Social and Legal History of Intimate
Partner Violence
Module Two
Johnna L. Pike, JD
Doctoral Student
School of Sociology
School of Law
University at Buffalo
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Violence Against
Women & Children
=
Social Problem which has been supported
throughout the world's history by customs,
practices, laws and social conditions.
Legitimatization of male authority over & ownership
of family members
=Desire of males to maintain positions of control
=Parental rights to use any method of child rearing
=Perception of the family as a private institution
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Historic Legacy of Violence
=
Ancient societies began to institutionalize the
patriarchal family as an arm of state power:
First written law, Code of Hammurabi, provided
husbands/fathers authority over the family.
=Code of Paterfamilias (Roman Law) established
the right to sell, denounce, banish, punish and
execute women and children at the behest of
males.
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Historic Legacy of Violence
=
During the Middle Ages, violence was integrated
into societies' moral codes:
=
Canon law reinforces traditional views of women as
inferior and easily to sin or to cause men to sin
=
Rules of marriage operationalized the process of
disciplining wives.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Early Anglo-American
Law
=
State sanctioned violence based upon traditional
notions of marriage, women, children and social
control:
Legal code adopted moral justifications for violence
= Women and children were viewed as chattel similar to
an ox or a cow in which the owner was entitled to do
as he pleased with his property.
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Justifications for the Use of
Violence Against Women and
Children
=
=
=
Husbands/Fathers were responsible for
controlling the behavior of family members
Private punishment was less disruptive to
society
Supported by legal precedent and norms
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Restricting IPV
Common Law responses continued but statutes
began to delineate how and when a husband could
beat his wife:
=
=The
"Rule of Thumb" adopted which permitted beatings
with a stick that were no thicker than the circumference of
the man's thumb.
=PA statute prohibited wife beating after 10:00 PM each
night and all day on Sundays
=
In 1871, Alabama and Massachusetts became the
first states to rescind wife beating.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Industrialization
=
Brought a societal and legal shift in focus toward
child abuse and away from IPV:
Conflict between preserving the private family unit
and protecting women and children
= Child abuse provided a rational purpose for imposing
social control into the family
= Emphasis on individual deviance and the failings of
mothers in raising their children
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Theoretical Perspectives
=
Violence between spouses and towards children
recognized as a problem by industrialization era,
but not as a crime. Viewed from a:
Political perspective = issue regarding relations of
power and authority between men and women
= Medical perspective = individual illness or deviance
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Psychological or Social Remedies
=
Organizations addressing issues of child abuse formed:
=
Societies for the Prevention of Cruelty to Children formed in
response to case of Mary Ellen who was beaten by her
caretakers
= Federal and State Children's Bureau
Juvenile, family/domestic relations courts created:
=
=
=
First juvenile court (1899) formed with the emphasis on
treatment
First family court formed in Buffalo, NY (1911)
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
State Intervention Sanctioned by
the Court
=
In Prince v. Massachusetts (1944), the U.S.
Supreme Court confirmed the right of States to
intervene in family relationships.
Despite court ruling, criminal statues
addressing IPV and child abuse were
infrequently enforced.
=
Societal attitudes continued to be resistant to
change
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Battered Child Syndrome
=
The writings of Dr. Henry Kempe and others
(1960s) brought significant professional and
public awareness to child abuse and served as a
catalyst for change in how issue was addressed:
Coining the concept "battered child syndrome"
which gave rise to the current child protection
systems including mandated reporting laws
=Government assumed and have continued a
proactive approach in addressing child welfare
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Shelter Movement
=
It would not be until the 1970s with the
emergence of the shelter movement that societal
attitudes toward IPV began to change:
=
=
=
=
arose out of battered women's stories
Chiswick Women's Aid in England opened the first
shelter for victims of IPV(1971).
The first American Shelter was opened in St. Paul
Minnesota in 1979.
Shelter movement would evolve into the
Battered Women's Movement.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Battered Women's Movement
(BWM)
BWM solidifed by a small study conducted in an
affluent county in Maryland which illustrated
the prevalence and severity of the problem of IPV
=Philosophical framework developed as an issue of
gender subordination
=Political and Legal System became tools for
change
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Legal Response to IPV During
Earlier Stages of BWM
=
NYS Courts:
Prior to 1977, Family Court had primary jurisdiction of
family cases unless judge transferred to criminal court.
= Art. 8 of FCA (1977) gave victims the right to seek
relief in either Family or Criminal Court
= Victims were allotted 72 hours to decide on a court
=
=
Police response was primarily to separate and to
mediate
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Objectives of Legal Reforms
=
Strengthen criminal sanctions in order to deter
violence
=
Foster perpetrator accountability
=
Expand the available civil remedies
=
=
Provision of legal assistance for battered
women
Create legislation derived from the experiences
of battered women
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Why Responses to IPV Changed
=
To Pivotal Events:
Mid 1970s: IPV victims began suing police
departments for failing to act on their behalf
=
In 1984, the US Attorney General's Task Force on
Family Violence published a report stating that arrest
was a preferred response to IPV incidents
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Legal Developments at Federal
Level: 1970s -1980s
=
Federal Child Abuse and Prevention Act (CAPTA) of 1974:
emphasized the investigation and tracking of child abuse.
=
Child neglect defined as an act or a failure to act which presents
an imminent risk of serious harm to the child.
=
The Adoption Assistance and Child Welfare Act
(AACWA) of 1980: focused on family preservation and
reunification.
=
Reasonable Efforts to return children to their home.
=In
1984, the Family Violence Prevention and Treatment
was amended and attached to CAPTA.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Act
Legal Developments in the
Criminal Justice System: 1970s 1980s
Developments meant to bring attention to IPV as a
crime and not solely a social problem:
=
=Wives
permitted to bring criminal actions for
injuries perpetrated by husbands
=Warrantless
probable cause arrest laws passed
=Violations of protection orders designed to have
criminal sanctions
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Legal Developments in the Civil
Justice System: 1970s - 1980s
Changes in the Civil System meant to expand the
definition
of IPV and the available options:
= civil protection order laws implemented as part of divorce,
separation and/or custody proceedings
= expansion of relief (i.e. property use, restitution...)
=
=
application beyond married couples (i.e. divorced partners)
=
best interests of the child standard adopted
=
impact of IPV to be considered as a factor in custody and
visitation determinations (N.Y.S. DRL sec. 240(1))
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Violence Against Women Act of
1994 (VAWA)
=
=
One of the most significant pieces of Federal Legislation addressing
IPV:
= IPV not merely a "private matter" but an issue of public safety
and gender discrimination.
= Addressed issues related victim services, criminal justice
intervention efforts, civil rights and police training.
Aim was to expand federal criminal jurisdiction and to create an
incentive for state and local governments to adopt uniform
legislation.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
State Reforms in Response to
VAWA
=
Many states adopted provisions in accordance with
VAWA:
Prevention became the focus of efforts
= NYS passed Family Protection and Domestic Violence
Act (1994) requiring mandatory arrest.
= Problems with mutual arrest laws addressed by
primary aggressor laws and self-defense laws.
= NYS passed primary aggressor law in 1998.
= Firearm provisions adopted which prohibited
possession and/or required forfeitures
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Adoption and Safe Families Act
(AFSA) of 1997
•
•
Federal response to the large number of children
who were spending years in foster care as well as
to select cases in which children were killed upon
their return home.
Changes adopted to the reasonable efforts
requirement, time period for reunification efforts
and the need to consider the presence of IPV in
the home.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Adoption and Safe Families Act
(AFSA) of 1997
=
Implications for Victims of IPV:
=
=
=
If timelines implemented to rigidly could result in
termination of non-offending parent's ties to children.
Interpretation of reasonable efforts provision has
resulted in a trend towards increased parental
liability of the non-offending parent for failure to
protect.
NYS Adoption and Families Act of 1999 requires
courts to consider the presence of IPV in placement
determinations.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Pivotal Legal Issues
=
=
=
=
=
=
=
Batterers use of violence to achieve power and control over their
partners and children.
The increase in the severity of violence when batterers' control is
challenged
Batterers often endanger their children
Accepted discipline techniques for children which increases
likelihood and provides justification for many batterers in hitting
their partners.
Battered women and their children are frequently economically
dependent on the batterers
IPV as well as its remedies are costly
Consequences of IPV must be substantial for batterers to cease
their behavior
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Keeping Children and Families Safe
Act of 2003
(P.L. 108-36)
=
Limited version of Children who Witness
Domestic Violence Act included in legislation:
=
=
=
=
grants to assist children who have been exposed to
IPV
grants provided for cross-training on child welfare and
IPV issues
provide funds for community based programs
Issue: funding provision requirement of 130
million
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation