Text/ Chen Liyuan
Recently, an article titled "Another "Ram"" swept the screen. In the article, former media person Ma Jinyu accused him of suffering long-term domestic violence, and was beaten by her husband Tashi to fractures, fainting, urinary and urinary incontinence, and blurred vision.
Previously, the "love fairy tale" of Ma Jinyu and her beekeeper husband had been reported by mainstream media several times and became a beautiful talk. In 2012, Ma Jinyu met bee farmer Tashi in an interview, and 47 days later, the two married and lived in Guide County, Qinghai Province. Ma Jinyu once said that her husband Tashi's heart was "as clean as a spring on the mountain" and he met love. But she also said bluntly in an interview that in the e-commerce business run with her husband, cultural differences have had an impact on the relationship between the two.
The truth of the matter remains to be investigated. However, this article also makes domestic violence a hot topic of public discussion again. In 2020, the Ram case and the Shandong woman's infertility abuse and death case have aroused public concern.
Why is the problem of domestic violence so difficult to solve? Previously, China News Weekly interviewed a number of marriage and family lawyers, criminal lawyers, former civil judges and heads of non-governmental organizations transformed by the police, trying to clarify from their perspectives and work experiences which systemic problems persist before and after a domestic violence.
It is difficult to identify and the threshold is high
"In the cases we take, the ones that can be identified as domestic violence should be about 6% to 10%." Yi Yi, a lawyer at Beijing Jiali Law Firm, believes that the gap between domestic violence recognized by law and domestic violence understood by the public is the fundamental reason why many domestic violence cases are "invisible" at present. Difficulties in obtaining evidence and making determinations are obstacles to domestic violence being recognized by law.
Domestic violence often occurs in an instant, and most of it occurs in private places. In the post-incident evidence collection, many victims of domestic violence do not know what kind of evidence to take, nor do they know what kind of injury appraisal should be done, which leads to the fact that the evidence in most cases cannot be used, "such as local scar photos, the first can not prove that it is you, the second can not prove that it is caused by the other party's beating." Yi Yi said.
In the determination of legal evidence, the relevance and continuity of the evidence are required. Yi Yi revealed that in the current determination of domestic violence, it is necessary to effectively determine the existence of continuous harmful behaviors and form circumstantial evidence into a chain of evidence in order to be recognized by the court. This requires victims of domestic violence not only to provide local scar photos, but also to take full-body photos of the exposed face, in addition to the diagnosis records of the hospital, and even written or recorded evidence of the perpetrator's side acknowledgment of the violence.
"So we will find that this forensic standard is very high." In yi Yi's case, minor injuries caused by domestic violence are difficult for the court to determine as a basis for divorce, "but in fact, minor injuries are already very serious, and minor injuries can be administratively detained." ”
The difficulty of defining domestic violence and family disputes is the reason why it is difficult for public power to "intervene in domestic affairs".
Zhang Fengchun, a lawyer at Beijing Weiheng Law Firm, was a judge in the Parents' and Children's Rights Protection Collegial Panel of the Wang Siying Court of the Chaoyang District People's Court before specializing in marriage and family cases. In her past judicial work, she has found that domestic violence and family disputes are often difficult to define. For example, both parties were injured; one party had verbally abused the other party for a long time before the violence, resulting in violence by the other party; and unconscious injuries in the fight between the two parties led to the determination of domestic violence with a special and high threshold.
Domestic violence and recurrent family disputes are difficult points in distinguishing victims of domestic violence. Zhang Fengchun concluded that whether during his time as a judge or as a lawyer, he would find that victims of domestic violence cringed and repeatedly when they resorted to the law. Whether they have suffered cold violence, verbal violence, or physical violence as defined by law, one party is mentally controlled for a long time because of the other party's behavior, and largely loses the ability to respond correctly. "Relationships are extremely unbalanced, and a large percentage of people who actually experience domestic violence are unable to protect themselves."
A number of lawyers told China News Weekly that the termination of domestic violence is closely related to the subsequent handling of the behavior.
"Putting aside the difficulty of the early stages. For example, she asked me, if I could be sure, what would I get? Judges and lawyers for many years of judicial work still make Zhang Fengchun feel that it is difficult to answer this, in the current case handling, the psychological compensation after the determination of domestic violence cases is often ignored, the rapid improvement of material life and the gap in spiritual compensation make the psychological problems of many victims of domestic violence always difficult to ignore.
On February 3, 2013, the divorce case of Li Yang, the founder of Crazy English, was pronounced, and the court found that Li Yang's domestic violence was true, ruled that the two divorced, and compensated his wife Li Jin with 50,000 yuan in spiritual consolation money.
"In reality, 100,000 (spiritual consolation money) is high. What can 100,000 do now, even depression can't be cured. Zhang Fengchun said.
The follow-up problems of domestic violence perpetrators are still complex, and solving the problems requires more complete and scientific supporting measures. Zhang Fengchun introduced that at present, some countries will carry out compulsory treatment for perpetrators, until the relevant institutions issue evaluation reports to determine that they have "returned to normal", and the compulsory treatment measures can be lifted.
"It's not a matter of law, it's a matter of enforcement"
On March 1, 2016, the Anti-Domestic Violence Law of the People's Republic of China (hereinafter referred to as the Anti-Domestic Violence Law) came into effect. The Anti-Domestic Violence Law explains that domestic violence refers to physical, mental and other violations committed by family members by means of beatings, binding, maiming, restriction of personal freedom, and frequent verbal abuse and intimidation.
"What can really be used is not the domestic violence case itself." Zhang Fengchun told China News Weekly that because of the high threshold for the determination of domestic violence, the anti-domestic violence law after its promulgation has been used more in the application of judicial practice in the custody struggle and division of property in divorce cases.
To a certain extent, this "wastes" the original meaning of the Anti-Domestic Violence Law.
Li Ying, a lawyer at Beijing Zhenbang Law Firm, offers another perspective on the current state of the Anti-Domestic Violence Law. Li Ying said that the reason why the Anti-Domestic Violence Law has not been used reasonably after its promulgation is more of a problem in the implementation stage than the law itself.
"Although the Anti-Domestic Violence Law is not so perfect, in general, there are systems in place." Li Ying believes that the provisions of the Anti-Domestic Violence Law on how public security organs should handle the police, the use of the "Warning Letter", the application of the mandatory reporting system, the application of personal safety protection orders and even legal aid have been more systematic, but they have not been fully understood and used.
On November 25, 2020, the Supreme People's Court, together with the All-China Women's Federation and the China Women Judges Association, held a press conference, and Zheng Xuelin, member of the Adjudication Committee of the Supreme People's Court and president of the First Civil Division, said that as of the end of December 2019, courts across the country had issued a total of 5,749 personal safety protection orders, effectively curbing the occurrence of domestic violence.
"More than five thousand copies have been issued in so many years, such a big country." Li Ying sighed.
Li Ying believes that if the system is not "activated", the judicial organs cannot understand the use of the Anti-Domestic Violence Law, and everything is empty talk. Lower the threshold for domestic violence recognition, and habeas corpus can meet the demand. Li Ying revealed that as of now, among the parties she represents, she has not successfully applied for a warning letter in Beijing, and in the breakup violence represented by the "Ram case", the deterrent effect of the warning letter cannot be ignored.
In addition to "quantity", the "quality" of execution has been repeatedly mentioned by many lawyers in interviews.
"One of the things I'm most afraid of hearing is that we've followed the process. It's scarier than not dealing with it. Li Ying believes that if public power cannot deal with domestic violence in a timely and effective manner, it will cause the public to lose confidence in the authority of the law and public power. In the handling of domestic violence cases in the past, immediacy and effectiveness are the most important issues, if the police intervene and deal with domestic affairs, husband and wife quarrels and other processes, the domestic violence party can easily have discouraged thoughts such as "the police cannot protect me" and "the Anti-Domestic Violence Law has no effect".
In the handling practices of relevant departments, the alarm of domestic violence cases is often handled as a family affair, "They really think that this is a matter between husband and wife." Zhang Fengchun said that in reality, in domestic violence cases, public power is often difficult to intervene under many factors, and institutions such as the Women's Federation lack coercive power and play more psychological counseling.
After the implementation of the Anti-Domestic Violence Law, Li Ying has been committed to the training of grass-roots law enforcement personnel across the country, such as public security, women's federations, lawyers, and social workers. She found that the obstacle to the effectiveness of the Anti-Domestic Violence Law is fundamentally a problem of publicity and training, and many front-line judicial and law enforcement personnel do not even know that there are warning letters, and do not know much about the specific provisions, remedies and self-responsibilities in the Anti-Domestic Violence Law.
A grassroots judge told Li Ying in communication that the reason why she did not issue a habeas corpus order was because he believed that only divorce needed a habeas corpus order. Li Ying explained that habeas corpus is an independent procedure, the purpose of which is to isolate the violent environment of both parties, and it has nothing to do with whether they are divorced or not, and there is no need to be attached to divorce proceedings. And because the program plays the role of a "security wall", the threshold must be low, otherwise it will not work.
After the tragedy of Ram, many netizens called for the establishment of the Ram Act. But as professionals, we really think that it is not a matter of law, we have the Anti-Domestic Violence Law, it is a matter of enforcement. Li Ying said.
Learned helplessness
In interviews with China Newsweek, learned helplessness was a high-frequency word in the mouths of respondents to describe victims of domestic violence they had come into contact with.
Public information explains that learned helplessness refers to a person experiencing failures and setbacks, and when an uncontrollable negative event or failure result is attributed to his own intelligence and ability, a diffuse, helpless, and depressed state will appear, and a feeling of helplessness will also arise.
Feelings of helplessness, stimulated by long-term violence, often lead to extreme events, and criminal lawyer Peng Yixuan is deeply touched by this.
"In fact, what I see more is a backlash – frequent domestic violence can stimulate the energy of the weak to resist." Peng Yixuan revealed that this energy is explosive and rebounding. At this time, the long-term victim will turn into a perpetrator, because of the imbalance of power, the abuser at this time will often take covert and extreme behavior, such as poisoning, knife cutting, etc., "even directly while asleep to suffocate." ”
Peng Yixuan concluded that there are often two trends in long-term domestic violence, one is to lead to extreme resistance of the perpetrators, resulting in criminal cases, and the other is to be abused to death. For the latter, he believes that it has a lot to do with the current social atmosphere, and after domestic violence occurs, it is often not considered to involve public interests, and it is still a private matter in the eyes of the people around it.
"Many times, the victim's state of inability to resist, not wanting to resist, and unable to resist is still relatively obvious." The occurrence of domestic violence is widespread and has no significant link with occupation or education level. Peng Yixuan recalled that 7 or 8 years ago, he once received an elderly female client of a high-level intellectual. During the communication, the person concerned has been staring at the crack in the door, worried that her husband will break in at any time. She told Peng Yixuan that she had suffered domestic violence since she was young, but because both were intellectuals with high professional titles, no one believed that they had been abused for a long time. "Later, there was no divorce proceedings. She feared that if the divorce did not get rid of him, it would lead to more serious violence. ”
Habeas corpus is therefore particularly important for victims of domestic violence.
"At least to separate the perpetrator from the victim, that's the most important thing." Yi Yi revealed that in the current judicial practice, habeas corpus is still limited to deterrence. "If the intervention of public power cannot control the situation at that time, it is to some extent conniving at the continuation of domestic violence."
Li Ying stressed that in order to recognize the real danger of domestic violence, the current threshold should be lowered when the parties apply for a personal protection order, and the parties should not be required to provide particularly sufficient evidence, but there should be an explicit condition that can be applied.
Li Ying believes that the difficulty of applying for habeas corpus is related to the misunderstanding of habeas corpus orders by some judicial personnel. They believe that once a habeas corpus order is issued, it is determined that domestic violence exists, which involves divorce damages and will have a substantial impact on divorce cases. "The admonition is evidence of domestic violence and may have a substantial impact on divorce cases, but a habeas corpus order is a procedural protection for the victim, not a concept of evidence."
Even if you can successfully apply for a habeas corpus order, the enforcement is still a doubt in the minds of many legal practitioners. Zhang Fengchun introduced that the current provisions of the habeas corpus are that the court shall enforce it and assist the police station and the neighborhood committee. However, it is not clear how to assist and how much assistance will be provided. Up to now, none of the cases represented by Yi Yi have entered the enforcement level.
"Linked" social experiments
"The solution of domestic violence is not a problem of a single organ or individual, nor is it a problem of a certain group, and the solution of this universal problem requires the linkage of the whole society." Yi Yi said that the linkage is that when a domestic violence occurs, the relevant public power organs, organizational bodies, groups and individuals involved can play their respective roles.
The anti-domestic violence public welfare organization "Jianli Women and Children's Rights Protection Association under the Blue Sky" (hereinafter referred to as "Under the Blue Sky"), founded by Wan Fei, is a successful experiment that has been recognized at present.
Before professionally engaging in anti-domestic violence public welfare activities, Wan Fei was a police officer of the legal brigade of the Public Security Bureau of Jianli County, Hubei Province. More than 30 years of police career has given him a deep understanding of the pain points and difficulties of domestic violence.
In Wan Fei's view, the core of the anti-domestic violence linkage mechanism is coordination. "Multi-departmental linkage, cross-regional, cross-field, many are at the same level, who listens to whom?" In this case, non-governmental organizations have become a link, connecting organizations such as women's federations, police stations, and courts, so that people who encounter domestic violence can find ways and paths to solve problems, and reduce the encounters of victims who run into walls everywhere.
"[The victims] need counsellors, so we go to counselors; when children need to study, we go to the education department through the Women's Federation; the police are coming, and we know how to help to stop the violence." In this kind of point-to-point linkage, Wan Fei has explored some tricks.
Whether "under the blue sky" is replicable and continuous is the focus of the current judicial practitioners.
Some interviewees told China News Weekly that "Under the Blue Sky" has become a well-known non-governmental organization in the field of domestic anti-domestic violence since its establishment, but is the success of "Under the Blue Sky" related to Wan Fei's previous police career? Do others have similar capacities to communicate with public authorities at all levels? Can similar linkages be successfully carried out elsewhere? This makes them look forward to it.
Wan Fei was also thinking about the same question, "Can this thing be done well elsewhere?" ”
After summarizing the linkage experience of "under the blue sky", in 2017, Wan Fei spread the "under the blue sky" from the surrounding counties and cities, and he found that the early activities were indeed inseparable from the familiar soil, but since then, the smooth development of "under the blue sky" in other places has made Wan Fei believe that the core of the linkage is universal. "What we provide is the method of communication and coordination experience to attract the attention of the local women's federation, public security and other departments." At the same time, Wanfei has long provided training services for public security and other departments in various places, and in the training, the awareness and common sense of anti-domestic violence have been slowly established.
In the past 5 years, many departments of the "Under the Blue Sky" linkage have changed their hands, but Wan Fei feels that the work is still smooth.