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Understanding Domestic Violence against Women in China:

Some Reflections on the Draft for Solicitation of Comments on

People’s Republic of China Domestic Violence Law

Nicusor-Sever-Cosmin FLOREA （高世明）*

On November 2014, the Legislative Affairs of the State Council released a Draft for Solicitation of Comments on China’s first-ever law against Domestic Violence. The Draft has been open for discussion until December 25, 2014. The current paper seeks to depict the broader scope of Domestic Violence in general, while emphasizing some local Chinese peculiarities, either related to former quantitative or sociological researches in the country, as well as endemic cultural aspects. Lastly, it will try to briefly analyze the provisions of the Draft Law in accordance with the country’s specifics. Along the article, I will strictly refer to Domestic Violence against women, leaving the chapters concerning children and authors to scholars much capable than I am. Though the current article shall not be taken for an exhaustive analysis of the phenomena, nor of the Draft Law, it is the author’s hope that it could shed some light on the broader scope of the domestic violence in China and how the State Council’s initiative may affect its occurrence.

1. Defining Domestic Violence

Domestic violence against women1 represents an abuse of power within the confines of a family, dependency or trust relationships. Domestic violence seriously undermines the basic rights of people who, due to aspects pertaining to either gender, age, disability or dependence, become vulnerable. It can address either women, men, children or elders living inside an extended family2 and it is defined as a serious social and criminal problem that can result in repetitive battering, permanent disablement or/ and death of the victim. It can involve physical assault, sexual assault and/ or killing. Other forms of domestic violence may include emotional abuse, financial deprivation, exploitation and/ or neglect. Due to cultural interpretations as a social stigma, it may remain a hidden problem with long-lasting physical and psychological effects on the victims.

Most encountered practices of domestic violence are physical violence, sexual assault and psychological abuse. Physical violence experienced by women comprises of physical attacks and injury, repetitive or not. It may also involve threatening behavior, slaps, being pushed, bruises, broken bones or more serious incidents of repetitive assault. It could become life threatening if results in internal injuries, permanent or temporary disabilities or death. Sexual assault comprises of sexual humiliations, assaults and/ or threats of violence used to determine women to coercive sex. It also includes putting pressure on the frequency of sex, sexual activity exclusive on the man’s * PhD Candidate, School of International Law, China University of Political Science and Law; Master of Economics, School of Economics, Capital University of Economics and Business, Beijing, China (2009-2011); Bachelor of Arts, Faculty of Political Science, University of Bucharest, Romania (2005-2009); Erasmus Scholar, University of Florence, Italy (2006-2007); Dharmasiswa Scholar, National University, Jakarta, Indonesia, Muhammadyiah University, Jogjakarta, Indonesia (2007-2008) E-mail: florea@mail.com 1 Also referred to as battering, intimate-partner violence, family violence or intra-family violence.

2However, mostly due to concerns related to the available space, domestic violence has been referred here as only

regarding women. Some statistics to be presented will also include domestic violence addressed to men, for the sake of comparison.

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terms, bully, punished into having sex and/ or, ultimately being raped. Coercing women to participate in sexual practices they deem offensive or forcing them to have sex with other men are also regarded as manifestations of domestic violence. Lastly, psychological abuse usually accompanies the preceding two manifestations and comprises intimidating threats of injury, beating up, harm to children or sexual violence. Emotional abuse could also be encountered as verbal threats consisting of degradation and humiliation. Financial psychological abuse consists of being denied money for children or having their own money taken away. Isolation from friends and family should also be considered a form of psychological abuse.

2. Domestic Violence: An International Perspective Violence against women remains one of the most pervasive forms of human rights violation in

the world. One out of three women worldwide experienced a form of domestic violence, be it physical violence, sexual assault or psychological abuse. In most of the cases, the abuser is usually a family member or a known person to her3. A recommendation issued by the Council of Europe indicates domestic violence as the major cause of death and disability for women aged 16 to 444. World Health Organization (WHO) found that 70 percent of the gender based violence killings (such as honour killings) are committed by victims’ husbands or male partners, while a third of all girls are forced into their first sexual experience5.

Paradigms of Domestic Violence From a historical standpoint, domestic violence perpetrated by men against women has been

replete, as the society moved from a permissive to a more restrictive attitude towards sex, men seeking to have exclusive possession of the women. Ergo the shift to a patriarchal model resulted in a shift from a democratic to an authoritarian way of life in which the norm was power and control exerted by the man against the woman. Violence therefore became legitimized by the patriarchal systems and social practices applied with these changes6. Given such premises, one must admit that the occurrence of domestic violence is part of a global cultural prescription7 cherishing aggressiveness, male dominance and female subordination8.

UN literature on domestic violence distinguishes two main theories; while one is focused on the individual, the other seeks to find explanations in the social structure of the society9.

Personal, social and psychological explanations have been employed by the individualist theory. The main internal factors identified for domestic violence have been personality disorders, biological predisposition to violence and personal social conditioning (such as growing up in a violent home). External factors include alcohol, drugs, provocation, jealousy or sex. However the

3 L. HEISE, M. ELLSBERG, M. GOTTENMOELLER, Population Reports XXVII: Ending Violence Against Women, John Hopkins

School of Public Health, Baltimore, Center for Health and Gender Equity, Washington DC, 1999, p. 1 4 Recommendation No. 1582 on Domestic Violence, adopted on 27 September 2002 by the Parliamentary Assembly of

the Council of Europe. 5 World Report on Violence and Health, World Health Organization, Geneva, 2002, p. 5

6 Terry DAVIDSON, Wifebeating: A Recurring Pheonmenon Throughout History, in Maria ROY (ed.) Battered Women: A

Psychosociological Study of Domestic Violence, Van Nostrand Reinhold, New York, 1977, pp. 225-227 7 Perhaps with the exception of isolated matriarchal societies.

8 R. Emerson DOBASH, Russel P. DOBASH, Violence Against Wives: A Case against the Patriarchy, The Free Press, New

York, 1979, p. 24 9 The United Nations, Violence against Women in the Family: What Causes Violence Against Women in the Home, in

Helen M. Eigenberg (ed.), Woman Battering in the United States: Till Death Do Us Part, Waveland Press Inc, sl, 2001, pp. 147-156

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study recommends that these factors be taken as catalysts rather than the true causes of violence; people affected by drug abuse and personality disorders do not necessarily become violent towards their partner.

The social structural theory offers macro-level analysis of the society and prefers to pay an undivided attention to structural factors in societies and cultures. Though most societies share a history of condoning violence against women, it is suggested that the occurrence of domestic violence varies according to the equal status granted to women and men in their respective society. Unlike the individualist theory, the social structural theory shifts the attention from catalytic factors to structural causes, identifiable in the respective society. Secondly, it shows that domestic violence is, mostly, a gender issue. Lastly, it recommends treating domestic violence as a human rights issue due to its worldwide occurrence and not as a manifestation of individual personality disorders. From this point of view, it is safe to affirm that the social structural theory contributes to the internationalization of the issue. However, leaving aside for a moment the existing paradigms, “the predominant risk factor is (…) being female”10 as Sen puts it.

Cultural Practices Within the social structural theory, a specific attention must be paid to the relevance of the

cultural context, especially when seeking to analyze domestic violence on a national or even geographic basis, as in the case of this paper. Linking cultural context to domestic violence is a common popular perception, not always shared by empirical evidence11.

The distinction between cultural practices, patriarchal practices and practices ascribed to a specific religion is relevant as well. However, in such cases, where either the cultural, patriarchal or religious practices encourage the cultural perception that women should tolerate some amount of violence from their life partners, the law must be ever more cognizant of the underlying causes of societal structure as determining factor in domestic violence.

In Islam, for instance, a passage of the Al-Quran mentions that one way of restoring marital peace if everything else fails is by applying a strike to the woman12. Though generally the Quranic interpretations (“ijtihad”) are not contextual, following the belief that the Book is perpetually valid and should not be restricted to a certain epoch, there have been contextual interpretation of that particular verse (“surah”) who argued that the particular passage was written at a time when domestic violence against women was rampant. Observed under this light, the strike should be regarded as a restriction to violence rather than a recommendation.

Indian men would often quote a Hindu religious text which reads “If women become independent, it would lead to evil… The drum, the village fool, the shudras (lower cast), animals, women… all these fit to be beaten.”13

10

Purna SEN, Development Practice and Violence against Women, Gender and Development, Vol. 6, No. 3, Taylor & Francis, p. 14 11

Kumaralingam AMIRTHALINGAM, Women’s rights, International Norms and Domestic Violence: Asian Perspectives, Human Rights Quarterly, Vol. 27, No. 2, The John Hopkins University Press, 2005, pp. 698-701 12

“Men are in charge of women by *right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.” An Nisa’ 4:34, as translated in Sahih International, at www.quran.com 13

Expressed by Tulsidas in his Ramayana. Religion and other cultural traditions are often used to validate domestic

violence in India. For further quotes on the position of women in various religions, see Fallen Perspectives and a

Counter-Model, available at http://johnmarkhicks.faithsite.com/content.asp?CID=69155

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Limiting opinions related to women’s nature could also be identified in the Christian works, though not appealing to violence; Aquinas, for instance, wrote: “It was necessary for woman to be made, as the Scripture says, as a ‘helper’ to man; not, indeed, as a helpmate in other works, as some say, since man can be more efficiently helped by another man in other works; but as a helper in the work of generation.”14

It shall be noted that domestic violence is found in the vast majority of the cultures and is most likely to be universal rather than relative. A line, however, shall be drawn between cultural features who do not particularly sanction domestic violence or chastise battered women and violent gender discrimination against women; the latter should simply not be tolerated. It is the author’s view that cultural diversity is not the deciding factor in women experiencing violence and it cannot be used to justify non-intervention on behalf of the state. Culture does not determine whether economic exploitation, absolute poverty or high infant mortality should be regarded as acceptable just as it does not define violence against women. In order to reinforce such a point, the human rights jurisprudence has reaffirmed certain universal and inalienable rights, which address domestic violence and should prevail any cultural or religious practices.

Legal Developments Since the UN Women’s Conference in Nairobi (1985), an increasing attention has been paid to

domestic violence, including the violence against women. However, the issue of domestic violence is still interpreted by certain agencies as pertaining to women’s issues rather than a matter of human rights. An illustrative example in this sense is perhaps the most relevant international instrument guaranteeing women’s equality, i.e. the Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention), adopted by the United Nations General Assembly in 1979. The Women’s Convention was drafted by the Commission on the Status of Women and not by the Human Rights Commission, as the other treaties concerning human rights15. It is therefore safe to affirm that, in spite of certain developments in the field, domestic violence is not yet entirely regarded as a matter of human rights16.

Women’s Convention requires states to take a series of measures in order to protect the women from discrimination; some of the most notable measures include access to education (art. 10), equal employment opportunities (art. 11), health care (art. 12), financial services (art. 13), access to public policy and decision making bodies (art. 7-8), and elimination of discrimination within the family (art. 16). The Convention, however, has no specific provisions addressing the issue of domestic violence17. In 1989 however, the Committee on the Elimination of Discrimination Against Women (CEDAW), the body of experts set up under the provisions of Women’s Convention, issued a recommendation that states should include information about violence in their reports. Recommendation 19 states that “discrimination includes gender-based violence” and that “gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”18

14

Thomas ACQUINAS, Summa Theologica, 1.92 in http://johnmarkhicks.faithsite.com/content.asp?CID=69155 15

Christine CHINKIN, Violence against Women: The International Legal Response, Gender and Development, Vol. 3, No. 2, Taylor & Francis, 1995, p. 25 16

Fortunately such views are becoming a minority. As of, January 1, 2008, responsibility for servicing the Committee on the Elimination of Discrimination against Women has been transferred to the Office of the High Commissioner for Human Rights in Geneva. 17

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted on December 18, 1979, for the full text of the Convention see http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm 18

CHINKIN, op.cit., p. 25

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Other relevant international initiatives from a legal standpoint shall include the Declaration and Program of Action of the World Conference on Human Rights at Vienna (1993), which emphasized that elimination of violence against women is a human rights obligation upon the states, and the Declaration on the Elimination of Violence Against Women adopted by consensus by the United Nations General Assembly on December 1993. The Declaration is the first international affirmation of the issue and it tackles controversial issues, such as asserting that neither religious nor cultural practices cannot justify violent acts against women19. Women’s Conference in Beijing (September 1995) was essential for women’s human rights, stating the rights of women to be free from violence by state or private actors and including a follow up Program of Action. The later Beijing Declaration and Platform for Action in 2000 was successful in the attempts of repealing discriminatory national legislation by 2005: Egypt abolished a law exempting men from rape charges when they marry their victims and in December 2001, Yemen passed a law allowing women to pass their citizenship to their children, however only in cases when the husband has died or they divorced20. Lastly, it should be noted that in its first World Report on Violence and Health in 2002, the World Health Organization (WHO) also addressed the issue of battered women and revealed that between 40 and 70 percent (according to their respective states) of women who die in homicides are billed by their current or former partners21.

Legislative innovations have also been tested on a regional and national level. Temporary restraining orders to protect victims of domestic violence from the perpetrators have been successfully implemented in Colombia, El Salvador, Guatemala, Paraguay and Venezuela, following the model of many western European countries and of the United States. A law enacted in Germany in 2001 allows courts to evict the perpetrators from their own homes so that the abused women would not seek refuge in women’s shelters. Women’s police stations were pioneered in Brazil and Jordan, women’s courts in India and Guatemala as well as women shelters in Malaysia or Nicaragua22. Some countries, however, have recorded a slower progress. In the case of Philippines, until 1997, rape was considered a crime against chastity and the victim had to prove she did not willingly surrender her virginity. After continuous lobbying, the law was amended so that rape was defined as violence against a person, not chastity, and included oral sex and acts of sexual torture, besides the previous definition of genital penetration23.

The relative scarcity of international law norms prohibiting domestic violence may be the nature of the international law system itself, that is primarily regulating states behavior. Though the perpetrators of domestic violence are primarily private individuals, not agents of states, one may infer that state responsibility is also incurred through act of omission on behalf of public agents acting in their official capacity when it comes to processing, investigating and ultimately judging acts of domestic violence.

19

Declaration on the Elimination of Violence against Women, adopted on December 20, 1992, for the full text of the Convention see http://www.un.org/documents/ga/res/48/a48r104.htm 20

Susana T. FRIED, Violence against Women, Health and Human Rights, Vol. 6, No. 2, The President and Fellows of Harvard College, 2003, p. 101 21

World Health Organization, World Report on Violence and Health, No. 93, 2002, available at www.who.int/violence_injury_prevention/violence/world_report/en/ 22

FRIED, op.cit, pp. 101-103 23

N. JENKS, Ending Violence against Women: Regional Scan for East and Southeast Asia, UNIFEM, New York, 2002, p. 207

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Cessation Factors Three important factors have been identified by Sen24 as crucial for the resolution of domestic

violence, be it under the form of physical, psychological or sexual abuse. The first is represented by networks, i.e. contacts with family, women organizations and legal advice centers. Networking has been associated with the cessation of domestic violence as a source of support and also due to providing advice and employment opportunities for women who were left by their partners or exploited due to their financial dependence. Secondly, furthering women’s education is also strongly correlated with the cessation of violence. Again, a higher education is proportionally associated with a higher self-awareness and financial independence, which, in turns leads to the cessation of domestic violence, either by the women stepping out of a violent relationship or by their partners leaving them. Finally, women’s employment is contributing to the women empowerment leading to the foundation of independent lives for women who separated abusive men.

Though these three factors form a basket of central resources in tackling the situation of battered women, Sen fails to take into consideration other factors save for financial situation and self-awareness. On a national basis, other factors may prove equally relevant to those mentioned above, such as the stigma associated with battered women, cultural determinants on gender behavior, etc.

3. Domestic Violence and Gender Roles in China

China has benefitted of a dualistic depiction in the scholarly literature: on one hand it has been regarded as a thoroughly entrenched patriarchal family system, yet also as a place where the 1949 revolution and the post-Mao reforms have massively rearranged the previous traditions related to marriage, family and – generally – affective life. After experiencing a long history of feudal tradition subjecting women to a patrilineal system, the Communist rule between 1949 and 1978 liberated Chinese women granting them rights in all the spheres of life: the right to vote, to education, employment, marriage and inheritance was granted under the Communist egalitarian principles. According to some authors25, victimization of women, such as prostitution or abduction were completely eradicated after the Communist take-over, however resurfaced once the society moved towards a Communist with Chinese characteristics, possibly due to the disparate regional development and urban-rural gap.

Women’s Position in the Traditional Chinese Culture26

On a cultural level, even though orthodox Chinese culture is known for its emphasis on harmony and non-violence, using force against women in the family can be historically rooted in the Imperial culture of China. Though much of the classic Chinese literature is dedicated to the nature of the man-woman relationship, I will limit myself to commenting what could be regarded as two pillars regulating women’s position in the traditional Chinese society, that is

the three obediences and four moral rules (“三从四德”) and the 7 laws on the virtues of a wife

(“七出”, “七去”, sometimes “七弃”). In addition, I will attempt to briefly comment on the

24

SEN, op. cit., pp. 12-14 25

Hong LU, Jianhong LIU and Alicia CROWTHER, Female Criminal Victimization and Criminal Justice Response in China, The British Journal of Criminology, Vol. 46, No. 5, Oxford University Press, 2006, p. 859 26

I am deeply thankful to 徐台杰 and 胡博 for their very valuable and insightful explanations on the position of women in the traditional Chinese society. This part would not have been possible without their kind contributions.

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position of the woman in a classic Chinese poem, 孔雀东南飞, also known as 焦仲卿妻, that is

The Story of Jiao Zhong Qing’s Wife (also translated as “The Bride of Jiao Zhong Qing”).

According to 三从四德, there are three obediences and four moral rules that shall be

obeyed by a virtuous Chinese wife. Firstly, a chaste woman27 shall obey her father (“未嫁从父”),

while married she shall obey her husband (“既嫁从夫”), and, eventually, shall her husband pass

away she shall become subservient to her son (“夫死从子”). A married woman’s main chores shall include taking care of her husband and relatives and always appear helpful if the opportunity arises. Women shall respect their husbands and always follow them. A wife should be loyal and maintain her chastity before marriage. Shall her husband die, she should continue growing up her children.

The four moral rules appeal to various aspects in woman’s relation to her husband and dictate what could be regarded as an early code of marital behavior. The first rule refers to a

proper moral behavior, 妇德. Prior to marriage, a woman should maintain her chastity as a

proof of loyalty to her future husband. Once married, woman should not acquire any scholarly knowledge, be quiet, decent, and display a sense of shame. In case her help is required, a good wife should help her husband find another wife28. The wives should teach their children and maintain friendly relations with all the members of the extended family. Modesty is a crucial feature of the traditional Chinese woman: shall the family be poor, she should adapt to it, shall the family be wealthy, however, she should not spend lavishly as well. The way of address or,

simply put it, the words employed by the iconic traditional Chinese woman, i.e. “妇言”, should be appropriate and should not humiliate others. She should not interrupt others as they speak and also should not act defensively in case she is accused of not accomplishing her house

chores. Thirdly, the appearance (“妇容”) is equally important for the ideal Chinese housewife; she should always wear clean clothes, shower regularly and sweep the floor constantly. Lastly,

her skills (“妇工”) should be related to the indoor work (while the man would be responsible for the outdoors). The housewife should sew clothes, take care of the silkworms, pick up leaves for them, prepare wine and look after the family and guests.

The 7 laws of virtue have been codified during Tang dynasty, however they have been used extensively since earlier times. Breaching any of these 7 laws would lead to the possibility of divorce, since they are regarded as wife “defects” rather than flaws of character. Therefore, an ill wife would be undesirable, on par with a big-mouthed wife. The practice of stealing or the impossibility to bear children could also be used as causes for divorce. A wife should always obey her parents in law and should not be involved in any extramarital relationships. Lastly, jealousy shall never be accepted. An additional reason for divorce could be identified in a book

written during Han dynasty (“礼记”) which states that if a couple loves each other too much, their relationship would become destructive and they should divorce.

Finally, The Bride of Jiao Zhong Qing offers a very illustrative depiction of the women’s condition in imperial China. Essentially, a mother in law urges the bride to leave the husband’s house. Both the bride, Liu Lang Zhi and her husband, Jiao Zhong Qing, cannot go against the mother in law’s will and accept with resignation her decision. In a society where women where regarded as instruments for producing heirs, the wife has no power of fighting against her diminutive position in the family. Liu Lang Zhi goes back to her maiden house, where her

27

In the traditional Chinese society, “chaste” would equal to “non-married”. 28

In certain circumstances, bigamy was possible in the traditional Chinese society.

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brother forces her into marriage with a high figure in order to gain access to a better social condition. Unable to come at peace with her faith, Liu Lang Zhi commits suicide by drowning. Her former husband finds out about her presumed marriage and decides to see Liu Lang Zhi again, only to learn that she committed suicide. Eventually, Jiao Zhong Qing hangs himself in a tree. Not only the ancient Chinese poem depicts the social realities of the epoch but it also suggestively addresses the issue of gender discrimination and social conditioning of the women, as well as their instrumentality in acceeding a superior social status. Eventually, Liu Lang Zhi and Jiao Zhong Qing could only be reunited through their death, given the highly inflexible society they were living in. The reasons for their divorce have been pinpointed as the failure of the couple to bear children, Liu Lang Zhi’s independent character and her hard-working traits which could be interpreted as undermining the position of her mother-in-law.

Despite the relatively low conditioning of the women according to China’s Imperial-era ethics, one shall admit they did not directly provoke violence against women in general and comprised no provisions in this regard. The Confucian-key ethics provided, however, for the institutionalization of wife abuse in Chinese society though the patriarchal and patrilineal family system that sought to subordinate women to men. In turn, such a system provided moral legitimacy for men to abuse women. Forms of abuse against women in Ancient China would include foot-binding, child bride, forced prostitution as well as the husband’s and mother-in-law’s generic maltreatment and beating29. It therefore becomes easier to understand why most of the domestic violence acts against Chinese women have often been exculpated from social stigma, in order to enforce compliance – even if imaginary – with Imperial-era cultural codes or social practices. Though there is no dictum prescribing violence, a whole set of social norms and cultural codes reduce the position of the woman in traditional Chinese society so that – in certain views – she becomes prone to domestic violence.

Women’s Position in Socialist China

In the modern China, the Chinese Communist Party’s (CCP) leadership has committed itself to social reformation, consistently opposing wife abuse by challenging the traditional set of norms and cultural codes30 . Xu observes a paradox in the Chinese socialist revolution challenging traditional cultural attitudes towards women: on one hand it seeks to emancipate women by creating a complete legal, economic and political equality of sexes; on the other hand, it did less to actively promote women as part of the Chinese political arena, though reportedly they were regarded as “holding up half of the sky”31 along with their male counterparts32. After coming to power in 1949, the Communist government produced a huge schism not only concerning the positioning of women but the positioning of family within the New China; one of the political slogans of the era read “Father is dear, mother is dear, but they are not as dear as Chairman Mao”33. The economic and social changes under the guidance of CCP have aimed to eliminate patriarchal domination and further establish a democratic family

29

For a more in-depth analysis, see Xiaohe XU, The Prevalence and Determination of Wife Abuse in Urban China, Journal of Comparative Family Studies, Vol. 28, No. 3, Dr. George Kurian, 1997, p. 281-282. 30

M.J. MEIJER, Marriage Law and Policy in the Chinese People’s Republic, Hong Kong University Press, Hong Kong, 1971, pp. 11-17 31

Attributed to Chairman Mao Zedong. 32

XU, op. cit., p. 282 33

Attributed to Chairman Mao Zedong in Jean K.M. HUNG, The Family Status of Chinese Women in 1990s, China Review, 1995, Chinese University Press, p. 12.2

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system34. Indeed, Xu finds out that the trends in wife abuse in the New China are in concordance with the sociopolitical movements engineered by the socialist government. Reviewing official statistics, Xu establishes that a significant decrease in wife abuse has been registered from 1949 to 1965, while, in direct response to Cultural Revolution, the incidence of wife abuse started to rise sharply with a historical record in PRC’s history35.

Notable progresses have been, however, registered from a legal standpoint, with a series of norms issued to further regulate marriage, divorce and child bearing in the Chinese families.

Domestic violence in contemporary China yet appears to be linked to the traditional gender roles, at least when it comes to a battered woman’s likelihood to report domestic violence. Hollander finds out that 43% of the women interviewed at a gynecology clinic admitted to had ever been victims of domestic violence, while 26% reported such an abuse in the previous year. Several risk factors in the victims’ system of beliefs suggest women’s adherence to traditional gender roles may increase their chances of becoming victims of domestic violence. For instance, women who thought wife-beating is sometimes justifiable or that the wife has a duty to have sexual intercourse with her husband had significantly elevated odds of being abused. Other risk factors include: having had lived with more than two partners, having a partner who has been drunk in the past year or having a partner who refused them money. On the other hand, having a partner who worked as manager or supervisor or agreeing that family problems should only be discussed within the family (that is not within the extended family or with friends) seemed to reduce the prevalence of domestic violence36.

According to a different study37, 19% of the respondents of a survey reported male-on-female violence in a relationship, while 3% reported female-on-male domestic violence. 34% had experienced male-on-female intimate partner violence and 18% female-on-male domestic violence. In a gender-based breakdown, 15% of the women have been victims of domestic violence and 3% of the men have witnessed hitting by their partner. An additional 15% of each reported mutual hitting. The study analyzes geographical factors in the distribution of domestic violence in China, concluding that the respondents living in the North and Northeastern China have experience a double amount of domestic violence in the relation with their partners compared to their Southern or Southeastern counterparts. According to the study, the main risk factors for domestic violence against intimate partners appear to be the relationship duration (most common in relationships of 6-15 years), lower financial resources, alcohol consumption and sexual jealousy (on both sides). Domestic violence have been negatively associated to men being three years or older than women and with the women’s financial contribution to the household being more than 45%.

34

Idem 35

For a detailed breakdown of the recorded cases of domestic violence and the underlying causes, see XU, op. cit., p. 293-294 36

D. HOLLANDER, Traditional Gender Roles and Intimate partner Violence Linked in China, International Family Planning Perspectives, Vol. 31, No. 1, Guttmacher Institute, 2005, pp. 46-47 37

William L. PARISH, Tianfu WANG, Edward O. LAUMANN, Suiming PAN and Ye LUO, Intimate Partner Violence in China: National Prevalence, Risk Factors and Associated Health Problems, International family Planning Perspectives, Nol. 30, No. 4, Guttmacher Institute, 2004, pp. 177-178

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Legal Developments of the Marriage Law and the potential impact over Domestic Violence

The legal developments comprised in the Marriage Law are illustrative for the position of the woman within Chinese society, as prescribed by the State. The free-choice marriage became a major topic under the New Culture Movement, beginning with 1915. The Guomindang government later codified the free-choice marriage, however lacking a strong enforcement. The CCP promulgated a marriage reform – also addressing the abolition of purchased brides, minimum marriage age and divorce – since 1930s. Obviously, the law only addressed the rural base areas in which the party could exert its influence at the time.

A PRC Marriage Law has been formally adopted in 195038, abolishing feudal marriage and marriage by purchase. It also established freedom of choice as a fundamental principle of marriage. The law also asserted the right of adults to divorce at their free will. Hershatter finds that the party advanced its Marriage Law quite tentatively, avoiding to enforce law wherever it would generate possible conflict with the rural masses. The main beneficiaries of the law were young rural women who saw themselves liberated from the past feudal system and the high-level officials who would acquire younger wives. The resisters were mainly local cadres and mothers-in-law, while main losers were reportedly older people and poor men. The Marriage Law is deemed successful in raising the age of marriage, a trend dating since the Republican period, yet with highly visible progressed registered during the Socialist times39.

An even more progressive Marriage Law has been adopted in 198040, eliminating older practices such as concubinage and raising the age of marriage to 22 for men and 20 for women41. The law came pack and parcel with a new round of public education aiming to render obsolete cultural practices such as arranged marriage or bride price payments. In 200142 amendments to the Marriage Law defined marital property rights and legislated against marital violence. The Marriage Law witnessed further amendments in 2003, concerning the marriage and divorce registration43. A National Code of Family Planning was introduced in 2001 and later extended in 2002 by the State Council Measures on the Administration of Social Upbringing Charges. Other notable progresses included a 1998 revision of the Adoption Law and a continuous development of a social protection law corpus, among which I should recall the 1992 Women’s Protection Law, revised in 200544.

From an International Law perspective, China has joined numerous human rights treaties since 1980 and the issue of Domestic Violence against women has all figured on China’s international agenda. China acceded to the Convention on the Elimination of All Forms of Discrimination against Women45 one year after it was open for signatures, on July 19, 1980 and ratified the Convention almost immediately on November 4, 1980. Most importantly, some

38

The Marriage Law of People’s Republic of China, adopted on May 1, 1950 39

Gail HERSHATTER, State of the Field: Women in China’s Long Twentieth Century, The Journal of Asian Studies, Vol. 63, No. 4, Association for Asian Studies, 2004, pp. 999-1000 40

The Marriage Law of People’s Republic of China, adopted on September 10, 1980. 41

For a series of personal family stories on the effects of these reforms over common Chinese couple, see Chihua WEN, For Love or Money, China Daily, April 8, 2010, available at http://www.chinadaily.com.cn/cndy/2010-08/04/content_11091992.htm 42

The Marriage Law of People’s Republic of China, adopted on September 10, 1980, amended on April 28, 2001. 43

Marriage Registration Regulations, adopted on August 8, 2003. 44

For further details on these evolutions, see Michael PALMER, Transforming Family Law in Post-Deng China: Marriage, Divorce and Reproduction, The China Quarterly, No. 191, Cambridge University Press, 2007, p. 676 45

See Supra, p. 4

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authors consider China’s accession to the treaty as a proof the country regards violence against women not only as an individual crime but also a breach of human rights46.

These laws were often accompanied by a broad propaganda, with regard to different aspects of marriage. The available space deters the author from a comprehensive depiction of all these means. Concerning the domestic violence or the abuse of women, cautionary tales warned women to beware of abduction and prostitution, to protect themselves against rape. Negative examples were being offered as part of propaganda means. It has been pointed out47 that public discussions on issues such as prostitution, rape or adultery portray women as engaged in unapproved behavior, suggesting the victims are often depraved. This in turns, can contribute to stigmatizing the victims of domestic violence.

Undoubtedly, given the complex political, social, cultural and legal changes witnessed by China in the past century, Chinese women today enjoy greater equality than Chinese women of previous generations or women in many other countries. One may speculate that these changes have also contributed to a diminishment of domestic violence against women. It is the Chinese women status in the family that greatly contributes to their emancipation; no longer constrained by family order or patriarchal kinship system, the Chinese women find themselves in a higher social position than ever before. Despite such complex changes, scholars still doubt Chinese women equal employment opportunities, promotion opportunities or the equality with their male counterparts when it comes to domestic chores48.

4. China’s Draft law on Domestic Violence: A Brief Outlook

On November 25, 2014, China’s Legislative Affairs Office of the State Council published the Draft for Solicitation of Comments of the Domestic Violence Law of People’s Republic of China49. The drafting of the 41 articles of the law represented one further step in combating gender discrimination as dictated by the Marxist Communist ideology under the guidance of CCP, a process started in the early ‘30s and carried on with equal diligence for the past 80 years.

The Draft has been positively received by both the civic society and the Chinese and foreign media. The All China’s Women Federation issued a firm statement supporting the law: “Domestic violence is not a family dispute, rather, it is aggression against people’s rights and should be resolved with legal measures.” The Women Federation recognized China’s government efforts to bring the issue of domestic violence “out of the shadows”50. China’s state media agency also recognized the recent efforts to curve down the domestic violence and admitted that the culture stigmatizing the victims of domestic violence is drawing close to an end: “Family violence has remained in the shadows for a long time in China, where the culture holds that family conflicts are embarrassing private matters. Only in recent years have the

46

For a further analysis on this issue and other Human Rights treaties signed by China, see Ming WAN, Human Rights Lawmaking in China: Domestic Politics, International Law and International Politics, Human Rights Quarterly, Vol. 29, No. 3, pp. 729-732 47

HERSHATTER, op. cit., p. 1016 48

HUNG, op. cit., p. 12.20 49

An (unofficial) English translation of China Law Translate can be found at http://chinalawtranslate.com/en/domestic-violence-law/ 50

For further comments see Shannon TIEZZI, China's Domestic Violence Breakthrough, The Diplomat, November 27, 2014, available at http://thediplomat.com/2014/11/chinas-domestic-violence-breakthrough/

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Chinese people begun to examine the issue.”51 The Time magazine describes the draft as an useful instrument in combating the domestic violence: “If China pushes ahead with the legislation, makes it comprehensive, and strengthens enforcement, the police and courts would be better equipped to take action.”52

Indeed, the Draft for China’s law on Domestic Violence provides protection for the victims of domestic violence unheard before, also it stressed the educational factor in order to prevent such an abuse and pinpoints several measures to further address the specifics of the Chinese society, given China’s unique political, social and cultural background. Under the current legislation, the victims of domestic violence would encounter serious hindrances in seeking redress. The perpetrators can only be sentenced for up to two years and only in cases of “serious injuries or death” would the punishment extend up to seven years. The psychological abuse within the confines of a family is not yet addressed by the current Chinese laws.

The Draft Law on Domestic Violence advances some new measures to protect the victims of domestic violence in this regard. Firstly, it defines domestic violence as “physical, psychological and other infractions among family members.” (art. 2) While including psychological abuse as a form of domestic violence is marked progress in the Chinese legislation, limiting the scope of domestic violence to the confines of a family may leave the unmarried couples virtually uncovered by the Domestic Violence Law.

Article 13 reads that “Any organization or citizen has the right to discourage and stop acts of domestic violence, or to make a report to the public security organs.”, therefore urging both the organizations and citizens to report, discourage and stop acts of domestic violence. This provision seeks to address the particular societal landscape in China, where domestic violence is often regarded as a family matter. Same art. 13 increases the number of agencies that may receive domestic violence complaints to “the perpetrator's or victim's unit, a basic-level autonomous mass organization, women’s federation or other relevant organization.” Sadly, unlike in particularly serious cases, these agencies do not have the obligation to promptly report the act to the police. Article 13 increases the overall awareness on the domestic violence acts and provides progressive measures to tackle it; however it does not urges every citizen to report it to the public organs promptly (according to the law, the respective person may choose to “discourage” such an act rather than “report” it) nor obliges every agency to do so, unless in serious cases.

In the case of “a person lacking civil capacity or with limited civil capacity, or a person who due to old age, disability, serious illness or other such illness is unable to make a report, has been subjected to domestic violence”, the following institutions have the duty to report the case to the public security organs: ”(1) aid management institutions, social welfare organizations; (2) primary and secondary schools, and kindergartens; (3) medical establishments” (art. 14).”

Following existing models of sheltering the victims of domestic violence, art. 18 urges local governments (county or district-city level) “to provide emergency shelter and short-term living assistance for victims of domestic violence who are temporarily unable to go home.”

51

***, China Mulls Family Abuse Law, Xinhua, November 25, 2014, available at http://news.xinhuanet.com/english/china/2014-11/25/c_133813641.htm 52

Emily RAUHALA, China Has Finally Drafted a Domestic Violence Law, The Time, November 26, 2014, available at http://time.com/3606802/china-domestic-violence-law-spousal-abuse-legislation/

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In the art. 21, the legislators successfully managed to address the Chinese particularities, i.e. the higher occurrence of domestic violence in the financially challenged families. Art. 21 reads: “Legal aid organizations shall provide legal aid to eligible victims of domestic violence. Legal service establishments are encouraged and supported in reducing or waiving legal services fees for victims who truly have financial hardship but do not meet the level of eligibility for legal aid. (…)People's court shall reduce, waive or delay closing costs of litigation for eligible victims of domestic violence.” Providing cost cutting or even tax waiving for the socially disadvantaged persons should facilitate reporting of domestic violence exactly within the social strata where it occurs the most.

Art. 27 provides for the possibility of a restraining order for the victims of domestic violence even prior to initiating a lawsuit. Such a provision would diminish the number of battered women who are leaving their house and seek refuge in a shelter, in the event of domestic violence. It also opens the possibility that a next-of-kin would apply for protection on behalf of the victims unable to request a personal safety protection ruling.

As previously shown, one of the most relevant societal risk factors in domestic violence are the patriarchal traces existent at the level of Chinese society (as well as in many other societies around the world). The social, political and legal reforms initiated under the guidance of CCP have significantly diminished many of the patriarchal and patrilineal feudal conceptions on marriage and gender role; however, some of their traces have become resilient in the Chinese society. Perhaps the most significant article of the Domestic Violence Law addresses the prevention factor, encouraging social organizations and citizens to counteract the effects of domestic violence by education and publicity. Art. 7 reads “The state develops anti-domestic violence publicity and education, and encourages social organizations and citizens to develop public interest publicity activities countering domestic violence. Employing units shall do a good job of publicity and education work against domestic violence among the unit's employees. News media should do a good job of public opinion publicity against domestic violence. Judicial administrative organs shall incorporate the laws against domestic violence into legal publicity and educational content. “

Overall, the Draft on Domestic Violence Law provides a range of legal options for the victims of domestic abuse and facilitates the access to justice for the socially disadvantages, often found among the battered women. Secondly, the law encourages and in some cases requires the social organizations and state agencies to report cases of abuse to the public security organs. Thirdly, it seeks to educate the public on the matter of domestic violence and, in turn, diminish even more the traces of patriarchal culture and unequal gender roles in the Chinese society.

On the other hand, some of the key defects of the draft include: defining domestic violence too narrowly, failing to extend to non-marital relationships, failing to recognize domestic violence as a specific crime and failing to recognize marital rape as an offence.

6. Final Remarks

Several remarks shall be drawn from the above discussion. Firstly, domestic violence has a multitude of manifestations, including psychological and marital rape and does not limit to physical assault or wife battering. Secondly, domestic violence is a worldwide phenomenon and occurs irrespective of culture, social norms or political regime. Though it may be fueled by individual risk factors or social beliefs, at a national or regional level, domestic violence is a

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global human rights issue, affecting women in the place where they should feel the safest, in their homes. Fourthly, during the last decades the issue of domestic violence has been openly approached by international organizations and regulated as part of the international public law. Lastly, in the case of China, the diminishment of domestic violence may be considered as a part of the country’s continuous efforts to limit unequal gender roles. Under the guidance of CCP, China took multiple legal steps in this direction both on national and international level, by signing the relevant conventions in this respect and hosting global conferences. The issuance of the Draft Law on Domestic Violence is only the last step of a series of domestic measures started with the Marriage Law in the 1950 and unceasingly continued until present. Though imperfect, the Draft officially reaffirms the existence of Domestic Violence within the Chinese society and aims to redress it.

Finally, I would like to point out several limitations of the current study. Due to language limitations, the access to Chinese language legal and other resources has been severely hampered. The data and the laws I employed have been exclusively selected from the available English language literature. Future research in the area, hopefully including the existent resources in Chinese language, is much needed.

References

Legal Materials

Al Qur'an, Surah An Nisa, available at www.quran.com

Declaration on the Elimination of Violence against Women, adopted on December 20, 1992, for the full text of the Convention see http://www.un.org/documents/ga/res/48/a48r104.htm

Draft of the Domestic Violence Law of People's Republic of China, unofficial English translation, available at http://chinalawtranslate.com/en/domestic-violence-law/

Marriage Registration Regulations, adopted on August 8, 2003

Recommendation No. 1582 on Domestic Violence, adopted on 27 September 2002 by the Parliamentary Assembly of the Council of Europe.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted on December 18, 1979, for the full text of the Convention see http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm

The Marriage Law of People’s Republic of China, adopted on May 1, 1950

The Marriage Law of People’s Republic of China, adopted on September 10, 1980

World Health Organization, World Report on Violence and Health, No. 93, 2002, available at www.who.int/violence_injury_prevention/violence/world_report/en/

World Report on Violence and Health, World Health Organization, Geneva, 2002

Secondary Sources

***, China Mulls Family Abuse Law, Xinhua, November 25, 2014, available at http://news.xinhuanet.com/english/china/2014-11/25/c_133813641.htm

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***, Fallen Perspectives and a Counter-Model, available at http://johnmarkhicks.faithsite.com/content.asp?CID=69155

AMIRTHALINGAM, Kumaralingam, Women’s rights, International Norms and Domestic Violence: Asian Perspectives, Human Rights Quarterly, Vol. 27, No. 2, The John Hopkins University Press, 2005

CHINKIN, Christine, Violence against Women: The International Legal Response, Gender and Development, Vol. 3, No. 2, Taylor & Francis, 1995

DAVIDSON, Terry, Wifebeating: A Recurring Pheonmenon Throughout History, in Maria ROY (ed.) Battered Women: A Psychosociological Study of Domestic Violence, Van Nostrand Reinhold, New York, 1977

DOBASH, R. Emerson, DOBASH, Russel P., Violence Against Wives: A Case against the Patriarchy, The Free Press, New York, 1979

FRIED, Susana T. , Violence against Women, Health and Human Rights, Vol. 6, No. 2, The President and Fellows of Harvard College, 2003

HEISE, L., ELLSBERG, M. , GOTTENMOELLER, M., Population Reports XXVII: Ending Violence Against Women, John Hopkins School of Public Health, Baltimore, Center for Health and Gender Equity, Washington DC, 1999

HERSHATTER, Gail, State of the Field: Women in China’s Long Twentieth Century, The Journal of Asian Studies, Vol. 63, No. 4, Association for Asian Studies, 2004

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HUNG, Jean K.M., The Family Status of Chinese Women in 1990s, China Review, , Chinese University Press, 1995

JENKS, N., Ending Violence against Women: Regional Scan for East and Southeast Asia, UNIFEM, New York, 2002

LU, Hong, LIU, Jianhong and CROWTHER, Alicia, Female Criminal Victimization and Criminal Justice Response in China, The British Journal of Criminology, Vol. 46, No. 5, Oxford University Press, 2006

MEIJER, M.J., Marriage Law and Policy in the Chinese People’s Republic, Hong Kong University Press, Hong Kong, 1971

PALMER, Michael, Transforming Family Law in Post-Deng China: Marriage, Divorce and Reproduction, The China Quarterly, No. 191, Cambridge University Press, 2007

PARISH, William L., WANG, Tianfu, LAUMANN, Edward O., PAN, Suiming and LUO, Ye, Intimate Partner Violence in China: National Prevalence, Risk Factors and Associated Health Problems, International family Planning Perspectives, Nol. 30, No. 4, Guttmacher Institute, 2004

RAUHALA, Emily, China Has Finally Drafted a Domestic Violence Law, The Time, November 26, 2014, available at http://time.com/3606802/china-domestic-violence-law-spousal-abuse-legislation/

SEN, Purna, Development Practice and Violence against Women, Gender and Development, Vol. 6, No. 3, Taylor & Francis

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The United Nations, Violence against Women in the Family: What Causes Violence Against Women in the Home, in Helen M. Eigenberg (ed.), Woman Battering in the United States: Till Death Do Us Part, Waveland Press Inc, sl, 2001

TIEZZI, Shannon, China's Domestic Violence Breakthrough, The Diplomat, November 27, 2014, available at http://thediplomat.com/2014/11/chinas-domestic-violence-breakthrough/

WAN, Ming, Human Rights Lawmaking in China: Domestic Politics, International Law and International Politics, Human Rights Quarterly, Vol. 29, No. 3

WEN, Chihua, For Love or Money, China Daily, April 8, 2010, available at http://www.chinadaily.com.cn/cndy/2010-08/04/content_11091992.htm

XU, Xiaohe, The Prevalence and Determination of Wife Abuse in Urban China, Journal of Comparative Family Studies, Vol. 28, No. 3, Dr. George Kurian, 1997