当前位置:首页 >

Women’s Self-Defense and Legal Reform in China:Discussing from Women Victims’ Oral Accounts
[Abstract] According to 11 women’s oral accounts, my paper will show the similarity of these women’s psychological conditions at the time when they killed their husbands after suffering from long-term abuse. It will also discuss the current Chinese legal framework dealing with domestic violence and relevant provisions, especially the Criminal Law. Finally, the suggestions to the legal reform concerning women’s self-defence against their abusive husbands in China will be put forward.

Ⅰ.The Common Characteristics of 11 Women’s Psychological Conditions

These 11 women’s oral accounts are from the sub-project titled “Oral Accounts by Women Victims of Spousal Violence”, which is affiliated to the Project of Domestic Violence in China. All these female narrators committed the crime because of their self-defense against husbands’ violence. Their psychological conditions are similar in many aspects when they killed the batters.

Case 1. She is a rural woman. After giving first birth to a girl, she was widely abused and hit by her husband. Her husband and her mother-in-law were far more dissatisfied with her after her second daughter was born, let alone taking care of her in confinement. Instead, she had to serve her husband with her weak body. When her husband attempted to abandon their less-one-month-old daughter in the heavy snow, an idea of killing him occurred to her. That night he began to give vent to his anger after drinking. Finally he became tired from beating her and then he slept. “I thought I couldn’t bear him and I didn’t want to live such a life any longer, and my life was nothing. At daybreak about 3 am, I took out a hoe which I had hidden earlier and pounded him at the head, then he died.” “At that moment I was far from afraid, and I valued nothing, even my life except my daughter.”[i]

Case 2. She is also a rural woman and gave birth to eight children as well as suffered from many abortions. At last she had only a daughter and a son. However, her birth to a son did not change her fate at all. Her husband forced her to bear another son. After her contraception measure was discovered by her husband, she was subjected to more cruel and inhuman torment. All of his violation was so severe that she wanted to kill him. One day he asked her to put sleeping pills into the meals for her elder sister and the elder brother-in-law because they came to her home for money which her husband borrowed for his addicted gamble. She didn’t do that, instead, she wanted to kill her husband in the same way. “ I believed that he could do what he wanted to do. In a trance, I thought no matter what I did, I had to die, so it was better to kill him first.” When she told her husband that he had eaten the meal with sleeping pills, he shouted “I will kill all of your family members after I wake up”. “I was frightened that if he woke up, he would kill not only my elder brother-in-law but also my whole family. I could do nothing to save my family but kill him.” As a result, she did not hesitate to hang a rope around her sleeping husband’s neck.[ii]

Case3. In a female prison, the writer interviewed a rural woman, Yang, who killed her husband with her belt. During nine years after marriage, she usually suffered her husband’s strike and kick and sexual violation after he drank. Time and again he put chopping knife on her neck and threatened to kill her. That night when she hanged him, she experienced the same maltreatment as usual. His face reddened all over because of drinking, and he forced her to make love with her, but she refused. “At that time he seized me by the throat, and said ‘do you believe that I dare to beat you if you disagree?’ I answered ‘I can’t believe you more.’ About ten minutes late he began to hit me on the nose, I sat up from the bed, and he hit me on the back heavily.” “It was very cold, and I was wearing a vest so I wanted to put on more clothes, and then sent the child to my mother-in-law. I thought maybe I would become calm, so would he. However, he didn’t allow me to leave. He did not only beat me but also mumbled ‘today one of you must die’. Again he said‘I am tired of living, and seize me by the throat.’” “Accordingly, I undid my belt and hung it around his neck.” when it comes to the psychological state then, “At that time I was confused in mind so that I didn’t remember how to hang my belt round his neck. He stayed still and I didn’t know why he stayed still. If he moved slightly then, I think nothing would happen. Maybe piled-up grievance made me mad.” she said.[iii]

According to the above cases, the situations in which women kill their husbands are unique. Generally speaking, 11cases we interviewed can be divided into three types: The first one is killing husbands from indignation. In the process of suffering from violence, women have the idea of killing husbands and then do it; the second one is a deliberate action of murdering husbands; the third one is there is no motivation of killing husbands although they have planned it beforehand. Among them, the first two types take greater percentage. We must realize that the reason why some women plan to kill husbands in advance and some even prepare crime tools many years ago is, to a large degree, that husbands’ long-term abuse throw them into a danger that they might be subjected to violence at all times; that they can know whether they are in the hazard judging from husbands’ consistent words and actions. When a mature and sensible woman realizes that this threat exists constantly, she will prepare some crime tools so as to get ready for self-defense.

We also need notice that 11 women who were sentenced for deliberate murder displayed a shockingly similar situation when they described the process of killing their husbands: on that day when they killed their husbands or other violent relatives, they had ever suffered from violence by the murdered parties; besides, the murdered parties threatened to kill them or their other family members. This kind of fatal violent threat is just a kind of threat in the eyes of an ordinary person, but to long-term violated women the threat is real and actual. Therefore, a lot of women hold such an idea that no matter what they do, they have to die, so it is better to kill him first. As a result, deadly violent threat is not less than actual violation on their bodies. It is not only an objective sign that they take extreme measures to kill husbands, but also encouraged them to end the process of killing husbands and some other innocent persons. This unique exterior objective sign, like a warning signal, together with women’s ability to predict the occurrence of violence, which was acquired in the long-term violent life, make them commit murder characterized with self-defense.

She had no motivation of killing her husband but to get a proof that he had ever beaten her although she was innocent. One night she put some sleeping pills into the water of her husband and her stepson, bound them onto their beds, and then sealed up their mouths by gummed tape. After her husband woke up, she asked him to admit what he had done to her, but he said nothing but to stare at her. “He usually had advantage over me while I was weak and always bullied. The expression in his eyes, which I had seen when he beat me, was familiar to me and it seemed to say that ‘if you set me free, I will kill you.’ The expression in his eyes frightened me. Even if it were a dead tiger, you feel terrible, too. He always intimidated me, and I led a frightening life.” At last, she lifted the dumb-bell conveniently and struck her husband, and then struck her stepson who happened to wake up and wanted to shout….[iv]

Why can an expression in the eyes of an abusive husband frighten a wife, and make her realize that it is a deadly threat? This case provides a further proof that domestic violation differs from social violence. Long-term life experience makes abused wives have a good understanding of husbands’ character and personality. After numerous violent cycle, they know clearly what their husbands will do and they can foresee the result. To avoid the deadly violence, they can do nothing but take extreme steps. As a consequence, we have to admit that there is a close connection between maltreated women’s killing husbands and other innocent persons and previous continuous violence. Despite no violent attack when the crime happens, we must consider the fact that they have been ill-treated for a long time and the decisive role that violent marriage or family relationship plays when women predict what will happen to them.

Ⅱ. The Current Legal Framework Dealing with Domestic Violence and Relevant Provisions

In China, the provisions about the personal rights and the human dignity in the Constitution are the legislative grounds of anti-domestic violence, whereas the stipulations on prevention and sanction of domestic violence are embodied in the Criminal Law, the General Principles of Civil Law, the Marriage Law, and the Law on the Protection of Women’s Rights and Interests, the Regulations on Administrative Penalty for Public Security, etc. In 2001, prohibiting domestic violence became an important principle in the revised Marriage Law (Article 3(2)) . This is the first time for the term of domestic violence to be mentioned in the Chinese basic law. [v] According to the judicial interpretation by the Supreme People’s Court in the end of the year, the term domestic violence in the Marriage Law “refers to any act that causes physical, psychological and other kinds of harm to other family members by means of battering, binding, forcible restriction to the physical freedom or other means. And frequent or persistent acts of domestic violence constitutes abuse.”[vi] It is a broader legal explanation and provides a better chance for women victims to seek legal remedies. The term other kinds of harm in this judicial interpretation can be understood to include sexual harm.

Hence, In dealing with domestic violence cases in practice, it is possible to identify some operative provisions in the Criminal Law, the General Principles of Civil Law and the Regulations on Administrative Penalty for Public Security, by which perpetrators may be given criminal sanctions or administrative penalties, and possibly be ordered to pay civil remedies depending on the seriousness of the violence.

There are several provisions concerning the crimes of domestic violence in the Criminal Law:

A. Article 260 provides for the crime of mistreating family members: Those mistreating their family members, if the case is serious, are to be sentenced to 2 years or less in prison, or put under criminal detention or control. Those committing crimes stipulated in the above paragraph and causing the victims to suffer severe injuries or death are to be sentenced to 2 to 7 years in prison. Those committing crime stipulated in the first paragraph of this article are to be investigated only if they are sued.

Although the law provides for sentences of up to two years in prison in cases of particularly odious physical abuse, and sentences of up to seven years if the violence results in serious injury or death, it is worth noting that the mistreatment of family members will constitute a crime only if the case is serious, which must be regular, consistent and continuous. The rigorous requirements under the criminal law make proving domestic violence as abuse committing the crime very difficult.

Further, the state will not prosecute the perpetrator unless and until the perpetrator is taken to court for prosecution by the victim. This provision effectively takes the overwhelming majority of cases out of the arena of judicial remedy. The reasons are from two aspects: one is due to most women victims do not want to let their abusive spouses criminally punished, and the more important factor is law in itself, which demands private prosecutor bearing the burden of proof, but women always cannot give enough evidence.

B. Apart from article 260, courts can deal with domestic violence that results in death or serious bodily injury by resorting to article 232 and article 234 of the Criminal Law. Article 232 provides for the crime of murder and can be used to deal with domestic violence incidents where women are killed. Article 234 in the Criminal Law provides for the crime of inflicting injury on other people: Whoever intentionally injures the person of another to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, or control. Whoever commits the crime in the preceding paragraph and causes a person’s serious injury is to be sentenced to not less than three years and not more than ten years of fixed-term imprisonment; if he causes a person’s death or causes a person’s serious deformity by badly injuring him with particularly ruthless means, he is to be sentenced to not less than ten years of fixed-term imprisonment, life imprisonment, or death penalty. Where this Law has other stipulations, matters are to be handled in accordance with such stipulations.

Both article 232 and article 234 provide criminal sanctions for perpetrators of domestic violence. They are useful only to the extent of imposing punishment on abusers in extreme cases, that is, where death or severe bodily injury was intended and has actually resulted. In practice, however, the overwhelming majority of domestic violence cases do not yield such grave consequences as death or “bodily injury” as defined by the Provisional Regulation on Minor Injuries Certification, and are thus unable to invoke articles 232 and 234 of the Criminal Law.

Ⅲ.Women’s Self-defense and Legal Reform Concerned

Each of 11 female narrators we interviewed in jails had suffered from long-term spousal abuse when they killed their husbands. They did not only keep silence against spousal violence, on the contrary, each and every narrator had fought against abuse to different extents by turning to relatives and friends, village party secretaries, unit leadership, women's federation, police and court for help. They filed divorce suits to the court, claimed damages from abusive husbands for injuries, and even sued the abusers for committing crimes of injury or maltreatment. Some sought help the first time they were abused. All above social interventions, however, were not much effective. For instance, there exists a phenomenon in trials of criminal cases of husbands' abuses and women's fighting against violence with violent means. In the former cases, it is difficult for women to provide sufficient evidence so that abusers are usually leniently punished or exempted from criminal penalties and women victims, at most, only get civil compensation. On the other hand, some judges lack gender sensitivity in trying women who have fought against violence with violent means and in measuring penalties.

Accordingly, the main reason why battered women in many cases finally became defendants in criminal prosecution is that the criminal justice system cannot provide the effective protection for them when they were subjected to abuse. The problems in the Criminal Law and judicial bias during handling domestic violence cases have actually resulted in inequality between men and women in violent relationship. 

Nowadays, a majority of the battered women’s self defense cases in China are now based on Article 61 of the criminal law which allows for a mitigated sentence under extraordinary circumstances.[vii] Besides this, lawyers also use the battered women’s syndrome to the advantage of the battered woman who finds herself the defendant in the criminal justice system.[viii] Rarely, they defend women according to Article 20 of the Criminal Law, in which the conception of justifiable self-defense is embodied. A justifiable self-defense must be taken against the unlawful infringement at the time when it is committing under the provision. However, women’s self-defense most often was taken after violent act, at the time when violence is committing, they cannot take action against it because of weaker physical strength than men. So, some Chinese scholars argued that this provision is still based on male-oriented standards without due considerations of differences between men and women. It is premised on the view that the traditional boundaries and definitions of self-defense, a form of justification, was sex biased and shaped by male experience. As a matter of fact, women were aware of the imminent danger of death at the moment. They would be death or endure further violence if they did not take any action against the battering husbands.

Women’s experiences should be incorporated into laws whatever revising the current laws or drafting specific anti-domestic violence law in China. The first civil society’s law on domestic violence has been drawn up in March, 2003. It was drafted by the Project in China Society. With regard to the issue of women’s self-defense, it contains some provisions to provide special legal remedies to battered women, such as, shifting the burden of proof to defendant in civil lawsuit when the plaintiff gives evidence to prove the fact of case existed, defining statutory circumstances of slighting, mitigating and exempting criminal penalties as regards special cases wherein the defendant fights against violence with violence resulted in abuser’s death or injury.These provisions are based on women’s long-term battered experiences and benefit by battered women syndrome theory from other countries.

Ⅳ. Concluding Remarks:

1. The phenomenon of women's self-defense, to a certain extent, reflects lack of effective measures of preventing and penalizing family violence by the State. In this aspect, apart from the legal loopholes as mentioned above, misunderstanding the nature of family violence and restricting the traditional notion by police, judges and other legal enforcement personnel also impede the right implement of the current laws. Therefore, the current legal framework dealing with domestic violence is inadequacy and ineffectiveness both in terms of the legislation itself and the implementation and enforcement of the law.

2.How to incorporate women’s experiences into both legislation and law enforcement is an issue which has to be discussed further. In the respect of women’s self-defense, revising the existing Article 20 of Chinese Criminal Law and recognizing its justifiable still lacks of sufficient demonstration and necessary ideal basic. At the same time, we can find out that women’s behavior of killing husbands has certain rationality by means of interviewing them and analyzing the details of the case. On the other hand, changing the attitude of law enforcement personnel to domestic violence and raising their gender awareness are also important. It may helpful for them to more effectively enforce the laws and to better protect victims of domestic violence. For instance, judge may regard woman’s behavior of killing her husbands as a justifiable defense, but, due to causing the abuser’ s serious injury or death, it is a excessive self-defense which should be mitigated and exempted criminal penalty according to the criminal law(Art.20(2)).

3.In March, 2003, the draft proposal on domestic violence by the Project was submitted to the Legislative Proposal Committee of National People’s Congress as a motion with more than thirty representatives’ signature. Although drafting the specific domestic violence law has not been listed in the Chinese legislature’s schedule for the next five years, the draft proposal has the magnificent contributions in the following two aspects:

1) Promoting legal reform for the existing laws in China

The legal reform on domestic violence has been carried out after the Fourth World Conference on Women in Beijing in 1995.Apart for revising the Chinese Marriage Law in 2001, amending the Law for the Protection of Rights and Interests of Women has been initiated by the legislature in 2003. Legal remedies to women victims of domestic violence will be strengthened in the amendments to the law.

2) Seeking the special Act on Domestic Violence nationwide

At present, more than 20 provinces, cities and counties pass the local domestic violence regulations or decisions. For instance, the first local regulation on DV came into force in Hebei Province in September 2004.Hebei Women’s Federation, one of the members of our Network, made a great effort to push Hebei People’s Congress to adopt the rule. The draft proposal by the Project was also treated as a model for this local regulation.It will be a big pressure to the National People’s Congress to launch the legislative procedure for domestic violence law. At that time, the draft proposal of the Project would be a useful reference for the State’s legislation. It is the dream of those who devoted to combating domestic violence against women in China.

--------------------------------------------------------------------------------

Notes

[i] Zhai’s oral account:“I Would not Kill Him If It Were Now”, in Song Meiya and Xue Ninglan edi., Oral Accounts by Battered Women , China Social Sciences Publishing House, 2003, p.135.

[ii] Xue's oral account:“I Was Taken Merely as a Child-bearing Machine”, ibid, p.48.

[iii] Yang’s oral account:“How Did I Become a Murder”, ibid,pp.61,62.

[iv] Li's oral account: “How did I Get into Such a Frightful Plight”, ibid, pp.105,106.

[v] The first time the term found its way into a legal document is in 1995 when the National Program for the Development of Women (1995-2000) was issued as a regulation.

[vi] “The Opinions of the Supreme People’s Court on Adopting the Marriage Law of PRC”, entered into force on 27 December 2001, pt. 1.

[vii] Article 61 of the Criminal law stipulates: “when sentencing a criminal, a punishment shall be meted out on the basis of facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of the law.” The lawyers from the Center for Women’s Law Studies and Legal Services of the Beijing University represented many cases by using such strategy of justifiable defense.

[viii] Liu Wei: “Using the Theory of ‘Battered Women Syndrome’for Reference-the case of Shi using force against violence”, in Guo Jianmei edi., Domestic Violence and Legal Assistance, China Social Sciences Publishing House, 2003, p.329-339.