There's too few restraining orders in China, the High Court is fixing that
How a new Supreme Court rule may offer domestic violence victims with better defense
On July 14, the Chinese Supreme Court issued a judicial interpretation of the Anti-Domestic Violence Law of 2016, which opened the door to more restraining orders to better protect victims of domestic violence.
The interpretation is hailed as a milestone in protecting domestic violence victims who have struggled to file for ROs in past years.
Your host did a brief Twitter thread just after the interpretation’s release but thought it warrants a newsletter to further explain the significance of this interpretation.
This newsletter will offer you the status quo of ROs in China, a more detailed walk-through of major changes brought about by the interpretation, and background deliberations for those changes based on current legal practices.
I
Chinese courts started issuing ROs as early as 2009. In May 2008, the Supreme Court launched a pilot program that allowed nine selected local level courts to issue ROs to protect domestic violence victims. In a 2009 news report, the Longwan court in Zhejiang province issued its first-ever RO as part of the pilot program.
Soon, lower-level courts started launching their own pilot programs. For instance, in 2010 Hefei Court launched a pilot program that included 8 local-level courts in its jurisdiction, and in 2013, the program expanded to cover all Anhui courts.
Based on years of experiment, the RO rule was codified in China’s Anti-Domestic Violence Law that came into force in 2016.
But for some regions, it took years before its court issued the first RO. In this report, a court in the Hubei city of Shiyan issued its first RO in April 2022, some 6 years after the ADVL.
Aside from the ADVL, another important document regulating ROs is a 2016 Supreme Court notice clarifying the proper legal procedures for applying for ROs.
According to a set of statistics presented by a Supreme Court justice, between the law’s coming into force in 2016 and the end of 2021, Chinese courts issued 10917 restraining orders, a modest number compared with the size of its population. The issue/application ratio has risen from 52% in 2016 to 73% in 2021. The denial/application ratio has dropped from 18.39% to 11.33% in the same period.
It’s worth noting that despite the relatively high rate of issuing ROs among all applicants, there’s a big difference between the number of RO applications and domestic violence complaint cases registered by the Police and Women’s Federation, suggesting that many domestic violence cases did not enter the court system. The disparity could be explained by the lack of awareness among the public of RO, the traditional reluctance to “air dirty laundry“ in public, and the concern that a failed attempt to obtain an RO may trigger escalated violence.
Statistics show that women make up most applicants for ROs, and case numbers vary by region. In Jiangsu and Chongqing, courts have issued more than 1000 ROs since 2016, but Tibet, Ningxia, Xinjiang and Hainan issued less than 200 in the same period. Generally, the number of ROs correlates with a region’s economic development level.
Stats also indicated a low violation rate of ROs. Of the 1205 ROs Jiangsu issued between 2016 and 2021, only 10 were violated, and the issuing courts chastised, fined, or detained the offenders.
The plight of domestic violence victims has come to the forefront of public discussion after a series of high-profile cases that sparked national outrage.
1. Shandong woman Fang Yangyang （方洋洋）died in 2019 after sustaining months-long abuse from her husband, father-in-law and mother-in-law. The father-in-law later received an 11-year sentence, the mother-in-law received a 6-year sentence, and the husband was sentenced to 20 months in prison with a 3-year probation.
2. Tibetan woman La Mu （拉姆）was burnt to death by her former husband in 2020. La Mu married her husband in 2009 and divorced in 2020. During their marriage, her husband Tang Lu repeatedly beat her. After their divorce, Tang asked La Mu to get married again and was refused. Tang then broke into her home one evening, poured gasoline over her and set her on fire. Tang was later given the death sentence.
3. Shanxi woman killed by her husband on the street in 2020. The husband scratched a car with his scooter on the street in Shuozhou, when his wife tried to stop him from running from the scene, he picked up a stone and beat his wife dead on the spot. The husband has been arrested by police, unclear what sentence he has been given.
China’s Supreme Court, aware of the calls to toughen up the ADVL, launched an initiative in 2021 to study possible enhancements to the RO rule. It studied individual cases, heard recommendations from local courts, compared relevant legislations from different countries, and consulted the Women’s Federation, the Police and Civil Affairs agencies.
In March 2022, the Supreme Court and six other governmental agencies issued an opinion to strengthen the RO rule.
II
There are 8 biggest changes brought about by the latest judicial interpretation.
1. Disassociating ROs from divorces. Article 1 of the interpretation clearly states that divorce lawsuits “are not a prerequisite for ROs“.
A Xinhua report added that applying for ROs
不需要先提起离婚诉讼或者其他诉讼，也不需要在申请人身安全保护令后一定期限内提起离婚等诉讼。
Does not need to first sue for divorce or other issues, nor does the applicant need to sue for divorce within a certain period after applying for ROs.
In an essay carried by China’s Women’s News, Qi Jianjian, an expert with the China Academy of Social Sciences, said the Supreme Court has implicated in at least three legal documents in 2016 and 2020 that RO applications should be independently handled from any other lawsuits, including divorce lawsuits.
An explainer by several Supreme Court justices noted that in reality, most applicants of ROs do not necessarily want a divorce.
But are RO applications associated with divorce lawsuits in practice? Here your host discovered conflicting evidence.
According to Supreme Court Justice Wang Dan, RO applications are not necessarily coupled with divorce lawsuits. In practice, some applied for RO after suing for divorce, while others raised independent RO requests.
However, a 2019 article by a Jiangsu law publication suggests that “applicants can only request restraining orders during divorce litigation, within 6 months after divorce litigation is concluded, or must sue for divorce within 15 days after requesting a RO.”
Other sources were more ambiguous about the prerequisite for RO applications, but most said in reality the majority of RO applications took place concurrently with divorce cases.
2. Lowering the bar for others to apply for RO on behalf of the victims.
The interpretation explicitly stated other than originally provided for by the ADVL, the elderly, the disabled, and those seriously ill may also ask others to file for ROs on their behalf. Civil Affairs Agencies, Disabled Persons' Federation, and organizations of the elderly approved by law are added to the organizations that may file for ROs at the victims’ request.
The interpretation notes that organizations can only represent the elderly, the disabled, and those seriously ill with their consent.
When the Supreme Court mulled over the interpretation, there were some who suggested adding schools, kindergartens, medicinal facilities and children’s welfare agencies to the list of organizations allowed to file for ROs on behalf of children. But the final text left out these organizations on the ground that they are already provided with that function by existing legal text and that adding them would be repetitive. In practice, when these organizations wish to file for ROs on behalf of children, the court may accept their application.
3. Expanding the definition of violence as the ground for ROs.
Article 2 of the ADVL defined violence as beating, tieing up, mutilating, limiting personal freedom, frequent verbal abuse, and threatening between family members. The interpretation expanded the definition to include freezing, starving, frequent insulting, defaming, threatening, and harassing.
The aforementioned explainer said despite contemporary legal theory and foreign legislation commonly considering sexual violence and economic control as forms of violence, they were not included in the interpretation. It said the issue of in-marriage rape still has much controversy in China’s legal circles and preserving evidence to support in-marriage sexual violence is more difficult than other forms of violence. Also, as the ADVL mostly focused on physical and mental violence, and the Supreme Court considered economic control as falling outside the scope of the ADVL. But the explainer noted that local courts are permitted to “explore and accumulate experience“, and left open the possibility that sexual violence and economic control may be included in future interpretations.
4. Expanding the actions restricted by the RO.
Telephoning, messaging, instant messaging, emailing the RO applicant or their close relatives to extend insult, defame and threat; Conducting activities that interfere with the normal activities of the applicant or their close relatives at their residence, school, or other frequented locations are now explicitly restricted by the RO, in addition to the actions originally covered by the ADVL.
5. Expanding the subject of the RO.
The ADVL covered “family members and non-family persons who live together.“
China’s Civil Code defines “family members“ as spouses, parents, and offspring, as well as siblings, grandparents, and grandchildren who live with the person in question.
The interpretation further clarified that non-family persons who live together include sons-in-law, daughters-in-law, parents-in-law, and guardians.
So now all of the above persons may be the subject of the RO.
The interpretation does not cover people who have divorced, ended a romantic relationship, or moved out after ending a romantic relationship because the court does not consider them “family or non-family persons who live together“.
It is hoped that the Women’s protection law, which is undergoing revision, will cover this group of people.
6. Clarifying the criminal punishment for offenders of the RO.
Article 34 of the ADVL states that violation of the RO may receive criminal punishment if their actions violate the criminal law, a warning, a fine of under 1000 yuan, or detention of under 15 days if their actions do not violate the criminal law.
But because the ADVL did not clarify by which criminal offence is committed violating the RO, the criminal punishment failed to become a powerful deterrent.
The interpretation clarified that violating ROs constitutes a"refusal to execute legal sentence" (拒不执行判决、裁定罪定罪), which carries up to 7 years of jail time. It’s worth noting that the court may also give verdicts on the other offences if the offender committed multiple offences.
7. Full protection of “tainted victim“.
Article 8 of the interpretation states that if the accused claim that the applicant is to be blamed partly for the violence, it should not affect the court’s decision to hand out a RO.
In practice, the accused often justify their violence by claiming that the victims are at fault and their violence was only in response to the faults. Common triggers of violence are extramarital affairs or abusing the elderly. In practice there are judges who consider the faults before deciding if a RO is warranted.
The interpretation made clear there’s no excuse for domestic violence and the idea of resorting to violence in response to perceived faults is wrong.
8. Lifting some burden of proof from the applicant.
This is perhaps the most significant change in the interpretation, so your host left it as the last point.
Abundant news reports and academic research suggest that unable to produce sufficient proof is the biggest reason why courts are not issuing enough ROs.
One reason is that under the ADVL, the bar for permissible evidence is relatively high and difficult for victims to gather; another reason is that different courts and judges often have different understandings of the RO, and some demand a high standard of proof from victims.
In the ADVL, permissible evidence includes Police reports, police warnings, or medical records. The interpretation treated expanded the list of permissible evidence to include: 1) personal account of the victim; 2) Police warnings or administrative penalty notice; 3) Police reports; 4) Written apologies of the accused; 5) Audio or video recordings of the violent actions or the settlement of violence; 6) Phone recordings, text messages, emails, instant messages between the applicant and the accused; 7) medical records; 8) Records of complaint from civil organizations or the employer of the applicant or the abused; 9) Testament of offspring, neighbours and friends; 10) Injury assessment records.
The interpretation says judges may base their decision on one or a combination of evidence from above.
The reason that the source of evidence is expanded beyond the police is that in practice some police officers may not treat domestic affairs seriously and fails to produce sufficient paperwork. The interpretation can also clearly inform the public on how to keep permissible evidence to prepare for a RO application.
The interpretation further lessened the burden on applicants by stating that only evidence to indicate “likely“ violence is sufficient, whereas in current practice, evidence needs to indicate that violence is “highly probable“.
The reasoning is that since issuing ROs is not the same as verdicts and does not necessarily assign blame, the standard of evidence for an RO should not be held to the same standard for a legal lawsuit. However, judges are cautioned against taking ROs as hard evidence in considering other civil lawsuits.