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.)