If you have issues viewing or accessing this file contact us at NCJRS.gov.

o.

National Criminal Justice Reference Service

This microfiche was produced from documents received for inclusion in the NCJRS data base. Since NCJRS cannot exercise control over the physical condition of the documents submitted, the individual frame quality will vary. The resolution chart on this frame may be used to evaluate the document quality.

\:

(/ 1.0 :: IIIII~ IIIII~ • \';::;:-z.. w I~ 11111 w ~ 13.6 &:.i~ 14.0 L:1...... - ...... , "III I I " ~&.:u· III"~ " (J. O· 1.6 . IIIII~ II"I~ ~/// > ~;"'J

MICROCOPY RESOLUTION TEST CHARJ NATIONAL BUREAU OF STANDARDS-1963-A ) ~, ! ., f Microfilming procedures used to create this fiche comply with the standards set forth in 41CFR 101-11.504.

Points of view or opinions atated in this document are those of the author(s) and do not represent the official position or policies of the U. S. Department of Justice. ..

National Institute of Justice Unilled States Department of Justicle Washington, D. C. 20531 , i !

,,~ I

! t ------.--~------.------~,

, / Under the Rule of Thumb Battered Women and the A.dministration of Justice

A Report of the United States Commission on Civil Rights January 1982

u.s. COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is a temporary independent, bipartisan agency established by Congress in 1957 and directed to: U.S. Department of Justice • Investigate complaints alleging that citizens are being deprived of their right Natlonallnst/lute of Justice to vote by reason of their race, color, religion, sex, age, handicap, or national This document has been reproduced exactly as received from the origin, or by l'eason of fraudulent practices; person or organization originating It. Points of view or opinions stated In this document are those of the authors and do not necessarily • Study and collect information concerning legal developments constituting represent the Qfflciai position or policies of the National Institute of discrimination or a denial of equal protection of the laws under the Constitution Justice. because of race, color, religion, sex, age, handicap, or national origin, or in the Permission to reproduce this ~d materiai has been administration of justice; granted by Public Domain/LEAA • Appraise Federal laws and policies with respect to discrimination or denial of u.s. Commission on Civil Rights equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; to the National Criminal Justice Reference Service (NCJRS). • Serve as a national clearinghouse for information in respect to discrimination Further reproduction outside of the NCJRS system requires perm!s­ sion of the cepyt!§ht owner. or deniai of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin; • Submit reports, findings, and recommendations to the President and the Congress.

MEMBERS OF THE COMMISSION \ Arthur S. Flemming, Chairman Mary F. Berry, Vice Chairman i' Stephen Horn Blandina Cardenas Ramirez Jill S. Ruckelshaus Murray Saltzman .. John Hope III, Acting StaffDirector ,

, o - , .. - ---~------~- f

LEITER OF TRANSMI'ITAL

U.S. COMMISSION ON CIVIL RIGHTS Washington, D.C. January 1982 THE PRESIDENT THE PRESIDENT OF THE SENATE THE SPEAKER OF THE HOUSE OF REPRESENTATIVES

Sirs:

will assist local officials in coming to grips with a problem that has (11l!legated too The United States Commission on Civil Rights transmits this report to you many women in this country to a status as second-class citizens in th45! eyes of the pursuant to P.ublic Law 85-315, as amended. Jaw. Under the Rule of Thumb, a report on battered women and the administration of justice, is based on a 1978 Commission consultation held in Washington, D.C., as well as field studies and public hearings held in Phoenix, Arizona, and Ihrrisburg, Resp!~ctful1YI Pennsylvania, in 1980. The report evaluates the treatment of women who are victims of domestic violence by the criminal and civil justice systems and by various social service agencies. Although wife beating is a crime in every State, the law has often failed to protect Arthur S. Flemming, Chairman these victims. The Commission's report reveals that at each stage of the criminal Mary F. Berry, Vice Chairman justice system a significant number of abused wives are turned away, with the Stephen Horn result that few ever obtain relief. Police officers, prosecutors, and judges often fail Blandina Cardenas Ramirez to take appropriate action, treating spouse abuse not as a crime against society, but Jill S. Ruckelshaus as a private family matter. Murray Saltzman The report also fmds that a woman who must flee her home to escape assault often has complex financial and emotional needs, served by inadequately supported social service programs, including shelters. John Hope III, Acting Staff Director When the Commission's project was designed, the U.S. Law Enforcement Assistance Administration was funding many local projects on domestic violence within police departments and prosecutors' offices around the country. Many of the suggestions made by the Commission in this report were originally intended to be recommendations designed to facilitate the work of these projects under the auspices of LEAA. With the demise of that agency, however, much of the work remaining to be done in the area now rests squarely on the shoulders of State and \ local officials. In instances, however, where State and local officials fail to accept their responsibility, there may still be a need for more direct Federal involvement in this issue and the report contains the Commission's recommendations for such Federal action. The Commission is hopeful that the suggestions made in this report ,

iii ii ,

~ ,.. : ' o

. ... ,------.------~----...... "--~-----.-...--.------­ ----- ~--~--~---

PRElt"'ACE

The Commission undertook this study of the problems of battered women in For reasons undeltermined in the context of this project, instances of abuse accordance with its legal mandate to "study and collect inform~tion" and to against adult women constituted the overwhelming majority of cases in the "appraise the laws and policies of the Federal Govern,ment WIt~ ~esp~ct to jurisdictions studied. Although it is true that husbands are sometimes the targets of discrimination or denials of equal protection of the laws. . .10 the adminIstratIon of spouse battering, this report focuses on female victims for several rE'.asons. The justice."l Throughout its exislo.~'Jlce, the Commission has studied tbe treatment of incidence of abuse of women by men is much greater than the abuse of men by various social groups by the justice system and asse~s~d t~e cons~qu~nces of the women. Women ate, as a group, more likely to be economically dependent upon practices and policies of those involved in the admmlstration of.Justlce ~or both their sl10uses and therefore unable to escape an abusive relationship without suspects and victims. While the Commission's recent report on practIces and poh~e protection from the legal system and support from various service organizlItions. the delivery of police services addressed issues of concern t~ a~l, t?IS report foc~ses only on female victims and male abusers who are involved 10 10Cldents of phYSICal Finally, the common law legacy of women as objects of property alnd as , violence while in a spousal relationship. It is the existence and extent of ~ssaults of irucompetents unalble to conduct their own legal affairs continues to color the " that nature as well as the treatment of both victim and abuser by the justice s~st~m atl~itudes of police officers, ptosecutors, and judges. that the Commission explored in this project.:! In January 1978 the Commlsslon The project cu!lminating in this report built upon the 1978 consultation. It. was sponsored a consultation on public policy issues .affecting bat~ered .w?me~. T?at designed to elicit further information on the nature and extent of law enforcement consultation brought together nationally recogmzed experts 10 crtm10al Justice, practices that trelilt battered women differently from other assault victims. In the attorneys, victim advocates, and Federal officials for .2 days of dis?ussion .of the preparation of this report, Commission staff conducted field studies and hearings in problem and alternatives for reform. Although speakmg from a WIde vartety of Phoenix, AriZOUSl, and Harrisburg, Pennsylvania. Phoenix was selected because backgrounds and perspectives on the problems of battered women, these e~p7rts Arizona was recognized as a State with a traditional criminal law approach in ji' were united by their conclusion that the legal system's response to women vIctims which battered wife cases are handled under laws available to all victims of violent / of domestic viole11ce and their abusers differs markedly from its typical response to crime; Harrisburg was selected because of Pennsylvania's attempts to ins.titute other assault victims and perpetrators. Numerous participants both within and reforms in the treatment of these cases,3 The Phoenix hearings were held on outside the legal system described the policies and attitudes of police, prosecutors. and judges in such cases. They made it clear that domestic assault cases receive February 12 and 13, 1980, and the Harrisburg hearings on June 17 and 18. 1980. singular treatment by law enforcement officials and consistently evoke responses For the purposes of this report, the torm Ciwife battering" is meant to include the battering of women by men with whom they have or have had an intimate that are not found in other cases involving assaults between strangers or \ acquaintances. Although the category of "domestic violence" includes abuse relationship, whether or not legally married. against children, the elderly, and men, this report is concerned with evaluating the This project has addr~'jCd only physical abuse. Psychological or emotional treatment of adult women who are victims of domestic violence by the criminal abuse, while certainly serious and potentially damaging, is not usually treated as a and civil justice systems and by various service agendes. criminal offense, and greater evidentiary problems are presented in investigating and proving psychological abuse. 1 42 U.S.C. §1975c (aX2), (3) (Supp. III 1979). lThe Commission has been involved in the study of the problems of battered women for several years. In 1977 • Under Ihe "p~'TeeHon From Abus~ Act," Pa. Slat. Ann. tit. 3~ §§101&l-90 (Pprdon 1977) a~enton mbay seek reli~f or hlnlSjlf or h~rs3lf or for a minor child by fibng a petttion with the cou{t ~ egmg the Colorado Advisory Committee to the Commission published a report, Tlte Silent Victims: Dem'er' s B?lter~d a use by thr,l de endal1l1. rd. H0l84 Within 10 days, a hearing is to be lIeld at whIch the p'lamtl must Womenj the Connecticut Advisory Committer. issued a report, Ballered Women in Hartford. Connect/cllt ••m prodve the,allegation. (l §10l8S (a) The court.m!l.'l. in at) ex JX!.r!e proc~edi~. enter li.21Ch tell1porary 1979; and in 19&0 the New Hampshire Advisory Committee published Ballered Women and thfJ New Hamp~lt"e or !!rs as II deems nec~ary tp protect the plarntlf!' or. mrnor ciuldrl=ll" 1d. 018S 0» SUQh .orders, Justice System. The New Jersey Advisory Committee's report, Hollered Women in New Jel'st!)\ was pubhsbed ~bl~ii~:.m!~fa'n~~~r~?nOJlr ~l,ll~~n~~e~p~~~fy ~:lnlr;~ugx~~iffv~~ss~ioc;!~~~t~t r~i~~~~nt~r~~ , in January 1981, and the Maine Advisory Committee's report, Maine's Domestic Violence Law Has Made a p arnh~kand awarding temp'Jrary custody or minor chi1dr~p. (fd. §10186) When the COUrt.IS unavailtlble 0dn, wdee ends, di.stflcf Justtces tpay issue such ordersa .ellectlve until CQurt reopens. (Id. §1018&) A Good Beginning, was prepared for release in October 1981. e,en ant who Violates a protecllon order may be roun 111 contempt. (Id. S10190).

iv v

. ,. :'t I

b 1 ------______'8,

// " ACKNOWLEDGMENTS CONTENTS

The Commission is indebted to the following staff members who participated in the 1. Introduction ., ••••••••• ~ ••• iii ••• ,. ••••••• , •••• , •••••• fI •••••••••••• ., ...... 1 preparation of this report under the supervision of Gail Gerebenics, Assistant 2. The Law ...... 5 General Counsel: Mary Anne Hoopes, Peggy Massey, Anne Meadows, Karen Ci viI Relief .•.•.•...••...••..•.••...•.•.•.•.••...••••.•...... ••...... •....•...... •..•.. Criminal Prosecution 5 Primack, and Ricki Seidman, staff attorneys, and Linda Peyton, ... legal intern. •• f •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• The report is based on public hearings held in Phoenix, Arizona, under the Miscellaneous Laws 8 3. The Police ..... , ...... 10 direction of Jack Hartog and in Harrisburg, Pennsylvania, under the direction of ...... , 12 Gail Gerebenics. Staff members participating in the field investigations and Findings ...... •.....•.....•.•.•.••.••...... •.•...••.•....•....•••...... , ...•...... 4. The Prosecutors 21 , hearings included Laurie Campbell, Donald Chou, Mary Anne Hoopes, Linda ...... 23 Findings ...... •...... •.•...•..•.•••...•...•.•...... •...... •...... • Huber,· Peggy Massey, Anne Meadows, Robert Owens, Linda Peyton,. Ricki 5. The Courts 33 Seidman, Mary Grose, Connie Lee, DeBorah Marks, * and Grenda Morris .• ••• , •• , •••••••••••••••••••••••••••••••••••••••••••••• ,·· •••••••• 1 •••••••••••••••• The Minor Judiciary ...... 35 The Commission also expresses its appreciation to Brenda Blount, Mary Grose, 37 Relief Involving the Criminal Justice Process ....••..•..•...... •...... •..•• Lorraine Jackson, Connie Lee and Michele Moree who provided support services 41 Civil Court Remedies ....•.•••.....•...... ••...... •...... •...... •..•.•..•...•... necessary to the production of this report. 47 judicial Attitudes Toward Spouse Abuse ..•...•••...... •...... •....•..... 55 Final preparation of the report for publication was carried out by Vivian Hauser, Findings ....••.••...... ••••.. , ' .•.•.•...•...... •.•..•...•...•..•.....••..•.•....•...•.•.••... 59 Audree Holton, and Vivian Washington, Publications Support Center, Office of 6, Diversion Programs ..•...•.•...... •...... •...... •.•...... •.•...... •..•...• Management. 61 Informal Hearings ...... •••..•...•....••.•.•..•.•..•.•.•....••.•..•.••..••.....•....• 63 The field investigations and hearings were conducted under the overall supervision Mandatory Counseling and Therapy ..•••..•.•..•••....•....•...... •..•....•...... Md" P 64 of Eileen M. Stein,· General Counsel. Production of the report was under the F' e d'lahon rograms ...... overall supervision of Paul Alexander, Acting General Counsel. 70 In Ings ...... 75 7. Shelters and Social Services ...... 77 Shelters ...... •..•.••..•..••.•...•.••.....••..•.•.••..•.....•.••....•...... •.•...•.....•...... 77 Special Needs of Rural Women ...... 83 ·No longer with the Commission. Federal Programs ...... '" ...... Social Services 84 • ••• ,.. •• It •••••••••••• It ••••• , •••• I ..... It • , It ...... It It It .. It • It • It It ~ t , It It •••••• It ••••• ,.. ... 86 Findings ...••...•.••.....••..•..•••...•...... ••...•...•...... •.•.•..•.•..•.••.•.....•..•..•.•• 89 8. Summary of Findings and Recommendations ...... •.....•.•.••...... •..•..... 91 Chapter 3: The POlice ...... 91 Chapter 4: The Prosecutors...... 93 Chapter 5: The Coutts ...... Chapter 6: Diversion Programs ...... 94 'I 96 Chapter 7: Shelters and Social Services ...... 96

Tables , ;, 4.1 Disposition,.~fDomestic Al,>use Cases by Maricopa County Attorney ...... •... 2S , vi

vii

0., t

f

'"

Chapter 1 Introduction

6.1 Dade County Domestic Intervention J.>rogram, Postarrest Unit Data, First Three Quarters 1980 ...... ;, ...... , ...... 4...... 68 Conservative estimates put the number of battered wives,"8 and she cites an example from a medieval 6.2 Dade County Domestic Intervention Program, Postarrest Unit, Case Intake wives in this country at well over a million,1 while a morality tale of the wickedness of a nagging wife recent publication estimates that there is spousal Data, Third Quarter 1980 ...... , ...... "...... , .... t ...... , • •• 69 and the proper punishment for such behavior: violence in I~lose to one of every three marriages.:! It 6.3 Dorchester County Court Program,

...-'t __ ~ ______.~ __ _ -----.-=~------~-~----~------_.------_. -----

.1/', , I"

! I, ; I Common law reflects the customs of the people of husband and wife "stand upon the same footing limbs broken, and have been struok with horse normally prohibited by societal ana familial norms and standards.26 a nation, II and American law is built upon the British before the law": whips, pokers, bats, and bicycle chains.:>2 Wife \\ 10 common law that condoned wife beating and even beating is foun.d in every social class and at every Another expert, in testimony at the Harrisburg e income level,23 regardless of race or edUcation. prescribed the weapon to be used. This urul of The privilege, ancient though it be, to beat her with a ~earing, discounted stress as a cause of wife abuse: thumb" stipulated that a man could only beat his stick, to pull her hair, choke her, spit in her face or kick Many studies have been conducted on the causes wife with a "rod not thicker than his thumb.uu One her about the floor, or to inflict UpOll her like indignities, is and prevention of domestic violence. Alcohol and [I]t is a very clear, cultural training with regard to power. British jurist, Sir William Blackstone, who wrote the not now acknowledged by our law •...[I]n person, the stress are often alleged to be the primary causes of Men in this culture, except in the rare situation of wife is entitled to the same protection of the law that the enlightened men, are in power relationships with women Commentaries on the Laws of England that greatly wife battering. Experts working in the area of in which they have control and the ability to coerce. I influenced the making of the law in the American husband can invoke for himself. . . . All stand upon the domestic violence take exception to this, maintaining same footing before the law "as citizens of Alabama, think that once a man who is a bt.Uerer comes to grips colonies, commented on the "rule of thumb": possessing equal civil and political rights and public that although alcohol and stress may play a signifi­ with the facts that he has no right to exert power and coercion over his spouse, then change may come. privileges. "16 cant role in the problem, they are not the cause, but For, as [the husband] is to answer for her misbehavior, the rather an excuse: It is not .nis impulses. Clearly, he doesn't beat up his boss. law thought it reasonable to intmst him with this power of In 1874 the North Carolina court also rescinded the He doesn't bellt up his ~ecretary. He doesn't, you know, chastisement, in the same moderation that a man is man's legal right to beat his wife, but qualified the There are some cultures in the world that drink much beat up the kids on the block. It is not impulses; it is a allowed to correct his apprentices or children. . • .12 rescission, again hesitating to peer behind the domes­ more thG,'1 We do but yet aren't violent. So it is a cultural power relationship, and once he comes to grip with the problem. We want to look at the oncoming bad economic tic curtain: impermissible and inequity of power in that relationship, In America, the British influence took hold, with times .•.the poor men being out of jobs and all the stress and makes a conscious decision not to invoke his power by different States enacting legislation that on the that that will create and, therefore, they will beat their virtue of his. ~jze, by virtue of the culture, then change can wives. 27 whole subscribed to the same basic philosophy. In If no permanent injury has ber,n inflicted, nor malice, occur, but not until that tlme. 1824 the Mississippi Supreme Court in Bradley v. cruelty nor dange.rous violence shown by the husband, it is Stress isn't the fJroblemj it is something beyond that. It is State13 voiced approval of the husband's role as better to draw the curtain, shut out the public gaze, and Whatever the causes, experts generally agree that culturally how we're brought lip as men, that we can go violence is learned behavior. Many of the subjects in dIsciplinarian and stated its belief that the law should leave the parties to forget and forgive.'r home and we can beat our wives; they are our property not disturb that role: and we can act violently, and until we examine that and the Gelles study who had acted violently toward In the late 18oos, some States tried to make wife avoid jumping to snap conclusions that alcohol is the their spouses' had witnessed violent behavior be­ beating illegal by passing laws agamst it. In Pennsyl­ problem or stress is the problem, we're 'flot going to get Let the husband be permitted to exercise the right of tween their own parents as children and had moderate chastisement, in cases of great emergency, and vania in 1886 a proposed bill would have made wife anything done. U themselves been beaten by their parents/"S Mr. use salutary restraints in every case of misbehaviour, beating a crime, punishable by 30 lashes. IS The bill Gelles concluded: without being subjected to vexatious prosecutions, result­ did not pass in Pennsylvania, but one similar to it Richard Gelles, a leading expert in the study of ing in the mutual discredit and shame of all parties had passed in Maryland in 1882. The punishment in domestic violence, points out in his book The Violent Miolence is learned behavior... [w)here an individual U experiences violence as a child he is more likely to engage concerned. Maryland for wife beating.was 40 lashes or a year in Home that U[I]t might be argued that the definition o 19 of alcohol as an agent that caus~s out of character in violence as an adult. . • .When individuals do not As late as 1864 a North Carolina court, in a case in jail. A district attorney in Baltimore observed, experience violence in their families as they are growing behavior is a definition that serves to justify that 20 which a man choked his wife, upheld his use of after the first man was punished under this law, that up, they are less likely to be violent adults. "the crime ceased as if by magic. "20 No American behavior by relieving the individual from responsi­ force, commenting on the court's reluctance to bility for his actIons,"25 He states further: A recent study of 2,143 American families also "invade the domestic forum": jurisdiction today legally permits a husband to strike his wife. stresses the effects of growing up in a violent home: Thus, individuals who wish to carry out a viol~nt act [T]he law pemlits him to use towards his wife such a Despite the legal recognition of a woman's right become intoxicated in order to carry (Jut the When a child grows up in a home where parents use lots of degree of force, as is necessary to control an unruly to physical safety and of the State's duty to restrain act • ••.Alcohol leadfl to violence... because it sets off physical punishment and also hit ~ach other, the chances temper, and make her behave herselfj and unless some and punish her assailant through the criminal pro­ primary conflict over drinking that can extend to argu­ of becoming a violent husband, wife, or parent are greatest permanent injury be inflicted, or there be an excess of cess, evidence indicates that in many jurisdictions ments over spending money, cooking and se;;. In these of all: About one out of every four people who grew up i.n violence, or such a degree of cruelty as shows that it is the laws available for the protection of all people do cases, drinking may serve as a trigger for lot~ standing these most violent households URe ,nt least some physic/al marital disputes and disagreements ..•.The '\:;xistence of force on their spouses in any or,~ year .•.one out of ten of inflicted to gratify his own bad passions, the law will not \ invade the domestic forum, or go behind the curtain. It not protect a woman involved with her assailant in a suitable and acceptable justifications for violence serves to the husbands who grew up in vi9lent families are wife­ prefers to leave the parties to themselves ..•.15 prior or existing relationship.21 normalize and neutraliZe the violence. These justifications beaters in the sense of serious assault. This is over three Experts in the area of domestic violence have also may play a causal role in family violence by times the rate for husbands who dld not grow up in s,uch Finally, in 1871 an Alabama court rescinded the reported that wives in America have been raped, providing, in advance, an excuSe for behavior that is violent homes.3o legal right of a man to beat his wife, holding that the choked, stabbed, shot, beaten, had their jaws and .. Wife Beating. p. 14. II Ibid., pp.181. • Ibid., p. 101. " Id. 2' Straus, Gelles, and Steinmetz, Behilld Closed Doors, p. 31. 3. Straus, Gelles, and Steinmetz. Behind Closed Doors, /po 122. 10 Ibid. 15 State v •. Blnek, 60 N.C. 262 (1 Win. 266) (1324). U Stover Clark, testimony, Hearing Bejbn the U.S. Commlssiol/ According to Dr. Barhara Star, a researcher on family violence in II TC'rry Davidson, "Wife Beating: A Recurring Phenomenon If Fulgham v. State, 46AJa. 146-47 (1871) (citations omitted). on Civil Rights, Harrisburg, Pennsylvallia, June 17-18, 1980 throughout History" in Baltel'~d Women: A Psychological Study 0/ Los . Angeles, "People who work with violent fAmilies are )7 State v. Oliver, 70 N.C. 60, 61-62 (1874). (hereafter oited as Harrisburg Hcarillg), p. 220. Domestic Violence, ed. Maria Roy (New York: Van Nostrand impressed by the amount of distance, both emotional and to Richard J. Gelles, Tht Violent Hflme (Beverly Hills: Sage Reinhold, 1977), p. 18 (hereafter cited as "Wife Beating"). II As quoted in COl/jugal Crime, p. 104. physical, they see between family members. It is as if each person II Wij'eBeating, p. 16. Publications, 1972), pp. 116-17. I' Blackstone, Commentaries on Ihe Laws 0/ Eng/amI, 1765 as lived in his or her oWU world. They may share the same house but ,\ 2t Ibid .• pp. 117-18. quoted in "Wife Beating," p. 19. • •• Ibid. J7 Barbara Hart, festimony, Harrisburg Hearing, p. 16. they do not know each other well. Their conversations are more .. • 1 Bradley v. State, I Miss. {56 (1824) . '1 See chapters 3, 4, and S• II Gelles, Violent Home, pp. 169-70. about things than about inner thoughts or feC!lings. It is a very

2 3 , I'

~---~~------~-~ .. ~------____ ------,------c

o ()

This report will examine the present and potential The various component~of the justice system and Chapter 2 ,/ I roles of those who make up our justice system-the the social service delivery system are, of course, police, prosecutors, and judges-in spouse abuse related. A woman who must flee her home to escape cases. Chapter 3 addresses police response to cast:s assault is often without her own resources and often The Law of dome!ltic violence and the failure of many police is financially, as well as emotionally~ bound to her departments and officers to recognize the serious­ assailant. Her complex needs must be fu~tcby a wide ness of the offense and to take appropriate polkJ" array of services. Chapter 7 discusses the extent to action based not upon the relationship between which shelters and social services providl,'! support assailant and victim, but upon the ctime that has necessary for a woman with inadequate resources to been committed. Chapter 4 discusses the widespread make use of alternatives and remedies available prosecutorial practice of treating complaints of through the justice system. The role of legal services spousal violence differently from complaints bvolv­ is also examined, for legal advocacy is usually ing similar violence between strangers. of erecting barriers cJo their successful prosecution, and of crucial to a woman seeking civil remedies such as discouraging bllttered women from pursuing cdmi­ divorce, orders for support, and orders restraining nal complaints. Chapter 5 examines the failure of her spouse from further abusive conduct. judges to impose sanctions Oil abusive spouses Each chapter concludes with the Commission's commensurate with the seriousness of the offense, as findings. Alleviation of the tragic, age-old problem This chapter is intended to provide an overview the occurrence of one or more of the following acts between family or household members: attempting' to well as their emphasis on the preservation of the of wife abuse may depend on the responsive action~ and does not include an exhaustive list of State domestic violence statutes or all possible forms of cause or intentionally, knowingly, or recklessly causing marital relationship at the expense of a battered taken by members of the executive, legislative, and bodily injury or serious bodily injury with or without a wife's life and limb. judicial branches of government on alllevels-Fed­ relief available to women who are victims of deadly weapon; placing by physical menace another in Chapter 6 addresses the use of diversionary eral, State, and local. 'The fmal chapter of the report domestic violence. Civil and criminal statutes per­ fear of imminent bodily injury; sexually abusing minor programs such as counseling and mediation, through reiterates the fj,dings and sets forth the Commis­ taining to domestic violence vary frbm State to State children.' which complaints of criminal behavior are chan­ sion's recomm(j~ations and suggestions for reform. and provide different degrees of relief for victims. neled away from the traditional criminal process. The various statutes applicable to victims of violent Other States define domestic violence or abuse as: crime are not necessarily available to victims of attempting to cause or recklessly causing bodily empty exist()nce," Barbara Star, "The Impact of Violence on ultimate impact of violence on families. It literally [destroys] the Ff1milies," scheduled for publication in Conciliation COllrts .RcI~lt!iI'. family as a unit. Violence may contribute to the dissolution of violence in their homes. As of 1980, however, injury or placing another person by the threat of vol. 19, no. 2 (December 1981), p. 4 of manuscript. The result of one-third of the marriages [that] end in divorce." Ibid., pp. 8-9 approximately 38 State legislatures had amended or force i;';l fear of imminent serious physical harm;5 this ig that "[t]amilies that fight together, break up. That is the (footnote omitted). ' were considering amending statutes to provide intentionally or recklessly causing or attempting to additional relief for victims of domestic violence. 1 cause bodily injury;8 causing another to engage involuntarily ill sexual relations by force, threat, or Civil Relief force or duress;? or the "physical injury, sexual abuse or forced imprisonment ~}f a person by The most common form of immediate civil (non­ criminal) relief now being enacted to deal with another. . .to the extent that the P~fSO~'S health or domestic violence is the injunction, a court order to welfare is harmed or threatened thereby,/'8 do something or to refrain from doing something. Civil protection orders vary in soope. Although This civil remedy for injured parties is usually called the most common relief provided is an injunction a restraining order or protective order, depending ordering the defendant to refrain from abusing the on the State.2 These orders typically contain provi­ victim, protection orders often exclude the defen­ sions directing the defendant to refrain from abusing dant from the residence or household. In Minnesota, the plaintiff or the minor children.3 Most State the defendant may be excluded from a home the statutes attempt to define abuse, as in Pennsylvania, parties share or from the plaintiff's residence if the where abuse is defined as: parties do not live together.9 In Pennsylvania, even

I U.S., Department of Health and Human Senrices, State Domes­ • Ohio Rev. Code Ann. §3113.31(A)(I)(a)(b) (Page 1979). tic Violence Laws and How To Pass Them: A Manual for Lobbyists. • Cal. Civ. Proc. Code §S42(a) (West Supp. 1981). by Julie E. Hamos (1980), p. 15 (hereafter cited as Domestic Violence Laws). T Mass. Gen. Laws Ann. ch. 209A, §1(c) (West Supp. 1981). I Ibid. • Or. Rev. Stat. §184.88S(2) (1977). • Ibid., p. 20; Pa. Stat. Ann. tit. 35, §10186(a)(I) (Purdon 1978). • Minn. Stat. Ann. §5IBB.01(6)(b) (West Supp. 1981), , .. • Domestic Violence Laws. p. 19; Pa. Stat. Ann. tit. 35, §10182 (purdon 1978)~~ .

4 5 ,

"

o •

'/ f

! It if the residence is jointly owned or leased, the persons or only those living together in an intimate If a protection order is granted, the duration of be justifiable homicide. She told me, if either the act 'or the plaintiff may have the defendant excluded.10 New relationship remains open to interpretation in some the order will vary from State to State. A year is a shelter existed, he would still be alive and they probably would be apart and there wouldn't be the problem. York State, however, will exclude an abusive mate States. Some jurisdictions specifically state that their common time limit imposed.31 Massachusetts allows ll only if the parties are married. In Texas, even protection orders will cover individuals cohabitat­ an order to be e~tended if deemed necessary to The act itself-the most serious problems 1 see with it now where the residence is owned or leased by the ing. The State of Washington, for example, defines a protect the victim.32 West Virginia has a 3~-day are the questions about jurisdiction and venue. The defendant, the court will exclude him from the cohabitant as: maximum time limit on prof~ction orders.33 problems about where do you file a protective order if the home, but only if he l.las an obligation to support the After a protection order is issued, enforcement party-if the abuse took place in one county and the parties are now living in another county, where do you party granted possession of the residence or a child becomes an issue. Violation of an injunction usually If 12 a person who is married or who is cohabiting with a file? Also, if you want to enforce it intercounty. you of the p~y granted possession. person as husband and wife at the present time or at some constitutes contempt of court, punishable by fine or have a protective order in Harrisburg and the people are Other fdrms of relief available under protec.tion time in the past. Any person who has one or more children imprisonment.34 Most statutes do not specify wheth­ shopping across the river in Camp Hill, and the guy finds orders are provisions that the defendant refrain from in common with another person, regardless of whether er a violation is civil or criminal contempt, but in the the woman out in a shopping center and attacks her, how entering the residence, school, businese, or place of they have been married or lived together at any time, shall language of some statutes criminal contempt is do you verify the existence of the protective order? How 22 be treated as a cohabitant. 35 do you get the police to make an arrest? How do you get employment of the plaintiff;13 that the defendant implied. In West Virginia, a s~ntence may include prosecution commenced? Do you file it in Cumberland make support payments to the plaintiff and minor Wisconsin is even more explicit, stating: 30 days in jail and/or a $1,000 fine for contempt;38 County? Do you file it in Dauphin County? ••.There's children;14 that the defendant and/or plaintiff re­ Iowa prescribes a jail sentence for contempt;37 and just some real serious problems.41 ceive professional counseling;15 that the defendant Minnesota has made violation of a protection order a Another legal services attorney thought that the pay restitution to the plaintiff for losses suffered as a "Spousal relationship" means either a marital relationship misdemeanor.s8 Pennsylvania's Protection From problems inherent in the present Protection From direct result of the abuse;16 and that the defendant or two persons of the opposite sex who share one place or Abuse Act was amended in 1978 to create "indirect Abuse Act were curable through rules, noting: pay medical expenses incurred by the plaintiff as a abode with minor children and live together in a relation­ criminal contempt;' with a penalty of up to 6 ship which is similar to a marital relationship except that result of the domestic violence.l7 months in jail and a fine not to exceed $1,000, or the two persons are not married to each other...• 23 1 think that the law itself has helped a lot. 1 think that over These avenues of relief are not, as a matter of both.39 Pennsylvania'S act also provides for warrant­ the course of time when one person responds, whether it course, extended to everyone involved in domestic The District of Columbia has a broad definition of less arrest upon a showing that the police have be a police officer or a judge in a particular case, that has probable cause to believe a protection order has an effect on all the other people in the system, and. . .1 violence. The party eligible for relief, such as the who is protected, extending eligibility to unmarried think the law in itself is causing some changes in people's family or household member, is normally defined in couples if: "he shares a mutual residence and is in a been violated: attitudes.42 the statute. IS In Pennsylvania, this consists of close relationship,"24 as does Missouri, which pro­ An arrest for violation of an order issued pursuant to this spouses, persons living as spouses, parents and vides protection to "spous~s, persons related by Approximately 15 States have criminalized viola­ act may be without warrant ~!?gn probable CaUse whether tion of a protection order by making such an children, or other persons related by consanguinity blood or marriage, and other persons of the opposite or not the violation is committed in the presence of the or affinity, 111 The Pennsylvania statute will only sex jointly residing in the same dwelling unit. "25 police officer.40 infraction a misdemeanor.~3 Hawaii provides that: cover former coresidents if both parties continue to Many States provide preliminary protection or­ "[a]ny willful disobedience of a temporary restrain­ have legal access to the residence. 2o In Minnesota, ders to be issued ex parte26 in the face of "immediate A legal services attorney evaluated the Protection ing order. . .shall be a misdemeanor, and any other From Abuse Act at the Harrisburg hearing; disobedience of a restraining order may be treated family or household member means spouses, parents or present danger of abuse. "27 Such orders usually and children, persons related by consanguinity, and are effective until a hearing can be held, generally by the court as a civil contempt."·· Similarly, in 21 Ms. ROURKE. The act is an immense improvement over Texas a violation of an order "by commissions of p~rsons jointly residing in the same dwelling unit. within 10 days.~8 In Pennsylvania, an ex parte order what we used to have. There are still problems with it. The language of most statutes is usually vague in can remain in effect for as long as a year if the There are still areas that need to be improved and there family violence may be a criminal offense punishable defining "Jiving as spouses and cohabitant," thus defendant eludes notice and the hearing.29 Ohio also are problems outside the act. . .[but] [i]t gives us relief in by a fine of as much as $2,000 or by confinement in making it difficult to interpret who is eligible for provides for an criminal protection order cases where there was just absolutely no other choice jail for as long as one year, or botn."·s Violation of a ex parte before. Before the shelter was in existence and befpre the protection. Whether this would include unmarried and requires a hearing within 24 hours of the order.so protection order does not automatically mean that act was passed, 1 had one particular client tell me that the any sanction, civil or criminal, will be imposed. reason she killed her husband Was because there wasn't .0 Pa. Stat. Ann. tit. 35, §1018b(a)(2) (Purdon 1978). I. Domestic Violence Laws, p. 21, A jUdicial proceeding, order, These sanctions are widely discretionary with the ; 11 N.Y. Jud. Law §812 (N.5) (McKinney, 1975). anyplace to go and there wasn't any protection she could injunction, etc., is said to be expartl?' when it is taken or granted at judges, and often violators will be given another II Tex. Fam. Code Ann. tit. 4, §71.11 (Vernon Supp. 1980-81). the instance and for the benefit of one party only, and without get. The police wouldn't get involved and he attacked her, •• Ohio Rev. Code Ann. §3113.31(B)(1)(g) (1979). \ notice to or contestation by any person advetsely interested • and she had no chance. She killed him, and it was found to chance, or they are diverted away from the criminal • 0 Iowa Code Ann. §236.5(l) (West Supp. 1980-81). (Black's Law Dictionary (5th ed. 1979).) The issuance of f.'X parte •• Ill. Ann. Stat. ch. 69, §25 (Smith·Hurd Supp. 1980-81), •• Ibid., p. 83j Or. Rev. Stat. §107.715(2) (1977); Pa. Stat. Ann. tit. O. Pa. Stat. Ann. tit. 35, §10190(c) (Purdon 1978). orders granting exclusive possession of the home to an abused .1 Mass. Gen, Laws Ann. ch, 209A, §3(e) (West Supp. 1981). 35, §10186(b) (Purdon 1978); Mass. Gen. Laws Ann. ch. 209A, o. Nancy E. Rourke, testimony, Hearing Before the U.S. Commis· spouse hus raised constitutional issue'& that have become a source 17 Alaska Stat. §09.55,~1~(6) (Supp, 1980). §3(e) (West Supp. 1981). sion on Civil Rights. Harrisburg, Pennsylvania. June 17-18, 1980 10 Domestic Violence Laws, p. 16. of dispute and litigation. For a discussion of the ~nstitutional issues, see chap. 5. •• Mass. Gen. Laws Ann. ch. 209A §3(e) (West Supp. 1981). (hereafter cited 1I.s Harrisburg Hearing). p. 149. It Pa. Stat. Ann. tit. 35, §10182 (Purdon 1978). .. W. Va. Code §48-2A-6(2) (1980). 17 Pa. Stat. Ann. tit. 35, §10188(a) (purdon 1978). .1 LawrenceNorton, testimony, Harrisburg Hearing. pp. 152-53. 20 Domestic Violence Laws, p. 16; Pa. Stat. Ann. tit. 35, §10182 .0 Domestic Violence Laws, p. 25. (purdon 1978). I. Domestic Violence Laws, p. 21. os Response. vol. 3, no. 17.. (August/S~ptember 1980, Center for .. Adult Domestic Violence. p. 125. 11 Minn. Stat. Ann. §518B(2)(b) (West Supp. 1981). 2' Ibid. Women Policy StUdies), pp. 6-7. •• Ibid.; W. Va. Code §48-2A-7(2) (1980) . .. Wash. Rev. Code Ann. §10.99.020(1) (West 1980). •• Legal Services Corporation, ,Idult Domestic Violence: Constitu­ 00 Adult Domestic Violence. p. 132; Hawaii Rev. Stat. §585-4 .. Wis. Stat. Ann. §46.95(c) (West Supp. 1980-81). 07 Iowa Code Ann. §236.8 (West Supp. 1980-81) . tional. Legislative and Equitable !ssu,,s, by Ann·Marie Boylan and •• Minn. Stat. Ann. §518.B.01(14) (West Supp. 1981). (Supp. 1.930). '0 D.C. Code Ann. §16-1001(1){c) (1973). Nadine Taub (1981), p. 76 (hereafter cited as Adult Domestic Domestic Violence Laws. p. 26; Pa. Stat. Ann. tit. 35, §10190(a)­ o. Domestic Violence Laws, p. 2'9; Tex. Fam. Code Ann. tit. 4, I. Mo. Ann. Stat. §45S.01O(b), 455.020 (Vernon Supp. 1981). Violence). .t §71.16(b) (Vernon Supp. 1980-81). , (b) (Purdon 1978). 6 7

I

D . ~ II) ,

1:.oIi' "II ,

have been made to focus on battered wives. Califor­ system into pcogramsrequiring some form of coun~ and, therefore, may become the party at fault. In Similar provisions are found in the MassachusettS seling or therapy. New Jersey the courts have held that when a nia's domestic violence statute extends coverage to statute, which states: In addition to or in place of a protection order, woman is forced to leave her marital home due to cohabitants of the opposite sex and states that an abusive mate can be imprisoned in the State peniten­ whenever any law officer has reason to believe that a women who are victims of domestic violence often the extreme cruelty of her mate, constructive deser­ family or household member has been abused, that officer seek some other form of civil relief. Some States still tion on her mate's part has occurred, and this may be tiary for 2 to 4 years or in the county jail for a year shall use all rellSonable means to prevent further abuse maintain "interspousal tort immunity," which pre­ grounds for her to file for div()rce~53 In addition, for willful. "corporal injury resulting in a traumatic including: (1) remaining on the scene;. • . (2) • . .driving vents a battered woman from suing her spouse in a New Jersey courts have held that when a wife condition. j'58 Identical to its assault and battery the victim to the hospital; (3) giving [victim] ...notice of [her] rights; (4) arresting•.. if the officer has probable civil suit.48 Most Svates have abolished this immunity leaves her marital home because of the misconduct statute, the Tennessee domestic violence statute limits the charge that can be brought in a domestic cause to believe that a felony has been committed, or a with respect to torts against property interests; in of the husband, desertion cannot be made the misdemeallor has been committed in the officer's pres­ situation to a misdemeanor.59 Ohio has similar many States, however, spouses still cannot sue one grounds of divorce should the husband proceed with ence.... 80 another for personal assaults.·7 New York abolished a divorce action and cannot be used as his defense to legislation, but where the assault is a repeat offense, interspousal hnmunity, stating: 54 the charge can be a fourth-degree felony,80 the In most States, police may make an arrest only if her action for divorce. 81 Another remedy available to abused women in maximum penalty for which is 5 years. they have probable cause to believe a felony has A married woman has a right of action against her some States is crime victims' compensation. Wash­ Most laws that are codified to punish domestic been committed or if they witness the commission of husband for nis wrongful or tortious acts resulting to her 7o ington State has such legislation, but excludes violence do not address the issue of marital rape, and a misdemeanor. Recent domestic violence legisla­ in peI'Sl;>nal injury. . .or resulting in injury to her property, many States still have a marital exception to rape tion has attempted to make it easier for reluctant as if they were unmarried, and she is liable to her husband coverage of women who are still living in the same laws, preventing a man from being charged for officers to make arrests in cases of domestic vio­ for her wrongful or tortious acts resulting in any such household with their abusive spouse. 55 personal injury to her husband or his property; as if they raping his spouse. New Jersey, Oregon: and Nebras­ lence. were unmarried. 48 ka have eliminated this marital exception from their Authority to arrest for violations of protection Criminal l')rosecution codes.82 The New Jersey Penal Code states: "[N]o orders may be distinguished from authority to arrest A remedy in tort action is often not available for In most States a battered woman has the legal actor shall be presumed to be incapable of commit­ for the commission of a felony or misdemeanor. As lower income women because either they lack the right to pursue a criminal complaint against her ting a [sexual] crime because of... marriage to the to the former, Oregon makes it mandatory, unless ti:nancial resources to pursue it or they would not abusive mate under existing criminal statutes. Rele­ victim."sa California, although not completely elimi­ the victim objects, that an officer make a warrantless gain from it because their spouses are also without vant criminal offenses typically include assault, nating .. the spousal exception, has established a arrest when there is probable cause to believe that a resources. battery, aggravated assault, aggravated battery, separate crime of spousal rape,84 which requires that protection order ha!b been violated.l1 In North Legislation 'providing other forms of protection reckless conduct, intimidation, disorderly conduct, the victim report the offense within 30 days to Carolina, the statute provides that the police shall: for abused women and creating civil remedies for or harassment. 541 For various reasons, these remedies initiate arrest or prosecution.65 victims of domestic violence is becoming more are not always available to abused women, and thus take a person into custody if the officer has probable cause Lack of enforcement, including a reluctance to to believe that the person has violated a court order common. Most marriage dissolution statutes provide some States have codified domestic violence as a arrest in cases of domestic viblence, is a continuing some injunctive tl:lief to protect the spouse during excluding the person from the residence or household specific form of criminal behavior. problem. Courts in some States are required by law divorce proceedings. In Arizona the standard pre­ occupied by a victim of domestic violence or directing the Under the traditional criminal remedy, battered to direct law enforcement agencies to enforce person to refrain from harassing or interfering with the litninary injunction granted in actions for dissolution women often find themsehres confronted with inac­ protection orders. 88 Ohio specifies that officers victim, and if the victim presents the law enforcement or legal separation states: "both parties are enjoined tion by police officers, consistent filing of less "shall enforce the order.. .in accordance with the officer with a copy of the order or the officer determines from molesting, harassing, disturbing the peace of or serious charges by prosecutors because of the family that such an order exists through phone, radio or other provisions contained in the order including remov­ 12 committing an assault or battery on the person of the communication with appropriate authorities. nature of the matter, and the view of many criminal ing the respondent from the premises where appro­ other party or any natural or adopted child."4Q justice officials that violence in the hOI1\e is less priate. "81 North Dakota has established that: Some States prohibit warrantless arrests for mis­ Legislation creating a defense to grounds of serioua than violence among"strangers. New domes­ demeanors committed out of the presence of a police desertion when a woman leaves a battering situation tic violence criminal legislation attempts to remedy officer, but new domestic violence legislation is now has been found to be necessary by some States.50 this. When an [protection] order is issued upon request of the applicant. • .the court shall order the sheriff or other changing this. A statute that reflects this change is Most States have instituted no-fault divorce laws, Criminal statutes directed at domestic violence appropriate law enforcement officer to accompany the found in Florida: \ but a few still require proof of grounds for a vary from State to State. The Arkansas criminal applicant and assist in placing the applicant in possession divorce. til Desertion may be grounds for divorce in code dermes three degrees of wife battering and four of the dwelling or residence, or otherwise assist in [a] peace officer may arrest a person without a warrant SS those States that grant divorce based on the fault of degrees of assault on a wife.57 This statute only execution or service of the protection order. when...• The officer has probable cause to believe that one party, 52 A woman who leaves an abusive protects women and is identical to the general ~. Cal. Penal Code §273.S (West Supp. 1981). •• Cal. Penal Code §262 (West Supp. 1981). situation may be found to have deserted her husband assault statute, except that certain language changes II /Jomestlc Violence Laws. p. 37: Tenn. Cede Ann. §39-602 II Cal. Penal Code §262(b) (West Supp. 1981). (SPJPP. 1980). 110 Adult Domestic Violence, p. 187. 41 Domestic Violence Laws. p.31. .. Meldowney v. Meldowney, 27 N.J. Eq. 328 (1876); Taylor v. 47 Ibid., p. 32. .~ Domestic Violence Laws. p. 37; Ohio Rev. Code Ann . 17 Ohio Rev. Code Ann. §3113.31(F) (Page 1979). .. Ibid.; N.Y. Gen. Oblig. Law §3-313(1)-(2) (McKinney 1978). Taylor, 28 N.J. Eq. 207 (1877). §2919.2S(c) (Page 1979) . •• N.D. Cent. Code §1407.1-04 (5upp. 1979). • f Ariz. Rev. Stat. Ann. §2S-315(A)(1)(b) (Supp. 1979). •• Wash. Rev. Code §7.68.070(3)(b) (Supp. 1981) . II Ohio Rev. Code Ann. §2929.11(B)(4) (Page 1979). .. Mass. Gen. Laws Ann. ch. 209A, §6 (West Supp. 1981) • 10 Domestic Violence LaWs, p. 34. •• Domestic Violence Laws. p. 36. 81 Joanne Schulman, "The Marital Rllpd· Exemption in the 1 11 Ibid., p. 33. '0 Dolllestic Violence Laws. p. 311. 57 Ibid., p. 37; Ark. Stat. Ann. §§41-16S3 to 1659 (Supp. 1981). Criminal Law," Clearinghouse Review. vol. 14, no. 6 (October 12 Ibid. 11 Or. Rev. Stat. §133.0SS (1977). , so Fitzgerald v. Fitzgerald, 66 N.J. Super. 277, 168 A.2d 851 1980), pp.S38-40. 71 N.C. Gen. Stat. §50B-4(b) (Supp. 1979). (1961). •• Ibid., N.J. Stat. Ann. §2C-14-S(b) (West 1981).

8 9

I

"

. , ------'------_._-- (','

the person has committed a battery upon the p~rson's spouse and the officer: (a) finds evidence of bodily harm; Miscellaneous Laws concerning domestic abuse in an effort to develop a If you are in need of medical treatment, you have the right or (b) the officer reasonably believes that there is danger Legislation related to domestic violence is not' comprehensive analysis of the incidence and causes of violence unless the person alleged to have committed directed exclusively at civil and criminal remedies. to demand that the officer present drive you to the nearest the battery is arrested without delay.73 of that abuse."82 Similarly, Michigan requires that hospital or otherwise assist you. States are now passing legislation that will offer aid the chiefs of police and sheriffs of Villages, town­ and services to promote the eventual reduction of ships, and counties report to the State police Ohio has enacted legislation that allows police the incidence of domestic violence. department the number of assaults reported involv. If you believe that police protection is needed for your officers to make a warrantless arrest on a written physical safety. you have the right to demand that the Grassroots groups and agencies wor.king in the ing spouses and the disposition of the cases. B3 New statement of the victim: area of domestic violence have long recognized the officer present remain at the scene until you and your Hampshire requires the State police director to children can leave or until your safety is othenvise necessity of safe houses. State legislatures are now submit an annual report to the general court on the insured.8s The execution of a written statement by a person alleging also recognizing this need, and laws on the establish­ number of assaults on family or household mem­ that an alleged offender has committed the offense of ment and maintenance of shelters are being devel­ bers. B4 Other legislative attempts to reduce the incidence domestic violence against the person or against a child of oped. Washington State, in its legislative findings, of domestic violence include legislation requiring points out: Even after police respond to domestic violence the person, constitutes reasonable ground to believe that the court to forward a copy of protection orders the offense was committed and reasonable cause to believe calls, the victims of abuse are often left in the that the person alleged to have committed the offense is residence without any knowledge of what their when issued;B8 requiring county clerks to help guilty of the violation.7• Shelters for victims of domestic violence are essential to rights or remedies might be. State legislation is now women filing for protection orders by providing provide protection to victims from further abuse and physical harm and to help the victim in finding long-range being enacted to remedy this. Massachusetts requires forms and assistance in preparing and serving the Along with addressing police enforcement and alternative living situations, if requested. Shelters provide that officers arriving at the scene of a domestic documents;B7 providing that, in cases of domestic arrest in domestic violence situations, legislation safety, refuge, advocacy, and helping reSources to victims dispute stay at the scene until the danger has passed, violence, husband and wives are competent wit­ related to police immunity from civil or criminal who may not have access to such things if they remain in help the victim to obtain medical treatment, arrest if nesses and cannot refuse to testify on the ground of damages has also been implemented in some States. abusive situations. The legislature therefore recognizes the probable cause exists, and give the victim notice of the privileged nature of their communications;B8 need for state-wide development and expansion of shelters Many States have now enacted provisions protect­ for victims of domestic violence.78 her rights. This written notice is to be in English and providing that the court cannot, in considering ing poUce officers who enforce domestic violence Spanish, and handed to the victim: custodial rights, consider abandonment of the family In accordance with these findings, Washington statutes from civil and/or criminal liability in any You have the right to go to the district, probate or residenGe when the abandoning party left due to subsequent legal action. 75 In Oregon, police officers State provided legislation for shelters to house the superior court and file a complaint requesting any of the physical harm or the serious threat of physical have civil and criminal immunity from liability for victims of domestic violence,79 and other States have following applicable orders for temporary relief: (a) an harm;n and providing for special diversion pro­ making an arrest, if it is made in good faith and in the followed suit. Virginia has mandated that the depart­ order restraining your attacker from abusing you; (b) an grams that will necessitate counseling and treatment order directing your attacker to leave your household: (c) absence of malice.76 ment of welfare shall have the responsibility to: Hact for the abuser. 00 as the administering agent for State grant fbnds for an order awarding you custody of a minor child: (d) an Beyond making the laws more flexible, attitudes order directing your attacker to pay support for you or An important aspect of some domestic violence community groups seeking to establish ser~ice pro­ and conventional beliefs about the use of force any minor child in your custody if the attacker has a legal statutes is a provision that a woman who is seeking a grams for victims of spouse abuse."Bo New Jersey against a Spouse must also change. Police officers obligation to support them: and (e) an order directing your protection order is not precluded from also seeking has also provided shelters for victims of domestic attacker to pay you for losses suffered as a result of the often carry these attitudes to their jobs, affecting abu(M.:, including medical and moving expenses. loss of relief through the criminal process. Although in the violence and has established guidelines for services District of Columbia the United States attorney their judgment in dealing with domestic disputes. In to battered Women, including emergency medical earnings or support. attorney fees and other out-of-pocket losses for injuries sustained. cannot file criminal charges once the family division response, groups active in the area of domestic care, legal aid, counseling, and information on begins taking evidence toward seeking a protection violence are assisting in police training in order to education, jobs, housing, and available social ser­ You have the right to go to district court and file a sensitize law enforcement officials to the dilemma of vices. New Jersey's statute also provides that one or criminal complaint for threats, assault and battery. assault order,91 other State statutes specifically establish that an abused woman. Alaska has passed a rather more shelter personnel be bilingual whenever feasi­ with a deadly weapon. assault with intent to kill or other a woman seeking relief under a protection from related crimes. You may go to district court f.)r an detailed law requiring the established police training ble. B1 abuse act shall not be precluded from seeking other emergency on weekends or holidays. 92 program to provide training that acquaints officers Data-collection laws are also being enacted. The criminal or civil relief. \ incidence of domestic violence has never been II Me. Rev. Stat. Ann. tit. 19. §761 (3) (Supp. 1980-81). •• W. Va. Code §4S-2A-S (19S0). with the laws and criminal procedure applicable in a. Mich. Compo Laws Ann. §2S.2S7(7)(d) (Supp. 1980-S1). I. Me. Rev. Stat. Ann. tit. 19. §211 (West Supp. 19S()"'SI). domestic violence caseSl techniques for handling adequately documented. This is, ifl part, due to lack U N.H. Rev. Stat. Ann. §106-B14(II) (Supp. 1979). 00 Cal. Penal Code §1000.6 (West Supp. 19S1). domestic violence, resources available to victims of of reporting by victims. The major problem, how­ II Mass. Gen Laws Ann. ch. 209A §6 (West Supp. 1981); see IIlso .. D.C. Code Alln. §!6-1002(b) (1973). Utah Code Ann. §30-6-8 (Supp. 1979). domestic violence, and the notifil~ation that must be ever, has been sparse data collection by law enforce­ •• Minn. Stat. Ann. §SISB.Ol(13) (West Supp. 19SI). U Minn. Stat. Ann. §lSB.01(16) (West Supp. 1981): N.C. Gen. ment and direct service agencies. Maine has codified Stat. §SOB-7 (Supp. 1979): Conn. Gen. Stat. Ann. §66-3S(e) (West given victims regarding their rights and remedies.77 17 Utah Code Ann. §30-6-4 (Supp. 1979); Mo. Ann. Stat. Supp. 19S1). the necessity to "provide for the collection of data §4SS.02S (Vernon Supp. 19S1). 7' Fla. Stat. Ann. 901.1S(b)(West Supp. 19S1). 7. Ohio Rev. Code Ann. §293S.03(B) (Page 1979). 7. Wash. Rev. Code Ann. §70.124 (West SuPp. 1981). 7. Domestic Violence Lallls, p. 4S. 7t Id. 7' Or. Rev. Stat. §133.31S (1977); see also Iowa Code Ann. I. Va. Code §63.1-317(S) (19S0). §236.11 (West SuPP. 19SO-S1). .. N.J. Stat. Ann. §30:14-1 to 14-14 (West 1981). '7 Alaska Stat. §IS.6S.S10 (Supp. 19S0).

10

11 , I:(( ,, ,

'-')

J,

problem when we deal with it but the cause is not a police without making it clear that only a frac:tion of the Chapter 3 s problem. "disturbance calls'; involved wife abuse.1o The result Police officers often view domestic disturbance is tbat the danger of intervening in domestic dis­ calls as dangerous, emotionally charged, and diffi­ putes, While significant, is exaggerated. Although The Police cult to resolve. A Phoenix police supervisor summed some studies are beginning to recognize that the up his officers' attitudes toward domestic distur­ danger to police officers has been exaggerated,11 the bance calls: fact remains that many police officers perceive the peril to be great. This perception cannot be effec­ The police officer, basically, by and large, does not like tively challenged until reporting procedures are answering dom~tic calls of that nature. • . . When he refined to permit an accurate compilation of infor­ receives the can by radio .•.[t]he two things he feels [are] probably fear, because more officers are killed in family mation on spouse assault cases. situations than probably anything else, and the other thing Further complicating the police officer's task in is frustration.' domestic violence cases are the emotional, marital, and financial relationships between victim and assail­ Police officers are acutely aware of the danger to ant, factors that are absent in most other assault themselves that intervention in domestic distur­ cases. These factors lead to complications police bances may entail. Witnesses at the Commission's officers normally do not encounter and for which hearings repeatedly emphasized the danger of su(}h their training on arrest and interrogation procedures Although a victim of domestic violence in some restrain ber witb the use of moderate pbysical force. 2 calls.7 Training material$ for police officers also may not have prepared them. jurisdictions may me a private criminal.complaint or Even after American courts disavowed tbis theory traditionally stress the importance of being alert to Police officers testifying before the Commission seek civil relief, in the vast majority of cases a police at the end of the 19th century, law and social custom the possibility of attack by eHher the suspect or the reported that victims of domestic assault are very officer is the fU'St representative of the justice system continued to treat spousal assaults as plivate family victim.·' often highly upset and unsure of what they want the with whom a battered woman has any contact. matters best resolved by the parties without res~A to Due to current recordkeeping pl'actices, it is responding officers to do. In many other crimes, the 3 Victims of domestic violence calLupon the police criminal sanctions. impossible to make an accurate assessment of the officer can expect willing cooperation and support for help in great numbers. Police officials estimate Police practices reflected the prevailing socia! and danger. The best source of nationwide statistics is from the victim. The battered woman's initial that domestic disturbance calls constitute between legal approach. The author of a recent report on the Fedetru BW'eau of Investigation's Uniform confusion and fear may put the officer in the 15 and 40 percent of all calls for police assistance.1 If police and domestic violence notes: Crime Reports, which are compiled quarterly and unfamiliar and uncomfortable position of having to annually from information submitted by local law the police fail to respond to her calls Ot respond [P]olice rarely made an arrest in family violence situations make an enforcement decision contrary to the slowly, or if they fail to take appropriate action and they had no special s!dlls with which to handle such enforcement agencies. The statistics on assaults on . expressed wishes of the victim. As one former chief against her assailant or express sympathy for him, disputes, except to use authoritarian gesture!! or commands police officers are grouped according to the type of of police testified, the victim receives a clear message that she cannot telling the participants to "break it up" or "take a walk." activity in which the officer was engaged when depend on the justice system for protection. The For the most part, this lack of preparation to deal with assaulted, but the general category "responding to a Blood is thicker than water is a true thing out here, and it's dome... tic violence can be traced to the relatively recent impressions gained from interaction with police diehlrbance call" is not subdivided into types of hard to get the woman to come forward and sign entry of police into these situations, many of which were complaints and follow through on it because in many officers, especially if they are confirmed after sever­ previov.sly settled through the intervention of relatives or distktbances. This category combines interspol.1sal assaults with other domestic disturbances, barroom instances it is her source of revenue to keep the family al police visits, may discourage victims from contin­ neighbors. ' together. And in many instances she loves him. She still fights, and street disturbances. uing to seek assistance through the criminal process. does love h~.12 Even today, when the illegality of spouse abuse is The Uniform Crime Reports show that 32 percent The responsiveness of law enforcement agencies settled beyond doubt, some police offiqers continue of the reported assaults on officers during 1977 The recurring nature of domestic violence also in domestic violence cases has not always been an to view domestic violence as a quasi-criminal prob­ occurred in connection with a "disturbance call," as complicates .matters for the police. Many women \ in issue the United States. English common law and lem only peripherally related to law enforcement. did 16 percent of all officer deaths during the to­ summon police assistance numerous times during a the early law of many American States expressly One officer explained this attitude: year period from 1968 to 1977. 11 These statistics are violent relationship. Data from a questionnaire endorsed the right of a husband to punish his wife frequently cited in discussions of spouse assaults administered to shelter residents in Phoenix showed physically. The underlying theory was that since the The police officer responds to the domestic problem. He is husband in many cases was held responsible for tbe seeing an ",.. tcropping of a much more deep-seated I Richard Twitchell, testimony, Phoenix Hearing. p. 51. • U.S., Department of Justice, Federal Bureau of Investigation, problem. Ht. unly confronts... the tip of the whip that • Ibid., p. 3B. Crime in the United States-J977, pp. 28B-90. wife's actions, he should be permitted to chasti~: and cracks. And yet the whole whip is there. . • .It's a police 7 Calvin Baker, testimony, Hearing Be/ore the U.S. Commission on 10 Del Martin, statement, Battered Women: Issues ofPublic Policy, Civil Rights, Harrisburg, Pennsylwmia, June 17-18, 1980 (hereaftel a conSUltation sponsored by the U.S. Commission on Civil Rights. I Elizabeth Conniclc. 1M Chytilo, anti. Andrcs& Penon, "Battered • See cases cited as Harrisburg Htaring), pp. 85-B6j Stanley Krammes, collected in Sue E. Eisenberg alld Patricia t. Wa.~hington, D.C., Jan. 30-31, 197B, p. B (hereafter cited as Women and the New York City Criminal 1usti~ System" (paper Micklow, "The Assaulted Wife: 'Catch 22' Revisited," testimony, Harrisbu'i Hearing, p. 137; Twitchell Testimony, delivered It the 1980 AnnUal Meeting of the Uiw and Society Women~ Consultation), p. B; Marjory Fields, statement. Consultation. p. 23. Rights Law Reporter, vol. 3 (1976), pp. 13B, J39. Phoenix Hearing, p. 38. Association and the Institute for Social AtIllysis Research ~ Illtemational Association of Chiefs of Police (IACP), Training II Mona Margarita, "Killing the Police: Myths and Motives," , .. Committee on Sociology of Law, M,adison, Wis., June 5-B, 1980). • Ibid. Key No. 246 (1976); Police Academy training materh!.ls supplied Annals of the American Academy of Pol/tical and Social Sclenci p. I; Asst. Chief Donald Lozier, testimony. Htaring Before the • Nancy Loving, Responding to Spouse Abuse and Wife Beating by Capt. Glenn Sparks. Phoenix Police Department (Modesto Jr. (November 1980), pp. 64, 69. OIl (police Execlltive Research Forum. 1980), p. 33. u.s. Commission CMf Rights, Photllix. Arizona. Feb. 12-13. College West training brochures nos. VII-C-3 through 5, in 12 Lawrence Wetzel. testimony, Phoenix Hearing. pp. 60-61. 1980 (hereafter cited I\S PlHx!nix Htarin,g), p.57. Commission files).

12 '~.. 13 ,

It -.----~-- ---~~-- v

that of 78 women tesponding, 55.2 percent had COUNSEL. What standards do you use to determine to keep it out of the legal field and tg recommend standpoint, the officers have to realize that minds are whether or not to respond to a domestic call? outside agencies to handle the problem,"21 A Phoe­ changed in these types of situations after the heat ofba1tle, called the police between 1 and 4 times before to if you will ...• I coming to the shelter, 10.3 percent had called 5 to 10 nix officer in charge of training stated, U(O]bviously SERGEANT KRAMMES. The situation itself. If there is a if we can avoid putting somebody in jail and still I times, and 6.4 percent had called more than 10 COUNSEL. So you are saying that while the woman may ", 13 situation right at the time. In other words, if a wotnan has solve the situation that is exactly what We want to times. The fact that officers often confront the already been abused and her husband is no longer there, if express a desire for arrest on the spot, it's, in your same problem repeatedly with the same couple was there is no need for us there, then we inform her of the do in most cases."22 experience, likely that later on she will change her mind? mentioned by several police officers as a major legal procedures. She can get the Protection from Abuse Law enforcement officials offer a variety of source of frustration: [order], or she can go to the district justice and charge her explanations for decisions not to arrest in cases of ACTING CHIEF KORNEGAY. I think that is my experience husband with assault. 17 domestic assault. Probably the Olost frequently cited and I think that has been the experience of many police reason is that the victim does not wish to have him officers that have been involved in the family dispute Research conducted in Kentucky in 1979 revealed Perhaps [the officer] has been there 'three or four times arrested. Police officers are accustomed to having problems for many years. before. . . .Sometimes these are just weekly situations that police failed to respond to 17 percent of aU caUs and, as was indicated by the previous officers, alcohol is a the cooperation of the victim of a violent crimet and for help from battered women. IS Such police prac­ COUNSEL. And you think it's appropriate for the officer to big factor. Daddy gets drunk on FridElY and stays that way most want to protect the victim's interests. They are tices put the burden of law enforcement squarely take that into account in deciding whether or not to arrest? all weekend, so you have a fight all weekend. So the reluctant, therefore, to overrule the victim's desires upon the assault victim, relieving the police of any officers almost know what is going to happen. They also and arrest her assailant. A Phoenix police lieutenant obligation to investigate, to collect evidence, or ACTING CHIEF KORNEGAY. I think it is appropriate to know that the woman in these kinds of situations probably described a scenario: isn't going to prosecute. All she wants is somebody to even to record the crime. consider that as one of the many factors and many complexities of the role that we play.24 straighten this person out.14 Even where police do respond to domestic vio­ The first officer would arrive on the scene and he'd gain entry into the house. . . . Police officers become frustrated when it appears lence caBs, they often refrain from making arrests, Statistics drawn from a sampling of Phoenix due to formal or tacit departmental policy. A recent that their intervention has made no difference. In the You now observe her. She has got II. large laceration above police reports appear to confirm Chief Kornegay's words of one police officer, "[A]lmost to a man and ,publication of the Police Executive Research Forum the eye, maybe a fracture to the bone just under the eye, impression that victims of domestic violence often a woman the people that join the police department Istates: and he is standing there, in the routine case, inebriated, fail to press charges against their abusers. More than join to serve. They join to really honestly help other belligerent, and aggressive. half of the domestic assault cases reported were people. And the domestic situation is one of the No other aspect of handling spouse abuse and wife beating "exceptionally cleared," a term defined by the ~;ases is more controversial than police use of arrest against The tirst thing you do, is you render him unable to injure [situations] where there is not a whole lot they can the assailant. Many police officials do not believe that anybody else ....Then you go to the victim and you Phoenix Police Department to mean '~erminated at do."15 ~~rresting assailants will have any positive results and that render the immediate and temporary first aid. You check the victim's request or for lack of victim coopera­ her over. If you need the fire department paramedics you These police attitudes influence the behavior and ~his practice places ~ drain on limited police resources. It tion. These reports do not indicate, however, wheth­ decisions of officers as they confront cases of call the fire department paramedics. er any attempt was made to encourage the victim­ The police have been widely criticized for their domestic violence, but formal departmental policies You have now separated these two. You have talked to witness' continuing cooperation, or whether the 20 also play a large role. Battered women and their failure to take appropriate action against assailants. her and she advises you that he came home, he was police officers' expectations that the case would be advocates have complained that police officers This practice has been attacked because it denies the inebriated, he had had a bad day at work, and she cooked dropped actually discouraged victims from pursuing sometimes fail to respond at all to calls for help.Is victim of domestic violence the protection usually liver and he hates liver. So for no reason he picked Up a prosecution. In one police report, for example, the afforded the victim of violent crime, it puts the brick, and it's just about that much reason for it, he picks Testimony received by the Commission indicates up a brick and 'smashes her in the face. following description of a discussion with the assault that nonresponse is indeed the policy in some police burden of pursuing any legal action squarely upon victim was given: departments. One officer serving primarily rural the victim, and it perpetuates the abuse cycle by We then say, "What do you want to do about it?" .... areas of Pennsylvania testified that officers at his indicating to the assailant that his actions are not [Detective} advised [victim] of the various courses of station responded in person to only one out of every viewed as serious by the legal system. [I]f she is a reluctant victim, we will not arrest him. We action available to her in settling the reported assault. Police officers testifying before the Commission will make a report on it, but we will not arrest him if she is Victim agreed that she didn't want to spend a lot oftime in five or six domestic disturbance calls: not desirous ofprosecution.2~ indicated that arrests in domestic abuse cases are court. Victim said she wanted the suspect warned about , rare, confirming the testimony of battered women's the physical attack on her. Victim also wanted the suspect Other witnesses indicated that officers do not to stay away from her. On this same date [an officer) SERGEANT KRAMMES. If there's a threat of abuse or if advocates in both Phoenix and Harrisburg and \ there's abuse going on at the time, we always respond, but always make arrests, even when the victim specifi­ advised suspect of the reported assault listing him as a we use the guideline that, if the problem is already evidence from other sources. For example, a Harris­ cally requests it, since many officers expect that the suspect. Suspect was told to stay away from the victim. resolved, we give them the various agencies that can assist burg police official stated that "once [the officers] victim will later change her mind. The acting police Suspect agreed and said victim had called him and said she 25 them or the district justice's telephone number. If they arrive, they are instructed to calm the situation, to chief in Phoenix said: loved him still. Exceptionally cleared. don't have transportation there, We will transpOrt them. keep control, to protect the participants, and to try ACTlNG CHIEF KORNBGA Y. Considerable weight should Victim advocates have testified that the systemat­ II Between Jan. 17 and June 31, 1980, Phoenix shelter intake II Martin Statement, Consultation. p. 210. be given to the indicated desire of the injured party to ic resistance of police, prosecutors, and judges to perso!)nel administered an OMB·approved questionnaire devised U Krammes Testimony, ]Iarrlsburg Hearillg. p. 131. by Commission staff, who later tabulated and Ilnalyzed the results. have the person arrested. However, from a realistic cases of domestic assault, together with pressures Although a sample of 83 respondents was obtained, the sample for 11 State of Kentucky, Commission on Women, Survey 0/ Spousal "prior- police involvement" was only 78, because 4 respondents Violence Agaillst Women In Kentucky (Louis Harris and Assoc., did not answer the question and 1 response was inapplicable. 1979), p. 40. 11 Richard Gibney, testimony, Harrisburg Hearing, p. 37. .. Robert Kornegay, testimony, Phoenix Hearing. p. 65. It , U Lawrence Wetzel, testimony, Phoenix Hearing, p. 60. Loving, Responding 10 Spouse Abllse, p. 60. 21 Glenn Sparks, testimony, Phoenix Hearing, p. 44. .1 Phoenix Pollee Department, Departmental Report 79-038636, II Twitchell Testimony, Phoellix Hearing. p. 40. 20 See, for example, Consultation. pp. 6-9, 21-22. " Twitchell Testimony, Phoenix Hearing. pp. 52-53. in Commission files.

14 15

l'

" ------.------~..... ------~-- --

D \l v (D ..... _._,~ ".~. _____ '._. _r;;;;.~ ... _ .. ~\t_~ ____ ~·~_"._ .... ~_._,.'2. __ . ~~_._ ... _ .. _.

from the abusive mate, contribute to women's action is to be taken as would be appropriate in any police may overlook use of a weapon. In most making them promise to appear in court at some future decisions to drop charges.28 Training materials, pre­ other case of assault. This is not to suggest that the jurisdictions, assault with a dangerous or deadly date and th~n leaving. pared by the International Association of Chiefs of police officers' role is a strictly mechanical one, nor weapon is categorized as a felony assault regardless \, Police (IACP) make a similar point: that they should ignore the human needs of the of the extent of injury actuaIly inflicted. Police I would feel that, myself, end many officers would feel victim. Such functions as mediating potential con­ reports reviewed by Commission sta,tT included that this would not tend to stabilize that particular Frustrated by the pattern of victim uncooperativeness, flicts, referring those in need to appropriate services, many descriptions of domestic assaults with guns, situation. a. some police officers have developed an indifferent attitude and lending emotional support are, however, acces­ knives, pieces of furniture, clubs, and other danger­ toward arresting assaultive husbands. Battered wives in In fact, the departmental order requirir ~ citation tum point to this attitude as one reason why they fail to sory to the officer's primary job of upholding the ous instruments. Such assaults are felonies and caIl proceed legaHy agaillst their spouses. The two conflicting law and bringing violators into the criminal justice for arrest whether or not the officer witnessed the and release of misdemeanants makes an exception views produce a "chicken-versus-the-egg" controversy system. attack. for cases in which "there is immediate danger to the that is useless to pursue.27 In most American jurisdictions, police officers Even when the elements of a felony are lacking, public, or it is likely that the violation will continue, may make an arre(c: without a warrant only where grounds for arrest frequently exist. In some cases the or that other violations will occur•... "35 This Regardless of the reasons for victim noncoopera­ exception to the citation rule does not, however, tion, experts advise that arrest of the assailant 'may they have probable cause to believe a felony has ahus!;r commits a misdemeanor in the officer's been committed or where a misdemeanor has oc­ appear to be well known. . be in the victim's best interest, even though she may presence by continuing to beat, push, or threaten the 29 When the officer does not witness the assault and not dem\Uld it. A growing number of organizations curred in their presence. Officers appearing before victim. Research by Commissioll staff indicates that the Commission testified that this restriction pre­ even continued aggression toward the victim some­ careful investigation reveals no support for a felony now support abandonment of nonarrest policies. In arrest, police officers are usually powerless to arrest its wife abuse training materials, the IACP has taken vents them from making arrests in most cases of times fails to result in arrest. 30 without a warrant.SO In such cases, however, the a firm stand in favor of arrest in cases of domestic domestic assault. In some jurisdictions statutes provide for the An initial inquiry must be whether police officers victim herself may be empowered to make the arrest assault: issuance of citations to perpetrators of minor crimi­ are accurately distinguishing between misdemeanor nal offenses. The citation, which is merely a sum­ under a State citizen's arrest law. The Phoenix A critical difference exists between the police response to (simple) and felony (aggravated) assaults. As dis­ mons to appear before a jUdicial officer, much like a Police Department's written guidelines on family family disturbances where no physical violence has oc­ cussed in chapter 2, the statutory definitions. and traffic ticket, is often improperly substituted for disputes specifically mention the us~ of citizen's curred and a wife beating. Although the application of classifications of assaults vary from State to State, arrest in domestic violence casea. For example, an arrest in appropriate cases: crisis intervention skills are required in both cases, the primary purpose of mediation to help resolve family but in most instances the statutes give little objective assailant in a Harrisburg incident was given a guidance to the police officer on the scene. A.. o'izona, citation, although the police report stated that pmblems is to prevent violence and therefore make arrest If one spouse COl1l1mits a misdemeanor assault on the other unnecessary. . . .A wife beating is foremost an assault-a for example, requirl's that the victim sustain "seriolJs "above person did punch [victim] in the face and an arrest by an officer (if the offense occurs in his crime that must be investigated. • .. physical injury" for a felony assault to be charged. threaten her in front of this officer."32 In another presence) or a Citizen's Arrest by the victim may be made Such injury is described in the :;41tutory comment as: Harrisb{/rg incident, a police officer called toa scene it'l accordance with prescribed procedures for Citizen's An assault cannot be ignored by the ,police regardless of Arrest.a7 the victim's attitude or motive for not cooperating. Each of domestic violence issued a citation to the man physical injury which creates a reasonable risk of death, or involved for the summary offense of "harassment" wife beating incident must be investigated, and the In a citizen's arrest, the victim plays the role usuaily officer's decision to make an arrest or a referral to an which caUSes serious and permanent disfigurement, or when he pulled off the victim's clothes, hit her in the appropriate social service agency should be based on the serious impairment of health or loss or protracted impair­ played by a police officer, since the victim has ment of the bodily function of any bodily organ or limb.S1 chest, face, and stomach, and held a gun to her nature of the assault. •.. head.33 witnessed the commission of a misdemeanor. Such a definition is difficult for a police officer to Police officers in Phoenix testified that depart­ A citizen's arrest statute cannot become a useful A policy of arrest, when the elements of the offense are law enforcement tool in domestic assault cases, present, promotes the well-being of the victim. Many apply at the scene, where the actual extent of the mental policy required them to use the citation and battered wives whq tolerate the situation undoubtedly do victim's injury is often not known. A blackened eye release procedure even when they had grounds for a however, unless police officers inform victims of its so because t~ey feel they are alone in coping with the may appear to be a minor injury, but a detached existence and help them to meet its legal require­ 1 misdemeanor arrest. The acting chief of the Phoenix problem. The 0fficer who starts legal action may give the retina or facial fracture may have been caused by the Police Department testified: ments. For example, the Phoenix Police Dep!U't­ wife the courage she needs to realistically face and correct ment's guidelines state that "the prisoner if) in .. the situation.28 blow. \ Without guidance or support from the police [U]nder certain conditions, our authority to arrest is custody of the citizen (either by actual physical Some police officers also fail to recognize that department and other components of the criminal followed up with a statutory requirement to cite the restraint or the prisoner's voluntary submission to person into city court. . .and rell"llSe that person right when they respond to domestic assault calls their justice system, some officers simply classify the vast the arrest)."38 Although a battered woman will there. I believe that every officer should consider the rarely be capable of physically restraining her responsibility extends beyond the individual victims majority of domestic assaults as misdemeanors rath­ potential for further inflaming the situation by making an of assault. The officer's duty is to stabilize the er than taking care to determine whether the arrest of one party in a dispute and not removing that attacker alone, one Phoenix officer said that in situation and assess the available evidence to deter­ elements of a felony are present. This presumption party from the location or from the scene of this problem, . practice the office~ merely require that the victim mine whether there is reason to believe that a crime leads officers to fail to arrest even in cases in which merely issuing them a citation, handing it to him and declare that she is arresting the assailant and take his

has been committed by the suspect. If so, then such they clearly have authority to do so. For example, U Harrisburg Pollee Department, Initial Crime Report 19-5- •• But see discussion of new State Ie:?:islation in this area, in 4401, in Commission files. chapter 2. H Patrir-ia Magrath, testimony, Phoenix Hearing, p. 14. 3. Petel' Brooks, testimony, Harrisb/lrg Hearing, p. 39: John U Harrisburg Police Department, Initial Crime Report 79-9- II , ., Operations Order C-3, ff3D. IT IACP, Training Key No. 246 (1976). Riegle, testimony, Harrisburg Hearing, p. 200. 5038, in Commission tiles. .1 Operatfons Order B-1, ff6A, implementing Ariz. Rev. Stat. H IACP, Training Key No. 245. .. at Ariz. Rev. Stat. §13-105 (29) (1978). If Kornegay Testimony, Phoenix Hearing. pp. 65-66 • §§13-3889, and 13-9000 (1978). llt Loving, Responding 10 Spouse A.buse, pp. 61-65. II Phoenix Pollee Der)artment, Operations Order D-3(8). 16 17 ,j , l' ....

''''.':'.';-'--~---:-.'~:~.--:'"-~-'''-'' ___-- ..~~~'--'-'' __ ~ __~''~ __ ,__ .L_.,_, ______. ____, .... , ....,;L, ____~.~ __.• __'_, ______····_' ___ ·_'_~;:___ ---·-~--~'-";l.v.r__---·~---·----- .. ... -

, . 1 ..,

,

arm momentarily. The custody of the prisoner is ly members. Generally, these procedures call for the techniques, police handling of spousal violence calls might discussed, in subsequent chapters, prosecutors sel­ well have been more effective. U then immediately assumer : ;fthe officers.39 This responding officer to calm the dispute, listen careful­ dom brinjg a case to court if they believe it to be a procedure is not spelled out in the gu!delines, ly to both parties without showing favoritism or Police officers' use of mediation techniques in first inci~ient, judges divert defendants if there however, and t;hus may not be unifomtly applied by fixing blame, and suggest ways to resolve the domestic assault cases has given rise to vociferous appears t~~ be no history of alb use, and shelters rely all officers. problem without involvement of the criminal justice criticism from battered women and their advocates. on official records to preparc~ and compile the data Several police officers who testified before the system. Although useful in many contexts, some The neutral temtinology and nonauthoritarian ap­ necessary to secure funding fOir their operations. Commissi~li expressed the opinion that arrests in experts believe that this approach has no place in the proach, so important to successful intervention and An initial consideration i~; which party should c,ses of domestic assault may lead to civil liability handling of domestic violence. As the author of one conciliation in S9me cases, leads battered women leave the household. In many cases, police officers on the part of the police officer. One officer stated: study sponsored by the Police Executive Research and their assailants to conclude that the police do reportedl)r assume that the victim should be the one Forum observed: not view wife battering as a crime and will not take to seek olther living ar;(ih.ger.nents, even when she It would be very simple for an officer to walk in and see a enforcement action against assailants. Misplaced must take responsibilitYltir minor children.411 If the red spot on a wife's eye and say, "I have got probable victim takes her children with her., it may be even The police practices now in use developed more than a attempts to re£ain a detached and neutral attitude in .cause to make an arrest;" and jerk the husband out of the more difficult to find accommodations; if she does house, when in fact it may have been self-inflicted and you decade ago as a result of the misapplication ofintervention these cases have led some police to avoid taking are not told the right story. Then we are back into techniques designed specifically for arguments and crisis appropriate enforcement.action even when blatant, not, she may be denied custody in a subsequent lawsuits,e.o situations in which only a verbal dispute was at issue. At repeated violence is concerned. One crisis coun.selor divorce a1ction on grounds that she "abandoned" the no time were these techniques inte!lded to replace the use testified: children. On the other hand, allowing the victim to To protect officers from possible civil liability in of arrest in situations involving serious injury or criminal remain in the home also presents prOblems; in most these cases, several States have enacted statutes assaults. Rather, arbitration, mediation, and negotiation wer-a to be used in situations in which, because of lack of In one case I had just recently, a woman was assaulted cases, thel officer cannot force the suspect to leave granting police officers limited immunity. These evidence or insufficient p:.'ci>bable cause, an arrest was about 12 times in front of the police. She had bruises up unless the: grounds for arrest exist. In addition, if the and down her arms. And the only remedy she was given laws protect officers against civil suits for any action neither legal nor appropr~ate"z abuser lallows where the victim is staying, he may taken in a good-faith effort to enforce the provisions was they kept saying, "Don't do it again, Jimmy, don't do it again. "f5 return to Ilhreaten her at any time. of a domestic violence statute. Ten States (Including This author traces t~~e misapplication of mediation Another consideration is the availability of suit­ Arizona) have enacted police immunity laws as part techniques in doml/!stic violence. cases to a 1967 In some cases, the crisis intervention approach seems able living arrangements. The battered woman may of a legislative package addressing domestic vio­ experimental program in New York City. The to eclipse entirely the criminality of domestic as­ have no relatives or close friends nearby, a problem lence.·1 program involved formation of a specialized family saults, so that the police force's arsenal of enforce­ exacerbated by the increasing mobility of American Since police officers teJ\d to avoid arrests in cases crisis unit within the New York City Police Depart­ ment, investigation, and recording procedures ap­ families... Even if friends or relatives are present, they ment. The officers assigned to the team were of domestic violence, they often seek alternative pears to the officer to be irrelevant. 46 may~;,6e unab~e to accommodate the victim and her ways of dealing with such cases. Testimony at the intensively trained in crisis intervention, interperson- Police officers have long adopted the policy of children, or t~e victim may not be willing to involve Commission's hearings indicated that officers often al conflict management techniques, and the use of separating the assailant and victim by transporting them in her problem. The availability of shelters for welcome and become adept at using new methods referrals to social service agenc;jes. At the end of the one party to the home of a friend or relative. The battered women call help to resolve the problem of and resources once they are convinced of theu' 2-year experiment, the program was found to be Phoenix Police Department's written guidelines on temporary housing, but not the long-term problem. utility. All the alterna.ives discussed in this report­ successful in reducing both the incidence of domes­ family disputes advise that "the best solution. . .is Police officers testifying before the Commission crisia -intervention, recommendations of civil legal tic disturbance calls and the numbel of officer generally for one of the spouses to leave the home welcomed the development of shelters in their remedies, referral to social services, and separation ~njuries. Police ~7pa~tments ~ationwicl~ther~~fter until the next day."47 communities because it furnished them with another of the victim and assailant-are appropriate in some mcorporated CriSIS mterventIon procedur~; mto Separation reduces the possibility that the abuser option to exercise in cases of domestic violence. A c3 domestic disputes. They are not, however, adequate training prog•. IIDS on handling domestic disputes. i, will I']-sault the victim again as soon as the police former police chief testified: substitutes for arrest in those cases in which violence Crisis intervention techniques were intended by officers depart and allows for a "cooling off" period. o has alieady erupted, nor do iliey absolve ofticers of the designers of the New York project to be applied It is the preferred solution in cases in which officers their duty to investigate and record spousal assaults. only in cases involving verbal disputes: [T]o me the quickest thing that can happen, and this is a have no grounds for arrest, but suspect that violence short term thing, is the immediate ability to get that \ l~t The two decades have seen an increasing may break out if the parties are left alone together. 48 woman out of that household, if she will go, into an for law enforG'ement agencies to seek and tend{:nc~ The psychologists assumed tlvlt situations involving vio­ Voluntary separation cannot, however, be consid­ environment where she can receive counseling and help apply the expertise of behavioral and social scientists lence and assault exceedc<\ the limits of "crisis interven­ ered an adequate substitute for investigation and and the kids can receive a normal environment and not to police work. This alliance has revolutionized the tion" and that the police powers of force and arrest would have the screaming and yelling and threatening around documentation of the disturbance. The fact that a them ....ao ways the criminal justice system deals with the be invoked. Unfol;tunately, this was not to happen. violent incident occurred and was neither looked Because there was no further analysis of the problem, mentally ill, thil homeless, and juvenile offenders. A into nor recorded has serious ramifications for the ·The shelter operators who testified before the part of this revolution has been the adoption of crisis training, and direction, police officers have been taught to handle all family conflict calls with these reconciliation victim, particularly if she ever intends to pursue a Commission stated that after an initial period of intervention techniques for dealing with disputes techniques. If more precise guidelines had been developed case through the criminal process. As will be "testing," the police officers with whom they had between neighbors, landlords and tenants, and fami- as to when and in what circumstances to use these .;F I •• Ibid., p. 36. •• Loving, Responding to Spouse Abuse, p. 106 . , *' Richard Twitchell, Lieutenant, Phoenix Police Department, .. Response, June 1980, pp. 1-2. 41 Magrath Testimony, Phoenix Hearing, p. 10. •• Joanne Rhoads, testimony, Phoenix Hearing, p. 9. interview, Dec. 5, 1979. •• Loving, Responding to Spouse Abuse. p. 33. •• Krammes Testimony, Harrisburg Hearing, p. 131. 8. WetzelTestimony, Phoenix Hearing. p.61 . •• $,parks Testimony, Phoenix Hearing, p. 56. " Operations Order C-3, ~3B(J) • .. Ibid., p. 34. '1!

18 19 " , It , ,(u:---=:::::-,..:::=.,,_,,:-,::::::;=:::::::,::::::::-,::,::,::,,-::_.;:.;':,:::';::<~'.:::':;:,~:-_:.::;:~:::;:::::::-'~;'.;:;';'-::':;.:'~~":~=4:::----~~.:-,,"-"._:<"~."~.~_"""" __--,,-_~ ___'______"' ______"""""""""''''''''~''''-'"~' ___ " _____ ' __ -::::;''' __ -__:-- .. ---o:------.------.------~:~-OM,-----·-~---~--·--·---- ", o ,

contact were exceptionally responsive to their of spouse abuse. One women's advocate testified is not interested in prosecution or is making the report for Investigation. Clearly, this leads to a significant insurance purposes only. needs: that Pennsylvania's statutory provision for improved underestimation of the number of domestic abuse civil remedies appeared to discourage police officers (2) D.R,s will be made on offenses, felony or misdemean­ cases handled by the police. i--;:" I would like to say. • .that when the police do answer our from making arrests in some cases: or, involving either adults or juveniles as suspects or Even when full reports are completed, it is calls at Rainbow Retreat, ~nd we depend very, very vicUms' if the elements of a crime are present but the difficult to develop reliable statistics. In most States heavily on them for securi~Y since we [have] an op~n, What we're seeing in Dauphin County now is that. •. the suspect' is unknown or there is no need for a follow-up "domestic assaults" do not constitute a separate published address, that wft~ffnd they're extremely sensitIVe criminal justice system is deflecting cases away from the inYestigation, a D.R. will still be completed. • . • criminal justice system and putting them into the civil criminal violation. They may be reported as assaults, to the problem. They (ire very helpful and they are harassment, criminal trespass, breaking and entering, protective, uot just to the center itself but also !o the system and trying to avoid the criminal cases because the C. If an officer is in doubt as to whether a crime has women. It's as if once the woman has made a commitment Protection ,J?rom Abuse Act is available. occurred or '(he incident occurred outside the jurisdiction or homicide. Often it is impossible to discern the to do something, they are more willing to work with her.sl ,,\ /t' of the City of Phoenix, a n.R. will be made and entitled relationship between assailant and victim from the "Information Received."57 We are finding sitca~ions where the police will not make report itself. The failure to designate domestic Contact with the shelters also presents all opportuni­ an arrest when they witness a crime or, when a crime has In spite of this clear instruction, Phoenix police assaults as such handicaps a department's efforts to ty for officers to become more sensitive to the needs been alIeged, they will not take a chnrge\"because ttobQdy has a protective order ••..55 officers apparently fail to file D.R.sin many cases of calcuate the amount of time its officers spend on of women abuse victims and to understand some of spouse abuse: duties related to woman battering and also makes it the reasons why battered women remain in violent Debate over the need for law enforcement refol'm difficult to test the validity of certain widely held relationships. in the handling of domestic violence cases is hin­ CoUNSEL. In your opinion, is an officer always required to perceptions about these cases, such as the actual rate Battered women and their advocates have long file a D.R. when there is probable cause to believe that an (' dered by the inadequacy of current police reporting assault has been committed? of victim noncooperation. , charged that, rather than taking enforcement action, practices. A recurring theme throughout the Com­ police officlers routinely refer victims of domestic mission's hearings was the current inability of police AssT. CHiEF LOZIER. Not really. The~e is not a w~tten assault to the civil courts. 52 These practices may agencies to know the number of domestic assault established policy that says that you wIll ane-there IS not Findings stem from an officer's belief that a domestic assault is one that you won't. Some discretion is left to the officer to Finding 3.1: Police decisions, including departmental cases to which officers respond, the seriousness of determine [ifthere was] an assault. ... not a matter for the criminal justice system, or from the assaults, and the police action taken. policies and the practices of individual officers, an officer's attempt to steer the victim toward a Police officers are t.lSually required to make some And in some situations, where either the witnesses or the affect the ju.stice system's ability to protect the legal remedy that the officer believes to be more effective reC(Jrd of each significant task perfornled on duty. victim is not cooperative, probably, he may have a good rights and physical safety of battered women. in the long run. In either case, the officer's substitu­ idea that an assault occurred but not feel he has enough to Finding 3.2: Police traditionally have viewed most For minor tasks, the record may consist of a brief verify that assault did occur. So, consequently, he will not tion of referrals to civil remedies for appropriate notation on a log or worksheet. Reports of crimes, incidents of spouse abuse as private matters that are make a report other than maybe what we call a "combina­ best resolved by the parties themselves without criminal enforcement and reporting procedures af­ however, are generally lengthy, detailed, and time tion report," which is just a smaller report of the fects the polnce effort as well as the victim's welfare. consuming for the officer. incident.sl resort to the legal process. li'inding Police generally are reluctant to respond In most States the civil remedies available to a In many cases, the Commission found, police 3.3: The acting chief of the police department agl'eed: to domestic disturbances, which the officers view as battered woman are neither easy to obtain nor officers routinely fail to record cases of alleged dangerous to themselv~s, emotionally charged, and effective in curbing further violence. The victim spouse assault as they would other crimes of vio­ COUNSEL. [I]s it your understanding that officers should must appear before a judge or magistrate, neither of difficult to resolve. Some police departments do not lence. The Phoenix Police Department, for example, always prepare a departmental report when the victim whom is usually available during the evening and require officers to respond to such calls, while other requires that a lengthy, detailed departmental report alleges that she was assaulted? weekend hours when most abuse takes place.s3 In departments assign the calls low priority. (or "D.R.") be used "to report any crime, any many cases the victim must hire an attorney to ACTING CHIEF KORNEGAY. N

20. 21

\1. , -<~------Q \1l'

. ~.~,," 1'<"- \~_ , t o . '. 'ff :; I , ~... o

( ".

,I battered women and their children provide a vital a..Q.sault cases and unnecessarily limit the amount of service. available information about spouse abuse. Chapter 4 Finding 3.8: Existing reporting practices handicap police ability to deal effectively with domestic The Prosecutors

Prosecutorial policies have important effects Upon the almost total absence of guiding principles in this other components of the justice system. The prose­ area: cutor exerts considerable influence over the police, sending officers formal and informal messages on the Viewed in broad perspective, the American legal sy~tem content of criminal statutes, the priority assigned to seems to be shot through with many excessive:,;

23

~ I -

,'1 jt= ,

i\

This institutional process leads prosecutors to dropped at screening, and felony assaults prosecuted TABLE 4.1 prefer to expend their efforts on cases in which as misdemeanors were more likely to be dismissed Disposition of Domestic Abuse Cases by Maricopa County Attorney chances of a conviction and serious penalty are later.D good, and to seek to divert or dismiss cases consid­ A 1974 study by the same research organization No. % ered poor risks. Such tendencies may be desirable also revealed a marked discrepancy between strang­ Turned down because elements of a felony Were not presel")t* 12 52.2 when they result in the screening out of cases likely er and nonstranger cases. The research showed a 32 Turned down because victim was not cooperative 2 8.7 to fail due to evidentiary weaknesses. A more percent conviction rate for stranger-to-stranger as­ serious problem may arise, however, if the odds Turned down for failure to exhaust 3-week waiting period required by office 1 4.3 saults and aggravated v.8saultsj for intrafamily cases, polley against successful prosecution ate lengthened by the conviction rates were 8 percent and 18 percent, prior prosecutorial practices. Turned down because charging attorney saw no reasonable likelihood of 2 8.7 respectively.lo A 1977 study by the Vera Institute of conviction Victims of domestic violence and their advocates Justice found that arrests for assault resulted in qharged 6 26.1 have repeatedly stressed the difficulty of obtaining eventual dismissals in 29 percent of the stranger-to­ criminal sanctions against their abusers. The results stranger cases, and in 52 percent of the cases in Total Cases: 23 1.00.0 of several studies indicate that the presence of a which there was a prior relationship between sus­ prior victim-assailant relationship significantly re­ * In 5 of the 12 cases turned down because the elements of a felony were not present, misdemeanor ll duces the likelihood of charges being brought and pect and victim. charges were later filed by the city attorney. Research conducted by Commission staff in Phoe­ increases the rate of dismissal and reduction of the Source: I.n January and February 1980, comm. Iss Ion staff, under terms of a user agreement, reviewed all crime reports by Phoenix charge to a misdemeanor. nix disclosed that felony charges were flIed in only 6 police officers for the month of April 1979 and reviewed case files In the city and county prosecutors' offices to determine case One police expert testified at the Commission's out of 23 woman abuse cases referred to the dispositions. Commission staff devised the forms and tabulated and analyzed the dala. 1978 consultation that the salient factor in predicting Maricopa County Attorney's Office by the Phoenix the criminal justice system's response to a domestic Police Department. Prosecution was declined in the assault case was the social, and not the legal, remaining 17 cases for the reasons indicated in table relationship between the assailant and his victim: 4.1. The findings in the above-cited studies do not The only criteria that law enforcement agencies use is show why crimes committed against spouses or prior sexual access. Once that definition has been deter­ mates are less likely to result in conviction or at jj enforcement decisions upon the past or present serving the marital relationship between assailant mined to exist then from that moment forward the exactly what point in the process the cases falter. relationship between the assailant and the victim: and victim overrides other considerations unless criminal justice system treats her as a second-class victim. These studies do confirm, however, that the path a severe injury re~;ults. One prosecutor summed up his She dcesn't even have the rights, limited rights that a [S]omething that cannot be emphasized too much is that reservations about bringing charges in such cases: female victim would have ordinarily in any other assault case may be expected to take through the criminal we are talking about criminal conduct here.... We are case.? justice system depends to a large extent upon the talking about conduct that has been decided by the You've got to weigh the considerations. Does the time­ A research pro,ject conducted by the Institute for existence of a relationship between the suspect an.d legislature of Arizona to be unacceptable con­ honored ooncept, the sanctity of marriage, override duct. . . .and there is no exception made for people who Law and Social Research (INS LAW) in 19788 found the victim. society's interest in the enforcement of the criminal law? I Battered women's advocates have criticized law are married, people who live together, or people who think that the sanctity of marriage is more sacred than the that cases of violent crime were less likely to result were once married, even though that is the way it is enforcement policies that draw distinctions between criminal law and the one punch fight. . . .Society pro­ in a conviction when a close relationship was treated, as if there is an exception, as if this is not criminal tects that marriage. It overrides the criminal code.15 involved. If a victim and a defendant were married, beatings sustained at the hands of a husband and conduct.13 the study showed, prosecutors were more likely to those committed by a stranger. One commentator A similar attitude was expressed by a rural county In spite of such criticism, some prosecutors persist decline prosecution in aggravated assault cases and has concluded that "prosecutors tend to view prosecutor who testified at the Commission's Harris­ in viewing incidents· of violence within the family as to dismiss assaults flIed as misdemeanors. Further, woman abuse complaints as extrale.gal family mat­ burg hearing: private matters that waste valuable prosecutorial the study found that romantic involvement between ters which the overburdened judicial system not time and should be resolved outside the criminal the victim and defendant, whether past or present, only cannot, but should not, handle. . • ."12 I feel that since there is a relationship there between a justice system. One assistant district attorney quoted influenced the outcome of the case. Simple assaults Leslie Nixon, a legal aid attorney and member of husband and wife, and if they want to maintain it for any in the 1977 Vera Institute study put it bluntly: "I reason in the future, that that's a reason, I mean, they are involving ex-spouses, cohabiting persons, or girl­ the Law Project for Battered Women in Tucson, wish they would do something about people using married and I think that point is a distinction. If they want friends and boyfriends were more likely to be emphasized the inherent injustice of basing law the courts to settle their personal quarrels. . . .It's to live together. that's fine. If she wants to dl'op it because lt she wants to live with him, I'm not going to stand. in the 1 James Bannon, statement, Battered Women: Issues 0/ Public • Ibid., p. 34. too bad there isn't a way to penalize these people." way.IS Po/Icy, a consultation SpOnsored by the U.S. Commission on Civil 10 F(Jrst et aI., What Happens Mer Arrest? p. 26. Other prosecuting attorneys do not deny that Rights, Washington, D.C., Jan. 30-31, 1978, p. 27 (hereafter cited II Vera Institute of Justice, Felony Arrests: Their Prosecution and woman battering constitutes more than "personal These attitudes tend to promote the development of as Consultation), p. 27. DiJposltlon in New York City's Courts (1977), p. 62 (hereafter cited quarrels,)I but contend that the importance of pre- law enforcement policies that measure out protec- • Kristen M. Williams, "The Role of the Victim in the PrOSecu­ as Vera Institute New York Study). , .. tion of Violent Crimes," pUblication no. 12, PROMIS Research U Terry Fromson, "The Case for Legal Remedies for Abused 1I Leslie Nixon, testimony, Phoenix Hearing, p. 235 . II Eisenberg and Micklow, "The Assaulted Wife," p. 158. Project (Washington, D.C.: Institute for Law and Social Re­ Women," New York Univertlty Review 0/ Law and Social Change, It Vera Institute New York Study, p. xii. II Joseph Rehkamp, testimony, Harrisburg Hearing. p. 191. search, 1978). Spring 1977, p. 149. 25 24 ,

.....

~I lJ ..-",--'--:'~~----'-:'-~~-----'-----~---- ~--~~~-- " <

II , I " " __ .<,... __ ~,.~>_~ __ ~_~~~~"-_._~_:..,_~-:.~,.,-._ .. _~~ __~._._ ~ ____ """""_ri""'~""_"""~_~""' __~ __---"-_' ___ ~_"'_~~'~' ____'_"" __~w_~, __~ ____~ .... ~." .. ~".. "._~~ .... ___ ...... , -< ___~_~. ___., __• __" ______...... ____ ~. __ .~"_._~.~ __._,_,,_--...... -,.,~_~_"_

7'·

don to citizens depending not upon the wrong they The nature of the preexisting relation~~hip between illnocent,' and third, the passion of the relationship led to When presented with the case, the county attor­ infliction of injuries in the attack...• 20 ::7 have suffered, but upon their relationship to the abuser and victim in domestic violenct'l incidents is ney's office declined to prosecute, saying that "even . ' abuser . also used by prosecutors to decline oases because Staff research in Phoenix revealed an example of though suspect [was] wrong in slapping victim, she ;\j also committed a crime by making phone calls. This \. Edwin Frownfelter, a legal services attorney they believe either that the victim triggered the the problems raised when a prosecutor measureS a case appears to be something that can be handled testifying at the Commission's Harrisburg hearing, assault or that she was at least equally responsible case according to the presumed responsibility of the for it. Witnesses testifying before the: Commission outside of the court."23 said: victim. The police were summoned by the victim, I repeatedly recounted incidents in whi()h prosecutors In California, the Santa Barbara County District I who told them that she and her ex-husband had I am certain that there is almost a dual standard of justice declined to bring charges against an abuser on these Attorney Family Violence Prosecution Manual advises argued over custody of their daughter. The former I where victims of intrafamily violence are concerned. An grounds. A legal services attorney described one prosecuting attorneys: offense could be committed against a stranger in the street. case in which the victim herself wafl charged with husband pushed the victim back on a bed, waved a t could walk up to a woman in the street and commit some butcher knife in her face, and threatened to "cut her Remember that "my spouse made me angry" is not an kind of violent act towards her. I would be arrested on the assault: to ribbons. /I He then took the daughter and left. The excuse for violence. The offender will minimize and deny spot, sent to jail, face a very serious punishment. I had a client who was severely bell,ten by her hus­ police went to the ex-husband's residence to investi­ responsibility for the violence by shifting it to the victim. band. . .[WJe had a tremendous amout,lt of evidence to gate, but he refused either to answer questions or to Prosecutors and judges should be able to abide by this I could do the same thing to my wife in our front yard and support what happened. . . .[WJe haVl! medical reports, simple credo: Violence as a response to the stresses of life nobody would lift a finger to help her•..• 'There is some photographs, everything, witness stat.ements. She was allow the officers to speak with the girl. When he is not legally acceptable. Commitment to the prosecution reluctance on the part of members of the criminal system severely beaten by her husband. . • • became boisterous and headed for the kitchen, the of family violence cases must come from individual as well to get involved in what is really a highly volatile 24 officers arrested him.11l as policy-making prosecutors. situation. 17 She was passed out. . . .She managed to call the police after she woke up and he was gone •...Then he came The following day the police department present­ This policy focuses the prosecutor's attention upon A prosecutor's belief that preservation of the back and, you know, talked very sweet.ly and kindly to her ed the case to the county prosecutor's office, the behavior of the abuser and may help to discour­ marriage is of utmost importance may be sincerely and said he was going to bed. . . • recommending that the man be charged with reck­ age prosecutors from assuming that victims of held. When that attitude influences the execution of She went to sleep. Later he woke up,. came to her. • .and less endangerment. The prosecutor declined the domestic violence do not deserve the criminal law's his or her public duties, however, injustice can began to beat her again. In the meantime, however, she case, noting, "Because the facts are one against one, protection because they are "not entirely innocent." result. The class of crime victims suffering from this had called the police and told them to cancel her and the obvious animosity that exists between ex­ As noted throughout this report, law enforcement disparate treatment is one most in need of the law's com])laint. . .• .So he got up and be:at her a second time husband and wife, there is little likelihOOd of officials almost universally report that battered protection. Whether or not such a result is intended, and 1hen left the premises. . • .Six Slquad cars arrived and conviction in this case. "22 women are far less likely than other crime victims to a prosecutor's reluctance to bring charges based an officer came to her door. She had a broken nose, tremlmdously bruised spine and bacl', cuts, bruises all over The charging prosecutor's analysis of these facts press charges against their assailants. This opinion upon the existence of a marital relationship may her body, the photographs indicate. appears to presume that the victim and assailant was expressed by police officials, prosecutors, and deny the victim the advocacy and support afforded were equal parties to the incident. It further indi­ judges testifying before the Commission, and it Officers came to her door, ordered her outside and told to other victims of violent crime. Thomas Novak, a cates that the victim's description of the events was appears to be confirmed by the results of some former Phoenix prosecutor and court commissioner her that her husband had told them she had attacked discounted because of her "animosity" toward the research studies. Less effort, however, has been and coauthor of a study on family violence in him. . • .[SJhe had defended hers/:lf during the attack by grabtling a cut piece of gl~,s. . .and swinging at assailant, although the report nowhere indicates that devoted to discerning the effect this phenomenon Maricopa County, Arizona, condemned this practice him. • .she had cut him on the leg. He had to get he denied the allegations. has upon the criminal justice system's response to in his testimony: somel:hing like three stitches. . • ; In another case, a woman was confronted on the woman-battering cases. The attitude of a crime victim toward prosecution I think that [the motive of preserving the family] is just She was arr~ted for assaulting him. . • .They arrested street by a man with whom she had recently broken another excuse that they are using very, very honest­ her. 'They took her to Jail. Kept her in jail over­ up after dating him for several months. He accused greatly influences a prosec1uting attorney's decisions ly••. to say, "We don't want to get involved in prosecut­ night. . .and eventually the charges were dropped. her of making telephone calls to his home and on how to proceed with a case. Although under the ing this man, because if we prosecute him. . .for commit­ American system of justice a criminal violation is And we /lre trying our besl~ to get that ltf)v enforcement spreading rumors about him. When she tried to ting a crime then that is going to ruin his marriage." agency to institute charges against him. Ie leave, he grabbed her by her hair and clothes, and considered a wrong against society as a whole, the slapped her three times in the face. She reported the needs and desires of the individual victim usually You know, we have to realize that what we are talking EVlen when the victim i~1 not herself charged in the Gnrry a great deal of weight, as the following about is a person, a man who has committed a crime. And fight, authorities sometimes assume that she must assault to the police and denied making any tele­ if they are saying that by us, the criminal justice system, remarks by a rural prosecutor make clear: have been a willing partic:lipant. The Vera Institute phone calls to him. The assailant was questioned by interfering with that, stepping into it, that we are going to detectives, and he told them he had slapped her break up the relationship that they have and it's a study cited earlier presum(~d the partial responsibili­ COUNSEL. What is your position when a woman wishes to relationship based on wife beating, then by gosh, maybe ty of the victim in setting forth some of the factors because of the annoying telephone calls. The police drop charges against her husband for assault or aggravated that relationship should be broken up. . . .[WJhat they are "typiclal of prior relationship cases": referred the case for prosecution. assault? What position do you take? saying is that we are not going to-we don't wallt to do 10 analyzed the data (hereafter cited as Commission staff, "Phoenix anything about it. We want to let him go on .•.beating [F]irst, the victim was not interested in pressing for Vera Institute New York Study, p. 32. II Case history from confidential police department report. In Research"). her because they have got. • .a marital tie. I am sor- conviotion and was reconciled with the assailant after the January and February 1980, Commission stafT, under terms of a 22 Ibid. ry•.•• 18 arrest had been made; second, tlte victim was not entirely user agreement, reviewed all crime reports by Phoenix police IS Ibid. , o11icers for the month of April 11179 and reviewed case files in the 21 Santa Barbara County District Attorney Family Violence Manual .. 1T Edwin Frownfelter, testimony, Harrisburg Hearing, p. 198. II Nixon Testimony, Phoenix Hearing. pp. 245-46. city lind county prosecutors' of.fices to determine case disposi­ (n.d.), p. 17 . ,. Thomas Novak, testimony, Phoenix Hearing. pp. 248-49. tions. Commission staff devised the forms and tabulated and

26 27

. , ~ I " o

MR. REHKAMP. I go along with it. A similar dynamic can be found in the charging wards depend upon obtaining a judgment or admis .. a man upon a woman constituted an aggravated process. The expectation of noncooperation is so sion of guilt.31 Thus, prosecutors resist filing charges assault and was a felony. CoUNSEL. Do you ever attempt to dissuade her from doing that or to subpena her as a witness? entrenched that prosecutors sometimes decline or in cases they suspect stand little chance of ending in In 1913 the statute was amended to remove this dismiss cases for noncooperation when the victim is a finding of guilt. provision.35 As a result, many more cases of woman MR. REHKAMP. What I attempt to do is, if it is a private actually willing to go forward with the charges. The In domestic violence cases, prosecutors have battering constituted misdemeanors and were han­ complaint, I tell them that I'll approve the complaint if devised procedures intended to screen out those dled routinely by the Phoenix City Attorney's they go through with the charge. In other 'Words, before INSLAW study also surveyed witnesses who had they actually me the charge, I tell them I want them to go been labeled "noncooperators" by prosecutors in cases in which the victim is likely to become Office, which had no "cooling-off' policy. Those through with it, and then, if they decide after that they Washington, D.C., during the first 6 months of uncooperative. One device is to "test" the victim's cases coming to the attention of the county attorney sincerity and tenacity by adopting a challenging want to drop it, depending on the charge, if it i~ a very 1973.28 A wide discrepancy was found between (i.e., felonies involving serious bodily injury or use serious offense, I'll try to get them to go into cou'H but, if attitude. The prosecutor may point out the hardships what the prosecutors identified as noncooperation of a deadly weapon) still are subject to the 3-week they don't want to do it, I'm not going to force them to do incumbent upon the complaining witness in a crimi. it. After all, they're the victim. . . .1 haven't had occa­ and the witness' actual attitude toward cooperating, cooling-off period, according to the prosecutors' nal case, including time lost from work and long sion. . .to force a woman to testify against her wil1.25 as disclosed in subsequent interviews. policy manual in effect at the time of the Phoenix delays, and may suggest that the fmal result is not hearing.3o Commission staff research revealed that it Prosecutors and others frequently emphasize that There were two reasons for the mislabeling of worth seeking. A legal services attorney testifying at witnesses: (1) Prosecutors indicated noncooperation, had been applied as recently as April 1979. victims of spouse assaults often change their minds the Phoenix hearing described this practice: In that case,37 police reports indicate that the not on the basis of perceived noncooperation, but in within a few weeks after an assault and refuse to assailant threatened the victim with a .38 caliber anticipation of it; and (2) prosecutors failed to pursue a prosecution. In an attempt to screen out The county attorney bas to decide whether to go ahead revolver and hit her with the barrel and butt of the communicate effectively with the witnesses: these cases before charges are filed, some prosecu­ and prosecute, and they also subscribe to this belief that weapon. One of the three children who witnessed women do always drop. . .and given their caseloads and tors have required battered women to surmount the assault ran to a pay phone and summoned the certain procedural barriers not faced by other crime their priorities these things should be discouraged. So she Inadequate communications between police/prosecutor will get a discouraging message from the county attor- police. The assailant was arrested and the gun victims as a test of their willingness to follow and witness was a significant cause of prosecutors' labeling ney..•. u impounded. The following day the police recom­ through on a complaint. Such barriers may make the many witnesses as noncooperators during the period under mended prosecution for aggravated assault. The victim feel that she herself is on trial and that the In Phoenix, the city prosecutor's office sends study-not only because communications difficulties tend­ county attorney's office declined to bring charges prosecutor does not understand her situation, thus ed to discourage or "tum off" some witnesses from victims of domestic violence (and occasionally because the 3-week waiting periOd had not expired. encouraging her to seek her own resolution to the cooperating, but also because the system, by casting a false victims in other kinds of caseil, such as Clneighbor­ The police were instructed to contact the victim in 3 problem and to drop the charges. In this case the shadow of noncooperation on many witnesses, led the hood disputes") a letter notifying them that they prosecutor's restrictive policy becomes self-justify­ prosecutor to misinterpret their true intentions. A number must come into the office within 30 days to sign the weeks and resubmit the report. When called the ing and itself contributes to the problem of victim of witnesses who were seemingly willing to cooperate complaint before a summons can be issued. If the following month, the victim said she was again were, unknown to themselves, classified by prosecutors as living with the assailant and would not assist in noncooperation. noncooperators.28 victim faUs to come in and sign the complaint, the As part of the INSLAW study of violent crime report is returned to the police department with a prosecution. In October the gun was released to the assailant because he "had no convictions for a crime dispositions in the District of Columbia, prosecutors The study specifically noted the increased likelihood notation that prosecution has been declined because of violence." were asked to note their reasons for dismissing or of predicting victim noncooperation when the vic­ of'the victim's failure to sign the complaint. Com­ The county attorney's files revealed that the declining prosecution in violent crimes cases. The tim and assailant are married, concluding that "the mission staff reviewed reports of spouse assaults statistics revealed that complaining witness prob­ during April 1979 and found that 23 percent of all assailant was arrested again in November of that prosecutor may reject these cases at screening in year for an aggravated assault upon the same lems accounted for over half of all turndowns and anticipation of the victim-spouse losing interest in cases referred to the city prosecutor were declined dismissals in crimes committed upon a familY mem­ 33 woman. ntis time charges were filed against him. the case at a later stage."30 for failure to respond to the tetter. ber or acquaintance. Complaining witness problems Another method intended to screen out waivering This case history illustrates some of the adverse The problem of victim noncooperation is a frus­ also cropped up, albeit to a lesser extent, in crimes complainants is the imposition of a mandatory effects of a cooling-off period. The victim is left to between strangers.28 trating one for many prosecutors, who tcnd to view waiting period or "cooling otf period" after the deal with the assailant, who can be released on bail, TIle expectation that women victims will become cases that are dismissed prior to plea bargaining or beating during which charges may not be brought. in the best way she can for several weeks. During uncooperative witnesses comes into play even be­ trial as a waste of time and effort. This may not be The Maricopa County Attorney's Office established that time she is vulnerable to his threats or to his fore the case reaches the prosecutor. A Phoenix true from the victim's perspective, since the filing of such a policy in 1970, providing that no charges promises to reform and, unless other shelter is police official testified that he believed that officers charges may gain her the time she needs to remove could be filed within 3 weeks of a domestic beating available, she may have to continue living under the faced with the decision whether to arrest a wife herself from the battering situation or may convince unless the victim had suffered severe bodily injury same roof with him during the waiting period. abuser should consider the likelihood that a woman the assailant that law enforcement authorities stand or unless there were imminent danger.u The policy Under these conditions she may well decide to drop will later drop charges, even if she initially insists ready to act decisively if he repeats his behavior. was invoked more often under Arizona's pre-1973 the charges against him, a result that appears to upon arrest.21 For the prosecutor, however, the institutional re- criminal code, which provided that every assault by justify the prosecutor's belief that she would not

II ltehkampTestimony,HarrlsburgHearlng. pp. 189-90. II Williams, "The Role of the Victim In the Prosecution of at B. Forst et aI., What Happens After Arrest? p. 65. •• Ibid., p. 90. .. Williams, "The Role of the Victim in the Prosecution of Violent Crimes," pp. 30-31. U Nixon Testimony, Phoenix Htaring. p. 234. ., Ibid. 17 , Violent Crimes," p. 22. .. Ibid., p. 31. U Commission staff, "Phoenix ltesearch." Case history from confidential police department report. lI7 Robert Kornegay, testimollY, Phoenix Hearing. p. 65. 3. Ibid., p. 29. 1& Charles Hyder, testimony, Phoenix Hearing. p. 89. Cnmmission staff, "Phoenix Research."

28 29

I l' - , ......

------.,.--

ground, and then kicked her in the face and persuade her to utilize a diversion program4$ t~r civil have been a dependable witness. The case is clo~ed attorneys se~king to reduce case attrition without and the victim is left to risk further abuse. denying assistance to the victim. abdomen. He grabbed her by the head and swung pl'ocess as a substitute. Advocates have ob$etved Waiting periods and other mechanisms intended When charges are brought against the abuser in a her from side to side, straining her neck, and beat that these diversion progr,lUDs are fast becoming to screen out waivering complainants may satisfy the domestic violence incident, an issue arises as to the her repeatedly in the face ,and body with a stick prosecutors~ preferred remedy for battered women. prosecution's institutional goal of reducing the num· nature of the charge to be filed. In most jurisdictions measuring 15 inches by 1·1/2 inches by 1 inch. Often, this results in failure to prosecute some ber of cases that fail before trial.38 However, they the prosecutor selects the charge to be filed against Police officers arrived just !~fter the beating conclud­ serious essaults. ope.rate to defeat the fundamental ends of the an assailant. 41 Even where another official initially ed. They arrested the assd~!!mt and transported the Much controversy surrounds the appropriateness criminal justice system: to punish the wrongdoer, to decides what charge is appropriate, the prosecutor victim to the hospital. " of diversion programs where a violent act has vindicate the victim, and to deter further violations. usually has some influence over the decision. Prose­ After evaluating the evidence, the police forward­ occurred. Some advocates feel that these programs These devices also serve to discourage battered cutors frequently charge spouse abusers with crimes ed the report to the county attorney with a recom­ (discussed at length in chapter 6) have become women from relying upon the legal system for help. less serious thlln their conduct seems to warrant. .. mendation that the assailant be charged with aggra­ ··dumping grounds" for domestic cases. Nancy Sieh, As indicated above, prosecutors generally prefer Many factors can lead a prosecutor to decide to vated assault with a dangerous instrument. The att~rney at the Santa Barbara District AttorneY's to dismiss charges (or refuse to file) when they file a charge less serious than the incident would county attorney'~ office declined to prosecute the Office, has identified some of the problems of diversion programs: suspect that. a victim may become uncooperative. originally appear to merit. Among these are lack of case as a felony, .c:t'l,ti!lg that the victim's injuries An ,alternative, requiring her testimony under subpe· evidence to support one or more elements of the were not sufficiently severe and that "the type of instrument used cannot be classified as a Idangerous The problem with these alternatives is that they are not na, is rarely invoked although it can be effective in more serious offense or newly obtained information based upon an understanding of the dynamics of domestic; reducing victim noncooperation. on the extent of itjuries inflicted. In many instnnces, instrument' since a IS-inch stick is not readily violence. Tight filing policies merely confirm societal Prosecutors resist subpenaing victim witnesses, however, the prosecutor's decision is based to a capable of causing death or serious physical injury. It beliefs that anything which occurs in pte home is not The city prosecutor thereafter charged the assailant partially because they feel that they should not large extent upon what charge he or she believes the properly the subject of outside inquir~/ Mediation often with a misdemeanor, but the case was dismissed merely confirms societal beliefs ~Atviolence ~t home is proceed against an assailant if the victim herself court will be willing to accept. Where that judgment when the letter requesting that the victim come in to the fault of both parties and· can be eliminated by chooses not to testify voluntarily. As one prosecuto:r takes into account the judiciary's traditional unwill­ agreement, as in negotiation between equals. sign the complaint was returned as undeliverable. stated at the Harrisburg hearing, "If they want to ingness to treat domestic assaults seriously, routine In another case,43 police officers found the victim live together, that's fme. If she wants to drop it undercharging may result in spouse assault cases. These alternatives have only alleviated the prosecutor's at a neighbor's house, her face badly bruised and because she wants to live with him, I'm not going t(; The prosecutor's charging function has an impor­ caselond and the court's calendar of domestic viole1\i\;c stand in the way."39 bleeding, She reported that her husband had come cases, they have not curtailed domestic violence. Wht:e tant effect upon police practices as well. When the seeking appropriate alternatives in appropriate cases, we A pilot family violence ~'1roject funded by the Law home very drunk and had pushed her into a wall, prosecutor declines to file the charge recommended must also examine the given reasons for keeping domestic Enforcement Assistance Administration through the thrown her to the floor, and kicked her repeatedly in by the police and instead consistently files a lesser violence cases out of the criminal justice sj'stem.4• Santa Barbara County District Attorney's Office the face and body while wearing cowboy boots. The charge, the pol~ce will also treat the problem less found one approach extremely helpful in encourag­ victim was transported to the hospital. The officers, Beyond diversion programs, prosecutors are find­ seriously. Police officers' understanding of what ing victim cooperation. Legal services attorney who had not witnessed the assault, arrested the ing· additional relief from domestic violence cases constitutes sp;rious offenses is often derived from the Leslie Nixon described the process: husband for aggravated assault, citing in their report through the use of civil remedies. As discussed in ,:!,.) prosecutor's'interpretation of the law. Particularly the portion of the Arizona assault statute that makes chapter 2, States today are passing civil statutes to They give [the victim] support. They emphasize to the significant iniliis regard is the distinction between it a felony to assault a victim who is bound or provide relief for victims in such cases. Such statutes woman and also to her husband that this is the State misdemeanor and felony assaults, !tince, as discussed "physically restrained."4C They reasoned that a typically include provisions whereby the abuser is prosecuting him for unacceptable conduct. It is not the in chapter 2, the Qfficer usually has no authority to woman thrown to the floor arld repeatedly kicked so directed to refrain from further abuse and is possibly woman prosecuting him; she is the victim. She is a make an arrest for misdemeanor assault unless he or prosecuting:iwiJness, but it's the State that is sanctioning that she could not rise was "physically restrained." excluded from the home until n hearing can be held. his conduct here. she actually witnesses the blow. If officers fmd that The cou,~ty attorneY's office did not agree, noting These "protection orders" arc civil in nature, but domestic assaults are overwhelmingly ~~reated as that the injuries sustained were not serious enough breach of one lJsuallyinvolves criminal contempt. And when they portrayed it that way to the woman and misdemeanors, they may cease to mnke)arrests in to support a charge of aggravated assault. The case With thepassag'~ of civil statutes providing relief to they also agreed to subpena her testimony so that·she can those cases. was later submitted to the city prosecutor for battered women, however, prosecutors are di:recting tell her husband, if she is stilI living with him, or her \ CommiS!lion staff research in Phoenix identified considerlltion as a misdemeanor. The police officers women to file for civil relief rather than use the boyfriend or whoever he is, it is that "I have no choice. I several cases in which charges were reduced by the am subpenaed. I have to go; It's not my prosecution. It's in this case would have had no authority to arrest criminal process. Although the intent of such legisla­ the State's prosecution. "CO prosecutor after the police madc seemingly appro­ the assailant if they had interpreted the statute as the tion was clearly to provide a temporary means of priate arrests for felony assaults. In one casc,u county attorney's office did. relief through protection orders. the result has been Approached in this way, subpenaing the victim's according to police reports, an assailant repeatedly In addition to discouraging the victnm from that the civil remedies now available are becoming testimony can be a useful tool for prosecuting punched a victim in the face, knocking her to the seeking prosecution, the prosecutor may try to the sole remedy for abused women. ,I

II County Attorney Hyder's testimony questioned whether the .. Rehkamp T(',Stimony, Ha"isburg Hearing, p. 191. 4~ Ibid. or punishment imposed for the alleged criminal behavior. See imposition of a waiting period had any etTect upon the likelihood 40 Nixon Testimony, Phoenix Hearing. p.235. U Ibid. See also Ariz. Rev. Stat. §13-1204{A)(8) (1978). chapter 6. that the victim would continue to press the case. He stated that 41 Frank W. Miller, Prosecution: The Decision to Charge a Susptct .. Broadly defined, diversion is the formally acknowledged f' "about the same ratio of women who wanted to carry through Nancy Manners Sieh, "Family Violence: The Prose;:utor's (Boston: Little, Brown, 1969), p. 154. ptocess of channeling complaints of criminal behavior away from Challenges" (paper delivered at the National College of District with the prosecutions would do it after the 3·week waiting , n Ibid. period. • • ." Hyder Testimony, Phoenix Hearing. p. 89. the criminal justice system w~~out findings of guilt or innocence Attorneys, career prosecutor course). Pl'. 1-2.

[) 30 31

I

\\ - . , ~( ; -

"

assailants. In terms of time, money, and morale. the Witnesses testified that the major problem with would not want to see him in jail, then the prosecutors These efforts promise significant improvements in would agree to s~ek a sanction, a punishment that was .not Project has meant tremendous savings for the entire case handling for the prosecutor willing to challenge relYing on peace bonds lor protection orders is that involving a jail sentence. Eith.er ~andatory coun~elmg, Criminal Justice system. The police and prosecutors are llicy either are not enfotr.ed or are not enforceable, weekends in jail, a fine, something like that. Some kind of more em:ouraged that their work will yield results and so the stereotypes regarding domestic violence. As and they are not neces~rily available to all women. solution that did not require the person to be locked up. domestic violence is less likely to be ignored. The Courts stated in the family violence manual of the Santa Injunctive relief is often limited by statute and, in are becoming more willing to get involved with the cases Barbara project, 47 So they made these changes in these two offices and and thus begin to break the cycle of violence in the many States, conditioned on divorce or separation. 5 apparently the results have been astonishing. I.n a short home. ' It is partiCUlarly frustrating to perform admirably as a This condition precludes many women from filing period of time the rate for women dl'oppmg .the~e prosecution team only to find that the jury will not for civil relief: prosecutions has gone to less than 10 percent, which IS Marie Hegarty, a social worker and paralegal convict because "they are still in love," or that the judge quite astonishing in any area of the law.50 working with abused women in Philadelphia, em­ will not impose an appropriate sentence because "this is A woman in need of protection, who has put up with the just a family matter." Judges and juries share societal "time consuming, expensive and humiliating" process of phasized the need for advocacy services to battered prejUdices against interfering in a fiunily dispute. Low These innovations have greatly increased the num­ women seeking to use the criminal justice system: civil court, receives only a m~ngless piece of paper ber of women willing to cooperate with law en­ conviction rates may persist while these views remain which is not enforced by police and courts. The order may unchallenged. The prosecutor can be instrumental in make a woman feel more secure, but it does so falsely and forcement officials, although the program has other [B]asically ...people don't understand the legal sys­ educating the courts and community in bringing about a only temporarily, because the man will be free to assault goals as well: tem. • . .[P]articularly in domestic cases where you have change in attitude toward the problem. her again and will do SO.48 a victim who might have been. • .sitting in the waiting Better results are not only measured by "successful room with the defendant, which is ...what usually hap­ Prosecutors have long been willing to lead public con­ A number of prosecutor's offices across the prosecutions" but by the process of bringing a victim to a pens, and is already very upset and very anxious and very sciousness and assist in forming public opinion along country are currently experimenting with new ways greater point of awareness which may enable her to follow distraught. It Illay be the first time she's seen him in the responsible lines. In no area of crime is this more necessary through on a present or future incident. Better results are than in family violence, precisely because the victim is of handiing cases of woman abuse. One of the most past 3 weeks. She's really very anxious, and it is real achieved when a victim leams that a concerned prosecu­ important. . .to explain to her exactly what's going motivated only by self-interest and is not concerned for promising is the family Violence project of the Santa tor is available and willing to assist her, breaking the cycle on ...that she really is safe here, that we have a Philadel­ the long-range prot~()tion of society. The prosecutor can Barbara County District Attorney, meptioned of hopelessness in her life. Some deterrent to a defendant's phia police officer present and a sheriff's officer present and should provide this leadership. 57 above. Nancy Sieh described the program: ' future violent behavior may result merely from prosecuto­ and that I'm going to be there with her. . . • rial intervention, though short of conviction. 51 Findings The program funded in Sllnta Barbara County includes a I think I just pl'Dvide the clarification of the Whole legal Finding 4.1: Prosecutors t'iDjoy wide discretion to three person team in the prosecutor's office to enable A support program similar to the Santa Barbara system for her in a lot of ways, and I think that. . .my determine which criminal cases will be prosecuted vertical case hanci1ing. The district attorney's family project is located in the Seattle City Attorney's presence in the whole system. • .provides a certain cre­ and often accord low priority to CMes involving violence unit consists of a deputy district attorney, a Office. This project was formed to increase prosecu­ dence. • .on the level of the other court personnel, the criminal investigator and a clerical worker. Emphasis is domestic violence. tion of misdemeanor cases and, in turn, to lower the commissioner, the other people, the attorn~lYs there, that placed on vigorous prosecution in severe case~ and a Finding 4.2: The rate of prosecution and conviction incidence of domestic violence in Seattle. Estab­ indeed the domestic cases now are being ha~dled serious­ diversion alternative in less severe cases. ConSiderable ly, that there is a person now assigned specifically to in criminal cases drops sharply when there is a prior rescurces are expended in making ming decisions. The lished in June of 1978, the Seattle ptlOject was staffed handle these domestic cases .••.aa victim is always consulted and prepared for the nature of or present relationship between the alleged assailant with three full-time and one half-time paid staff and the victim. court proceedings and the likelihood that her feelings members and volunteers to provide advocacy and Ms. Hegarty also testified on the effect that her might change during the .course of the prosecution. Finding 4.3: Some prosec1ltors hesitate to file support has on complainants' willingness to see the information regarding the criminal process and to charges against: abusers, based on the belief that case through: The unit is providing !.'i.gnificant support services to the provide crisis intervention counseling and refer.. domestic violence is a noncriminal, personal matter victim, including a "victim advocate" who is ayailable to rals.5~ or that prosecution would adversely affect the her on a 24-hour basis for support and referral to other In Seattle in 1978-79, 266 victims appeared at CoUNSEL. Do you think your presence results in a greater agencies as needed. The victim advocate may accompany parties' marriages. trials, and 221 convictions (83 percent) were ob­ Willingness on the part of the complainant to carry the victim through court proceedings if the victim so through with ~he procedure? Finding 4.4: PrO!iecutors often treat victims of spouse desires.4t tained. An additional 57 cases were successfully abuse as if they, rather than the defendants, were prosecut~d without the victim's cooperation. In Ms. HEGARTY. I would say that there's a greater will­ accused of crimililal conduct. ; Leslie Nixon, member of a family violence task ~30 1979-80, victims appeared at trials, and 274 ingness for the client to show up from the time that she Finding 4.5: Pr05~cutors frequently attribute the low force in Tucson, described another kind of support convictions were obtained (83 percent); an addition­ files her complaint, from the time that she comes to the rate of prosectuion in spouse abuse cases to lack of offered through the Santa Barbara program: 53 arraignment. [Flor instance, I know that when I don't al 85 cases were W0n without victim cooperation. victim cooperation, which may become a self-fulfill­ The Seattle project staff believe these figures indi­ have a student doing a lot of these phone calls for me, and [The Santa Barbara office] decided to have their prosecu­ I'm tied up in other things and I can't contact these people ing prophecy. P.rosecutors who believe that abY$e tion goals be in line with the woman's goals as much as cate substantial success, but also underscore the need in that 3 weeks, I have a significantly higher number of victims will not cooperate with the prosecution of possible. In other words, if she decided, for instance, if it for continued efforts: women who fail to appear. It is significant. Whereas, when their cases frequently discourage the victims from was a case that was not a real serious injury case, she I have a student doing all that preparation, calling those using the criminal justice system. decided that she would prefer not to see him in jail These figures point out the need for continuing work people, telling them that lim going to meet them there, because he either was supporting the family or other within the community to assist and encourage womM to that this is what's going to happen, I do real well. . . .[A] Finding 4.6: Prosecutors rarely subpena victims to emotional, or fmancial reasons or whatever, that she seek their legal remedies and aid in prosecuti;on of their significant number of them show up, so there's a big testify in abuse cases, although such action frequent- \ change there.58 ly could circumvent victim noncooperation. " See disc~'5Sion in chapter 2. II Sieh, "Family Violence," p. 9. .. Fromson~ "The Case for Legal Remedies," p. ~57. sa Sharon Buster, "Statistics Sumnlary from the Battered Wom­ .. Ibid., p. 6. 253-54. •• Sieh, "Family Violence," p. 9. en's Project of the Seattle City Attorney's Olilce," 1980, p. 1• .. Ibid., pp. II Marie Hegarty, testimony, p. 253. IT .. Nixon Testimony, Phoenix Hearing, p.236. sa Ibid., pp. 4-5 . Harrisburg Hearing. Santa Barbara Manual, pp. 18-19.

32 33

. ) f .. ,... ',' ..... ' ,

Finding 4.7: Prosecutors frequently charge spouse Finding 4.8: Some prosecutors have improved their abusers with crimes less serious than their conduct Chapter 5 seems to warrant. handling of domestic violence cases by offering innovative support services to battered women. ! The Courts

\ "Considerable confusion seems to exist about orders were being vitiated by the behavior of various whether spouse abuse is a civil or criminal matter judges, at which point he did issue an administrative order and which court is the appropriate forum. The which forced the family court judges to hear their own question of whether civil or criminal remedies contempts in appropriate cases.2 should be used is complicated by the fact that many jurisdictions have separate courts for civil and The approaches to domestic violence taken in criminal matters. In Phoenix, for example, the family civil and criminal courts theoretically are quite relations division of superior court handles civil different. Golden Johnson, a former judge from remedies for battered women, whereas the justice Newark, New Jersey, discussed these differences as courts, the municipal court, and the criminal division they applied to the court system in New York: of superior court handle criminal remedies.1 Bebe Holtzman, an assistant district attorney in Philadelphia, described the forum problems she [A]djudication in criminal court is for the distinct pUrpose encountered prosecuting abuse cases in which pro­ of punitive action against the offender and is not designed tective orders had been violated: necessarily to discuss family problems, keeping the family unit intact, or giving counseling service or any kind of If I elect to proceed as a criminal complaint in municipal support services that are in fact available at the family court, the municipal court judges- in Philadelphia. . .do court system.3 not have jurisdiction to hear the ontcmpt of court; " however, they do have jurisdiction to hear whatever the Although civil and criminal remedies can be used accompanying substantive charges would be, such as as complementary parts of a coordinated system for simple assault or defiant trespass or whatever act consti­ tuted the contempt of court. . . . combating domestic violence, courts in many juris­ dictions exhibit a preference for one or the other. . . .[Ijnitially, when I would transfer a case to family Nearly S months after New York law was changed court, the family court judges that had issued the original orders were refusing to hear the contempts and were to give victims the choice of whether to pursue their transferring them back to municipal court, at which point abuse complaints in family court or in criminal t, ' the muncipal court judges were transferring them back to court, legal services attorney Marjory Fields report­ family court. I finally wrote a letter to the chief adminis­ ed that: "Judges continue to refer battered wives' tratiVe court judge of family court, and indicated that the complaints to family court even though this transfer I Irwin Cantor, Alan Hammond, and Ronald Johnson, testimony, Hearing Before the U.S. Commission on Civil Rights, Phoenix, • Golden Johnson, statement, Battered Women: Issues of Public Arizona, Feb. 12-13, 1980 (hereafter cited as Phoenix ilearing), p. 114. Policy, a consultation sponsored by the U.S. Commission on Civil Rights, Washington, D.C., Jan. 30-31, 1978 (hereafter cited as • Bebe Holtzman, testimony, Hearing Be/ore the U.s. Commission Consultation), p. 60. on Civil Rights, Harrisburg, Pennsylvania, June 17-18, 1980 34 (hereafter cited as Harrisburg Hearing), pp. 254-55. ,

3S

I

" ""1 ., @ , ( ~ , ,. f "

0' power was repealed' effective September 1, 1977, He mayor may not have an attorney. Many of these men which protection orders were sought because the them and because "the courts are swamped with do not have attorneys, so we do use [incarceration) rarely. and the prosecutors show them the new law... • If it is amounting to what would be a criminal crime, then majority were settled out of court.ll In Arizona, petitions and they only wallt to hear so many."ll Dauphin County, Pennsylvania, 1eg~t services it should be referred to the criminal divisions and through Judge Alan Hammond of the Phoenix municipal attorney Nancy Rourke noted that her jurisdiction the prosecutor. court said that criminal spouse assault cases were The Minor Judiciary exercises a preference for civil remedies to the "relatively rare" in his court and that ~~very few Those few cases that do enter the judicial system COUNSEL. But doesn't the failure to enforce the court exclusion of criminal ones: orders contribute to their ineffectiveness and create an actually proceed[ed] to trial in court in relation to are likely to be resolved at entry-level courts. In opinion in people's minds that they are worthless? [the] volume of the other cases handled." He polled Harrisburg, for example, the most common charge In our county we can get protective orders, so the police start thinking that you have to have a protective order. several other Phoenix judges and found it "their best in cases of domestic violence is harassment, a JUDGE CANTOR. No, because I think you have other recollection that they might have two or three cases summary offense for which the final arbiter is a And then we have to go out and explain to the police that sanctions. To me, when you incarcerate, it is like an act of that's wrong, that you can still bring the criminal charge. war. You should have the power but you only do it as a involving domestic violence within the last year district justice. I? In Philadelphia, arraignments are It is also a carryover of the attitudes that existed prior to which actually proceeded to trial."12 held before a trial commissioner, whose responsibili­ s very last resort.7 the passage of the Protection From Abuse Act. In a 1975 speech before the American Bar Associ­ ty is: Some domestic violence legislation mixes both On the other hand, Cumberland County, Pennsyl­ ation, Detroit Deputy Police Chief James Bannon forums by providing a criminal remedy for the to either negotiate the case there, to try to resolve it, to vania, legal services attorney Lawrence Norton discussed this pattern: arbitrate the case between the two parties, which comes violation of a civil order. The question of whether explained that tbe use of criminal remedies in his out to being called withdrawing the case without preju­ this is workable appears to arise often in the minds of jurisdiction is favored, although this route is not dice; or [the commissioner) has the option to list the case those charged with enforcing laws to protect bat­ The attrition rate in domestic violence cases is unbeliev­ into municipal court; or if the complainant chooses to drop always effective: tered women. Stephen Neeley, county prosecutor in able. In 1972, for instance, there were 4,900 assaults of this the case completely, the complainant can also do that. So kind which had survived the screening process long Tucson, was asked to address this issue: the commissioner's responsibility basically is to present The fact that [~Jme) judges or other law enforcement enough to at least have a warrant prepared and the those options to the complainant and to hear both sides of people will be pushing the criminal system doesn't neces­ The suggestion that the due process guarantees do not complainant referred to the assault and battery squad. the story and to come to some sort of resolution. sarily mean that system is working or that there's a feeling Through the process of conciliation, complainant harass­ that it will work. • • .[T)here are some instances where I obtain is absurd. Those issues have been litigated year after year after year, and there is a very definitive process that a ment, and prosecutor discretion fewer than 300 of these [T]here is a tendency to have the matter settled at that question the good faith of that. It is a ba1'rier that is put up. 1B judge uses to hold somebody in contempt whether it's civil cases were ultimately tried by a court of law. And in most level. or criminal, sanctioned by the Supreme Court of the of these the court used the judicial process to conciliate I don't think the criminal system works very well to solve rather than adjudicate. 13 Depending on the statutory authority in particular the problem, and I don't take the fact that the judge in nur United States and by the common law and everything else, county would respond by saying, "That's the way I want and anybody who suggests that is the problem is just jurisdictions, magistrates and justices of the peace S In Phoenix, Capt. Glenn Sparks testified that in it pursued," to mean that it's working well or that it is making excuses. may greatly influence how incidents of spouse abuse being pursued in the county because it's not.' nearly a quarter-century as a police officer, he had are treated in the court system. These members of The odds against a spouse abuse case ever reach­ never had a case of domestic violence go to COurt,14 the minor judiciary often hold arraignments, set bail, D Judge Irwin Cantor, who heads the domestic ing the courtroom have been estimated at 100 to l. and Assistant City Prosecutor Joseph Tvedt report­ determine the nature of charges to be brought, relations division of superior court in Phoenix, At every step, battered women are discouraged or ed that more than half of the victims failed to sign decide whether to bind cases over to higher courts, described the sanction imposed on men who violate prevented from proceeding, and few get past the complaints once they were approved by his office.11i make findings of guilt or innocence, and mete out court orders directing them not to abuse their wives: barriers set up by unsympathetic or misguided police In Harrisburg, Gloria Gilman, director of the Do­ sanctions. Even in the relatively minor act of setting and prosecutors. As shown in previous chapters, the mestic Abuse Clinic for Women Against Abuse of bail, a magistx:ate's actions may have significant JUDGE CANTOR. The most common is that we fmd him in police often fail to take spouse abuse incidents contempt, that he may purge himself of contempt by not the Philadelphia District Attorney's Office, testified consequences in an abuse casej unless the bail is, set doing this again-the most common. We do have the seriously, and many victims, torn by economic and that a large percentage of women who were eligible high enough to keep the4buser incarcerated until his power all the way to incarceration. . . . emotional dependence on their abusers or frightened for protective orders against their spouses were preliminary hearing, he will be free to return home by the consequences of testifying against them, unable to enter the court system, because there were to intimidate his victim in an effort to convince her CoUNSEL. Could you give us an idea of how often, in the choose to drop charges. As a result, judges see not enough attorneys available who would represent to drop the charges.ID time you., have been on the bench, you have ordered relatively few of the battered women who tum to incarceration for a violation of an order not to assault or the justice system for help. harass a spouse? 11 Ibid., p. 70, release of the accused will endanger the safety of the community In Pennsylvania, for example, Judge John Dowl­ .. Hammond Testimony, Phoenix Hearing. p. 115. or of witnesses. Wansley v. Wilkerson, 263 F. Supp. 54 (W.D. JUDGE CANTOR. It is very rare. I don't know numbers, but ing of the Dauphin County Court of Common Pleas I. James Bannon, "Law Enforcement Problems with Intra-Fami­ Virginia 1967); Nail v. Slayton, 353 F. Supp. 1013 (W.D. Virginia ly Violence" (speech delivered to the American Bar Association the problem I have with it is that once we do it in civil testified that approximately 50 civil and crimin~ 1972): Mastrian v. Hedman, 326 F.2d 703 (C.A. Minn. 1964), cert. court that we are taking on a criminal sanction, and none Annual Meeting, Montreal, Aug. 12, 1975), p. 5. denied. 3'16 U.S. 956, 84 S.Ct. 1128; U.S. v. Gilbert, 425 F.2d 490 cases of spouse abuse came before him each year and IC Glenn Sparks, testimony, p. 42. of the safeguards of the criminal law are there. One, he can Phoenix Hearing. (138 App. D,C. 59, 1969): Corbett v. Patterson, 272 F. Supp. 602 .. Joseph Tvedt, testimony, Phoenix Hearing, p. 82. be called for cross-examination, [which is a) violation of that perhaps no more than 15 of those actually (D.C. Col!) 1967): People ex rei Hemingway v. Elrod, 60 III. 2d 18 Gloria Gilman, testimony, Harrisburg Hearing. p. 229. [the) fifth amendment, [and he is] not entitled to a jUry proceeded to trial.IO He estimated that full hearings 74, 322 NE2d 827 (1975): State v. Dodson, 556 SW2d 938 (Mo. 11 Richard Lewis, testimony, Harrisburg Hearing, p. 56. trial, another constitutional right. were held in only one of every three civil cases in II Marie Hegarty, testimony,Harrisburg Hearing, pp.251-52. App. 1977). Some courts and writers recognize a constitutional .. The purpose of bail is to ensure a defendant's appearance in problem with pretrial detention in light of the presumption of • Marjory Fields, statement, Consultation, p. 259. • Stephen Neeley, testimony, Phoenix Hearing. p. 225. court. Johnson v. State, 30 Ala. App. 593, .\0 So.2d 298 (1942); innocence. Commonwealth v. Truesdale, 449 Pa. 325, 296 A2d • Nancy Rourke, testimony, Harrisburg Hearing. p. 169. • Del Martin, statement, Consultation, p. 213 citing Sgt. Barry Mitchell v. City of Dothan, 249 Ala. 253, 30 So.2d 735 (1946): 829 (1972): Sprinkle v. State, 368 So.2d 554 (Ala. App. 1978), cerro • Lawrence Norton, testimony, Harrisburg Hearing. p. 169. Whalley, Oakland Police Department. U.S. v. St. Clair, 42 F.2d 26 (C.C,A. Neb. 1930). However, some quashed (Ala.) 368 So.2d 565; Stack V. Boyle, 324· U.S. 1 (1951); , 7 Cantor Testimony, Phoenix Hearing. pp. 121-22. I. John Dowling, testimony, Harrisburg Hearing. pp. 68-69. courts have held that a trial judge may deny bail if he feels the Jeff Thaler, "Punishing the Innocent: The Need for Due Process

36 37 ,

"-.~.,,7'--'-c- ,~ .. _ .. _ .... ~7'·.. ' ~~ ...... '¥_.,~_.~,,~~~ .-.. ..• " .• ~._,r- "... ~ ... _" ."'--' ~~ ~.

/' .\1 'j . '\

.--~.~-- --- In Pennsylvania, district justices are empowered Police Department, officers are rarely called to [O]n. . .the harassment charge, which is what we take a A severely abused wife cannot wait until Monday morn­ to receive criminal complaints from private citizens. testify in harassment cases: great many of these cases on, where a wife has been ing.~f One justice testified that, to cut down on the number slapped or pushed or shoved, there [have] been no broken of withdrawn charges, he had instituted a waiting bones, the eye isn't too black, and-or not too much Although the criminal law in Pennsylvania pro­ Usually, on the initiation of summary charges at the scene bodily injury has been [inflicted1, the trend is to take it on vides few tools with which district justices can period for abuse victims who wanted to file private of a domestic problem, the district justice won't even harassment, but WGstiIl cannot issue ihat warrant, It must fashion immediate remedies in the absence of an complaints. When a victim calls or COrllles into his subpena the officer. He will handle the citation with the go out as a summons unless we believe that he will not office, unless her case appears to be "severe," she is parties that are involved. That's when the offense is answer the summons. . . . arrest by the police, the civil law offers some given an appointment "2 or 3 days down the line [to determined as summary.~5 assistance. Under the Protection From Abuse Act,3C Now, I can understand why a summons should go out in a district justices may issue protective orders evicting give her] a little thinking time, a little cooling-down One district justice testified that he generally time."20 great many cases, when it doesn't involve abuse or abusers from their homes and prohibiting them from allowed a first offender to plead guilty to harassment physical contact in any way. But I feel very strongly that further abusing their victims.38 The justices' jurisdic­ Private, or "walk-in," complaints are made at the and pay a $25 fine, plus costs, without a hearing on the man who comes home and beats his wife on Saturday district justice's office, where the complainant is tion under the act is limited to weekends, when the the facts of the case.26 Examination of dispositions of night and she can't get out, there should be-and it should 37 not be abused-the right for the district justice to type up courts of common pleas are not in session. In interviewed, sworn. and asked to sign the complaint. harassment charges in HarriSburg during 1979 and At that time the justice formulates the charges, a complaint Or the police to come in and say, "We're practice, however, few district justices exercise even 1980 showed the average fine, in those cases in getting this man out of here until everybody cools down deciding whether the offense is harassment, simple that limited jurisdiction. which the amount was noted, to be $58; this figure and she gets treatment at the hospital. " assault, or aggravated assault,21 The district attorney Some justices may fail to use the Protection From included court costs of $26.50. With costs subtract­ may decide, based on the evidence, to raise or lower Abuse Act because it is relatively new and they do ed, all but four of the known fines amounted to $26 We get in a very embarrassing and, I think, an unfair the charge recommended by the district justice in a position when a woman ~alls. . .on the p~one and .she not yet fully understand how to use it,38 but many or less. Only 5.6 percent of the convicted defendants private complaint.22 This practice diffets from that says, "My husband is beatmg me," and she IS screrumng; district justices do not use the act because judges in were incarcerated.27 kids are screaming in the background. All of a sudden you followed in police-initiated complaints, which do their counties have instructed them not to do SO.39 Although district justices have the power to hear terrified scream, and the phone is jerked off the wall. not need approval from the district attorney. Once Justice Shoemaker, for example, testified that dis­ influence the course of an abuse case, they are the justice holds a preliminary hearing to determine trict justices in her county did not handle cases limited in their ability to provide actual remedies for What do I say to her? The police officer here knows I can whether a prima facie case has been made, however, call him. I may beg him to go out, just go out and see under the act for that reason: 23 battered women. If the police arrest an abuser and what's going on. So a day or two later, she's taken from the district attorney cannot upgrade the charges. COUNSEL. How did you come to know that you were not bring him in to be arraigned, the justice may require the hospital, comes to our office where we See 8, very Assault charges must be forwarded to the district the defendant to post bail,28 but the standards to be badly bruised and battered woman Who was not able to to handle it? attorney's office, whereas harassment charges, being get any help that night, and it is frustrating, and 1 think it is used by the district justice in determining the JUSTICE SHOEMAKER. Those were the judge's orders. summary offenses, are resolved at the district justice grossly unfair. 32 amount of bail are based on ensuring the defendant's level~ factor may have a bearing on what Th!W appearance at trial, rather than preventing further COUNSEL, Okay. Do you know if that's the practice in charge the justice decides to bring: Justice Shoemaker testified that before the law other counties or not? criminal activity.2s If the police do not make an was changed a district justice could issue a warrant [W]hen a woman is told that she can file charges by a arrest, but simply refer the victim to the district and have the abuser "picked up and put in jail until JUSTICE SHOEMAKER. Some counties. I believe, from police officer, she will go to a district justice and be justice to file a private complaint, the criminal law he cooled off." She saw this as "a relatively being at [district justice] school. ..this spring ...some of discouraged from flling, or. . .if he does allow her to file a offers little hope for an immediate remedy. Previous­ the district justices Were using them and others were not. I inexpensive way to dispose of a wife beater."33 Now, assume that it is the president judge's choice. He makes the charge. • .he always tries to make it a summary kind of ly, a district justice could issue an arrest warrant in charge that he himself can dispose rather than have to go hQwever, when an abuse victim seeks help in an decision.fo through the district attorney's ofl:ice, and ...that is a such a case, but that authority was limited when the a&'..fse case, there is little under the crimillallaws the systemic matier.24 Pennsylvania Criminal Code was changed in 1979.30 district justice can do expeditiously. This, according Robert Frederick, a police consultant and former Now, instead of a warrant, in most circumstances to Justice Shoemaker, results in the reluctance of police captain who developed a police training Harassment charges, which lDay be initiated the justice must issue a summons, directing the victims to initiate or follow through on charges: program for the Pennsylvania Coalition Against through citations issued by police officers or by accused to appear before the justice on a named day Domestic Violence, responded to this testimony as private complaints filed by victims, are used often in to answer the charge.31 Mabel Shoemaker, a district [We are hearing fewer] severe abuse cases ...because follows: Pennsylvania for abuse cases that police officers or justice in Chambersburg, Pennsylvania, testified to they think, "What's the use? We can't get any help." I o know they call the police. The polico say, "See the Not being a lawyer I don't know how to go about getting district justices do not perceive as being serious. the frustration she experienced as a result of the According to Sgt. Peter Brooks of the Harrisburg magistrate!' What can I do? As a district magistrate, what judges to obey the law, but I know a number of them that change: can I do to help the woman who is being beaten when at don't. and t!\e Presumption oflnnocence Prior to Trial," Wisconsin Law first I have to take the complaint and then call the district 2. Peter Brooks, testimony, Harrisburg Hearing. p. 47. attorney for approval or call the judge who may say, "Go I. . .listened to a district justice here say that the judge Review, 1978, pp. 441-84. However, the Supreme Court recently •• PinamonU Testimony, Harrisburg Hearing, p. 74. held that the presumption of innocence is only applicable in ahead and take the complaint. See me Monday morn­ was her boss, and he had said she shouldn't U!:le the If Commission stalT research, conducted in May 1980, in the Protection From Abuse Act. Her boss, it Ileems to me, is allocating the burden of proof at the trial, and not in determining course of field investigations. at the Harrisburg Police Depart­ ing." .... rights of pretrial detainees. Bell v. Wolfish, 99 S.Ct. 1861 (1979). ment. " Mabel Shoemaket, testimony, Harrisburg Hearing, pp. 204-0S. ,. Pinamonti Testimony, Harrisburg Hearing. p. 17. 10 Joseph Pinamonti, testimony, Harrisburg Hearing. p. 75. •• 42 Pa. COilS. Stat. Ann. §1515(a)(4) (Supp. 1980). '1 Paul Hardy, testimony, Harrisburg Hearing. p. 72. IS Ibid., p. 210. •• See, for example, Edwin Frownfelter, testimony, Harrisburg .. [d.: Pa. R. Crim. Proc., Rule 4004 (Supp. t~81). See footnote .. Ibid., pp. 210-11. Hearing, p. 204; Joseph Rehkamp. testimony, Harrisburg Hearing. ft Lewis Testimony, Harrisburg Hearing. p. 57. , 11. II Ibid. as 35 Pal Stat. Ann. §10181 (Purdon 1978). p. 269; and Farber Testimony, Harrisburg Hearing. p. 30. '0 Pa. R. Crim. P. Rule 102 (Supp. 1981). " [d., § 10 186(a)(I)·(3). Shoemaker Testimony, Harrisburg Hearing. p. 194. Ie Ida Farber, testimony, Harrisburg Hearing. p. 25. 01 [d. .0 Jf 1d., §10188. 38 39 () I

7 I ----~~~.-:..~:~~------.;:...---~"- ' --~---~~------~------'------.-~----- I- : ------..---.--

), ,,-i ,.' "

the people who elected her to office, and I don't think any nonpayment of these bonds, thl;lY are not provided the other elected or appointed official has a right to tell her right of trial by jury, when they allege unequal treatment to be unnecessarily oPl)ressive. Justice Johnson, fo~ criminal process can be effective in abuse cases that she cannot use the law. The law specifically provides of persons not able to post these bonds. And also whether example, reported that he generally set the amount through the use of terms of probation: for her to take action on the weekend. . . .She has [the 01' not a qu(:stion of double jeopardy (arises] When a later of the bond at $5 or $tO.82 He testified that without o tool}, and her jl!dge won't let her use it.41 conviction of wife abuse is conclusive evidence of the the peace bond he would have no way to belp I'm a very strong believer that probation can be a very violation of the effect of the peace bond.4' ,I Stover Clark, police and court liaison for the battered women: effective tool in this particular area. Incarceration is only temporary, and even if someone were to receive the Pennsylvania Coalition Against Domestic Violence, Under Arizona's peace bond statute, a person Who i I've got to maintain the pel1ce. I've got to put down evety maximum sentence on a misdemeanor, they'd be out in 180 testified about the difficulty he encountered trying has "threatened to commit an offense agains~ the riot and fray and confronbl:tion in the community, but how days. Three-year term of probation has a lot more to persuade district justices to change the way they person 01" property of another"45 may be required to do you do it When you're !Itrapped with one tool, and that flexibility even if it does include a jail sentence, but in approached cases of spouse abuse: post a money bond of up to $5,000 to keep the is a peace bond that peop}(~ in the higher levels are saying order to make that an effective term of probation, you peace. 4a .tIf the person later is convicted of an offense [is] unconstitutional. • . . have to have an effective probation department. II My experiences with district justice training, speaking to amountitng to a breach of the peace, the county their monthly meetings, have been horrendous. They are But.•. that's the only tool illS a JP that I've got to maintain Creative use of the criminal process was cited by very unreceptive to having outsiders come in and tell them attorney must initiate action upon the bond. C7 The the peace within my precim:t. I don't know how superior Del Martin, noted author and expert in the area of about new laws or how they should use the law, and it's a peace bond is not self-enforcing, and the county court judges [or] city judges overall feel about domestic battered women: har<'7 road we're going to have to follow to get to the attorney in Phoenix has adopted a policy of not violence. I do know that JPs are inherently concerned district justices. I think we're going to have to do that initiating actions under the peace boncl statute.48 He because we. . .are the courts that are in the neighbor­ through the county system, basically. 42 An innovative judge in Hammond, Indiana, has named the hood, and they run into us for protection. U explained the considerations behind this policy as wife/victim her husband's probation officer. The rationale Magistrates and justices of the peace in Arizona follows: is that the mM won't hesitate to beat up his wife, but he experience a similar inability to shape an immediate P~VI"f Involving the Criminal might think twice about beating up an officer of the court." remedy in spouse abuse cases. Although they may When we got the peace bonda, we found that (in] the Jug~ce Process require a defendant in a criminal case to reside away majority of those cases, that the individuals who had the When an abused woman turns to the legal system Although there are clear advantages to filing from home as a pretrial condition of release, they do peace bonds against them moved right back in or contin­ for help, there are severai courses of action she may criminal charges, criminal remedies have many not have authority to issue protective orders, which ued tel live with the woman, or she continued to see him, follow. She may file criminal charges; or, depending inherent drawbacks that may deter some battered could require the defendant to refrain from further and would never report to the police that she was being on the laws in her State, she may seek a civil harassed or threatened or tothered until perhaps she was women from pursuing them. The criminal process is abuse. Statutes and rules of court provide for a abused again.4I remedy, such as a divorce or a protective order. a slow one,"1Uld if the abuser is released on bail defendant to be released pending trial on his own Each of these aVenues offers some advantages to the pending trial, 'the, lctim may be subject to renewed recognizance, without posting a money bond, unless Stephen Neeley, county attorney from Tucson, victim, and each has drawbacks. The nature of a attacks. If, on the other hand, the abuser is incarcer­ he seems unlikely to appear in court when re­ testified that although his office occasionally initiat­ victim's situation determines what combination of ated, it may mean a loss of income to the victim and 43 quired. This means that a magistrate may not keep ed proceedings under the peace bond statute, he remedies is most suitable for her. her children-in addition to the cost to the family of an abuser in jail by setting a high bail based on the found it to be ineffective and oppressive to the If a battered woman seeks a criminal remedy attorney and court fees. potential danger to the victim. abusive husband, Who is already under an emotional against her abusive spouse, she must weigh several Several witnesses expressed a lack of confidence One rarely used and controversial option available strain that may prompt further abuse. 50 factors. Successful criminal prosecution may serve in the criminal route. Legal services attorney Edwin to magistrates and justices of the peace for spouse Justice of the Peace Ronald Johnson does not as a deterrent to future abuse, and it punishes the Frownfelter, for example, testified: abuse cases is the peace bond. Golden Johnson a agree. He is the only justice of the peace in Phoenix abuser for his violent behavior. Moreover, as long as former judge from Newark, New Jersey, descril;ed the defendant is incarcerated, he is uliable ~o abuse to use peace bonds, and he sees a role for them in Prior to the pass~ge of the Protection From Abuse Act, the peace bond as follows: cases of domestic violence.51 Invoking the peace his victim. In Pennsylvania, Judge Dale Shughart, the criminal remedies were really the only thing that an president judge of the ninth judicial district, testified abuse victim had available to her, and for a while I was remedy that is allegedly available in some States bond statute makes it possible for a justic;,e of the ~other recommendllng that she file concurrent charges: file tIle IS the so-called peace bond. This remedy is available in peace to provide a forum in which a battered that, in his opinion, criminal remedies were effective woman does not have to retain an attorney, pay in dealing with spouse abuse: harassment l}harges and file the abuse petition and pursue Califomi~ and Michiglm) ~here its efl~'Iidveness is gener­ both of them for the benefits of each. Our experience with ally conSIdered to be ~on~xls~ent. A peace bond is a surety, \ court costs, or get involved with the police or the the criminall~harges was not very good, frankly. usually .a bond. which IS Imposed in a quasi-criminal prosecutor's office. Although a peace bond may not [I]n a criminal case, the court has the power of suspending proceed.mg. It IS rarely used and when imposed, the sentence, pending compliance with certain conditions, money IS rarely posted. Usually, the peace bond has not stop . a person bent on harming another, it does and, if there is a violation of those conditions, then a jail Oftentimes, a. criminal complaint would be filed and the been fully explored. provlde official condemnation of abusive conduct sentence can be imposed; and putting people in jail is a districtjustiC(~ would then tell the victim, "All right, we'll which may deter further violent behavior. So lon~ pretty effective way of stopping them from committing issue a summ()ns and mail it out to him," but it could be a u Another problem is the possible constitutional violation of as. the amount {If the peace bond is not in excess of violence. lapse of sev~nu days before he even receives any evidence when the persons are arrested or put in prison for tbat criminal prosecution has been commenced, and what the abuser can afford to pay, it does not appear Judge Alan Hammond of the Phoenix Municipal \ 41 RObertFrederick, testimony, Harrisburg Hearing, p 213 duri1lg this time all sorts of violent behavior could be 4. Id.• §13-381S. Court testified that even without a jail sentence, the happening, or Ithe effect of it could be greatly diminished,11 fJ Stover Clarki testimony, Harrisburg Hearing. P.21S: • fa Ariz. Rev. Stat. §13-3967 (1978). •• Charles Hyder, testimony, Phoenix Hearing. p. 95. ft Ibid . U at Dale Shughart, testimony, Harrisburg Hearing, p. lOS. .. O. Johnson Statement, Consultation. p. 60. Ronald Johnson, Justice of the Peace, Phoenix South Justice , .. Ariz. Rev. Stat. §13-3811 (1978). 10 Neeley Testimony, Phoenix Hearing, p. 215 • Court, Interview, Jan. 10, 1979 (hereafter cited as R. Johnson II Hammond Testimony, Phoenix Hearing, p. 137. .. Id.. §13-3813. II R. Johnson Testimony, Phoenix Hearing, p. 139 • Interview). '" Martin Slatemtlllt, Consultation. p. 14. U R. Johnson Testiinony, Phoenix Hearing, p. 139. 17 Frownfelter Testimony, Harrisburg Hearing. p. 199. 40 41 ------_!._--

._.--.- -..- -.-' ,:,~, I'

The length of time between the filing of charges Most as!iault caseS, people will initially be able to make either physical or verbal, and very often result in further However, on the other hand, armed robbt:rs tonight can be and the trial can be substantial. Judge Harold SheelY bail. That is a problem, but you can't put people away in violence of a more grievous manner. S7 armed robbers tomorrow .... jail pending disposition of a criminal charge. d2 of Cumberland County, Peurtsylvania, estimated that Before the Protection From Abuse Act was it might be 3 or 4 months before a criminal charge Although one participant told this Commission's passed, the criminal justice system was the only Apprehension of family violence does not l'equire sophi~ti­ for wife beating reached his courtroom,sa A witness cated technology that attracts grant proposals from police Connecti(lut Advisory Committee that "high ball recourse for abuse victims in Pennsylvania. Antoin­ told the Commission's New Hampshire Advisory forces trying to modernize their crime fighting capacities. was set at the time of the booking in cases where the ette D' Agostino, a Pennsylvania State trooper and Committee that the lapse in misdemeanor assault The D.A.s do not advance their careers by counseling man was likely to return and threaten or continue to former battered woman, testified that criminal battered women or prosecuting misdemeanor battery cases was 3 months to a year, all In the District of abuse the woman,"6~ others disagreed, saying that remedies were not effective in stopping the violence cases. Additional attention by the criminal justice sys.tem Columbia, Assistant U.S. Attorney Gordon Rhea "offenders were routinely released on low bail in her former marriage: to family violence could add strength to other profe~lons described time lapses as follows: regardless of potential danger to the victim.Jl1I4 In such as social work at the expense of resource allocatIOn to police, prosecutors, and prison.SD Phoenix, shelter director Joanne Rhoads testified This was, as I might remind you,ll years ago, and I caIled It used to take a year to get a misJemeanor to trial, now it the police once. The neighbors called the police once or takes only two to three months, because•.• the court set that if her clients pressed charges against their When the abuser in a domestic violence incident is abusers: twice. I found the police officers came ready to do a job, up a new case assignment system that delegates six which was to haul my husband away, and I found myself convicted, the judge's consideration of the relS\tion­ permanent judge positions instead of the previous random in the same position that I found other victims of domestic ship between the parties often results in a sentence assignment system. Now about half the cases pending are usually the man was out on bail in a very short period of violence, "Oh, God, what's going to happen when he gets less severe than the offense would warrant. In two months old, and three-fourths of the cases are less time, an arraignment would,,'t take place for about 6 out bL-'Cause I know he's going to get out." And he did, 8 than four months old.sO Pennsylvania, Judge John Dowling testified that weeks, and the woman would have to live at home with ho~rs later, and I Was almost hospitalized after that incarceration usually is not imposed for first offenses that man until she was sought to testify against him ...•" beating. Judge Golden Johnson pointed out some prob­ in domestic violence cases unless the injury is lems caused by delays between the violent incident District Attorney Bayley defended the bail pro­ The only reason I wasn't hospitalized was because I was serious: and the trial: cess, saying: embarrassed to go to the hospital, and they took me to a magistrate. "Yes, but how can I protect myself'l" The [S]imple assault could be up to 2 years. It would depe.nd magistrate was very informative: "You can have him So it is. . .important to know what your rights are or on the degree of harm caused, whether he has a pnor In fact, lots of good things can occur if the person starts arrested for beating you up." what you ought to be doing at the time in which this getting assistance or help while they arll on bail, which is record, how the victim feels about all those factors. If it is injury occurs and whether or not you should have a simple assault where there is no serious injury and it is a often the case also. For example, let\'11 say a defense "Good, then where do I go from here?" witnesses, or neighbors, or take pictures or things of that attorney becomes involved in a case and he knows he's first offense, you would not normally impose a jail nature. So that if, in fact, your case be brought to the sentence, but you can. . . . going to have to r1ead his client guilty and he knows "Well, that's a family problem." proper authorities-and it takes a while to get there-that there's a problem. He might well have his client initially you still will be able to refer to injuries or visible injuries start psychiatric counseling, psychological counseling, Well, of course, it was, and I wasn't about to carry it home that you received, rather than talk about something that no alcohol work, all those sorts of things that will. • .impress A lot would depend on whether they are now back to my own family. They had been listening to it for 3 one else cnn see, the judge can't see, the prosecutor can't a judge who ultimately has to decide the case as to what together or are they getting a divorce. What's the family see, and the husband will allege never were present.SI years. I'm sure they were quite saturated with me and my situation? How does the wife feel about it? It doesn't do happens to his client. So there can be positive factors even sad tale of woe, because they had no way to help me. So I though somebody is out on bail.ss much good to put the breadwinner in jail, necessarily. I One of the chief drawbacks to the criminal route found the system worked, definitely, to no corrective can't generalize any more than that.'° in abuse cases is the fact that a man arrested for Other disadvantages to the criminal route are the measure at all. beating his spouse generally is released almost Although judges may view an abuser with no stigma and loss of the breadwinner's income that You know, it did nothing to help my situation. In fact, at prior record as a first offender who merits leniency, immediately on bailor on his own recognizance. At U may result from a criminal conviction. A prosecutor that moment it made it quite worse. the absence of prior convictions rarely indicates an that point, he may return home angrier than ever spoke before the Commission's New Hampshire and renew his violent behavior. According to Such experiences have led to speCUlation that the absence of prior abusive conduct. As Phoenix legal Advisory Committee about the issue of jail for guilty aid attorney Leslie Nixon testified, "One thing that Carlisle District Attorney Edgar Bayley, most de­ assailants: criminal justice system is inherently unable to solve fendants are released on bail: the problem of spouse abuse. According to Assistant we have found is that the woman we are seeing is District Attorney Charles Schudson, who helped probably only the tip of the iceberg, because a Oftentimes, the Woman opposes such a recommendation womah bas to get to a point where she is willing to I fmd that problem with murderers and rapists and robbers because there will be a loss of financial support, it would develop a battered women's project in Milwaukee: and every other type. You know, a person in Pennsylva­ be socially embarrassing, and lifetime scars would be left sort of risk the limelight~ let her neighbors, her nia, except for capital offenses, is entitled to bail. To the on the children and the family unit wlII be destroyed. If a If one assumes, in the first place, that the criminal justice family, and society know thlit she is in this predica­ extent they can make bail, they have an absolute constitu­ father is placed on probation, there is no counseling system is designed to eliminate crime or at least to ment."71 Family violence researcher Barbara Star tional right to be out on the street. available, there is social stigma, and the assaults continue, apprehend and prosecute mor serio~s .c~ime, family has noted, "A major difference between family violence tanks very low on the lIst7 of prlontles. After all, II Harold Sheely, testimony, Harrisburg Hearing. p. 123. violence and violence committed by a stranger is II G. Johnson Statement, Consultalion, pp. 57-58. family violence has little obvious criminal impact beyond II New Hampshire Advisory Committee to the U.S. Commission n Edgar Bayley, testimony, Harrisburg Hearing. pp. 95-96. the family unit. It is difficult to See that family violence in that violent episodes among family members tend to on Civil Rights, Battered Women and tile New Hampshire Justice U Connecticut Advisory Committee to the U.S. Commission on this generation can contribute to crime in the next. occur many times, not just one time. And, once S)'Stem (June 1979), p. 14 (hereafter cited as New Hampshire Report). Civil Rights, Battered Women in Hart/ord. Connecticut (April 1979), p. 15 (hereafter cited as Connecticut Report). .. Susan Fisber, "Family Law Issues of the 19808; Battered .4 Ibid. " New Hampshire Reporl. pp. 17-18 • T. Dowling Testimony. Harrisburg Hearing, p. 71. Women," District Lawyer, vol. 5, no. 1 (September/October .. Antoinette D'Agostino, testimony, Harrisburg Hearing. p. 221. .. Leslie Nixon, testimt)ny, Phoenix Hearing. p. 232 . , II Joanne Rhoads, testimony, Phoc?1lixllearing. p. 13. 19801), p. 50 (hereafter cited as Distrtct Lawyer). •• Bayley Testimony, Harrisburg Hearing. p. 101. e. Cbarles Scbudson, statement, Consultation. pp. 80-81. 42 43 ,

------~. ( ------~------.------:---- ,

In Phoenix, when asked what the usual sentence TIle three jail sentences were for third degree assault court cases for 6 months reveals tbat this max~mum begun, abusive incidents often increase in frequency sa was for a person convicted of misdemeanor assault convictions-misdemC1}nor charges. (In two cases, men penalty had never been used by any ofthejudges. and severity over time!';':Z Given the repe~itive went to jaiJ for hitting women. . • .) However, sentences nature of wife beating and the justice system's in a domestic violence case, Judge Alan Hammond were suspended for a number of apparently more seriaus Marjory Fields, supervisor of the family law unit indifferent response towards it, an abusive husband said that he did not believe there was S11Ch a thing as felony charges, and in other cases, telony charges were of Brooklyn Legal Services Corporation, cited a either nolled or dismissed. These cases frequently involved who is being convicted for the first time will very a usual sentence, but that probation was common it' study of nine abu~e cases tried in Seattle in which 7S the use of a deadly Weapon. . . .A man charged with tirst­ likely have engaged in the conduct many times in such cases. Judge Hammond advocates the use of none of the assaults, including stabbings anr.1 broken long terms of probation, which he believes to be degree kidnapping received a $240 fine and 9 months the past. suspended sentence after he forced the woman into his car, bones, was tried as a felony. Instead, the defendants 7s The Connecticut Advisory Committee heard testi­ more effective than short terms of incarceration. drove her aroun~, and threatened to km her and her pleaded guilty to charges of "causing a disturbance;' mony from two judges that if a battered woman's However, he testified that the Phoenix Municipai children. A 6-month sentence was suspended for another and received fines of up to $50 and suspended 1- injury was "serious," the :buser would be incarcer­ Court had only five probation officers, each of man who was arrested for cutting a woman with a broken month sentences. The seriousness of the actual 8 bottle and picking up a shotgun when she tried to defend ated.73 The Advisory Committee found, however, whom had approximately 1,000 cases. !) He ex­ berself with a knife. The police report indicated that the offen".es had no effect on the sentence, and none of that very few defendants received jail sentences in pressed concern about the effectiveness of proba- previous day be had tried to run over her 'Yith his car.as the abusers went to jail,88 Ms. Fields said. She also the abuse cases they reviewed. 7. tion: C noted th/ilt criminal court judges in New York were Instead of jailing convicted wife beaters, judges In Phoenix, shelter director Patricia Magrath reluctant to incarcerate abusers. In one case, "a man tend to impose probation, suspended sentences, or The thiilg that's bothering me now is whether or not we testified that she had only one experience with an who had cut his wife above the eye with a piece of deferred judgments. In Seattle, for example, there can adequately treat anyone who's placed on probation abuse case that actually reached sentencing: "She because of the large caseloads confronting the probation broken glass" was given "an unprecedented sen­ were 98 successful prosecutions during the third department. . . .If we have the present capability with was brui$ed on every part of her body. I have never tence of unsupervised 'probation'."87 quarter of 1979, but very few abusers went to jail: caseloads of 900 to 1,100 probationers, I think you can seen a woman so badly beat up in my life. • . .He In Arizona, Tucson Prosecutor Stephen Neeley envision for yourself how ineffective the individual proba­ was given 6 months in jail for what he did."a, testified that over the years he had observed judges' tion officer might be in treating that many probationers. The Colorado Advisory Comrttittee to the U.S. Of these defendants, 16 (16%) were se. . .tenced to jail time. reactions to domestic assaults arid had found the o There were 47 (48%) suspended sentences, over 47 (48%) Commission on Civil Rights also found tbat disposi­ sentences lenient: deferred sentences. When a defendant is given a suspended VICB CHAIRMAN HORN. • • .[T]hat's 9 minutes per proba­ tions in spouse abuse cases did not reflect the sentence it is based on one or more conditions set by the tioner per month per officer, assuming he do~s nothing seriousness of the offenses: I think both the prosecutors and the courts tended to take court. If he chooses to obey the court he need never serve else. the matters more seriously when the assault caus.ed the the time in jail. In a large number of cases the defendant W()men throughout the Nation complain that when and if emotional breach and the victim was prepared to follow was ordered to counseling. In 17% of the casas, alcohol JUDGB HAMMOND. That's about it.S! assault charges against their husbands or lovers reach the the thing througb to the end, but ! think generally the counseling was ordered, in 6% batterers counseling was courtroom, jurlges usually treat the accused with ca­ sentences were lenient [and] that the perception of this ordered, and in 26% of cases some other counseling was An analysis by the Commission Of the dispositions sualness and/or leniency. In ordel;' to attempt to IlSsess the kind of matter mthe courts is probably not as serious as .it ordered.71 in domestic assault cases in Phoenix showed a situation in Denver, RMRO [Rocky Mountain Regional should be.sa similar sentencing pattern. Incarceration was or­ Office of the U.S. Commission on Civil Rights] staff In Connecticut, judges told the Advisory Com­ Mr. Neeley also noted, ('The implication that dered in only 8 of 90 incidents of spouse abuse reviewed the court records of 20 cases involving male mittee that "alternative sentencing [was] used to ! defendants charged with violating the city's assault ordi" there is or may be a double standard in the area of recorded by police during Apri11979. Nine of the 90 some degree, commonly probation with conditions nance. The cases were selected because they involved the domestic violence is probably correct."" Several cases resulted in pr~bation terms ranging from 6 such as attendence at an alcoholism or psychiatric ! mpst severe injuries. Some cases involved injuries such as judges interviewed by the Connecticut Advisory months to 5 years, the most typical term being 12 f lacerations to the [victim's] face, injury h the braiu, an counseling program."78 A similar result is likely in Committee said that they '(treated assault in the months. The average fine imposed was $164.82 attempt to br~k the victim's legs, strangulati.on, beating of spouse abuse cases in Philadelphia, according to . a pregnant victim about the stomach, nnd destruction of home differently from assault in the street."110 One , Since, as a general rule, only the most severe cases I . Assistant District Attorney Jane Greenspan: the tissues or organs (eyes, ears, and limbs). The review judge testified, however, that he believed the posi­ of spouse abuse ever reach the courtrooPl, such showed that the most common sentence given tOJllen tion of wives and girlfriends should be upgraded. He 1 C? dispositions tend not to be commensurate with the charged with these violations was a $25 fine. . -; , said that domestic assault had been "minimized [B]y and large, you get a probationary term, and that's seriousness of ihe crimes cotnmitted. The Connecti­ sometimes, and r think those women should be either through a negotiated guilty plea or at trial and cut Advisory Committee reviewed police files in [Most of th~] judges did not trent cases with MY marked guilty Verdict. By far, the majority is a probationary term. degree of severity. For example, in one case, a judge did accorded the same rights that a strange woman gcb Hartford for the month of March 1977 and found \ We... have had some tines, some suspended sentences, ~ not tine the defendant even though the victim was present when she is strdck out in the streets."'·l some imprisonments. What we typically try and do is "very little !;!orrelation between the facts of the case, and had severe lacerations on her face. In another case, a By failing to enforce the laws Ilgainst spouse abuse work out a probationary term that involves counseling or the crimimii charge, and the actual sentence re­ defendant was given 10 days in jail for a battering incident with meaningful sanctions, judges weaken the deter­ treatment. • . .77 IJ that resulted in the woman's requiring 18 stitches.••. ceived" in cases of spouse abuse: rent effect that criminal penalties liU'e meant to os Barbara Star, ''TIle Impact of Violence on Families," sched. ,t Ibid., p. 137. ! Although the maximum penalty for assault violations is a embody. When shelter directors in Phoenix were u1ed for publication in Conciliatfon Courts Review. vol. 19, no. 2 •• Ibid., p. HB. $300 fine and 90 days in jail, a review of the disposition of asked if they thought that the tlenaWes imposed by (December 1981), p. 11. I. Ibid., p. 119. 71 ConnectIcut Report. p. 14. ., Connecticut Report, p. 12. Ibid., p. 259 • ft Ibid. II In January and February 1980, Commission staff, under terms I, .. City of Seattle, Law Department, "Battered Women's Project of a user agreement, reViewed all crime reports by Phocnili police •• Patricia Magrath, testimony, Phoenix Hearing. pp. 13-14. 81 Neeley Testimony, Phoenix Hearing. p.213. Statistics: 7-1-1979 to 9-30-1979," p. 6. officers for the month of April 1979 and reviewed case flies in the II ColoradO Advisory Committee to tb~> ~~S. Commission on It Ibid., p. 219(. .1 Connecticut Report, p. 14. city and county prosecutors' offices to determine case dlsposi­ Civil RighI!" The Silent Victims: De"JI~".t Balti/red Womtn (August to COf/ne(.'lIcUt~eport. p. 26. , " Jane Greenspan, testimony, Harrisburg Hearing. p.256. lions. Commission staff devised the forms and tabulated and 1977), p. IS (hereafter cited as Colorado Report). II Ibid., p. 14. .. Hammond Testimony, Phoenix Heqring. p. 118. analyzed the data. td Fields Statement, C01l!iU/lation, p.257 • o 44

l' , v

-.

, , (,() , ----.- .... --- ~'" "'\1 •.,0'" ..~ J

tlitf,'~a!&ttmniim.1,retha.T,Jrli~~lU1fl;lto1httm'!fu...>iimr "W1te fiintt \ti'fff.l1lll~, IlUIWj'" ~ w'*' I ~ i1,. the In Phoenix, shelter director Patricia Magrath sentences for contempt. If the offensive conduct does not tllrifuulliutt ihus tfue (O~ ~~ !' :g-~. if be g:~ ~. reali;e the need for the more drastic legal remedies of ffiilmwn: punishing tepeat offenders: tuaurlUy, (file ffinrt ~ I r~::l C::;[llti'tlle ~ $"'.i5 £'be lIIOd !be criminal prosecution or divorce. Thus, the injunctive .~' .~rPi=tll~m,l.nTmtrelhlttf.l(nJ\V~~;Dltt,.Dr ,no, uill ff'me tLhe ,de'l"mt\:r.-t snm rr I E.:ld. E.:::J C~y mil Marjory Fields reported that at least one woman ships, Harrisburg legal services attorney Nancy anutfuJ.:r. imlP!>a!:JlllrHfily jelll-e3oe. v.tkb I def.e:r ~gllOd took a drastic step when the court failed to punish Rourke testified as follows: liw1m1.!iar (rn! [b-...Jluff u:!f l'1l::s !l3ef.,'""'1@::'f. ifi'::l. fxtt be ~ ~S5m!HmR$~~i.llnlA"!!!Wit!£wJiibrnmreCll~ ~ lhllct Un rthe ttr!ltUle oil ~ .fitb llOm 0; w.!e «his her abuser after repeated assaults: That's the harde!!t kind of a case to re:;olv.e, to~et what ~H~,dm;,!GUlcthidi\- ~IEflll&, \bring b baclk fur ~ ~ r.~ at tbt A classic example was the case in New York City in which she wants, because it involves a cnange in attitude by lJlllim II ~ iiun,e ~ lPithrl cp 2t':Id bt:u~ b the somebody who is out of her control, and that's him. She lMll.1iIl!~.,'l'&¥.'!!:!L lJdfurltHfiiliik ~tJit5:r.~'D!rlllFih!!en lizil!U;m a woman brought oharges against her former common·law Tlm!PhlnlD.°lllltW .zjcl."'" has no way to force him to change. • . .[S1he can force ~~\wmlill~w..tilil~it...... ~ltl husband for beatin~ her savagely on five different occa· sions within a yeat and a half. Although she had been him to stay away from her, she can force him to stay out of [j':n \W!lll\lm Qr.!:);ps the charges agaim! her abuser.. the house, and she can send him to jail if he won't, but she nl1#>~ati.~~(fintt:mriidh!i:nnlnites beaten so severely that she had been hospitalized on at rfhe ,tim!,ge tl!'m.Y (treat her ease less seriously when :she least two occasions, bad lost an eye and part of an ear, her can't f(:Jtce him to change his behavior. \W"~ • fin cibm!!l1im ~h <..t:mre.s~ l:R£.,!.mtruill \IIDlD.es fuacik (to ~ again after aoother :incident.. assailant was released each time on his promise to the ~j at D.e.w l1l4tt.."S:rr ,,\,!lID ~ tfhe ::rille.of ~etfhetfaot bt $Uchca.ses~ in aseme., n:peat judge that he would not repeat the offense. The victim, I The Protection From Abuse Act is a whole lot more effective than anything I've seen coming out of the ~ ~iin~ l:llhu;re~l'!.!.fuuntI:tlutt I.tiffmnres, tt:he iO.Omlt sametimes adS as tboogb. the am told, finally solved the situation herself. She committed & ~ ffi:iikd.l "tb ~ ,~..y.ml rire:mmy Jimirulll suicide. 101 criminal justice system in achieving the end result of ~{mnan !hm; 4crl.ed w,olf' and no longer derentes trying to save the marriage. but it's not all by itself going '1:::~~-bmi!' tf..llldf.i:.mE." :nntl ;nmmnniii3b~il' 'tllitle Un ~otion.1RIDrh~ce,. District]~ Paul Hardy Civil Court Remedies to resolve that problem.103 t:he~.bn \m tre:lili.~'iam:'~ :..~ smt*y ,m!tlre ll~v tterttified ttfu:.t be became ~a little skepticat" of Although a divorce may be a solution for a if~ ~ c:rin:limil ~ ~ i.li1Bp tml'teil \thnt <.e.mqp1cints ibrD",l,gbt by warnen who :repeatedly drop Other witnesses said the chief advantage of battered woman who wishes to sever all connections z::'~Pi5~.iam fu;;:a ~ e~lt1cl1 ~ :fue..o::mrffi .tihm:ges?17 lI:n Hb:~ Justice of the Peace Ronald protection orders was that they provided much with her abuser, it does not end the abuse in every ~tt!li;l~.l!mll; lin1mson rr:ep.or'..ed that if a woman drops clwge:s more immediate relief than did criminal remedies. case. Some men, unable to make the emotional break his will accept Judge Harold Sheely, for example, testified that the .•.•.$1-% d o!he wmt:nml. ~ tiiutt tfimir ':f!I&lU1i!!S ili:.dh­ ~ !her ~r m C:OlH4 he not a divorce necessitates, continue to pursue their ;nno£her iODm;pla;'I'lt !tom her for 6 months..'JIll A Protection From Abuse Act had .been a useful ~J::fl ttiu:m ~ \\cifuin al Ji'e.w ::nmrrJu; ffijllo,\\~ 1he victims. Some women, unable to sustain themselves ~~ ,!if tfue .:aau.d \Cllle$, , .•.La.'1fu al ~"Jifu.-'l ,nu Manobester lPonoe sergeant told this Commisskm's addition to the tools he had for protecting victims of financially after a divorce, are forced repeatedly to tfnetpartdo!he!iIDmlaatt!ifiurt~..:mtd~l:BI'ii.ll!ll~l!S~W1 New ~e A~ Committee that after domestic violence: al1:ftillu!e-ntlo!he;ptd'df~~uttttoff:iIb.wlll'p,."!ifh·nt:mn.!;'eI' seek court orders for alimony, medical expenses, ~Bf!'v.enilltlpiRoa."'S ®f rlropped charges. the judge may u:m:aa~ an ~ ~ ~~ r:t::> [be nilateti do child support, and social security benefits, thereby I thi'll< what helps, if you can get a person into ~ourt r:r~ J:lS fo11ow.s: ~u~~~'tfuejidimilant.Atxc:l"·aitw;1to;:me exacerbating an already tense and adversarial rela­ quickly, a lot of times the ,?ere aPl?earance bef?re a J?~g~ and telling them, "If you Violate thlS, you're gomg to J81I! ~ '·U1rr~~~tb~UtiTItlIl1illecitlWX'B!!. J>Jfrer tionship. If the couple has children, there may be 1he;di&il:t ~ ~ IllP tfhe ffuJtt lfune!he ~cil (fueJl:a [JJhe Dome o-.:t and make a statement like. I think that has a salutary effect. We do see them faster m meMe:rll:l'.!K!him~. '"illhe ifintttfitne lile\Wtm! tU:l:m:wrtfue ~~ Jctd:.e!lsm,g'ille !pOlice w;uilli 1P ~ jail. WVlre:n WI!! :thel!;1l:Ytto,golihe!id andjustabont kill her.- Many victims want to end the violence without Sgt. Peter Brooks, of the Harrisburg Police Depart­ ~ lha:.ik ~ tfhey ~ l1ike ~. f:ha±! tn::) omz.:l ..of terminating the relationship. In such cases, protec­ iit.~' 1I!h.us, :the .conr:ts :are quick to punish a victim who ment, agreed with this view: tion orders may be more appropriate: !has mopped .cbarges in the past, even though her \ T~ ~JttB !flurt jjlC.geB ~ ~ 'lJf­ ~ may have been prompted by the criminal TJte advantage of !he Protect~on ~rom .Abuse :,,-ct-in my Civil injunctions provide the wife who ,dpes 1!Q! ,,:,ish to opinion a great piece, of legislatlOn-;-ls that .It .stops the ~t'Olil'y J'lCare1FlIl1ep-~3iCl±.lns..:y tilum!5n>t mfl.!l:fieS. justice 'Bystem~s bet of encouragement or by cir­ have ber husband prosecuted on criminal charges or. to violence now, immechately. It's not like a cnmmal com­ in P~;.h.~ librlimttam:e ~h't!:i.mJlmtio.e.!r~ J irnml'l,1aDoes ibr.yMd her control. such as financial seek a divorce with an alternative relnedy that may give plaint where someone can wait, hang on edge for 180 days llnam.01l!.ilte:m:ifiedraslfu"J.OWB: &::pendenoe;em. her abusive husband. her protection. A court order directing the offender not to for a case to come to court. lOS strike, menace, harass, or recklessly endanger his wife will ... f:liJl:lR&i, 1Ellcn ~~ lint! rMa~ 1:r~, JPlwetiiJc :thar­ I\plWflr ,&lil'.erei! .at the !SSQ Annuil Meeting ar tlN: Lt.w ;and in most cases be sufficient to stop the attacks. Legal services attorney Lawrence Norton testi­ ihII- iP·:30· S:miety .,6.IiBocia"..ion 'lmd abe Institute for SocIal ~'tis Re­ fied that the Protection From Abuse Act provided -lFor ~\Pl::, Rourke Testimony, Harrisburg Hearing. p. 167 • , ,. :Ebzabdh ~:11W Oy+...iln, :anti A11&l.w. lP.:miOll, ":Bat­ ... lR..lJ~onlbrter\'.iew. ,., Fields Statement, Consultation, pp. 2.13-14. '04 Sheely Testimony, Harrisburg Hearing. p. 123. ~ 'M'!lltle1'l ;antf:the~, T.orl;: City Crimiruil.funttiru: S,l'lttem" .... JliewlBcnyx;hir.e!RepDrt,?Po iJ.6-17. '02 Ibid., p. 270. '01 Brooks Testimony. Harrisburg Hearing. p. 39. 47

. .. \7 l

.~-.-,

n' I [I]t is a question of expeditious action, yes, but there are [W]e're experiencing a gap in the act. . . .[AJ judge won't they weren't going to have them filed but sending them Marjory Fields, writing about a New York family many other elements to it I think, that make the Protection grant an order if the parties are living apart. • . .[I]f she's back and asking questions and making objections to the court, reported a related problem: From Abuse Act and the civil remedy more desirable, if moved out but he still is harassing her and abusing her, she petition ...• there were choices to be made, than the criminal system. can't use the Protection From Abuse Act, and she has to Judges avoid making decisions by issuing "mutual orders seek other remedies, some of which are criminal, and I've J The express teason for refusing to accept them was the of protection," ordering each party not to harm the other. Yes, the act requires a hearing to be held Within 10 days. already spoken to the fact that criminal procedures don't . statement and policy directive and interpretation by the .,' work very well in Lancaster County for domestic issuee.uo I This has the negative effects of holding the woman equally , That's important, very important. It also makes it clear courts in our county that it wasn't needed; there were guilty for the beating she suffered and relieving the wife that a hearing is going to be before ajudge, that we are not other ways of enforcing the rights that were attempted to Another factor that may limit the accessibility of beater of responsibility for his violence. Allegations of going through these initial stages where we deal with be enforced by the petition, and that those ways were battering are viewed as shams used by wives to gail' a district justices, which in Pennsylvania means nonattor­ protection orders for battered women is the cost. more desirable than enforcing the Protection From Abuse weapon to achieve control over their husbands. neys, and it means in our countiesr the counties that we James Keenan, director of Community Legal Ser­ Act.•.• serve, and I think it is true all across most of Pell\'lsylvania, vices in Phoenix, has noted: a very unsophisticated and conservative approach to any Some judges are reluctant to grant ally relief. A woman After we stopped having problems with baving the who had been beaten frequently during 18 years of new kinds of issues and new legislation and barriers to [O]ne of the realities is that if you don't have access to the petitions filed in Cumberland County, there was a period enforcement of the act. So we know, by using the marriage sought an order of protection iii Brooklyn system, whatever remedies the system might have arc of time when we had some problems with having hearings Family Court. She decided that she needed help because Protection From Abuse Act, we're going to get to a judge, really meaningless, and for many of the low income, set within the statutory period. Usually, it wouldn't go and it is going to be treated seriously in court. the beatings were getting more severe and more frequent. irrespective of the type of legal problem they are attempt­ beyond a day or two after, b"t the courts were not setting The judge told her that he was not granting her an order ing to pursue, access to the system at the initial level hearings immediately under the express provisions of the of protection, even though the beatings were not denied In addition, I think the people's reaction to the civil becomes the issue. And unless that is solved, the system's act. but only minimized by her husband. The judge ordered process as opposed to the criminal process is different. In remedies are not going to be meaningful.111 both parties to go for counselling. The woman protested either case, we're talking about the judicial system getting I think-it is clear to me that one of the reasons for that is that she had tried counselling, but it did not work. The involved in some family life of some kind, and that's a Lois Kermott, director of the Community Legal the courts resented the legislature in effect setting out a judge was adamant. The husband felt vindicated. The difficult step for anybody, but I think it is much easier for Services family law program in Phoenix, testified statute that required them to give court time to these woman sued for divorce because she believed she could be people to know that the remedy that they are going to about the barriers erected by incidental charges matters, and that was one of the ways-all of these things safe only if she no longer lived with her husband. pursue is not only more flexible and broader relief can be are sOme of the ways the courts responded to that. given, but that it is civil in naturej it's not criminal in associated with obtaining and enforcing protective nature, just by the terminology used; and that the result, if This woman said she felt that the judge was more critical orders: Right now we're not having problems with the dates being successful, is not necessarily going to be putting somebody of her failure to take action against her husband before this in jail. set within the confines of the statute. We are having SODle court proceeding than of her husband's violence. The [U]nder the rules of civil procedure a petition for a problems with interpretation of the statute, and we are contempt has to be served personally on the respondent, judge's attitude was, "If you never tried to get help before, having continuing problems with enforcement and instruc­ then I will not try to help you now." Her years of sacrifice It is not necessarily going to be depdving the woman and and this is a charge which our clients have to pay, which is tions and guidance that the courts are giving within the the service of process, and it amounts to $25 to $30 and and suffering to keep her family together were being the children of support that the woman and children may county on enforcement.1U need, if successful. If unsuccessful, it is not affected at all. I our client is usually not working at the time and, if her tum.ed against her. She was treated as the CUlpable party for fulfilling the role of patient wife and dutiful mother.ltD l:hink there are many aspects to the Protection From spouse is beating her, he usually is not financially support­ In New Hampshire, a domestic violence task force Abuse Act that make it far preferable to using the criminal ingher. surveyed jUdicial and police attitudes and found Even in those jurisdictions where protection t~rocess as an alternative.loc In addition, she also has to start her divorce proceedings some judges to be "openly hostile" to that State's orders are readily available, some judges are reluc­ In most States, protection orders are available [in order to have the automatic injunction issued]. She also law providing protective orders for battered wom­ tant to use creative provisions that are allowed, but only during the pendency of a matrimonial action.I07 needs certain sums of money, which are $40 for the filing en.114 The director of the State's only shelter for not specified, by the law. In the District of Colum­ lilt Arizona, for example, a protective order is issued fee and another $25 to $30 for service of process, and tbere battered women said the Protection of Persons bia, for example, proposed revisions to the Intrafa­ is a possibility in the Maricopa County courts to get the u5 120 automatically when a petition for legal separation or filing fee waived or deferred, but that also ta~es time.ll2 From Domestic Violence law was "ineffective in mily Offense Act would e"pand the language dissolution of marriage is fIled;'Ul8 This automatic a significant number of' oases because of hostility or specifying additional types of relief because "judges protective injunction, of course is not available to Despite the fact that statutes in many States misunderstanding on the part of those who must freqently have been reluctant to order relief not billttered women who are not married to their provide for protection orders in abuse cases, many enforce it. "l1e The shelter fIled a formal complaint authorized expressly."121 In Pennsylvania, legal ser­ a11)Users. judges are reluctant to issue them. In Pennsylvania, against one judge because he refused to grant a vices attorney Nancy Rourke testified that although In Pennsylvania, the Protection From Abuse Act for example, some judges have exhibited hostility to restraining order and was reluctant to issue orders the legislature intended the Protection From Abuse \ is: not limited to married victims, and it milY be used the Protection From Abuse Act. Legal services for shelter residents.111 Act to allow the court to order counseling or whether or not an action for divorce or legal attorney Lawrence Norton testified about his experi­ Some New Hampshire judges hesitate to issue alcohol treatment, the judges in Dauphin County sl~paration loD I would only issue such orders based on an agreement " ' is pending. The act does not apply, ences with the act in Cumberland County: protective orders when the victim "seeks an order however, to people who formerly lived together well after an attack has occurred but from a fear that worked out by the parties or where a previous order Initially, we had problems with the judges even accepting unless both parties retj;;in legal access to the resi­ another beating is imminent. "118 had been violated. Moreover, an abuser's agreement petitions. We not only could fail to, in some instances, get 1 d.ence. This has caused problems for some battered \ an order we would ask for; initially we got petitions back 111 Norton Testimony, Harrisburg Hearing, pp. lS1-S2. 117 Ibid.; New Hampshire Statement. p. 6. vVomen, according to a shelter employee: in our office, judges refuaing to have them filed, not saying 114 New Hampshire Advisory Committee to the U.S. Commission 111 New Hampshire Statement. p. 7. on Civil Rights, "Domestic Violence Reform: One Year Later," m Fields Statement, Consultation. pp. 258-59. ~.. Norton Testimony, Harrisburg Hearing, p. {'56. 110 Farber Testimony, Harrisburg Hearing. p. 30. August 1980, p. 6 (hereafter cited as New Hampshire Statement). 120 16 D.C. Code, Ch. 10, §16-1001 et seq.,' P.L. 91-358, 131(a) 10'1 Fields Statement, Consultation. p. 268. W James Keenan, testimony, Phoenix Hearillg, p. 16S. us N.H. Rev. Stat. Ann. §173-B. (July 29, 1970). , 101 Ariz. Rev. Stat. §2S-31S (A)(I)(b) (Supp. 1979). m Lois Kermott, testimony, Phoenix Hearing. p. 16S. 11' "New Domestic Violence Law Working, But Not Too Well," 101 District Lawyer. p. 52. 100 3S Pa. Stat. Ann. §10l81 (Purdon 1978). Manchester Union Leader. Aug. 22, 1980.

48 49

f

., '----.------~",--"~------i I ....

\'1 :::ds&& ~------~------

(/ -, ,

to attend counseling was not enforced with a finding in my opinion, might be questionable as to due process, to pass upon soml;:time and I won't attempt to The State has the power to put restrictions on people's use 122 then the use of the criminal proceedings is the one that answer that. I don't knoW."130 of their property. The State has the right to provide of contempt if he failed to attend. Edwin Frown­ should be utilized, because, if a warrant were issued and Judge John Dowling also testified that he thought protection for another person who has a legal right to be felter, a legal services attorney in Cumberland the defendant was picked up, he has full rights to an in that property. I don't have a question with the County, testified that there was "definitely an arraignment; he has a right to have bail fixed, and he has the Protection From Abuse Act was "constitutional­ constitutionality of it. m attitude in our circuit that the Protection From other rights. For any individual, as a judge, to issue an ly suspect": ;. Abuse Act will be enforced to the extent that it is order based on somebody's affidavit excluding that indi­ Barbara Hart, a legal services attorney and legisla­ j' vidual from his home, this is a very, very drastic situation [O]n mere petition you can exclude a spouse from the tive chairperson for the Pennsylvania Coalition mandated and no more, and apparently maybe not because I think the individual excluded from the home also home, put him right out. He doesn't have a chp.Ilce to tell Against Domestic Violence, testified that she was even to that extent."123 has constitutional rights that have to be protected, so that I his side of tile story. It may be a totally different picture At the center of the controversy over whether or am not favorable to granting exclusionary orders except when you get into court. . . • aware of criticism that the Protection From Abuse not protection orders should be provided for bat­ under very drastic circumstances, and I don't know that Act was unconstitutional: I've ever signed one. . . .125 tered women is the reluctance of many judges to Normally, in court, when you come in with a petition for Many judges have said to me, "I do not intend to enforce issue such an order on a temporary, ex parte basis. an ex parte injunction, you must put up a large bond. You this because it is unconstitutional," and I said, "Your must have a very, very extraordinary case to get it ex On this basis a m~m could be excluded from a COUNSEL. Do you feel that there are the Same due process Honor, it's the law," and they say that they believe it is parte. lSI residence to which he would otherwise have legal questions or constitutionality questions that ylOu referred unconstitutional and do not. access and would not have an opportunity to be to, do you feel that type of question is presented where an Although he voiced doubts about the Protection One president judge in a rural county has informed his heard until after the order had been issued. In ex parte order is sought directing the husband not to abuse the wife further, where the question is not one, in other From Abuse Act, Judge Dowling testified that be bench that they are not to accept any filings because he Arizona, Judge Irwin Cantor described the proce­ words, of excluding the husband from the home but issued orders under it: believes it is unconstitutional, but it has not been declared dure by which protective orders were issued in his directing him to take other actions with respect to SO.135 court and testified on some of his concerns about the refraining from harassing or abusing the wife? Well, a law is presumed to be constitutional. I can't propriety of excluding abusers from their homes: disregard the law ..•. Ms. Hart defended the constitutionality of the act: I would suggest to this distinguished panel that it is not an We feel that a threat is not enough. There has to be an JUDGE SHUGHART. • • .I see nothing wrong with telling a I have my own feelings about a lot of the laws. I may not man he isn't supposed to beat his wife. 126 unconstitutional act. . . .Due process simply requires actual assault before I exclude, and the reason is [because] like them. I may be concerned, but my first duty is to carry notice and opportunity to be heard. of the Constitution that all property here is community out the law, and until an appellate court says an act is property with the exception of gift proviso; I won't get When ludge Harold Sheely was asked whether he unconstitutional, it is constitutional. 132 This act provides both. . . . into those, but if the property is community property, each had the power to enter preliminary injunctions or has a right to live there. temporary restraining orders on an ex parte basis in Michael Irey, a special master appointed by the [W]hat this act is saying is: "If you abuse your spouse, you ordinary civil cases where he was satisfied that the president judge in Columbia County, Pennsylvania, have the right to notice; you have the right to a hearing, And so if yci~'re going to take away a constitutional right to issue protection orders under the Protection but if it is found that you have abused your spouse, you of property... or the use of the property, which is an requirements had been met, including the likelihood will lose, for a temporary moment, the right to live in your inherent part of the right of property, there has to be that irreparable injury would result without the From Abuse Act, also testified that his reservations home." about the constitutionality of ex parte protection something, for lack of a better designation, amounting to a order and that there was a probability of success on I I criminal act before you're going to deprive one person the merits, he responded: "[W]here you can satisfy orders did not prevent him from issuing them: We are always balancing two rights: We are balancing the from the use of the property.124 right of someone to abuse and the right of someone to live the court that there is immediate and irreparable free from fear of constant harassment and physical vio­ injury. Yes, we can sign a preliminary injunction ex I have some reservations with regard to. . .denial of due In Pennsylvania, objections to the Protection process; however, my rationale for executing temporary lence-and I do not think we will ever find this act to be From Abus-e Act generally center on due process parte based on affidavits."127 orders is the fact that the hearing is scaeduled within a unconstitutional. U8 Judge Shughart testified that his main concern relatively short period of time, and on that basis I will sign considerations. Many judges criticize the act be­ Several witnesses testified that the issue was not cause it allows alleged abusers to be excluded from was that "the individual whose rights were going to the temporary order if the allegations in the petition support that type of relief. ISS whether the act was constitutional, but how judges' their homes temporarily without a hearing. Some be affected by the order certainly has a right to be confronted by his witnesses."128 He testified that perceptions of the act affected the way they en­ judges also complain that the section of the act Legal services attorney Nancy Rourke testified once that is done, he would not be reluctant to issue forced the law. For example, attorney Lynn Gold­ providing that an abuser who violates a protective that she did not find the ex parte provision constitu­ an order: "I have no hesitancy in imposing an order Bikin, chairperson of the Domestic Violence Com­ order can be jailed without an opportunity to post tionally troublesome because the full hearing is held of any type after I hear the testimony. "129 When mittee for the Pennsylvania Bar Association, testi­ bail is constitutionally suspect. President Judge Dale quickly. She also said that the abuser's property asked, however, if he had any problems with fied tha't she saw the constitutional questions raised Shughart testified that he seldom if ever granted ex rights are limited: excluding the husband from the home after a by nlany judges as an excuse for not doing some­ parte protection orders and described his reserva­ thing, they did not want to do: tions about the Protection From Abuse Act: contested hearing had been held or if he believed [Y]ou don't have the right to use your own property to that constitutional questions arose only in an ex parte assault someone else or physically hurt someone else. That [M]any times wilen they say "I don't think this act is JUDGE SHUGART. It seems to me that where the circum­ situation, Judge Shugart responded: "You're asking is a standard legal principle. A neighbor can't use his constitutional; I'm not going to enforce it," that's their stances are so severe as to justify an ex parte order, which, me for a legal opinion on something that I may have property to harass or bother a neighbor. • . • excuse for not enforcing it but not the reason they are not

122 Rourke TeStimony, Harrisburg Hearillg. p. 161. ue Thid., p. 107. no Ibid., p. 109. ... Rourke Testimony, Harrisburg Hearing. p. 157. 120 Frownfelter Testimony, Harrisburg Hear/lIg. p. 208. m Sheely Testimony, Harrisburg Hearing. p. 126. m Dowling Testimony, Harrisburg Hearing. pp. 69-70. m Barbara Hart, testimony, Harrisburg Hearing. pp. 10-11. 12. Cantor Testimony, Phoellix Hearing. p. 120. 102 Ibid., p. 83. lS. Ibid., p. 12. III Shughart Testimony, Harrisburg Hearing. p. 125. , ... Shughart Testimony, Harrisburg Hearing. p. 106. m Ibid. u. Michael Irey, testimony, Harrisburg Hearing. p. 138 .

50 51 ,

" . ~. I '\

111 ,

... 1'--.1

enforcing it. They are not enforcing it because they don't COMMISSIONER-DESIGNATE BERRY. So that ,tllat's your funds were available for a special process server, it would the Protection From Abuse Act in responding to 1f believe men should be out of their homes for abusing their position you take on any statute, or is it just on titis go a long way to solving the time problem. ' domestic violence that occurred during weekends: wives because it goes on in every family. and I have been Protc:ction From Abuse Act? told that by more judges than I care to tell you.m In Philadelphia, according to shelter director JUDGE SHUGHART. There are many, many instances of Peggy McGarry, court backlogs have caused a There are a lot of problems with the court system in that there are em("J.·gency weekend orders which include Legal services attorn(!y Lawrence Norton, who that that could be given. I don't feel that I want to delay in the issuance of protection orders: comment on what they are••.. 1fO evictions, and they expire at 9 a.m. on Monday morning. did not think the act would be found unconstitution­ d At 9 a.m. on Monday morning we have 30 people at our al, also questioned some judges' motives: [T]o get a temp(j~ary order under the act, which. • .one ?oor. '.. [E]ven if we could really me protection orders CoMMISSIONER-DESIGNATE BERRY. I have never heard in should be able to ~et in 24 hours-at this point there is the history of my own legal training-and I think other Immediately for all those people, because of our staff it [It] ajudge••• thinks that a certain provision is unconstitu­ often a wait of up to ~ week to get a temporary order, and takes us a number of days to get the petitions all typed. tional, it seems to me the judge should declare it unconsti­ lawyers will agree with me-that a lower court can simply the hearing for a permtment order, which is supposed to decide that an act is unconstitutional and have nothing to Then we have to walk them through the system, and it tutional, enter an order, and issue an opinion that it is happen. under the act, lp 10 days, is often not happening takes.days to get a temporary protection order signed, and unconstitutional for the purpose of having that decided by do with it. Not eVen making a decision. just simply saying, now for as long as f weeks because of the backlog "We won't have anything to do with it in our court." then It takes a week to 10 days to have a hearing after the the appellate bodies that are going to have to decide it. there.•.. 145 temporary protection order is signed. That is not how the act reads. That is really improper procedure. The judges that have expreSsed their cOncerns about the JUDGE SHUGHART. When they relieve me from my oath to Unfortunately, at this point, family court is only able to constitutionality of provisions t)f the statute to us have not uphold the Constitution, then 1 can blindly, supinely act handle... 90 petitions a month.••. [I]n our legal clinic done that, and they, I think. have used it as another barrier without thinking about it. in Philadelphia, we get. . .30 to 50 women a day looking [W]hat it means is tllBt a woman who had someone evicted to the enforcement of the act.138 to have such a petition filed for them under the act, many over the weekend has to go hide until she gets her VICE CHAIRMAN HORN. May I say to my colleague, I many, many of whom are eligible under the terms of temporary protection order signed, which could be 5 days, th~ no Asked whether by refraining from ruling the act don't disagree on that point, but what I'm saying is, if a act, but there is neither the legal representation nor the it could be a week. unconstitutional he was blocking the right of appeal judge feels an act is unconstitutional, I do think the judge ability of the court to handle that kind of volume.u8 According to Marjory Fields, women in New by women who were denied protective orders in his ought to rule that the act is unconstitutional, rather than just say, "I won't act until I hear from higher authority." Assistant District Attorney Bebe Holtzman also York City are similarly vulnerable: court, Judge Shughart :responded as follows: Or "I will continue [not] to carry out this law until I hear complained of delays in Philadelphia courts. She from higher authority." I think a person has a responsibili­ JUDGE SHUGHART. As long as we make our decision, There is no session of New York Family Court at night or ty under the Constitution to fulfill his conscience. but I do testified that enforcement of protection orders was depriving them of what you say their right is under the on weekends. A woman attacked on Friday night must agree on your point that you shouldn't just slide away hampered by scheduling problems: statute, they immediotely llave a right of appeal. wait until Monday morning to commence a civil proceed­ from the issue. . . • l5l ff]here have been. sc?eduling problems. Although the ing for an order of protection. CoMMISSIONER-DESIGNATE RUCKELSHAUS. Well, Judges have compbed 10 terms of hearing the con tempts, no. • . .That's not the issue they come to you on. They JUDGE SHUGHART. If you don't act on it-if you don't act Another weakness of the civil route, noted by Ms. on the provision, you are making a decison.1U the numerous problems associated with that have in­ come to you asking for a protective order. Well, that isn't creased. You know, scheduling it at a time when that Fields, is that victims generally do not have a right available in your court, evidently. In some jurisdictions, it takes a long time to obtain judge is available in a courtroom that is open, getting the to counsel: JUDGE SHUGHART. We didn't say that it wasn't available. I a prot,ection order. Judge Harold Sheely pointed out parties subpenaed•... U7 think we said it was not available as a general proposition, that a protection order could not begin to work until I think right to counsel is imperative in this situation. and I tltink-l'm really surprised to hear some of the Scheduling is also a problem in the District of Women appear before the family courts in New YoiJ<. things that I've heard here today that it is perfectly all the abuser had been served with notice of it: Columbia, since "intrafamily motions are heard only without representation. The husband has a right to counsel right in behalf of somebody's "right to be free from abu~e" on Friday, and when holidays fail on that day, more because of the possibility of being held in contempt should to go out and violate somebody else's right to be heard.la, What happens sometimes, of course, you try and set a he subsequently yiolate the restraining order not to strike hearing the next day or very soon. Sometitnes you can't time can be lost or the calendar must be enlarged the subsequent Friday."148 his wife. If the wife is without counsel, there is no This discus:sion raises the question of what a get service on the other party. They might no longer be prosecutor in these cases. The State is not a party. Women tltere, and you can't very well require them to be there [in The New Hampshire Advisory Committee heard judge's respor,lsibility is when he or she believes a without representation get no relief at all. even though the court] until they can be st\rved with your order setting a from participants that court schedules also adversely laws are flexible, humane, and creative. It is not enough to statute is unc()nstitutional. Some judges appear to hearing.lu affect battered womei'~ in rural areas: put statutes on the books without making a remedy viable take the view that they may ignore any act they find by providing counsel,152 constitutionally suspect: In the District of Columbia a battered woman Dr. Sheila Stanley noted that part-time courts and lack of may wait "from three to 6 weeks or more"143 for a access to court services are particular problems in domes­ Aside from problems with accessibility and sched­ CoMMISSIONER-DESIGNATE BERRY. As I understand it, in civil protection order. According to As~istiUlt Cor­ tic v.iolence cases, in that most incidents occur during uling, which could be remedied by changes in State the Commonwealth of Pennsylvania when the legislature evemngs and weekends. Moreover, in rural areas, accessi­ passes a statute--and I'm quoting from what you said, poration Counsel Cary Pollak, the delay is caused, in statutes or local court practice, the chief drawback part, by problems with service of process: bility in distance is as much a problem as accessibility in Judge Shughart-that a court should not have any part in scheduling.lo to protection orders is that although they :u-e dealing with an act that it thinks is unconstitutional. Is that relatively effective in deterring further violenGc, correct? Am I misinterpreting what YOIl said? T~e mar~ ~als work from nine to five, Monday through Fnday. 1\'\is makes it difficult to get the in-hand personal Gloria Gilman, director of Philadelphia's Domes­ they cannot ensure that it will not occur. When JUDGE SHUGHART, No. you're not misinterpreting what I service rd4uired by the statute because a lot of these tic Abuse Clinic, testified about the inadequacies of asked if he found any difficultie~ in the use of said. defendants aren't working or work in very mobile jobs. If IC, Ibid. ... New Hampshire Report. p. 18. In Peggy McGnrry, testimony, Harrisburg Hearing. p. 23. 100 Gilman Testimony, Harrisburg Hearing. p. 233. 111 Lynn Gold-Bikin, ~timony, Harrisburg Hearing. p. 17. 141 Ibid., p. 122. , ICI Ibid., p. 30. 111 '" Norton Testimony, Harrisburg Hearing. p. 158. m Sheely Testimony, Harrisburg Hearing. p. 126. Fields Statement, Consultation, p.269. IC? Holtzman Testimony, Harrisburg Hearing. p. 255. 101 Ibid., p. 42. u, Shughart Testimony, Harrisburg Hearing. p. 123. If' District Lawyer, p. ~1. uo Ibid., p. 121. .~ ICI District Lawyer, p. 51 • " 52 53 ,

. , ,I', ~ i .. ~\ ------~------~Q

o

_-."_1" -',-.--".~.,"",,-.,--. .... -,.-.~---~------.-..-----.----...... ---.----~ •• ---.- _ .... -.".'-~~-.- _~ ..,.,"." ... """ ...CI,,_,_.~..,.~._,~~",",.,_._~~_, __ ---.'W"_.,._· __ ~~ ~,~ .. _~ __ .w~. __ ".~__ ~_ "-"'-'"~"'-"~''''_H~,".,_., ~'

\) saying is, "No, it is not okay tel violate that court order." a variety of activities and, therefore. did not take they have probaQle causc, to believe have violated 1SO exclusionary orders as a tool for protecting battered So we are taking these people off the street. them seriously enough: women, Phoenix Judge Irwin Cantor responded: protective orders, but who have left the scene before the officers have arrived. Sgt. Stanley Krammes, a Nonetheless, when the violator appears before a [I]f someone would say that they were going to take me I think it is practically worthless in those cases where the Pennsylvania State Police officer, testified that he judge in a hearing to determine whether he is in into court for contempt of court, that would sound like a man is so'-emotional, so wrought up that he's intent on had sought guidance from the judge in Perry contempt of court, usually no sanction is imposed pretty serious thing. doing something. ~e's so frustrated, a piec.e of paper beyond the time already spent jail awaiting the saying "You should not go near your spouse" IS not gomg County, who suggested that the officers should in The only problem is that, historically, the courts in to stop him, and. • .just like a broken record I tell the advise the victim to seek enforcement through the hearing. Thus, once again, the judge's message to Maricopa County deal With so many contempts. They deal lawyers, "you're better off advising your client to go to a district justice in such a situation: the defendant, as well as to police officers, prosecu­ with contempt for this, for that, for the other thing-that I motel or go to a friend, because this piece of paper is not tors, and society, is that spouse abuse is not to be am afraid what happens is that the judges look at a going to stop anyone who is determined to harm your The judge feels that if the situation-for example, if the taken seriously as a crime against society. contempt as "Oh, it's just another contempt and it's not as client."lS3 serious." husband would be prohibited from going back to the Judge John Dowling described the contempt property and he did appear back there and then left prior Phoenix attorney Thomas Novak agreed: hearing procedure as follows: . . .1 would see files where a person was found in to the arrival of the police, it is his suggestion that we contempt of court five, six, seven times and nothing was 'n,e preliminary injunction that we have is very, very withhold the service of the order. JUDGE DOWLING. I listen to it, and if he did violate it and done about it. lie would be found in contempt. The court eqective, I would say, in the great majority of the cases, in he's been in jail a week, we usually tell him not to do it would say, "I am entering a finding that you are in ,fwhich] the man who is normally going to get upset and is I realize the law itself reads that that is not necessary. again and let him go. You can't keep him in forever. If he contempt and you can purge yourself of contempt by not 'going to react by possibly some harassment, possibly some However, that's his feeling in the matter, that we don't says in the rare case, "I don't care what you sayj I'm going doing it agrun."185 abuse. serve the protection order; that the abused party seek the to go back into the house," then he goes back to jail. legal system, the districtjustice.J57 Usually, a few days in the lockup-they calm down. Judicial Attitudes Toward Spouse Okay. If it's a man who has got his mind bent on causing injuty.•. no, the court-ordered injunction is not going to Another way that judges dilute the effectiveness CoUNSEL. And so you would say that the sanction that is Abuse stop him. A temporary restraining order, a permanent of protective orders as a remedy for spouse abuse is usually imposed in that case would be the time already Several judges who testified freely expressed the restraining order, they are all just pieces of paper and a by failing to enforce them with meaningful sanc­ served? Is that an accurate summary of what you've said? opinion that domestic violence is not a major issue. piece of paper is not going to stop a man who is that hell­ In Pennsylvania, for example, a judicial panel from bent on causing someone some physical injury. But it is tions. Marjory Fields cites an example of a judge JUDGE DOWLING. Yes. They can do 6 months, but that going to be a big help in probably the vast majority of the who fmds the husband and wife both in contempt would be a rare choice.181 Cumbedand County was asked whether they cases.1U when the wife complains that the restraining order viewed the problem of spouse abuse as one of serious has been violated.158 She also reported that incarcer­ Bloomsburg, Pennsylvania, Special Mf,tSter Michael magnitude: On balance, most commentators agree that protec­ ation is rare when protective orders are violated in Irey also testified that on the three occasions he had tive orders, as "noncriminal remedies that are often JUDGE SHEEL'V. I do not. New York City: protective orders violated, "there w~re no sanctions effective in ending wife beating,"155 should be imposed other than the time spent in jail" before the JUDGE SHUGHART. Nor I. expanded and simplified. Their usefulness in many hearing. 162 In New York Family Court, judges presiding in civil, COMMISSIONER SALTZMAN. Justice Lyons? jurisdictions, however, is limited by the failure of family offense proceedings for injunctions, called orders of In Arizona, legal services attorney Lois Kermott judges to enforce the orders when they are violated. protection, hardly ever impose jail sentences for contempt testified that the deterrent value of the protective JUSTICE L'VONS. I haven't had any. I can't answer that. Phoenix attorney Thomas Novak explained the for violation of prior orders, although the complete case order is lessened by the contempt process that must effect that lack of enforcement has on protective history is always before the court. This is in spite of the JUDGE SHUGHART. If you haven't had any, it seems t() me i, option to sentence a man to serve this time at night and on be followed if the order is violated: that does answer it.teo orders: weekends so that he can keep his employment,lDD I find that the contempt procedures, especially for my A court order is a great thing, but if it's generally known Perhaps because judges only see an estimated 1 Many judges appear to be willing to enforce clients, a(e very slow; they are an additional expense, and percent of abuse cases,!8? they tend to underestimate that. • . .a person who violates this court order is not that judges rarely punish by jail sentence or a fine a person going to be punished, that cOUtt order is meaningle-ss. . • . protective orders by having violators arrested and found guilty of contempt. . • .183 the incidence of domestic violence in their jurisdic­ taken to jail to await contempt hearings. In Pennsyl­ tions. Police consultant Robert Frederick testified We need ahfmtion to the fact that, as you mentioned, vania, Sgt. Peter Brooks, of the Harrisburg Police [I]n the cases that I've handled, the judge has usually that if members of the jUdiciary did not see spouse people, because of the fact they are married, that there Department, testified that the Dauphin County found the respondent in contempt, but he can purge abuse as a significant problem, it was only because isn't an exception carved out-that there is no [innate] I himself of that contempt by not doing it anymorej so that privilege for a husb:tnd to beat a wife. courts were enforcing orders issued under the is a result of the contempt hearing: "Okay, you did a bad they had not looked: Protection From Abuse Act: act but don't do it anymore."114 -I We have to specifically set out and point out that this is a I I think IUly judge or district attorney who says that he crime, that if you do it you are going to be punished. 158 I doesn't hav~ this problem in his area probabiyhas his head [L]ast week I checked the docket and there were three or Attorney Thomas Novak agreed that the con­ firmly in the Il!lnd. It's there. lie may not hear about it at four violations of indirect criminal contempt because There are at least two ways in which judges can II' tempt process was not condUciVe to enforcement the country club: it's not talked about there. The wife who fellows felt that it was okay to violate that court order, because the courts held many contempt hearings fdtc' shows up at the country club with a big pair of sunglasses weaken the enfor\~ement of protective orders. First, and what the judges in Dauphin County are saying is, they may instruct polil,)e not to arrest people whom "No. No, it is not okay," And what the district justices are Uo Brooks Testimony, HarrlsburE Hearing, p. 48. 111 Novak Testimony, Phoenix Hearing. p. 242. lit Sheely, Shughart" and Meade Lyons Testimony, \ 1 ..1 Dowling Telltimony, Harrisb~rg Hearing. p. 71. Harrisburg 1" CantorTestimony,l'hoellix Hearh/g, pp. 120-21. m Stanley Krammes, testirq,my, Harrisburg Hearing, p. 132. ... Irey Testimony, Harrisburg Hearing. p. 136. Hearing, p. 118 . lit Thomas Novak, testimony, pp.233-34. 1 Phoenix Hearing. m Fields Statement, Consu(,atfon, p. 268. 'os Kermott Testimony, Phoenix Hearing, p. 164. "' Martin Statement, <':'onsuitation, p. 213. III Fields Statement, Consultation, p. 268. ... Ibid., p. 258. 1.. Ibid., p. 168. .. ,It Novak Testimony, Phoenix Hearing. pp. 238-39 • t ss 54 - • • 0 D

~, I f

hiding a black eye could tell him about it, but she doesn't I think there is a great lack of understanding of what abuse Many commentators argue that sexism underlies On the other hand, Arizona attorney Thomas brug about it. I haven't seen any research that does really is. . . .1 have been shocked by some of the the justice system's unsympathetic response to bat­ Novak, testified that he did not think judicial anything except support the thesis that there is a very comments that have been made to me in the retiring room tered women. Judge Lisa Richette, of the Court of indifference to battered women was necessarily sulbstantial problem of spouse abuse. lea of judges. One judge said to me, "You know, women like Common Pleas of Philadelphia, for example, sees related to the male domination of the American to be beaten. II And when I said "Your Honor, I don't thirlk I" Whether or not they underestimate the incidence that's funny," he said, "That'S what I hate about women. both wife battering and the response to it as based on system of ju,tlsprudence: of spouse abuse, judges tend to discount the serious­ They have no sense ofhumor."lU I a foundation of women's inequality in law and society: I think that there is kind of an idea that problems between ness of thosr. cases that do reach them. Raymond I. a man and a woman, you know, are their own prob­ Parnas, who studied the judicial response to family A district justice in Harrisburg testified to his I, [T]hroughout history women have always been subordi­ lems. . . .And I think it's just that there is some sort of an vit?lence, found such casles were "handled summarily belief that quite often victims of domestic violence idea that if you enjoy the marital relationship, that that who fLIed charges and then dropped theIl'l were nated to men and their brutalization is a direct byproduct and off-the-cuff."181l Cha.rles Schudson explained the of that subordination. In the master-slave relationship, the gives you the priVileges ..•to do anything that you want frustration he experienced as part ()f a special "playing games" with their spouses.173 He distin­ slave is totally vulnerable to this kind of brutalizlltion. with your respective spouse.••. You know, maybe it goes back to the cave times when they bopped their battt~red women's unit in the Milwaukee District guished between the type of victim who was sincere Now I'd like to talk about marriage, which has to be seen in that context. • . .It is important to note in this charming spouse on the head with the club and· [dragged] them Attorney's Office: and the type who was simply trying to get even with home as accepted conduct.nD h(,f boyfriend because he had taken out another ceremony, the query "Who gives this woman away to marriage?" The father turns her ow~r to the groom, a great [D]espite our intensive screening, we often went into court "chick."IT. Instead of approaching spouse abuse as a wide­ to find out that the judge had not yet been educated. And moment in our wedding ceremony. That really bespeuks a we have to say, "Look, your honor, understand now that It appears that some judges believe that battered cultural truth, because in the eyes of the law. a wife stilUlds spread social problem involving criminal conduct, when there is a battery case coming from our battered women are masochists or that they exaggerate the before her husband in the position of a daughter, a many judges view such cases as isolated incidents of women's department, it liS one issued only' after the most level of violence or the seriousness of their injuries child .... aberrant behavior more appropriately dealt with by certain consideration of all other possible efforts. Do not in order to punish philandering husbands or boy­ the family or by social service agencies than by the cheapen the issuance of charges by looking at that man It seems to me that it is this infantilization process that all court. In Pennsylvania, for example, a shelter em­ and saying, 'Oh, a family spat, um-hum, SSO' ."110 friends. More likely, however, such theories repre­ of us have to address. The American legal system is an sent attempts to explain away the fact that while anomaly in its stance toward women. It is underresponsive ployee testified that: Marjory Fields voiced similar concerns: victims of spouse abuse want protection, they do not to women as victims, yet it overreacts to women as aggressors. You have only to read many legal opinions, [A] woman was told in my presence by a district justice Jfudges sitting in crimil1lal courts display the same preju­ necessarily want to end their relationships with their e\,en current ones, to perceive the negative energy that that "We don't wash our dirty linen in public." dices as police and prosecutors, even though they see abusers-·a phenomenon that disturbs and perplexes judges discharge against some women, using biblical battered wives who bl!.ve refused to be discouraged and many of the people to whom battered women must terminology and ail the rest.118 These are strong feelings, very often expressed, about the have cooperated wi~h I,he prosecution. Statistics. • .show turn for help. place of domestic violence in the family; it stays there, that there are few prosecutions reSUlting from thousands Leslie Nixon agreed: belongs there. no of requests for warranlts. This may indicate that only the Because judges are removed in time and distance JIlost serious cases, in Which the victim believes that jail is from the actual incidents of violence, they may tend I think the root of the problem, wife beating, womlln lin a sense, suc~ judges a.re merely echoing the the only way to stop her husband's attacks and the to be emotionally removed as well. Leslie Nixon, beating, is based in sexist attitudes about relationships teaclhings of their culture. Judges, however, are prosecutor believes he has sufficient evidence for convic­ director of the law project for battered women of between men and women, about the nature of marriage, tion, go to trial. Yet the judges treat these cases as though responsible for enforcing the laws that make it a Southern Arizona Legal Aid, addressed judges' about the function of a woman within a relationship. The crime to beat one's spouse. Instead, many judges there had been no attempts to screen them out on the old concept of woman as property. I think We like to think police and prosecutor level. They tell Women to forget the seeming indifference toward abused women by that our attitudes are sophisticated and that We are more become confused about whether their role is to injuries and reconcile with their husbands. Marriage examining the problem "from the point of view of modem and egalitarian, but when it comes to this area I uphold the law or to uphold the integrity of the counseling is ordered 'without consideration of the serious­ the judge .as a human being": think we have a long ways to go before we root that out; family unit. When faced with abuse cases, judges ness of the assault, or women are told to get a divorce and and that goes for not only the man who is a laborer down the case is dismissed.l1'1 have dismissed complaints "solely on the irrelevant in the fields, that goes for doctors thnt live in big, basis that a divorce action was pending."181 They [H]e is clonfrontCd with the situation in which the expensive homes.t71 Several explanations are given for the apparent contempt hearing takes place often weeks after the have refused to grant protection orders evicting judicial insensitivity to the problem of spouse abuse, violation has occurred, after the beating has been admit/is­ Lynn Gold-Bikin testified that her committee is abusers from their homes on the basis that because including lack of awareness, sexism, cultural bias, tered, aftet' the wounds have healed. The woman is sitting attempting to hold programs to educate the judicia­ the victims had pictures of their bruises, they were and conflicts betwelen the different roles judges must there dressed nicely, looking fine and healthy, maybe. ry in various counties: "obviously preparing for litigation. "in play. Bruises don't show.•.• The immediacy of it, the serious­ Some judges, believing that diVorce will resolve In Pennsylvanta"a legal services attorney testified ness of it does not impress itself upon them. In fact, I have [W)e find that one of the problems in the enforcement of what they see as a "family" problem, "routinely heard judges say, "This is not my role. My role is as a the [Protection From Abuse] act is the innate prejudice refer women to divorce court and dismiss the that one of the chief problems she encountered in judge. It is the police's role to iutervene in these situations that is brought by the bench to their role as judges-the criminal charges without inquiry into the allegations representing battered women was the need for and protect women ana make arrests. It's not my role attitudes that women like to be beaten, the attitudes that "education of the judiciary": weeks later to suddenly throw the guy in the clink."l1l we will not put a man out of his house for this because it or circumstances of the case." lS3 Marjory Fields goes on in every family.ns described one judge's failure to understand the true ..I Frederick Testimony, Harrisburg Hearing. p. 220. IT. Pinamonti Testimony, Harrisburg Hearing, p. 7S. I ... Pamas, "Prosecutorial a.nd Judicial Handling of Family m Joseph Pinamonti, District Justice, Harrisburg, Pa., interview, n. Lisa Richette, statl:ment, Consultation, pp. 129-30. 110 Farber Testimony, Harrisbllrg Hearing. p.25. Vr,olence," pp. 747-48. June 2, 1980. 111 , 111 Nixon Testimony, Phoenix Htaring, p. 244. Fields Statement, Consultation, p.253. / ,,~ Schudson Statement, Consultation, pp. 93-94. m Nixon Testimony, Phoenix Hearing. pp. 243-44. m Hart Testimony, Harrisburg Hearing, p. 11. In Fields Statement, Consultation, pp. 2S6-S7. ITa Gold-Bilcin Testimony, Harrisburg llearing, p. W. ITt Fields Statement, Consultation, p. 2S8. IH Gold-Bikin Testimony, Harrisburg Hearing, pp. 10-11. Novak Testimony, Phoenix Htaring, p.244. .1. 57 56 ,

:< I 1

nature of spouse abuse and his own role in the accused of putting undue pressure on abused Women horrible ones, I am sure, have done nil the things that they courts this way: "I realize I have painted a bleak have been accused of doing, I will assure you that many criminal justice system: to settle their cases out of court. Mr. Parnas picture for the battered woman, but I've tried to observed abuse cases in Detroit and found that: judges are most objective and sympathetic. Bt':ing judges of credibility, we do not alwaya discount what the wife give you the practical realities which the ba.ttered In a recent case in Brooklyn a judge told the defendant says.183 woman faces in our court system."19? that if he did not fight the divorce action he would If the prosecution is pursued, a judge may attempt to consider dismissing the indictment for attempted murder. "string the case out" long enough for the parties to resolve As the highest officers of the court, judges have a Experts agt~e that changing judicial attitudes and This discussion took place after t~e prosecutor requested the problem and then dismiss the case. Assuming this does responsibility to provide leadership in solv~ng the that bail be revoked because the defendant was telling his not occur and a finding of gUilt ensues, Detroit judg­ practices in abuse cases is crucial. The task is all the problem of spouse abuse. Instead, judges who are wife's friends that he was going to kill her. Even though es ...in most cases, place the defendant on probation. liD more arduous because of the role played by judges indifferent and unwilling to impose any meaningful the victim was in hiding with her eight-month-old child, as the highest officers of the court: sanctions on abusive spouses convey a tnessage to these threats made her fearful. She had been beaten five Maryanne T. Rebstock, a trial commssioner in the times during her pregnancy and had been stabbed four private criminal complaints division of the Philadel­ Prosecutors are prohibited from appealing dismissals or both victims and their 21busers that the courts will times during the attack that was the basis of the indict­ phia Municipal Court, is responsible for trying to dispositions [that] are technically on the merits. Without not stop the violence. Moreover, judges influence ment. Her husband's cOlltinued pursuit of her finally led resolve disputes before they go to Qourt. In an appellate review, judicial discretion is virtually unfettered. police, prosecutors, and other members oflhejustice tho prosecutor to take her and her child into protective interview with Commission staff, she described her In New York, even the passage of strong new laws system in formulating their own attitudes and poli­ custody in a secured hotel used for endangered material accompanied by much publicity did not quickly change cies for handling spous,e abuse cases. By and large, witnesses.lu personal motivation in spouse abuse cases as helping judicial attitudes. Negotiation is the only tool and its to save relationships, particularly when there ate success depends completely upon the good will and judges have missed the opportunity to play a At the same time, many judges are reluctant to children involved. loo openmindedness of the judges. Decisions are not written constructive role in coordinating the activities of the enforce laws against spouse abuse because they see While helping couples learn to resolve their when judges routinely dismiss wife beating charges. Only various components of the justice system so that it a campaign of citizen court watching can complete the their role ir,\ dealing with "family matters" as one of clifferences without violence and thereby strength­ can respond effectively to the needs of battered data to prove judicial practices and note the kind of women. preserving the family unit. Edwin Frownfelter, a ening 'their familial bond is a worthy goal, it should prejudiced remarks often heard from judges. Attempts to legal serviCi.~s attorney in rural Pennsylvania, de­ not override battered women's needs for protection. change judicial practices will indeed prove the most scribed this attitude as reluctance "to disturb a living Witnesses expressed strong feelings against using difficult. Ie. Findings relationship." 185 preservation of the family as Ii basis for public policy Finding 5.1: Although civil and criminal remedies to At the C0n11ecticut Advisory Committee hearing, In the meantime, those who represent battered on wife battering. Leslie Nixon, for example, testi­ spouse abuse are most effective when used in two judges w(~re asked if they thought the goal of women must take judicial attitudes into account fied: conjunction with one another, there is confusion keeping families intact was a legitimate role for the when planning their case strategies. In Arizona, for between these types of remedies, which undermines court. One judge responded as follows: [S]omething that cannot be emphasized too much is that example, imprisonment is mandatory for defendants we are talking about criminal conduct here•..• We are convicted of all criminal offenses except nonviolent enforcement of both. I think it is. I think it should be. It's a goal. It's part of the talking about conduct that has been decided by the first offenses. 195 Prosecutor Stephen Neeley testified Finding 5.2: Most cases of spouse abuse new:r reach legislature of Arizona to be unacceptable conduct, to be oath that every lawyer takes when he is admitted to the that ~is office makes a point of ensuring that abuse courts of general jurisdiction. Entry-level courts conduct that is to be sanctioned; and there is no exception bar. In any divorce action he is involved in, he is going to cases are treated as violent crimes under this statute: generally resolve those cases police or prosecutors do his best to effect a reconciliation. As you know, the made for people who are married, people who live together, or people who were once married, even though have not diverted previously. divorce statutes have built-in provisions with regard to t think that our problem is in many instances the fact that Finding 5.3: There are advantages and disadvantages effect reconciliation if possible because it's believed, and I that is the way it is treated, as if there is an eltception, as if this is not criminal conduct.1II the courts will not cooperate. If we have a serious enough inherent in both civil and criminal remedies to think rightly so, in our State that the family life is the best assault, for example, and there has been a threat of institution for a State. liS spouse abuse, but some judges prefer one type of I believe that the goal of social policy where battered imminent death, we can take the judgment out of the remedy and us~ it exclusively. women are concerned should be the protection and safety court's hands and cause it to be' a mandatory sentence The other judge agreed, reiterating, "It's built into 18s o{ the women and children, and that it should be up to the situation. Finding 5.4: When abusers are convicted, judges our law to effect reconciliation if at all possible."18? individual women involved to make a determination as to seldom impose sanctions commensurate with the The Advisory Coti:;;.\ittee saw the judges' testimony whether they want to save the family.1n Whatever the underlying cause of jUdicial neglect seriousne!is of the offenses or comparable with as suggesting "that they believe the goal of 'keeping of battered women·-whether it is cultural myopia, sanctions for similar violence against strangers. the family together' overrides the criminal charges Judge Juanita Kidd Stout, of ~he Court of Com­ sexism, blaming the victim, or simple ignorance­ Finding 5.5: Although civil orders prohibiting abu­ lodged against persons referred to the family rela­ mon Pleas of Philadelphia, defended the judiciary the fact remains that judges have the power to sive conduct or excluding abusive spl)uses from their tions division" and as implying "that there is no and assured the Commission that not all judges fail decide the ultimate outcome of the most serious families' homes fill la distinct need not met by incompatibility between f~ily unity, the interest of to understand or address the plight of abused cases of spouse abuse. If judges misapprehend the criminal remedies, s\ll::h orders are not available to the woman, and the execution of justice."te8 women: true nature of domestic violence, they will only many battered wom~n. Perhaps because they think they must try to save exacerbate the problem. The only thing I have to say about judg~s is that we ran,ge Finding 5.6: When abusers violate protection orders, the family at all costs, many judges have been all the way from horrible to excellent. '\Vbile some of the County Attorney Ray Cloutier, in a statement manY judges fail to impose meaningful sanctions. ." Ibid., p. 259. before a New Hampshire Advisory Committee Finding 5.7: Many judges approach abuse cases as 1M Maryanne T. Rebstock, Philadelphia, Pa., interview, Apr. 18, IN Frownfelter Testimony, Harrisburg Hearing, p. 198. consultation, summed up his views on the role of the isolated incidents of aberrant behavior between ... Connecticut Report, p. 14. 1980 • m Ibid. III Nixon Testimony, Phoenix Hearing, p. 235. lt3 Junnltll Kidd Stout, sletement, Consultation. p. 32. II' Neel!!y Testimony, PhGllnix Hearing. p. 221. I ... Ibid. m Ibid., p. 248. ... Parnas, "Prosccutorial and Judicial liandling of Fllmily m Fields Stlltement, Consultatloll, pp., :)59-60. liT Nelli HampsMre Report. p. 18 • Violence," pp. 749. Its Ariz, Rev. Stat. §§13-604(g), 13-1204 (1978). ,

S8 S9

t' -, « ". I ,___ ~. __ .. ,____ j:_-J,--....~ __ .. "

, , co~isenting adults rather than as examples 'Of a Chapter 6 widespread societal problem.

Diversion. Programs ;0 r

With increasing attention being focused on domes- arbitration, or some other process to settle the . <::: tic violence, more pressure has been put on law problem. Diversion has also been defmed to include enforcement agencies and the judicial system to probationary programs in which an assailant will be recognize spouse abuse as criminal conduct. At the tried and found guilty, but, rather than sentenced, same time, however, alternatives to the criminal sent to a counseling or therapy program. If the justice process have been sought. One major alterna­ defendant completes the program successfully, his tive tbat has rapidly developed is the use of record is expunged (that is, cle~ed of any reference diversion programs. to the act or subsequent proceedlings), and no further In its broadest sense, diversion is the process by action is taken against him. which complaints of criminal behavior are chan­ For purposes of this report, diversion programs neled away from the formal criminal process with include pre- and post-trial programs such as media­ no finding made of guilt or innocence and no o punishment imposed for the alleged criminal behav­ tion, arbitration, mandatory counseling as a condi­ ior. Commonly addressing "victimless" crimes, the tion of probation, and hearing officer programs. tirst Federal and State diversion programs applied to The formalization of diversion programs, in gen­ narcotics addicts. 1 The report of the correction task eral, is relatively recent, dating back to a 1967 force of the National Commission on Criminal recommendation for their use by the President's Justice Standards and Goals defmes diversion as: Commission on Law Enforcement and the Adminis­ tratj~n of Justice.3 Soon ther,eafter, model programs, formally acknowledged efforts to utilize alternatives to the many' 'funded by the U.S. Departme~tt of Labor, justice system. To qualify as diversion such efforts must be undertaken prior to adjudication and a(t.er a legally were established in cities around the country. Crite­ prescribed action has occurred. Diversion implies halting ria to determine who was eligible for diversion from or suspending formal criminal proceedings against a the formal criminal process were established for person who has violated a s~tute, in favor of procellsing each program. Cotrmon to the early programs was through a noncriminal dispo';ltion. 3 the limitation that' ~o one accused of a crime of Diversion prpgrams take many Jorms. Typically, violence was eligible to participate.' Many State the programs s~ek to screen cut the less serious cases statutes that authorize the use of diversion programs and send the parties to counseling, mediation, contain a comparable provision.

1 "Pretrial Diversion from the Criminal Process,"Ya/e Law 3 President's Commission on Law Enforcement and Administra­ Journal. vol. 83 (1974), pp. 827, 830 n. 20. tion of Justice, The Challenge o/Crime in a Free Suciety (1967), p. • Anna T. Laszlo and Thomas McKean, statement, Battered 133. Wo)~en: Issues 0/ Public Po/icy, a consultation sponsored by the , • Ibid., p. 832. U.S. Commission on Civil Rights, Washington, O.C., Jan. 30-31, 1978 (hereafter cited as .Consultation), p. 330., 60 61

\' - ., , " . J' \ .// 7 I h Q,,-;' .. ""~'._ ~.~".~.,,~.~~ ____ ~.~~ __.. ~h._~.~_~~ __ 7_'''_~_''_'~' __ ~ ___'-'_''''--''''''''''''-_'~_'_'~~'_'~''''---'~''''''''_~_~~''_'_~ __...,..~.,...... ~.,... .. __ .-...... - __ ·_..,_... ~-..-O_-...~·~.~_"_~.~' __ '- -"'"~-'-'--_'_''''''' ...... __ , , ,j:' I '" ¥

Connecticut's pretrial program, for example, is dependent nature of most abused women in a spousal cases which are appropriate for p.'osecution based on One informal process used to resolve domestic limited to Mpersons accused of a crime, not of a relationship, it is relatively easy to secure the severity of the injuries and prior history. Family violence disputes is through "hearing officer programs" or. serious nature";11 California limits participation to consent of the defendant to participate in a diversion is deemed minor without regard to evidencebefote the "family divisions" of prosecutors' offices. Although program and to minimize a previous history prosecutor. Even when community dispute centers return the system provides a forum for victims of domestic those accused of crimes that have been "charged as, of cases to the prosecutor after having made decisions that or reduced to, a misdemeanor";8 and Ohio permits violence that may affect his acceptance into the there was abuse, prosecutors refuse to accept these cases violence, the climate of s!lch a hearing may not be participation by dangerous offenders who "did not program. The decision to divert rather than prose­ back for trial.15 conducive to the victim's speaking freely about the cause, threaten, or intend serious physical harm to cute under a statute like California's, however, has history of her abuse and making an informed Aiong with criticism have also come statements of any person."7 serious implications for the victim. The lack of an decision about the avenues available to her, free of support for diversion programs. Often, however, The California statute, "Special Proceeding in admission of guilt from the abuser, coupled with the fear and coercion from the defendant and/or hearing these grow out of a frustration that diversion 22 Cases Involving Domestic Violence," is among the requirement that "demonstrable motivation and oth­ officer. programs are all that is available to a battered most recent legislative enactments and deals only er mitigating factors" be included in the report to The Los Angeles City Attorney's Office has with diversion of domestic violence cases. As is the court, not only erases any stigma that would woman: instituted a domestic violence program that has, as typical of most diversion statutes, the California attach in the formal criminal process, but also raises one of its components, a preexisting "office hearing Unlike many of the people who champion diversion for program." At an office hearing, a hearing officer statute requires no admission of guilt from the the issues of provocation and the victim's role in her wife abuse cases, we are not suggesting that it is a good lawyer listens to both sides of the story. The victim defendant.s In determining the d.efendant's eligibility own abuse. idea because the victims want nothing more than to save speaks first; then the defendant, after being informed for diversion, considerations such as the nature and According to Marjory Fields, a legal services the marriage andlor help their attackers but because the attorney who has been involved in this area for more criminal justice system itself is unlikely to provide any of his constitutional rights, can give his side of the extent of the injury inflicted on the victim, prior 11 help beyond confming a few of the most violent men. story.:!s A certain amount of mediation takes place at incidents of domestic violence, and any factors that than 10 years, the expression from authorities of a strong and strident disapproval of violence is crucial these hearings.:!· The guidelines set out by the Los would adversely influence the likelihood of success­ Because of the criminal justice system's failure to Angeles City Attorney's Office state that the pri­ ful 9c;uppletion of the program are taken into to battered women, and the overuse of diversion deal effectively with domestic violence cases, advo­ instead of vigorous prosecution in cases involving mary purpQse of a hearing in a domestic violence account. II Additionally, the defendant must have had cates, battered women, and members of the criminal case "is totiSSist the determination whether there is a no conviction for an offense involving violence for 7 domestic violence sends a clear message to an justice system have come to rely on other .remedies. abused woman: reasonable likelihood a criminal prosecution will years before the current offense, never had parole or These programs playa central role in the problems result in conviction.":!11 The city attorney's office probation revoked, and not have been diverted to they [prosecutors] are denying her lr.~ protection she of a battered woman and an evaluation of their suggests that reviewing attorneys recommenCt~'a an)'program for the past 5 years. IO success or failure is crucial to an understanding of needs. She is being taught that there is no one more hearing when: If an abuser meets all of the criteria, the probation powerful than her husband who either can or will compel their importance as a remedy for victims of domestic department prepares a report of its findings and him to stop beating her. In cases of repeated wife beating, violence. criminal prosecution restores some of the power balance 1. the victim sustained no visible or internal injuries recommendations to the court, taking into account that the husband has destroyed by his violence.H such factors as community and family ties, prior (mere scratches or redness of skin are not considered Informal Hearings "visible" injuries); incidents of violence, demonstrable motivation, and The use of diversion programs to handle domestic Cases of domestic violence can be diverted at av,y other mitigating factors todetermine whether the complaints outside of the formal criminal process time in the criminal system; most often they are abuser would benefit from education,treatment, or has not come about without criticism that crimes of diverted prior to prosecution.l1 Author Jennifer 2. the victim sustained minor injuries and continues to rehabititation.ll The court then holds a hearing, violence are not appropriate divertible offenses. Baker Fleming points out that the earliest form of reside with the suspect; considering the report and any other relevant Some experts in the area are wary of a system that diversion is the system that allows a victim to file a information, and eitheJr diverts the case or aUows it attaches little significance to criminal activity that private complaint against her assailant after the 3. the victim expresses a desire to "drop charges" even to proceed through the formal process.~:! If the occurs in a relationship between two people, &pares though the suspect's conduct was aggravated; or prosecutor decides not to initiate prosecution. III In I defendant pe:rforms satisfactorily during the period the abuser the stamp of "wrongness" that would this situation the parties are generally encouraged to I accompany a successful prosecution for his acts, and i of the diversion program, the criminal charges are drop the charges or resolve them infofm:ally.10 If the 4. the attorney evaluating the case concludes there is a dismissed, the arrest is deemed never to have often views the victim as a party to her own abuse. c6mplainant is adamant, formal prosecution may substantial likelihood a necessary witness will not cooper­ 28 occur~d, and no information obtained during the The effectiveness of such programs has also been result.:!o Ms. Fleming points out that this procedure ate with the prosecution. I> prediversion process or the' program itse!f is admissi­ questioned. Marjory Fields criticized diversion pro­ was developed to eliminate minor cases from the ble in any action or proceeding.13 grams: prosecutors' caseloads and is a common technique The hearing officers, who receive special training The battered woman's role under this statute, as in used in many jurisdictions.lIl in domestic violence, interview the victim and Diversion to community dispute centers and social work most others, is almost nonexistent. Furthermore, services has become an end for prosecutors. The gonl is .. Del Martin, Battered Wives (California: Gl!de Publications, given the coercive nature of most abusers and the .1 Ibid" pp. 30-31. reducing case loads rather than careful selection of those II Jennifer Baker Fleming, Stopping Wife Abuse (New Yor~: 1976), pp. 111-12. U Susan Kaplan, Interview in Los Angeles, Calif., July 16, 1980 Anchor Press, 1979), p. 203. • Conn. Oen. Stat. §S4-76p (West Supp. 1980). II Id" §looo.7(b). (hereafter cited as Kaplan Interview). .t Ibid. • Cal. Penal Code §1000.6(a) (West Supp. 1981). II ,! Id., §1000.8(a), •• Ibid. 1 Ohio Rev. Code Ann. §293S.36(A)(2)(a) (Supp. 1980) II Ibid. II Id.• §§1000.9-1ooo.11. \ I IS Los Angeles, City Att9C!ley, Domestic Violence Program Mallu­ • Cal. Penal Code §l000.6(c) (West Supp. 1981). II Ibid. U Marjory Fields, statement, Consultation. p. 252. of. 1980 (2nd 00.). p. 20, • Id., § looo.8(a). .~ Ibid. •• Ibid. 10 ld., §looo.6(a)(1){2)(3). I. Ibid . .. 63 62 "I' , I'

-'~'~-'-'-"'--~'-"-".--, .. --~ .. '" 11 -.: ____ <~-";'..., .....' ... -~--...... ~~--. -'~""""'Ii;---~':-. ----::--.,J'·-'T-""~---~-~O...... ----~ "n'-". - """'~,-~> ,~" ---~....-..,-.~"---.----~-- ."--~,.-,------'--- -~------o \'.! ------~ ----~------

" .... j" •• ----~" ... -.~-~ •• --••• -~.-.-,...~~---"---~-~ •• ---"--- ,. i ~-" .~ ...... f/., \ respondent, explain the court process, and record During the sessions with the family relations officer the I think we need to talk about prosecution and talk about second time, there was a great deal of talk; but he finally batterers because they often require that the woman the statements of both.27 Af,er the hearing, the \, share the blame for her spouse's attack on her.s7 A using the legal syst(~m to mfOOmize, fust of all, the idea, the ended up suggesting that I drop charges the second time, concept, the belief nhat bel',ting people is wrong even if it is hearing officer may choose one of four dispositilons: because, obviously, this was not helping the situation at all; , legal services attorney at the Harrisburg hearing your wife. That is Mt right and it is not sanctioned in this 1. He or she C~)1 resolve the case if no further and I WC1S not accomplishing anything by pursuing the ! explained her objections to the process: charges. So I did sign a paper saying that I would drop the country, in this hisf;orical moment, and I think we need to action is required: clearly state that, that it is not sanctioned. That is not the charges.as 2. If the complainant and respondent do not I think that a court has a discretion to order counseling, but I think that mandatory counseling is not helpful. I attitude we frequently come across.40 appear, or if one fails to appear, the hearing is Another worn-an expressed her frustration at the think that until the person, the batterer, recognizes very In Santa Barbara, California, the district attor­ reset. hearing officer's lack of understanding: seriously the nature of his acts and any very strong 3. The hearing officer can continue the case for righteous feelings about the wrong of what he's done, ney's office establlished a l)retrial diversion program counseling doesn't do any good. I think that it is our in 1978, the fatttily violell1ce program, which is a resolution', the victim and/or respondent is. then . The first time [he was arrested] we went through inter­ experience that a batterer, when he is directed to go to component of the community action commission. referred to social service agency, and the heanng views with the Family Relations. The second time we did counseling, not having recognized the very serious prob­ officer checks the progress of the counseling. also and I had to explain to the family relations officer lem that he has, treats it very manipUlatively and, there­ The program rec:eived a $249,167 grant from the 4. If the facts satisfy the crime charge standards that' I was afraid to say much of anything in front of this fore, just has been able to slide around the law and the Law Enforcemellt Assistance Administration in ,r and the victim is cooperative, the hearing officer man' and the family relations officer said, "I can't woman that he has abused. 1978 to develop n model for different responses to 28 und~rstand why anybody would be afraid of a man she domestic violence. The pl'ogram consisted of three will rebommend that a complaint be fIled. It is one more way for him to take control over her by had been living with all this time." And obviously, he did mlijor component": law e/lforcement and legal ser­ The family relations division of the Connecticut not understand my fear. 38 going to a session and doing notbing with that session. It Court of Common Pleas counsels individuals with creates hopes for her that he'll change and it just doesn't vices, family servIces, an~1 public information and u 1 domestic problems and investigates misdemeanor Although it is understandable that prosecutors, happen. training.· l 2D given their heavy caseloads, will attempt to set An objective of the pr()gram was to have some charges involving family members. In 1977, the Many advocates criticize the use of mandatory i priorities for those cases they choose to prosecute, in effect on the handlnng of domestic violence cases by family relations division received 8,412 cases from counseling in battering situadons: i instances where physical injury has occurred, "hear­ the judicial system and law enforcement. A special , I the court. Of these, 5,733 were sent back to the court I for disposition, and more than half were not prose­ ing examiner" programs may not be the best alterna­ From Diy perspectfve, the primary purpose of counseling unit was established in the Santa Barbara County cuted.SO The remaining 2,679 cases were resolved tive. is to stop the violence and, unless the counselor keys into District Attorney's Office,o and it produced a model the batt~rer's problem with violence instead of the nature 31 tor more aggressivl~ pros(~ution of domestic vio­ administratively-either conciliated. or dropped. of the marital relationship, thel'e will be no change, so that The family division's stated goal is: "if at all possible, lence cases and a n~odel to offer counseling as an a at some point when we havle educated the counseling, 43 Mandatory Counseling and Therapy therapeutic community outsid!, of the shelter movement to alternative to prosecntion. In cases involving mini­ it is our primary f'ction to save families. . . .Our Diversion programs that require the defendant to office does [everything possible] to keep the family the need for that kind of very directive, clear, in my mal violence, the oiiende.' was offered a "preplea receive counseling or some other form of therapy perspective, righteous counseling about what appropriate together." This goal, however, neither addresses the diversion" option-lif the offender completed a usually place the defendant under the authority of an behavior is and how one controls one's violence, then counseling ses..'1ion and wellt 1 year without further issue of the harm done to children who grow up in a agency in the criminal justice system, under which perhaps we will see some efiectiveness in the counseling violent family nor distinguishes between preserving forum. At this point I see there is almostnone.1t police contact, the case would be dropped by the violation of the diversion agreement can result in district attorney.4. The d!eputy district attorney the family unit with the abusive spouseycrsus some criminal action. This form of diversion can be supporting a nonviolent and viable family.32" Pretrial diversion programs have been criticized attempted to convinc\~ the victim of the desirability imposed before or after trial. because they allow an abuser to avoid criminal The family relations officers interview both par­ of diversion by saying: "[file will have no record, In a pretriw. diversion program, the prosecutor action for his behavior. These critics believe that ties when a complaint is referred from the courts and receive no jail time, won't lose his job. suffer no will generally agree to defer prosecution, arid if the diversion is only appropriate after a batterer has make a recommendation back to the court. The most public humiliation. Wc~'ll jUlit get him some counsel­ defendant successfully completes a course of thera­ been convicted: u , common recommendation is not to prosecute the ing, and isn't that desirable. '45 py, charges will be dropped. In a post-trial diversion The pretrial diversion option, however, did not Ii case, and the court accepts the recommendation in program, the counseling is a condition of probation, We are talking about, one, a legal problem that should In almost all cases.33 The family relations counselor have legal action and legal remedies such as prosecution. I achieve the expected results due, in part, to the ,Ii and if the defendant does not complete the program, ", don't think we should treat it, as you were saying earlier, compulsory nature of the counseling. Therapy or II usually holds a joint interview that lasts 15 to 30 he can be jailed. if any differently than somebody who robs a bank because l ~ counselins is rarely productive unless the individual " minutes, but may take as long as an hour.34 Accord­ Diversion programs based on some kind of man­ the bank robber happens to have this kind of pattern in voluntarily commits himself to attempting to change ing to women who have been through such an datory counseling are cummtly popular. As with their background. We are going to take them OVer and I) his behavior as an evaluation of the counseling ,1 interview, this procedure is severely limiting from a other diversion programs, counseling programs, give them 2 weeks of counseling and everything is going I to be just fme. component indicated: victim's perspective. One woman who was persuad­ especially pretrial ones, have come under attack : ed to drop charges said: from advocates working with battered women and ., Fields Statement, Consultation, p. 251. .1 Santa Barbara, Calif., Conllmunity Action Commission, grant II Barbara Hart, testimony, Hearing Before the u.s. Commission application, Summary. p. 1. 21 Ibid., pp. 5-6. so Ibid. 21 Ibid., pp. 8-9. on Civil Rights. Harrisburg. Pennsylwmla. June 17-18, 1980 .. Richard A. Bcrk, Sarah F. Ber,k, and Donileen R. Loseke, •• Ibid. (hereafter cited as HarrisbUrg Hearing), p. 9. "Preliminary Evaluation of the Santa Barbara County Family 2t Connecticut AdvisorY Committee to the U.S. Commission on •• Ibid. It Ibid., p. 13. Violence Program," n.d., p. 5. Civil Rights, Battered Women in Hartford. Connecticut (April •• Ibid. 1979) (hereafter cited as Connecticut Report). p. 11. .. Ellen Lyon, testimony, Hearing Before the u.s. Commission on •• Ibid., p. 6. , •• Ibid. •• Ibid . Civil Rights. Phoenix, Arizona, Feb. 12-13, 1980 (hereafter cited as •• Ibid. 11 Ibid. Phoenix Hearing), p.23. .. Ibid., p. 12.

64 6S ,

. .. . \ - " , ~----~~~----~-----~----~------"------'------,..".----

"

A small number of offenders and victims participated in counseling and there is no evidence of benefits. Perhaps prosecution, diversion, and/or treatment for the Upon receIvmg the report, the judge decides ") the most important flaw was the naive notion that defendant. 52 If the victim agrees to prosecute in a fails to complete a counseling program successfully, . offenders would sUllberely participate after being referred felony case, the defendant may ask at the prelimt­ whether or not to divert the case. If the defendant is the case is prosecuted.68 on a mandatory basis. In fact, most seemed to "stone nary hearing to be allowed to plead gUilty and be diverted, he is referred to a probation officer and to Each morning, personnel of the postarrest compo­ wall.:' Th~ counseling component was also undermined by a treatment program. A biannual progress report is a bell~f WIdely held by offenders and their attorneys that placed on probation with counseling. If the case is a nent go to the Dade County jail to interview required. 59 The diversion program requires a mini­ defendants charged with a domestic violence of­ local Judges would hand down relatively light sanctions first offense, this is usually permitted. 53 J; mum stay of 6 months and a maximum stay of 2 69 f~r d0!Dest!c violence a~d that therefore (rather than seek Misdemeanor arrest reports are received daily at ' fense. All pertinent arrest affidavits are reviewed, ! dIVerSIOn Into counselmg), it was better to take the years. eo At the end of 6 months, an evaluation is the district attorney's office from the San Francisco and defendants are interviewed within 24 hours of criminal justice process to its natural conclusion.46 made by the supervising officer followed by a Police Department's records division. For those the arrest. 70 Defendants are accompanied to bond recommendation to continue treatment or dismiss heatings and recommended for release if they agree One of the counseling psychologists added: cases of domestic violence involving an offender's the case.~1 to participate in the domestic intervention pro­ fourth offense, criminal charges will be filed. The Men are learning that they won't get a stiff sentence. I One of the Nation's larger diversion programs is gram.n No one is released without the approval of defendant in these cases normally pleads guilty and rrequently get the statement that they come (to counsel­ located in Miami, Florida. Funded by the Law the victim. 72 receives probation and treatment.s, Fol' other misde­ ~ng) becau~e they didn't want to spend the money to fight Enforcement Assistance Administration, this domes­ Arraignment takes place within 10 days, at which It, but that If they fight it they would probably get a lO-day meanors, the district attorney's decision to charge is tic intervention program is located in the Dade time diversion of the charges occurs if the victim suspend7d sentence. Further, since one of the goals of the based on the following considerations: ~.A. umt was to show the community that there would be County State's Attorney's Office. The program is approves of the diversion and if the defendant agrees stiff sentences for violence within the family, the diversion • Whether the violence is likely to reoccur. divided into the prearrest prevention program (de­ to seek help, has no severe mental illness or history pr~gram was actually hurting this program goal. In the • The chances of reconciliation. signed to provide immediate crisis intervention of long-term psychiatric treatment, i~ not "severely spnng months, the D.A. unit also found that some men • Who is at fault. counseling and referral to appropriate treatment)62 violent in nature"-even if a prior record exists­ would not accept the diversion program when offered to • Whether the situation is aggravated to the them. They would rather take their chances by going and the postarrest component (designed to utilize and has not caused the victim to suffer a permanent point where criminal sanctions should be applied. disability or critical injury.73 through the system, hoping fota light sentence.47 the justice system to bring the violence under • . Whether better alternatives than prosecution control so that family therapy and/or counseling can During the first three quarters of 1980, 178 cases eXIst. Since the inception of the district attorney's unit, be of benefit to the defendant and the victim).63 were referred to the postarrest unit and 142 were 74 the program model for treatment has changed. The • Information on the incident report, victim and In the prearrest component, referrals are most accepted in!o the program. Statistical data on these pre!rial diversion option is not now as readily defendant's criminal record, rap sheet, statements often made by the police, but are also made through three quarters ~re shown in table 6.1. Demographic a.vadable, an~ the emphasis is now on more aggres­ by the victim and witnesses. various community agencies.6' The emphasis of the data on the client population for the third quarter of SIve prosecutIOn with the imposition of counseling as • The wishes of the victim. as 1980 are shown hi table 6.2. a condition of probation.48 prearrest component is usually crisis intervention Amo?g th.e options available to the district attorney and referral to needed servia.eg. The possibility of The availab1e statistics from the Miami project The San .Francisco City and County Attorney's are dIverSIon for first-time offelldera, informal arbi­ filing charges is explored with the victim through indicate that the pmgram is having some success in Office has a family violence project, resolving domestic cases through an informal pro­ Impl~me~ted tration, advising the victim to apply for a peace the paralegal department of the State's' attorney's the goal ~f ~hIch}s to improve service delivery cess. It is clear, however, that very serious offenses bond, and prosecution. 56 office.85 Program staff act as advocates for the both to VIctImS and offenders in family violence are still being diverted out of the criminal justice 49 . If a. case goes to the probation department, for victim for the express purpose of getting the batterer " ca')es. When a felony complaint is processed system. For the third quarter of 1980, 59 cases were dIverSIOn, the court obtains a report from that into a treatment program. 66 through the district attorney's office, it has already channeled to the domestic intervention program; 44 and the case is referred to the investiga. In the postarrest component, the emphasis is on gone through the general works section of the San ~epart?I~~t, involved direct physical abuse. Of the 44 cases, a using the criminal justice system as leverage in Francisco Police Department where statements tt~n ~I.vIslon for determination of eligibility .,and majority of the clients diverted were charged with I SUitabIlity, consistent with the mandated criteria. ( , h~ve been taken from the defendant, victim and 57 gaining control over the violence so that counseling aggravated assault or aggravated battery; the re­ " :1 wt ~o A . , Suitability is determined by an assessment of the can help both the batterer and victim.67 When a 1 nesses. ccordlDg to the district attorney's maining cases involved assault and battery, assault, office, the only cases ever dropped are misdemean­ defendant's willingness to participate; his ability to defendant enters the postarrest component, the battery, or battery on a police officer.75 o:-s ~here there has not been serious injury. 51 If the understand the full meaning of the diversionary State's attorney's office defers prosecution while the Miami also has a pretrial intervention program VIctIm does upt wish to prosecute and it is a repeat process; the seriousness of the offense' his back­ defendant receives counseling. If treatment is com­ that diverts cases away from the criminal system. c~e! it will automatically be sent to court where the ground and social history; his marital st~tus, living pleted, the charges are dismissed; if the defendant The pretrial intervention program, however, will arrangements, and financial status' and his re1ation. :VIctIm. must state reasons for not prosecuting. The 10 Ibid. •• Ibid. Judge then makes a decision recommending release, ~h.ip with the victim and their c~pability to' work 10 Ibid. •• Ibid. n Ibid. •• Ibid., p. 3. Jomtly on the problem.G8 .1 Ibid. .. State of Florida, 11 th Judicial Circuit, State Attorney's Office, .. Ibid., p. 13. U Ibid • •• Annual Report, pp. 11-12 . ea Ibid. "Domestic Intervention Program Annual Report: Initial Grant so Ibid., p. 29 .. Comparative Overview. Period, July I, 1978-December 31, 1979" (hereafter cited as ,. Ibid. .. ~artha P. Wilson, "System Analysis for the Family Violence at Ibid., p. 30. Annual Report), p. S• 11 Ibid. ProJe~t, ~!fice of the District Attorney, City and County of San •• Ibid. .. Ibid., p. 14. FranCISCO (Oakland, Calif.: Consortium Inc 1980) p 1 12 Ibid . so Ibid., p. 28. ' ., '" II Ibid., p. 31. •• State of Florida, 11th Judicial Circuit, State Attorney's Office, .. Ibid. 11 61 Ibid., p. 34. HEW Grant Application, State Attorney-11th Judicial Circuit, Ibid. 14 Domestic intervention program, 1<180 cumulative program data .. Ibid. domestic intervention program, Miami, Fla., "Comparative Over­ (on file at Commission headquarters). view," app. 3 (hereafter cited as Comparative Overview). l' , 66 Ibid.

67

:'<\' ,

<;, .. ~ ',~~ , .' . "#I ","': 1 I , ------~------~Q~--... 1 " ,

TABLE 6.1 . ------,------Dade County Domestic Intervention Program, Postarrest Umt Data, First Three Quarters 1980 TABLE 6.2 A. Case intake Dade County Domestic Intervention Program, Postarrest Unit, Case Intake Data, Total cases interviewed 178 "hlrd Quarter 19B() Total cases found ineligible 36 SUbJect: No. I: Total cases accepted for participation 142 Sex' % Victim No. % I B. Case dispositions :j 'Male •· ...... 41 ...... 69 ...... " ...•.•... 19 •... .••..•.• 32 ~ \1 Total case dispositions " I' Female .•...••••..••..•. 18 .••..••.• .•••. M ...... 40 .....•....•... ~ I i,l Total unsuccessfully terminated 166 Total 59 100 59 100 'I' Total successfully terminated 31 Racial/ethnic group: !,'I Favorable completion rate 135 Black ••.•.•.••••.••.••.. 29 ...••..•.•.••. 49 •.•••...... •....•• " ....•.•• 29 ..•••.•...•... ~~ Ii White .••••. , ••••. tl ••• O .14.• ~ ••••••• 1." 24 ••• , , .•. ,. tl" II ••• ~ •••••••• 15 •• I" .1 ••••••• I: Inprogram recidivism 81% C: Spanish ••• i ••••••••••• t.14 ••••• ,. It •• ' •• 24 •••• ,., ., •.. ". tl ••• II';, 0" .130 0'.0'"", Of 0 22 Ii Total unsuccessful terminations due to rearrest Other ••.•••• , ...•.•..... 2 ... , •••••..•.• 3 .••.•..•••..••... , •• , ....••. ~ •.••..•..••..• -! ,I Ii Inprogram rate of recidivism 7 Total 59 100 59 100 Il Relationship between eUbJect & victim: 2 Ii'I HUsbana/wlfe ••••• , ..... 0 ••••••• , • •• • ••• \',•• I •••••••• 0 •• ~ • f • f f •• f •• I •• I •• 30 , .. t • I •• , ••• f o. 51 Dade County Domestic InteNention Program, 1980 cumulallve program data (on file at U.S. Commission on Civil Rights).s;;;; Ex-husband/Ex-wlfe • I • I ...... " •••• , ••• , ••• , I • I • I •• 4 • , , •• I ••••• t • ~ •• fl' 4 ••••. I • , • , , .. • • 7 II Boyfriend/girlfriend .•...•..•. , .•.•.•• , .••.•.••.....••.••....••....•. '..•.• 13 . . . • . • . • . . . • •. 22 Iid ParenVchlrd ••.••••...••••• I ••••• I ••• , ••• I • I •• I • I ••••••••• I I • I .. If •• I •• I t 6 ... 0 • i • II 0 I •• I. 10 Ii Step parent/step child. • • • • • . . • • . • . . • • . • . . • . • • • . • • • • • . . . . . • • . . • . . • • . • . • •. 0...... "2 !1 Siblings ...... , ...... 1 ...•...•.....• 8 ,I Other. f • I , • 1 ...... , •• t • , ~ t • , ...... i •••••••••• I • I ••• I •• If' ..... -E ...... _ Total 59 100 Ij '1'1 I: 32 , . . . • • . . • . . . .• li LlVI?o~!r~~~~~~~~~ .~~~I~.~ .~r.~~~~~:...... , ...... 54 I: Separately •.•••••.•..•.••••••.••.....•.•...••••.•.•••..••..••...•..••.. 27 . , •..•••••.•.• ..§ [I 11 Total 59 100 I,'I Referral source: II

Public defender •••••• II •••••••••• 0: •• , .... " • I ••• I • II t ••• II • jJ •• I ••••• It' ••• II ., 1 •.••••. I I I • I • • 2 Assistant state attomey ...... 1? . .. • .. • . . . • . •• 17 I .... i I Prlvatfl-pttorney ....•.••••.•.•.. , .•....•••..•••.••..•....•...•.•..••.•••. 24" .••.•..•••.. 4g .~ II Court ••'~ •• 0: , ••••• , •••• I •••••••• , ••••• t t • i • I • , I I •••••••• It' t ••• t ••••• t • • • • •• , • It •• I , ••• I! PTA/DIP Joint release •••..•.••.•.•...•.••••.•..•••..•..•••.••.•••••..... 14 .•.•...•.....• 24 , , Police •• t • I ••• , • I • ~ •• , •••••••• , •••••••• I •••• , I • 1 t ... , •• I I , •• I •••• , 0: ••• t ., O. til, •••• I • • •• _ Safe streets •.• '.. 11 I • , ... I •• I • , • , • , , I • I I • I , •••• 0 •••• I ... I • , •• I •• It, • I •••• I. 0 ••••• I I Ii ••• I. _ Victims' advocate program .••..••••••.•••.•.••••• , ...••.•....•.••.••.•• ,. ~ ••.•.••.. ,.... _ Safe space •••• "' , t , I • I , ••••••• I •••• , • It •••••• I I • 0: I II •• f , I ...... , •••• I , I ••• , , ••• , , • • • • 2 Comprehensive alcohol program ••••••.....••.•.••.••...••••••..•....•. ,. 0...... _ 'IIIi Comprehensive drug program. • • • • • . • • • • . • • ...... • • • . • • . • . . . . . • • . •. • . .• 0...... _ il ! CItizen dispute settlement program ...•.•....•••••.••..•..•••.••••..•••.. , 0...... _ ,! Health & rehabilitative seNlces .••••••••••••••••••••.•••.•..•.•••.••••••• , 1...... 2 Paralegal department • • . . . • • • . • • . • . • • • • • • • • • . • • . . • • . . . • . . • . . • . . • • . •• ..•• g...... "3 Ii Self referral .•• • • ...... • • . • • . • . . • . • . • • • . . . • . . . . . • . • . . . . • • • . . . • . . • . • . . . .• 1·············. 2 II Victim ...... 4 ...... Ii Other. . . . . • . . . • • . • • . • • . . . • • • • • • • . . . • • . • . • • • . • . . . • . . . . • • . . • . • • . . • ...... ••_ .•••••..•.•..• --2 Total ~\9 100 if I;· prln~f:~u~r:r~::e~~~r.r~~. ~.~ ~r~.~r.~~.: •.•••..••••..•..•• I • • • • • • • • • • • • •• •••• :f...... ~ , Assault .••••.•..•••.••.....••••..••..•..•. , . . • • • . • . . • . • • ...... • ...... • ~"...... 9 il:! : Battery . • • . • • . • . . . . . • • • . . • . . • . • . • • . . . • • . • • . . • . . • . • . • . • ...... • . • . . •. . ..• 19 ...... 32 .- Aggravated assault ...... 14 ...... '" 24 'Ii Aggravated battery .••.•••.••..•.•.••..••..••...•.•• I • • • • • • • • • • • • • • •• •••• 0 ...... •...... • Assault on police officer. • • • • • • . • • • • . • • • . • • . . • • . • . • . • . • • . . . . • • • • • • • •• •••. 1·············· "2 Battery on police officer •• • . • • • . • . • • . • • . • • . . . • • . • • . . . • • . . • • . . • • . • ...... • " ....••...•••• ReSisting arrest with violence ..••.•. . • • • • • • • . • . • . • • . . • . • . . • . . . . • • . . .. .••• 1/r g...... "3 i' Child abuse .••••••••....•.•• I • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• •••• 0.' .••••.•••.••• II Child neglect •••• , • , •• , ••. , .', •• I ••• , • t t ••• I •• I •••••• I ••• 0 0: • t I • I It ••• I I It ...... t " _ I', Lewd & lascivious on child; • • • . • • • . • • . • • . • • . • • • . . • • • • • . . • • . • . • • . • • • .. .•.. ~...... "6 Burglary...... •... • ...••.••..••• 2 Trespassing. • • • • • . • . . • • . . • . • • . • • • • • • • • • • . • . • . . • • . • . • • • . . • . • . • • . . • .• .•.. 1 ., ...... • . . . . 2 Disorderly conduct ••••..••••••.....•..•••.•..•. I • • • • • • • • • • • • • • • • • • •• •••• 6...... _ Criminal mischief .• . . . . • . • • . • • • • • • • . • • • . • . • • • . . • . . • . . • . • • • • . . • . • • • .. .••. 7" " . . . . . • . • • •. 12 Other ...... , i II' .... , •••••••••• "' " ., •••••••••• ,. •• ~ ••••••••••••••• ' •• '_ I"~ \., ••••• 10 '_ ,. Total 59 100 , Source: Dade Counly Domestlo Intervention Program, 1980 cumulatlv~ program data (on lIIe at U.S. Commlsslol' on Civil Rights)

,; .... 68

69

o

, "I '~ -. / ::- I " .. ~" ______~_, ____ ~ __~ ______~______~ __~ ------.-,-~---

Complaints have been made that where community dis- not divert crimes of violence, while the domestic Mediation Programs 3. One person speaks at a time with no interrup­ r pute centers exist, prosecutors divert all family offense tions. intervention program's clients consist primarily of Mediation diversionary procedures nlOw being cases to the centers. Wben the Miami Citizen'/! Dispute Talk only in the pr(~sent tense. individuals who have committed an act of violence used in cases of domestic violence have: received Settlement Center tries to send serious cases it cannot 4. 5. Everyone remains in room until meeting ends. involving another person.7S mixed reviews because of questions about the pro­ resolve back to tbe prosecutor, tbe prosecutor I'efuses to accept them. Diversion can become an eud in itself instead 6. No bQrden of proof need be met; this is. not an Interviews with the director of the Miami project priety of using such programs in cases involving acts of a rationally applied alternative.80 investigation. revt!taled that only first offenders are permitted into of violence. Such programs typically remove the 7. Mediators are not judges; this is not It, court case from the criminal justice system and involve the Tucson's victim' witness program in the Pima the domestic intervention program. Those who hearing. complainant and the defendant in reaching some County Attorney's Office includes a mediation violate the terms of the program are sent back to the 8. Mediator will be neutral. amicable solution to their situation. No blame is service known as the Cim",tual agreement process." State's attorney for prosecution, and most often 9. Mediators direct the flow of meeting. 88 placed on either party, and both parties must share At the Phoenix hearing, the supervisor of the these cases are dismissed or the defendant is placed . Two mediators, usually a male and a female, equal responsibility for making compromises and o mediation projoot, Paul Forgach, defined it as a on probation.77 participate: The mediators first extract from the resolving "their" problem. There is substantial criti­ process of bringing the parties "together to sit down A man who assaults and batters a woman he does parties a reaffirmation of their commitment t\~} work with the mediator and talk about ways of resolving not blOW is not offered the option of correcting his cism of the use of mediation and arbitration because out their problems peacefully. Then ground rUles are these procedures take the criminality out of Spouse their problems.tl8l He described the major goal as behavior prior to being charged and taken to trial. stated, prohi~iting interruptions, physical violelllce producing a peaceful settlement, which could be a f Although offering an individual the opportunity to beating, in essence telling society that this type of screaming, and "putting down each other.tl87 conciliation, a cooling-off period, or a breaking up of correct and change abusive behavior is not in itself violence is not a crime. Further, critics believe that Mr. Forgach described the next step in the these techniques place an additional burden on the the relationship. He noted, "We're not looking to objectionable, treating those committing violent acts process: victim. The typical battered woman, they say, is determine who is guilty or innocent."82 against a spouse differently from those committing frightened, alienated, and bears tremendous feelings Clients are referred to the mediation program Then we ask each party to state what it is you want: violent acts against a stranger may only serve to of guilt for having caused her own abuse78 and when through various agencies, the most direct being the "What do you want from this person?" And we list those foster the belief that domestic violence is not as wants, get them all out of them, list them on a wall, and we asked to choose \between mediation and prosecution, police. There are several mediation sites at Tucson serious, OJ: is somehow less a crime, than stranger-to­ ask the other party listening if they have any questions she may feel she is acting inappropriately by decid­ police substations, and mediators also ride with stranger violence. about tl:llt, and tben we solicit the wants from the second ing to pursue prosecution. An additional criticism of police officers. The program also receives referrals party.8S Unlike mediation and arbitration programs, diver­ the use of medi~ltion programs is that they have from the city prosecutor's office and the county sion programs place more emphasis on th~ criminali­ become "dumping grounds" for prosecutors who attorney's office when parties file for peace bonds.83 Parties' are encouraged to concentrate ot'! the ty of the defendant's behavior. The pretrial diver­ prefer not to deal with domestic cases. In addition, volunteers who also work for the present, rather than talking about the past: sion programs that mandate counseling are proving At the Commission's 1978 consultation on bat­ victim-witness program as crisis intervention coun­ They have a whole lot of war stories ..••They wlUlt to less effective than post-trial diversion that involves a tered women, Marjory Fields discussed such pro­ selors use unmarked police cars with radios to aid in relay one incident after another, and they do a lot of probatiollary sentence. In Santa Barbara, the county grams: reaching the scene of a dispute in time to assist the thinking about those things and it is hard for them to listen attorney's office moved its emphasis from pretrial to C police.se to each other. We try to interrupt them when they're post-trial diversion because it found that defendants The rationale for using mediation rather than the doing that and say, "Hey, could you pursue talking about When violence is more serious than a single slap, kick, or what you want happening," [to] try to bring tbem back to were not taking pretrial counseling seriously. punch and becomes I' series of blows inflicted by the criminal process is that: tbat structure.8S Although the efficacy of both kinds of diversion stronger party with intent to harm the weaker party, then programs is debated, the issue they present is how there is no equality. The weaker person is the victim, and charging someone with a criminal offense and boping to If the parties are able to reach an understanding the stronger persoll is the baUerer, who wields the power. successfully prosecute as well as attempting to meet the on their desires and concessions, they enter into an many chances society should give perpetrators of This is the battered wife'S situation and one reason that expectations of persons involved are often times impossi­ crimes involving physical violence. In the misde­ mediation Willllot work to stop wife beating. ble. The efforts of the Police Department, Prosecutors, oral agreement or written contract.DO meanor sections of the San Francisco City and and Courts are misdirected. The parties themselves are not At the Phoenix hearing, Leslie Nixon, a legal County Attorney's Office, offenders will still be Wife beating is not a behavior pattern that can be altered interested in prosecution. They want safety, assurance, and services attorney in Tucson, discussed the mediation help for the offender.as diverted even after their fourth offense. in a single 2-hour mediation or arbitration session. At the program: point when the woman seeks police and prosecution Most criticism of diversion programs is directed at intervention, beatings may have been a frequent. occur­ At the mediation sessions. certain ground rules [W]e do not think that mediation is the place to resolve a pretrial diversion because it is seen as allowing rence for several years .• , ,n must be adhered to by both parties: situation in which one party systematically' and repeatedly criminal behavior to continue without sanction. 1. No physical violence or screaming. subjects the other party to beatings. Pretrial settings offer little incentive for real change; Ms. Fields described the limitations of such pro­ 2. No "putting down" another person; no name Tbe whole mediation setting by its very definition is a an abuser merely needs to control his behavior for a grams: calling, setting, a neutral setting. The mediator is a neutral short period of time. Experts see post-trial diversion o 10 ibid. II Phoenix Hearing. exhibit 24. Mediation ill nnl advisable because it requires that the as a more viable option, since there is a clear II Paul Forgach, testimony, Phoenix Hearillg. p.188. .. Ibid., exhibit 22. battered wife share the blame for her husband's attack on II Ibid. incentivl!: for change if a prison sentence is involved. her.... IT Forgach Testimony, Phoenix Hearing. p. 190. g Ibid. II Ibid. It David Lowenberg, project director. victim/witness program, •• Barbara Kaufman, progTam director, domestic intervention II Ibid. fI William F. McDonald, ed., Criminal lustlct Dnd the Yiet"" Office of the Pima Count.y Attorney, interview in Tucson, Arb:., program, Miami, Fla., telephone interview, Jan. 14, 1981. •• Ibid., p. 191. , (London: Sage Publications, 1976), p. 31. Jan. 8, 1980. " Ibid. n Fields Statement, Consultation, pp.2SI-S2. 71 70 , l'

Q

. ,

_~ __~~_~0_. ~ ______~ ______~ ______

~--- =

) mediator. a neutral arbitrator. Both parties are deemed to and. . .they explain the process and OUr clients generally .j be Oi'l equal ground, equal footing, equal power. They are have come away from that thinking it was not an optional panel, victim services, victim/witness assistance them. Thirty-eight of the cases were felonies, involv­ equal parties to an equal dispute. . . . process, thinking that it's just another step in the system project, and mediation.O\I Referrals to the mediation ing assault and battery with a dangerous weapon, and finding out later that once again .•.this particular But we believe in our experience with battered women process is not going to punish her husband or take hil1,1 to unit are made by the clerk of courts, the district attempted murder, or assault with a dangerous that this RS (a] totally unacceptable approach to solving a task in any way. . . .And some of our clients have COme attorney, or the bench after arraignment. weapon. The .femaining 48 cases were misdemean­ battering or to having even an interim kind of solution, away thinking they have an enforceable document in their If a case goes to mediation, the disputants are ors, with 41 of these involving assault and battery.IOI and that the reason for that is because. . .first of all, they band, a contract that is drawn up, and it really isn't.e• informed at length of the mediat~()n component's In 21 cases no settlement was reached after referral are not equal parties at all. 81 intent and procedures. During the initial phase of the to mediation, either because the parties refused to The mediation supervisor discussed the enforcea­ Ms. Nixon explained the shortcomings of mediation: mediation session, it is explained to the disputants mediate, or because the parties were unable to reach bility of the agreements signed at a mediation that the mediators only act as facilitators, that the an agreement.I02 These cases were referred back to proceeding: [Y]ou do not have equal parties here. The mediation mediation agreement should be one the parties can the court for resolution with no punishment being program .••.de>et.l not blame anybody ....No one ls VICE CHAIRMAN HORN. When you have reached that agree to, and that the agreement is not legally imposed for refusal to attempt to mediate the given any gullt. You just talk about future conduct. And lo3 we think that that ill pretty unacceptable when you talk agreement, does that agreement go before a judge in any binding. liT The complainant relates the incidents of problem. Of the cases referred back, 13 went to about one party who has committed criminal acts on way? the dispute and then thf! defendant is allowed to trial; in 8 of these cases there was an admission to another party••. has injured that other person, which is a speak. There are also individual sessions. When an sufficient facts, and the court continued the case for woman in 99 percent of the situations. MR. FORGACH. It does not. agreement is reached, the mediators present it in 6 months to a year after which time the case was Ds writing to the involved parties. Following is an dismissed if no furthei' difficulties arose. IO• In the So. the message that the battered woman gets in this VICE CHAIRMAN HORN. That is strictly an administrative mediation program is again the message she is getting from agreement? example of a typical successful mediation case: two cases where there was a finding of guilty after the rest of the system and society in general, and that is, trial, both defendants received suspended sentences, Y is a 36·year-old male who had been married to X for a ·'Your husband will not be punished for this activi. MR. FORGACH. That's right. probation, and conditions of probation. In the ty.... • • .[Slociety does not think this serious enough to number of years. On January 23, 1.977, Y struck X a number of times, requiring her to go to the hospital with remaining three cases that went to trial, there W(lS a treat it as the criminal act that it really is under OUr laws. VICE CHAIRMAN HORN. So if it is broken, what are the So the message to the man is, "Keep on doing it, you injuries to the face and hal,lds. The incident resulted from a finding of insufficient evidence to warrant a court sanctions? conversation X initiated after she had opened the mort­ know. nobody is going to punish you for this. You crut get finding of guilt or probable cause. lOG Of the remain­ away with it." And tbat is the message that law enlirce. gage statement atld discovered that Y had not paid the bill MR. FORGACH. . . .[Ilf we are contacted or if we follow for 2 months. ing 21 cases that were not settled by mediation and ~ent, the prosecutor's office, and the mediation program up and find that it has been broken .••we do pursue referred back to the court, 2 resulted in the defen­ gIVe to the women who are victimized and to the men contact of the other party to see what's happening with X came to court and obtained a warrant and Y was dant's default, 1 case was continued for a year, and 5 who beat them. 8• that, and we may ask them to CaDle back and discuss it arrested on January 26, 1977. The case was arrs~gned and further ..•. cases were dismissed at the request or the complain­ referred to mediation. A mediated settlement was reached ant,lOtl Mr. Neeley, the Pima County attorney, views this on January 27th. as an added advantage because "quite frankly, if the VICE CHAIRMAN HORN. Okay. So this doesn't resemble A settlement was reached after referral to media­ program is administered through the county attor­ probation in any way? The agreement stated that both parties get along, they tion in 65 of the cases. Of these, 8 of the agreements ney's office, there is always a hammer that exists that agreed to discuss their problems in private and not in front subsequently broke down and 9 defendants defllult­ MR. FORGACH. No, it does not. of the children; X agreed to not question her busband loT more or less encourages ~ople to partidpate in a about the way he spends money, to not accuse her ed. Of the cases that broke down, ~ were contin­ ued without a finding after an admission to sufficient mediation process as an alternative to prosecu. VICE CHAIRMAN HORN. This is sort of just goodwill husband of seeing anotber woman, to not inquire about her tion"'" Advocates, however, see this "hammer" as counseling and trying to get the parties to see their husband's whereabouts with friends. If the agreement facts, probation was given in one case, and a lO·day possibly a coercive measure to lure victims into a problems and agree to do something about it? breaks down, X will return to court and file for separation. commitment was given in another that involved a resolution they think is mandatory only tt.) receive a Y agreed to pay more attention to his wife, to spend more ~ong series of violations. loa Mit. F.'ORGACH. With a high initiative from our office. We time at home, not to see another woman, not to take tbe contract that is not enforceable upon breach: children to another woman's bome.VI In this study, abont 48 cases (56 percent) of the do not wait for them to come to us for help. We pursue total sample of 86 actually resulted in a settlement Ms. NIXON. We have run into [misunderstandings] because them. I think that's really th~ basic difference than what the mediation program is part of the county attorneY's really goes on in the usual socM service models." A study of Dorchester prosram assessed a 2-year being reached and the case' being dismissed after office and. . .most people when they encounter the (1975-1977) sample of 86 spouse abuse cases in a mediation (see table 6.3).lel9 judicial s~stem, ~ i.t civil or criminal, are confused by the This mediation program is similar to many media­ Boston area district COUItt and discussed the media­ Of interest in the Dorchester study are the types whole thing and mtunidated whatever their educational or tion and arbitration programs now in use around the tion component of thel urban court program in of cases that were permitted to go to mediation. Of economic background. country. The controversy surrounding sllch pro­ Boston.loo Both felony and misdemeanor charges the 85 cases, 79 involved acts of aggression and And what happens is if the prosecutor decides to allow the grams is not directed at the programs per se, but at were included ia the study; the felony charges were violence against another. Thirty-eight of these cases person to have mediation as an option, the MAP [mutual the use of such programs to resolve disputes involv­ reduced to allow the district court jurisdiction over were felonies reduced to misdemeanors to allow Ilgreeme~t ~rocessl personnel generally contact the Wom­ ing violence. If Laszlo and McKean Statement, Consultation, pp. 327-59. I •• Ibid., p. 336. ~, ~he V!?tun, and the other person also [and] says to the A similar mediation program in Dorchester Coun­ tf Ibid., p. 344. 1041 Ibid. Victim, I am from the county attorney's office," ty, Boston, Massachusetts, consists of a disposition II Ibid., p. 345. 1041 ibid. II Ibid., pp. 340-41. lOT Ibid. II Leslie Nixon, testimony, Phoenix Hearing. pp. 236-37. 100 ItJid., p. 330 . • , Nixon Testimony, PhOtnix Hearlrig. pp. 237-38. ,.. (bid • .. Ibid., p. 237. III Ibid., pp. 332-33. I. Forgach Testimony, PItOtnix Hearing. pp. 197-98. III Ibid., p. 339. , M Stephen Neeley, testimony, Phoenix Hearing. p.208. I" Ibid., p. 335. I" Ibid. 72 73

t . \ l' , It

.' ------.~------~- 1 j\

~ o .) (l -~"'~--,-_,· __ .,·_~~_.,.w, ___ "_~_~ __.....--. _____~_~_.~~~.~, ___~ .. --.~_.~ _____..-..., _____,.,.._.~._.~~ ______~ __ .__ ~ __ ~ .. _____ ~_. __ ., ~~,.~ ...... __,_,..~._._j;'~~ ~" ...... ,~"« ____ ._~, .... __ , ___ •.• ~ .~~~, . ,. "" J ---' ------:..~.~-~-.--.~-~.-- - .-•• ,.,. <.~ _.",,-.'-. "'\1":"~~r ; ~',,}; ~----,------~------;'f;" TABLE G.3 r (> , jurisdiction for IIlediation purposes; one of these Police and prosecuto~ 'frequently assume these attacks are Darchester County Court Program, Case Distribution by Charge and Disposition, cases involved an attempted murder. The only "one punch" fights, but when the twenty victims of Eisenberg and Micklow's study were hit, it was invariably November 1975-November 1977 .' ') sentence imposed in all cases that failed mediation more than Ollce. Usually they receive a beating that lasted Misdemeanor charge No. of cases and inv\Jl~d further abuse was a 10-day contine­ anywhere from five to ten minutes to over an hour. Once Threats 4 ment or suspended sentence. the beatings took place, they were usually repeated on a I; Malicious destruction of property 1 Mediation was completed in a majority of the fairly regular basis. Wives in the study sustained such , I physical injuries as ripped ears, bald spots where hair had Annoying calls 2 case-il; however, there is no indication given of how Assault and battery 41 been pulled out, choke marks, concussions, miscarriages, many of these cases reappeared later in the system as fractured jaws, dislocated shoulders, broken arms, cracked ~ ~ a result of further violence. Mediation critics point ribs, and burns on the breasts and arms from lighted Felony charge out that felonies were reduced to misdemeanors to cigarettes or hot irons. A woman who finally works up the Assaultidangero:Js weapon 4 fit into the mediation program; repeat abusers courage to file a criminal complaint against her husband Assault and battery/dangerou$ weapon 33 for treating her to such abuse can hardly be exp\'!cted to suffered no penalties, or, at a minimum, very minor U2 Attempted murder 1 feel grateful for an investigator's gestures at mediation. penalties for continued abuse of their mates; and Total 38 '0 victims of brutal crimes were asked to sit down and Given a reasonable choice, many victims may Total case sample 85 work out an agreement to try and "get along" with chose to prosectlte rather than be involved in their attackers. mediation. As one judge at the Commission's consul­ Settlement reached after referral to medlatlon No settlem~nt reached after referral to Total mediation Advocates point out that mediation was con­ tation pointed out: ceived to address disputes involving persons of equal Dismissed after mediation 48 Reason Total it was my experience that quite a few of the people who Settlement reached/subse'O~lflnt breakdown 8 power. In a battering situation, the imbalance of were diverted to these mediation processes really didn't Default Complaint refused S' power is ohvious and often can result in the battered want to be there. They preferred to have their matter aired 9 Respondent refused 2 woman's acquiescing out of fear or intimidation. in court and have a judge either reprimand their spouses, ·1 Total cases 65 No agreement reached 11 :\ According to Leslie Nixon, mediation may be arrest, send their spo'ases tt) jail, to have it on record and in 'Nature of the mediation agreement Total cases 21 court. ;1 Total effective in resolving minor disputes, but not cases of Ii Disposition of case Total To go into another room, or another area, whether or not Agree to get along 25 violence: Trial 13 he'd be in a courtroom building, seemed to take away their Alcohol counseling 12 o whole reason for having filed a complaint to begin with. r Admission °8 o 1\ No contact 12 Mediation ..(:an be effective. for instance, where there found that a lot of them that went through the mediation il\ Drug cot,;.lseling 1 Guilty 2 Not guilty [have] only been verbal disputes between two parties or process still wanted thdr case to be tried !IS a regular case. ! \ Psychiatric counseling 1 2 o -, H: No probable cause 1 threats made by one party. But when you get into physical Still they wanted the judge to have some sort of final say­ Marriage counseling 6 ).10lence, our experience with the hundreds oY women we so to the offending spouse, to threaten that if they ever do Visitation 6 Continued without trial 1 Dismissed at request complainant \\ have encountered in the last. . .6 to :> months is that it's it again, the judge would throw them in jailor whatever. Financial agreement 11 of " 5 Default ;I 2 going to be repeated and things like sitting down together But I found that they were very reluctant in many Employment counseling 2 instances to go through that process successfully. 113 Restitution in a neutral setting is not going to have any effect. In fact, 3 () it's going to reinforce it. I think it causes more violence.no Divorce 3 Findblgs Typically, violence in domestic settings repeats Finding 6.1: Prosecutors often use informal hearing Source: Anna T. Laszlo ~nd Thomas McKean, atatement, Battered W(!iii',m: Issues 01 Public Polley, consultation sponsore1d by the U.S. Commission on Civil Rights, Washington, D.C., Jan. 30-31, 1978, p~. 334-10. ' itself and escalates in severity.111 >:n a sense, media­ procedures to screen out spouse abuse cases. Such :;~ tion can be seen as a windfall flbr the aggressor in a informal settings tend to prodU(~e an atmosphere of '; domesti(; situation. No penalty is involved if he goes fear and coercion for abuse victiJtns~ frequently result '" through the proc<,:dure, is contrite, and resolves to in no criminal action against dE~fendants, and mini­ r, get along with his mate. In addition, the abuser does mize any implication of wrongdoing by abusers. /j 0 not have to accept responsibility for his behavior, Finding 6.2: Mandatory counseling for spouse abus­ since the victim is also being asked to check her ers can be effective, especially atiter conviction when behavior and get along with her mate. Nothing in the counseling is a condition of probation. In many the mediation process indicates to the abuser that his jurisdictions, however, such programs are available acts of violence are criminal, eVl:!n though the same to defendants charged with very serious or repeat acts would not be tolerated if committed against a offenses, where diversion is generally inappropriate. stranger on the street. In Battered Wives, Del Martin Finding 6.3: Mediation and arb:itrat~on, which are points out: generally inappropriate for settling domestic prob- ~" , 110 Nixon ThstimonY, Phoenix Hearing. p.247. U2 Martin, Battered Wives, pp. 111-12 t1l Barbara Star, "The Impact 01 Violence on Families," sched­ 113 Golden Johnson, statement, Consultation. p. 90. uled for publication in Conciliarioll Courts Review. vol. 19, no. 2 (December 1981), p. 11. 74 75 ,

f), " o

,j , , ~I .~,..---~ __,...,_--. __•• c.. __>-._...,:._....,.~~~ ..,"_,~ _ __'""<~""""~'W"'''_~'. ,____ ." _, __~ _~ _____ ,,_+ ______• ___•.• _ ...~_~., __ " ...... _,_. _ •• :I'}'\ -.. III . i'lill

lems where one party has been violent to the other, Jii I Chapter 7 i;li., ',\f are still used as substitutes for prosecution in some ,,~ jurisdictions. 'I , ,) "E :~ Shelters and Social Services h I ~ II~ I ; 1I II I

I . I f I I , I ------.------I~I------~------II /1 With a violent spouse and inadequate police Shelter personnel believe that women who are protection, a battered wife is vulnerable both inside victims of abuse need an environment of stability I: and outside her home. If she has escapeq the violent and safety for themselves and their children during ,It home, she will often have nowhere to go and no the transition period after leaving an abusive situa­ I' means of support. Her problems are compounded if tion. Consequently, shelters strive to be more than she has children with her. Such a woman may be residences 01' temporary hotels for women during a [i aided by Federal, State, and local programs that II crisis; thl~y have the possibilities of becoming com­ provide support ranging from shelters to financial Ii assistance to legal services. munity-oriented facilities that provide women with continuing support against violence, discrimination, n Ii and ec:onomic deprivation.6 In Conjugal Crime, i: Shelters Terry Davidson, describing the peer group support Safe houses, refuges, or shelters have become the and decisionmaking found in one shelter, gave II' Ii cornerstone of support services for battered women evidence of how a community-based shelter works: P who are unable to remain in their homes due to an If i' 1 abus!ve spouse. In 1971 the international trend for The residents stayed up until early morning, smoking and the creation of sheltel'S began ;,n London with the I'I talking arounq the kitchen table about how they would 'II establishment of Chiswick Women's Aid.~ Since the solve their problems, enjoying the sense of friendship and i 1 founding of Rainbow Retreat in Phoenix, Arizona, supportiveness. This Saturday night turned out to be the i most joyous and restful the house had known in ages. This ; "\ in 1973, the first in this country,3 many communities ~ \ have opened shelters and hotlines to assist battered women's shelter was indeed a place where the weary and ! , women. It has been estimated that there are more troubled could lay down their bl,lrdens and get some peace. I felt as if I had embarked on a second visit,1 I .. than 300 shelters in the United States,' a number far /1 inadequate' to meet the needs of the estimated 1 Anne Flltcraft said at the Commission'!} consulta­ million!! battered women in this country, tion that "it is only in the formation of new 'Ii = ~ f .' Lenore E. Walker, The Battered Woman (New YorbHarper a Delores J. Trent, "Wife Beating: A Psycho-Legal Analysis," i' and Row, 1979), p. 192. Safe houses are private homes and public jl\ facilities such as churches and shelters that provide temporary Case and Comment (November-December 1979), p. 14. '~ housing for women safe from battering spouses. • Anne Flitcraft, statement, Battered Women: Issues of Public lt1 Policy.ll consultation sponsored by the U.S. Commission on Civil i:; I Del Martin, Battered Wives (San Francisco: Glide Fublications, II 1976), p. 197. Rights, Washington, D.C., January 30-31, 1978 (hereafter cited as Ii , Ibid., p. 206. Consultation). p. 113. I,iJ • Jennifer Baker Fleming, Stopping Wife Abuse (New York: T Terry Davidson, Conjugal Crime. Understanding and Changing H Anchor Press, 1979), p. 353. i' ' the Wi/ebeating Plan (New York: Hawthorn Books, 1978), p. 171. :I , iI(i 76 I ); .. 77 (' ! ! ,~ I Il , ~ ~ \ l ,Ii t , . '\ !." ..• /'"' '" r I ft . .. lr ~------,----.------

., ¥

I"

communities that battered women can overcome the middle, maybe middle-middle class, and some wealthy women, wealthy women come into the center. . . . happened in the crisis, that is the most helpful support that family begets a new generation of abusers is painfully isolation which characterizes their lives today."8 we can provide in those first 2 or 3 days.15 observable in these safe houses. 21 According to Ms. Flitcraft, a battered woman's "isolation begins within the family. This isolation [A]nd I think that there is no big difference there) whether In addition, counselors at the shelter assist the Shelter staff expend a great deal of time, energy, continues as women tum again and again to social it's my center, Sojourner's, or any center across the women by helping them to focus on future goals and and resources attempting to reverse this trend,22 but service and law enforcement agencies and find not country. Once that woman walks through the door, she is necessary immedIate plans. She said: resources are scarce and the Woork of the shelters is simply benign neglect, but further harm."9 Ms. penniless. She may drive a Cadillac into the driveway, but done on a minimal budget. she won't have any money to put gas into it. 11 Our approach is very strongly to be nondirective and Flitcraft observed that society'S negative response to nonjudgmelltal. . .to the women. Another important role of shelters is educating the the needs of abused women results in still further The witness said that on arrival the women "have public on the problem of domestic violence and the isolation of the women, as they come to realize that So our assistance usually is to start out by saying "You're no self-concept. Their feeling of worth is extremely here now.... What do you want to do next?" .... social and financial realities for the victims of such there is little help to be had and often the only incidents. According to Women's Advocates, one of choice is to remain within the family.lO low."13 During a meeting on battered women of the And again, to be very careful in not giving her direction the first shelters in this country, "refuges (shelters) ".Experts agree that battered women who are Commission's New Hampshire Advisory Commit­ from what we think she should do, but rather, continually are the vitally necessary first step in eliminating ... ' :ced to leave their homes to protect themselves tee, Dr. Sheila Stanley, a psychologist for Central reinforcing the message that she needs to decide for herself domestic violence and oppression because they from their spouses exist in all ethnic and economic New Hampshire Community Mental Health Ser­ what she wants to do next, whether that's going to be to return home or to find a new situation. 18 serve to make the problem visible and to meet the groups. These women come to shelters with varying vices, discussed the general low s~lf-esteem of immediate need for protection."2!1 Testifying at a needs and in various physical, emotional, psycholog­ battering victims she counsels. She said: Shelter personnel must also meet the diverse needs hearing on H.R. 2977, a Federal bill that would have ical, and economic states. Testifying at the Commis­ of the children who come from battering situations. funded domestic violence programs, the State direc~ sion hearing in Phoenix, the executive director of "Children who witness violence between their par­ Most of the battered women didn't seem to think 1\ lot of tor of Minnesota's programs for battered women the Sojourner Center described a typical battered themselves before they were married, but Whatever self­ ents suffer emotional trauma and often react with said: women arriving there: respect they had was shattered as the marriage went 011. shock, fear, and guilt."17 One woman described the After a few years of being told that you're stupid, dumb, reaction of her children to assaults by her spouse: [Her] age is around 25. She has a little bit less than a ninth or no good, you begin to believe it. . . .Consequently, grade education. Probably has not worked at all. If she has The youngest girl screams and cries hysterically, yelling at While shelters neither solve the problem of battering nor some of the women that we see feel they somehow guarantee protectjon of all victims of partner assault, they worked, she might have worked as a waitress for 6 deserve the abuse.14 her father to let me alone. The boy acts disgusted and months, 8 months at one time or another. retreats into himself. Lately, he's asked questions about are symbols in a<~"mmunity of the' right of llll people to be physically protected by the society in Which they live. Shelter staff seek to establish a system of working why we married. My daughter says she won't ever marry. Usually, the average woman again has around three kids My oldest child screan\ed and became extremely fearful. 18 They are a constant reminder to the judicia!, medical and and that can go-we have had zero through-I think we with shelter residents that will assist them in becom­ social service systems of the need for change in the policy had one woman in at one time who had 12 kids. So it ing self-directed, assertive, and independent. Al­ Women coming to shelters often bring with them and attitudes of those systems toward the victims of one.of COVI~rs quite a wide range. though they usually come from situations where severely traumatized children who may be emotion­ this society's most devastating an~~ archaic pr5c'llces- wife-beating.2 • . The: woman, when she comes in, as I said, demonstrates a they are powerless and unable to assert thEmselves ally disturbed or have serious learning problems.10 lot of stress type of responses. . • .She goes back and in eoven minimal ways, battered women, with the There is growing evidence that children who wit­ Some shelters seek to raise public consc:iousness of forth between weeping, feeling guilty, feeling as if it's her assistance of shelter staff and each other, learn to ness battering in their homes often grow up them­ the plight of battered women through television fault-What has she done to herself, he:: kids? Why didn't take control of their lives again, realizing they can selves to become batterers20 or use violence as a she cook hamburger instead of macaroni fol' dinner and commercials, public speaking engagements, and meanS of resolving frustrations and problems. Shel­ then everything would have been okay? .. choose to leave a battering situation and can, in fact, programs for children in upper grades.25 Many ter staff witness this trend in the children's behavior survive independently with their children. In Harris­ shelters have special projects to make social service Two ~nutes la.ter or an hG'lr later she is into a rage type burg, Debra Baldwin of the Womel'. in Cris~s shelter in the shelter: OfreaGtlon and IS very angry.... 11 agencies and police departmtlnts aware of the special described the role of the shelter staff during the first Other children, especially the adolescents, engage ill needs of abused women and how they can best be crucial days after arrival: At the same hearing, the executive director of various acting-out behaviors that make communal living in served.26 another shelter in Phoenix emphasized that victims cramped quarters a horror. They often destroy the meager o furnishings. Adolescent boys can be as violent as their Although shelters are still responding to battered of domestic violence come from all economic We found that if we, in the first few days of their stay ill fathers, and often find wi1l1ng younger versions of their women's immediate needs, they acknowledge the backgrounds: the shelter, just give them a lot of opportunity for mothers in the adolescent girls. The theory that an abusing need to expand their education efforts to th~ general ventilation of their feelings and give them some support in [B]asically our women that come into 'our center are not just sorting some things out, help them to focus On their 1S Debra Baldwin, testimony, Hearing Before tile u.s. Commission 21 Ibid. penniless women. • .. .It's your women who is lower own role in the crisis, that help them to understand what 011 Civil Rights. Harrisburg, Pennsylvania, June 17-18, 1980 •• Ibid. (hereafter cited as Harrisburg Hearing). p. 19. n Women's Advocates, "A Shelter for Abused Women and • F1itcraft Statement, Consultation. p. 113. 10 Ibid. Their Childrenh (St. Paul, Minn.), brochure. Ii Sheila Stanley, statement before the New Hampshire Advisory • Ibid. 17 Martin, Battered Wives. p. 22, .. Ellen Pence, statement, Hearing Before the Subcommittee on .0 Ibid. Committee to the U.S. Commission on Civil Rights, 11 cO~$ulta­ II Suzanne Prescott and Carolyn Letko, "Battered Women: A Select Educatioll of the House Committee on Education and Labor, It Ellen Lyon, testimony, Hearing Before ,he Commission on tion, Laconia, N.H., June 18, 1979, p. 16 (hereafter cited lIS New u.s. Social Psychological Perspective," in Marie Roy, ed., Battered 96th Cong., 1st sess., 1979 (hereafter cited lIS House He'(Jring). p. Feb. 12-13, 1980 (heret:fter cited Hampshire Advisory Committee ConSUltation), cited in NeW Civil Rights, Phoenix. Arizona, as Women: A Psycho SoCl'%glcal Study of Domestic Jliolence (New 102. Phoenix Hearing). p. 9. Hampshire Advisory Committee to the U.S. Commission on Civil oi York: Van Nostrand Reinhold, 1977), p. 86. •• Mt:lisa Fried. testimony, Harrisburg HearinFf. p. 133. .. 12 Joanne Rho.'.Ids, testimony, Phoenix Hearing. p. 15. Rights, Battered Women and the New Hampshire Jllstice System It Walker, The Battered Woman, p. 201. •• Lyon Testimony, Phoenix Hearing. pp. l()'.,.ll. Ann Farber, lJ Ibid., p. 8. (June 1979), p. 4. •• Ibid. testimony, Harrisburg Hearing, p. 61. 78 79

o ~\ ' ," " , ~------~,\~~------~------~ ------,----~------'------

s::

public with special emphasis on organizations such press charges. They fillally~aid, ·'No, and don't call us again."32 , with the recruits because] ...it [was] the beginning lack of education of the justice system in the area of as those of the medical professions. 21 In Harrisburg, of a dialogue between the police department and domestic violence: shelter representatives testified that they had con­ Commission staff were informed in Phoenix that human service workers, human service programs ducted training at all the emergency rooms in the police responses to women's requests to file charges such as ours,"39 Ms. Lyons indicated in her testimo­ In the system of juriaprudence, you have not just the local hospitals and found more response there than against abusive mates included saying that it was too ny that one of the major sources of problems in 28 police officer, but you have the prosecutor arid you have from general prall"citioners. late in the day to take a complaint, that there was no addressing domestic violeilce is the lack or commu­ the judge, and the recruit would be a very small percent­ Community education provides shelters the op­ use in pressing charges, and that it was a civil matter nication andc()ordination among the agencies that age of the people who would be approached. portunity to inform the general public about the and there is nothing the police can do ,liS Police are working ~ith the problem.4° myths and realities of domestic violence. According response, however, was better when women had She also testified that at least half of the recruits in to the authors of The Shelter Experience, a guide to The problem which we have heard described this morning been to court to obtain temporary restraining orders, one of the training sessions were concerned about permeates the entire system, and it seems to me that there shelter organization and management published by 34 1 which are difficult to get. how to respond to domestic violence calls,, TIle should be training for the entire police department, and it the National Clearinghouse on Domestic Violence, Shelter persoMel and advocates working in the recruits wanted to know if there was something they ought not to be one in which it's on an ad hoc basis where "The entire thrust of the movement against domestic area of dOn1estic violence are seeking to make police could do to help solve the problem"~ Responding to they would give you an opportunity to come down and violence must be toward the day when society wiII officers sensitive to the needs of victims of domestic their inquiries, Ms. Lyons said thnt she made several participate in a briel5ng. It ought to be an inherent part of sanction and support the steps nec6'Ssary to encour­ suggestions: the program and also it should extend to the judiciary and violence, For several years, shelters in Phoenix tried to the prosecutor.·a age disengagement from a violent situation, rather unsuccessfully to establish and coordinate training than supporting the institutions and traditions that ". . .I feel that you do have a respousibility to intervene programs Oll domestic violence for the police de­ Much is written about the necessity of safe houses imprison a person ill that situation."29 when somebody potentially is at ri$k of being hurt badly partment.3G In 1980 the department allowed each by'separating, by taking the assailK."it away as ail option, by and of the good work that dedicated shelter staff do Shelters often monitor ~ow local police depart­ shelter to conduct class sessions ill the police informing the woman of her right to citizen's arrest if you with abused women and their children. The reality ments respond to victims of domestic violence. academy to familiarize recruits with domestic vio­ feel that you cannot take the person in because you did not of the situation, however, is that througQout the Many battered women report to shelter personnel see any act of violence at the time, to inform tile victim of len~e issulllll,il8 With these sessions, the shelters are country shelters are experiencing financial difficul­ that police do not provide protection from their crisis shelters in the area,"... [and] to offer to provide seeking to sensitize new police officers to the transportation to that woman to a shelter or to her ties.47 In most instances, shelter funding is mer-,ger,4S abusers.30 Joanne Rhoads of Rainbow Retreat shel­ complex area of domestio violence.aT Joanne Rhoads mother's or to a friend's home, to at least get away from and shelters" of necessity, must rely on students, ter in Phoenix testified that the major complaint of 43 outlined her objectives in recruit training sessions in the situation at that time. volunteel'S, and workers from programs funded abused women who were forced to call the police is her testimony at the Phoenix hearing: under the Comprehensive Education and Training . that ','poli.;-;e are insensitive to what is going on in the Stever Clarke, a police trainer for the Pennsylva­ Act (CETA) whenever possible to perform services /' home, [and] that [WOIfil.. ln] are not advised of their nia Coalition Against Domestic Violence, reiterated \ / that they are fmancially unable to obtain otherwise,49 rights."31 According to a participant at the Connect­ \\'nat we try to accomplish while we are there is not so at the Harrisbl!cg;hearing the belief that police Limited fmancial resources make it impossible for icut State Advisory Committee's consultation who much going in and telling them that uThis is what we hear officers should not be expected to act as mediators: about you. Why don't you clean up your act? This is what the short-staffed shelters to address all the problems called the police: is going on out there. This is what you are walking into. [I]f we give them a little bit of knowledge in crisis involved in a woman's leaving an abusive situation. You are not walking into just a fisht. You are walking into intervention, they will tend to use that and downplay the Educational and vocatimlal training is limited in criminal side of the dispute. i~!was b~~ten, bleeding, and a mess. The police came and a pattern that has been established for a very long time, 40 Lmy husb\)nd] left the house. and ...fwle don't expect you to be counselors, but we do shelters because of lack of funds. In addition, expect you to be sensitive to the problem that is going on. What I'm trying to do is instill in them. . .that it is a crime shelters frequently lack the necessary resources to We would like to help you become sensitive to it and not we're dealing with and, if a crime has been committed, it deal With the extremely complex problems children It was a constant thing of my calling, the police coming, must go through the criminal procedure." and he split. Finally, the police said, "If you don't keep get yourself to the point where you become ineffective in present. Shelters attempt to provide care for infants, 11im here, don't calI us." And I said, "Would you prefer your role because of your being overly sensitive. If Because pX'eschoolers, and school-age children, but usually there is a delicate balance that the police have to Walk Training for recruits is essential, but such training 1~hat I keep him here, and he'll kill me, and you can come do not have the resources to do so adequately.Gl back to take over?" They left. He came back and started there, tOO.3I must also reach officers who have been on the force in; and my girlfriend upstairs called the police. They for many years, including superior officers. In Shelters are usually overcrowded and in general ;~ved. Their response was, "Look lady, he says he didn't Ellen Lyons, director of Sojourner Center snelter Phoenix, only new recruits are required to partici­ disrepair, with no funds to expand or to repair ~klat y(\u. He wants to work things out. You're being in Phoenix, t\~stified that she was "excited that pate in such training.45 In fact, one shelter represen­ broken appliances. 52 Lack of resources leads to ~!nreasonable. Why bother pressing charges? He's going to rshelters] were offered the opportunity tative, in responding to a request by Commissioner widespread sickness in the shelters because those ~Ie out in a little while, and he'U be back." I insisted they "'1------to ...[conduct domestic violence training sessions Freeman for comments, agreed wholeheartedly with who are ill c&nnot be isolated. 53 Finances make it :air Baldwin Testimony, Harrisburg Hearing, p. 28. the following description of the systemic problem of impossible to staff a shelter with a nurse or doctor, Sjl ibid. . .. n Patricia McGrath, Sojourner Center, interview in Phoenix, Ariz., Nov. 15, 1979 (hereafter cited lIS McGrath Interview). JlI National Clearinghouse on Domestic Violence, The Shelter II Lyon Testimony, Phoenix Hearing, p. 11. 31 Janice Moore, My Sister's Place, Women's Legal Defense lJ,ixperience-A Guide to Shelter Organization and Management lor s, Ibid., Ellen Lyon, executive director, Sojourner Center, •• Ibid. Fund, Washington, D.C., House Hearing, pp. 124-25. .,;

. / ~ 'II

" ~------~------~------~~------~ o

("V - .~:- '11'·'

I so shelters must depend on the often unreliable facilities because one commissioner felt that it was Special Needs of Rural Women rated on in A Monograph on Services to Battered 5 Women: volunteer services of community professionals. ' breaking up marriages by taking battered women out The incidence of domestic violence is higb in rural At present, about 70 pl~rcent of the shelter of the home.oo The commissioners, however, allocat­ areas,49 and victims of domestic abuse in these areas are programs piece their budgets together from mUltiple ed monies for protection of animals and beautifica­ often confronted with special problems that \:';)men in [T]he likelihood of her suffering geographical and social funding sources, public and private. 55 As a result, tion of the community.1I1 urban areas may not experience. 70 Edwin Frownfelter, a isolation is great. This situatioll is compounded by a lack few shelters have secure funding and most face the of anonymity if she does seek help. In some rural areas Fewer than 15 States have enacted laws prQviding rural legal services attorney, summarized factors in the there is no training at all for ,police, much less specific possibility of closing each year. 56 funding for shelters, and most of this legislation does rural environment, such as traditional values, peer pres­ training in domr!stic violence. Judges, who are responsible During the Commission'!; consultation, Shelly not guarantee permanent funding. Funding, even in sure, and physical isolation, that could lead to the high for signing warrants to enforce restraining orders, often Fernandez of La Casa shelter' discussed the unstable these States, is generally not adequate to lneet the incidence of domestic vIolence: are difficult to reach. . . . financial condition of shelters: needs of shelter programs.82 . We fOlmd we had need for money for the shelter, very Funding pattems of Federal agencies and· private I think there are several. One is the strong sense of Legal aid is non-existent in most rural areas. Where it does bad1y. We didn't know what to do. So, we went to Our foundations present still another problem for shel­ tradition .... exist. it is restricted to those citizel\\s living in the county in which it is found. local foundation and we got some small seed money ters.63 In the past, Federal monies have been avail­ grants. We still have that determination to keep getting able for research projects only. Private foundations, money because our money is running out. We get it for 1 There's a lot of pressure on individual!! to maintain the though providing billions of dollars for community­ There are few jobs for which a WOl1'\an can apply in a rural year, $5,000 here, and $6,000 there. Now we are in our family relationship. . . .Be a better wife rued the problem town. Furthermore. the findings of the Nebraska Task third year. We still have determination, but we need your based social service projects, have allocated less will stop. This comes from the ministers. . . .it. comes Force on Bat.tered Women indicate that most rural women help.17 than one-fifth of one percent of that total to fund from the police. It comes from friends and family. . .and havCi wl)rkea only on the fartn or in the house and have no 64 in a tiny. . .sealed society like Pulton County, that marketable skills.72 Echoing Ms. Fernandez' sentiments, Monica Erk­ women's projects. At the consultation, one shelter amount of peer pressure can be an incredible force for ler of Women's Advocates said: representative said: molding a women's behavior. When women are isolated, they often must rely on the State police to respond to calls for assistance in When. • . .she talked about the continuing problem in domestic situations. In many instan(leS, the response budgeting and the ever continuing search for funds, I We don~t want research and demonstration grants, we \, " There are a lot of women who are literally prisoners of to calls for assistance from abused women in rural thought of our position right now. We are preparing our don't want any of those. We know what we are doinS. We their husbands, dopendent on them for everything, for any sixth or seventh budget, I am not sure whi.~h. We are still don't nel',,d the luxury of research grants. Women are kind of transportation, for their income, for the basic areas is inadequate due to the distam:es police must scrounging for $5,000 and $10,000 here and there to mllke suffering and hurting. We know the problems of the necessities of life, and it is a scary prospect for them to travel to reach them.73 According to one rural legal up a budget, which is over $200,000.58 battered womell, we need money to establish shelters to give all that up and go out and face what can be a very services attorney, the State police in Flennsylvania at work on methods to share our knowledge with the harsh and difficult life of poverty, especially where there one time had a written policy that they would not '\ This funding problem may be even more severe thousands of people across this Nation who need to open are children involved, so they stay. '\ / re~\pond to domestic calls unless someone had been for rural shelters that must compete with urban shelters with adequate and ongoing funding. 65 7 killed. ' This policy, however, was changed after 11 shelters for funding from some sources. As a rural one shelter conducted training sessions. on domestic shelter representative at the Harrisburg hearing The problem of the inadequate funding of shelters As to the incidents of abuse, Ithillk life in these isolated violence for Sta~ police. 75 noted in describing her shelter's funding problems: is c01hplicated by the reality that in the United Ii rural areas is kind of conducive to that kind of conduct. The problem of isolation for the abustld women in States "[hlalf of the shelters are located in the 10 W,e have to face the fact that life in a rural area can be i CI rural areas may be exacerbated by rural values.76 At The shelter facility is inadequate because of its most populated and urban states, and some states boring as CI1l1 be. 11·1 a lot of situations, we have perha1)s a size. . .because we have not received much financial the New Hampshire Advisory Committtle consulta­ have no shelters at liH."88 hu~arld who works ..•70, even 100 miles away. He gets I as-'Jistance, we have been operating on private donations, up at 5 in the mon-Jng to go to his job. He gets back at 7 at tion, Olivia Henry, psychiatric social worker at the A panelist at the Commission's consultation t~st~J fund raising, small grants, and have not been operating night, dead, bone tired. What is he going to do'l Mostly he New Hampshire State Hospital, said: on. . .a large budget, and I think that a lot of the grants fied that currently, "the need for shelters far out­ ,Ii just goes out to the bar, drinks for a few hours with his ,. that we see do go to large urban areas and the rural areas weighs the numbl':lr in operation."87 Because of this buddies, lind comes aome to a tense marital situation and a are not usually considered ..•.58 .- shortage, shelters are unable to assist more than a lot oftimes that's where the abuse comes.71 There's a great deal of violence and a kind of protecti­ veness ruld real pressure not to come forward or go pUblic: This shelter's funding difficulties were increased third to a fourth of the families that need ~heir "This is a famiiy matter" .•..There's a kind of pressure " when the county discontinued its assistance to the sevices.68 on anybtldy who chooses to speak out, from the family and the ct)mnlUnity and I think from the police. 77 If Ibid. •• Del Martin, "Battered Women: Society's Problem," in James AdditIonal problems rural women may en~unter, II Cynthia Dames, chairperson, National Coalition Against Do­ Robert Chapman and Margaret Gates, eds., The J1i¢tJmization of SilCh as untrained police officers, lack of legal aid, Not only do rural values discourage battering mestic Violence, testimony, House Hearing. p. 162. Womell (Beverly Hills: Sage Publications, 1978), vol. 3 of Sage .. Ibid., pp. 141-42. yearbooks in Women's Policy Studies. p. 120 . mIld scarcity of job opportunities, are further elabo- victims from reporting domestic assaults, but geo- 'T Shelly Fernandez, statement (on behalf of Marta Segoura­ .4 Ibid, at New Hampshire Advisory Committee Consultation, p. 2. ,. Ibid. Ashley. cofounder of La Casa de las Madres. San Francisco). •• Fernandez Statement, Consultation. p, 103. ,. Fleming, Stopping Wife Abuse, p. 371. ,. Olivia Henry, testimony, New Hampshire Advisory Commit­ Consultation, p. 103 (hereafter cited as Fernandez Statement). •• Blandina Cardenas Ramirez, Commissioner. Administration for I Q T1 Edwill Frownfelter, testimony. Harrlsbllrg Hearing. pp. 4~l!-91. tee Consultation. p. 94. II Monica Erler, statement. Consultation, p. 108. Children, Youth and Families, Office of Human Development 11 U.S., ~Deparlment of Health and Human Services. A Monograp" 11 Ibid. ,. Fried Testimony, Harrisburg Hearing, p. 133. Services, Department of Health, Education. and Welfare, state­ on Services to Battered Women (undltted). pp. 96--97. 11 Fried Testimony, Harrisbu~ Hearing. p. 32. 10 Ibid. ment,HouseHearlllg. p. 175. Tt Edwin FcoWolfelter, interview in Chamilersburg, Pa., June 4, , .. It Ibid. " Moore Testimony, House Hearing. p. 124. 1980 (hereafter cited as Frownfelter Interview) . •• Dames Testimony, House Hearing, pp. 141-42. •• Ibid. 83 () 82

I L, ______~ ______.____ .. ~,,~ .. -_ ...-.:_~ ..= ___.= __~.~=._=~_:~ __ ======~==_=~:l!-~~~~~~;~~=~~===:~::~~~=~~=:~='--=-='-=-=-~" ~~"~---~::=~-~--=-:~~:=.(I . P' / , =

,------,- - -.~------~--

G

support for the Interdepartmental Committee on Domestic graphic isolation of rural families often prevents Development's regulations as an activity c:ligible for submit annual social service plans, including infor­ neighbors from reporting such incidents. 78 Sgt. Violence. II block grant funds. III Before the regulations specifi­ mation on administration and services, for HHS to George Miville of the Manchester Police Depart­ During 1979 the Office of Domestic Violence cally listed shelters, many battered women1s pro­ approve. To receive Title XX funds, a program has ment contrasted the urban and rural settings: focused on dissemination of public information and grams were discouraged from applying for funds to to be included in the State plan. Beginning in fiscal We do have apartments and houses being close by, [and] technical assistlllce, which included the creation of rehabiiitate their facilities.lll! year 1980, Title XX funds were made available for thin walls, [while] in a rural area someone could be raising a national clearinghouse to develop, collect, and In some instances, CDBG funds allocated to emergency shelter as a protective service to "an all kinds of havoc in the farmhouse and the nearest other disseminate data on domestic violence.u With the rehabilitate a structure being occupied may include adult in danger of physical or mental injury, neglect, house could be a half-mile away and it isn't heard. We temporary relocation funds for the current occu­ maltreatment, or exploitation. [Under this provision, Law Enforcement Assistance Administration, the have a lot of calls from neighbors who hear things; pants.93 In addition, a community development a]ny adult can be provided shelter for a maximum of whereas the people involved in that house where it's office funded a family violence research project at block grant may contain funds for public service 30 days [during] any 6-month period."to3 happening do not call. If there are not neighbors to hear, the Center for Women's Policy Studies in Washing­ then the call never comes in.7t activities.1I1l If a domestio violence program accentu­ Through public assistance training grants, Title ton, D.C., which provides technical assistance on ates a community development strategy for a neigh­ XX funds are available to institutions and students In small communities, the police force may be issues of domestic violence such as health, social borhood, the program's organizational expenses are for training in social service delivery and to domes­ familiar with both parties involved in a family services, criminal justice, and legal problems.84 In eligible for reimbursement as a public service.95 tic violence programs for initial and inservice train­ dispute. In cases where the officer is summoned to addition, the center publishes a newsletter, Re­ The section 8, existing housing, program provides ing of staff. To be eligible for these grants, programs the house more than once, he may become intolerant sponse. 85 rental subsidies for low- and moderate-income fami­ must be included in HHS-approved comprehensive of domestic violence victims who lodge more than For fiscal year 1980, the Office of Doraestic lies. Ds Battered women's groups can make this social service plans for their respective States.104 one complaint. It is not uncommon for police to fail Violence was authorized $1.2 million in program Federal housing program more responsive to the Shelters report that certain problems exist with to respond to these calls. If this occurs, rural women funds. With this money I it focused on technical needs of women living in shelters by: (a) asking local the program. According to the executive director of and their children are without protection and if no assistance programs,public awareness activities, tmd agencies to give priority to these women for receiv­ Rainbow Retreat in Phoenix: shelter is avai{able, they have no place to turn for ing certificates of eligibility for housing; (b) encour­ help.80 demonstration grants for comprehensive community services.8s The Office no longer exists.87 aging qualified local organizations to apply for [W]e have the Title XX money, which is Federal money, i) section 8 where it is not being used; and (c) and it has to be matched with one-fourth of clean money, The community development block grant Federal Programs monitoring the activities of the section 8 programs in which we call1,t, which is any kind of money that you can (CDBG) program88 is currently the primary source raise or proJuce that is not mixed with any Federal In the spring of 1979, Joseph Califano, then their communities.8? of Federal funds to local units of government for money, which in some centers-it creates quite a drain on Secretary of Health, Education, and Welfare, estab­ During fiscal year 1918, a specialized family them because there is just no way that they can raise this lished an Office on Dmnestic Violence within the "the development of vi.:lble urban communities."sD violence program was established within the Law kind of money .... agency.81,This office was created to: Hefore the implementation of the block grant pro­ Enforcement Assistance Administration (LEAA) to gram in 1914, cities and local governments were fund loual projects focused on improving the re­ Categorical has to be one-third of that income eligible, provide a central focus for policy planning; keep track of laBIocated Federal community development monies sponse of the criminal justice system to domestic which means that for our clients we need AFDC [aid to current developments in service delivery, research, and through a number of categorical grant programs. violence. s8 Funded projects must involve public and families with dependent children) clients or SSI [supple­ evaluation of domestic violence projects, and coordinate mental security income] clients .... these activities; h2tp to develop a Department-wide When Congress changed to the block grant pro­ private community agencies such as law enforce­ ment, social service, and medical personnel in their research and evaluation agenda; serve as a focal point for glram, many people thought that local control of the Once you get past that problem ...there is the problem of .i 89 information both within the Department and for other planning, programs, and implementation of activities activities. when this womall comes in. . .she may be married to a federal agencies and outside groups; assist other HEW " In 1978 the program funded 16 projects and in man that is making $20,000 to $30,000 a year. And in order agencies to improve services to Victims of domestic would enable the specific needs of communities to bemeUo 1980, 25 were funded. Since LEAA was being for her to ~ecome eligible for the Title XX funding she has ~ violence; develop, collect, and disseminate information on phased out at the end of the fiscal year, new projects to sign saying that she is not planning on ever returning to domestic violence; work with other federal agencies to The revitalization of shelter facilities has been ( 1 were not being funded in 1981.100 this man, which puts her in somewhat of a bind because develop joint programs and activities; provide the staff included in the Department of Housing and Urban many times she is sitting there saying, "But I don't know if Ii Under the Title XX program,lOl the Department ! '~) •• George Miville, testimony, New Hampshire Advisory Com. I am or not."10a mittee Consultation, p. 51. as Cohen, Funding Family Yiolence Programs, p.2. of Health and Human Services provides monies to .. Ibid. " Ibid., pp. 2-3. States for social services for public assistance recipi­ Another problem with the program is the time I. Ibid., p. 3. t:) ao Shirley J. Kuhle, president, Nebraska Task Force on Domestic \ Violence, statement, House Hearing. p. 323. •• Ibid., pp. 2-3. ents and for prevention of neglect, abuse, or exploi­ lapse between the shelters' rendering of services and ) II Susan Cohen, Funding Family Yiolence Programs: Sources and tation of children and adults.lo2 States are required to Title XX r~imbul'sements: or Jan Kirby Gell, program analyst, National Center on Child ,i Potential Sources for Federal Monies (Center for Women Policy Abuse and Neglect, Department of Health and Human Services, Studic-s, November 1979). pp. 2-3. II Ibid. 100 Ibid., p. 89. / telephone interview in Washington, D.C., Sept. 14. 1981. 101 . ~ •, Cardenas Ramirez Testimony, House Hearing. p. 172. Office of .. Ibid • Social Services Amendment of 1974, Pub. L. No. 93-647, 12, Domestic Violence Projects funded as of October 1980 include .1 Housing nnd Community Development Act of 1974, Pub. L . .. Ibid., p. 6. 88 Stat. 2337, and amended Pub. L. No. 96-272, Title II, 120i(b), advocacy dernonstration grants to: Rockland and Family Shelter No. 93-383, 88 Stat. 633 (COdified at 42 U.S.C. 15300-5317 (1976 •• Ibid. 94 Stat. 526 (codified at 42 U.S.C. 11397.1397e (1976 and Supp • Center for Advocacy and SUpportive Services, P.O. BOlt 517 and Supp. UlI979). •• Ibid., p. 13. III 1979» • Nyack. New Yorki Domestic Intervention Program, State Attor. •• Ellen Pence, (Nl\tionai Emergency and Long-Term Housing " Ibid. 10' Cohen, Funding Family Violence Programs. p. 9. ney's Office, 1351 NW 12th Street, Miami, Florir'. 33215: Coalition Against Domestic Violence, undated). p. 5. W.O.M.A.N., Inc., 2940 16th Street, Suite 202, San ~ 'mncisco If Ibid., p. J5. 103 Ibid., pp. 9-10. (',I 110 Ibid. C.alifomia 94103; and Family and Children's Service, 115 wesi .. Ibid., p. 16. 10. Ibid., pp. 3-4 • , Sixth Street, Davenport, Iowa 52803. .. Ibid., p. 84. 101 Rhoads Testimony, Phoenix Hearing. p. 19.

84 85 ,,( I

" f I • ,

,w--;. -.~'""", .. "---'-~".~- --.... _...

I'

~, i : ,JI " ... i "1I

i1 I , I ~' .•~

, J ~\., l '~ I .

, \\

~' } .. \\ \

.> , J J , , ·1

C' ,

" [W]e provide ~ services and we do not get paid .for the the other half are either counseling centers or Another common thing that happens is he will destroy progr~m, pointed out to me' very early on that despite the s.en:ices that we provide for from 6 t~ 8, to ~metimes 1~ hoilines.fJuo every specific piece of documentation she h~ for this fact that we have some very good staff, the success of the v.-ee'ks after we have provided the servIces, which mnkes It specific purpose, so llhe cannot prove who she lS. I have pUblic welfar~ programs for many years has been mea­ ~iery difficult for a small nonprofit agency such as ours. It The ?6th Congress ccnsidered H.R. 2977, the had them 'lear up her sO

...- •• ,. ,"< '-·~"-~-+~'··'~O·~-:t·, ... -"," .. "-.",,-,,-.. ,....,..,.~,,. "~~"""''V.>i ...... ,,,-,,~.~ • •• ""___ '~._._._ •.• ; ___ •.______, __'._. _____, __ ,-:-.,___ . ___ ,., o 0 o ~

!t' I ~-..-..:~--.:.------...... \>'-----~------____ ~ ______== ______~(~w.---

(il

'" •• ~ .. ..,...... -.~~ ••• - ••••.• __ "~ .... ~'_H ___ • "_,'I .• " Emergency assistance is assistance we can give to a person make av~ab]e to them cannot in any way move tow d for a period of 30 days if they

.",

()

0/( . . . ,.

L t rf­ I

Legal Services Corporation, however, may mean reduced services to battered women. Chapter 8

Summary of Findings and Recommendations

Chapter 3: The Police wCiUld be appropriate were assailants and victims not Finding 3.1: Police decisions, including departmental related or acquainted, while bearing in mind the policies and the practices of individual officers, extra protection necessary for victims who m(~y be affect the justice system's ability to protect the legal emotionally or financially dependent on their assail­ rights and physical safety of battered women. ants. If investigation of the facts surrounding a The police stand at the entrance to the justice dispute discloses that an assault has occurred, the system, and their actions often prevent or discourage officers should take appropriate action against the battered women from pursuing criminal remedies assailant. against their abusers. Left unchecked, spouse abuse generally increases in severity as time passes, result­ [ ing in the victim's death in many cases. Where police Finding 3.3: Police generally are reluctant to respond :1 policies and practices are based on misperceptions of to domestic disturbances, which the officers view as domestic violence, officers are unlikely to respond dangerous to themselves, emotionally charged, and ii i' effectively to battered women's calls for assistance, difficult to resolve. Some police departments do not i1 which perpetuates and reinforces the patterns of require officers to respond to such calls, while other departments assign the calls low priority. = violence. Recommendation 3.1: Police officers should receive Although the relationship between the victim and specific training for handling domestic violence assailant in abuse cases increases the danger of cases. Such training should be developed in coopera­ serious injury or death, the assignment of low tion with those who are operating shelters for response priorities on the basis of such a relationship indicates that pOlice generally do not view the battered women and others familiar with the partic­ : \ ular needs of battered women. situation as critical. Some departments also adopt I policies limiting the types of situations to which they o' will respond, ignoring calls where an assault has Ii'I Finding 3.2: Police traditionally have viewed most been threatened but has not yet occurred or where ~ r' .. f incidents of spouse abuse as private matters that are the assailant has left the scene. j best resolved by the parties themselves without Recommendation 3.3: The police should respond in resort to the legal process. person to every call alleging abuse. Police depart­ Underlying the notion that spouse abuse is a ments should assign response priorities for abuse , : private rather than a police matter is the belief that calls according to the standards established tor all I' assault is not a crime if the assailant is related to the other violent crimes, that is, according to the degree victim. Many police departments subscribe tn this . of danger to the victim. philosophy, although the criminal law allows for no t. .. such exception. Finding 3.4: Many police departments apply formal Recommendation 3.2: Police officers responding to , or iacit arrest-avoidance policies to domestic vio­ 90 domestic violence calls should take whatever action lence cases.

91

I j,

, j Several factors, including the beliefs that spouse~ the civil process is meant to supplant the criminal more likely than other assaults tq n~cur, there Prosecutors often accord defendants in domestic abuse is a private matter and that arrest will not process. This notion is fostered by departmental frequently is nq, record to alert ~I)ffi(:ers to an assault cases preferentiai treatment not shown defen­ ultimately result in conviction or sanction, have led guidelines that lump domestic assaults with noncri­ assailant's history; Of violent behavior, When officers dants in other assault cases. At the same time, abuse police to avoid arresting abusers. Police officers in minal matters, such as landlord-tenant and neighbor do record domest~{; ~,ssaults, they often neglect to victims' must overcome procedural barriers, such as many jurisdictions also claim they fear lawsuits fOf disputes, or that state or imply stricter arrest report whether th~ in~lidents involvit~d .force or the waiting periods, that do not apply to victims of other j,' ,.1'( false arrest if the alleged assailant is found innocent standards for spouse abuse than for other violent threat of force, or to inaicate the rel(litionships of the violent c:ti~es. 'I in court, but the standards for false arrest ar,'~ the crimes. When officers refer the victim to civil or parties, whk.b. may make the repo~lts impossible to RecommendD:tion 4.2: Prosecutors should base charg. ,\ same in abuse cases as in any other type of case and private criminal remedies, they leave her responsible distinguIsh from those of assaults ~1I1volving strang- ing decisions only on the merits of the cases. should not deter police from making arrests where for enforcing the law and, thus, subject to threats ers. appropriate. and pressure from her assailant if she proceeds Reconunendation 3.8: Police deVlartments should Finding 4.3: Some prosecutors hesitate to file Recommendation 3.4: Police departments should against him. reform their recordkeeping procedures to assure that charges against abusers, based on the belief that abandon policies of noninterference and arrest Recommendation 3.6: Although police officers the officers and outside agencies have access to more domestic violence is a noncriminal, personal matter avoidance for domestic assaults. Where officers have should explain available remedies and services to complete information about d0111estic violence. The or that prosecution would adversely affect the probable cause to believe a crime has occurred, they abuse victims and malte referrals to the appropriate Federal Bureau of InvestigatioJ,l should assist this parties' marriages. should make an arrest. In circumstances where the offices or agencies, departmental policies should effort by creating "stranger" and "nonstranger" Like other law enforcement officials, many prose­ officers are not empowered to arrest, they should emphasize the criminality of domestic assaults and categories within Uniform Cnloe Reports statistics cutors suffer misconceptiQns about domestic vio­ explain citizen arrest procedures to the victim and encourage officers to resolve them in a professional on assault and aggravated as&lault. The "nonstran­ lence and are unaware of its tendency to escalate, assist her in making such an arrest. Police should manner, making arrests where appropriate. The ger" category should includCt a further breakdown I';ven to the point of murder. Although apouse abuse enforce laws prohibitulg spouse abuse .without re­ officlers should make it clear that they are acting as by relationship of the parties. Statistics on activities may seem a purely domestic problem to many gard to the actions they think that prosecutors and agents of the State or community, rather than shift in which police officers wer(~ assaulted or murdered prosecutors, their role is to prosecute criminal acts courts subsequently may take. their responsibilities to the victim. should also be broken dOW~i into domestic disputes reSUlting fmm domestic disputes. and other disputes. Recommendation 4.3: Prosecutors should receive Finding 3.5: Police officers are trained and encour­ Finding 3.7: Police officers frequently try to separate training about the causes and criminal nature of aged to apply mediation and con,ciliation techniques the assailant and victim .!for a short timet rather than spouse abuse and about procedures for enforcing in cases involving criminal SpOtllsal assault, where Chapter 4: The Prosecutors statutes that prohibit such conduct. make an arrest. In such cases, shelter facilities for Finding 4.1: ProsecutorlJ enjoy wide discretion to such techniques are inappropriate. Finding 4.4: Prosecutors often treat victims of spouse battered women and their children provide a vital determine which criminul cases will be prosecuted Communication skills and crisis intervention tech­ abuse as if they, rather than the defendants, were service. " and often accord low priority to cases involving niques can be useful tools to help police gather accused of criminal conduct. When police do not arrest an assailant, he m~y domestic violence.' information about whether a crime has been com­ Victims of domestic violence, like rape victims, continue harassing or abusing his victim unless she Beyond deciding whether there is enough evi~ mitted and to help officers refer victims to social have had to endure the doubts, accusations, and has an alternative place to stay. The homes offriends dence to prosecute individual cases, prosecutors services or legal assistance. Many police depart­ Cf)utempt of many law enforcement officials, who and relatives are generally accessible to abusers, and often make policy decisions about what types of ment''', however, encourage the use of such tools to assume that the women incite their assailants to hotel costs nre prohibitive for the many victims who cases to pursue. Most prosecutors have large case­ replace rather than augment the criminal process, violence. Many prosecutors exhibit this kind of are financially dependent upon their lasslillants. loads and allocate office resources by establishing with officers attempting to mediate between the prejudice, discounting victims' descriptions of Consequently, shelter facilities can be lilfe-~iaving priorities for prosecution. Spouse abuse cases tend to victim and the assailant to resolve the conflict events because of their relationships with their refuges. receive veil'Y low prosecutorial priority, which fre­ without further involving the justice system. assailants. • Recommendation 3.7: Although officers should not quently intluences how police and judges respond to Recommendation 3.5: Although police officers Recommendation 4.4: Prosecutors should treat abuse use shelters for victims of domestic violence as such cases, Police officers, for example, may be less should be trained in communications and crisis victims no differently from victims of other crimes, ] substitutes for arresting assailants, police depart­ interested no l\rCe~ting an assailant if they know the intervention techniques and be able to suggest the recognizing that physical violence is a legally I, i ments should continue and increase their coopera­ prosecutor probably will not pursue the case. ~ use of other remedies and services available to abuse unacceptable response to personal or family stress r tion with shelter personnel. Officers should provide Recommemlation 4.1: Prosecutors should give bat­ victims, the officers should not use these routes as and. that responsibility for cIiminal acts lies with i '" victims with information about available shelters and tered ~ wonten the same protection, support, and ~ substitutes for law enforcement and should not those who commit them, regardless, of their relation­ I arrange transportation when necessary to protect respedt given other victims of violent crime, by " attempt r'llSolve privately conflicts that' have ships with their victims. to victims and their children. establishing' equitable charging policies and encout­ resulted in violations of the law. aging polic~1 and judges to handle domestic violence Finding 4.5: Prosecutors frequently attribute the low Finding 3.8: Existing reporting practices handicap fairly and appropriately. Finding 3.6: Instead of taking appropriate police police ability to deal effectively with domestic rate of prosecution in spouse abuse cases to lack of action, offic~rs frequently recommend that domestic assault cases and unnecessarily limit the amount of victim cooperation, which may become a self-fulfill­ assault victims seek civil legal remedies \')r file available information about spouse abuse. Finding 4.2: The rate of prosecution and conviction ing prophecy. Prosecutors who believe that abuse victims will not cooperate with the prosecution of private criminal complaints. Police officers often fail to write reports on in criminal cases drops sharply wh~n there is a prior their cases frequently discourage the victims from Where civil remedies to spouse abuse ~re avail­ incidents of domestic violence that do not result in or present relationship between the alleged assailant using the criminal justice system. able, the police sometimes mistakenly believe that arrest. As a result, although domestic assaults are and the victim. " 92 93

l' I) '. - ,. l """""---~---,---.-~-~------,------""---.",,,

Studies have shown that prosecutors tend to Recommendation 4.7: Charges in abuse cases should overestimate the number of battered women who reflect the seriousness of the crime. trates and justices of the peace. These members of to penalties no greater than those for first offenses. refuse to cooperate in the prosecution of theh' the minor judiciary greatly influence the way the Such sanctions do little to deter future abusive abusers, but the fact remains that the rate of attrition Finding 4.8: Some prosecutors have improved their justice system treats abuse cases, frequently deciding behavior. in such cases is high. Prosecutors often decline or handling of domestic violence cases by offering what charges to bring against defendants and hold­ Recommendation 5.4: Judges should impose sanc­ dismiss abuse cases on the presumption that victims innovative support services to battered women. ing hearings that dispose of cases. The types of tions in spouse abuse cases commensurate with the ultimately will not cooperate, regardless of what In some cities, prosecutors have established pro­ remedies that magistrates and justices of the peace seriousness of the offenses and comparable to those they say during initial interview$. Many prosecutors grams that emphasize to victims and assailants that can offer battered women, however, often are imposed in cases where the partie:~ are not related or delay filing charges in abuse cases until a waiting spouse abuse violates criminal law and that the State limited to peace bonds, harassment citations, or acquainted. Judges should imposl:l stiff penalties on period has passed to give victims time to change will treat it as any other crime against pUblic peace similarly ineffectual options. repeat offenders and on defendants who threaten their minds about prosecuting before work begins on and security. These programs offer support services Recommendation 5.2: Magistrates and justices of the their victims, trying to coerce them into dropping their cases. Some prosecutors downplay the likeli­ to victims, which elicits their cooperation and trust, peac~ with jurisdiction aver any aspect of spouse charges. Probation, suspended sentences, and de­ hood of successful prosecution, attempting to per­ and make referrals to help victims meet needs that abuse cases should be trained on the laws governing ferred judgments should be available only in first suade victims to drop the charges, seek civil action, are not met by prosecution and sentencing. relevant offenses and on the battering syndrome, convictions for offenses not involving serious injury, or agree to allow defendants to participate in Recommendation 4.8: Prosecutors should take full Where protection orders are available to abuse and violation of any conditions attached to such diversion programs instead of going forWard with advantage of experimental domestic violence victims, members of the minor jUdiciary should be dis!,ositions should result immediately in appropriate prosecution. These practices undermine the goals of projects and institute policy and procedural changes given jurisdiction to issue such orders, at least sanctions. prosecuting violent crime and deterring repeat to improve handling of abuse cases. temporarily, until a higher court can hold a hearing offenses. on the issue. Recomtnendation 4.5: Prosecutors should not apply Finding 5.5: Although civil orders prohibiting abu­ Chapter 5: The Courts sive conduct or excluding abusive spouses from their more stringent filing requirements 01' charging poli­ Finding 5.3: There are advantages and disadvantages Finding 5.1: Although civil and criminal remedies to families' homes fill a distinct need not met by cies to domestic assaults than to other assaults and inherent in both civil and criminal remedies to spouse abuse are most effective when. used in criminal remedies, such orders are not available to should not decline or dismiss meritorious cases. spouse abuse, but some judges prefer one type of conjunction with one another, there is confusion many battered women. remedy and use it exclusively. between these types of remedies, which undermines Protection orders for victims of spouse abuse f.tre Finding 4.6: Prosecutors rarely subpena victims to enforcement of both. Civil remedies, such as protection orders, may be not available under the laws ()f many States. In other testify in abuse cases, although such action frequent­ faster and more flexible than criminal remedies and In jurisdictions where civil protection orders are States, despite statutes authorizing protection orders, ly could circumvent victim noncooperation. may resolve problems without the social stigma and available, some law enforcement pe!'sonnel assume some judges are reluctant or unwilling to issue such Prosecutors often subpena hc;stile witnesses in economic deprivation criminal convictions may that victims must obtain such orders before they are orders, in part out of con(~ern for the rights of cases involving violent crimes. Because prosecutors cause. In some cases, however, incar~eration may be entitled to police protection, which hinders enfome­ abusers. Even where judges are willing to issue generally view spouse abuse as a private matter, necessary to prevent abusers from renewed attacks, ment of the criminal la.ws. At the same time~ civil protection orders, abuse victims do not have a right however, they rarely subpena abuse victims who are or the nature of the violence may demand prosecu­ court judges often hesitate to enforce civil protec­ to counsel when seeking civil remedies, as opposed reluctant to testify. Instead, the decision whether to tion. In such situtations, criminal remedies are tion orders, in part because th~ penalties generally to criminal remedies, and Ithe orders may not be prosecute becomes the victhns' responsibility. As a warranted. Despite the utility of both types of provided by State statutes are quasi-criminal rather available quickly enough to prevent further vio­ result, many victims elect to drop the charges remedies, some judges prefer to resolve all abuse than civil in nature. In some juris'Uctions, civil court lence. because they fear renewed violence if the prosecu­ cases with only one approach. judges have tried to transfer cas~\s to the criminal Recommendation 5.5: States should enact legislation tion goes forward. Where prosecutors subpena Recommendation 5.3: Both civil and criminal remed­ courts, rather than impose criminal remedies. Sanc­ to provide protection orde:rs for abuse victims and victims, defendants cannot use threats of violence to ies have a role in spouse abuse cases and should be tions for violating protection orders in spouse abuse should provide coordination at the State level to coerce victims, and victim c(loperation is more used in a coordinated manner to provide maximum likely. cases, however, are no different frol\l1 sanctions for ensure effective implementation. Victim/witness violating many other civil orders. protection for battered women. Recommendation 4.6: Prosecutors should use their programs should be available in every jurisdiction to Recommendation 5.1: States should provide trruning assist battered women thr()Ughout the judicial pro­ a~t~ority to require the attendance and testimony of Finding 5.4: When abusers are convicted, judges for judges, magistrates, justices of the peace, and cess. Advocacy services should be available fcr VIctIms by subpena where this will advance the seldom impose sanctions commensurate with the other law enforcement personnel to clarify the those seeking civil remedies as well as for those prosecution of the case) or protect and support the seriousness of the offenses or comparable with victims. appropriate sanctions for violating civil 'protection filing criminal charges. . orders and criminal laws relating to spouse abuse. sanctions for similar violence against strangers. Incarceration of abusers is rare. Instead, magis­ Finding .4.7: Prosecutors frequently charge spouse :1 Finding 5.2: Most cases of spouse abuse never reach trates and justices of the peace routinely treat spouse Finding 5.6: When abusers violate protection orders, i Ii abusers with crimes less serious than their conduct abuse .. as a minor offense and impose nominal many judges fail to impose meaningful sanctions. II seems to warrant. courts of general jurisdiction. Entry-level courts i generally resolve those cases police or prosecutors sanctici~s, generally a small fine, while judges Some judges routinely fiind abusers in contempt of Many prosecutors routinely charge abusive have not diverted previously. frequel!iUy suspend sentences, defer judgments, or court for violating protec:tion orders and then tell spouses with minor offenses, such as harassment, gran~probation for convicted abusers. Whc)n abusers the abusers that they can purge themselves of Spouse abuse cases seldom come to ~ourt, but even where the victim has been seriously injured. contempt of court by not repeating their contemptu­ when they do, they usually are handled by magis- vic~ate conditions I\)f probation, judges seldom re­ , voke their probation, and repeat offenses often lead ous conduct. Judges often treat each new offense as 94 9S

; L'

, - , , I !

a new act, without regard to pre\dous strictures Recommendation 6.1: Pretrial diversion programs are emotionally dependent upon their abusers and imp­ others who come into contact with battered women against such conduct. inappropriate ill cases involving serious or repeated overished. in the course of their professions. Recommendation 5.6: Judges should order punish­ physical violence and are not recommended. Where Recommendation 7.1: Congress should ensure that ment for violations of protection orders with mean­ such programs exist, however. immediate prosecu­ the U.S. Department of Health and Human Services Finding 7.4: Shelters for abuse victims cannot .con­ ingful sanctions to ensure the deterrent value of such has the .authority t() monitor the nationwi~e .esta?­ tion should result from violations of any conditions tinue without support from the public and pnvate f. orders. lishment of emergency shelters for abuse victims III !\\ the programs establish. sectors. . each State. If a State is determined to be shirking its Shelters are the cornerstone of support services duties then the Department of Health and Human " Finding 5.7: Many judges approach abuse cases as Finding 6.2: Mandatory cou.'lseJing for spouse abus­ for battered women who are forced to leave home to should provide direct technical Ii isolated incidents Qf aberrant behavior between ers can be effective, especially after conviction wh~n Servi~es assistan~e escape violent spouses. Nevertheless, most sh~lters and training to shelter operators and grants to pubhc consenting adults rather than as examples of a the counseling is a condition of probation. In many must piece their budgets toget~er from a?y avalJable and nonprofit private agencies for domestic violence II widespread societal problem. jurisdictions, however, such programs are available source. Until public and pnvate fundmg soure~s Ii projects. F Judges frequently express the view that spouse to defendants charged with very serious or repeat recognize shelters as essential, shelter personnel ~ill 01 abuse is a "family" matter that should remain out of offenses, where diversion is generally inappropriate. have to spend inordinate amounts of time struggbng Finding 7.2: Shelter personnel. are trying to educate public view. Many judges believe that their sworn In cases where the pattern of abuse has not yet for funding to survive. lU.d sensitize the public about domestic violence, but Ii duty to uphold the sanctity of rcarriage supersedes resulted in serious injury, and where abusers gen­ Recommendation 7.4: Each State should establish a their task is difficult because of ingrained attitudes. I: their duty to enforce eriminallaws. As a result, such uinely desire to alter their behavior and have the domestic violence office to coordinate State, Feder­ In the past, social service agencies tre~te~ ~pouse 1\ judges are routinely lenient in spouse abuse cases, additional motivation of incarceration for failure to al, and local programs within the S~te, in ord~r to J, abuse as aberrant behavior between mdlvldu~s, I' reinforcing patterns of violence by signaling abusers do so, counseling may help them learn how to ensure that adequate funding is prOVided for projects rather than as a societal problem. Now, soc181 and victims that the courts will not interfere in their handle stress without resorting to violence. Where such as counseling for abusers and victims, shelters, " service personnel are coming to understand that 11 conduct. defendants are charged with serious or repeat and training, and to compile statistics on spouse Ii violence is a learned behavior and that children who I' Recommendation 5.7: State associations of judges offenses, mandatory counseling is an insufficient abuse. grow up in violent homes generally p~rpet .ute the Ii should provide training for members on the batter­ sanction. I[ patterns of violence as adults, both III their own It ing syndrome and should encourage judges to treat Recommendation 6.2: Mandatory counseling should d homes and in their relations with outsiders. Those FInding 7.5: Battered women in rural areas have spouse abuse as a serious crime. Judges should not be used instead of prosecution, but should be Ii who operate battered women's shelters are trying to unique problems to which the justice system has provide leadership for other members of the justice used only as a condition of probation. Violations i/ educate the public about the consequences of allow­ responded ineffectively. : system, including the private bar, and should make it should result in immediate revocation of probation. ing violence to go unchecked, but meager funds The isolation of rural life compounds the prob­ \ clear to victims and abusers that the courts will not I make it difficult to counter widespread, ingrained lems battered women normally face. Public trans­ tolerate domestic violence. Findilllg 6.3: MediL'ltion and arbitration, which are attitudes about spouse abuse. portation is usually nonexistent. There may be .no genel'ally inappropriate for settling domestic prob­ Recommendation 7.2: The U.S. Department of neighbors nearby to hear cries for help. The pollee lems where one party has been violent to the other, Chapter 6: Diversion Programs Health and Human Services should monitor State may have 'to travel great distances to respond .to are still used as substitutes for prosecution in some victims; calls. Shelter facilities are not readdy Finding 6.1: Prosecutors often use informal hearing jurisdictions. and local public education prograrl'!,s to ens~re that procedUres to screen out Spouse abuse cases. Such there are concerted efforts to sponsor media cam­ available, and local attitudes may. make it difficult to Mediation and arbitration place the parties on tum to friends or relatives for assistance. informal settings tend to produce an atmosphere of paigns, similar to those on alcoholism and child equal footing and ask them to negotiate an agree­ Recommendation 7.5: Shelters for battered women fear and coercion for abuse victims, frequently result abuse, to increase public awareness about spouse ment for future behavior. Beyond failing to punish should be established in rural areas, and transporta­ in no criminal action against defendants, and mini­ abuse. assailants for their crimes, this process implies that tion should be available so that victims can use such mize any implication of wrongdoing by abusers. victims share responsibility for the illegal conduct facilities. When diversion programs originally were estab­ Finding 7.3: Shelter personnel are sensitizing the and requires them to agree to modify their own lished, defendants who had been accused of crimes justice system by educating police, prosecutors, and behavior in exchange for the assailants' promises not of violence were not eligible to participate. As the judges about the battering syndrome. Finding 7.6: Shelters assist battered women to obt~ to commit further crimes. programs evolved, however, many began to allow Some shelters have placed special emphasis on available financial assistance, counseling, and family Recommendation 6.3: Mediation and arbitration participation by spouse abusers. By diverting spouse educating police, since they are the first c?nt~ct services through the public welfare system. should never be used as an alternative to prosecution abuse cases away from the criminal justice system battered women generally have with the Justice Beyond providing refuge from violence, shelt~rs in cases involving physical violence. before trial, law enforcement officials imply to system. Many police departments welcome shelter help abuse victims by maki~g refe~r~s to SOCial victims and assailants that the abusive conduct is assistance in providing training to officers because service agencies that can prOVIde add.tlonal support something less than criminal. Agreements or condi­ Chapter7: Shelters and Social Services responding to spouse ~buse calls trad!tionaUy has services. Eligibility requirements and benefits vary Finding 7.1: Shelters provide vital and essential tions established in such informal settings rarely been a frustrating expenence for the pollce. significantly from State to State, but battered wom­ support services for battered women. have the force of law or result in prosecution when Recommendation 7.3: The U.S. Department of Edu­ en generally qualify for assistance if they have been Shelters provide abuse victims with a safe place violated. Consequently, victims and assailants are cation should monitor the development of State and financially dependent on their abusers before coming , from which to pUrsue legal remedies. Shelters also left with the impression that the justice system will local projects to train police, prosecutors, judges, to the shelters. Shelter personnel can help an ab~se not interfere with abusive condu.,~.t. offer necessary housing and emotional assistance to school teachers, mental health workers, clergy, and victim with the problems she may encounter With battered women and their families, who are often 96 97 , ------.-- ... -----~------.

,r

i' ;\ ! i,) " hil \' welfare departments and social service agen­ oth~;! Legal services provide access to the justice system Ii cies if there is confusion about her eligibility. for those Who could not otherwise afford it. Because Recommendation 7.6: Welfare departments should '11 APPENDIX " establish policies to expedite applications for assis­ many battered women do not have independent 'I tance from batt.ered women. income, they are likely to qualify for legal assistance '\ for divorces and civil protection orders. When legal 1 Finding 7.7: After leaving violent homes, many services offices allocate their reduced resources, it is battered women seek advice and assistance from unclear that they will be able to continue serving legal services offices, which may help the victims battered Wotnen at present rates. obtain divorces and civil protection orders. Recent Recommendation 7.7: Congress should encourage the proposals to reduce or eliminate funding for the Legal Services Corporation to make legal services CITY OF PHOENIX • OFFICE OF THE MAYOR Legal Services Corporation, however, may mean for battered women a high priority for local pro- MARGARET'r. HANCE reduced services to battered women. grams. ' MAYOR August 21, 1981

1·1r. Pau 1 Alexander Acting General Counsel United States Commission on Civil Rights Washington, D.C. 20425

Dear Mr. Alexander:

Thank you for allowing us to review your report on domestic violence. Domes­ tic violence is a complex and s ... rious problem in our society.

" The excerpts of testimony in your report appear to be factual and c'omplete. I The testimony presents a generally fair picture of past criminal justice sys­ tem handling of domestic violence in our community.

Although one alternative inclUdes strong arrest, prosecution and sentencing practices in domestic violence cases, I believe that some of the conclusions and implications msd>e by the report authors ignore the real problems of devel­ oping stronger enforc~ment. They also suggest that criminal system sanctions in themselves can have a dramatic impact on the problem.

The Police, Pros(;cution and Court Systems have a very heavy workload and are pressed to fulfill their responsibilities with ~ncreasingly limited resources. ; If a wife in a domestic violence case ultimately ~efuses to testify against her husband, a great e.mount of work, time and tax-supported expense has been consumed for nothing. Other important criminal justice actions will have been left undone due to lack of resources. For this reason, all elements of the criminal justice system have sought a strong case before initiating prosecu­ tion.

Cr~inal justice system action, is only one element of what is needed to sig­ nificantly reduce domestic violence. Overemphasis on police response tends to downplay the importance of trained interpersonal intervention to change the involved people and their relationships. A long-term solution to this problem , 98

99 ,

0"

"'-'""-----..;.....-.....------'------~--.~~.----- .. .\\ .. = Ii -1 <-<---.-~----.------.:..-.------<----.------<-.------.-~------.------~-:.------=::::=,~~ \1 ,

11 Mr. Paul Alexander I August 21, 1981 1 P-l:ige 2 I 1 1 r7 I 1 surely depends more on these personal and sociological

Despite these longer range concerns, an effective criminal justice system response'is necessary when violence erupts. Our ability to provide this I response was improved locally with the adoption of domestic violence legisla­ tion by the Arizona State Legislature. The new statute allows protective I orders for victims and provides police officers the authority to arrest for ! domestic violence offenses that were not committed in the officer's presence. This new legislation coupled by increased commitment by the new Phoenix Chief I of Police, Ruben Ortega, has resulted in stronger action by Phoenix police in response to this problem. II

I hope the City of Phoenix has been helpful to you i,n developing a better 1 awareness of the proble.m of domestic \ >olence. 1 Q' \ Sincerely, J }) , \, <1 nOJ\~(lJ\tr '-\tllle'£. Margaret T. Hance /1 MAYOR I j cc: Chief Ortega I! i I a i' 1\ I ; l [ ~ II \) , 100 a

I

, - II L" ------~-----~----

(.\ i "~

~ I JI 1

'\ I

t, II .,'

)) ... 1 o