Domestic violence law's impact hamstrung by narrow scope, enforcement issues

2017-03-09 09:04Global Times Editor: Li Yan ECNS App Download

When China's first ever Anti-domestic Violence Law was adopted last March, it was hailed as a victory for the millions of Chinese families who reportedly suffer from this problem.

The law means victims will be entitled to apply to courts for personal protection orders in the face of physical and psychological harm from family members. Chinese courts received 680 requests for personal protection orders from March to December 2016, according to the Supreme People's Court (SPC) Wednesday.

Personal protection orders ban abusers from continuing domestic violence, in addition to harassing or contacting victims and their family members. Those found to be abusive are also meant to move out of any shared residence.

This provision has helped deter abusers and has had an impact on the level of abuse in general, Lü Xiaoquan, a lawyer with the Beijing Zhongze Women's Legal Counseling and Service Center, a Beijing-based NGO, told the Global Times on Tuesday.

The existence of this law may also influence the criminal justice system to treat victims who "fight fire with fire" and attack their abusers more leniently, Lü said.

Gaps remain

Courts in Northwest China's Shaanxi Province have issued a total of 54 personal protection orders since the law came into effect, with 53 issued in East China's Anhui Province, 60 in Changsha, Central China's Hunan Province, and 9 in Wuhan, Central China's Hubei Province.

But the provisions of the groundbreaking law still fall short of what is needed, and its implementation at the local level has been patchy as police still generally stick to the idea that what happens within a family is almost always "private," Lü said.

Li Mingshun, vice director of the Marriage and Family Law Studies Association under the China Law Society, told the China Youth Daily that "the most important character of domestic violence is that it is elusive."

Li said that "the Anti-domestic Violence Law has made it clear that domestic violence is illegal and harmful. It is not private issue, it is crime."

But fighting this crime has proved challenging. While courts are tasked by the law with enforcing these orders, they are practically unable to do this, and this role is better suited to local police, Lü explained.

"The wrong body would make the orders nothing but a piece of paper."

Moreover, the orders' scope is too narrow, Lü stressed, adding that "it does not help abused spouses acquire a share of household assets, or help victims receive psychological treatment, compensation from their abusers or financial support from abusive relatives in the case of underage victims."

If victims decide to get a divorce, to break free of their abusers and attain financial security through a division of household assets, abusers will often respond with intensified violence to prevent the divorce, an unnamed judge in Haidian district, Beijing, told the Beijing Times on March 1.

"The essence of domestic violence is the control of victims by abusers," the judge said.

In the around 3 million divorces that took place in China from January 2014 to September 2016, nearly 30 percent of cases involved at least one partner citing domestic violence as a reason for the split, the SPC said.

Path forward

From March 1 through the end of November, Shanghai courts received 106 applications for personal safety protection, dealing with 99 of them and issuing protection for 35 applicants, the Xinmin Evening News reported on March 1.

Around 64 percent of the 1,700 people polled recently by the Shanghai Women Lawyers Association knew about personal safety protection orders, news portal reported.

More and more victims are learning there is a legal avenue to protect their rights, but the number of victims who seek out official protection is still a tiny proportion of the total, Lü said.

Lü noted that the law does not explain who is eligible to apply for an order in detail, only saying "the orders are applicable when victims are facing threats of domestic violence or suffering from domestic violence or are in an emergency."

Sun Xiaomei, a professor at China Women's University in Beijing, told the Beijing News on Friday that many terms used in the law to define domestic violence, such as "frequency," "duration" and "seriousness," and how police should allocate the burden of proof, all remain controversial.

Sun suggested that "involved departments, such as the police, courts and civil affairs bureaus, need to draw up practical working procedure guidelines on how to handle domestic violence cases. Local authorities should also adopt their own policies.

Sun also said, the law should also cover divorced couples, ex-partners and cohabitating gay couples, and address the problems of sexual abuse and economic control.


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