No lenient punishment, experts interpret the top ten typical cases of domestic violence in the Supreme People's Court: Domestic violence is not protection against family disputes | Huang | Domestic violence

Recently, the Supreme People's Court released the top ten typical cases of domestic violence, and marriage law expert and part-time vice chairman of the Xuhui District Women's Federation in Shanghai, lawyer Tan Fang, analyzed the new changes involved in these cases.

The situation of using violence to control violence affects conviction and sentencing

"The top ten cases cover two fields: criminal and civil, with four of them being criminal cases." Tan Fang analyzed that Case 1 and Case 3 were approached from the perspective of the perpetrator, clearly distinguishing between domestic violence and domestic disputes. The man committed violence under the influence of alcohol, resulting in his wife's death on the spot, and was found guilty of intentional homicide and sentenced to death with a reprieve. When determining the crime and punishment of the perpetrator, their criminal responsibility cannot be reduced due to the inducement of domestic violence, alcohol and drug abuse, etc. Case 2 and Case 4, from the perspective of domestic violence victims, clarify whether it constitutes a crime and the determination of criminal circumstances, fully consider the defense factors and fault responsibility in the case, and pay attention to the special physical and mental effects that long-term domestic violence may have on the victim.

Case 2: Fang had an affair during marriage and engaged in long-term domestic violence against Yao, and later forced Yao to divorce. Yao couldn't bear domestic violence and killed Fang while he was sleeping, using a steel pipe and a kitchen knife. After the incident, Yao voluntarily surrendered to the police. The court determined that Yao's intentional homicide was "relatively minor", and considering that Yao's behavior received forgiveness from Fang's parents and that Yao still had four children to support, the court ultimately imposed a relatively lenient punishment.

Tan Fang pointed out that this case is the first to apply the "Opinions on Handling Domestic Violence Crimes in Law", which considers the situation of violent women using violence to control violence as a case of intentional homicide with lighter circumstances. It is also the first case where the opinions of expert witnesses on domestic violence issues have been adopted.

Article 20 of the "Opinions on Handling Domestic Violence Crimes in accordance with the Law" stipulates that intentional killing of the perpetrator due to serious domestic violence causing significant physical and mental damage; Or intentionally killing the perpetrator due to unbearable long-term domestic violence, if the criminal circumstances are not particularly heinous and the means are not particularly cruel, it can be considered as intentional homicide as defined in Article 232 of the Criminal Law, with a relatively minor circumstance. In this case, the court adopted the opinion of experts with legal and psychological expertise on how to determine that "the crime was not particularly heinous and the means were not particularly cruel". It was found that Yao had suffered from domestic violence for a long time, and although he used two types of weapons to kill the victim, the main purpose was to prevent further serious domestic violence in the future. There were also cases of confession and remorse after the incident, which met the aforementioned situation of intentional homicide with "relatively minor circumstances". Introducing expert witnesses with professional knowledge can help judges clarify the criminal motives and behavior patterns of domestic violence victims, restore the truth, and make judgments that are both fair and humane.

In anti domestic violence cases, how to determine whether the resistance against domestic violence is inappropriate has always been a concern. Article 20 of the Criminal Law stipulates that actions taken to stop illegal infringement in order to protect the interests of the state, public interest, personal, property, and other rights of oneself or others from ongoing illegal infringement, which cause harm to the illegal infringer, constitute legitimate defense and shall not bear criminal responsibility. If legitimate defense clearly exceeds the necessary limit and causes significant damage, criminal responsibility shall be borne, but the punishment shall be reduced or exempted.

In case 4, Zhang committed long-term domestic violence against Qiu. During the separation period between the two parties, in order to prevent Zhang Moujia from continuing domestic violence against the child who had just had his auricle reconstructed and himself, Qiu Moujia used a fruit knife at the head of the bed to stab Zhang Moujia, causing him to be seriously injured at level two. The court held that Zhang first assaulted Qiu and his child, and Qiu only used a fruit knife when he tried to stop Zhang from assaulting the child with his bare hands. Her behavior did not exceed the necessary limits and met the conditions for legitimate defense, and she did not bear criminal responsibility.

"Due to the unequal relationship between the perpetrator and the victim of domestic violence, the judgment of 'appropriateness' should be based on the need to stop and protect the defender from illegal domestic violence." Tan Fang pointed out that in such cases, incorporating the severity of previous domestic violence and the special psychology of the victim into necessary considerations is a unity of reason and law, as well as a maintenance of fairness and justice.

Issuing personal safety protection orders and conducting follow-up visits to ensure more comprehensive protection

In recent years, the practical effect of personal safety protection orders has attracted social attention. Among the ten typical cases released this time, cases 5, 6, and 7 start from the perspective of personal safety protection orders, clarifying that the types of domestic violence include mental harm, and the application objects of personal safety protection orders include lovers after cohabitation. They also shared their practical experience in the online review process and follow-up and supervision system of personal safety protection orders.

In Case 7, Ye filed a lawsuit with the court regarding the custody dispute of Huang's cohabiting children. The two once lived together and had a daughter. After breaking up, Huang threatened Ye and his family to hand over the child, otherwise extreme measures would be taken. Huang also purchased chili water products in an attempt to put the threat into practice, and Ye applied for a personal safety protection order to the court based on this.

The court believes that the end of cohabitation does not necessarily mean the end of the dispute. When facing violence or a real danger of violence after cohabitation, the victim can also apply for a personal safety protection order. In this case, although Huang did not commit any specific actions, based on evidence such as surveillance footage and purchase records, the court determined that there was a high possibility of Ye facing a real danger of violence and issued a personal safety protection order, ruling to prohibit Huang from harassing, tracking, threatening, or assaulting Ye and his child.

"When a party suffers from domestic violence or faces the real danger of domestic violence, they can apply for a personal safety protection order to the people's court. The personal safety protection order applies to people living together between family members or outside of the family." Tan Fang introduced that with the promulgation and revision of the "Anti Domestic Violence Law", "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Personal Safety Protection Order Cases", and the "Women's Rights Protection Law", the scope of application of personal safety protection orders has gradually expanded, covering multiple stages of love cohabitation, marriage, termination of love relationships, and divorce, allowing more victims to receive judicial relief.

This spirit is also reflected in the Shanghai Women's Rights Protection Regulations. On January 1, 2023, the Shanghai Women's Rights Protection Regulations were officially implemented, marking the first time Shanghai has established local regulations in the form of regulations to protect women's rights. Article 23 stipulates that it is prohibited to entangle or harass women, disclose or disseminate women's privacy and personal information on the grounds of love or friendship, or after terminating a romantic relationship or divorce. Women who suffer from the above-mentioned violations or face real risks of such violations may apply to the people's court for a personal safety protection order. On February 3, 2023, the Minhang Court issued the first personal safety protection order for a woman after terminating a romantic relationship in Shanghai, allowing the woman and her close relatives to be free from harassment and threats from the man.

In Case 5, the court established a system of personal safety protection order follow-up. During the validity period of the personal safety protection order issued by the court, the court learned during a telephone follow-up that the man threatened to expose the woman's privacy and intended to control her. He also went to the woman's unit to find his two main leaders and disclosed the woman's privacy related content, causing serious damage to the woman's normal working environment and social foundation. The man's actions fall under the category of "mental violence" defined in the Anti Domestic Violence Law, and the court has therefore imposed a detention decision on the perpetrator.

"After issuing a personal safety protection order, some perpetrators will stop violent behavior based on legal deterrence, while others will disregard the law for various reasons. Therefore, the implementation of personal safety protection orders is very important. Tan Fang introduced that various departments in Shanghai have been exploring joint cooperation against domestic violence in recent years." After the court issues a personal safety protection order, the police station, neighborhood committee, village committee, women's federation and other departments will assist in regular follow-up visits, joint supervision, timely detection, timely prevention, and effective protection of victims. "

Anti domestic violence work requires multiple interventions

Among the 10 typical cases, there are 3 divorce dispute cases, which clarify the special evidence rules of domestic violence and the impact of domestic violence on divorce cases.

In Case 9, Zhang and Zou registered their marriage in April 2007, and their conflicts gradually increased since the birth of their son Zou Xiaomou. In June 2010, due to Zhang's improper relationship with other members of the opposite sex, Zou twisted several telephone wires into one and beat Zhang. Afterwards, Zou often insulted Zhang and started beating and scolding him whenever he encountered any difficulties. Zhang felt guilty and never fought back because he had done something wrong first. In June and July 2013, Zou suspected that Zhang had an improper relationship with other men, so he pressed Zhang on the floor of his home and beat him, causing bleeding in his mouth. On November 24, 2018, Zou scratched Zhang's face and clothes with a paper cutter, causing injuries to other parts of Zhang's body. Zhang then reported to the police and underwent an injury assessment, which showed that the injury was minor. Zhang applied to the court for divorce and requested that his son Zou Xiaomou be raised by Zhang, citing several instances of domestic violence against him over the years. Zou believes that Zhang had an affair earlier and was at fault. His argument with Zhang was a common behavior between husband and wife, and he did not engage in serious, frequent, or persistent beating or persecution of Zhang, which did not constitute domestic violence. He does not agree to divorce and requests to jointly raise his son Zou Xiaomou.

The court's effective ruling holds that although Zhang was at fault in his marriage, Zou cannot use violence to solve the problem. The final court ruling allowed both parties to divorce, and Zou Xiaomou was raised by Zhang. "This result clearly responds to the debate between both parties and also demonstrates to the public the impact of domestic violence on divorce cases. Firstly, according to Article 2 of the Anti Domestic Violence Law, severity, persistence, and regularity are not the constituent elements of domestic violence."; Secondly, when dealing with divorce disputes involving the ownership of child custody rights, according to the principle of most favorable to minors, the perpetrator should generally not directly raise the minor children.

It is worth mentioning that domestic violence often has a private nature, and it is highly likely that only underage children have witnessed it, making it difficult for many domestic violence cases to be identified and dealt with in a timely manner. In this case, the court entrusted the family investigator to have a conversation with Zou Xiaomou. Zou Xiaomou told the family investigator that he had seen his parents arguing at home, his father hitting his mother, and her mouth was bleeding. Considering that Zou admitted that he did argue with Zhang with physical contact, the court determined that Zou committed domestic violence. The court's acceptance of testimony provided by underage children that is appropriate to their age and intelligence, and the determination of the perpetrator's domestic violence behavior, when it can be corroborated with other evidence and meets a higher likelihood standard, is not only conducive to fully protecting the victim, but also has guiding significance for the trial practice of domestic violence disputes.

In case 10, Zheng committed long-term domestic violence against Li and his child. After applying for a personal safety protection order, Li filed a divorce lawsuit with the court. During the delivery of documents, Zheng obstructed judicial staff in carrying out their duties and was detained by the judiciary for 15 days. This detention also made Zheng no longer disregard the legal authority, maintain relative rationality in communication, and no longer engage in domestic violence against Li and his child. During the trial of the case, the court noticed that the child had psychological problems due to domestic violence and promptly initiated psychological intervention procedures to heal the child's psychological trauma. After the verdict of the case, in order to prevent Zheng from committing domestic violence again, the court sent a letter to the police station and neighborhood committee requesting relevant departments to pay close attention to the prevention of civil to criminal conversion, and fully informed Zheng of his litigation rights to guide him to express his opinions through the law. In the end, Zheng did not engage in any further extreme behavior and the case was resolved.

"Divorce cases involve personal relationships, especially domestic violence, which can have a significant impact on the psychological well-being of victims. The final judgment may not represent a resolution of the dispute, and multiple measures need to be taken to show the legal sword to the abuser and provide victims with various types of assistance in order to truly achieve the conclusion of the case." Tan Fang pointed out that domestic violence is a very complex social problem. From preventing domestic violence to stopping domestic violence, and then to victims getting out of the haze of domestic violence, it is difficult to achieve any link solely relying on the power of one person or organization. Multiple departments need to intervene together to fully protect the legitimate rights and interests of victims. Shanghai is also gradually establishing and continuously improving this integrated system of prevention, punishment, and assistance.