An Alternative to Impact Litigation in China: The Procurator as a Legal Avenue for Cases in the "Private Family Sphere" of Domestic Violence

Article excerpt

Abstract: Impact litigation, a popular technique among non-governmental organizations, while yielding numerous benefits, exercises limited influence over traditional family matters in China, like those of domestic violence. A closer examination of the factors attributed to the failure of the domestic violence case litigated by the Peking University's Center for Women Law Studies and Legal Aid Services highlights the need to explore the potential of the procurator. As cases and events show "family matters" transgressing from the private to the public sphere and as setbacks continue to plague non-governmental organizations in their struggle to advance social causes, the institutionalized procurator can utilize its traditional function and legal authority as a public interest advocate to litigate domestic violence cases. By implementing its existing authority and cooperating with the legal aid centers, government agencies, women's federations, and judiciaries, the procurator may be able to achieve more optimal results for victims where external techniques have attained limited success through its multilateral approach and internal channels.

I. INTRODUCTION

"The wife is like a horse bought . . . subject to my disposal at will."1 For many abusive husbands in China, this traditional idea is a reflection of their thinking-that wives are "private property subject to their control."2 In one case, an abusive husband boasted without shame in front of a court, that he has beaten his wife many times and that his whippings were an effective method to control her.3 Unfortunately, violence has become a means for an abusive husband to maintain his authority and to solve problems in the family.4 Faced with the challenges of domestic violence and patriarchal norms, numerous non-governmental organizations and legal aid centers have explored different means of publicizing domestic violence cases to the general public. One effective measure is the use of impact litigation by organizations such as the Peking University Center for Women Law Studies and Legal Aid Services ("the Center").5 This technique publicizes "typical cases" through media and awareness efforts and creates a ripple effect, sometimes resulting in a favorable judicial decision for the plaintiff victim.6

Despite its numerous benefits, impact litigation suits in domestic violence cases have been stymied by structural setbacks in the legal and enforcement processes. One explanation for the limited effect of impact litigation suits could be that such lawsuits target issues that require further internal reforms in mentality and practice among judicial actors and government officials. Traditional concepts of gender, and position and duty within the family, for example, may reinforce gender stereotypes and encourage the acceptance of domestic violence.7 Traditional notions of gender may also inhibit judicial and governmental actors from effectively participating in cases in the "private family sphere," such as domestic violence cases, creating higher barriers for victims to bring successful lawsuits.8 With multiple impediments in the legal and enforcement systems, questions point towards the need for an internal monitoring mechanism, perhaps a different party, to initiate suit where external techniques achieved limited success.

In Shi Changqing and Song Jie's article, "Exploring The Problem of the Procurator's Civil Litigation Activities," the authors recommend the procurator9 as an important agent in cases for the public's interest.10 The procurator is the equivalent to the American version of prosecutor. By litigating in cases where the litigant is unable to do so due to threats, physical, and economic difficulties,11 and working with internal bureaus and external organizations, the procurator can play a crucial role in domestic violence cases.

This comment provides a closer examination of the procurator's role as one who can potentially transverse this gray area of domestic violence, once considered to be solely in the "private family sphere. …