December 23, 2014

Anti-Domestic Violence Law Submission

P.O. Box 2067

Beijing City, China 100035

 

Submission by Human Rights Watch to the National People’s Congress on the draft Anti-Domestic Violence Law

Human Rights Watch, an international nongovernmental organization that monitors and reports on human rights in about 90 countries around the world, welcomes the opportunity to provide comments on the draft Anti-Domestic Violence Law (“the draft law”), which was published on November 25, 2014. Human Rights Watch monitors the situation of women’s rights globally, including in China, and advocates for compliance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Human Rights Watch commends the Chinese government’s efforts to draft the Anti-Domestic Violence Law ahead of the 20 year anniversary of the Fourth World Conference on Women in Beijing. The draft law reflects a number of positive steps toward addressing domestic violence. The law specifically addresses the problem of domestic violence and outlines the government departments responsible for addressing this abuse, giving victims access to redress and protection including court restraining orders.

However, Human Rights Watch would like to share its concerns about the following issues:

  1. Overly narrow and unspecific definition of domestic violence

The definition of domestic violence contained in Article 2 of the Draft Law, covering “physical, psychological or other interactions,” is both vague and narrow. It does not specifically include sexual or economic violence. These forms of violence have been recognized in other national and international standards, and should be part of China’s law.[1]

The draft law also excludes from protection certain intimate relationships including same-sex, unmarried, cohabiting, divorced and separated couples. In the official explanation of the draft law, the government defended the exclusion of these categories because “there is no real difference” between violence committed within these relationships and “violence conducted between ordinary members of society,” the latter already addressed under existing laws. We disagree. The law on domestic violence was drafted precisely because the specific combination of domestic settings and the use of violence make existing laws inadequate, including for victims in intimate relationships other than formal marriages. It is unreasonable, and discriminatory, for such a law to only protect from violence in one type of domestic relationship, but not in others because of the relationship’s legal status or the couple’s sexual orientation.

Finally, we understand that the law is gender neutral: that both the victims and the perpetrators may be female or male. While it is appropriate to have remedies and penalties apply to either gender, China’s overall response to domestic violence should recognize that intimate partner violence affects women disproportionately, and tailor support for victims and other elements of its response accordingly.[2]

Recommendation 1: Expand the definition of domestic violence to include violence that causes psychological, economic, physical, and/or sexual harm. Introduce provisions that recognize that domestic violence disproportionately affects women, and design programming and protective measures to address this reality. Expand the scope of the law to same-sex, unmarried, cohabiting, separated, and divorced couples.

  1. Unclear responsibilities for government departments

Article 4 of the Draft Law gives the responsibility of “organizing, coordinating, guiding, supervising, and driving” other departments in combat of domestic violence to “People's government institutions at the county level or above with responsibility for efforts on women and children.” But these institutions—the Working Committees on Children and Women (妇女儿童工作委员会)—lack power, mandate, or budget to implement policies.[3] Domestic violence does not only affect women and children; men can also be victims.

Recommendation 2a: The Chinese government should empower these committees, create a new agency specifically for this purpose, or give the mandate to another existing agency that can effectively carry out these duties.

Article 10 of the draft law refers to township and neighborhood agencies providing mass autonomous organizations with guidance on providing social services in response to domestic violence. The bill should also specify that state social services agencies have specific responsibilities in responding to such violence.

Recommendation 2b: We recommend that Article 10 be revised to clarify that the government should issue instructions for state and autonomous social service agencies concerning their roles and responsibilities in responding to domestic violence. At a minimum, this should include the support services described in section 3.6.1 of the UN Handbook and Section II of the UN Office on Drugs and Crime’s 2014 “Blueprint for Action: an Implementation Plan for Criminal Justice Systems to Prevent and Respond to Violence against Women” (UNODC Blueprint for Action).[4]

Article 13 of the Draft Law outlines responsibilities for the various bodies, namely “Perpetrator’s or victim’s unit, a basic-level autonomous mass organization, women’s federation, or other relevant organization,” when they receive complaints of domestic violence. This appears to include the All-China Women’s Federation (ACWF). The draft says these bodies should “promptly dissuade and mediate, and carry out criticism and education of the perpetrator.” This directive is unfocused, and suggests mandatory mediation in a culture in which people tend to consider domestic violence as a private family matter. Two influential international works that reflect best practices thinking strongly disfavour mandatory mediation. Mandatory mediation or other mandatory alternative dispute resolution is completely prohibited in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the “CoE Convention”) and a prohibition on mandatory mediation at all stages of legal proceedings is likewise recommended in the U.N. Handbook for Legislation on Violence against Women (“the U.N. Handbook”).[5] Victims who report domestic violence should at most be given the option of mediation, provided such mediation is carried out by trained professionals with clear guidelines.

Recommendation 2c: Mandatory mediation should be prohibited. Women should be given the option of mediation and such mediation should be conducted by trained professionals who adhere to guidelines issued by the government, allowing women to opt out of mediation and have legal recourse instead. The Article should also outline the following responsibilities for the all bodies involved in this aspect of the response. First, they should document the reports of violence, so women can rely on such records if they later need to take legal action; second, they should inform women of their rights and options; third, they should provide support services or refer women to these services; finally they should follow-up with women to check on progress of the cases.

Responsibilities for the police are outlined in Articles 15 and 19, which mandate officers to “immediately go to the scene” after they receive reports of domestic violence. They should intervene to stop the violence, gather evidence, and involve medical institutions in cases that need medication or medical examinations. In cases which do not “constitute a violation of public security administration or crime,” police officers are directed to give written warnings to perpetrators, and make a copy of the warning to the “basic level autonomous mass organization or women’s federation for the victims’ residence or habitual residence” (most likely local branches of the ACWF). We are concerned about the bill offering police the option of issuing a written warning, and communicating this to others, if they conclude on the spot that the actions do not rise to the level a public security administrative offense or crime. We do not see support in international best practices for the type of “warning” system referred to in Article 19. Frontline officers need sufficient expertise to undertake risk assessments and take appropriate actions, including offering referrals to survivors for health, legal, or social services. We fear that leaving police the option of issuing a warning might only provide excuses for them to avoid arrest or detention of perpetrators, or to avoid informing survivors about orders for protection. Moreover, the bill does not give guidance to help police determine what rises to the level of a public security offense or crime.

Recommendation 2d: Article 19 of the bill should remove reference to the “warning system.” It should focus instead on elements of police response to domestic violence outlined in the UNODC Blueprint for Action. Finally, the bill should better integrate internationally recommended standards in favor of arrest[1] and prosecution[2] in cases of violence against women.[3]

  1. Weak support services

Although the draft outlines a number of services available for domestic violence victims, including medical treatment and legal aid, the relevant provisions lack specificity. Article 17 states that “medical establishment shall promptly treat domestic violence victims and make good records of diagnoses and care.” But this provision contains few details, such as who should be responsible for the medical expenses.

Recommendation 3a: The state is responsible to ensure accessible, affordable, and quality health care, including mental health care, for all survivors of domestic violence. Article 17 should reflect this state responsibility and also protect the confidentiality of the medical records, ensure that forensic evidence is collected and preserved (in line with the guidelines in the UNODC Blueprint for Action and World Health Organization’s “Guidelines for Medico-legal Care for Victims of Sexual Violence”) and ensure respect for women’s consent in receiving treatment.

Article 18 requires that local governments set up shelters for abused victims. But many existing shelters are poorly utilized because their locations are not kept confidential, they do not necessarily have the means to protect the identities and security of those seeking shelter, and they require victims to provide excessive amounts of paperwork and/or that the maximum stay allowed is typically only a matter of days.[6]

Recommendation 3b: A revised provision should address these concerns by a) specifying that shelters should provide a secure and confidential environment without unreasonable barriers to access for victims of domestic violence, and by b) requiring financial allocations to ensure an adequate number of shelters, whether run directly by government departments or by nongovernmental organizations that may receive state financial support provided they meet the standards of security, confidentiality, and access.

Article 20 of the draft law refers to the possibility of private prosecution. It also refers in Article 37 to judicial organs pursuing criminal liability when acts constitute crimes. The bill is not explicit about whether a prosecution may continue without a formal complaint or testimony from the survivor, as recommended by international guidelines.[7]

Recommendation 3c: The draft law should clarify that criminal prosecutions may proceed even without a formal complaint by the survivor, and regardless of whether the survivor wishes to testify in court. It should be clear that both public and private prosecutions are possible.

The Draft Law also does not include other types of support services vital for victims in abusive situations, as outlined in the CoE Convention and the UN Handbook. Such support should include support for victims with children, including emergency childcare and help with school transferal or counselling services, and training and assistance in finding employment. There should also be emergency financial support for those who have no income or savings.

Recommendation 3d: The Draft Law should include such emergency support services as outlined above. It should protect victims from losing their jobs when they take leave of absence to seek health care or attend court sessions. Where victims develop short-term or long-term disability, the law should ensure that they are eligible for and receive appropriate social security and assistance benefits.

  1. Weak protection orders

Chapter 4 of the Draft Law is too restrictive concerning when a court protection order can be issued. It says that a victim can seek such a protection order in connection with a pending civil suit (such as for divorce, maintenance, custody, adoption, and so on), or in the absence of a pre-existing civil suit, a victim can seek a protection order for a period of 30 days provided a civil suit is also filed within 30 days. But if the victim does not file a civil suit within 30 days, the court will revoke the protection order ruling. Protection orders (both immediate, emergency orders, and longer-term orders) are essential for the safety of any domestic violence victim, not just those who wish to pursue a civil lawsuit. This aspect of the bill is likely to deter victims from making the application in the first place, as many may not be willing or ready to divorce or take legal action against their partners. International standards provide that protection orders should be available both immediately on an ex parte basis, and available for longer periods based on post-hearing orders, irrespective of whether other lawsuits have been filed.[8] Article 33 is also problematic—while it requires the court to send a copy of the order to the police, it does not state clearly the responsibilities of the police in enforcing the order.

Recommendation 4: Article 27 should be amended so all victims of domestic violence can apply for restraining orders without them being tied to civil lawsuits against their partners. They should be available ex parte in emergencies, and for longer periods after a hearing. Article 32 of the bill should also be revised to expand the range of protections available to include all measures listed in the UN Handbook (section 3.10.3), including prohibitions against approaching victims in their workplace or contacting them on the phone or electronically, as well as protections for victims’ family members and children. Article 33 should clearly require that the police be responsible for enforcing the protection order.

Conclusion

While the Draft Law is certainly a step in the right direction, the Chinese government should amend the bill to bring it in line with international guidelines on domestic violence legislation and to clarify the roles of state agencies. In particular, the bill’s drafters should refer to the following international resources:

  • UN Women, “Handbook for Legislation on Violence against Women” (2012)
  • UN Office on Drugs and Crime, “Blueprint for Action: an Implementation Plan for Criminal Justice Systems to Prevent and Respond to Violence against Women” (incorporated into the UNODC publication, “Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women,”) (2014)
  • World Health Organization, “Responding to Intimate Partner Violence and Sexual Violence against Women” (2013)
  • Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence (2011) and the accompanying Explanatory Report

In addition to referring to these sources to refine the bill, we recommend that the government note in the bill that it will adopt a comprehensive national plan on domestic violence within one year of the bill’s enactment. Such a national action plan should contain more detail on a comprehensive, multi-sectoral, and sustained plan for addressing domestic violence. A helpful resource for developing such a plan is the UN Women publication, “Handbook for National Action Plans on Violence against Women,” (2012).

Thank you for your attention and we look forward to further discussions on the Draft Anti-Domestic Violence Law.

Yours sincerely,

 

Sophie Richardson

China Director

Human Rights Watch

 

 

 

[1] Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence, art. 3, Council of Europe Convention, http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm (accessed December 23, 2014); and UN Women, “Handbook for Legislation of Violence against Women,” 2012, http://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislati..., para. 3.4.2 (accessed December 23, 2014).

[2] See for example, Council of Europe Convention, art. 1 and 2. Art. 1 states unequivocally that the purpose of the convention is to protect women against all forms of violence and to prevent, prosecute, and eliminate violence against women and domestic violence. Art. 2 recognizes that domestic violence disproportionately affects women.

[3] Committee on the Elimination of Discrimination against Women, Concluding observations on the combined seventh and eighth periodic reports of China, 7 November 2014, Advanced Unedited Version, Para. 18.

[4] The UNODC Blueprint for Action is included in the UNODC publication, “Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women,” 2014, http://www.unodc.org/documents/justice-and-prison-reform/Strengthening_C... (accessed December 23, 2014).

[5] Council of Europe Convention on VAWl, art. 48; The UN Handbook, para. 3.9.1.

[1] The UN Office on Drugs and Crime recommended in 2014, “Consider establishing pro-arrest policies, which highly encourage officers to make an arrest in cases of domestic violence while at the same time leaving some discretion with them. These policies should require a written report on the reasons when the policy is not followed. Pro-arrest policies should be part of a coordinated multi-agency approach in order to ensure that the victim will not be disempowered by the policy.” UNODC Blueprint for Action, See also UN Handbook for Legislation on Violence against Women, section 3.8.3.

[2] The UNODC Blueprint for Action provides, “In cases of violence against women, consider establishing pro-prosecution policies, which means where there is probable cause to believe that a crime has occurred, that prosecution is likely but not mandatory. The policy should include an oversight component, such as requiring a written report on the reasons when the policy is not followed and review by a superior. Pro-prosecution policies should be implemented with training, and be part of a coordinated and multiagency approach.” Ibid.

[3] UN Women, “Handbook for Legislation on Violence against Women,” para. 3.8.3.

[6] “Domestic violence shelters in many places are unpopular because of the many requirements they make on women (多地家暴庇护机构因各种入住门槛等遇冷遇),” the Beijing News, March 12, 2012, http://politics.people.com.cn/GB/1026/17357640.html (accessed December 23, 2014); Fan Shuqian, “Only 15 people sought help in the last two years, domestic violence shelters awareness are yet to be raised (2年仅15位求助者 反家暴庇护中心知晓率有待提高),” November 26, 2011, http://ld.eastday.com/l/20111126/u1a941340.html (accessed December 23, 2014).

[7] See UN Women, “Handbook for Legislation on Violence against Women,” section 3.9.5, and Council of Europe Convention, art. 55.

[8] Ibid., section 3.10 (2012), and Council of Europe Convention, art. 55.