Tuesday, March 19, 2019

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.