The Paper's senior reporter Wang Xuanhui intern Li Nan
The Domestic Violence Act came into force on 1 March 2016 and now marks its fifth anniversary. In 5 years, how effective is the current application of the Anti-Domestic Violence Law? What difficulties have been encountered in judicial practice? What else needs to be improved?
A few days ago, The Paper interviewed Li Ying, director of the Yuanzhong Family and Community Development Service Center in Dongcheng District, Beijing and a well-known anti-domestic violence lawyer. Li Ying has 19 years of experience in handling domestic violence cases and has participated in more than 400 women's rights protection cases.
Lawyer Li Ying has handled hundreds of cases of women's rights protection. Source Public Service Center public number figure
In an interview, Li Ying said that on the fifth anniversary of the implementation of the Anti-Domestic Violence Law, the citation rate and application rate in domestic violence-related marriage and family cases were actually not high, which was related to the lack of study and training and publicity for the "Anti-Domestic Violence Law". At the same time, Li Ying believes that the "Anti-Domestic Violence Law" is a special provision made in combination with the particularity of domestic violence, its current relevant provisions and basic systems are relatively complete, and the overall concept is relatively advanced, "the law is not enough on its own, while we advocate the improvement of laws and regulations, it is also important how to implement the regulations."
There are many types of domestic violence cases, and most victims are afraid to seek help in time
The Paper: When it comes to domestic violence, many people think of physical violence, what types of domestic violence are there in the cases you have encountered?
Li Ying: Domestic violence is not only physical violence, but also includes sexual violence, mental violence and economic control from the perspective of international consensus and the provisions of China's Anti-Domestic Violence Law, which are all domestic violence.
In the domestic violence cases I have been exposed to over the years, only physical violence is basically non-existent, and it is difficult for each case to have only one form of violence, and most of them have more than two forms, or even all of them.
For example, I once came into contact with a victim who was subjected to domestic violence by her husband for more than a decade. For more than a decade, she was not only beaten by her husband, but also forced to have sex by her husband after the beating. At the same time, the husband will also intimidate and insult her, and restrict her personal freedom with handcuffs and foot cuffs. In addition, although the victim is the main financial producer of her family, all her bank cards are controlled by her husband, who gives her 200 yuan a week for living expenses, which is difficult to survive in the city.
The Paper: The Anti-Domestic Violence Law points out that acts of violence committed between people who are not members of the family but live together also constitute domestic violence. In the cases you came into contact with, what relationships did this subject generally refer to?
Li Ying: At present, the Anti-Domestic Violence Law does not clearly stipulate which relationships apply to this subject. Now it mainly relies on local legislation to define, and we find that in the legislation of many provinces and cities, "people living together" will be interpreted. In general, the relationship that is considered to be consistent is a relationship of support, guardianship, foster care, or cohabitation.
Personally, I think that ex-spouse relationships should also be consistent, because violence between ex-spouses does not naturally stop because of a divorce decree or a divorce certificate. After the divorce, the other party may continue to commit violence, and after the absence of the control of the identity relationship of the spouse, the other party's violence may be more serious in a sense. However, in current judicial practice, whether the violence between former spouses is domestic violence is still controversial.
The Paper: The All-China Women's Federation once counted that by the end of 2019, 30% of married women in 270 million families across the country had suffered domestic violence, but in the face of atrocities, women were abused an average of 35 times before choosing to call the police. What do you think are the reasons that prevent these domestic abusers from seeking help in a timely manner?
Li Ying: It is difficult to say that this phenomenon is caused by one reason, but caused by multiple reasons.
One is the problem of social concepts and personal concepts, at present, many people still think that domestic violence is ugly, so even if they are abused, they are not willing to disclose it. I came across a case in which the client was a strong woman who chose to commit suicide because of domestic violence, but she did not say anything about her husband's domestic violence against her at the time of her death.
According to the All-China Women's Federation, 30% of married women in 270 million households across the country have experienced domestic violence. From CCTV News
In addition to the issue of views, the difficulties of many parties who encounter domestic violence are also important reasons for hindering the request for help, such as child support and their lack of ability to live independently. In addition, women who have suffered domestic violence for a long time generally have a "learned helplessness" mentality, which makes them feel helpless and afraid in their hearts. Many parties have told me that when they hear the name of the abuser and hear the footsteps of the other party, they will tremble, and this huge sense of fear and helplessness makes these parties very worried and afraid to ask for help.
Another point, I think, is that the involvement of the public power itself is not strong enough. In reality, some people have encountered domestic violence, and after choosing to call the police, the police may only take simple admonitions and rarely take some timely and effective measures, which will make everyone think that the police cannot solve the problem. For example, i met a client who reported four or five times to the police after being abused by the police, but the police only gave two sentences of admonition to both sides each time and did not deal with it effectively, and after each time the police left, the husband of the party committed more serious domestic violence against her.
"The Anti-Domestic Violence Law still faces problems such as low citation rate and low application rate"
The Paper: The Anti-Domestic Violence Law is legislation specifically aimed at domestic violence, what do you think is the special significance of enacting such a law?
Li Ying: The special significance of the Anti-Domestic Violence Law is related to the particularity of domestic violence.
For violence between strangers, the law has relevant provisions, for example, you can file a civil compensation, you can ask the public security organ to impose administrative penalties on the other party, and even pursue the criminal responsibility of the other party.
The nature of domestic violence itself is different from violence between strangers, it has some peculiarities. Most of the acts of domestic violence occur between family members, it is through violence, so that the other party obeys the submission, the essential feature is the power control relationship. In addition, most domestic violence has a home shell, so many people will think that it is a family affair, a matter between husband and wife.
The significance of the Anti-Domestic Violence Law is that it has made an overall prevention and treatment mechanism for the particularity of domestic violence, including warning letters, personal safety protection orders, shelters, and compulsory reports. If the compulsory reporting system requires school, neighborhood committee, villagers' committee, and other such staff to discover in their work that a person without capacity for civil conduct or a person with limited capacity for civil conduct has suffered or is suspected of suffering domestic violence, they shall promptly report the case to the public security organs.
The Paper: The Anti-Domestic Violence Law has been implemented for 5 years, what do you think its practical application effect is in current judicial practice?
Li Ying: In domestic violence-related marriage and family cases, the citation rate and application rate of the Anti-Domestic Violence Law are actually not high, which surprises me.
Previously, with the China Judgment Documents Network as the main database, our Source Center searched the judgments published by courts at all levels in a city from the date of the official implementation of the Anti-Domestic Violence Law on March 1, 2016 to the end of February 2021, and obtained 320 judgments in cases involving domestic violence, and statistically analyzed them. According to the data, among the 320 judgments involving domestic violence, the legal basis of the Anti-Domestic Violence Law is only single digits, and the proportion is very low. In addition, judging from the results of these cases alone, it seems that the Anti-Domestic Violence Law has not brought more favorable adjudication results to victims of domestic violence cases.
Personally, I believe that this is related to the lack of training and publicity of the Anti-Domestic Violence Law, and the awareness and sensitivity to domestic violence are still insufficient. Overall, domestic violence as a social issue is much hotter than before, but the attention in judicial trial practice is still not enough, and it has not received the attention it deserves.
The Paper: Is the low application rate of the Anti-Domestic Violence Law related to the completeness of the law itself?
Li Ying: Although there are places that need to be improved, as we just talked about, it is a special provision made in combination with the particularity of domestic violence, and I think its current relevant provisions and basic systems are relatively complete, and the overall concept is also relatively advanced. The law is not enough on its own, and while we advocate for the improvement of the regulations, it is equally important to issue how to enforce the regulations.
The Paper: According to a study done by Jiang Yue, a professor at the Law School of Xiamen University, the social awareness and approval rate of personal safety protection orders are low.
Li Ying: In the Anti-Domestic Violence Law, the personal safety protection order, as a disposal mechanism, is a particularly important system for the relief mechanism for victims of domestic violence.
According to Article 27 of the Anti-Domestic Violence Law, there are three conditions that should be met to make a personal safety protection order: a clear respondent, a specific request, and a situation facing the actual danger of domestic violence. Then the victim is not only the victim of domestic violence can apply for a personal safety protection order, in the face of domestic violence, there is a real danger can also apply for a protection order, it can be seen that the main purpose of the personal safety protection order is to protect the parties, so its application and issuance threshold should be very low.
However, in the current judicial practice, I found that the threshold for issuing personal safety protection orders is relatively high, and when issuing protection orders, the parties will be required to provide sufficient evidence of domestic violence, and domestic violence is generally difficult to prove, which directly leads to the difficulty of applying for protection orders and also affects the issuance rate.
I believe that the SPC should make clear provisions on personal safety protection orders and the evidentiary issues of domestic violence cases in litigation, and should lower the standard of proof of personal safety protection orders, so as to give full play to the preventive and personal safety protection system of the personal safety protection order system.
In domestic violence cases, it is difficult to adduce evidence and determine, how should domestic violence be collected?
The Paper: As you just mentioned, there are situations where domestic violence is difficult to prove and determine, what are the main reasons for this phenomenon?
Li Ying: Because most of the acts of domestic violence occur in the space of two people, there is a lack of witnesses, and domestic violence is also long-term, repetitive and sudden, coupled with the fact that victims often feel afraid and afraid in the face of domestic violence, there is no awareness of evidence collection, etc., it is very difficult for victims to effectively retain evidence of domestic violence.
It is difficult to determine, mainly because the standard of proof for domestic violence is also relatively high, and the court will require proof that it has suffered repeated and long-term domestic violence.
In a case like the one I came into contact with, the client suffered domestic violence for more than 20 years, but she didn't keep the evidence until she asked me for help. After she asked me for help two years ago, through my guidance, she had a sense of evidence and retained sufficient evidence of domestic violence. I thought in the lawsuit that she had suffered domestic violence for a long time, but when the judge was in court, he would ask my client what year and month the first domestic violence occurred, what was the situation at that time, what was the second domestic violence, and what was the third time?
I personally feel that in the process of presenting evidence, the court often still regards long-term repetition as an important evidence of domestic violence, and some judges may also have to look at the consequences of damage, but the provisions on domestic violence in the Anti-Domestic Violence Law do not have these requirements, but as long as there are relevant acts, then it can be identified as domestic violence, so I think this piece is also a matter of understanding.
The Paper: Combined with the provisions of the Anti-Domestic Violence Law, if we encounter domestic violence, how should we collect evidence?
Li Ying: The first piece of advice I give you is to call the police. After calling the police, we can ask the police to make a record in the process of police inspection and processing, which is a good evidence of domestic violence. At the same time, the police's handling is relatively timely, it is deterrent, we can ask the police to issue a warning letter, if the other party is more serious, we can also propose to let the police punish the perpetrator with public security management. Therefore, calling the police is not only an important means to stop domestic violence, but also an important way to retain evidence of domestic violence.
Second, after encountering domestic violence, you should seek medical treatment in time, and you must have a diagnosis certificate when you seek medical treatment. If you have a certain degree of injury, you can also conduct an injury appraisal.
Third, we must pay attention to taking photos of the injury, not only to take the injury, but also to be able to make these photos prove that it is your own injury.
Fourth, audio and video recordings. If it is long-term domestic violence, you actually have a certain prejudgment of the circumstances under which the other party may commit violence, and after prejudgment, you can arrange the audio and video recording equipment in advance.
Fifth, witness testimony, including those of children, neighbors, and even colleagues in your workplace. There are also chat records, and many times the other party's intimidation and insults may not only be carried out in person, but also through WeChat or email and other means, which are evidence. At the same time, the other party's letter of guarantee or repentance can also be used as evidence.
The Paper: In the process of collecting evidence, what issues do you think should be paid special attention to?
Li Ying: It doesn't mean that everything can become evidence, it also has to conform to the three sexes, legitimacy, authenticity, and relevance.
First of all, your access to this evidence is legal, and you can go to the audio and video recording at your own home, which must be no problem. But you can't run to someone else's house, or you can't go to a private detective and so on, and use illegal means to steal the recording.
The second is authenticity, where your evidence must all be true and not forged. What I want to remind here is that after the audio and video recording, the audio and video cannot be edited in order to present the evidence more quickly and directly to the judge, because the audio and video evidence after the editing is no longer the original, and naturally loses the effect of proof.
The third point is relevance, the evidence must be related to domestic violence between the victim and the perpetrator, such as the perpetrator cheated in marriage, such proof can not be used as evidence of domestic violence.
Editor-in-charge: Yubing Tang