Domestic Violence

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DOMESTIC VIOLENCE

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.

Common Law

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.

Civil Rights

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.

BIBLIOGRAPHY

Gordon, Linda. Heroes of Their Own Lives: The Politics and History of Family Violence: Boston, 1880–1960. New York: Viking, 1988.

MacKinnon, Catharine A. Sex Equality. New York: Foundation Press, 2001.

Taylor, Betty, Sharon Rush, and Robert J. Munro, eds. Feminist Jurisprudence, Women, and the Law: Critical Essays, Research Agenda, and Bibliography. Littleton, Colo.: F. B. Rothman, 1999.

Wallace, Harvey. Family Violence: Legal, Medical, and Social Perspectives. Boston: Allyn and Bacon, 1996.

LynneCurry