“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China, Ke Li

Much of the law and society research on dispute processing has attempted to situate government courts within the larger array of official and unofficial institutions and practices in which disputes are handled, resolved, reshaped, and at times passed on to other dispute resolution fora.

The rise of divorce is a fairly recent phenomenon in Chinese history. Under imperial laws, women faced much higher barriers to marital dissolution than men. It was only in the early 1930s that Chinese law, for the first time, granted women and men nearly equal rights to divorce. Soon after the Chinese Communist Party came into power, it formally instituted the principle of equality between women and men in family life by promulgat­ing the 1950 Marriage Law. Despite that, divorce remained rare for the most part during the Mao years (1949-76). The reform era, however, witnessed a rapid increase in divorce. Crude divorce rate, measured by the number of divorces per one thousand individuals, soared nearly tenfold from 1978 to 2008.

In rural China, a similar trend has been emerging in the past decade. Survey research conducted in twenty-three villages across five provinces in 2002 and 2010, respectively, found that in both years, divorce was the leading dispute type going into the legal system in the countryside.

Indeed, in China's vast countryside, it is often another group of law practi­tioners who attend to rural residents' struggles with divorce. These law practi­tioners, also known as basic-level legal workers (jiceng falu gongzuozhe), make a living by handling rural residents' legal problems. Without any public funding, they usually make elaborate efforts to retain clients and business. In that sense, they are bona fide market players, just like licensed lawyers. [...]

In 2001, China's highest legislative body passed much-awaited amend­ments to the Marriage Law. The revised law reiterated the principle of equality between women and men in marriage and family life. In the area of divorce, the amendments introduced important changes by codifying concrete grounds for divorce and putting in place a system intended to deal with blameworthy marital conduct such as domestic violence, spousal aban­donment, and bigamy. These legislative changes were widely viewed as the state's renewed efforts to protect women's rights and well being. In the following decade, more marital regulations were passed, with mixed responses from government agencies, scholarly communities, and society at large.

[D]ispute over child custody was a recurring theme during the initial face- to-face interactions between marital disputants and legal workers: twenty-two out of the sixty interactions involved a disputant demanding child custody and/or support upon divorce. A careful examination of legal workers' responses exposed a stark contrast: while female disputants were frequently subjected to overt or covert obstruction from legal workers, male disputants rarely encountered similar impediments to their pursuit of child custody.

Upon learning of female disputants' intentions to contend for child custody, legal workers launched various efforts, not to help them realize custodial rights, but to block their attempts at legal mobilization. Two strategies deployed by legal workers warrant close scrutiny: status-based stereotyping and manipulative interpretation of state law. The example below illustrates how a legal worker used the first strategy to discourage a mother from seeking child custody. During a meeting, a young woman revealed that her husband recently had an affair, leaving another woman pregnant. Disillusioned with the marriage, she was determined to divorce the husband and raise her daughter on her own. To this end, the woman set up a beauty salon in Shenzhen, a coastal city in south China. After months of preparation, she was finally ready for a divorce. Soon after the legal worker learned about the basic contours of the case, he called into question the woman's suitability for parenting:

Legal worker: It'll be hard [for you] to secure child custody. Once

you're divorced, you will have no housing, no stable income.

Female disputant: I live in Shenzhen now. And I do have stable income. Legal worker: What kind of “stable income” do you have?

Female disputant: Well, I don't have my own apartment right now, but I will get one later.

Legal worker: If you want child custody, you have to prove that you

have residence of your own as well as stable income.

[Later, the legal worker further spelled out his reservation about the woman's pursuit of child custody.]

Legal worker: Although divorced, you're still young. You're unlikely

to remain single for the rest of your life.

Female disputant: That's not necessarily true. It depends.

Legal worker: You'll be better off letting him [the husband] raise the

kid...

From the legal worker's perspective, the woman squarely fell into two status­based categories. First, she was a “migrant worker” (dagong de), a condescend­ing term describing peasants who leave the countryside to work in the urban labor force. Labeling the woman as a “dagong de” instantly led the legal worker to a conclusion: she must have few resources and move around constantly, and her daughter would inevitably live an unanchored life. Apart from being a “dagong de,” the woman was on her way to becoming one of “the divorced” (lihun de), another status-based category that invites stigmatization and discrimination. Though the legal worker tactfully commented on the woman's situation (she was about to be “divorced,” “still young,” and “unlikely to remain single”), behind such diplomatic expressions is a profoundly ingrained stereotype in Chinese society: divorced women are further depreci­ated on the marriage market if they bring children from previous relationships into new ones. Adding insult to injury, the children would become “tuoyoup- ing,” a derogative term for those who follow divorced mothers into remar­riages. In line with this cultural logic, the legal worker announced: “you'll be better off letting him [the husband] raise the kid.”

What happened in this case was hardly an exception.

At the center of this case was a young couple's custody battle over a teenage daughter and son; both parties were committed to the fight for child custody. The husband gained the upper hand early on, as he successfully mobilized his kinship networks to secure an experienced lawyer. The wife, however, was unable to do so. Instead, she relied on a junior legal worker with whom she had no family connections. What further tipped the playing field was the fact that the husband's lawyer had close ties with the local court (he came from a law firm whose founder happened to be the father of a judge). Soon after the legal worker learned what he would be up against in the court, he started pressuring his client to give up child custody. To this purpose, he cited the woman's age, employment status, and prospect of remarriage as the grounds for concession. All these efforts were to no avail. Then the legal worker said:

Legal Even if the court ruled in favor of your claim on child worker: custody, it would not enforce the decision.

rights of the person are unenforceable. If he [the husband] refused to let go of the kids, the court would not do anything.

[Later, the legal worker spelled out what he meant by saying “the rights of the person are unenforceable.”]

Legal You have to trust the law. The law says that the rights of the

worker: person are unenforceable. [It means] what the court can

forcefully enforce, for example, are rulings over debt. Suppose you were a debtor, and the court ruled that you were entitled to certain money. In that case, the court could phys­ically execute the ruling. But [regarding child custody], it falls into the scope of the rights of the person. It is unenforceable.

Throughout the meeting, the “rights of the person” (renshen quanli) appeared seven times in the legal worker's talk. Again and again, he tried to drive home the same message: custodial rights, as part of the “rights of the person,” were beyond the scope of the court system's “forcible enforcement” (qiangzhi zhixing). If the husband refused to cede physical custody to the wife, the court would not take any action to remedy the impasse. In this account, the law was portrayed as toothless, and the court as utterly incompetent. Yet, a close look at the court system's operation on the ground reveals much more complicated realities. Existing laws remain unclear whether or not the court system can forcefully enforce its rulings on child custody, and judges continue to debate the issue. In practice, judges do not have to resort to forcible enforcement, for they have plenty of discretion in their handling of custody battles. Recent studies of Chinese courts indicate that judges routinely exer­cise formal and informal influences on disputing parties in order to facilitate divorce settlements, thereby bypassing formal trials. As disputing parties enter settlements, there will be a relatively small chance for them to turn to the courts for forcible enforcement. In other words, only in worst-case scenarios will the courts consider physical force to execute rulings on child custody. By exaggerating the difficulties associated with enforcement, the legal worker projected a bleak prospect of the custody battle. Knowing that his opponent had strong ties with the local court, the legal worker backed down and pressured his client to drop claims on child custody. In the end, the woman lost custody of both children to the husband.

This example illustrates the second strategy - manipulative interpretation of state law - legal workers regularly used in their face-to-face interactions with female disputants. [...] [T]his strategy was exclusively imposed on female disputants but not on male disputants. This gender disparity mirrors a general pattern in divorce law practices in the countryside. Due to the persistence of patrilocal residence in rural China (that is, women are expected to relocate from their natal families and communities to live with the husband's family and community), married women often find themselves isolated at home and in conjugal communities. Rural men who have stayed close to their natal families, by contrast, tend to stand a better chance of mobilizing ties with local elites, such as village cadres, government officials, and judges. The gender differences in social networking can have serious consequences for disputing and litigation: in view of the husband's strong ties with the local court, the legal worker readjusted his disputing strategies by urging the wife to give up child custody. Seen in this light, the persistence of patrilineal and patrilocal tradition in rural China has distinctive effects on legal workers' interactions with female and male disputants. As Landon argued, for those who practice law in rural contexts, community characteristics often serve as the prior and fundamental source of structuring for their disputing strategies.^[95] [...]

Finally, the initiation stage featured no shortage of grievances against abusive spouses. Among the sixty face-to-face interactions in the observational sample, there were sixteen cases of a female disputant speaking of her suffer­ings at the hands of the spouse. As those women explained to legal workers why they were seeking divorce, accounts of verbal abuse, physical violence, and coerced sex surfaced. Upon hearing female disputants' complaints of domestic violence, none of the legal workers conducted thorough investi­gations. No advice was given to the women with regard to evidence collection, and no information was provided to inform them of their rights as victims of domestic violence, despite the Marriage Law's express stipulation on this matter. Instead, legal workers often glossed over women's experiences of domestic violence. To this purpose, they deployed several strategies in their face-to-face interactions with the women. The most frequently used strategy was diversion, namely, abruptly shifting the direction of the conversation in order to keep the issue of spousal abuse at arm's length. [...] [E]ight out of the sixteen interactions witnessed legal workers applying this strategy in response to female disputants' complaints of domestic violence.

Another strategy derived from legal workers' ability to eviscerate the mean­ings of spousal abuse, thereby clothing it with a layer of normality. I call this strategy “normalization.” The following example illustrates how this strategy operates in everyday conversations in the legal workers' office. In this case, a female disputant vividly depicted the verbal, physical, and emotional abuse she had suffered. Note the words she used to describe her victimization: “torture” (zhemo), “violent beating” (baoli daren), “threaten me with a knife” (yong dao

127 bi wo), “stab me with a knife” (cuo dao wo), “he scares me” (wo pa ta), and “I really can't stand it anymore” (wo shizai shoubuliao le). As far as the disputant was concerned, what happened in her marriage was anything but “normal.” Yet, the legal worker put a drastically different spin on the disputant's marital experiences. At one point, the disputant mentioned that the couple once worked at a factory and many coworkers saw the husband beating her up in public. Alerted by this revelation, the legal worker looked into the incident:

Legal worker: Did anyone at the factory know you two once fought?

Female disputant: Yes, they [coworkers] knew what happened.

Legal worker: Can you find evidence to prove that you two

quarreled?

Female disputant: My sister could prove that.

Legal worker: Well, ask your sister to approach the manager, so

you can get a statement from the factory to prove that you two routinely quarreled and fought with each other.

Rather than unequivocally naming the husband's abusive conduct as an example of domestic violence, the legal worker repeatedly chose words, such as “fighting” (dajia) and “bickering” (chaojia), to characterize the violence inflicted on the wife. A close scrutiny of the legal worker's selection of words indicates that he did not adopt any of the verbs used by the disputant herself (e.g., torture, beat, threaten, stab, scare, etc.). Instead, he consistently stuck to a language that was devoid of gender, physicality, and emotionality - a language that omitted the woman's agonies over spousal abuse - and ultim­ately, a language that denied her rights as a victim of domestic violence. Toward the end of the meeting, the legal worker instructed the disputant to gather evidence, not to establish her legal status as a victim, but to merely prove that she did not get along with the husband.

Diversion and normalization allowed legal workers to surreptitiously keep victims from voicing their grievances against abusive spouses. Legitimization, the third strategy, was different in that it enabled legal workers to defend domestic violence in broad daylight. The following case presents a powerful example. During a meeting, a woman in her midforties bitterly recalled her sufferings in her marriage. Out of jealousy, the husband put her through months of sexual abuse. This experience tormented the woman so much that she compared her relationship with the husband to the one between a prostitute and a client: “I'm not his wife anymore; now, he is treating me as if I were one of those who sell their bodies.” At some point in the conversation, the woman revealed that one night she was subjected to forced sex, and the legal worker immediately picked up on the issue:

Female disputant: Ever since I came back from Chengdu, we have been arguing day after day. Even if I were done with poker games and went home at two or three o'clock in the morning, he would pick a fight with me. Then he would [pause]. Well, last night, I didn't go out for poker games. I figured that I would go to bed earlier. Still, he would not let it go. Well, he forcefully insisted on sleeping with me. The thing is that I don't have feelings for him anymore.

Legal worker: So he insisted on sleeping with you? Did you two

have a marriage certificate?

Female disputant: Yes, but.

[The legal worker interrupted the disputant.]

Legal worker: Well, [in that case] what he did was lawful.

In this case, the legal worker tackled the disputant's complaint head on by pointing out how the official justice system perceived sexual aggression within marriage. As the couple was legally married, the wife had obligations to cohabitate with the husband, including having sex with him. The husband's sexual conduct toward the wife, coercive or not, was therefore lawful. The legal worker's unsympathetic interpretation of the situation was partially in line with the existing legal framework and practice. To this day, no legislation in China has specifically outlawed marital rape. In practice, marital exemp­tion - a legal doctrine recognized by the country's highest court in 2001 - continues to dominate the court system's handling of rape within marriage. According to this doctrine, a husband cannot be charged with rape of his wife, unless the couple had previously filed for divorce. What the legal worker failed to mention is that, despite the lack of legal grounds for the wife to build a criminal case, she did have a choice to pursue civil action against the husband. The Marriage Law clearly stipulates that victims of domestic vio­lence are entitled to damages at the time of divorce. Yet, the legal worker did not inform the wife of her rights to pursue damages from the abusive husband. In the end, the wife walked away from the meeting with the impression that the husband's conduct was entirely “lawful” and there was no legal redress for sexual aggression within marriage.

In-depth interviews with legal workers and lawyers further exposed the legal profession's stereotypes about domestic violence. For example, when asked about male aggression in Chinese families, some in the legal profession denied the severity of the problem outright, a viewpoint contrary to existing evidence. Some blamed victims for having a “backward” mentality, which held them back from speaking up about domestic violence. Victim blaming was also invoked to explain the difficulties in building lawsuits against abusive spouses. As one lawyer put it, rural women typically harbored a “weak consciousness in evidence collection” (quzheng yishi bu qiang), and therefore, were ill prepared for legal battles over domestic violence. These accounts flatly negated the reality that women disputants often went to great lengths to seek legal assistance for their victimization.

III ALTERNATIVE DISPUTE RESOLUTION

As the dispute processing paradigm consolidated itself in the 1960s and 1970s, the findings of law and society researchers caught the eye of policy­makers in the United States and elsewhere, who began to ask whether the forms of nonjudicial dispute resolution described in Asian and African societies could be transplanted to North America and Europe. Instead of conflictual, expensive, zero-sum litigation, why couldn't disputes in the so- called “developed” countries be handled through more harmonious, inex­pensive, and mutually satisfying procedures similar to those researchers had found in non-Western village moots or religious courts? In the 1970s, the concept of “alternative dispute resolution” (ADR) emerged and was quickly endorsed by bar associations, courts, and legislatures as a way to divert cases from overburdened judicial systems into less formal dispute institutions. ADR was then exported from North America and Europe to Asia in a kind of reverse migration back to the source. ADR was, ironically, billed as a new and progressive legal development and was met with enthusiasm in many Asian countries.

Many law and society scholars were disturbed by the emergence of ADR, including some - such as Laura Nader - whose work was cited with approval by ADR supporters. These scholars were suspicious of the motives of ADR enthusiasts, who appeared too ready to sacrifice the legal rights of disputants, particularly in so-called “minor disputes,” by channeling their claims to forums without legal protections or substantial remedies. ADR mediators often lacked legal training and placed the highest value on producing a settlement rather than promoting justice. Critics also feared that cases diverted to ADR were viewed as less important because the disputants were persons of lesser means or lower social status, thus reserving the official court system for the wealthy or socially prominent. Furthermore, they pointed out that traditional nonjudicial dispute processing of the kind described by law and society scholars was deeply rooted in communities with shared social and cultural norms. Its success depended on the parties' familiarity with those norms and on multiple, overlapping connections among the disputants and the third-party mediators. Modern versions of ADR lacked such cultur­ally embedded features and could never replicate the harmonious, community-affirming outcomes that law and society scholars had discovered in their fieldwork. Some critics therefore claimed that ADR promoters had hijacked the findings of law and society researchers and applied them in ways that would exacerbate injustice and inequality rather than ameliorating them.

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