Chapter 9
Domestic Violence, Law Enforcement, and Court Responses to Domestic Violence

Police Response to Domestic Violence
Reporting Domestic Violence to the Police
Outcome of Police Intervention
Not All Victims who Seek Police Attention are the Same
Protection Orders
Landmark Legal Decisions
Key Domestic Violence Legislation
Difficulties in the Court System
Treatment for Male Batterers

Police Response to Domestic Violence

Family disturbance calls constitute most of the calls received by police departments throughout the country. Historically, such calls were not been taken seriously, which reflects society's attitude about domestic violence at the time. For instance, in the mid-1960s Detroit police dispatchers were instructed to screen out family disturbance calls unless they suspected “excessive” violence. A 1975 police guide, The Function of the Police in Crisis Intervention and Conflict Management, taught officers to avoid arrest at all costs and to discourage the victim from pressing charges by emphasizing the consequences of testifying in court, the potential lost income, and other detrimental aspects of prosecution.

Changes in society's tolerance for domestic violence mean that these approaches to domestic violence no longer enjoy official support (although they may still influence the actions of individual officers). By 2008 every state had moved to authorize probable cause arrests (arrest before the completion of the investigation of the alleged violation or crime) without a warrant in domestic violence cases. (A warrant is a written legal document authorizing a police officer to make a search, seizure, or arrest.) Many police departments have adopted pro-arrest or mandatory arrest policies. Pro-arrest strategies include a range of sanctions from issuing a warning, to mandated treatment, to prison time.

The police are often an abuse victim's initial contact with the judicial system, making the police response particularly important. The manner in which the police handle a domestic violence complaint will likely color the way the victim views the entire judicial system. Not surprisingly, when police project the blame for intimate partner violence on victims, the victims may be reluctant to report further abuse.

In Criminal Victimization in the United States, 2005 Statistical Tables (December 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/cvus05.pdf), which analyzes data from the National Crime Victimization Survey (NCVS), the Bureau of Justice Statistics (BJS) reports that in 2005, 47.4% of all violent crimes were reported to the police. Out of violent crimes reported to the police, the police came to the aid of victims in 78.2% of cases, the victim went to the police 3.2% of the time, and the police did not come 11% of the time. (See Table 9.1.) Police came to the aid of more victims of robbery (84.8%) and aggravated assault (79%), while coming less often to the aid of victims of purse snatching or pocket picking (64.2%).

The BJS notes that in 2005, 54.6% of female victims of violence had reported the crime to the police. (See Table 9.2.) However, only 38.5% of female victims of rape or sexual assault reported the crime.

Reporting Domestic Violence to the Police

It is well established that a significant amount of intimate partner violence is unreported or underreported. In the past most women did not report incidents of abuse to the police. In the 1985 National Family Violence Resurvey, Murray A. Straus and Richard J. Gelles find that only 6.7% of all husband-to-wife assaults were reported to police. When the assaults are categorized by severity as measured on a Conflict Tactics Scale, only 3.2% of minor violence cases and 14.4% of severe violence cases were reported.

The women who chose not to report their abuse cited a variety of reasons, including fear of retaliation, loss of income, or loss of their children to child protection authorities. When abuse is reported to law enforcement agencies, it is often by health care professionals from whom the woman has sought treatment for her injuries. In many states health professionals are mandated by law to report all instances of domestic violence to law enforcement authorities.

Table 9.2 shows that in 2005 women who were victims of violent crime at the hands of strangers were more likely to report the crime than were women who were victimized by nonstrangers (59.3% and 51.4%, respectively). People who reported crimes of violence to the police reported various reasons for doing so, including to prevent further crimes by offender against the victim (19.6%) or anyone else (10.4%), to stop or prevent that incident (20.1%), to punish the offender (8.1%), to catch or find the offender (7.4%), or simply because it was a crime (15.1%). (See Table 9.3.)

People who did not report violent crime to the police often said it was a personal matter (20.3%), the police

would not want to be bothered (5.5%) or would be ineffective or biased (4%), and fear of reprisal (3.8%). (See Table 9.4.) Reasons varied according to whether the crime was perpetrated by a stranger or a nonstranger. For example, 31.1% of rape and sexual assault victims who were violated by a nonstranger and who did not report the crime to police said they did not report the victimization because it was a private or personal matter; no one raped by a stranger gave this reason. (See Table 9.5.) Similarly, 27% of people assaulted by a nonstranger and who did not report the crime said it was because it was a private or personal matter, whereas only 15.3% of nonreporters who were assaulted by a stranger gave this reason.

Shannan Catalano of the BJS reports in Intimate Partner Violence in the United States (December 2007, http://www.ojp.usdoj.gov/bjs/intimate/report.htm) that in 2004–05, 62.1% of female victims of intimate partner violence and 64.3% of male victims reported the violence to police. The percentage of both men and women who reported the violence to the police had risen since 1994–95.

Between 2001 and 2005 African-American females were the most likely to report intimate partner violence to police (70.2%), whereas African-American males were the least likely (46.5%). (See Figure 9.1.). Hispanic males were much more likely than non-Hispanic males to report intimate partner violence (86.2% and 53.2%, respectively), whereas Hispanic females were slightly more likely than non-Hispanic females to report (66.3% and 58.6%, respectively). (See Figure 9.2.)

Male and female victims of intimate partner violence who did not report the violence to police differed in the reasons they did not report. Nearly four out of ten (39.2%) male victims said they did not report because it was a private matter, compared to 21.8% of female victims. (See Table 9.6.) By contrast, female victims were much more likely to state they feared reprisal (12.4% and 5.3%, respectively). Other reasons reported included to protect the offender, because victims viewed it as a minor crime, or because victims believed the police were ineffective or would not do anything.

In The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police (March 2005, http://www.ncjrs.gov/pdffiles1/nij/grants/209039.pdf), Richard Felson and Paul-Philippe Pare´ use data from the NCVS to examine the effects of the gender of the victim and the relationship between victim and offender on the victim's decision to report or not report a physical or sexual assault to the police. They find that victims are just as likely to report assaults by intimate partners as they are to report assaults by other people they know. Sexual assaults are less likely to be reported than are physical assaults.

Marsha E. Wolf et al., in “Barriers to Seeking Police Help for Intimate Partner Violence” (Journal of Family Violence, vol. 18, no. 2, April 2003), interviewed forty-one battered women to find out what kept them from calling police. The factors cited included the idea that they must have physical proof that battering had occurred, the desire to avoid a humiliating physical examination in the case of rape or sexual abuse, cultural attitudes about domestic violence, poor self-esteem, being physically prevented from calling the police by the batterer, poor police response when battering was previously reported, and fears of possible retaliation by the batterer or removal of children from the home by child protective services. These women also came up with a “wish list” for how they wanted police to treat them when they called about domestic violence. This list, in the words of Wolf et al., “reflects the women's desires to have responsive police who treat victims with dignity, listen to them, and send appropriate messages to victims and batterers.”

Outcome of Police Intervention

In the early 1970s it was legal for the police to make probable cause arrests without a warrant for felonies, but only fourteen states permitted it for misdemeanors. Because the crime of simple assault and battery is a misdemeanor in most states, family violence victims were forced to initiate their own criminal charges against a batterer. By 2008, however, all states authorized warrantless probable cause misdemeanor arrests in domestic violence cases. However, more than half of the states have added qualifiers, such as visible signs of injury or

a report of the violence within eight hours of the incident. Most state codes authorizing warrantless arrests require

police to inform victims of their rights, which include the acquisition of protection orders and referral to emergency and shelter facilities and transportation.

In “Determining Police Response to Domestic Violence Victims” (American Behavioral Scientist, vol. 36, no. 5, May–June 1993), a landmark study of four precincts of the Detroit Police Department and their responses to domestic violence in 1993, Eve S. Buzawa and Thomas Austin document several factors that affected police decisions to arrest offenders:

• The presence of bystanders or children during the abuse
• The presence of guns and sharp objects as weapons
• An injury resulting from the assault
• The offender and victim sharing the same residence whether they were married or not
• The victim's desire to have the offender arrested (of the victims who expressed such a desire, arrests were made in 44% of the cases; when the victim did not want the offender arrested, arrests were made in only 21% of the cases)

Mandatory Arrests

Arrest gained popularity as a tactic after the publication of the first in a series of six studies funded by the National Institute of Justice known as the Spouse Assault Replication Program. All the studies were designed to explain how arrest in domestic violence cases could serve as a deterrent to future violence. Lawrence W. Sherman and Richard A. Berk, the authors of the influential first study in the series, “The Specific Deterrent Effects of Arrest for Domestic Assault” (American Sociological Review, vol. 49, 1984), find that “the arrest intervention certainly did not make things worse and may well have made things better.”

Even though Sherman and Berk caution about generalizing the results of a small study dealing with a single police department in which few police officers properly followed the test procedure, they conclude that in instances of domestic violence, an arrest is advisable except in cases where it would be clearly counterproductive. At the same time, Sherman and Berk recommend allowing police a certain amount of flexibility when making decisions about individual situations, on the premise that police officers must be permitted to rely on professional judgment based on experience.

Sherman and Berk's study had a tremendous impact on police practices, although J. David Hirschel, Ira W. Hutchison III, and Charles W. Dean explain in “The Failure of Arrest to Deter Spouse Abuse” (Journal of Research in Crime and Delinquency, vol. 29, no. 1, 1992) that the five other Spouse Assault Replication Program studies found arrest had little or no effect on domestic violence recurrence. Some police departments have adopted a presumptive arrest policy. This policy means that an arrest should be made unless clear and compelling reasons exist not to arrest. Presumptive arrest provisions forbid officers from basing the decision to arrest on the victim's preference or on a perception of the victim's willingness to testify or participate in the proceedings. Proponents point out that arresting an offender gives the victim a respite from fear and an opportunity to look for help. Furthermore, they claim it prevents bias in arrests.

By the 1990s as many as one out of three police precincts had adopted a mandatory arrest policy in domestic abuse cases. In “The Influence of Mandatory Arrest Policies, Police Organizational Characteristics, and Situational Variables on the Probability of Arrest in Domestic Violence Cases” (Crime and Delinquency, vol. 51, no. 4, 2005), David Eitle of the Florida International University finds that mandatory police arrest policies do result in more arrests when called to the scene of a domestic assault. In addition, he notes that these policies reduce somewhat the overrepresentation of African-Americans among those arrested. However, do these arrests reduce violence against women?

Some studies suggest that mandatory arrest policies have positive effects. For example, Jacquelyn C. Campbell et al. explain in “Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study” (American Journal of Public Health, vol. 93, no. 7, July 2003) that previous arrest for battering actually decreased women's risk of being subsequently killed by the batterer. According to Christopher D. Maxwell, Joel H. Garner, and Jeffrey A. Fagan, in “The Effects of Arrest on Intimate Partner Violence: New Evidence from the Spouse Assault Replication Program” (July 2001, http://www.ncjrs.gov/pdffiles1/nij/188199.pdf), arrest of batterers is consistently related to subsequent reduced aggression against their intimate partner.

However, Debra Houry, Sudha Reddy, and Constance Parramore of Emory University suggest in “Characteristics of Victims Coarrested for Intimate Partner Violence” (Journal of Interpersonal Violence, vol. 21, no. 11, 2006) that some battered women's advocates do not support mandatory arrest. They fear that poor and minority families are treated more harshly than middle-class families and that if the police arrive and both spouses are bloodied by the fight, both will be arrested, forcing the children into foster care. In fact, Mary A. Finn and Pamela Bettis of Georgia State University state in “Punitive Action or Gentle Persuasion” (Violence against Women, vol. 12, no. 3, 2006) that “mandatory and preferred arrest policies may be resulting in a backlash for victims who are arrested along with their batterers. Officers justified arrest of both parties, citing that such was required by law and the desire to force both parties to obtain counseling for their relationship.”

In “The Voices of Domestic Violence Victims: Predictors of Victim Preference for Arrest and the Relationship between Preference for Arrest and Revictimization” (Crime and Delinquency, vol. 49, no. 2, April 2003), David Hirschel and Ira W. Hutchinson find support for a police policy of taking victim preferences into account in the decision to arrest. Victims based their preferences for arrest on the seriousness of the violence and the perpetrator's previous abusive behavior; in fact, victims proved to be good judges of the seriousness of the violence and the likelihood of it recurring. The researchers indicate that victims who wanted their abuser arrested were more likely to suffer subsequent abuse than were victims who did not want their batterer arrested. Hirschel and Hutchinson state that “based on these data, victim desire for arrest of the offender would appear to be a factor that police should take into account in determining subsequent action.”

DO MANDATORY ARREST POLICIES DISEMPOWER THE VICTIM? Paula C. Barata and Frank Schneider examine in “Battered Women Add Their Voices to the Debate about the Merits of Mandatory Arrest” (Women's Studies Quarterly, vol. 32, no. 3–4, 2004) the debate about mandatory arrest policies from a different angle: from the victim's viewpoint. They find that a large proportion of battered women actually support a mandatory arrest policy, although they “were more likely to see the benefits of mandatory arrest for other victims/survivors than for themselves.” Barata and Schneider hypothesize that battered women's support for mandatory arrest policies in their own situations was influenced by factors such as love for their battering partner, their fear of retaliatory abuse, or their worries about money.

Battered women whose partner had been arrested generally described a pattern of initial decreased violence when the batterer was removed from the home, but an increase in violence when the abuser, who was potentially angry about being arrested, returned home. Nearly four out of ten (38.5%) of the women interviewed believed the threat of another arrest would decrease the violence in the long run.

However, despite their disbelief in deterrence, a majority of women still thought that domestic violence was a crime, not a family problem, and several participants liked mandatory arrest policies because they proved to the abuser that assault is wrong and will be punished by the legal system. In fact, most of the battered women interviewed by Barata and Schneider did not view mandatory arrest policies as disempowering. The researchers argue that this is for two reasons: first, victims do not want the responsibility for deciding if their battering partner will be arrested and were relieved when the decision was taken out of their hands, and second, victims of battering do not believe they have much influence over the decision to arrest, even without a mandatory arrest policy in place. Also, the vast majority of women believed mandatory arrest policies made police take their abuse more seriously.

JoAnn Miller of Purdue University also studied victims’ perceptions of empowerment or disempowerment as a result of arrest. In “An Arresting Experiment: Domestic Violence Victim Experiences and Perceptions” (Journal of Interpersonal Violence, vol. 18, no. 7, July 2003), she examined two concepts of power: personal power (control of economic and social resources) and legal power (perceived empowerment in response to police intervention). Miller finds that women did not use their sense of personal power (derived from an independent income) to end domestic violence. However, she notes that victims’ perception of legal power (derived from their satisfaction with the police action taken) could be used to feel safer and to control interactions with a violent partner in the future. In Miller's view, mandatory arrest policies tend to undermine victims’ personal power because they do not take into account victims’ needs.

Victims’ Attitudes toward Police Response

In “Perceptions of the Police by Female Victims of Domestic Partner Violence” (Violence against Women, vol. 9, no. 11, November 2003), Robert Apsler, Michele R. Cummins, and Steven Carl investigate “what female victims of domestic violence wanted from the police, the extent to which they perceived they obtained what they wanted, and how helpful they found the actions of the police.” They find that women in the study were satisfied with the police response to their call. The women believed the police had been helpful, and more than 80% of them said they would definitely call the police for help in the future. Apsler, Cummins, and Carl emphasize that the particular police department involved in the study had recently instituted policies specifically designed to help battered women.

Not All Victims who Seek Police Attention are the Same

Another study by Apsler, Cummins, and Carl points out the need for a police response tailored to individual victims’ needs. In “Fear and Expectations: Differences among Female Victims of Domestic Violence Who Come to the Attention of Police” (Violence and Victims, vol. 17, no. 4, August 2002), Apsler, Cummins, and Carl report that one-quarter of women who had come to a police department requesting intervention in a violent intimate partner dispute said they were afraid of their abuser. Another 6% were fairly afraid, 12% said they were slightly afraid, and 36% claimed they were not at all afraid of their abuser. Taken together, these latter two groups accounted for nearly half of participants reporting little or no fear of their abuser.

The results were similar in terms of participants’ expectations of future abuse. Apsler, Cummins, and Carl find that just 21% of victims thought future abuse was likely, and well over half of women surveyed said future abuse was not at all likely or only slightly likely. These findings challenge long-standing beliefs that the victims who tend to come to the attention of the police are those who most fear future abuse.

Interestingly, there were no statistically significant relationships found between victims’ expectations of future violence and whether they lived with their abuser, had children under eighteen years old, or were able to support themselves financially. A less surprising result was that victims’ expectations of future abuse strongly influenced their desired future relationship with their offender. A strong majority (90%) of the participants who thought future abuse was fairly likely or likely wanted to permanently separate from the offenders. In contrast, only about half of the women who thought further abuse was not at all likely wanted permanent separation.

Apsler, Cummins, and Carl conclude that the differences between victims of domestic violence and their varied expectations when seeking police attention point to a need for law enforcement agencies to offer a variety of police responses tailored to victims’ needs. For example, they suggest that mandatory arrest of victims’ aggressors might not help as a universally applicable strategy for all victims, especially women who do not fear further abuse. By contrast, fearful victims might be reassured and experience greater security if police maintained regular, ongoing contact with them following the incident. Apsler, Cummins, and Carl add that police follow-up might also send a powerful message to perpetrators—that they are under surveillance and that future violations will not be tolerated.

Protection Orders

What Are They?

An abuse victim in any state may go to court to obtain a protection order. Also referred to as “restraining orders” or “injunctions,” civil orders of protection are legally binding court orders that prohibit an individual who has committed an act of domestic violence from further abusing the victim. Even though the terms are often used interchangeably, restraining orders usually refer to short-term or temporary sanctions, whereas protection orders have longer duration and may be permanent. These orders generally prohibit harassment, contact, communication, and physical proximity to the victim. Protection orders are common and readily obtained, but they are not always effective.

All states and the District of Columbia have laws that allow an abused adult to petition the court for an order of protection. States also have laws to permit people variously related to the abuser to file for protection orders. Relatives of the victim, children of either partner, couples in dating relationships, same-sex couples, and former spouses are among those who can file for a protection order in a majority of the states, the District of Columbia, and Puerto Rico. In Hawaii and Illinois, those who shelter an abused person can also obtain a protective order against the abuser.

Petitioners may file for protection orders in circumstances other than violent physical abuse, including sexual assault, marital rape, harassment, emotional abuse, and stalking. Protection orders are valid for varying lengths of time depending on the state. In thirty states the orders are in force for six months to a year. In Illinois and Wisconsin the orders last two years, and in California and Hawaii they are in effect for three years. Furthermore, some states have extended the time during which a general or incident-specific protective order is effective. For example, a no-contact order issued against a stalker convicted in California remains in effect for ten years. In Iowa five-year protection orders are issued and additional five-year extensions may be obtained. New Jersey offers permanent protective orders, and a conviction for stalking serves as an application for a permanent restraining order. Judges in Connecticut may issue standing criminal restraining orders that remain in effect until they are altered or revoked by the court.

Protection orders give victims an option other than filing a criminal complaint. Issued quickly, usually within twenty-four hours, they provide safety for the victim by barring or evicting the abuser from the household. Statutes in most states make violating a protection order a matter of criminal contempt, a misdemeanor, or even a felony. However, this judicial protection has little meaning if the police do not maintain records and follow through with arrest should the abuser violate the order.

The “full faith and credit” provision of the Violence against Women Act was passed to establish nationwide enforcement of protection orders in courts throughout the country. States, territories, and tribal lands were ordered to honor protection orders issued in other jurisdictions— although the act did not mandate how these orders were to be enforced. According to Christina DeJong and Amanda Burgess-Proctor of Michigan State University, in “A Summary of Personal Protection Order Statutes in the United States” (Violence against Women, vol. 12, no. 1, January 2006), most states have amended their state domestic violence codes or statutes to reflect the new requirement, although the states vary widely on how easy it is for battered women to get their protection orders enforced. Courts and law enforcement agencies in most states have access to electronic registries of protection orders, both to verify the existence of an order and to assess whether violations have occurred.

Effects of Protection Orders

In “Protection Orders and Intimate Partner Violence: An 18-Month Study of 150 Black, Hispanic, and White Women” (American Journal of Public Health, vol. 94, no. 4, April 2004), Judith McFarlane et al. report on their study of the effects on intimate partner violence of the application for and receipt of a two-year protection order against abusers. The researchers interviewed 150 women over an eighteen-month period to determine whether protection orders diminished violence. Even though almost half (44%) of the women reported at least one violation of the order, McFarlane et al. find significant reductions in physical assaults, stalking, and threats of assault over time among all women who applied for a protection order, even if they had not been granted the order. McFarlane et al. hypothesize that it was not the protection order itself that led to the diminished violence but the contact with the criminal justice system that exposed the battering to public view.

Victoria L. Holt et al. come to a similar conclusion in “Do Protection Orders Affect the Likelihood of Future Partner Violence and Injury?” (American Journal of Preventive Medicine, vol. 24, no. 1, January 2003), a study of 448 female victims of intimate partner violence. The researchers measured the number of unwelcome calls or visits, threats, threats with weapons, psychological, sexual, or physical abuse, and abuse-related medical care among women who had obtained a civil protection order and those who had not. Holt et al. find that women who obtained a protection order following an abusive incident had a significantly decreased risk of contact by the abuser, threats by weapons, injury, and abuse-related medical care.

Enforcement of Orders of Protection

Robert J. Kane of the American University examines in “Police Responses to Restraining Orders in Domestic Violence Incidents” (Criminal Justice and Behavior, vol. 27, no. 5, 2000) arrest patterns of batterers who violate restraining orders. Even though all the violators in his study were required by Massachusetts state law to be immediately arrested, in reality only between 20% and 40% of violators of restraining orders were taken into custody. Kane finds that restraining orders had no significant effect on arrest rate; instead, police perception of imminent danger to the victim was the strongest predictor of arrest. He also finds that as the number of domestic violence calls from one victim to police increased, the rate of arrest decreased, regardless of whether a restraining order was in place. Kane suggests that further studies should be done into variations in arrest rates that include personal characteristics of police officers and the social contexts of the couples involved in domestic violence incidents.

The U.S. Department of Justice observes in Enforcement of Protective Orders (January 2002, http://www.ojp.usdoj.gov/ovc/publications/bulletins/legalseries/bulletin4/ncj189190.pdf) that even though all the states have passed some form of legislation to benefit victims of domestic violence, and thirty-two states have integrated these rights at the constitutional level, the scope and enforcement of these rights varies. The Department of Justice calls for law enforcement agencies, prosecutors, and judges to be completely informed about the existence and specific terms and requirements of orders and to act to enforce them. Furthermore, it asserts that “unequivocal standardized enforcement of court orders is imperative if protective orders are to be taken seriously by the offenders they attempt to restrain.”

Landmark Legal Decisions

Before the 1962 landmark case Self v. Self (58 Cal. 2d 683), when the California Supreme Court ruled that “one spouse may maintain an action against the other for battering,” women had no legal recourse against abusive partners. The judicial system had tended to view wife abuse as a matter to be resolved within the family. Maintaining that “a man's home is his castle,” the federal government traditionally had been reluctant to violate the sanctity of the home. Furthermore, many legal authorities persisted in “blaming the victim,” maintaining that the wife was, to some degree, responsible for her own beating by somehow inciting her husband to lose his temper.

Yet even after Self v. Self, turning to the judicial system for help was still unlikely to bring assistance to or result in justice for victims of spousal abuse. Jurisdictions throughout the United States continued to ignore the complaints of battered women until the late 1970s.

Many victims of domestic violence have sought legal protection from their abusive partner. This section summarizes the outcomes of several landmark cases that not only helped define judicial responsibility but also shaped the policies and practices aimed at protecting victimized women.

Baker v. The City of New York

Sandra Baker was estranged from her husband. In 1955 the local domestic relations court issued a protective order directing her husband, who had a history of serious mental illness, “not to strike, molest, threaten, or annoy” his wife. Baker called the police when her husband created a disturbance at the family home. When a police officer arrived, she showed him the court order. The officer told her it was “no good” and “only a piece of paper” and refused to take any action.

Baker went to the domestic relations court and told her story to a probation officer. While making a phone call, she saw her husband in the corridor. She went to the probation officer and told him her husband was in the corridor. She asked if she could wait in his office because she was “afraid to stand in the room with him.” The probation officer told her to go to the waiting room. Minutes later, her husband shot and wounded her.

Baker sued the city of New York, claiming that the city owed her more protection than she was given. The New York State Supreme Court Appellate Division, in Baker v. The City of New York (1966), agreed that the city of New York failed to fulfill its obligation. The court found that she was “a person recognized by order of protection as one to whom a special duty was owed . . . and peace officers had a duty to supply protection to her.” Neither the police officer nor the probation officer had fulfilled this duty, and both were found guilty of negligence. Because the officers were representatives of the city of New York, Baker had the right to sue the city.

Equal Protection

Another option desperate women have used in response to unchecked violence and abuse is to sue the police for failing to offer protection, alleging that the police violated their constitutional rights to liberty and equal protection under the law. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause prohibits states from arbitrarily classifying individuals by group membership. If a woman can prove that a police department has a gender-based policy of refusing to arrest men who abuse their wives, she can claim that the policy is based on gender stereotypes and therefore violates the equal protection law.

THURMAN V. CITY OF TORRINGTON. Between October 1982 and June 1983 Tracey Thurman repeatedly called the Torrington, Connecticut, police to report that her estranged husband was threatening her life and that of her child. The police ignored her requests for help no matter how often she called or how serious the situation became. At one point her husband attacked her in view of the police and was arrested. Thurman obtained protection and restraining orders against him after this incident. However, when her husband later came to her home and threatened her again, in violation of his probation and the court orders, police refused to intervene.

On June 10, 1983, Thurman's husband came to her home. She called the police. He then stabbed her repeatedly around the chest, neck, and throat. A police officer arrived twenty-five minutes later but did not arrest her husband, despite the attack. Three more police officers arrived. The husband went into the house and brought out their child and threw him down on his bleeding mother. The officers still did not arrest him. Even though his wife was on the stretcher waiting to be placed in the ambulance, he came at her again. Only at that point did police take him into custody. Thurman later sued the city of Torrington, claiming she was denied equal protection under the law.

In Thurman v. City of Torrington (595 F. Supp. 1521 [D. Conn. 1984]), the U.S. District Court for Downstate Connecticut agreed, stating:

City officials and police officers are under an affirmative duty to preserve law and order, and to protect the personal safety of people in the community. This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relationship as well as to all other people whose personal safety is threatened. . . . A police officer may not . . . automatically decline to make an arrest simply because the assailant and his victim are married to each other. Such inaction on the part of the officer is a denial of the equal protection of the laws.

There could be no question, the court concluded, that the city of Torrington, through its police department, had “condoned a pattern or practice of affording inadequate protection or no protection at all, to women who complained of having been abused by their husbands or others with whom they have had close relations.” Therefore, the police had failed in their duty to protect Tracey Thurman and deserved to be sued.

Due Process

The Due Process Clause of the Fourteenth Amendment provides that no state can “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.” It does not, however, obligate the state to protect the public from harm or provide services that would protect them. Rather, a state may create special conditions in which that state has constitutional obligations to particular citizens because of a special relationship between the state and the individual. Abused women have used this argument to claim that being under a protection order puts them in a special relationship.

MACIAS V. HIDE. During the eighteen months before her estranged husband, Avelino Macias, murdered her at her place of work, Maria Teresa Macias had filed twenty-two police complaints. In the months before her death, Avelino Macias sexually abused his wife, broke into her home, terrorized, and stalked her. The victim's family filed a wrongful death lawsuit against the Sonoma County Sheriff's Department in California, accusing the department of failing to provide Macias equal protection under the law and of discriminating against her as a Hispanic and a woman.

The U.S. District Court for the Northern District of California dismissed the case because Judge D. Lowell Jensen (1928–) said there was no connection between Macias's murder and how the sheriff's department had responded to her complaints. In Macias v. Hide (No. 99-15662 [2000]), the U.S. Court of Appeals for the Ninth Circuit reversed the earlier decision and ruled that the lawsuit could proceed with the discovery phase and pretrial motions. Judge Arthur L. Alarcon (1935–) of the U.S. Court of Appeals for the Ninth Circuit conveyed the unanimous opinion of the court when he wrote, “It is well established that ‘there is no constitutional right to be protected by the state against being murdered by criminals or madmen.’ There is a constitutional right, however, to have police services administered in a nondiscriminatory manner—a right that is violated when a state actor denies such protection to disfavored persons.”

After this decision the case proceeded to trial. In June 2002 Sonoma County agreed to pay $1 million to the Macias family to settle the case. The settlement agreement did not include an admission of any wrongdoing by the county. Nevertheless, domestic violence activists lauded the result.

TOWN OF CASTLE ROCK V. GONZALES. The U.S. Supreme Court reaffirmed in 2005 that governments are not required to offer citizens protection from violent abusers. According to the case Town of Castle Rock, Colorado v. Gonzales (000 U.S. 04-278 [2005]), Jessica Gonzales's three children were taken from her home by her estranged husband in violation of an order of protection. When she alerted the police and repeatedly asked them for assistance, they made no effort to find the children or enforce the state's mandatory arrest law. The children were killed later that night. Gonzales sued the town, arguing that by failing to respond to her calls the police had violated her right to due process of law, and the case eventually reached the U.S. Supreme Court. In its review, the Court found in June 2005 that “Colorado law has not created a personal entitlement to enforcement of restraining orders” and that the state's law did not really require arrest in all cases, but actually left considerable discretion in the hands of the police. So even though the Castle Rock police made a tragically incorrect decision in this case, they did not do so in violation of Gonzales's due process rights. The American Civil Liberties Union subsequently filed the case with the Inter-American Commission on Human Rights, arguing that domestic violence victims have the right to be protected by the state from their abuser. The commission heard the case in March 2007. In October 2007 the commission decided to admit the case. In the next phase, the commission will decide whether the human rights of Gonzales and her children were violated.

Key Domestic Violence Legislation

Even though appealing to the judicial system for help will not solve all the problems an abused woman faces, the reception a battered woman can expect from the system— police, prosecutors, and courts—improved markedly in the late twentieth century. The Violence against Women Act, signed into law by President Bill Clinton (1946–) in September 1994, did much to help. The act simultaneously strengthened prevention and prosecution of violent crimes against women and provided law enforcement officials with the tools they needed to prosecute batterers. Even though the system is far from perfect, legal authorities are far more likely to view abuse complaints as legitimate and serious than they had in the past.

The Violence against Women Act

A key provision in the Violence against Women Act, the civil rights provisions of Title III, declares that violent crimes against women motivated by gender violate victims’ federal civil rights—giving victims access to federal courts for redress. In 2000 the civil rights section of the act was tested in the U.S. Supreme Court. Christy Brzonkala, an eighteen-year-old freshman at Virginia Polytechnic Institute, was violently attacked and raped by two men, Antonio Morrison and James Crawford, on September 21, 1994. Brzonkala did not immediately report the rape, and no physical evidence of the rape was preserved. Two months later, she filed a complaint with the school; after learning that the college took limited action against the two men, she withdrew from the school and sued her assailants for damages in federal court.

Brzonkala's case reached the Supreme Court in 2000. Briefs in favor of giving victims of gender-based violence access to federal courts were filed by dozens of groups (such as the American Medical Women's Association, the National Association of Human Rights Workers, the National Coalition against Domestic Violence, and the National Women's Health Network) as well as by law scholars and human rights experts. However, in May 2000 five of the Supreme Court justices decided in United States v. Morrison et al. (529 U.S. 598) that Congress could not enact a law giving victims of gender-motivated violence access to federal civil rights remedies. The majority opinion emphasized that “the Constitution requires a distinction between what is truly national and what is truly local” —and it ruled that the violent assault of Christy Brzonkala was local.

In October 2000 Congress responded to the Supreme Court decision by passing new legislation, the Victims of Trafficking and Violence Protection Act. The new statute included these titles: Strengthening Law Enforcement to Reduce Violence against Women, Strengthening Services to Victims of Violence, Limiting the Effects of Violence on Children, and Strengthening Education and Training to Combat Violence against Women. The act allocated $3.3 billion over five years to fund traditional support services along with prevention and education about dating violence, rape, and stalking via the Internet, as well as new programs for transitional housing and expanded protection for immigrant women. The new act did not mention women's civil rights. The Violence against Women Act was reauthorized in 2005, providing funding to programs through 2009.

Domestic Violence Gun Ban

Federal law includes batterers convicted of domestic violence crimes or those with domestic violence protection orders filed against them among the people who are prohibited from owning or carrying guns. Since 1994, most people attempting to purchase guns in the United States have had to pass a background check first. In Background Checks for Firearm Transfers, 2006 Statistical Tables (March 19, 2008, http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft06st.pdf), the BJS states that between 1994 and 2006, 78.5 million applications for firearm permits or transfers were subjected to background investigations by the Federal Bureau of Investigation (FBI) and state and local agencies. (See Table 9.7.) Of these applications, close to 1.5 million (1.9%) were rejected. A substantial proportion of these rejections were because of previous domestic violence convictions. In 2006, 12.4% of applications rejected by the FBI, 10.4% of applications rejected by the state, and 11.1% of applications rejected by local authorities were rejected because of a domestic violence misdemeanor conviction. (See Table 9.8.) After prior felony convictions and other criminal history, domestic violence was the third-leading reason for rejecting applicants’ gun permit requests.

Loopholes in state and federal laws allow batterers to purchase guns despite the federal ban. In many states private gun owners can sell their firearms without back-

ground checks. In addition, many states keep incomplete records of domestic violence offenders and orders of protection. Still other evidence suggests that some gun dealers knowingly allow people who are not legally eligible to purchase firearms to buy them through a third party. However, Elizabeth Richardson Vigdor and James A. Mercy report in “Do Laws Restricting Access to Firearms by Domestic Violence Offenders Prevent Intimate Partner Homicide?” (Evaluation Review, vol. 30, no. 3, June 2006) that female intimate partner homicide declines by 7% after a state passes a law restricting access to firearms by individuals subject to a restraining order, although they see no decline in homicides resulting from restricting access of those convicted of a misdemeanor to firearms.

Difficulties in the Court System

An appeal to the U.S. judicial system should be an effective method of obtaining justice. For battered women, however, this has not always been the case. In the past ignorance, social prejudices, and uneven attention from the criminal justice system all tended to underestimate the severity and importance of battering crimes against women. Even though society has become significantly less tolerant of domestic violence, and laws in many states criminalize behavior previously considered acceptable, old attitudes and biases continue to plague intimate partner violence and spouse abuse cases in the courts.

Intimate partner abuse cases are often complicated by evidence problems, because domestic violence usually takes place behind closed doors. The volatile and unpredictable emotions and motivations influencing the behav-

ior of both the abuser and victim may not always fit neatly into the organized and systematic framework of legal case presentation. Finally, the varying training mandates to ensure that prosecutors and judges are better informed about the social and personal costs of domestic violence, along with society's changing attitudes toward abuse, influence the responses of the judicial system.

The victim-offender relationship is an important factor in determining how the offender is treated by the criminal justice system. On the one hand, strangers are treated more harshly because stranger offenses are considered more heinous and the true targets of the justice system. As a result, criminal law is strictly enforced against them. On the other hand, the justice system has traditionally perceived nonstranger offenses as a victim's misuse of the legal system to deal with a strained interpersonal relationship.

Willingness of Victims to Prosecute

One of the most formidable problems in prosecuting abusers is the victim's reluctance to cooperate. Even though many abused women have the courage to initiate legal proceedings against their batterer, some are later reluctant to cooperate with the prosecution because of their emotional attachment to their abuser. Other reasons for their reluctance are fear of retaliation, mistrust or lack of information about the criminal justice system, or fear of the demands of court appearances. These reasons are among the findings by Lisa Goodman, Lauren Bennett, and Mary A. Dutton in “Obstacles to Victims’ Cooperation with the Criminal Prosecution of Their Abusers: The Role of Social Support” (Violence and Victims, vol.14, no. 4, winter 1999) and by JoAnn Miller of Purdue University in “An Arresting Experiment: Domestic Violence Victim Experiences and Perceptions” (Journal of Interpersonal Violence, vol. 18, no. 7, July 2003). A victim's fear and ambivalence about testifying, and the importance of her behavior as a witness, can undoubtedly discourage some prosecutors from taking action.

However, a victim might choose not to move forward with the prosecution because the violence ceases temporarily following the arrest while the batterer is in custody. In most cases, a woman does not want her husband to go to jail with the attendant loss of income and community standing. She simply wants her husband to stop beating her.

Religious convictions, economic dependency, and family influence to drop the charges place great pressure on victimized women. Consequently, many prosecutors, some of whom believe abuse is a purely personal problem and others who believe winning the case is unlikely, test the victim's resolve to make sure she will not back out. This additional pressure drives many women to drop the charges because after being controlled by their husband, they feel that the judicial system is repeating the pattern by abusing its power. Hence, the prosecutors’ fears contribute to the problem, creating a self-perpetuating cycle.

Goodman, Bennett, and Dutton explore the reasons many domestic violence victims refuse to cooperate in the prosecution of their abuser. Surprisingly, the researchers find that the relationship between the emotional support and the cooperation with prosecutors was not significant. Similarly, institutional support, whether from police or victim advocates, was also unrelated to cooperation. Neither the level of depression nor the degree of emotional attachment to the abuser had an effect. These findings refute the common perception that the battered woman is too depressed, helpless, or attached to the abuser to cooperate in his prosecution. Instead, Goodman, Bennett, and Dutton's findings show that many domestic violence victims persevere in the face of depression and the sometimes complex emotional attachment to their partner.

Consistent with findings from earlier studies, Goodman, Bennett, and Dutton note that the more severe the violence, the more likely the abused women were to cooperate with prosecutors. Participants rearing children with the abuser were also more likely to cooperate, perhaps because these women hoped that the criminal justice system would force the abuser into treatment. In contrast, women with substance abuse problems were less than half as likely as other women to cooperate with the prosecution. Goodman, Bennett, and Dutton conclude that the women who used alcohol or drugs believed that the abuse was partly their fault or that a judge would not take them seriously. Some also feared that their substance abuse might negatively affect the court proceedings and possibly even lead to criminal charges or the loss of their children.

Factors Associated with Prosecutors’ Charging Decisions in Domestic Violence Cases

In “Modeling Prosecutors’ Charging Decisions in Domestic Violence Cases” (Crime and Delinquency, vol. 52, no. 3, 2006), John L. Worrall, Jay W. Ross, and Eric S. McCord investigate what factors influenced the decisions of prosecutors to charge a batterer and what factors influenced the decisions of prosecutors to pursue a misdemeanor or a felony charge. They collected data on 245 domestic violence cases filed by police officers, examined the impact of characteristics of the victim, offender, and the offense, and determined how these characteristics influenced the prosecutors’ charging decisions.

Worrall, Ross, and McCord find that prosecutors were more likely to charge offenders if they had been arrested or if they had inflicted serious injuries on the victim. The researchers indicate that criminal charges were more likely to be filed against a male batterer than against a female batterer. They also note that if the victim supported prosecution, felony charges were more likely to be filed against the batterer.

Treatment for Male Batterers

Rather than serving a prison term, many convicted batterers enter treatment programs. As a requirement of probation, most courts will order a batterer into an intervention program. Regardless of an intervention program's philosophy or methods, program directors and criminal justice professionals generally monitor offenders’ behavior closely. Most batterers enter intervention programs after having been charged by the police with a specific incident of abuse.

The criminal justice system categorizes offenders based on their potential danger, history of substance abuse, psychological problems, and risk of dropout and rearrest. Ideally, interventions focus on the specific type of batterer and the approach that will most effectively produce results, such as linking a substance abuse treatment program with a batterer intervention program. Other program approaches focus on specific sociocultural characteristics, such as poverty, race, ethnicity, and age. Shelly Jackson argues in “Analyzing the Studies” (Shelly Jackson et al., Batterer Intervention Programs: Where Do We Go from Here? June 2003, http://www.ncjrs.gov/pdffiles1/nij/195079.pdf) that the effectiveness of batterer intervention programs might improve if the programs were seen “as part of a broader criminal justice and community response to domestic violence that includes arrest, restraining orders, intensive monitoring of batterers, and changes to social norms that may inadvertently tolerate partner violence.”

Batterers leave the program either because of successful completion or because they are asked to leave. The reasons for termination include failure to cooperate, non-payment of fees, revocation of parole or probation, failure to attend group sessions regularly, or violation of program rules. Successful completion of a program means that the offender has attended the required sessions and accomplished the program's objectives. With court-mandated clients a final report is also made to probation officials. To be successful, batterer intervention programs must have the support of the criminal justice system, which includes coordinated efforts between police, prosecutors, judges, victim advocates, and probation officers.

Program Dropout Rates

Dropout rates in battering programs are high, even though courts have ordered most clients to attend. Several studies, such as that by Jennifer Rooney and R. Karl Hanson in “Predicting Attrition from Treatment Programs for Abusive Men” (Journal of Family Violence, vol. 16, no. 2, 2001), record varying dropout rates, some finding that as many as 90% of the men who begin short-term treatment programs do not complete them.

High dropout rates in batterer intervention programs make it difficult to evaluate their success. Evaluations based on men who complete these programs focus on a select group of highly motivated men who likely do not reflect the composition of the group when it began. Because a follow-up is not conducted with program dropouts—the men most likely to continue their violence—research generally fails to accurately indicate the success or failure of a given treatment program.

Certain characteristics are generally related to drop-out rates. Bruce Dalton of the University of South Carolina indicates in “Batterer Characteristics and Treatment Completion” (Journal of Interpersonal Violence, vol. 16, no. 12, 2001) that the level of threat that the batterer perceived from the referral source (e.g., the court) was, surprisingly, not related to program completion. Unemployment was the one characteristic most consistently related to dropping out of treatment. Dalton theorizes that these men have both trouble paying for the treatment and a lower investment in the “official social order.” Loretta J. Stalans and Magnus Seng of Loyola University find similar results in “Identifying Subgroups at High Risk of Dropping out of Domestic Batterer Treatment: The Buffering Effects of a High School Education” (International Journal of Offender Therapy and Comparative Criminology, vol. 51, no. 2, 2007). The following groups had a 60% dropout rate or higher: batterers who were aggressive in general, not only in the family setting; high school dropouts who were also ordered into substance abuse treatment; and unemployed offenders who were also ordered into substance abuse treatment.

Rooney and Hanson explain that factors influencing completion rates of batterer intervention programs include youth, not being legally married, low income and little education, unstable work histories, criminal backgrounds, and excessive drinking or drug abuse. Voluntary clients, especially those with college educations, remain in treatment longer. Some researchers, such as Edward W. Gondolf of Indiana University of Pennsylvania in “A Comparison of Four Batterer Intervention Systems: Do Court Referral, Program Length, and Services Matter?” Journal of Interpersonal Violence, vol. 14, no. 1, 1999), find better attendance among college-educated men, regardless of whether their enrollment in a program is court ordered or voluntary.

Recidivism Rates

Recidivism (the tendency to relapse to old ingrained patterns of behavior) is a well-documented problem among people in intimate partner violence treatment programs. In “Predictors of Criminal Recidivism among Male Batterers” (Psychology Crime and Law, vol. 10, no. 4, December 2004), R. Karl Hanson and Suzanne Wallace-Capretta examine the risk factors associated with the recidivism of 320 male batterers within a five-year follow-up period. Of those men, 25.6% recidivated with a battering offense. Risk factors included being young, having an unstable lifestyle, being a substance abuser, and having a criminal history. Batterers were not deterred by expectations of social or legal negative consequences. However, maintaining positive relationships with community treatment providers was associated with deterrence of future battering. Rodney Kingsnorth of California State University, Sacramento, notes in “Intimate Partner Violence: Predictors of Recidivism in a Sample of Arrestees” (Violence against Women, vol. 12, no. 10, October 2006) that risk factors for recidivism during an eighteen-month period included use of a weapon, prior arrests (for domestic violence or other offenses), and the presence of a protective order.

According to Matthew T. Huss and Anthony Ralston of Creighton University, in “Do Batterer Subtypes Actually Matter? Treatment Completion, Treatment Response, and Recidivism across a Batterer Typology” (Criminal Justice and Behavior, vol. 35, no. 6, June 2008), men who only expressed violent behaviors in the context of their families were much more likely to complete batterer intervention programs than men who were generally violent or antisocial or who had personality disorders. Because of the higher treatment completion rates, these men were less likely to batter again. However, all men who completed treatment reported reductions in violence toward their partner.

In “The Effects of Domestic Violence Batterer Treatment on Domestic Violence Recidivism” (Criminal Justice and Behavior, vol. 30, no. 1, 2003), Jill A. Gordon and Laura J. Moriarty of Virginia Commonwealth University study the effect of batterer treatment on recidivism. The researchers find that attending treatment had no impact on recidivism when comparing the treatment group as a whole with the experimental group. Christopher I. Eckhardt et al., in “Intervention Programs for Perpetrators of Intimate Partner Violence: Conclusions from a Clinical Research Perspective” (Public Health Reports, vol. 121, no. 4, July–August 2006), concur in their review of the literature concerning batterer intervention programs and recidivism rates. However, Gordon and Moriarty also find that among the treatment group, the more sessions a batterer completed, the less likely he was to batter again. Batterers who completed all sessions were less likely to be rearrested for domestic violence than were batterers who had not completed all sessions.

Still, as Huss and Ralston note, “even small reductions in rates of domestic violence can have a substantial impact in tens of thousands of women's lives.” Therefore, research continues into how to identify batterers who are most likely to benefit from batterer intervention programs.