Essential Steps After Experiencing Domestic Violence
Domestic violence is a serious social issue that threatens the safety and dignity of victims, while also disrupting family harmony and social stability. The law strongly condemns and penalizes acts of domestic violence.
At the civil law level, the Supreme People’s Court addressed this issue by passing the Provisions on Several Issues Concerning the Application of Law in Handling Cases of Personal Safety Protection Orders on June 7, 2022 (the “Provisions”).
These Provisions, effective August 1, 2022, ensure the thorough implementation of the Anti-Domestic Violence Law and provide comprehensive protection for the legal rights and interests of domestic violence victims in marriage.
1. Definition of domestic violence
(1) What kind of behaviors constitute domestic violence?
Article 2 of China’s Law on Combating Domestic Violence defines domestic violence as both physical and mental aggression among family members.
This includes actions such as beating, binding, maiming, restricting personal freedom, frequent verbal abuse, and intimidation. Article 3 of the Provisions further clarifies domestic violence by including behaviors like freezing, starvation, frequent insults, slander, threats, stalking, and harassment.
(2) What are the boundaries or restrictions concerning domestic violence?
Violence can occur between spouses, between parents and minor children, between adult children and elderly parents, and between individuals living together outside the immediate family, such as daughters-in-law, sons-in-law, in-laws and others.
2. What to do when experiencing domestic violence
(1) Seeking relief
(i) Who are the eligible parties to seek relief?
In addition to the victim’s right to seek help, their legal representatives and close relatives are also entitled to report the situation and seek assistance. Furthermore, when domestic violence involves minors, schools, medical institutions, residents’ committees, and their staff have a mandatory obligation to report the abuse.
(ii) There are three primary methods to seek assistance after encountering Domestic Violence.
(a) Reporting to the police
To report domestic violence, call 110 or visit the nearest police station. For minor incidents, law enforcement may issue a warning or provide education to the aggressor. In more serious cases, the police will enforce public security management penalties according to the law. If the violence is especially severe and constitutes a crime, authorities will pursue criminal charges.
(b) Filing for a personal protection order from the court.
If someone has experienced domestic violence or is in immediate danger, they can apply to the court for a personal safety protection order. The court will issue or reject the application within seventy-two hours, or within twenty-four hours in urgent cases.
(c) Filing complaints with relevant organizations.
Complaints, reports, or requests for assistance can be made to the parties’ workplaces, residents’ committees, villagers’ committees, women’s associations, and other organizations. Upon receiving a complaint or request for help related to domestic violence, these units are obligated to provide assistance and address the situation.
(iii) Retain evidence of domestic violence.
(a) Medical records
After experiencing domestic violence, it’s crucial to visit a hospital and keep all medical documentation, such as diagnostic reports, medical records, hospitalization and discharge summaries, and medical bills. It’s also important for the doctor’s diagnostic records to detail the extent of the injuries and, if possible, specify the cause, such as “struck by an external force.”
(b) Evidence gathered following the report.
However, medical records alone may not be enough to prove that an injury resulted from domestic violence. To build a stronger case, it is advisable to keep police records, receipts, and notification materials. If possible, take photos of the victim’s and abuser’s interrogation transcripts from the police. Additionally, retain any warning letters or public security management penalty decisions issued by law enforcement.
Additionally, if law enforcement conducts an assessment of the victim’s injuries, it is important to retain the injury assessment report.
(c) Additional evidence.
This includes, but is not limited to:
① the abuser’s letter of apology or confession;
② records of requests for help and mediation from the village (neighborhood) committee, women’s federation organizations, anti-domestic violence groups, and the employers of both parties;
③ electronic evidence such as surveillance footage, video, and audio recordings; and
④ witness statements.
3. Personal Protection Order
(1) Do I need to file a civil lawsuit first to apply for a personal protection order?
Victims of domestic violence can seek a personal safety protection order directly from the People’s Court to promptly and effectively ensure their safety, without requiring the filing of a divorce lawsuit, such as divorce, as a prerequisite.
(2) Who can apply for the Personal Protection Order?
(i) The victim themselves.
(ii) Close relatives, public security authorities, women’s associations, residents’ committees, villagers’ committees, and relief organizations may apply for a protection order on behalf of the victim in cases where the individual is incapacitated, has limited civil capacity, is coerced or intimidated, or is elderly, disabled, or seriously ill, thus unable to apply independently.
(3) In which court should one apply to for a personal protection order?
File the application with the Basic People’s Court in the jurisdiction where either the applicant or the respondent resides, or where the domestic violence took place.
(4) What level of proof is necessary for granting a Personal Protection Order?
If there is a reasonable belief that the applicant is at risk of domestic violence or facing immediate danger, a personal safety protection order can be issued under the law without the need to establish a “high likelihood”. This approach reduces the burden of proof on the parties involved.
(5) How long does it take to issue a Personal Protection Order?
Upon receiving an application for a protection order, the People’s Court generally issues a ruling within 72 hours. In urgent cases, this ruling is expedited to within 24 hours.
(6) What does a Personal Protection Order include?
The measures may encompass one or more of the following options simultaneously, depending on the applicant’s request :
(i) Issuing an order to prevent the respondent from committing domestic violence.
(ii). Ordering the respondent to refrain from harassing, stalking, or contacting the applicant and their close relatives.
(iii) Directing the respondent to maintain a distance from the applicant’s residence, school, workplace, or other frequented locations
(iv) Directing the respondent to vacate the applicant’s residence.
(v) Additional measures aimed at ensuring the applicant’s personal safety.
(7) How long does a Personal Protection Order last?
The People’s Court sets the duration of the personal safety protection order based on the applicant’s request and the circumstances of domestic violence, typically up to six months. If continued protection is needed beyond this period, the applicant may request an extension of the order’s validity.
(8) Do applicants need to cover court costs for a Personal Protection Order application?
The People’s Courts accept applications for protection orders without requiring payment of litigation fees.
(9) What are the legal ramifications of breaching a Personal Protection Order?
(i) If the violation of a protection order is not severe and does not yet constitute a criminal offense, the People’s Court generally issues a warning. Depending on the seriousness of the case, they may also impose a fine of up to 1,000 yuan or a detention period of up to 15 days.
(ii) If the respondent violates a protection order to a degree that meets the criteria for the “crime of refusing to execute a judgment or ruling” as defined in Article 313 of the Criminal Law, they may face criminal penalties, including imprisonment for up to three years, criminal detention, or a fine. In cases deemed exceptionally serious, the punishment may range from three to seven years of imprisonment, along with a fine.
(10) What happens if the respondent is found to have violated a Personal Protection Order?
If the respondent violates the protection order, the applicant has the option to report the breach to either the People’s Court or the public security authorities.
4. Relationship between domestic violence and divorce
(1) Can domestic violence serve as a legitimate basis for divorce?
Domestic violence serves as a legal justification for establishing that the marriage has irreparably deteriorated and warrants a divorce. As stipulated in Article 1079 of the Civil Code, the court will grant a divorce upon substantiated evidence of domestic violence.
(2) It is not appropriate for the abusive party to directly care for the child.
In cases involving an abusive party, the court often recognizes the potential danger of domestic violence and deems it inappropriate for that party to have primary custody of the child. Therefore, unless the couple agrees otherwise on custody arrangements, the injured party typically receives custody of the child.
(3) Domestic violence constitutes legal misconduct, and if it leads to divorce, the innocent party has the right to seek compensation.
In cases of divorce resulting from domestic violence, the innocent party may pursue damages from the party at fault.
(4) The division of property in divorce is based on the principle of taking care of the party not at fault, and the abusive party may be given a smaller share of the property.
In cases of divorce related to domestic violence, the court may, depending on the specifics of each case, choose to allocate a smaller portion of the property to the abuser as a form of penalty, prioritizing fair treatment for the innocent party.
If you have any other questions, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Help ! Someone Punched Me In The Face.
If you were assaulted by someone in China, what would you do first? Sara (pseudonym) faced this problem just last month.
Sara was a foreign teacher in an international school until she received a termination notice from the school where she had been working for almost one year.
“However, when I arrived at the school for the handover, I found that the termination and compensation agreement was totally different with the one that I had signed a few days earlier, some pages were replaced. I was so angry that I wanted to tear up the agreement. When I grabbed the agreement, the HR punched me in the face!” Sara said, showing me a photo of her bruised face.
As an English-speaking lawyer specialized in providing legal services for expats in China (see my profile), I instructed her to press charges at police station and try to reach a settlement for compensation if possible. Although the HR denied punching Sara, through negotiation and the mediation of the police officer, both parties eventually agreed on compensation of RMB 10,000.
Sara may be just one of those cases. This article will give you some guidance on what to do if you are assaulted in China.
1. First step: reporting to the police
The first step is to go to the local police station nearest to the place where you were assaulted to report the assault. In most cases, the policeman may not understand English, you can hire an English-speaking lawyer to visit the police station with you (find our contacts in the website) and ask for the lawyer’s support.
If you are unable to visit the local police station for the reason that you are too injured to move or you are afraid of the assailant running away, then you may also call 110 (the police emergency number) and report the assault. The police officer will usually show up within 30 minutes and help you file a report.
2. Provide Information to the police
At the police station, the officer will require you to provide the following details about the assault and assailant:
(1) Your name, nationality, passport number, address.
(2) The assailant’ name, ID number, phone number; if you don’t know the above information, then provide his appearance description as accurately as possible.
(3) When and where the assault occurred.
(4) What happened during the assault (the course of events).
(5) Whether you were injured, and show the injuries.
(6) Whether there were any witnesses.
(7) Anything else about the assault.
3. Collect necessary evidence
- Obtain a hospital report on injury
If you’ve suffered a physical injury from the assault, you’d better go to hospital for examining the injury and getting a hospital report on injury. It can prove the severity of the injury and therefore, to some extent, affect the punishment that the assailant may receive if no medicolegal expertise is taken.
- If necessary, apply for medicolegal expertise
If necessary, you may apply to the police for medicolegal expertise and request a medico-legal report in order to preserve evidence. For an assault case, unlike the hospital diagnostic report, the medicolegal expertise can provide an authoritative assessment of the severity of injury and directly determine whether the assailant will face criminal or administrative sanctions.
- Gather potential witnesses
If the assault took place in the presence of witnesses, contact those witnesses and ask them to testify to the assault, their testimony will be vital for police to investigate the case.
- CCTV camera footage
Find out if there is a CCTV camera that recorded the entire assault, try to obtain the footage or ask the policeman to investigate the footage. It will help you to prove the assault when the assailant denies it.
4. Possible penalties of assault
- Administrative penalty for minor assault
For the minor assault that does not meet the criteria for a criminal offence, the assailant shall be detained for not more than 10 days and shall, in addition, be fined not more than 500 RMB, pursuant to Article 43 of Law on Administrative Penalties for Public Security (Revision 2012).
However, under the following circumstances: (i) gang-fighting; (ii) assaulting a disabled person, pregnant woman, or a person who is under 14 years old or over 60 years old; (iii) assaulting for more than two times, or assaulting more than two persons once, the assailant shall be detained for not less than 10 days but not more than 15 days, and shall be fined more than 500 RMB but less than 1000 RMB.
- Criminal penalty for serious assault
If the police determines that the injury resulting from the assault has constituted minor injury in criminal concept after inspection or medicolegal expertise, which has constituted the crime of intentional injury, the assailant shall be sentenced to fixed-term imprisonment of up to three years, criminal detention or public surveillance. However, for the assault causing severe injury, disability or even death, the assailant shall be sentenced to fixed-term imprisonment of more than three years, or even life imprisonment or death penalty.
5. Compensation from the assailant
- Settle with the assailant at police station
In the case of minor assault that does not meet the criteria for a criminal offence, the police officer will, if necessary and possible, try to persuade both parties to reach a settlement. Typically, the settlement will involve the assailant paying compensation to the victim, and victim withdrawing the charge against the assailant. The compensation usually includes the hospital treatment expense for injury and other compensation determined by both parties. Once the settlement agreement is reached and the assailant pays the compensation, the assailant will not face any penalties.
- File a civil case
If the parties fail to reach a settlement on compensation, the victim may file a civil case against the assailant. The compensation may include the cost of hospital treatment, nursing care, transportation and nutritional fee, hospital meal allowances, the reduction of income due to the injury, as well as compensation for mental injury (not exceeding RMB 5,000), the disability compensation (if disability results) or death compensation (if death results).
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
