Wednesday, May 5, 2021
Peter Chan and Huina Xiao (City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law and Faculty of Law, Macau University of Science and Technology) have posted Weak Criminalization of Domestic Violence in China: Two Key Weaknesses (15 Journal of Comparative Law 2: 88-111 (2021)) on SSRN. Here is the abstract:
This article deals with the difficulties that arise from the limited criminalization of domestic violence, in both substantive and procedural terms, by the criminal justice system. Thus, substantive law is weak in at least four respects: the law does not effectively define and punish domestic violence, enforcement provisions in the law are weak and ambiguous, the overall objectives of the substantive law are inconsistent, and the law does not give sufficient guidance to law enforcement agencies in their handling of incidents of domestic violence. In terms of the processes of criminal justice, the frailties are perhaps even more serious. Thus, there is a failure by the police in their law enforcement work to give sufficient weight to domestic violence cases—the police (public security personnel) often consider such cases to be ‘merely’ family matters. A second key weakness is that the provisions of Chinese criminal procedure provide only a very limited deterrence regime regarding domestic violence, as evidenced in the low prosecution rate, the fact that the overwhelming majority of prosecutions and convictions relate to physical forms of domestic violence (so that non-physical forms of domestic violence are basically in practice ignored in the criminal justice system), a less robust approach to police intervention as an instrument of deterrence in less developed areas, and inconsistent conviction and sentencing. Also, the police are not incentivised sufficiently to implement and to enforce the protection order system, perhaps most markedly so in the more underdeveloped areas of China. To a significant extent, this weakness reflects a performance appraisal system that prioritises detection work in what are regarded as more genuinely serious criminal cases. Important too in explaining the problem of limited police impact is the practice of pre-trial cooperation between the police, the procuracy and the courts. Here, the police definition of the situation prevails, with the agencies inclined to allow the police characterisation to prevail. So, in effect, law enforcement agencies combine to restrict access to gender justice.