Domestic violence victim (photo from SPC website)
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
- the seriousness of the problem;
- 10 model cases;
- a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
- the significance of the 10 model cases
- some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
- defining domestic violence;
- determining whether acts constitute domestic violence;
- classification of different types of domestic violence;
- more specific guidelines on criminal punishment for domestic violence;
- evidence in domestic violence cases;
- guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)