In 2011, Kim Lee escaped to a Beijing police station broken and battered, clutching her 2-year old daughter. She reported that her injuries were the result of repeated abuse at the hands of her husband. Despite the officer’s ambivalence, she refused to accept that her complaints would not be prosecuted and that she should just go home and “work it out.” After 18 months of media attention and court proceedings, Lee was granted a divorce on the grounds of domestic violence. She also received a restraining order against her former husband, a decision so unusual that state media referred to it as “unprecedented.” Lee was eventually granted custody of the couple’s three daughters, as well as a monetary settlement and became the public face of a campaign to create the “Domestic Violence law.” This campaign resulted in China’s first law addressing the legality of domestic abuse, implemented in March 2016.
While ultimately a personal success, Lee’s ordeal revealed the weakness of a legal system riddled with cultural bias and bureaucratic barriers to victims reporting crimes. China’s first Domestic Violence law (also referred to as the DV law) is a landmark legal decision. For the first time, the Chinese courts have ruled that abuse has consequences. Implemented in March 2016, the DV law designated domestic violence as a legally distinct category, separate from assault or harassment. The establishment of a written warning system and protection orders provided new safeguards for victims, providing a scale of enforcement options.
Despite the commendable elements of the DV law, its effectiveness is limited because it defines domestic violence as a civil, rather than a criminal, offense. As a civil infraction, penalties must be enforced by government, non-government, and individual action. In comparison, a criminal infraction has the full weight of the criminal justice system to insure compliance and/or exact punishment.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Nonetheless, the Domestic Violence law’s status as civil law does provide useful legal opportunities. For lawyer and professor Jeremy Daum, of the China Yale Law Center, the Domestic Violence law as civil law provides more avenues for earlier intervention. Daum argues that under the current system, there are already criminal and administrative penalties in place, so additional measures are needed to enable early intervention before it becomes a criminal matter. As such, the DV law provides a range of enforcement options that addresses the most common form of domestic violence, that which is routine. From this Daum’s perspective, the DV law is creating channels of intervention for domestic violence cases in which violence is routine and non-fatal. As an intermediate measure, administrative penalties can punish and deter through 15 days in detention and impose additional fines. These penalties incentivize behavioral change and allow a variety of punishments depending on the severity of the infraction.
Although the recent Supreme People’s Court interpretation on crimes of domestic violence dictates the threshold for domestic violence to be considered criminal, for some, like Kim Lee, this ruling is inadequate. Lee asserts that domestic violence should be categorically considered criminal, or risk sending the message that a victim must be threatened with death before the abuser will be appropriately punished. Lee contends:
I fail to see how burning someone with cigarettes, hitting them with a bike chain, sitting on their back and slamming their head into the floor are not criminal behaviors. The requirements for domestic violence to be treated as a crime are barbaric. In my case, I didn’t have broken bones, or wounds requiring stitches so the “grade” of injury was not sufficient. Again, having a law is better than not having a law, but in my opinion financial crimes are treated so much more seriously and they have far less devastating results.
Lee vividly addresses the challenge of the Domestic Violence law: it takes vital steps forward in identifying an intractable problem, but only commits halfway to its implementation. The DV law’s determination that perpetrators have broken a civil, not criminal, law imposes serious limitations on the law’s reach, compounded by existing gaps in understanding and enforcement. The DV law additionally suffers from diffusion of responsibility with respect to enforcement, with authority to enforce spread across local and regional governments as well as the All China Women’s Federation, a non-governmental and thus non-legislative body.
The current reality is both hopeful and grim. China’s Domestic Violence law is an impressive step forward, creating formalized protections for people who are most vulnerable. Despite this lofty and much needed mandate, to promote widespread and sustained change, the Domestic Violence law must translate mandate into action, by not allowing its legal status to limit the protections its provides.
Hannah Feldshuh is the geopolitical analyst and editor at China Policy, a Beijing–based policy research firm.