Liu Bohong [Women of China English Monthly]
On November 25, 2014 (the c), the Legislative Affairs Office of China's State Council (the central government's cabinet) issued and began receiving (within a month) public input on the draft law on anti-domestic violence.
People from all walks of life, especially those dedicated to protecting women's legal rights and interests, offered opinions about the draft law. Many people suggested the fact China had drafted a law against domestic violence was evidence that the government was making progress in its efforts to protect citizens' human rights. Now, based on the UN's Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), I would like to offer some suggestions on how the government can improve the draft law.
First, I suggest the definition of domestic violence should be expanded to include various forms of violence. Article 2 of the draft law stipulates, "'domestic violence' defined in this law includes acts that inflict physical or mental harm or suffering among family members."
According to Article 23 of the General Recommendation No. 19 of CEDAW ("Recommendation," made in 1992 by the Committee on the Elimination of Discrimination against Women), "Family violence is one of the most insidious forms of violence against women … Within family relationships, women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, and mental and other forms of violence, which are perpetuated by traditional attitudes. Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion."
Various forms of violence (including physical, mental, sexual and economic abuse, and other forms of violence, which are perpetuated by traditional attitudes) put women and/or other family members' health at risk. Violence also impairs their ability to participate in family and public life on an equal footing.
Based on the above statements, I suggest "domestic violence" should be defined as "willful behavior, which involves physical, mental and/or sexual abuse by one against his/her family member(s), or damaging the properties of the victim(s)." Therefore, the definition of "domestic violence" should contain various forms of violence.
Second, the definition of "family members" should be expanded, to maximize the protection of human rights. According to Article 2 of the Recommendation, "'Family members' defined in this law include one's spouse, parents, children and other close relative(s) who live(s) with him/her," and "people who have fostered relations with him/her …"
However, based on my observations, the above definition does not include all family relations of Chinese people. For example, some Chinese cohabit with their partners. Violence sometimes occurs between cohabitants, and between ex-spouses and girlfriends and their boyfriends …
Such violence usually occurs repeatedly, or periodically, and it is usually hard for people to discover that violence. Moreover, public security and procuratorial organs, people's courts and other organs of authority usually do not consider violence among these people as violence among common members of society. Therefore, I suggest domestic violence should include violence between cohabitants, ex-spouses and girlfriends and their boyfriends.
In addition, the draft law should address the problem of eliminating domestic violence among homosexuals. While the UN's Committee on the Elimination of Discrimination considered the seventh and eighth periodic reports of China (on the implementation of CEDAW) in October 2014, representatives of women with different sexual orientation and gender identities, from mainland China, told members of the committee that 48 percent of Chinese women with different sexual orientation and gender identities, compared with 24.7 percent of women in a traditional marriage, had been victims of domestic violence.
Therefore, in the Concluding Observations on the Combined Seventh and Eighth Periodic Reports of China, the committee called upon the Chinese Government to "adopt a comprehensive definition of discrimination against women in its national legislation … with a view to ensuring that women are protected against both direct and indirect discrimination in all areas of life."
The committee also stressed the Chinese Government should "ensure the prohibition of sex- and/or gender-based discrimination is accompanied by appropriate enforcement mechanisms and sanctions." That means "direct and indirect discrimination" and "sex- and/or gender-based discrimination" should include all forms of violence (including domestic violence) against sexual minorities.
To maximize the protection of human rights, some countries' laws against domestic violence include one's domestic worker(s) and tenant(s) who live(s) with him/her in his/her "family members." Therefore, I suggest Article 2 of the draft law should add: "This law also applies to those who commit the above-mentioned acts on their intimate partners (their boyfriends/girlfriends, cohabitants or ex-spouses), or on their domestic workers and/or tenants (who live with them)."
Third, the law should regulate the Chinese Government's responsibilities in preventing and stopping the violence. According to Article 24 of the Recommendation, "States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act." The article also contains suggestions on how to take effective measures to eliminate the violence.
The Chinese Government in 2008 issued the Suggestions on Preventing and Stopping Domestic Violence, which stipulated how various organizations (including publicity departments, judicial and prosecuting organs, public security agencies, health departments, civil affairs bureaus and women's federations, at all levels throughout the country) should perform their roles (including preventing, intervening in and stopping violence, imposing sanctions on those who commit the violence, and offering assistance and services to victims) and cooperate with each other to combat domestic violence.
Also that year, the China Institute of Applied Jurisprudence, under China's Supreme People's Court, issued the Guide to Matrimonial Cases Involving Domestic Violence. In accordance with the guide, some courts were designated as experimental courts, and they were authorized to sign and issue personal safety protection rulings for women victimized by domestic violence, to protect their safety and properties. So far, 28 of China's provinces, municipalities and regions have promulgated laws and regulations against domestic violence. Through the above-mentioned measures, one can see the Chinese Government has gone to much effort to fulfill its responsibility of combating domestic violence.
Based on legal professionals' experiences in combating domestic violence, lawmakers should include the following provisions in the draft law, to offer guidance to organizations while they fight violence:
China should establish the work system under the State's leadership, and the various organizations (including social organizations, enterprises and institutions, and voluntary mass organizations at the grass-roots level) should participate under that system as they help combat domestic violence. Also, the various organizations (including public security agencies, judicial organs, civil affairs bureaus and women's federations, at all levels throughout the country) should work together under that system to prevent and stop domestic violence; and
The people's governments, above the county level throughout the country, should establish authoritative organs (in addition to offices of the local working committees on women and children), to organize and coordinate relevant departments' work in combating domestic violence, to offer guidance to the departments, to help them improve their work, and to monitor and evaluate their work.
The law should regulate government and social organizations' responsibilities and division of work, and their liabilities if they fail to fulfill their responsibilities.
The law should stipulate that public security agencies, rather than people's courts, should be responsible for the enforcement of personal safety protection rulings (for women victimized by domestic violence).
Fourth, the draft law should provide for delivery of protective and support services to victims. According to Article 24 of the Recommendation, "States parties should establish or support services for victims of family violence, rape, sexual assault and other forms of gender-based violence, including refuges, specially trained health workers, rehabilitation and counseling." The article also stipulates that "measures to protect them from violence should include training and employment opportunities ..."
I suggest the draft law should contain provisions to protect victims from further harm, to maintain the secrecy of victims' shelters, and to improve victims' ability to find work to support themselves. I also suggest the law should stipulate that while judges handle cases involving people, whose acts of revenge (upon those who commit prolonged domestic violence against them) constitute crimes, the judges should deal with these people leniently, or give them immunity.
China lags behind most countries in drafting a law against domestic violence. As so many people have participated in discussions about the draft law on anti-domestic violence, we, the Chinese people, hope China will soon promulgate a high-quality law against violence, a law that will reveal China's advanced level of protecting Chinese citizens' human rights. We also hope the law will become one of the country's outstanding achievements as it commemorates the 20th anniversary of the UN's Fourth World Conference on Women, and that the law will become a powerful weapon that will be used to protect Chinese citizens' human rights, and to promote social stability and harmony among family members.
(Women of China English Monthly February 2015)
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