Does the Gender of Judges Matter? An Empirical Study of Chinese Divorce Lawsuits Involving Domestic Violence

Project: Research

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Description

Domestic violence is a pressing socio-legal problem in China although the government promulgated with a high profile the Anti-Domestic Violence Law in December 2015 and the law adopts several measures (e.g., the mandatory reporting, the police caution, the writ of habeas corpus, and the shelters for victims) to fight against domestic violence and protect vulnerable victims. A sharp contrast to this is the Chinese judiciary shows great reluctance to grant divorce to abused spouses who are struggling to seek an exit from a violent martial relationship, as shown by both official and non-official surveys of divorce lawsuits involving domestic violence. The existing literature has uncovered a big gap between the law in books and the law in action regarding judicial grant of divorce to abused spouses and Chinese judges split over four major legal issues concerning the finding of domestic violence and the question of whether the finding of domestic violence is sufficient to show the breakdown of mutual affection between the spouses. Chinese divorce litigation involving domestic violence is a typical women’s issue because plaintiffs in 91 percent of such cases are female, and judges are exercising great judicial discretion based on their own attitude and values regarding the traditional patriarchal inclination and gender awareness. Although some local courts have been proposing for or experimenting on female-dominant family court to protect women’s interests in family litigation, it is unclear whether and how Chinese female judges are less influenced by the patriarchal inclination, have more gender awareness, and more likely to judge in favor of women litigants when exercising judicial discretion in divorce lawsuits involving domestic violence. Little empirical research has addressed the gender effects on judging in this typical women’s issue in China’s context. This project aims to fill the gap. By adopting the research methods of statistical analysis and experimental vignette study, this project will investigate three research issues: (1) Are Chinese female judges more likely to judge in favor of women litigants in divorce lawsuits involving domestic violence in terms of granting divorce and awarding compensation to female plaintiffs? (2) Do Chinese female judges judge differently from male colleges in deciding legal issues concerning the understanding of “domestic violence”, the probative value of evidence to prove domestic violence has occurred, the relevance of domestic violence to judicial reasoning in making decision on judicial grant of divorce, and the sufficiency of domestic violence to show the breakdown of mutual affection between the spouses? (3) Are the gender effects on judicial grant of divorce based on domestic violence influenced by other personal attributes of judges (e.g., the age range, marital status, trial experiences, grade of judge) and other characteristics of cases (e.g., the times of filing divorce action, the presence of child custody issue, the financial independence of victims)? This project will generate rich empirical findings on the gender effects on judging in divorce lawsuits involving domestic violence and provide socio-legal analysis of the gender-based differences regarding causal effects of the key factors that practically influence judicial decisions on granting divorce to abused spouses in China. It will provide evidence-based suggestions on the Chinese judicial reform proposal for female-dominant family court and offer the stakeholders (including the lawmakers, the judiciary, the police) insights on how to reasonably facilitate abused spouses to exit a violent marital relationship through litigation. As the first empirical research on gendered judging in Chinese civil proceedings, this project also contributes to the global discourse on the gender effects on judicial decision making.

Detail(s)

Project number9043461
Grant typeGRF
StatusNot started
Effective start/end date1/01/23 → …