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    Why Divorcing an Abusive Spouse Remains an Uphill Struggle

    Five years after China passed its landmark Anti-Domestic Violence Law, skeptical judges and onerous burdens of proof mean it’s still a challenge for accusers to win their cases in court.

    This article is part of Sixth Tone’s coverage on the fifth anniversary of China’s Anti-Domestic Violence Law. The other articles can be found here and here.

    Victims of domestic violence are often asked: “Why don’t you just get a divorce?” On the surface, filing for divorce seems like an effective way of ending a violent relationship. In practice, however, it rarely grants the relief victims are so desperately seeking.

    To understand why, it helps to know what accusers go through when they seek redress through the courts. According to China’s Supreme People’s Court, domestic violence was listed as a grounds for divorce in almost 15% of cases during the 2016-2017 period, the year after China’s anti-domestic violence law came into effect. That was second only to “a breakdown in emotional relations.” But when researchers at my law firm randomly sampled 257 divorce cases from the past year that involved accusations of domestic violence, we were disappointed to discover that, five years on, very few of these claims were being upheld in court. Of the 257 verdicts in our study, claims of domestic violence were upheld in only 8% of cases, and the court actually rejected the plaintiff’s request for a divorce roughly 65% of the time. The country’s anti-domestic violence law, meanwhile, was cited in just one verdict.

    Many of the accusations were ignored outright. We found that 66% of the judgments contained no response at all to the plaintiff’s claims of domestic violence, while 26% rejected the accusations.

    The main reason courts gave for not recognizing domestic violence claims was a lack of evidence, but the real problem was often an unreasonably high burden of proof. For example, in one case, the plaintiff described having been abused by the defendant on multiple occasions, and even violently attacked during her monthlong postpartum confinement at home. Additionally, she said she’d endured repeated abuse and harassment from her family, including threats made by the defendant that he would kill her mother. But the court’s ruling dismissed the accusations: “As the photographs (submitted by the plaintiff) only show the injuries, the court is unable to confirm who the person pictured in the photograph is, and so cannot accept them.”

    In another judgment, even though the plaintiff submitted documentation showing she had reported domestic violence to the local public security bureau, as well as interview records, a certificate for a medical examination, details of police reports, medical records, judicial evaluations, and photographs, the evidence was still deemed insufficient. The court ruled that her injuries were the result of a “physical fight between the two parties over family matters.” The ruling also stated that, “marriage doesn’t come easy, (and) the plaintiff should consider the emotional connection between husband and wife and take this chance to try for a reconciliation.”

    Such rulings, in which a person’s injuries are attributed to a fight, rather than abuse, are a common mechanism used by courts to dismiss claims of spousal abuse. “One-sided assault,” “intimidation and threats,” and “mutual assault” are just some of the euphemisms most frequently used by Chinese judges in place of “domestic violence.” Ironically, China’s anti-domestic violence law makes it clear that the first two do in fact fall under the heading of domestic violence. As for mutual assault, a so-called guiding case published by the Supreme People’s Court — a non-binding precedent meant to help guide lower courts to the correct judgment — includes a litmus test to determine if a fight was domestic violence or a mutual altercation. It instructs judges to take into account the intentions of both parties in using violence, the location and severity of their injuries, and their comparative physical strength. Nevertheless, many judges continue to classify any mutual violence as quarreling or fighting between the two parties.

    Even the plaintiffs who do manage to prove their claims don’t always win in court. Our study turned up three cases in which the judges had classified the defendants’ behavior as domestic violence, but still refused to grant the plaintiff a divorce, giving reasons like “the couple’s relationship has not completely broken down,” and recommending the plaintiff “spend more time thinking about the child’s healthy upbringing and give the defendant another chance.”

    Indeed, children pose another challenge to domestic violence victims defending their rights in court, as the rulings we examined rarely took spousal abuse into consideration when determining custody. In more than half of the 13 cases in which the defendant was found guilty of committing domestic abuse and divorce was granted, the judge still gave custody of at least one of the couple’s children to the defendant. Rather than take domestic violence into account in their final judgments, judges instead considered factors such as the child’s preferences, the child’s living environment, the caregiver’s financial situation, and the informal practice of “giving one child to each parent.”

    Although some of these considerations may seem understandable in a vacuum, they frequently work against the victim’s interests. When a victim leaves home because of domestic violence, the child is often left in the perpetrator’s control, and there is no way to say for sure whether a child’s willingness to stay with them reflects their true desires. Meanwhile, taking into consideration the couple’s respective financial situations ignores the victim’s general economic disadvantage within their families, which further deprives them of their rights.

    It’s worth noting that many victims of domestic violence are not even included in these statistics, as they simply abandon their uphill struggle for custody in order to bring the violent relationship to an end as soon as possible.

    Five years after China’s anti-domestic violence law came into effect, the harsh realities of pursuing perpetrators in court continue to discourage accusers from seeing divorce as a truly viable path to escaping a violent marriage. If that’s ever going to change, China urgently needs detailed judicial interpretations of the anti-domestic violence law, training for judges in the nature and consequences of domestic violence, and a more effective judicial approach to the prevention and treatment of spousal abuse.

    Translator: David Ball; editors: Cai Yiwen and Kilian O’Donnell.

    (Header image: Moment/People Visual)