Featured LLM Perspectives Online Publications

Response to “Freedom from Violence and the Law”

“Violence against women is a heinous human rights violation, global menace, a public health threat and a moral outrage.”01Statement, Statement attributable to the Spokesperson for the Secretary-General on the outcome of the Commission on the Status of Women (July 31, 2015), available at http://www.un.org/sg/statements/index.asp?nid=6660 (calling for action to prevent violence against women and girls). Beginning with this powerful call, Rangita de Silva de Alwis and Jeni Klugman presented their article on a recent development of women’s rights movement; namely, Freedom from Violence and the Law: A Global Perspective in Light of Chinese Domestic Violence Law, 2015. With the background that eliminating violence against all women and girls has become one of the Sustainable Development Goals (SDGs),02Transforming our World: the 2030 Agenda for Sustainable Development, G.A Res.L.1, U.N. Doc. A/RES/L.1. ¶ 5.2. (“Eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation”). their article’s main objective is to discuss how a human rights framework can support this critical element of the SDG agenda, by reviewing China’s draft national law against domestic violence published in 2014 (“Draft Law 2014”).03Rangita de Silva de Alwis and Jeni Klugman, Freedom from Violence and the Law: A Global Perspective in Light of Chinese Domestic Violence Law, 2015, 37 U. Pa. J. Int’l L. 1, 5 (2015), available at http://scholarship.law.upenn.edu/jil/vol37/iss1/2.

1. Introduction

Before stepping into the case study of China, the article first offers an overview of the international legal framework. A woman’s right to live a life free from violence has been recognized in international norms built upon conventions, treaties (including regional treaties), declarations and resolutions, and jurisprudence of human rights tribunals.04Id. at 52. The definition of violence against women is becoming broader05Id. at 15. and the due diligence standard in international law requires States to provide not only criminal punishments for perpetrators, but also prevention and protective supports for victims.06Id. at 20.

Under this international framework, the article examines the progress and content of China’s Draft Law 2014. The article criticizes Draft Law 2014 in five respects: aims and goal, relationship covered, definition of violence, prevention and protection, and access to justice. Compared with hallmarks adopted by the second-generation law-making against domestic violence all over the world, the Draft Law 2014’s omitted due diligence to “overcome the culture of impunity.”07Id. at 52. Finally, the article concludes that civil society plays an important role in connecting the international legal standard to national legislation, although there is still far for China to go.

Their article is a good example of how human right scholars approach a specific national law. On the one hand, this approach can help improve the national legislation. After the Draft Law 2014, China published a second draft in 2015 (“Draft Law 2015”), and finally passed the Anti-Domestic Violence Law in December 2015 (“Final Law”).08Katie Hunt, CNN, China Finally Has a Law Prohibiting Domestic Violence, available at http://www.cnn.com/2015/12/27/asia/china-first-domestic-violence-law/. While some defects still exist, the final version is a big step forward compared to the Draft Law 2014, showing the adjustment in response to scholars’ critiques based on international norms. Therefore, the first objective of this comment is to review and update the article’s five-aspect critique. In addition, this approach can help point out the key work for the next stage of improvements promoted by international society. This comment contends that among all the flaws of the Final Law, the omission of date collecting should be given more attention.

Their article cleverly raises the role women’s rights advocates played in the norm reform and monitoring implementation; however, despite giving two examples of women’s rights groups,09Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 26. the article lacks a detailed analysis of the effect of their efforts. Proving a causal relationship between the women’s rights work of civil society and the legislative progress is not easy. But, if we shift the focus on how international standards are used by civil society and even by government officials, we can find a more plausible mechanism showing the transformation of international human right norms into domestic laws and practice.

2. Review and Updates of the Five-aspect Critique

2.1 Aims and Goal

Their article asserts that the aims and goal of the Draft Law 2014 “contrasts with international norms that call for lawmaking that recognizes violence against women as a violation of women’s rights and personal security rather than a violation of social stability.” 10Id. at 29. In the Draft Law 2015 and the Final Law, this contrast still exists.11People’s Republic of China Domestic Violence Law (Draft 2), art. 1, available at http://chinalawtranslate.com/domestic-violence-law-draft2/?lang=en. Anti-Domestic Violence Law of People’s Republic of China, available at http://chinalawtranslate.com/%E5%8F%8D%E5%AE%B6%E5%BA%AD%E6%9A%B4%E5%8A%9B%E6%B3%95-2015/?lang=en. However, it is one thing to provide an emphasis on women’s rights, and quite another thing to adopt such an emphasis within anti-domestic violence law.

There are two concepts which need to be distinguished from each other: violence against women and domestic violence. They have some overlaps because domestic violence affects women disproportionately.12Council of Europe, Convention on Preventing and Combating Violence against Women and Domestic Violence, May 11, 2011, available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm. However, efforts against domestic violence concern not only gender-based violence but also relationships within the family, domestic unit, and residency. Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence is a good example that demonstrates these two concepts are differently defined and focus on different aims.13Id. at art. 3 (a), art. 3(b).

Therefore, the above mentioned contrasts in goals of China’s anti-domestic violence law could have a good explanation. There are many other sources to deal with gender-based violence against women, like the Law on Protection of Women’s Rights and Interests, thus leaving anti-domestic violence law to focus on different aims. This distinction also indicates that when evaluating substantive aspects of anti-domestic violence law, other mechanisms existing in China’s legal system should not be ignored.

However, although the new piece of law can be excused for failing to link violence against women and violation of women’s rights, as a party to the Convention on the Elimination of Discrimination against Woman (CEDAW), China cannot. As pointed out by the CEDAW committee, “the lack of a specific legal provision may constrain the application of the full scope of the Convention’s definition of discrimination in the State party.” 14U.N. CEDAW, 36th Sess., 743d-744th mtg., U.N.Doc. CEDAW/C/CHN/CO/6 (Aug. 25, 2006), at art. 9. Since this Final Law did not solve the definition requirement of CEDAW, China still needs to make efforts to fill in this gap.

2.2. Relationship Covered

Their article pointed out that the scope of the Draft Law 2014 only covers parties to a marriage,15Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 29. while the model framework covers all members of the family and household16ESCOR, Special Rapporteur on Violence against Women, its Causes and Consequences, E/CN.4/1996/53. and second generation regional legislation has started to adopt the broad definition.17Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 30. Although the original legislative purpose is to leave violence outside family members to criminal law and Public Security Administration Punishment Law,18Official Explanation of the P.R.C. Anti-Domestic Violence Law (Draft for Solicitation of Comments), article 1, available at http://chinalawtranslate.com/domestic-violence-law-comment/?lang=en. the Final Law adopted the board international standard. According to the Final Law article 37, “[w]here persons living together other than family members commit acts of violence against each other, proceed with reference to this law.”19Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 37. Such modification indicates how international norms can be used to shape the domestic legislation through the comment period.

2.3. Definition of Violence

The Draft Law 2014 only covers physical and psychological harm, without including sexual violence or economic abuse, while the international framework urges States to adopt the broadest possible definition of domestic violence.20Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 31-32.

Compared with the Draft Law 2014, the Final Law provides an interpretation of psychological harm to include coercion and humiliating verbal abuse.21Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 2. Also, other legal branches can be used in tandem provide broader protection. For example, with respect to economic abuse, China’s Marriage Law declares that both the husband and the wife have the right to work.22Marriage Law of the People’s Republic of China (中华人民共和国婚姻法), at art. 15. However, sexual violence and sex-selective abortion are still omitted.

2.4. Protection and Prevention

Their article criticizes the absence of government support for shelters in the Draft Law 2014 and the limitation of restraining orders.23Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 39. Some executive level calls for shelters and substantial progress in the Final Law with respect to restraining orders can be found.

The Final Law mentions the importance of providing support to the victims. However, by using the word “may,” the Final Law still does not assign a mandatory obligation for authorities to act.24Anti-Domestic Violence Law of People’s Republic of China, supra note 10, at art. 18 (“Governments at the county level or districted city level may, either independently or by retaining an aid management organization, establish residential shelters to provide temporary residential assistance to victims of domestic violence”). But, the situation seems more optimistic at the executive level. In September 2015, the Ministry of Civil Affairs of PRC and All China Women’s Federation issued the Instruction on Better Providing Shelters for Victims of Domestic Violence. This Instruction moves the shelter forward to an integrated service center, by adding tools like psychological advice, social work, and protecting privacy.25Ministry of Civil Affairs of PRC and All China Women’s Federation, Instruction on Better Providing Shelters for Victims of Domestic Violence (民政部、全国妇联关于做好家庭暴力受害人庇护救助工作的指导意见), at art. 2.3, 3.1, 3.2. As confirmation of support provided at the national government level, this instruction also creates doubts concerning the effectiveness of those shelters. Many experiments of shelters in the local level failed to have the expected effects, because few victims are willing to ask those unprofessional organizations for help, and because some shelter organizations set up an extremely high level to accept victims.26See Why Few People Went to Domestic Violence Shelters for Help (家暴庇护中心何以门可罗雀), 10 April 2014, available at http://www.mca.gov.cn/article/mxht/mtgz/201504/20150400800319.shtml (mentioning that one shelter center in Zhengzhou, Henan Province has only received two people in eight years); see also Rong Weiyi (荣维毅), The Current Situation and Analysis of Shelter for Victims of Domestic Violence in China (中国大陆家庭暴力受害妇女庇护现状与分析), 18 Dec. 2014, available at http://blog.sina.com.cn/s/blog_9ed297970102v7ug.html (mentioning that the residency rate of a shelter center in Xuzhou, Jiangsu Province is only 6%. Also offers an explanation for this phenomenon that those shelter centers treat domestic violence victims no differently from homeless people, making women reluctant to ask for their help). Lacking nation-wide statistics of shelter centers’ mechanisms and effects, it is hard to conclude whether the discretionary language in the Final Law can be supplemented well by the instructions of an executive department.

However, the modification regarding restraining orders from the Draft Law 2014 to the Final Law is significant. The Final Law removed the mandatory requirement to raise a litigation in 30 days after receiving the restraining order,27The mandatory requirement is in article 27 of the Draft Law 2014, available at http://chinalawtranslate.com/domestic-violence-law/?lang=en. making the restraining order available for those victims who do not want to sue for divorce. Additionally, the content of the restraining order is much broader than the first draft, with even a general description granting a judge discretion to issue case-specific orders.28Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 29. (“Other measures for the protection of the applicants’ personal safety”). Usually, the duration of the restraining order is 6 months, but the time period can be extended or changed.29Id. at art. 30. This kind of substantial modification may be regarded as a positive response to the comments on the Draft Law 2014 made by the Committee on the Elimination of Discrimination against Women.30U.N. CEDAW, 59th Sess., 1251st-1252d mtg., U.N. Doc. CEDAW/C/CHN/CO/7-8 at ¶ 27(b) (Nov. 14, 2014) (responding to the combined seventh and eight periodic reports of China).

2.5. Access to Justice

This section discusses the lack of due diligence requirement placed upon authorities when dealing with domestic violence complaints, including facilitating reporting, training of relevant officials, and free legal assistance.31Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 43. In the Final Law, all of them are present, but only in a normative way without obligation.32Anti-Domestic Violence Law of People’s Republic of China, supra note 10, at art. 7, 15, 19. According to a survey conducted by Beijing’s courts, among 620 selected cases concerning marriage and family, 9% are raised because of domestic violence.33The Supreme People’s Court of China, Publication of 49 Typical Cases Concerning Marriage and Family Dispute (最高人民法院公布49起婚姻家庭纠纷典型案例). This statistic indicates that courts are now open to victims of domestic violence. However, no statistic focuses on whether victims have abilities to raise such claims, and whether the police, who are always the first authorities facing domestic violence, can deal with such disputes in a proper way. The Final Law only provides legal responsibilities on authorities when failing to report domestic violence involving a person lacking civil capacity or with limited civil capacity.34Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 14, 35. The negative effect of such articles is that they actually relieve the obligation on authorities dealing with common domestic violence complains.

Their article specifically criticizes the written warning.35Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 43. Both the Draft Law 2014 and the Final Law allow police to issue a written warning to the perpetrator if the police find the domestic violence is not serious. To ensure the effect of such written warning, the Final Law requires police to conduct a follow-up investigation later on,36Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 17. and also makes it clear that such written warning can be used as evidence to show the existence of domestic violence.37Id. at art. 20. According to an unofficial statistic, in Nanjing, where written warning was used as an experimental tool before the Final Law, 80 written warnings were issued and no second domestic violence was found in any of those 80 cases.38Hunan Issues Its First Writing Warnings (湖南开出首张“家庭暴力告诫书”), Sina News, 29 November 2015, available at http://news.sina.com.cn/o/2015-11-29/doc-ifxmainy1395759.shtml.

However, there is also a risk of stiff application. For example, the Woman’s Federation in Changsha believes that only a written warning can have the effect of evidence of domestic violence, and even the restraining order cannot equal its evidentiary value.39“Restraining Order” and “Writing Warning” Protecting Domestic Violence Victims Together (“保护令”、“告诫令”齐护家暴受害人), 22 January 2016, available at http://www.women.org.cn/sx/tebgz/1012299.shtml. If this belief is broadly held, victims will be forced to get an additional written warning to gain the possibility of successfully proving the existence of domestic violence. This application will make justice less, rather than more, accessible to victims of domestic violence.

Just like the problem of evaluating the effectiveness of shelters, there is still a lack of statistics addressing whether the written warning promotes or restricts victims’ access to justice. Lack of data not only indicates insufficiency in complying with the requirement of CEDAW, but “may also constitute an impediment to the State party itself in designing and implementing targeted policies and programmes and in monitoring their effectiveness.”40U.N. CEDAW, 36th Sess., 743d-744th mtg., U.N.Doc. CEDAW/C/CHN/CO/6 (Aug. 25, 2006), at art.13. Among all the articles of the Final Law, a data collecting obligation instead of pure recommendatory statements is crucially still absent.

3. Translation of International Norms into the Domestic Legal System

This article points out that the experience of China shows that “international conventions can help women’s group mobilizing in powerful ways and provide a standard setting framework to bolster their claim.”41Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 51. Especially in the opinion collection progress, much advice is based on international norms,42See Human Rights Watch, China: Submission by Human Rights Watch to the National People’s Congress on the draft Anti-Domestic Violence Law, December 23, 2014, available at https://www.hrw.org/news/2014/09/25/china-submission-human-rights-watch-national-peoples-congress-draft-anti-domestic (recommending that bill’s drafters should refer to international resources). including the suggestions from All China Woman’s Federation, which is a semi-governmental organization.43See All China Women’ Federation(中华全国妇女联合会), Advice on Anti-Domestic Violence Law Part 1(制定反家庭暴力法建议之一), available at http://www.women.org.cn/zdzl/zdbd/fdjtbl/jy/816478.shtml (giving advice on the definition of domestic violence based on CEDAW and the anti-domestic violence law in Malaysia). Although showing a causal relationship between these suggestions and the outcome of the Final Law is difficult, one can at least conclude that international norms regarding women’s rights have already found their way into domestic legal systems.

References   [ + ]

01. Statement, Statement attributable to the Spokesperson for the Secretary-General on the outcome of the Commission on the Status of Women (July 31, 2015), available at http://www.un.org/sg/statements/index.asp?nid=6660 (calling for action to prevent violence against women and girls).
02. Transforming our World: the 2030 Agenda for Sustainable Development, G.A Res.L.1, U.N. Doc. A/RES/L.1. ¶ 5.2. (“Eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation”).
03. Rangita de Silva de Alwis and Jeni Klugman, Freedom from Violence and the Law: A Global Perspective in Light of Chinese Domestic Violence Law, 2015, 37 U. Pa. J. Int’l L. 1, 5 (2015), available at http://scholarship.law.upenn.edu/jil/vol37/iss1/2.
04. Id. at 52.
05. Id. at 15.
06. Id. at 20.
07. Id. at 52.
08. Katie Hunt, CNN, China Finally Has a Law Prohibiting Domestic Violence, available at http://www.cnn.com/2015/12/27/asia/china-first-domestic-violence-law/.
09. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 26.
10. Id. at 29.
11. People’s Republic of China Domestic Violence Law (Draft 2), art. 1, available at http://chinalawtranslate.com/domestic-violence-law-draft2/?lang=en. Anti-Domestic Violence Law of People’s Republic of China, available at http://chinalawtranslate.com/%E5%8F%8D%E5%AE%B6%E5%BA%AD%E6%9A%B4%E5%8A%9B%E6%B3%95-2015/?lang=en.
12. Council of Europe, Convention on Preventing and Combating Violence against Women and Domestic Violence, May 11, 2011, available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm.
13. Id. at art. 3 (a), art. 3(b).
14. U.N. CEDAW, 36th Sess., 743d-744th mtg., U.N.Doc. CEDAW/C/CHN/CO/6 (Aug. 25, 2006), at art. 9.
15. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 29.
16. ESCOR, Special Rapporteur on Violence against Women, its Causes and Consequences, E/CN.4/1996/53.
17. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 30.
18. Official Explanation of the P.R.C. Anti-Domestic Violence Law (Draft for Solicitation of Comments), article 1, available at http://chinalawtranslate.com/domestic-violence-law-comment/?lang=en.
19. Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 37.
20. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 31-32.
21. Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 2.
22. Marriage Law of the People’s Republic of China (中华人民共和国婚姻法), at art. 15.
23. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 39.
24. Anti-Domestic Violence Law of People’s Republic of China, supra note 10, at art. 18 (“Governments at the county level or districted city level may, either independently or by retaining an aid management organization, establish residential shelters to provide temporary residential assistance to victims of domestic violence”).
25. Ministry of Civil Affairs of PRC and All China Women’s Federation, Instruction on Better Providing Shelters for Victims of Domestic Violence (民政部、全国妇联关于做好家庭暴力受害人庇护救助工作的指导意见), at art. 2.3, 3.1, 3.2.
26. See Why Few People Went to Domestic Violence Shelters for Help (家暴庇护中心何以门可罗雀), 10 April 2014, available at http://www.mca.gov.cn/article/mxht/mtgz/201504/20150400800319.shtml (mentioning that one shelter center in Zhengzhou, Henan Province has only received two people in eight years); see also Rong Weiyi (荣维毅), The Current Situation and Analysis of Shelter for Victims of Domestic Violence in China (中国大陆家庭暴力受害妇女庇护现状与分析), 18 Dec. 2014, available at http://blog.sina.com.cn/s/blog_9ed297970102v7ug.html (mentioning that the residency rate of a shelter center in Xuzhou, Jiangsu Province is only 6%. Also offers an explanation for this phenomenon that those shelter centers treat domestic violence victims no differently from homeless people, making women reluctant to ask for their help).
27. The mandatory requirement is in article 27 of the Draft Law 2014, available at http://chinalawtranslate.com/domestic-violence-law/?lang=en.
28. Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 29. (“Other measures for the protection of the applicants’ personal safety”).
29. Id. at art. 30.
30. U.N. CEDAW, 59th Sess., 1251st-1252d mtg., U.N. Doc. CEDAW/C/CHN/CO/7-8 at ¶ 27(b) (Nov. 14, 2014) (responding to the combined seventh and eight periodic reports of China).
31. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 43.
32. Anti-Domestic Violence Law of People’s Republic of China, supra note 10, at art. 7, 15, 19.
33. The Supreme People’s Court of China, Publication of 49 Typical Cases Concerning Marriage and Family Dispute (最高人民法院公布49起婚姻家庭纠纷典型案例).
34. Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 14, 35.
35. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 43.
36. Anti-Domestic Violence Law of the People’s Republic of China, supra note 10, at art. 17.
37. Id. at art. 20.
38. Hunan Issues Its First Writing Warnings (湖南开出首张“家庭暴力告诫书”), Sina News, 29 November 2015, available at http://news.sina.com.cn/o/2015-11-29/doc-ifxmainy1395759.shtml.
39. “Restraining Order” and “Writing Warning” Protecting Domestic Violence Victims Together (“保护令”、“告诫令”齐护家暴受害人), 22 January 2016, available at http://www.women.org.cn/sx/tebgz/1012299.shtml.
40. U.N. CEDAW, 36th Sess., 743d-744th mtg., U.N.Doc. CEDAW/C/CHN/CO/6 (Aug. 25, 2006), at art.13.
41. Rangita de Silva de Alwis and Jeni Klugman, supra note 2, at 51.
42. See Human Rights Watch, China: Submission by Human Rights Watch to the National People’s Congress on the draft Anti-Domestic Violence Law, December 23, 2014, available at https://www.hrw.org/news/2014/09/25/china-submission-human-rights-watch-national-peoples-congress-draft-anti-domestic (recommending that bill’s drafters should refer to international resources).
43. See All China Women’ Federation(中华全国妇女联合会), Advice on Anti-Domestic Violence Law Part 1(制定反家庭暴力法建议之一), available at http://www.women.org.cn/zdzl/zdbd/fdjtbl/jy/816478.shtml (giving advice on the definition of domestic violence based on CEDAW and the anti-domestic violence law in Malaysia).

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