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 revictimize 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/0
4-278.ZS.html
• VAWA – US Supreme Court
http://cyber.law.harvard.edu/events/vaw/VA
Wopinion.html