Domestic Violence—The Laws and the Courts

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chapter 8
DOMESTIC VIOLENCE—THE LAWS AND THE COURTS

Before the 1962 landmark case Self v. Self, 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 U.S. 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 the landmark California case, 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.

LANDMARK LEGAL DECISIONS

Many victims of domestic violence have sought legal protection from their abusive partners. This section summarizes the outcomes of several landmark cases that not only helped to 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 leave and 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. Since 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 laws.

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. She tried to file complaints against her husband but city officials ignored her.

Even when her husband was finally arrested after attacking her in full view of a policeman and after a judge issued an order prohibiting him to go to his wife's home, the police continued to ignore Thurman's pleas for help. Her husband violated the order and came to her house and threatened her. When she asked the police to arrest her husband for violating his probation and threatening her life, they ignored her. She obtained a restraining order against her husband, which he violated, but again the police failed to take any action.

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 policemen 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. While 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 (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 persons 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 persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community.

[A] police officer may not knowingly refrain from interference in such violence, and 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.

For the federal district court, there could be little question that "such inaction on the part of the officers was a denial of the equal protection of the laws." The police could not claim that they were promoting domestic harmony by refraining from interference in a marital dispute because research had conclusively demonstrated that police inaction supports the continuance of violence. 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." The police had, therefore, failed in their duty to protect Tracey Thurman and deserved to be sued.

The federal court jury awarded Thurman $2.3 million in compensatory damages. Almost immediately, the state of Connecticut changed the law, calling for the arrest of assaultive spouses. In the twelve months following the new law, arrests for domestic assault almost doubled from 12,400 to 23,830.

Due Process

The Due Process Clause of the Fourteenth Amendment provides that "no State shall deprive any person of life, liberty, or property without due process of law," protecting against state actions that are unfair or arbitrary. 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."

deshaney v. winnebago county department of social services. The "special relationship" and the gains women achieved in Thurman lost their power with the Supreme Court case of DeShaney v. Winnebago County Department of Social Services (1989). A young boy, Joshua DeShaney, was repeatedly abused by his father. Despite repeated hospitalizations, the Department of Social Services insisted that there was insufficient evidence to remove the child from the home. Eventually, the father beat the boy into a coma, causing permanent brain damage. The boy's mother, who did not have custody, sued the Department of Social Services for not intervening. The Supreme Court ruled that the due process clause does not grant citizens any general right to government aid and that a "special relationship" is a custodial relationship. The court's decision noted, "The facts of this case are undeniably tragic" but "the affirmative duty to protect arises not from the state's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations that it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, and other similar restraint of personality."

The court concluded,

It is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. The people of Wisconsin may well prefer a system of liability that would place upon the State and its officials the responsibility for failure to act in situations such as the present one…. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.

Although this case concerned a child, it also applied to abused women. Following DeShaney, women have been unable to win a case on the basis of due process or equal protection. Jena Balistreri's case against the police department of Pacifica, California, began before DeShaney, but unfortunately for her, it was not finally decided until after the DeShaney precedent had been established.

balistreri v. pacifica police department. Jena Balistreri first called police in February 1982 when her husband beat her. The police refused to arrest him, and one of the officers stated that Balistreri deserved the beating. In November 1982 Balistreri obtained a restraining order forbidding her husband from "harassing, annoying, or having contact with her." Despite repeated vandalism that included crashing his car into her garage and firebombing her home, the police refused to take Balistreri seriously. She turned to the courts in an effort to force police to restrain her husband.

Two out of the three judges of the U.S. Court of Appeals for the Ninth Circuit, both women, found that Balistreri's case might convince a jury that the police were guilty either of "intentional harassment" or "reckless indifference to her safety." The police's conduct, the judges wrote, "strongly suggest[s] an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women," and their behavior may "violate equal protection."

Regarding the due process claim, Balistreri argued that she had a special relationship with the state because the police knew she was being terrorized and she had a protection order. Two judges ruled she might have a claim to a "special relationship" and the state might, after all, have "a duty to take reasonable measures to protect Balistreri from her estranged husband."

The third judge dissented, stating that the restraining order "heightens the state's awareness" of her risk of harm, "but the mere existence of the order" created no "special relationship" to the state and imposed no constitutional duty to protect her. The case was initially returned to the lower courts for further proceedings. After DeShaney, however, the court reversed its decision and threw out Balistreri's due process claim.

macias v. ihde. 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, California, Sheriff's Department, 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 said there was no connection between Macias's murder and how the sheriff's department had responded to her complaints. Although the lower court had dismissed the family's claim, on July 20, 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 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. On June 18, 2002, Sonoma County agreed to pay $1 million to the Macias family in order 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. Kim Gandy, president of the National Organization for Women, stated, "This settlement shows that law enforcement cannot get away with denying equal protection under the law to victims of domestic violence."

KEY DOMESTIC VIOLENCE LEGISLATION

While 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—has improved markedly over the past several years. The Violence against Women Act, signed into law by President Bill Clinton 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. Although 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, declared that violent crimes against women motivated by gender violate victims' federal civil rights—giving victims access to federal courts for redress for the first time. In testifying in favor of the passage of the act, Sally Goldfarb, an attorney for the National Organization for Women (NOW), told Senate members, "The enactment of civil rights legislation would convey a powerful message: that violence motivated by gender is not merely an individual crime or a personal injury, but is a form of discrimination, an assault on a publicly shared ideal of equality. When half of our citizens are not safe at home or on the streets because of their sex, our entire society is diminished" (Prepared Statement of Sally Goldfarb, Senior Staff Attorney, NOW Legal Defense and Education Fund. Senate Hearing 103-51, November 16, 1993. Hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives. Serial No. 51). When the Violence against Women Act was passed into law, the text of the civil rights provision was:

Federal civil rights action as specified in this section is necessary to guarantee equal protection of the laws and to reduce the substantial adverse effects on interstate commerce caused by crimes of violence motivated by gender; and the victims of crimes of violence motivated by gender have a right to equal protection of the laws, including a system of justice that is unaffected by bias or discrimination and that, at every relevant stage, treats such crimes as seriously as other violent crimes.

In 1999, 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 rapes 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 1999. Briefs in favor of giving victims of gender-based violence access to federal courts were filed by dozens of groups—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 among them—as well as the briefs filed by law scholars and human rights experts. But the majority of the Supreme Court (five to four) decided 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 they ruled that the violent assault of Christy Brzonkala was local (United States, Petitioner v. Antonio J. Morrison et al. [no. 99-5], Christy Brzonkala, Petitioner v. Antontio J. Morrison et al. [no. 99-29]. Argued January 11, 2000. Decided May 15, 2000. United States Supreme Court Reports, Lawyer's Edition. Volume 146 L Ed. 2d, No. 6).

In October 2000, Congress responded to the Supreme Court decision by passing new legislation, the Victims of Trafficking and Violence Protection Act of 2000. 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.

Other Federal Laws and Public Policies

The following are among other federal laws and public policies aimed at addressing violent crimes against women:

  • The Family Violence Prevention and Services Act of 1992 supported the development and expansion of shelters and other services for victims of domestic violence as well as programs to prevent family violence.
  • The Hillory J. Farias and Samantha Reid Date Rape Drug Prohibition Act of 2000 made it illegal to manufacture, distribute, or dispense gamma hydroxybutyric acid (GHB, also known as "Liquid Ecstasy") and created a special unit to evaluate abuse and trafficking of GHB and other drugs associated with instances of sexual assault.
  • The Social Security Administration in 1998 changed its rules governing new social security numbers. Previously, women needed to provide evidence that an abuser was using a social security number to locate her or evidence that the violence was life-threatening. With the new law, women need only to provide written corroboration of domestic violence from a third party, such as a doctor, lawyer, clergy member, or even a family member or friend, in order to obtain a new number.
  • A Postal Service Release of Information Final Rule was published January 25, 2000, and became effective February 24, 2000. If an individual postal customer presents the U.S. Postal Service with a court order of protection, then the postal service may not disclose identifying information such as address, location, or post office box, unless ordered by the court.
  • A Final Rule on Documentation of Immigrants and Nonimmigrants—Visa Classification Symbols was published on June 18, 2001. This rule amended PL 106-386 to create new nonimmigrant categories for victims of trafficking for illicit sexual purposes and slavery and those who have suffered abuse, such as battering, and other forms of violence.

TABLE 8.1

Reasons for rejections of firearm transfer applications, 1999
FBI State and local agencies
Reason for rejection 2003 1999–2003 2003 2002 2001 2000 1999 1999–2003
— Not available or not applicable.
1Includes multiple DUI's, non-NCIC warrants, and other unspecified criminal history disqualifiers.
2FBI denies on State prohibitors but does not separate them out under this category.
3Includes persons dishonorably discharged from the Armed Services, persons who have renounced their U.S. citizenship, and other >unspecified persons.
source: "Table 5. Reasons for Rejection of Firearm Transfer Applications, 1999–2003," in Background Checks for Firearm Transfers, 2003, U.S. Department of Justice, Bureau of Justice Statistics, NCJ 204428, September 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft03.pdf (accessed October 22, 2004)
Total 100% 100% 100% 100% 100% 100% 100% 100%
Felony indictment/conviction38.654.544.851.857.757.672.558.1
Other criminal history124.315.0
Domestic violence
Misdemeanor conviction12.213.311.710.410.68.99.010.0
Restraining order5.04.43.83.53.73.32.13.2
State law prohibition210.49.97.04.73.56.7
Fugitive4.73.37.88.05.84.35.05.9
Illegal alien2.41.11.10.80.40.20.20.5
Mental illness or disability0.50.42.41.41.21.00.51.2
Drug addiction8.05.81.81.31.00.71.01.1
Local law prohibition1.20.90.50.20.20.6
Other34.32.114.912.012.119.26.012.8

In addition, on January 26, 2001, the U.S. Sentencing Commission published the Sentencing Guidelines for United States Courts, which increased the base sentencing levels for offenses and required stricter sentences for stalking, domestic violence, and cases involving the use of GHB.

Domestic Violence Gun Ban

The Omnibus Consolidated Appropriations Act of 1997 included a domestic violence gun ban. The law prohibits batterers convicted of domestic violence crimes or those with domestic violence protection orders filed against them from owning or carrying guns. During 1997, background checks of potential handgun buyers prevented an estimated sixty-nine thousand purchases. Most of those rejected (62 %) had been convicted of a felony or were under felony indictment. Domestic violence misdemeanor convictions represented nearly 10% of the rejections, while domestic violence restraining orders accounted for 2%.

On November 30, 1998, the permanent provisions of an even tighter handgun ban, the Brady Handgun Prevention Act, went into effect. These provisions require background checks for anyone seeking to transfer ownership of a gun, which includes pawnshop transactions as well as purchases from retail gun shops.

From the inception of the Brady Act on March 1, 1994, through December 31, 2003, more than 53 million applications for firearm permits or transfers were subjected to background investigations. Of these applications, about 1,102,000 were rejected, according to Background Checks for Firearm Transfers, 2003 (Washington, DC: Bureau of Justice Statistics, NCJ 204428, September 2004). In 2003, about 17% of those rejected were rejected because the Federal Bureau of Investigation or state or local police agencies found that applicants had been either convicted of a domestic violence misdemeanor or had a protective order issued against them. (See Table 8.1.) After prior felony convictions, domestic violence was the second leading reason for rejecting applicants' gun permit requests.

responses to the ban. The passage of the domestic violence gun ban was a victory for the battered women's movement but generated an outcry in the law enforcement community. Because the ban applied retroactively, anyone, including police officers, convicted of domestic violence before passage of the law on September 30, 1996, lost the right to possess and carry firearms.

The law has been hotly debated. Some people feel that law enforcement officers and military personnel who use firearms in their professional duties should be exempt from the prohibition. Others want to apply the ban only to those convicted of domestic violence after the date when the gun ban was enacted. Still others maintain that all persons convicted of such offenses should be prohibited from carrying firearms. Legislation has been introduced that would apply the ban only to those convicted after September 30, 1996, and that would exempt government employees, such as military and police.

After the domestic violence gun ban passed, John W. Magaw of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives advised police officers to turn over their firearms to a third party if they had ever been convicted of a domestic violence misdemeanor. Most police groups claimed that the law unfairly punished officers who committed domestic violence offenses in the past, and requested that exceptions be made for police officers who would be unable to conduct their law enforcement duties without firearms. However, in 1999 the Supreme Court rejected a policeman's argument that he had the right to carry a gun even though he had pleaded guilty to domestic violence (Gillespie v. City of Indianapolis, 1999 U.S. App. Lexis 15117).

In 1998, at the request of the U.S. Department of Justice, the International Association of Chiefs of Police drafted the Model Policy on Police Officer Domestic Violence. In an attempt to address the domestic violence problem before it cost an officer his or her job, the policy took a "continuum" approach, including these increasing levels of intervention:

  • prevention, education, and training
  • early warning and intervention
  • incident response protocols
  • victim safety and protection
  • administrative and prosecutorial actions after an incident

Although the policy focuses on early prevention and intervention strategies, it also states that officers convicted of domestic abuse will be removed from their enforcement positions and either terminated or reassigned. It calls on police departments to screen recruits for any indications of violent or abusive tendencies and to conduct background checks for histories of domestic violence or abuse.

Despite the increased restrictions mandated by the Brady Act, convicted batterers and those subject to an order of protection can still buy guns. Loopholes in state and federal laws allow batterers to purchase guns. In many states, private gun owners can sell their firearms without background checks. In addition, many states keep incomplete records of domestic violence offenders and orders of protection. The Bureau of Justice Statistics has made recommendations to address these holes in domestic violence record keeping in its report Background Checks for Firearm Transfers, 2003 (Washington, DC: Bureau of Justice Statistics, NCJ 204428, September 2004). 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.

FILING CHARGES

In the past, the victims shouldered the burden of filing charges in domestic violence cases. Prosecutors and the courts offered victims little support or protection. Currently, the decision to charge offenders in cases of domestic violence is notable for having less to do with legal criteria than with evaluation of the victims' and offenders' personal attributes. Prosecutors are more likely to charge in cases where victims suffer serious injuries and defendants have a record of previous arrests. Negative characteristics in the offender, such as alcohol or drug use and the failure to comply with the police and courts, increase the likelihood that charges will be pressed. Yet, the same attributes in the abused woman call into question her status as an innocent victim. Eve Buzawa and Carl Buzawa explored these issues in Current Controversies on Family Violence (Newbury Park, CA: Sage, 1993). In the book they stated that more than a third of misdemeanor domestic violence cases would have been felony offenses of rape, robbery, or aggravated assault had they been committed by strangers rather than intimates.

Who should file the charges: the state through the prosecutor or the victim? In Confronting Domestic Violence: A Guide for Criminal Justice Agencies (Washington, DC: National Institute of Justice, 1986), advocates for the state filing the charges argued that this policy would:

  • clearly establish spouse abuse as a crime
  • force prosecutors to take domestic violence cases seriously and eliminate their reluctance to handle these cases because of their view that victims tend to seek dismissals or refuse to testify
  • protect the community as a whole, since presumably innocent bystanders might be injured during future violence
  • strengthen the criminal justice system's control over prosecution and increase the number of batterers convicted and held accountable for their actions (either through incarceration or court-ordered intervention)
  • reduce the likelihood that batterers will intimidate and harass victims because they hold the victims responsible for their prosecution

Those recommending that victims file the charge argue:

  • Battered women, when given full information, have the right and the ability to decide whether they want criminal justice intervention. For example, a battered woman might choose not to prosecute because she prefers civil remedies, faces life-threatening danger, fears race-biased sentencing, or would lose critical financial support.
  • Civil remedies may be appropriate in some cases. If batterer counseling is viewed as a critical intervention, then it can be mandated through properly monitored and enforced civil protection orders, as well as through criminal action.
  • There are other ways to address the potential for victim intimidation and harassment, including statutes that make intimidation of a witness a substantive crime and the use of protection orders a condition of release.
  • Policies that eliminate victim discretion may serve to alienate battered women and discourage them from calling police or seeking other legal intervention in the future, thereby placing them in jeopardy of extreme injury or death.

Cheryl Hanna, in "No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions," argued that many jurisdictions now have pro-prosecution policies that "treat domestic violence as a serious crime and recognize the ambivalence that abused women bring to the process" (Harvard Law Review, June 1996). However, not all pro-prosecution policies are the same—they might be "hard" or "soft." Under hard policies, batterers are prosecuted regardless of victims' wishes; government attorneys are required to file criminal charges against domestic violence offenders, and abused women are given no option to drop the case. However, under the soft policies of most jurisdictions, prosecutors do not force victims to take part in criminal proceedings, but instead provide support services and encouragement to continue the process of prosecuting abusers.

Should a Woman Be Forced to File?

Advocates who favor the victim filing charges agree that when the lives of others are clearly endangered, battered women must be expected to cooperate with the prosecution. To pressure women to testify, some prosecutors have charged them with filing false police reports and perjury or lying to the court. In rare instances, they have been jailed. Some prosecutors see this as a further abuse of an already demoralized woman, while others claim that allowing the woman to drop charges sends the message that the court does not take her problems seriously.

Victims' advocates claim that when the courts help women file charges and support them throughout the process, many more women follow through—an endorsement for "soft" pro-prosecution policies. For example, in Brockton, Massachusetts, a court found that 71% of women who obtained restraining orders did not appear at their hearings ten days later. In comparison, in a Quincy, Massachusetts, court with a separate office for restraining orders and support groups for the women, only 2.8% of the women failed to show at their hearings.

Some research reports an unintended result of hard, no-drop policies: Battered women who were given the option to drop charges were at lower risk for subsequent violence than women who were not allowed to drop charges. Simply being able to participate in decision making with authorities served to empower the women. This finding is consistent with the observations of Carolyn Hoyle and Andrew Sanders in "Police Response to Domestic Violence: From Victim Choice to Victim Empowerment?" (British Journal of Criminology, vol. 40, 2000), who advocated for policies to empower, rather than to further disable victims of domestic violence.

THE COURTS

An appeal to the American 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. Although 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 behavior of both the abuser and victim may not always fit neatly into the organized and systematic framework of legal case presentation. Finally, 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.

Keeping the Family Together

Traditionally, the family has been the basis of American society. While the value of an intact family cannot be underestimated, the traditional family is one of the fastest changing aspects of our culture. Preserving an unhappy marriage "for the children's sake" is much less common than it was just two generations ago. Nonetheless, there are still many women, police officers, lawyers, judges, and other community opinion leaders, such as members of the clergy, politicians, and social scientists, who feel that only the most extreme instances of abuse justify breaking up a family.

In the past, many judges backed away from the responsibility to punish batterers under the pretense of protecting and preserving the family. Confronting Domestic Violence, cited above, quoted a judge who claimed, "Even if the woman shows up in my court with visible injuries, I don't really have any way of knowing who is responsible or who I should kick out of the house. Yes, he may have beaten her but nagging and a sharp tongue can be just as bad. Maybe she used her sharp tongue so often… she provoked him to hit her."

Confronting Domestic Violence offered evidence that attitudes are changing and cited several judges' statements from the bench. "I don't care if she's your wife or not," one judge declared. "A marriage license is not a hitting license. If you think that the courts can't pin you for assaulting your wife, you are sadly mistaken." When another defendant claimed his girlfriend had provoked a beating, the judge warned, "This is your problem, not your girlfriend's. You will damage your next relationship in the same way if you don't get help." Another judge took the pressure off a wife testifying against her abusive husband by saying, "It's not your wife's fault that she's here to testify. She has no choice. I could have arrested her to make her come. She's not prosecuting you. The city is. She's required to tell the truth. It's perjury if she doesn't."

Alcohol and Drug Abuse and Domestic Violence Cases

Alcohol, and later illegal drug abuse, has sometimes been considered the cause of domestic violence. Authorities base this conclusion on studies like that of William Fals-Stewart in "The Occurrence of Partner Physical Aggression on Days of Alcohol Consumption: A Longitudinal Diary Study." He found that the likelihood of physical aggression toward intimate partners among battering males entering outpatient alcoholism or domestic violence treatment programs was eight to eleven times higher on days when the male partner consumed alcohol (Journal of Consulting and Clinical Psychology, vol. 71, no. 1, 2003). Even though a causal link has not been established, courts and other authorities encourage and mandate that substance abusers seek treatment on the assumption that curing a drinking or drug problem would bring an end to abuse.

Some researchers, however, refute the hypothesis that completing substance abuse treatment programs effectively serves to reduce rates of intimate partner violence or prevent recurrences of battering. These researchers include Julia C. Babcock and Ramalina Steiner, writing in "The Relationship between Treatment, Incarceration, and Recidivism of Battering: A Program Evaluation of Seattle's Coordinated Community Response to Domestic Violence" (Journal of Family Psychology, vol. 13, no. 1, March 1999).

Obstacles to Prosecuting Abusers

One of the most formidable problems in prosecuting abusers is the victim's reluctance to cooperate. Although many abused women have the courage to initiate legal proceedings against their batterers, some are later reluctant to cooperate with the prosecution because of their emotional attachment to their abusers. Other sources of 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 are among findings by Lisa Goodman, Lauren Bennett, and Mary Ann Dutton (cited below) and JoAnn Miller 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.

On the other hand, 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. Most women do not want their husbands to go to jail with the attendant loss of income and community standing. They simply want their husbands to stop beating them.

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 husbands, 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.

a study of victims' willingness to cooperate. 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), Goodman, Bennett, and Dutton explored the reasons many domestic violence victims refuse to cooperate in the prosecution of their abusers.

Goodman, Bennett, and Dutton studied ninety-two abused women in Washington, D.C., whose partners had been arrested on misdemeanor domestic abuse charges, such as simple assault, threats, or destruction of personal property. Almost 90% of the women were African-Americans aged eighteen to forty-six; they had lived with their abusive partners for, on average, a little more than three years.

The participants generally reported high levels of physical violence during the previous year with 90% reporting at least one instance of severe physical violence. More than half reported an instance of "minor" sexual assault and a comparable proportion reported severe injury from sexual abuse or physical assault.

The victims all struggled with a number of health and socioeconomic problems. More than half were unemployed, about three-quarters reported symptoms consistent with a diagnosis of clinical depression, and about one-fifth met the criteria for substance abuse. Despite these difficulties, Goodman, Bennett, and Dutton found that more than half of the women cooperated with the prosecution at the time of the defendant's first scheduled trial date, about twelve weeks into the case. Women who received tangible support, such as help with taking care of their children or an emergency loan, were about twice as likely to cooperate with the prosecution of their abuser as women who received little support. Researchers cited several possible reasons for this finding. Although 82.7% of the participants were not financially dependent on the abuser, some indicated that the abuser provided other forms of support, such as child care or transportation. When families or friends provided these types of support, the victims were more likely to seek help from the criminal justice system and cooperate with prosecutors.

Surprisingly, the researchers found that the relationship between emotional support and cooperation with prosecutors was not significant. Similarly, institutional support, whether from police or victim advocates, was also unrelated to cooperation. Psychological factors also were unrelated to cooperation—neither level of depression nor degree of emotional attachment to the abuser had an effect. This finding refuted 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 showed 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 found 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 concluded 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.

DIFFERING RESPONSES TO STRANGER AND NONSTRANGER CRIME

The victim-offender relationship is an important factor in determining how the offender is treated by the criminal justice system. In general, strangers are treated more harshly because stranger offenses are considered more heinous and the true targets of the justice system. As a result, the 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 strained interpersonal relationships.

Several studies confirm that while intimate partners are frequently charged with and convicted of more serious offenses, stranger offenders generally receive longer sentences. In addition, most intimate partner crimes never go to sentencing, because victims drop charges or settle out of court. Those cases that do proceed through the judicial system are likely to be the more serious crimes.

PROTECTION ORDERS

A victim in any state may go to court to obtain a protection order prohibiting an abuser from harming her. 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. Although the terms are often used interchangeably, restraining orders usually refer to short-term or temporary sanctions, while protection orders have longer duration and may be permanent. These orders generally prohibit harassment, contact, communication, and physical proximity to the victim. Although protection orders are common and readily obtained, 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 persons in other relationships with 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.

In addition to violent physical abuse, petitioners may file for protection orders in other circumstances, 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. 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. Statutes in most states make violating a protection order a matter of criminal contempt, a misdemeanor, or even a felony.

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. 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 the National Center for State Court study Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence (Washington, DC: National Institute of Justice, 1997), Susan Keilitz et al. reported that most women who petitioned for a civil protection order had suffered physical abuse for some time. Onequarter of the women interviewed endured abuse for more than five years before obtaining a protection order.

The researchers found that temporary protection orders may be useful even when the victim does not follow through to obtain a permanent order. When victims were asked why they did not return for permanent protection orders, most said that their abusers had stopped bothering them.

Although abusers often violate the protection orders in some way, the orders generally deter repeated incidents of physical and psychological abuse. Keilitz et al. found that the majority of abuse victims felt that civil protection orders protected them against repeated incidents of abuse and helped them regain a sense of well-being. In the initial interviews, 72.3% of the women who had received protection orders reported that their lives had improved. At the six-month follow-up interviews, the proportion had increased to 85.3%. More than 90% reported feeling better about themselves and 80.5% felt safer.

About 72% of participants in the initial interviews reported no continuing problems following the petition for protection orders, compared to 65.3% six months later. The follow-up interviews showed that reports of stalking increased from 4.1% to 7.2%. Reports of repeated physical and psychological abuse also increased. Abusers with a criminal history of violent offenses were more likely to violate protection orders, prompting the researchers to observe that criminal prosecution may be required to stop abusive behavior in this group of perpetrators.

The Strength of a Protective Order

A federal report titled Enforcement of Protective Orders (Washington, DC: U.S. Department of Justice, January 2002) observed that while all 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 report called 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. John W. Gilles, the director of the U.S. Department of Justice, Office for Victims of Crime, asserted that "[u]nequivocal, standardized enforcement of court orders is imperative if protective orders are to be taken seriously by the offenders they attempt to restrain."

Permanent Civil Protection Orders Reduce Risk

The results of research on civil protection orders were presented by Victoria Holt et al. in "Civil Protection Orders and Risk of Subsequent Police-Reported Violence" (Journal of the American Medical Association, vol. 288, no. 5, August 7, 2002). The study was supported by the Centers for Disease Control and Prevention, the National Institutes of Health, and the National Institute of Justice as part of the Interagency Consortium on Violence against Women and Family Violence Research. The researchers investigated whether obtaining a protection order acts to reduce the risk of subsequent police-reported intimate partner violence.

Holt et al. reviewed the cases of 2,691 female victims of intimate partner violence reported to the Seattle Police Department between August 1, 1998, and December 31, 1999. They looked at rates of police-reported physical and psychological abuse in the twelve months following the incident according to the victim's protection order status. Temporary protection orders were generally in effect for two weeks and permanent protection orders were usually in effect for one year. The researchers also followed those victims who chose not to obtain protection orders.

The researchers found that having a permanent protection order in effect was associated with an 80% reduction in police-reported physical violence in the twelve months following an incident of intimate partner violence. They also reported that women who had obtained temporary protection orders were more likely than victims with no protection orders to be psychologically abused in the six months after the reported incident of intimate partner violence.

Holt et al. speculated that temporary protection orders may have restrained abusers from inflicting physical violence, producing a commensurate increase in psychological abuse. They observed that while temporary orders were linked to increased psychological abuse, the orders did not generate the increased physical violence that many victims and service providers fear will ensue. The researchers concluded that concern about increased physical violence after obtaining temporary protection orders may be unfounded, and permanent protection orders may be more powerful deterrents to prevent violence recurrence than previously believed.

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Domestic Violence—The Laws and the Courts

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