All states made "wife beating" illegal by 1920. However, only since the 1970s has the criminal justice system begun to treat domestic violence as a serious crime, not as a private family matter. Domestic violence is any physical, sexual, or psychological abuse that people use against a former or current intimate partner. It refers to a number of criminal behaviors: assault and battery; sexual assault; stalking; harassment; violation of a civil restraining order; homicide; and other offenses that occur in the course of a domestic violence incident, such as arson, robbery, malicious destruction of property, and endangering a minor. No person can validly consent to a breach of the peace or a battery that may result in serious injury or death. Furthermore, most states have abolished the marital rape exemption in toto; this exemption precluded husbands from being prosecuted for raping their wives. Thus, in general, there is no legal distinction between crimes committed against intimate partners and those committed against strangers.
Police, prosecutors, and judges are routinely trained in domestic violence, and aggressive interventions are continually implemented. Individuals across the political spectrum have generally supported these changes, although there is ongoing debate as to which interventions work best. Furthermore, some fear that the pendulum has swung too far, and that those who are accused of domestic violence, particularly men, are presumed guilty rather than innocent. Advocates are concerned that the needs of victims are being sacrificed for higher conviction rates. Indeed, the ongoing challenge for the criminal justice system is to protect the rights of both defendants and victims while at the same time treating domestic violence as a serious social problem. Even though the criminal justice system has come a long way since 1920, it still has a long way to go.
Who are the abusers? Who are the victims?
The majority of those arrested for domestic violence are heterosexual men. However, between 5 and 15 percent of those arrested for battering are women. Many of these cases involve self-defending women who have been mistakenly arrested. While women can be the initial aggressor, female abusers are rarely identified or studied. Thus, most theoretical and practical work on domestic violence, as well as the policies and controversies that are discussed in this entry, assume the male batterer/female victim paradigm.
Gay men and lesbians constitute only a small percentage of those arrested for domestic violence. As with female abusers, we know surprisingly little about domestic violence in same-sex relationships. Same-sex victims receive fewer protections and face many more social consequences when reporting domestic violence to the authorities than heterosexual victims. For example, many states define domestic violence in a way that excludes same-sex victims, and some states with sodomy laws also require victims to acknowledge that they are in a domestic relationship, forcing victims to admit to a crime before receiving legal protection.
How many people are victims of domestic violence? The honest answer is that we just do not know. The federal government and a majority of the states collect statistics on domestic violence, but there are wide variations in how each jurisdiction defines offenses, determines what is counted, and measures or reports incidents. Statistics on the incidence and prevalence of domestic violence vary greatly. Thus, it is imperative that when evaluating data one considers the source and the methodology. It is vital to have an accurate picture of domestic violence in order to formulate appropriate policies and maintain intellectual integrity.
There are two official federal measures of crime, the National Crime Victimization Survey (NCVS) and the Uniform Crime Reporting Program (UCR) of the F.B.I. The NCVS gathers information about crime and its consequences from a nationally representative sample of U.S. residents. It surveys respondents about any crimes experienced, including their relationship to the perpetrator. However, there is no way to independently verify this information or to determine how many incidents go unreported to authorities. In fact, it is estimated that about one-half of the incidents of intimate violence experienced by women are never reported to the police. This percentage is likely higher for both straight and gay men and lesbians given that the traditional definition of domestic violence is "wife beating."
The UCR tracks crimes reported to law enforcement. However, it does not require local law enforcement to maintain data on the relationship between victim and offender except in the case of murder. The National Incident-Based Reporting System (NIBRS), authorized by Congress in 1995, will include and standardize data collection on domestic violence. However, NIBRS has not yet been implemented nationally.
Data compiled in 1996 by the Bureau of Justice Statistics yielded the estimate that women experienced 840,000 rape, sexual assault, robbery, and aggravated and simple assault victimizations at the hands of an intimate, down from 1.1 million in 1993. Men experienced about 150,000 such victimizations, with little variation between 1992 and 1996. In 1996, just over 1,800 murders were attributable to intimates, and in almost three out of four of these killings, the victim was a woman. By comparison, in 1976, there were nearly 3,000 victims of intimate murder (Greenfeld). Other studies have suggested that as many as four million women are battered each year, and that 14 percent of women report having been violently abused by a spouse or boyfriend at some time in their lives. (Healy, Smith, and O'Sullivan).
Most intimate relationships are established between people of the same racial and economic background. Domestic violence occurs across all demographic groups. However, official rates of nonlethal, intimate violence are highest among women aged sixteen to twenty-four, women in households in the lowest income categories, and women residing in urban areas (Greenfeld). Couples who cohabitate experience more violence than those who are married (Holzworth-Munroe). Other studies have found that abused women are more likely to live in communities with the highest rates of stranger violence (Fagan). African American women comprise the largest group of victims, although they are also more likely to report intimate victimizations to the police than any other group. However, ethnicity and race are not significant correlates with domestic violence when controlling for other socio-demographic variables, such as income, employment status, and age.
Official statistics may be overinclusive of the poor and minorities. Women with higher incomes often have the resources to deal with domestic violence privately without involving the criminal justice system. Furthermore, the police may be more likely to arrest people in poor and middle-class neighborhoods than in upper-class neighborhoods. However, those with fewer resources also face more stressors, and while stress itself does not lead directly to violence, it can exacerbate the risk of violence (Holzworth-Munroe).
The causes of domestic violence
There are many theories as to the causes of domestic violence. Feminist-inspired theories look to the institution of patriarchy and argue that battering mirrors male power and control over females. Family-based theories examine the level of family conflict and the indirect lessons children learn about the relationship between violence and love. Individual-based theories attribute domestic violence to personality disorders or biomedical factors, such as head injuries or mental illness. Evolutionary theorists have suggested that male violence against females, both in primates and cross-culturally, is a strategy used to control the female's reproduction and, in humans, is often precipitated by male sexual jealousy (Daly and Wilson).
Furthermore, domestic violence researchers are exploring how race, class, religion, and culture, as well as psychological variables such as low self-esteem and abusive childhoods, affect one's experiences with violence. As a result, we are beginning to understand how the battering experience is both common and unique among abusers and victims.
No single causal model can explain why people hurt those they claim to love. As research becomes more interdisciplinary, and policies are driven as much by empirical data as by politics, theories will have to account for the complicated interplay of biological, social, economic, cultural, and individual factors that lead to domestic violence.
Federal approaches to domestic violence
Local and state governments are responsible for enforcing most domestic violence crimes. However, in 1994, Congress passed the Violence Against Women Act (VAWA). Among its many provisions, VAWA makes certain offenses federal crimes, such as interstate stalking and violation of a protection order. In addition, the 1996 Lautenberg Amendment to the Gun Control Act of 1968 prohibits the transfer, possession, or receipt of both firearms and ammunition by anyone convicted of a misdemeanor domestic violence offense. These laws reflect a larger trend to federalize the criminal law, and they are controversial. Advocates applaud them as providing for a fundamental change in the criminal justice system's response to domestic violence. Opponents argue that they are overreaching, ineffective, and grant excessive power to the federal government, and insist that combating domestic violence is best left to local, not federal, law enforcement. It is too early to access VAWA's impact on curbing domestic violence.
Prior to 1984, most police could not legally make a warrantless arrest unless a misdemeanor occurred in the officer's presence, or the officer had probable cause to believe that a felony had taken place. Since most domestic violence cases involve simple assault and battery—a misdemeanor—the police could not make an arrest at the scene. Advising the husband or boyfriend to "take a walk around the block" was often the extent of police intervention.
In 1984, the U.S. Attorney General recommended arrest as the standard police response to domestic violence. This recommendation resulted from a landmark Minneapolis controlled experimental study that compared the deterrent effects of arresting the suspect, mediating the dispute, and requiring the batterer to leave the house for eight hours. The study found that arrest more effectively deterred subsequent violence than did the other courses of action. The results were widely publicized.
That same year, Tracy Thurman received a $1.9 million settlement from the Torrington, Connecticut, Police Department for its policy of nonintervention and nonarrest in domestic violence cases. After the Thurman case, police departments concerned about similar lawsuits began to rethink their policies. All fifty states now provide for warrantless arrests in domestic violence cases.
Since arrest statutes have been broadened, many jurisdictions have adopted mandatory or pro-arrest policies. Under these policies, an arrest is either required or preferred if the police officer has probable cause to believe that a domestic battery has taken place, regardless of the victim's wishes. These policies have received mixed reviews. Some advocates maintain that mandatory arrest not only substantially reduces domestic assaults and murders, especially when prosecution follows, but also provides police officers with clear guidelines on how to proceed, correcting the "take a walk around the block" mentality. Opponents argue that these policies fail to account for the criminal justice system's historic mistreatment of minorities. Furthermore, when officers are either unable or unwilling to discern who was the initial aggressor, mandatory arrest policies can result in both parties being arrested. Thus, these pro-arrest policies have the unintended consequence of penalizing rather than protecting victims. Others argue that police ought to have more discretion to handle domestic violence situations on a case-by-case basis.
Does arrest work? The research is inconclusive. For example, when the Minneapolis study was replicated in other jurisdictions, the results differed significantly. Specifically, arrest consistently deterred employed batterers, but increased repeat violence among unemployed batterers. Yet, these findings were largely ignored. Furthermore, between 1992 and 1996, while the police responded to 90 percent of calls for assistance, in only 20 percent of the cases was the alleged abuser arrested immediately (Greenfeld). These findings raise questions as to how effective arrest policies have been in reducing recidivism or changing police practices.
Prosecution and sentencing policies
Prosecutors routinely fail to initiate cases and follow through with prosecution. Victim noncooperation is often cited as the major reason for dismissing a domestic violence case. Thus, once police began to arrest alleged batterers, advocates began to focus reform efforts on prosecution practices. As a result, prosecutors are undertaking new initiatives. Many have established specialized domestic violence units. A few units specialize in same-sex battering, while others target teenagers in dating relationships, where experimentation with violence often begins. Vertical prosecution, in which one prosecutor is assigned to handle the case from arraignment to completion, thus providing the victim with ongoing support, is becoming common. Increasingly, jurisdictions are employing social workers to counsel victims and their families. Some courts expedite, or rocket docket, domestic violence cases. Others divert first-time offenders into batterer treatment prior to trial.
Most controversial, many jurisdictions are implementing no-drop policies. Under such policies, prosecutors cannot routinely dismiss charges at the victim's request, but are required to pursue a case if enough evidence exists to substantiate the charge. Moreover, the prosecutor usually signs the charge, relieving the victim of responsibility. At least four states have adopted legislation encouraging the use of no-drop policies, and VAWA has authorized grants to local law enforcement agencies that adopt aggressive prosecution policies.
Pro-prosecution policies are often characterized as either hard or soft no-drop policies. Under hard policies, cases proceed regardless of the victim's wishes when there is enough evidence to go forward. This can include subpoenaing the victim to testify and requesting that the judge issue an order of contempt if the victim refuses to cooperate. Most states recognize an exemption to marital privilege laws in cases in which one spouse is charged with a crime against the other and, thus, the vast majority of victims can be compelled to testify as a witness for the state and incarcerated for refusing to do so. Some jurisdictions go forward without the victim's testimony, just as if it were a homicide case, by introducing other evidence, such as 911 tapes, photographs, medical records, and testimonies of police officers and expert witnesses.
Under soft policies, victims are provided with support services and encouraged to proceed, but are never mandated to participate. The state will not proceed if the victim insists that the case be dropped.
Those supportive of aggressive prosecution argue that no-drop policies take the burden off the victim by removing her as the "plaintiff." They contend that the batterer has less incentive to try to harm or intimidate his victim once he realizes that she no longer controls the process. Furthermore, aggressive prosecution sends a strong message that domestic violence is a crime against the state as well as the individual. However, many advocates for battered women argue that the use of hard policies has the unintended effect of punishing or revictimizing the victim for the actions of the abuser. It also fails to take into account the effect that prosecution will have on family income or children. The state should neither force the victim into a process over which she has no control, nor undermine her autonomy or decision-making.
Do aggressive prosecution policies work? It is difficult to measure the difference between policies as written and policies as practiced. While early data indicate that aggressive policies can reduce domestic homicides, lower recidivism rates, and change attitudes within the criminal justice system, more research is needed to verify these findings (Hanna, 1996).
Despite these reforms, most domestic violence cases still end in arrest. Of those cases that are prosecuted, many are charged or plead down to misdemeanors even though the conduct constituted a felony. When prosecutors do go forward, the final disposition is most often a period of probation. A growing number of defendants must also complete a batterer's treatment program as a condition of probation. Only a small percentage of domestic violence offenders are sentenced to incarceration (Hanna, 1998).
How do domestic violence cases compare to nondomestic violence cases? As of 1999, no empirical evidence supported the assertion that the criminal justice system treats domestic violence offenses less seriously than other violent crimes. One study in the mid-1980s found that offenders closely related by blood or sexual ties to their victims were usually given probation or had their cases dismissed, but so too were offenders unrelated to their victims (Ferraro and Boychuck). According to a 1998 study of all inmates incarcerated in state prisons, the median sentence for assault was four years longer if the victim was the offender's spouse rather than a stranger (Greenfeld). Given the changes in arrest and prosecution policies, as well as increased public pressure on law enforcement to treat domestic violence as a serious crime, it is likely that domestic cases are being treated more seriously than nondomestic cases.
Batterer treatment programs
In 1984, the Attorney General's Task Force on Family Violence concluded that treatment for domestic violence is most successful when the criminal justice system mandates it. Although the Task Force report recommended incarceration for serious offenses, it encouraged the use of batterer treatment programs in cases where the injury to the victim was not serious. Since then, the criminal justice system has adopted faith in treatment as a matter of policy. Some states require courts to order attendance into a batterer treatment program as a condition of probation. Others have pretrial diversion programs in which first-time offenders can avoid conviction by completing a batterer treatment program. VAWA also endorses batterer treatment for violations of its criminal provisions.
Many states mandate the length and content of treatment programs that can be court ordered, although there is no convincing evidence that either the length or model of the treatment determines its effectiveness. Most court-ordered programs are six months to a year long. Program content varies greatly. Early programs were based on the premise that poor conflict management skills within the relationship caused violence and, therefore, treated both parties. Most court-ordered programs today, however, reject couple's therapy and treat the batterer only. While some programs focus on anger control and the individual's history with violence, increasingly, the majority of court-ordered programs adopt the premise that battering is an outgrowth of patriarchy and focus on the use of violence by the batterer to establish power and control over his victim. Most of these programs will not accept batterers who have substance abuse problems, although more than half of those incarcerated for domestic violence had been using drugs or alcohol at the time of the incident for which they were incarcerated, suggesting that many abusers are in need of multiple interventions (Greenfeld).
Does batterer treatment work? Some available data suggest that court-ordered treatment correlates with a reduction in physical violence, although treatment neither terminates violence in many cases nor curbs the more subtle forms of abuse. However, whether treatment, or simply individual motivation brought on by legal intervention, causes the reduction of violence is unclear. In fact, some studies have found that men arrested and treated resume violent behaviors as frequently as do men arrested and not referred to treatment, and that there is no significant difference between men who complete batterer's treatment and men who drop out of the program (Rosenfeld). The available research on batterer treatment is hampered by the lack of a control group. As of 1999, no study has randomly assigned abusers to incarceration, treatment, or unsupervised probation. A control group would give researchers confidence that treatment, and not some other variable, such as threat of incarceration, individual motivation, support from one's partner, social stigma, or other factors, are influencing a change in behavior. Additionally, many studies are methodologically unsound. Sample sizes are often too small to draw valid conclusions and drop-out rates are high. Even more troubling is that most studies that report treatment successes include only subjects who have no substance abuse problems, no psychiatric difficulty, and high motivation. Thus, the complex question of which programs work best for whom, and under what circumstances, remains largely unanswered.
Finally, some jurisdictions have established specialized probation units. Probation officers trained in domestic violence intensively supervise abusers, following their progress in treatment and at home. This is considered to be the last loophole that the criminal justice system needs to close in order to hold abusers accountable for their crimes.
Future of the system's response to domestic violence
One of the most promising developments in the prevention and treatment of domestic violence is research on batterer typologies. Despite popular misconceptions, all abusers are not equally dangerous, nor are they all alike. It is estimated that only two percent of the total male population is repeatedly severely abusive to women in any given year (Dutton). Most men arrested for domestic violence are low-risk offenders, and are violent only with family members. Those who pose the greatest risk often have extensive criminal histories, including property crimes, drug or alcohol offenses, and violent offenses against nonfamily victims (Dutton). This research will help law enforcement to better screen cases and develop interventions that account for the differences among abusers. In addition, research on the relationship between violence and biomedical conditions is likely to lead to treatments for abusers that involve both medical and behavioral therapy.
The criminal justice system also needs to expand its understanding of domestic violence beyond the male abuser/female victim model and to provide adequate protections for all victims regardless of gender or sexual orientation. Further research into why most men do not engage in intimate violence is imperative to understand what role gender does play in domestic violence.
Only time and solid research will tell if the criminal justice system can successfully reduce domestic violence. None of the initiatives described above will work in isolation. The best research suggests that a coordinated community response, which involves police, prosecutors, defense attorneys, judges, probation officers, victims' advocates, treatment providers, and medical professionals, is essential. And, while both lethal and nonlethal intimate violence declined in the 1990s, so too has nondomestic violence. Thus, we must be cautious before attributing progress solely to more aggressive criminal intervention. Nevertheless, many remain optimistic that treating domestic violence as a serious public crime and not a trivial family matter will make for a safer society.
See also Family Abuse and Crime; Homicide: Behavioral Aspects; Justification: Self-Defense; Scientific Evidence; Stalking; Victims; Violence.
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HANNA, CHERYL. "Domestic Violence." Encyclopedia of Crime and Justice. 2002. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3403000096.html
HANNA, CHERYL. "Domestic Violence." Encyclopedia of Crime and Justice. 2002. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3403000096.html
DOMESTIC VIOLENCE encompasses a range of actions, including assault, battery, rape, and murder, committed by someone to whom the victim is intimately related. Intimate relations include spouses, sexual partners, parents, children, siblings, extended family members, and dating relationships. Although victims of domestic violence include both men and women, females are affected disproportionately. According to the surgeon general, domestic violence is the leading cause of injury to women in the United States.
Historically, social and cultural responses to domestic violence have been complex. Americans have differed over what behaviors constitute abuse, to whom responsibility should be assigned, and what relief victims should receive. The evolution of legal doctrines concerning domestic violence has been predicated on the question of whether abuse committed by intimate relations constitutes a matter of private or public concern. A movement to define protection from domestic violence as a civil right entitled to constitutional protection emerged at the end of the twentieth century.
Anglo-American common law tradition held that the male head of household possessed the authority to act as both disciplinarian and protector of all those who were dependent on him. The concept of the household was broader than that of the nuclear family for it included extended kin, servants, apprentices, and slaves in addition to wife and children. In the agrarian societies of England and colonial America, members of a household worked together as an economic unit; therefore the law also treated the household as a single entity and granted full legal status only to its male head. The household head acted as the unit's representative; individual members did not usually enjoy legal recognition as separate persons. Under the category of laws known as coverture, a married woman's identity merged with that of her husband. As an individual she could not own property, vote, sign contracts, or keep wages earned by employment outside the household.
Common law allowed the male head considerable discretion in controlling the behavior of the members of his household. In certain cases husbands might even be held liable for failing to control the actions of their dependents. In the American colonies the law defined extreme acts of violence or cruelty as crimes, but local community standards were the most important yardsticks by which domestic violence was defined and dealt with. In the seventeenth-century Puritan communities of New England, for example, a husband had a legal right to "use" his wife's body, but "excessive" use could be subject to prosecution. Puritan parents felt a strong sense of duty to discipline their children, whom they believed to be born naturally depraved, to save them from eternal damnation. While Puritan society tolerated a high degree of physicality in parental discipline, the community drew a line at which it regarded parental behavior as abuse rather than acceptable discipline. Those who crossed the line were brought before the courts.
The law of slavery in the United States granted the master virtually complete authority in punishing his chattel property. Although every slave state defined killing a slave as murder, the historical record amply demonstrates that extreme violence by masters against their slaves was common. Because slave populations greatly outnumbered whites in many communities, whites may have regarded strict control over slaves as necessary to the preservation of the social order. Again, local community standards played a significant role in drawing the boundaries between acceptable and unacceptable levels of violence within a slave-owning household.
The Nineteenth Century
A number of social changes during the nineteenth century altered the public perception of domestic violence, and these changes were reflected in the law as well. The twin forces of industrialization and urbanization loosened the community ties that had traditionally served as important regulators of domestic behavior, and over time victims of domestic violence became more dependent on the police and courts for protection, although not always with positive results. A case brought before the North Carolina Supreme Court in 1864, State v. Jesse Black, illustrates the trend. Jesse Black had been found guilty of assault and battery in criminal court for seizing his estranged wife by the hair, pinning her to the ground and holding her there, and severely injuring her throat. The state supreme court, in reversing Black's conviction, held that while the abuse could be considered severe by local standards, the wife had provoked the quarrel, therefore Black was simply controlling her outburst in a manner allowable under the law. As this case demonstrates, in the mid-nineteenth century women could turn to the law for protection from domestic violence, but the common law tradition allowing men wide discretionary authority in controlling their wives retained its influence in the reasoning of the courts.
Even when the law did find in their favor, women and children who were victims of abuse lacked the legal standing and economic power necessary to survive outside of the household, and so they often gained no actual relief. Early women's rights advocates redefined women's legal dependency on men as an injustice rather than merely an accepted social convention and worked to reform property and child custody laws to allow women greater control over their lives. The first conference devoted to the topic of women's rights, held in 1848 in Seneca Falls, New York, produced a declaration that in part criticized the law for granting husbands the power to "administer chastisement" to their wives.
By midcentury commercial capitalism had created a large middle class whose attitudes and values exerted considerable influence over American society as a whole. The new middle-class view regarded mothers and children less as productive members of the household and more as fulfillers of the family's spiritual and emotional needs. While violence within middle-class households remained largely hidden from public view, some reformers working in private charitable organizations began efforts to ameliorate the problem as they observed it among poor and working-class families. The Woman's Christian Temperance Union (WCTU), the single largest women's organization of the nineteenth century, focused on domestic violence as the most serious consequence of alcohol consumption. The WCTU invariably portrayed women as the helpless victims of male drunkenness, rarely publicly recognizing women as either alcoholics or abusers.
Most nineteenth-century reformers, however, viewed children as the primary victims of domestic violence. In actuality the majority of cases brought to their attention constituted child neglect rather than physical abuse. They exhibited little sympathy, however, for mothers who, because of the urgent need to earn family income, failed to meet middle-class expectations for the proper education, hygiene, and supervision of children. Abused women, to access the protective services they needed for themselves, commonly claimed that male members of the household were injuring the children. These services tended to be quite informal and highly personalized interactions between agency workers and their clients.
The Progressive Era
A change in American social welfare practices occurred in the last quarter of the nineteenth century. Social reformers of the Progressive Era (c. 1890–1920) believed problems such as chronic poverty, poor health, and domestic violence among poor and working-class Americans to be the result of larger systemic forces rather than the particularized problems of individuals. They worked to create a more efficient system for addressing domestic violence. Protective services became the province of professionals trained in the social sciences or the law rather than philanthropists, and both private and public relief organizations developed into more bureaucratized and rational, although also more impersonal, agencies. In addition Progressives urged that solving the problem required more active involvement on the part of the state.
By the early twentieth century the increasing social recognition of adolescence as a distinct stage of human development became an important dimension of efforts to address domestic violence. Largely influenced by the work of the psychologist G. Stanley Hall, Progressive reformers extended the chronological boundaries of childhood into the midteens and sought laws mandating that children stay in school and out of the workforce. Reformers also worked for the establishment of a juvenile justice system that would allow judges to consider the special psychological needs of adolescents and keep them separated from adult criminals in order to protect them from harmful influences. Consequently juvenile courts began to play a central role in adjudicating cases of domestic violence.
Individual states began to allow women more control over property and child custody, and in 1920 the Nineteenth Amendment prohibited states from denying women the vote. But while they had gained a measure of legal equality, most women still lacked sufficient economic and social resources to escape abuse in their households.
Although it is unlikely that its incidence actually decreased over the following decades, domestic violence as a social rather than a private concern retreated from its Progressive Era prominence. When abuse was addressed in popular media, such as magazines, films, and television, it was interpreted as the result of individuals' psychological weaknesses rather than as a systemic problem integrally tied to lingering social, political, and economic inequalities among the members of a household. Often these popular portrayals indicted mothers for being either too permissive or too demanding in raising their sons. Thus women were commonly identified as the responsible agents in perpetuating domestic violence rather than its disadvantaged victims. Such an unfavorable cultural climate obscured the social and economic roots of the problem and was a barrier to individuals bringing their claims to the courts for redress.
A sea change occurred in the 1960s as the product of two powerful and related forces, the civil rights movement and the emergence of modern feminism. The long crusade to bring full citizenship rights to African Americans engendered new movements to empower the poor and the disenfranchised. Campaigns for safe and adequate housing, equal opportunity in employment and education, and welfare rights redefined the many benefits of America's prosperous postwar years as entitlements for all citizens rather than privileges for a few. At the same time feminist legal scholars and political activists identified lingering manifestations of women's traditional social, economic, and legal subordination to men as severe impediments to full equality. Women's rights activists reclaimed domestic violence as a problem worthy of legal and social redress rather than merely an unfortunate dimension of intimate relations between men and women. Shelters for battered women proliferated as a response to this change.
In the 1960s the liberal Warren Court rendered a series of opinions that greatly expanded the protections the Constitution offered for citizens' rights. These interpretations were founded in the Fourteenth Amendment's guarantee that "no state shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Court's expansive reading of the amendment defined new rights of citizenship. In 1964 Congress passed a landmark Civil Rights Act that protected citizens against discrimination in housing, employment, and education based on race or gender. Within this renewed climate of civil rights activism, advocates for domestic violence victims sought to add protection against abuse to the growing list of citizens' constitutional protections.
In 1989 the Rehnquist Court heard the case DeShaney v. Winnebago County Department of Social Services. The case originated in an incident in which a custodial father had beaten his four-year-old son so badly that the child's brain was severely damaged. Emergency surgery revealed several previous brain injuries. Wisconsin law defined the father's actions as a crime, and he was sentenced to two years in prison. But the boy's noncustodial mother sued the Winnebago County Department of Social Services, claiming that caseworkers had been negligent in failing to intervene to help the child despite repeated reports by hospital staff of suspected abuse. Her claim rested in the Fourteenth Amendment, asserting that the state's failure to help her son amounted to a violation of his civil rights. The U.S. Supreme Court, however, ruled that the Fourteenth Amendment protects citizens' civil rights from violations arising from actions taken by the state, not from actions the state may fail to take. In other words, individuals do not enjoy an affirmative right to protection by the state from violence committed by a family member in the privacy of the home.
Critics of the DeShaney decision worked to reform the law to make protection against domestic violence a matter of civil rights. Feminists argued that, because the majority of abuse victims are women, domestic violence constitutes not solely a private wrong but a form of gender discrimination. The ever-present threat of violence, they asserted, prevents women from realizing their full potential in employment, in education, and in exercising the privileges of citizenship. In the early 1990s the states formed gender bias task force commissions, twenty-one of which reported that a number of pervasive practices in their legal systems resulted in discrimination against women. For example, they documented that crimes disproportionately affecting women tended to be treated much less seriously by law enforcement and the courts than comparable crimes in which the victims were men. In response Congress enacted the 1994 Violence Against Women Act (VAWA), the first federal legislation to provide legal remedies for domestic violence. The act's provisions required states to give full faith and credit to protection orders issued in other states; directed federal funding to increase the effectiveness of law enforcement and to support shelters for battered women; and amended the Federal Rules of Evidence to increase protections for rape victims. Most significantly the act established protection from gender-motivated violence as a civil right and allowed women to bring civil lawsuits to redress violations.
In 2000 the U.S. Supreme Court struck down the civil rights provisions of the VAWA. A university student in Virginia had been raped in her dormitory room by three assailants who had also verbally indicated their disdain for her as a female both during and after the rape. She subsequently filed suit against her attackers. In United States v. Morrison (2000) the Court ruled that Congress did not have the power to legislate the civil rights remedies contained in the VAWA. In providing them Congress relied on its constitutional authority over interstate commerce and its power to enforce the provisions of the Fourteenth Amendment safeguarding individual rights against infringement by the states. But the Court found that congressional powers under the commerce clause did not extend to regulating this area of law in the states. Further, because the civil rights remedies in the VAWA pertained to the actions of private individuals rather than the states, they did not have a basis in the Fourteenth Amendment. The Court's decision in United States v. Morrison has been both affirmed and criticized by legal scholars and the public. Disputes over the private and public dimensions of domestic violence therefore continued into the twenty-first century.
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"Domestic Violence." Dictionary of American History. 2003. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3401801252.html
"Domestic Violence." Dictionary of American History. 2003. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401801252.html
Any abusive, violent, coercive, forceful, or threatening act or word inflicted by one member of a family or household on another can constitute domestic violence.
Domestic violence, once considered one of the most underreported crimes, became more widely recognized during the 1980s and 1990s.
Various individuals and groups have defined domestic violence to include everything from saying unkind or demeaning words, to grabbing a person's arm, to hitting, kicking, choking, or even murdering. Domestic violence most often refers to violence between married or cohabiting couples, although it sometimes refers to violence against other members of a household, such as children or elderly relatives. It occurs in every racial, socioeconomic, ethnic, and religious group, although conditions such as poverty, drug or alcohol abuse, and mental illness increase its likelihood. Studies indicate that the incidence of domestic violence among homosexual couples is approximately equivalent to that found among heterosexual couples.
Domestic violence involving married or cohabiting couples received vast media attention during the 1990s. The highly publicized 1995 trial of former professional football player and movie actor O.J. (Orenthal James) Simpson for the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman thrust it onto the front pages of newspapers for many months. Simpson was acquitted of the murder charges, but evidence produced at his trial showed that he had been arrested in 1989 for spousal battery and that he had threatened to kill his ex-wife. The disclosure that a prominent sports figure and movie star had abused his wife prompted a national discussion on the causes of domestic violence, its prevalence, and effective means of eliminating it.
Despite the attention that domestic violence issues have received, publicized instances of domestic violence continue to occur. Like the case of o.j. simpson, several of these cases involved current or former athletes. Jim Brown, who, like Simpson, was both a famous football player and actor, received a six-month sentence in 2000 for vandalizing his wife's car during an argument. Also like Simpson, Brown had a history of alleged domestic-violence incidents, though he had not been convicted in the previous allegations.
Although thousands of cases involving domestic violence occur each year, those that involve celebrities continue to attract the most attention. In 1999, movie director John Singleton pled no-contest to charges of battering his girlfriend. Singleton is best known for such movies as Boyz 'n the Hood and Poetic Justice. In 2001, Rae Carruth, a player for the National Football League's Carolina Panthers, was found guilty of conspiracy to commit the murder of his former girlfriend, who had been carrying Carruth's child at the time of her death. Although he avoided the death penalty, Carruth was sentenced to up to 25 years in prison. Also in 2001, former heavyweight boxing champion Riddick Bowe was charged with third-degree assault for a fight with his wife.
Those who have studied domestic violence believe that it usually occurs in a cycle with three general stages. First, the abuser uses words or threats, perhaps humiliation or ridicule. Next, the abuser explodes at some perceived infraction by the other person, and the abuser's rage is manifested in physical violence. Finally, the abuser "cools off," asks forgiveness, and promises that the violence will never occur again. At that point, the victim often abandons any attempt to leave the situation or to have charges brought against the abuser, although some prosecutors will go forward with charges even if the victim is unwilling to do so. Typically, the abuser's rage begins to build again after the reconciliation, and the violent cycle is repeated.
In some cases of repeated domestic violence, the victim eventually strikes back and harms or kills the abuser. People who are repeatedly victimized by spouses or other partners often suffer from low self-esteem, feelings of shame and guilt, and a sense that they are trapped in a situation from which there is no escape. Some who feel that they have no outside protection from their batterer may turn to self-protection. During the 1980s, in a number of cases in which a victim of repeated domestic abuse struck back, the battered spouse defense was used to exonerate the victim. However, in order to rely on the battered-spouse defense, victims must prove that they genuinely and reasonably believed that they were in immediate danger of death or great bodily injury and that they used only such force as they believed was reasonably necessary to protect themselves. Because this is a very difficult standard to meet, it is estimated that fewer than one-third of victims who invoke the battered-spouse defense are acquitted.
Heightened awareness and an increase in reports of domestic violence has led to a widespread legal response since the 1980s. Once thought to be a problem that was best handled without legal intervention, domestic violence is now treated as a criminal offense. Many states and municipalities have instituted measures designed to deal swiftly and harshly with domestic abusers. In addition, governments have attempted to protect the victims of domestic violence from further danger and have launched programs designed to address the root causes of this abuse. One example is Alexandria, Virginia, which, in 1994, began prosecuting repeat abusers under a Virginia law (Va. St. § 18.2–57.2 Code 1950, § 18.2–57.2) that makes the third conviction for assault and battery a felony punishable by up to five years in prison. In addition, the city established a shelter for battered women, a victims' task force, and a domestic-violence intervention program that includes a mandatory arrest policy and court-ordered counseling. As a result, domestic homicides in Alexandria declined from 40 percent of all homicides in 1987, to 16 percent of those between 1988 and 1994. Other states have adopted similar measures. States that already had specific laws directed toward domestic violence toughened the penalties during the 1990s. For example, a 1995 amendment to California's domestic-abuse law (West's Ann. Cal. Penal Code §§ 14140–14143) revoked a provision that allowed first-time abusers to have their criminal record expunged if they attended counseling.
Public outrage over domestic violence also led to the inclusion of the violence against women act as title IV of the violent crime control and law enforcement act of 1994 (Pub. L. No. 103-322, 108 Stat. 1796 [codified as amended in scattered sections of 18 and 42 U.S.C.A.]). The act authorized research and education programs for judges and judicial staff to enhance knowledge and awareness of domestic violence and sexual assault. It also provided funding for police training and for shelters, increased penalties for domestic violence and rape, and provided for enhanced privacy protection for victims, although the U.S. Supreme Court struck it down as unconstitutional in 2000.
One of the more controversial portions of the original act made gender-motivated crimes a
violation of federal civil rights law. In 2000, the U.S. Supreme Court considered the application of this portion in United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). In that case, a woman brought suit against a group of University of Virginia students who allegedly had raped her. Although the district court found that the woman had stated a claim against the respondents, it held that Congress did not have authority to enact the provision under the commerce clause or § 5 of the fourteenth amendment to the U.S. Constitution. The U.S. Court of Appeals for the Fourth Circuit affirmed the decision, and the United States, which had intervened to defend the statute, appealed to the U.S. Supreme Court. The Court, per an opinion by Chief Justice william h. rehnquist, agreed with the lower courts, holding the Congress had exceeded its constitutional power. The result of the case is that the civil-remedy provisions in the original statute should fall under the purview of the states, rather than the federal government.
Studies on the incidence of domestic violence vary a great deal. Research conducted by Murray A. Straus of the University of New Hampshire and Richard J. Gelles of the University of Rhode Island, both veterans of extensive research into family violence, found that approximately four million people each year are victims of some form of domestic assault, ranging from minor threats and thrown objects to severe beatings. This number represents women and men who report suffering attacks by partners. In a 1995 survey conducted by Dr. Jeanne McCauley of Johns Hopkins University School of Medicine, one in three women responding to a confidential questionnaire indicated that she had been physically or sexually attacked, and half of these incidents had occurred before the age of 18. The National Coalition against Domestic Violence reported in 1993 that 50 percent of all married women will experience some form of violence from their spouse, and that more than one-third are battered repeatedly each year.
The justice department suggests that incidents of rape and assault against women at the hands of intimates dropped between 1993 and 2001. According to these statistics, 588,490 women were victims of rape and assault by intimates in 2001, down from 1.1 million in 1993. The same report noted that men were victims of 103,220 violent crimes by intimate partners, down from about 160,000 in 1993. Statistics regarding domestic violence against men have been in dispute for several years. Straus and Gelles reported that men were as likely to endure domestic assault as women, but that women were far more likely to be injured. Domestic-violence activists dispute the notion that men suffer domestic assault at approximately the same rate as women, and other statistical reports, including those issued by the department of justice, tend to support these claims.
Douglas, Heather, and Lee Godden. 2003. "The Decriminalisation of Domestic Violence: Examining the Interaction between the Criminal Law and Domestic Violence." Criminal Law Journal 27 (February): 32-43.
Rohr, Janelle, ed. 1990. Violence in America: Opposing Viewpoints. San Diego: Greenhaven Press.
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"Domestic Violence." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (August 29, 2016). http://www.encyclopedia.com/doc/1G2-3437701480.html
"Domestic Violence." West's Encyclopedia of American Law. 2005. Retrieved August 29, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437701480.html
Societies have made important gains in addressing the problem of domestic violence, particularly in the area of service delivery to its victims. However, millions of women are battered by their intimate partners every year in countries around the globe.
HISTORY AND OUTRAGE
During the 1960s, the women's liberation movement began drawing attention to violence committed against women, and the battered women's movement began to form. At its core was the outrage of women who argued that individual cases of violence against women in the home added up to an enormous and unacceptable social problem. By the end of the 1970s, statistics proved that isolated cases of abuse were part of a shocking national problem. Victims became more visible; so, too, did the inadequacy of society's response. The battered women's movement emerged, becoming one of the most powerful social justice and service movements in United States history.
Shelters and hotlines began to spring up around the country. What began as a social, service-based response to crisis began to take on political urgency. The staggering numbers of women and children turning to shelters perpetually outpaced the growth of the movement. The shelter work uncovered endless horror stories: law enforcement officials who mislabeled domestic disturbances, judges who ruled in favor of perpetrators, and health care providers who mishandled violence-related injuries. At every turn, women seeking help could expect indifference, hostility, and endangerment. It became clear that helping women in crisis required more than front-line emergency services. It required changing the established social institutions and creating or changing the laws that affected them. During the 1980s, a vibrant network of nearly two thousand domestic violence programs in the United States organized into state coalitions, formed to take on the challenge of pressuring social institutions to adequately respond to victims.
The 1990s proved to be a watershed decade. The Violence Against Women Act (VAWA, 1994) was passed, a major federal bill that provided more than $1 billion to assist shelters, train law enforcement personnel and judges, and support other crime-prevention efforts addressing violence against women. The decade also saw, via live television, the trial of football legend O. J. Simpson for allegedly murdering his former wife, Nicole, and her friend. Though he was eventually acquitted of criminal charges, Simpson's case prompted unprecedented media coverage of the issue of domestic violence.
DILEMMAS AND OPPORTUNITIES
The domestic violence movement clearly has a rich history of achievement. The critical front-line service provision crisis response, while central to saving some women's and children's lives, can never realize its mission: to reach out to all victims. Despite its rapid growth, the service system is unable to keep pace with widespread need. Prevalence statistics and anecdotal evidence all point to the epidemic nature of domestic violence: Nearly one-third of American women (31%) report being physically or sexually abused by a husband or boyfriend at some point in their lives. Yet only a small fraction of abused women ever go to a shelter.
The domestic violence movement's agenda remains predominantly shaped by the quest to improve services for, and to make laws accountable to, domestic violence victims. As a result, the notion of domestic violence prevention in North America and most of Europe relies heavily on punitive criminal intervention. Although the movement has consistently educated policymakers and other institutions, the advocacy community has not focused collective attention on developing an agenda for preventing domestic violence at its earliest stages.
The criminalization of domestic violence and the sensitizing of criminal justice agents should by no means be abandoned. However, emphasis must also be given to other sectors of society, including communities of faith, health delivery systems, and workplaces. Preachers, doctors, employers, coworkers, friends, and family members are all in a prime position to reach out to help women facing abuse, as well as to let batterers know—perhaps for the first time—that their behavior is simply unacceptable. Evidence suggests that many battered women are actually more comfortable talking with friends and family members about the violence in their lives than with trained domestic violence professionals whom they do not know. Developing leadership within each of these arenas, then, represents a huge potential for disseminating more broadly messages that can begin to change the social norms.
Unfortunately, pervasive cultural acceptance of domestic violence at all levels of society helps to explain how the justice system has historically responded to domestic violence. Typically, police have not taken the problem seriously, rarely arresting perpetrators. When battered women persevered and tried to press charges, district attorneys often refused to support their cases, and the cases that did make it to court were likely to be dismissed.
While laws have strengthened the ability to respond to domestic violence cases, covert attitudes that condone battering explain why inaction is the norm rather than the exception. According to a 1996 public opinion survey, almost half of Americans (47%) currently believe that men sometimes physically abuse women because they are stressed out or drunk, not because they intend to hurt them. Clearly the domestic violence movement has yet to cultivate widespread attitudes that condemn violent abuse of women.
RECREATING A SENSE OF OUTRAGE
One of the greatest challenges facing the domestic violence movement is the widespread perception that spousal abuse is a "private matter." Domestic violence is often perceived as private business between two individuals that requires therapy rather than intervention. Creative approaches are needed in order to move a private matter into the sphere of public concern and to translate that public concern into a widespread social consensus for action. A successful strategy would include the following: a comprehensible institutional change approach to empower individuals to make contributions through the institutional structures that touch their daily lives; an emphasis on prevention that is partnered with an ongoing commitment to victims; a multifaceted media campaign that begins to change the collective social consciousness; and a reigniting of the community-based, political activism that spawned the movement in the first place.
For example, in the early 1990s, The Family Violence Prevention Fund (FVPF) began to explore ways to strategically inject the politics of outrage back into the domestic violence movement in the United States, combining media and community-based activism into an overall approach. In 1994, the FVPF launched a nationwide media and grassroots organizing campaign called "There's No Excuse for Domestic Violence." It targets the friends, family, and coworkers of victims of abuse who sanction the violence with their silence and whose actions can help change social norms. The campaign includes public service announcements that trumpet the campaign's key messages that "domestic violence is everybody's business" and "there's no excuse for it." In one powerful print ad, viewers are confronted with the image of a man brutally beating his cowering wife, under the words: "If the noise coming from next door were loud music, you'd do something about it." These public service announcements provide a toll-free number individuals can call for a free action kit, which details concrete ways people can address abuse in their workplaces and communities.
These and other programs that generate and communicate this kind of collective sense of indignation about the problem of domestic violence work toward a broader, more comprehensive approach that involves ever more components of society. Their aim is to proactively affect public policy and wide-ranging institutional policies, community responsibility, and individual action, and to move a "private issue" into a public space in which domestic violence is forbidden.
(see also: Alcohol Use and Abuse; Antisocial Behavior; Gun Control; Homicide; Violence )
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