Domestic Violence

Pervasiveness and Scope

• 2 million women admit severe battering by a spouse (12 month period)

• AMA views this figure as a “marked underestimate” due to limitations of reporting and data gathering

• Studies on prevalence suggest between 1/5th to 1/3rd of women will be assaulted by a partner during their lifetime.

Pervasiveness and Scope

• Average is 11,000 severe assaults daily.• Many of these include sexual assault AND where

wife beating occurs child abuse is often concurrent.

• Physical violence is the most obvious form• Psychological abuse – forces economic and social

isolation – common• Women remain with partners because they have

no other source of income (and frequently children to care for).

Pervasiveness and Scope• 30% of female homicide victims are killed by their

male partners• 1994 the Department of Justice collecting statistics

from state, private and federal sources. The ABA collects data as well.– 1998

• 33% of female murder victims – killed by husbands or boyfriends

– 1994:• 37% of women injured and treated in an emergency room were

injured by an intimate• < 5% of men were injured by an intimate

Pervasiveness and Scope

• 85% of reported victimizations by intimate partners were against women (1998).

• 3.3 million children are exposed to violence annually

• 4 of 10 female victims of intimate partner violence lived in households with children under age 12.

Mills

• Current activism and law is about the jail solution not reform

• For Mills –– Criminal Justice system NOT sufficient– For example CRJ researchers attempting to interview “victims” of

domestic violence over time are frequently able to find and interview a fraction of their original sample.

– These are the victims who kept the same location and phone number.

– Questions? Where are the rest? Why are these individuals in the same location?

Problems with current approaches to domestic violence/intimate abuse

• 1-7% of female victims require hospitalization (this number can vary to 15%).

• .5-4% of male victims require hospitalization.• Rest of the cases?

– 80-90% won’t call/do not want the police involved.– This means (according to Mills) our current educational

efforts are misdirected and re-education is necessary.– Criminalization alienates victims and keeps them from

reporting.– 73% of victims in fact do not report.– Up to 90% of victims do not cooperate with police.

Problems

• Women are not likely to go to MDs who are required to report.

• MDs (especially new ones) will overlook classic symptoms of abuse or choose not to report.

• This makes the problem worse.• Arrest makes the problem worse – men are likely to re-

victimize SOONER as consequence of the arrest– Men re-victimize but with greater time length between occurrences

where there is no arrest.– Unintended consequence of the arrest solution appears to be faster

re-occurrence of violence.

Intergenerational Violence

• Child witness exposure increases their tendency to adult violence three times.

• Male children are 5-9 times more likely to abuse women.

• Men with highly critical mothers more likely to abuse women

• Teens who are physically punished are four times more likely to engage in violent adult behavior

Additional Research

• Magdall et al.– 37% of women report aggressive behavior– 24% of women report severe aggression– Only 10% of male victims report they consider

female aggression as negative.– Lesbians have same rate of violence as

heterosexual women.

Intervention?

• The number one requested intervention is therapy.• 50% of victims (women) stay in violent

relationships.– This is a deliberate choice

– These women thus forego professional help because the system is not oriented toward their needs.

– Professionals judge the “stay” choice punitively

– There are NO resources for these families and no method to address this issue

Identification of the problem?

• Data collection problematic• Criminal justice data based on instances of violence

*reported to* and *recorded by* the police.– Some women do not report: fear, no view of criminality,

no wish to enter the CRJ system

• Reporting practices vary widely from state to state• Social science studies rely on self reporting

– Reliability– Comparison between reports by victims vs. perpetrators?

Cultural or Legal Problem?

• Why are men allowed to beat women?

• Why is abuse the fault or responsibility of the woman?

• Why does everyone expect abused women to be the ones to do something about it?

“So long as an opinion is strongly rooted in the feelings, it gains rather than loses in stability by having a preponderating weight of argument against it. For if it were accepted as a result of argument, the refutation of the argument might shake the solidity of the conviction; but when it rests solely on feeling, the worse it fares in argumentative contest, the more persuaded its adherents are that their feeling must have some deeper ground, which the arguments do not reach…” J.S. Mill (1869)

State law• Law on violence when it exists is primarily located

at the state level• No societal consensus on what amount of violence

exists in relationships, who does it to whom, who is to blame

• cultural variation exists across and within nations• 1824 Bradley v State (Supreme Court of

Mississippi court decision, Judge Turner)– “The only question submitted for the consideration of

the court, is, whether a husband can commit an assault and battery upon the body of his wife. This, as an abstract proposition, will not admit of doubt.”

Reform

• Often merely reformulation that provides more current and culturally acceptable justifications for old practices oppressive to women.

• Has mainly occurred as a response to social and political conditions in the home.

• Reform has followed a pattern similar to other social movements: periods of sustained attention followed by periods of apathy.

• Has had one aspect that differentiates it from other reform movements (drugs, mental illness, poverty, alcoholism).

Barriers to reform: The Family Ideal

• Unrelated but distinct ideas about family privacy, conjugal and parental rights, and family stability.

• Family – two parent household with minor children

• Elements: 1) belief in domestic privacy; 2) a belief in conjugal and parental rights; 3) belief in the preservation of the family.

Public Practice

• Remains a public practice.• Historic and continuing tolerance of the

practice• Reinforcement of norms about place of

women in society• E.g., what women “are for”, “where women

belong”, what women “may and may not do”

Private Practice

• Private – still attached to norms about male entitlement and power.– Evidence?– John Stuart Mill (1869) advocated the removal of brute

force to discipline women to use of the law to do so.– Today many of the legal restrictions controlling women

removed – but what is the impact of violence in restricting women’s freedom?

– We have left the private sector to continue what we will not enforce in a straightforward manner in the public sector - -

Problems

• Regular practice of domestic violence impedes women’s ability to participate in society either because they are forcibly restrained or because they hide themselves in order to hide the evidence of abuse.

• Keeping women out of the social and political system (via abuse) prevents them from influencing that system.

• The continued tolerance of domestic violence flies in the face of current interpretation of the 14th amendment.

Domestic violence as Coverture

• Can we view the public willingness to tolerate domestic violence as coverture?

• Denial of equal protection, involuntary servitude, terrorism and torture?

• Eg: were the people of Iraq being held hostage by a dictator or did they choose Saddam freely?

Woman abuse is Political

• Liberty

• Autonomy

• Equality

• Citizenship– Are these abridged when a fellow citizen beats

her?– What is the responsibility of the state?

Why is it Political?

• For over 100 years there has been legal consensus that there must be some limits to treatment family heads (men) can mete out to dependents (women and children).

• Social control of family violence conflicts with the norm that families are independent– E.g., consensus that children should have a minimum

standard of living regardless of the means of their parents. This attitude co-exists with the view that social welfare should be a temporary solution.

Two groups of Experts

• Psychological explanation– Explains the problem in terms of personality disorders

and childhood experience– A self-perpetuating cycle of abuse– Popular in conservative times.

• Sociological explanation– Explains the problem as a consequence of social stress

factors such as poverty, unemployment, drinking and isolation.

– Popular when social reform movements are strong.

Civil Rights ?

• Violence Against Women Act 1994– Civil rights provision– Declared unconstitutional by USSC in 2000– Would have classified crimes of violence motivated by gender as

discriminatory and in violation of the victim’s civil rights under federal law.

– Plaintiffs demonstrating motivation by gender would have been eligible to receive compensatory damages, punitive damages, injunctive relief and declaratory relief.

– Plaintiff’s would have had burden of proof – path to demonstrating gender animus would have been the same followed by civil rights cases alleging racial violence:

• Racial epithets, membership of victim in different racial group from assailant, history of similar attacks, use of excessive force, etc.

Congressional power to legislate – Commerce Clause

• Domestic violence costs employers 3-5 billion annually (absenteeism).

• 30% of women seeking treatment in emergency rooms are victims of battering by an intimate male – medical cost: 100 million annually

• Rape and other violent crimes against women deter them from seeking jobs that would require travel at night or in unsafe areas.

• Homicide is the leading cause of death on the job for women

• 50% of homeless women are fleeing violence.

Congressional power to legislate – reasons why not:

• VAWA should not have been passed according to Rehnquist because it would create an influx of domestic relations disputed into the federal courts.

• An unwarranted federal intrusion into the domain of state courts

• Assumptions that violence against women is domestic and these issues do not belong in federal court (assumption of privacy of the problem)

• Critics did not argue that the goal (to protect women from rape and domestic violence) was problematic

• They argued:– Federalizing the problem moved national

government into local government jurisdiction– Federal courts would be “overwhelmed”

Domestic Violence and the Courts

• CASTLE ROCK V. GONZALES (04-278) 366 F.3d 1093, reversed. http://straylight.law.cornell.edu/supct/html/04-278.ZS.html

• VAWA – US Supreme Court http://cyber.law.harvard.edu/events/vaw/VAWopinion.html