Reclassification of Domestic Violence Cases
The domestic violence law suffers from a significant loophole. The expression “physical, psychological or sexual abuse” in Article 4 of the law is vague, and judicial officers frequently apply a higher threshold for the gravity of bodily harm than that required for simple assault. As a result, domestic violence cases are often reclassified as simple assault under Article 137 of the Macau Penal Code.
This reclassification has serious consequences for victims:
- The continuation of prosecution for simple assault depends on the victim’s complaint, meaning victims must actively sustain the proceedings.
- When a case is reclassified, victims are informed of the option to discontinue proceedings, effectively removing the protections intended by the domestic violence law.
- The Macau SAR Government has sidestepped questions about the number of cases that have been reclassified.
Exclusion of Same-sex Couples
Same-sex intimate partners are excluded from the scope of the domestic violence law. The government’s suggestion that victims in same-sex relationships may rely on Article 137 of the Penal Code (simple assault) effectively deprives them of meaningful protection. The crime of simple assault is prosecution-dependent and was the main avenue of protection for all domestic violence victims before the enactment of the domestic violence law in 2016 — an avenue that was widely regarded as inadequate.
The domestic violence law provides not only criminal sanctions but also rights to temporary shelter, financial assistance, legal aid and medical care. None of these protections apply to victims in same-sex relationships.
The government’s claim that the Social Welfare Bureau (IAS) and social service institutions provide assistance to victims in same-sex relationships is highly misleading: the IAS’s case report forms and published statistics make no reference to same-sex partners, calling into question whether such cases are even recognised by officers and social workers.
In 2015, the UN Committee against Torture urged Macau to enact a domestic violence law without discrimination. In early 2016, the Macau SAR Government declined to reinstate a reference to “same-sex cohabitants” in the final text of the law.
Observations by UN Treaty Bodies
Human Rights Committee (July 2022)
The Committee was concerned that the vague definition of domestic violence in Law no. 2/2016 often leads to the reclassification of cases as simple assault under the Penal Code, denying victims the protection afforded under the domestic violence legislation. It also regretted that Law no. 2/2016 does not apply to same-sex intimate partners. The Committee urged Macau to clarify the definition of domestic violence and refrain from reclassifying cases under provisions with lesser penalties. (paras. 16–17)
The Committee further urged Macau to afford equal protection against domestic violence to all, including same-sex intimate partners. (paras. 12–13)
(CCPR/C/CHN-MAC/CO/2)
Committee on Economic, Social and Cultural Rights (March 2023)
The CESCR was concerned that the Law on Preventing and Combating Domestic Violence does not cover same-sex couples, and about reports of insufficient implementation with low investigation and prosecution rates. The CESCR recommended that Macau review the law to include same-sex couples and ensure its effective implementation. (paras. 142–143)
(E/C.12/CHN/CO/3)
Recommendations
MRG has recommended that the relevant UN treaty bodies urge Macau, China to:
- Fix the loophole of case reclassification by removing vagueness from the definition of the crime of domestic violence; and
- Include same-sex intimate partners within the scope of the domestic violence law.