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.