Beware of mental domestic violence, the "invisible family killer"
Reporters investigate the judicial practice determination of cases involving mental domestic violence
□ Sun Tianjiao, a trainee reporter of this newspaper
□ Our reporter Zhao Li
Recently, the phenomenon of mental domestic violence has been exposed in the divorce incidents involving celebrities, which has aroused widespread concern about mental domestic violence in the society.
Some netizens commented that mental domestic violence is comparable to physical domestic violence, and even more tormenting than physical domestic violence.
In fact, as early as March 1, 2016, the Anti-Domestic Violence Law made it clear that violations include both the body and the mind.
The work report of the Supreme People's Court in 2021 also proposes to explore the extension of domestic violence prevention and control to situations such as pre-marriage, post-divorce and mental violence.
A number of judges and legal experts pointed out in an interview with a reporter from the "Rules of Law Daily" recently that the society is paying more and more attention to and attaching importance to mental domestic violence. There are some difficulties in the determination of the case, and it is suggested to increase the operability in judicial practice of cases involving mental domestic violence by issuing judicial interpretations and guiding cases.
Mental domestic violence cannot be ignored
Perpetrators should be held accountable
"I was born in an extremely unhappy family, and I never felt father's love since I was a child. Because of my father's constant abuse, I didn't want to go home, and even thought of running away from home and committing suicide..." College student Xiaoying said word by word Write a complaint against your biological father, "We want to escape this abnormal life. My mother, brother, sister and I want to live a normal life."
This is a divorce dispute case involving mental domestic violence heard by Xu Wei, a judge of the Baiyun District People's Court in Guangzhou City, Guangdong Province in 2019.
The plaintiff's woman brought her three children and accused the defendant man of causing unbearable mental damage to her and her children in daily life.
According to Xu Wei's recollection, in this case, the man did not have physical violence, but he swears and scolded the woman and his children at every turn, which over time made his wife and children unbearable.
"Bad words hurt people in June cold." According to the WeChat chat records of the two and the testimony of their three children's witnesses, the court confirmed that the man had mental domestic violence, which prevented the woman from continuing to live with him, and the relationship had broken down, so the court decided to divorce.
Although the Anti-Domestic Violence Law was officially implemented in 2016, as early as March 2008, the Supreme People's Court issued the "Guidelines for the Trial of Marriage Cases Involving Domestic Violence" (hereinafter referred to as the "Guidelines"), clarifying that mental violence is a type of domestic violence. It also pointed out that mental violence is the act or omission of the perpetrator to inflict humiliation, fear, and a sense of worthlessness on the victim by means of insulting, abusing or ignoring, refusing to give medical treatment, and refusing to divorce. .
Some local courts have carried out pilot reforms in this regard.
As one of the pilot courts, the Chengxiang District People's Court in Putian City, Fujian Province heard a divorce case involving mental violence in 2010.
During the trial of the case, the plaintiff Liang Qing took out a basketball wrapped in a white cloth with the words "Kill Liang Qing to death" written on the white cloth.
It turned out that the man often hung the basketball on the balcony at home, and while hitting the basketball hard at home, he shouted "I'm going to kill Liang Qing".
This move caused great damage to Liang Qing's psychology, making her live in fear all the time.
Although there was a lack of judicial practice on mental violence at that time, the presiding judge of the case, Chen Jing, believed that the mental violence of the man had brought serious damage to the woman, so she ruled that mental violence was domestic violence.
The case was later rated as one of the "Top Ten Typical Cases of National Judicial Intervention of Domestic Violence" by the Supreme Court.
Zhou Li, deputy head of the Juvenile and Family Tribunal of the People's Court of Liangxi District, Wuxi City, Jiangsu Province, has a deep memory of the habeas corpus that he issued in 2019 involving mental violence.
A couple in their 30s who have been separated.
The woman likes to go to bars and often goes out to play at night. The man has installed GPS in his car. Once he finds out that the woman has gone to the bar, he will send text messages to abuse and intimidate her.
The woman lived in fear all day, finally unbearable, and applied to the court for a habeas corpus.
Zhou Li said that when the court judges whether it constitutes mental domestic violence, it usually considers several factors: first, it is determined that the subjective purpose of violence is to control, not the daily quarrel between husband and wife; secondly, it should consider whether the violence is periodic.
In addition, the degree of damage caused by the violence must be taken into account.
According to Xu Wei, if it is confirmed that there is mental domestic violence, the perpetrator may bear civil, administrative legal responsibility, and even criminal legal responsibility.
Civil legal liability is mainly reflected in: when the court judges whether the relationship has indeed broken down in a divorce case, domestic violence is one of the legal reasons for judging divorce; divorce cases involving domestic violence, proceeding from the principle of maximizing the interests of minor children, For the parent who commits domestic violence, it is generally not appropriate to judge him to directly support the minor children; in the division of property in divorce, the court may, according to the specific circumstances of the case, determine the proportion of the perpetrator's less property to punish the perpetrator; the party who is not at fault There is also the right to claim damages caused by domestic violence, including material damages and mental damages.
According to the Regulations on Administrative Penalties for Public Security, those who commit domestic violence without committing a crime can be detained for not more than 15 days, fined not more than 200 yuan or given a warning.
Serious domestic violence will constitute the crime of violent interference with freedom of marriage, abuse, intentional injury, insult, etc. in the criminal law.
Difficulty in proving concealment
Judicial practice is difficult to identify
Tan Fang, deputy director of the Marriage and Family Law Professional Committee of the All-China Lawyers Association and director of the Marriage and Family Law Research Association of the China Law Society, told reporters that in marriage and family relations, mental violence is more subtle and widespread than physical violence, but it is often ignored. a form of violence.
Under long-term mental violence, the victim is more likely to suffer some mental and psychological damage. If left unchecked, it is likely to develop into a tragedy.
At the same time, in such a stressful environment, it is easy to cause mental and psychological problems in children, such as autism, low self-esteem, and violent tendencies, which are very detrimental to children's growth.
In the cases handled by Gao Lei, deputy director of Beijing Dongwei Women's Legal Aid and Research Center, mental domestic violence is not uncommon. "Almost every divorce case involves mental domestic violence to some extent."
In some cases, the parties even made it clear that the biggest problem in marriage is the frequent abuse and insults of the other half.
However, the reporter checked the public information and found that there are not many cases involving mental domestic violence in the current court judgments.
The interviewed courts also stated that the number of cases involving mental domestic violence in judicial practice is much smaller than that of physical domestic violence, and in the cases of petitions for divorce on the grounds of mental domestic violence, there are many cases due to insufficient evidence. not considered domestic violence.
Xu Wei said that violence between family members is inherently concealed, especially if they suffer from cold violence or mental harm, it is more difficult to collect evidence.
In judicial practice, the parties often claim that there is mental violence and are not accepted by the court due to the difficulty or lack of proof.
Relatively speaking, those who advocate physical violence are more likely to be accepted by the court when they submit evidence such as photos of injuries, hospital medical records, transcripts of questioning by public security organs, and witness testimony.
"Mental domestic violence often occurs unintentionally, and it is difficult to obtain evidence. If the existence of such mental domestic violence is only corroborated by the client's own description and lack of objective evidence, it will be very unfavorable to promote the subsequent judicial process. If the facts claimed are not Evidence supports it, and it is difficult for the court to determine whether mental domestic violence exists or not." Gao Lei said, in addition, another dilemma of mental domestic violence is that the victim is not aware of it.
People's awareness of mental domestic violence is insufficient, and many victims of mental domestic violence do not even know that they can be protected through judicial channels.
Legal norms need to be improved
Prevention awareness needs to be improved
The revised draft of the Law on the Protection of Women's Rights and Interests released at the end of December 2021 stipulates that "it is prohibited to use superstition, mental control and other means to harm women".
Anti-domestic violence regulations and implementation measures in Guangdong, Jiangsu and other places clearly stipulate that domestic violence includes stalking, harassment, frequent abuse, as well as indifference, isolation and other mental abuses.
Judges and experts interviewed believed that the existing regulations on mental domestic violence still have certain shortcomings.
"People pay more attention to physical violence and sexual violence from the concept, because these results are mostly visible to the naked eye." Gao Lei said that the existing anti-domestic violence laws and regulations are mostly defined from the big concept of domestic violence. , there is a lack of targeted regulations and operational guidance for the subdivision of mental domestic violence.
Xu Wei said that the difficulty in judicial practice is the standard for the identification of mental violence, that is, to what extent the violation can be identified as mental violence. At present, neither laws nor local regulations have made specific provisions on this, which leads to the identification standard. different.
He added that at present, in divorce proceedings, the burden of proof distribution rule of "who claims, who gives evidence" is still applicable to evidence of mental domestic violence, which is not in line with the particularity of divorce proceedings involving mental domestic violence.
If, in divorce cases involving mental domestic violence, the traditional burden of proof rule is still applied, and the burden of proof to prove the occurrence of domestic violence is allocated to the victim, it will impose an excessive burden of proof on the victim and ignore its own burden of proof. It is in a vulnerable position, and it is often difficult to collect evidence of mental domestic violence, so it is unfair.
In order to improve the practice of cases involving mental domestic violence, Zhou Li suggested to issue a detailed judicial interpretation around the existing anti-domestic violence law, quantify the problems that may be encountered in the process of handling related cases, and provide an operable response method. .
"For example, how to assign the burden of proof for cases involving mental domestic violence and even all domestic violence cases; the implementation of habeas corpus, the specific obligations of public security organs, residents' committees, and villagers' committees to assist in execution, etc. It is recommended to make detailed provisions on this. Zhou Li said, at the same time, the Supreme Court and local high courts can actively explore and issue relevant guiding cases involving mental domestic violence, so as to provide reference for the grassroots courts to handle cases involving mental domestic violence.
Tan Fang believes that it is necessary to increase publicity efforts to make the whole society realize that mental violence is also a form of domestic violence.
And set up supporting prevention and disposal measures. For example, public security organs should not take cases of mental domestic violence lightly, but should promptly dispatch the police and collect evidence. If the circumstances are relatively minor, they can criticize and educate the perpetrator or issue a warning letter; Victims of mental domestic violence should provide living assistance; people's organizations, village neighborhood committees, and social organizations should strengthen publicity and education, and provide a series of services such as mental health counseling and family relationship guidance.
(All parties involved in the case are pseudonyms)