute a legal violation.

The Yunnan implementation measures suggest incremental progress in bolstering the Anti-Domestic Violence Law and addressing the barriers victims face in reporting incidents. But simply having measures on paper is not enough. Public education that tackles the deep-rooted assumptions that normalize domestic violence must be addressed. Given that most victims of domestic violence suffer in silence, local actors must actively educate community members about how to identify signs of domestic violence, connect survivors with resources, and increase public awareness about domestic violence.

In Shanghai, the Shanghai West Road Police Station in Jinfeng District established a complaint station for domestic violence cases however from 2016 to 2017, the station received only 63 complaints of domestic violence, which resulted in 61 criticism and education cases, one administrative detention and fine, and one warning. In 2016, the Yuzhong District Court in Chongqing received 53 cases of family disputes involving domestic violence. Of the cases, 41 were dismissed for lack of evidence and of the remaining 12 cases that provided evidence of domestic violence in the form of photographs, police records, witness testimonies or medical records, six cases were dismissed. The fact that two cities with populations as large as Shanghai and Chongqing have recorded such low numbers points to the growing need for reformers to focus on the forceful implementation of the Anti-Domestic Violence Law.