Domestic Violence Survivors Make Heavy Use of Xinfang (“Letters and Visits”) System

This blog has focused on China’s legal response to domestic violence. The law, however, is only one means of redress in China – and not necessarily the most effective. Instead of relying on the courts, many aggrieved individuals choose to petition other state agencies for help. This practice is referred to as the xinfang (信访) system – literally, “letters and visits.” English-language literature on the xinfang system has tended to focus on petitions regarding land disputes and local political corruption. (See, e.g., Carl Minzner, Xinfang: An Alternative to Formal Chinese Legal Institutions, 42 STAN. J. INT'L L. 103 (2006).) However, as Chinese media has recently reported, complaints related to domestic violence comprise a significant portion of petitions. Below is a list of articles and relevant statistics:

· Zhejiang to Legislate and Promote Domestic Violence “Personal Protection Order” (浙江拟立法推行家庭暴力“人身保护令”): According to statistics compiled by the Zhejiang Provincial Women’s Federation, petitions related to domestic violence account for 14.5% of all petitions in the province over the last three years.

· Petitions to Women’s Federation of Xining City are Down, but the Proportion of Domestic Violence Remains High (西宁市妇联信访案件下降家庭暴力比例仍居高): Out of 223 petitions to the Women’s Federation of Xining City in 2008, 84 petitions were related domestic violence (approximately 37% of all petitions).

· Divorce, Domestic Violence and Infidelity are the Most Prominent among Petitions to the Women’s Federation (离婚、家庭暴力、外遇在妇联信访案件中最突出): In 2009, the Women’s Federation at the provincial, county and municipal levels received 380,000 petitions, including 210,000 complaints related to marriage and family rights/interests (权益). 48,000 complaints were related to domestic violence, comprising 22.69% of marriage- and family-related petitions.

· Nanjing Women’s Federation Releases New Statistics: Domestic Violence Disputes Remain on Top (南昌妇联发布信访最新数据 家庭暴力纠纷仍排在首位): Out of 324 cases last year (2008), 90 cases were related to domestic violence, representing 27.8% of all petitions.

These articles show that domestic violence survivors will sometimes choose to petition state agencies – in particular, the Women’s Federation – as a means of addressing violence at home. Unfortunately, the articles raise more questions than they answer. For example:

• How do survivors petition the Women’s Federation: in-person visits or letters? Does the method of petitioning affect the likelihood of receiving assistance?
• Do survivors rely on petitioning as their sole means of redress or do they combine other strategies, such as litigation and/or reporting to local law enforcement? Is petitioning their first recourse or a means of last resort?
• What, if any, relief is the Women’s Federation able to provide survivor-petitioners?

I will continue to look for other articles that will hopefully shed light on these questions.

Battered Women's Syndrome in Practice in China's Courts

This blog entry continues the previous discussion on husband-killing (mariticide) by critically examining an article by Chen Min, an attorney and domestic violence advocate, on the use of the battered women’s syndrome (“BWS”) in homicide cases.

The link between the lack of legal protections and husband-killing

I originally envisioned that this blog would focus on China’s recent experiments with protection orders in domestic violence situations. My internet searches, however, disclosed numerous media articles on battered wives who kill their abusive husbands. While the data is too limited to draw any definite conclusions, I hypothesize the following: 1) China has an unusually high-rate of mariticide; 2) This unusually high-rate is due to the lack of effective legal protections (e.g., protection orders), forcing battered wives to adopt extra-legal measures, such as killing their abusive husbands. (See Angela Brown and Kirk Williams, “Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides,” 23 Law and Society Review 75 (1989), arguing that battered women in countries with fewer domestic violence resources have higher rates of homicide committed by battered women.)

The Scope of the Problem
It is difficult to gauge how many women kill their husbands due to abuse in China. Small-scale studies and informal sources, however, suggest that the vast majority of women convicted for homicide killed their husbands and were motivated, at least in part, by the desire to escape further abuse. For example, a 1999 study by the Shaanxi Research Meeting on Women’s Studies, Marriage and the Family (陕西妇女理论、婚姻 家庭研究会) randomly selected 101 homicide cases from the Shaanxi Women’s Prison. In 64 of those cases, the victim was the prisoner’s husband. In a 2005 article* published by Life Daily (生活报) in Heilongjiang Province, an unnamed prison official is quoted as stating that 80% of women prisoners who were convicted for homicide killed their husbands and that, within this group, over half of the prisoners suffered from long-term domestic violence at the hands of their husbands.

(* “Reporter interviews three women convicts who killed their husbands: Young women cannot stand the violence and hack their husbands to death”)

The “Battered Women’s Syndrome” in China: Defending Women Who Kill Their Abusive Husbands

An article by Chen Min, A Retrospective on Implementing the Battered Women’s Syndrome in China, examines her own and others’ efforts to defend women on trial for killing their abusive husbands. In particular, Chen Min describes four cases in which defense attorneys attempted to introduce expert testimony regarding “battered women’s syndrome” (受虐妇女综合症理论). Below is a synopsis of the results:

Case 1: In the first case, a court in Ningjin County, Hebei Province rejected the defense’s request to offer Chen Min’s expert testimony regarding battered women’s syndrome due to “the lack of legal basis” (法律依据). Nonetheless, the court apparently accepted the fact that the defendant had suffered from domestic violence and specifically found that the decedent-husband was “seriously at fault” (有严重过错). Unfortunately, the article fails to tell the reader how the finding that the decedent was at fault affected the court’s legal analysis or the ultimate outcome in the case.

Case 2: In the second case, the procuratorate (检察院) in the Haidian District of Beijing invited Ms. Chen as an expert on domestic violence to examine the defendant before the initiation of criminal charges. According to Ms. Chen, the case is significant because it is the first example of a basic-level judicial agency inviting an expert witness to testify regarding the battered women’s syndrome. Ironically, Ms. Chen determined that the defendant was not “under the influence” of the battered women’s syndrome.

Case 3: In a 2002 homicide case before the Supreme Court in the Inner Mongolia Autonomous Region, Liu Kui, the defense attorney, employed BWS theory to convince the court to suspend the execution of the defendant’s death sentence for two years. Unfortunately, the article does not say how Mr. Kui used the BWS. However, based on the outcome of the case, Mr. Kui apparently did not argue (or the court did not accept) that the defendant’s use of deadly force was justified as self-defense.

Case 4: In the fourth and final case, the author, Chen Min, employed BWS theory to convince the court (Jiaozhou City (胶州市), Shandong Province) to consider the defendant’s eighteen years of past abuse as an extenuating circumstance (酌定从轻情节) in her sentencing. In light of this history of abuse, the court sentenced the defendant to eight years imprisonment – the lightest sentence in that type of case, according to local attorneys.

Conclusion
Ms. Chen’s article shows that Chinese court may be willing to consider BWS and/or past domestic violence in criminal cases against women who kill their husbands. Unfortunately, the exact legal function of BWS is not clear. Is BWS a new and independent defense? Or are defense attorneys using BWS in support of pre-existing defense theories, like self-defense or extenuating circumstances? To be continued...

Special Evidentiary Provisions in the Trial Guide

This entry continues my analysis of the Trial Guide for Divorce Cases Involving Domestic Violence (涉及家庭暴力婚姻案件审理指南).

Introduction
The Trial Guide gives petitioners potentially significant advantages over the respondent in the fact-finding process. (Note: The Trial Guide uses the following terms interchangeably: petitioner, plaintiff and victim; respondent, defendant and abuser. For the sake of simplicity and clarity, I will use petitioner and respondent.) These advantages are apparently designed to overcome the difficulties that domestic violence victims often face in proving abuse. (For an in-depth discussion of these “evidentiary difficulties” (举证难) in the context of the divorce compensation system (离婚损害赔偿制度), see this article by Wu Ruqiao.) Indeed, the Trial Guide hints at such evidentiary difficulties when it points out that domestic violence generally happens in the home when no one other than the victim, abuser and (possibly) children are present. Chapter 4, Section 43.

Petitioner’s Basic Burden of Proof
The petitioner must prove that she has previously suffered domestic violence or is in immediate danger of domestic violence to obtain a protection order. Chapter 3, Section 32, Clause 4.) Domestic violence is defined as “conduct between family members, primarily between spouses, in which one party uses violence, threats, insults, economic control or other means to injure the bodily, sexual or spiritual rights of the other party in order to gain control over the other party.” Chapter 1, Section 2. While this definition of domestic violence incorporates non-physical abuse, the Trial Guide in its specific evidentiary provisions appears to emphasize physical abuse. (In China, non-physical abuse is often referred to as “cold domestic violence” (冷家庭暴力), invoking the distinction between “cold” and “hot” wars.) For example, the Trial Guide lists the following specific items as possible evidence of abuse: “photographs of injuries, police reports, testimony of witnesses, relevant records and evidence from social agencies (社会机构), written guarantees by the abuser*, threatening text messages from the abuser, and so on.” Chapter 3, Section 32. Two out of six of these examples (photographs of injuries and threatening text messages) exclusively refer to actual or threatened physical abuse. Nonetheless, the Trial Guide’s inclusion of non-physical abuse in its definition of domestic violence is remarkable for its expansiveness. In contrast, U.S. law generally limits the legal definition of abuse to actual and threatened physical harm.

(* The Trial Guide specifically discusses the evidentiary value of abusers’ verbal and written expressions of regret and guarantees to cease abusive conduct. Chapter 4, Section 42. It is unclear whether such guarantees are common in the China. In my work as a domestic violence attorney in Philadelphia, Pennsylvania, a Chinese client proposed that the abuser sign a “no-abuse” guarantee in lieu of filing for a Protection From Abuse order. While “no-abuse” guarantees may not be legally enforceable, the victim may gain leverage over the abuser because the victim can threaten to use the guarantee as evidence of abuse in court.)

Shifting the Burden of Proof
As discussed above, the petitioner bears the initial burden of proof. The Trial Guide, however, recommends a “shifting burden of proof” (举证责任转移). Chapter 4, Section 40. If the petitioner provides evidence of injury and indicates that the defendant is responsible for such injury, the burden of proof shifts to the defendant. If the defendant denies responsibility for the injury but cannot provide opposing evidence (反证), the court may presume that the defendant abused the petitioner. Chapter 4, Section 40. This system in theory should make it easier for petitioner’s to show domestic violence. It is important to note, however, that the Trial Guide authorizes but does not require courts to presume (“may presume…”) that respondents abused the petitioner in the absence of opposing evidence.

Petitioners are more credible than respondents
The Trial Guide instructs courts to favor petitioners over respondents in making credibility determinations. Chapter 4, Section 41. According to the Trial Guide, petitioners are generally more credible than respondents because “very few people are willing to risk being mocked by fabricating facts that they were beaten and insulted by their spouses.” Id. American society also stigmatizes survivors of domestic violence. U.S. law, however, does not give petitioners an advantage over respondents in credibility determinations. The willingness of the Trial Guide’s authors to give such a credibility advantage to petitioners may reflect the relative severity of victim-stigmatization in China.

Trend Toward More Lenient Sentencing of Domestic Violence Survivors Who Kill Their Husbands

An earlier blog entry discussed whether courts in China would consider past abuse as a mitigating factor in the sentencing of domestic violence victims who kill their abusive husbands. An article published by the Yanchao City Paper directly addresses this topic. In the article, Wu Changzhen (巫昌祯), professor of law at the China University of Politics and Law, observes that, prior to the year 2000, the majority of domestic violence victims who killed their husbands were sentenced to death. Professor Wu, however, believes that the sentencing of such offenders has gone from “harsh” to “lenient” over the last few years. Professor Wu personally acted as an advocate in a mariticide (the killing of a spouse, especially a husband) case involving a domestic violence victim, Li Ying (李颖). (Ms. Li faced the additional disadvantage that her abusive husband was a police officer.) The trial court hearing Ms. Li’s case initially sentenced her to the death. On appeal, Professor Wu and Ms. Li’s legal counsel, Liu Xiuzhen (刘秀珍), presented evidence of Ms. Li’s abuse at the hands of her husband. Based on this past abuse, the appellate court decided that Ms. Li’s punishment was “excessively heavy” (偏重) and reduced her sentence to fifteen years imprisonment. (Ms. Li, in fact, served less than 11 years due to two reductions in her sentence for good behavior.)

Ms. Li’s case appears to be a sign of progress in the judicial treatment of mariticide cases involving domestic violence. Our optimism, however, should be tempered by three factors: First, Ms. Li’s appeal may not have been as successful were it not for the extraordinary assistance of Professor Wu. Unfortunately, most domestic violence survivors lack access to such zealous and well-connected advocates. Second, the sentencing of domestic violence victims in mariticide cases is far from uniform. As Ms. Liu points out in the article, when faced with a case like Ms. Li’s, some courts will issue a sentence of three years imprisonment, while other courts might sentence the perpetrator to death. Third, efforts to promote judicial leniency toward women like Ms. Li may be hampered by legal experts who see such reduced sentencing as promoting criminal behavior. Ultimately, the better solution is to provide battered women with improved legal protections (e.g., protection orders) so that they do not feel compelled to kill their husbands in the first place.

Overview of China's Protection Order System

Introduction

China has recently begun to experiment with a personal protection order (人身安全保护裁定 but commonly shortened as 保护令) system in domestic violence situations. In March 2008, the Practical Legal Research Institute of the Supreme People’s Court (最高人民法院中国应用法学研究所) issued the Trial Guide for Divorce Cases Involving Domestic Violence (涉及家庭暴力婚姻案件审理指南) (hereinafter referred to as the “Trial Guide”). The status of this foundational document suggests the cautious nature of the Chinese government’s approach to protection orders. As one commentator pointed out, the Trial Guide is merely “an internal, guiding document” (内部的指导性文件) and therefore cannot be directly invoked in court decisions. (The Trial Guide, however, does refer to China’s Law of Civil Procedure (Clause 140, Item 11), which includes a catch-all provision authorizing courts to issue “orders” (裁定) in “other matters that require an order to resolve.”) Also, like other legal experiments, the Chinese government has limited the geographic scope of the new protection order system by designating only nine basic-level (i.e., trial) courts (基层人民法院) as “trial sites.” (I am in the process of compiling a list of these trial sites.)

Chapter Three of the Trial Guide lays out the structure of the protection order system. I review the major features of this structure below.

Standing
The Trial Guide’s limits on the standing of petitioners for protection orders (i.e., who can petition for a protection order) show that the Trial Guide’s authors were exclusively focused on separation violence between spouses during the divorce process. Three requirements limit the pool of petitioners: First, the petitioner must be the spouse or ex-spouse of the abuser. Trial Guide, Chapter 3, Clause 31. Second, if the petitioner and abuser are still married, the petitioner must file for divorce within fifteen days of obtaining a protection order; otherwise, the protection order automatically expires. Id. Third, if the petitioner and abuser are no longer married, the petitioner must apply for a protection order within six months of the divorce. Id.

The above limits on petitioners’ standing severely restrict the utility of the protection order system and may actually lead to the intensification of abuse. The first limit (the petitioner must be spouse or ex-spouse of the abuser) denies protection to victims who are not married to their abusers. (In an article published by the All-China Women's Federation, Xia Yinlan, President of the International Education School at the China University of Politics and Law, similarly argues that the standing of petitioners (主体范围）should be expanded to include cohabitants and ex-spouses.) This limitation probably reflects the Chinese government’s continued refusal to recognize the legitimacy of non-marital intimate relationships. Despite this official squeamishness, it is clear that domestic violence is not limited to only married couples but also unmarried, intimate partners. The second limitation (petitioner must file for divorce within fifteen days of obtaining a protection order) denies protection to victims who still hope to reconcile with their abusers or are not ready to file for divorce due to emotional, financial or other reasons. Ironically, this requirement may expose petitioners to intensified abuse by forcing them to file for divorce in order to keep their protection orders. The third limitation (petitioner must apply for a protection within six months of divorce) denies protection to large numbers of victims who are abused by ex-spouses and fails to recognize that abuse may continue long after divorce.

Time Limits

A spouse may obtain an “emergency protection order” for fifteen days. (Trial Guide, Chapter 3, Clause 29.) At the time of application, the petitioner need not have filed for divorce. However, if the petitioner has not filed for divorce within this fifteen day period, the protection order automatically expires. As discussed above, this fifteen-day rule forces petitioners to file for divorce to retain their protection orders. This rule may represent a misguided attempt by the Trial Guide’s drafters to break the cycle of violence and push victim-spouses out of their abusive relationships. (Indeed, the Trial Guide (Chapter 1, Clause 5) includes a brief discussion of the cyclical nature of domestic violence.) Although well-meaning, such paternalistic measures ignore the victims’ subjectivity and may lead to an intensification of violence.

“Long-term” (长期) protection orders may last between three to six months and up to twelve months with the approval of the court’s vice president. (Trial Guide, Chapter 3, Clause 9). Compared to most jurisdictions in the United States, the time limit on “long-term” protection orders is very limited. For example, the maximum length of a final protection order in Pennsylvania (referred to as a Protection From Abuse order) is three years. Other jurisdictions, like New Jersey, offer life-time protection orders.

Relief

The Trial Guide provides for a wide array of relief:
1. Prohibit the respondent from battering or threatening the petitioner or petitioner’s relatives;
2. Prohibit the respondent from harassing or stalking the petitioner or from engaging in unwanted contact with the petitioner or minor children who might be harmed;
3.If necessary and conditions are present, order the respondent to temporarily move out of the parties’ common residence;
4. Prohibit the respondent from engaging in activity within 200 meters of the following places: petitioner’s residence, school, work unit, or other places frequented by the petitioner;
5. When necessary, order the respondent to attend and pay for psychiatric treatment; and
6. Other measure to protect the personal safety of the petitioner and certain relatives.
(Chapter 3, Clause 27).

In addition, the Trial Guide authorizes the following forms of “ancillary content” (附带内容):
1. Order the respondent to pay for the petitioner’s living expenses and minor children’s care expenses, educational expenses, etc.
2. Order the respondent to pay for medical expenses incurred by the petitioner due to the respondent’s violent conduct, appropriate psychiatric treatment, and other necessary expenses.
(Chapter 3, Clause 28)

While the Trial Guide authorizes many forms of relief, my initial review of media reports suggests that courts have only implimented one type, i.e., prohibiting the respondent from physically abusing or threatening the petitioner. The reluctance of courts to order other forms of relief may be due in part to the Trial Guide's vagueness regarding the appropriate conditions for ordering other, more robust forms of relief. For example, the Trial Guide provides no guidance (ironically) as to when it is "necessary" or what "conditions" need to be present to evict the respondent from the parties' common residence. I will examine media reports on specific protection order cases in greater detail in later blogs.

(To be continued.)

Past Physical Abuse as Extenuating Circumstance in Homicide Case

In an earlier blog entry, I raised the question of whether China's courts recognize women's right to defend themselves against their abusive husbands. A recent case indicates that criminal courts may be willing to consider past domestic abuse as a mitigating circumstance in sentencing women who injure or kill their abusive husbands.

The facts of the case follow a familiar pattern: After many years of physical abuse, Liu Ping, the abused woman, killed her husband, Ge Xin, in desperation. Two facts, however, distinguish this case: First, Liu Ping enlisted the assistance of her adult son, Ge Qiao, who also suffered abuse by Ge Xin. Second, unlike most abused women who wait to kill their abusers while in a state of relative vulnerability (e.g., asleep in bed), here Liu Ping and Ge Qiao directly confronted Ge Xin in a violent and brutal battle.

The trial of Liu Ping and Ge Qiao elicited a strong response from the local community. According to the article, almost one hundred individuals signed letters asking the court to extend leniency to the defendants. Signatories to these letters included members of Liu Ping's work unit, residents from the same village, and even the decedent's mother and siblings. Remarkably, the defense attorney was allowed to present the letters during the "evidentiary" （举证）phase of the trial.

This social pressure apparently prompted the court to adopt two procedural innovations: one unusual and the other unprecedented. First, the court allowed a large but carefully selected group of individuals to attend the trial. The group consisted of members from the local People's Congress, Chinese People's Political Consultative Conference, public security bureau, procuratorate, judiciary, All-China Women's Federation, and village congress. Second, from the above-listed group of 300 individuals, the court selected twenty people to participate in a "public opinion hearing" （民意听证会）to discuss the appropriate sentence.

The basis for both of these innovations apparently derives from a document issued by the National People's Supreme Court in April 13, 2009: The Opinion Regarding The Further Strengthening of Public Opinion Communication Work (hereafter referred to as the "Opinion") (关于进一步加强民意沟通工作的意见) . While the Opinion does not specifically mention the use of public-opinion hearings in criminal sentencing, it encourages courts to collect public opinion in the various stages of the judicial process.

The article only quotes two members from the public opinion hearing. A cadre from the All-China Women's Federation urged the court to show leniency to the defendants in view of the history of domestic violence in the household. In contrast, a member of CPPCC recommended that the defendants be sentenced to a minimum of ten years due to the relatively brutal method of the killing. Despite this difference in opinion, the article declares that the hearing members reached a consensus: while the defendants deserved sympathy for their misfortune, they still deserved to be punished due to the brutal nature of the killing.

In the end, the court issued the following judgment: Liu Ping, the wife, was convicted of intentional killing （故意杀人罪）and sentenced to 12 years imprisonment. Ge Qiao, the son, was also convicted of intentional killing and sentenced to 15 years imprisonment. (A friend who participated in the killing was convicted of intentional injury （故意伤害）and sentenced to 8 years imprisonment.)

This case is important for a couple of reasons: First, it shows that China's courts may be willing to consider past physical abuse as a extenuating circumstance in sentencing abused homicide defendants. As other observers have noted, China's legal system is loathe to acknowledge the defense of self-defense, at least in homicide cases. In this case, self-defense was not available as a total defense because the defendants were not in imminent physical danger at the time of the killing. However, their past physical abuse may have served as a partial defense in that the defendants were spared a harsher punishment.

Second, the use of a public opinion hearing may reflect the judiciary's growing concern with the social response to case outcomes. In this case, the court was most likely anxious to shore up its decision against a potential backlash from local community members who sympathized with the defendants. While the members of the public opinion hearing were not average citizens, the formal incorporation of these perspectives may help to insulate the court from criticism.

Finally, this case demonstrates the need to improve legal protections (e.g., protection orders) for abuse victims. Under the current system, abuse victims have little if any recourse. As a result, they adopt extra-legal measures to protect themselves and their children. Until this state of affairs changes, we can expect to see more cases like that of Liu Ping and Ge Qiao.

Do China's criminal courts recognize women's right to defend themselves against their abusive husbands?

Two recent news articles have reported about women who have killed their physically abusive husbands.

1. Domestic violence leads to the tragic murder of a husband, the murderer is captured after 12 years of hiding（家庭暴力引发杀夫惨剧 凶手潜逃隐居12年后落网)
2. Zhongxiang woman, unable to bear domestic violence, kills husband in his sleep（钟祥一妇女不堪家庭暴力 趁丈夫睡觉之机将其杀死）

Unfortunately, both articles provide only scant detail regarding the criminal prosecution of the women. While the articles accept the fact that the women were physically abused by their husbands, there is no discussion as to whether the women can defend against the criminal charges based on self-defense. Nor do the articles tell us the ultimate judgments in the cases.

My cursory Internet searches have not uncovered any documented cases where a woman has been acquitted of homicide or assault charges on self-defense grounds. This much is clear: Women are being criminally prosecuted for killing their abusive husbands. The question is whether the legal system recognizes their right to defend themselves.

The first of the above-listed articles does not provide much hope that the woman, Xia Fang (a pseudonym), will be treated with sympathy. The article suggests that Xia Fang could have solved her problems by simply divorcing her husband. This proposed solution ignores persisting difficulties involved with obtaining a divorce in China. Moreover, even if Xia Fang successfully divorced her husband, she would still be vulnerable to continued harassment, stalking, and violence.

Unfortunately, the misconception that divorce is a panacea to domestic violence appears to be a popular view. In the Law Forum on the Tianya Community website, a woman asks: "My husband sometimes hits me. I'm no match for him. I have to prepare a tool. The next time he hits me, I will stab him. If I'm not careful and injure or kill him, will I have committed a crime?" （我老公有时打我，我打不过他。我得准备工具，下次他再打我我就捅他。如果我不慎把他捅伤了捅死了我是犯法吗？） The answer: "Yes. You can divorce."（算！你可以离婚）