Battered Women and the Criminal Justice System: Violence Is Violence or Is It?

Battered Women and the Criminal Justice System: Violence Is Violence or Is It?

Battered Women and the Criminal Justice System: Violence Is Violence or Is It?
Battered Women and the Criminal Justice System: Violence Is Violence or Is It?

A woman is beaten by her husband hundreds of times. She divorces him and then testifies against him in court. He is sent to prison and vows to get even with her some day. A note is placed in his file that she must be warned before he is released from custody. One day he is let out for a brief furlough, but she is not contacted. He catches her by surprise at home and murders her. (Pollitt, 1989)

Decades ago, battered women seeking help from the criminal justice system were regularly mal- treated, discouraged, disappointed, and repeatedly injured as the authorities stood idly by because a double standard prevailed. The assaults were not considered by police departments, prosecutors, and courts as “real crimes” because the violence was not carried out by strangers. The dominant noninterventionist ideology recommended that the long arm of the law shouldn’t reach into the sanctuary of the home and intrude into private fam- ily squabbles between spouses unless the fighting approached life-threatening levels. Otherwise, bat- tered women were urged to endure their lot and preserve their marriages by forgiving and forgetting.

The consciousness-raising efforts undertaken by activists in the battered women’s movement during the 1970s successfully convinced many peo- ple that a hands-off policy endangers wives who feel trapped in abusive relationships. Women in dis- tress needed, and were entitled to, the Constitu- tion’s pledge of “equal protection under the law.” The marriage license did not grant husbands a license to hit their wives. Fights between partners could have grave consequences when left to fester

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and smolder. Instead of fading away, the conflicts could escalate in intensity and lead to severe injuries—usually for the woman, less often for her tormentor (see Schechter, 1982).

Once the public as well as criminal justice offi- cials became convinced that intervention was the proper course of action, a question arose: “What type of response would lead to the desired results—that the violent men would change their ways?” Three long-standing options were explored: Separate the combatants, arrest the assailant, or refer the couple to marital counseling. Each choice had its possibilities and shortcomings. Battered women, their advocates, and victimologists are still divided over how best to respond to the problem: whether to pursue a legal course of action that depends on criminal justice solutions like arrest and punishment or to follow a social service approach that relies on counseling and reconciliation (see Sherman, 1986; Fagan, 1988; Gondolf, 1988; Ohlin and Tonry, 1989; Pleck, 1989; Buzawa and Buzawa, 1990; Roberts, 1990; Bouza, 1991; Bowman, 1992; Hilton, 1993; Klein et al., 1997; Healy and Smith, 1998; Jasinski and Williams, 1998; Malefyt et al., 1998; Maxwell, Garner, and Fagan, 2001; Sontag, 2002; Barner and Carney, 2011; and Buzawa, Buzawa, and Stark, 2011).

The “preserve-the-family” approach to han- dling domestic violence was favored during the 1950s and 1960s. It proposes that the objective of outside intervention should be to restore harmony to the marriage. That means salvaging the relation- ship, keeping the family intact, healing its wounds, and restoring its potential as a source of nurturing. Couples locked into ongoing bitter conflicts need to see counselors who could mediate disputes and build on the underlying strengths of their relation- ships. Advocates of this therapeutic, nonadversarial, pro-reconciliation approach presume that many battered women are partly to blame for being the first to resort to force, or at least for provoking their husbands’ ire. Such cases of shared responsibility are not well handled by the courts, with their emphasis on total guilt or complete innocence, conviction or acquittal, and victory or defeat. But seeking profes- sional assistance is a long-term approach that seems

promising only if a strong underlying bond persists, the women are not afraid to be candid during ther- apy sessions, and the aggressors are motivated and committed to voluntarily participating and to reforming their behaviors. Also, this reliance on social service agencies and mediation has been crit- icized for trivializing or condoning what might be serious criminal violence, for assuming shared responsibility, and for disregarding glaring inequal- ities in power relations between the two parties in their negotiations. Because their instability is deemed to be individual, personal, and peculiar, the approach downplays the seriousness and perva- siveness of wife beating as a social problem inextri- cably connected to family life, contemporary culture, and gender relations.

The “rely-upon-the-legal-system” approach has been in favor since the 1980s. It argues that “violence is violence,” regardless of who the offender is and what his relationship with the target of his wrath might be. Criminalizing spouse abuse entails arresting the wrongdoer, and, if he is con- victed, following up with a fine and/or a jail term, coupled with compulsory treatment in a batterers’ anger management therapy group during a period of probation. The approach rests on these tenets: Separate the parties, rescue and protect the injured, and punish but also rehabilitate the aggressor. The philosophical underpinnings of the legalistic approach are that the state has a responsibility to enforce public morality as codified in law, and that the government has a duty to intervene when vulnerable individuals are in danger and they reach out to the authorities for help. Adherents of this approach fault the criminal justice system for not taking violence between intimates as seriously as violence between strangers. Too often assailants are not arrested; or if the police take them into custody, charges are not filed or are later dropped; or if prosecutors achieve convictions, judges impose very lenient sentences (see Davies, Lyon, and Catania, 1998 and Barner and Carney, 2011).

Traditionally, strategies intended to address the problem of domestic violence have been focused on ways of helping females recognize warning signs that they are becoming involved with


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violence-prone males, aiding them to disengage from existing relationships with abusers, and devis- ing means of physically protecting them. New criminal justice policies aimed at abusers signal a social commitment to take the problem more seri- ously and to try to break the cycle that perpetuates the use of violence within families transmitted by parents who are negative role models to their imi- tative children. But criminal justice strategies that rely on arresting abusers and compelling them to enter into treatment often are ineffective because of a lack of coordination, close supervision, vigor- ous enforcement, and follow-through by service providers, police forces, prosecutors’ offices, judges, probation departments, and parole authorities (Kennedy, 2004).

The Police Response Police officers always have found breaking up fights between husbands and wives to be unpleasant, thankless, and dangerous assign- ments. In the past, departmental policies governing domestic disturbances stressed preserving the peace. The preferred course of action for officers who responded to calls about lovers’ quarrels was to pres- sure the participants to call a halt and then “kiss and make up.” If that failed, the officer might have insisted that the enraged man vacate the premises until he regained his composure. If the household was known to have been the site of a ruckus in the past, the couple might have been referred to counseling. Officers routinely failed to advise victims of their rights to file complaints because they identified with their male counterparts and assumed that the females either provoked the fights or subconsciously enjoyed the beatings. Only as a last resort—if the women’s injuries were so severe as to require surgical sutures (the “stitch rule”)—would officers make an arrest (Rhode, 1989).

A field experiment conducted in Minneapolis, Minnesota, during the early 1980s aimed to find out which course of action produced the lowest recidi- vism rate. Officers followed a randomly selected option—either compel the batterer to take a walk and cool off, refer the couple to counseling, or arrest the aggressor—before they rang the doorbell (unless they discovered clear evidence of a felonious assault). For the next six months, researchers surveyed the

victims by telephone about any further fighting and monitored that address for additional domestic distur- bance calls. The social experiment’s findings indicated that arrested offenders were about half as likely to assault their partners again (13 percent did during the follow-up period) as those men who only were forced to leave their homes to cool off (26 percent of them were recidivists). Those couples who were referred to counseling suffered a relapse rate in between these two extremes (18 percent had another violent fight). These results led the researchers to conclude that police departments should adopt a “presumption of arrest” policy unless good reasons convinced the offi- cers at the scene that taking the assailant into custody would be counterproductive (Sherman and Berk, 1984).

As the findings of this social experiment became widely publicized, many police departments shifted away from their past practice of selective enforcement based on the officers’ exercise of discretion toward an officially announced policy of full enforcement with- out discretion. They issued mandatory, or at least pro-arrest directives, even though the researchers did not go that far and had recommended only a presumptive or “preference-for-arrest” stance. Fur- thermore, the same result—a lower recidivism rate for arrested men—did not materialize when the Minneapolis Domestic Violence Experiment was rep- licated in other cities (as it must be in social science to establish external validity, which means that the findings can be generalized with confidence to other situations). In fact, the results from five replication sites suggested that arresting certain men (who were poor, unemployed, and without much of a stake in conform- ing to societal standards) may cause them to behave worse toward their mates in the future. Only batterers who were employed, well educated, and married to their partners (not just living together) seemed to be shaken and deterred by being arrested (see Berk et al., 1992; and Sherman, Berk, and Smith, 1992).

The widespread adoption of pro-arrest policies required retraining officers and a change in state laws. Police officers are empowered to make a probable cause warrantless arrest for a domestic vio- lence misdemeanor not committed in their pres- ence only in these situations: There are visible

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signs of injury, a dangerous weapon was involved, the officers believe the violence will continue after they depart, the police have prior knowledge of the offender’s predilection for violence, or an order of protection was violated (Bouza, 1991).

In many states, officers must write a complete report, transport wounded people to a nearby hos- pital, supervise the eviction of abusers from their strife-torn homes, and inform the injured parties of their legal rights by reading or presenting a writ- ten list. The woman does not have to be married to the offender to receive these forms of protection (Hendricks, 1992). Some police departments have appointed special domestic violence prevention officers who are responsible for assisting battered women with safety planning in general, and in par- ticular increasing their security in the vicinity of their homes and workplaces.

The Prosecutorial Response After deciding whether to call the police, the next dilemma a bat- tered woman faces concerns prosecution: Should she keep up the pressure and get him into further trouble, thereby jeopardizing the relationship? Or should she withdraw her complaint and permit her violent mate to come home?

Historically, prosecutors have discouraged women from pressing charges because they are con- cerned about their office’s conviction rates and don’t want to pursue cases that are likely to fall apart. Also, they have traditionally viewed domestic violence cases as private matters that don’t merit expenditures from their tight budgets. Lovers’ quar- rels ought to be diverted into mediation, assuming that both parties share responsibility for these ugly disputes and want to salvage their relationship, pro- secutors traditionally believed.

In many jurisdictions, most domestic violence cases are dismissed. Of the remainder, most are negotiated down to lesser offenses, and these con- victions usually result in a sentence of probation, perhaps coupled with mandatory participation in an anger management or aggression control pro- gram. In other jurisdictions where spouse abuse is handled more seriously, prosecutors have simplified procedures for filing complaints, set up special units

staffed with trained assistant district attorneys, pro- vided supportive victim–witness assistance programs and advocates, and devised more sentencing options. The goal is to better deal with what they call “flip-flopping” victims whose frantic 911 calls about a drunken abuser on a Saturday night give way to a Monday morning’s reconsideration about the batterer as a breadwinner (Hubbard, 2006).

A woman might bail out the man the police arrested because she fears punishing her mate would be counterproductive, resulting in further harm to her and their children in the long run. Also, she may anticipate his fury when he is ultimately released, or she may prefer that he receive treat- ment at a social program rather than punishment in the form of incarceration. The following worst-case scenario of a murder/suicide illustrates the gravity of this decision:

A single mother unwittingly seals her fate by bailing out her abusive boyfriend who is in jail for violating an order of protection. After the freed prisoner argues with his parents over the phone, he goes on a ram- page. When he barges into their apartment, she tries to flee in their car with her four-year-old daughter in tow. But as she puts the key into the ignition, he shoots her in the face. Then, while her daughter screams, he fires a bullet into his own head. (Livingston and Fagen, 2007)

Because many women change their minds about pressing charges or are manipulated or intim- idated by their violent mates to drop the charges, prosecutors in some jurisdictions have established procedures to go forward without the complai- nant’s cooperation as a key witness for the state. The available evidence in these cases without com- plainants can consist of 911 recordings of calls for help, eyewitnesses’ accounts, police officers’ testi- mony, hospital emergency room reports, photos of bruises, plus any incriminating statements by the defendant. Certain jurisdictions adopting this no-drop approach (also referred to as victimless prosecutions) have gone as far as mandating coop- eration and threatening complainants with contempt-of-court proceedings if they set the legal machinery into motion and then decide they


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don’t want to follow through and testify. Civil lib- ertarians and defense attorneys are concerned that in proceedings involving these forms of hearsay evidence, the defendant is not permitted to ask questions of the accuser, in apparent violation of the Sixth Amendment’s confrontation clause. However, the absence of the accuser in court still often results in dropped charges, dismissed cases, or acquittals (Bemiller, 2009; Bouza, 1991; Cahn and Lerman, 1991; Ferraro, 1992; Ford, 2003; O’Sullivan et. al, 2007; Dempsey, 2009 and Barner and Carney, 2011). Some victim advocates insist that the battered woman ought to be permit- ted to remain in control of “her” case and “their” future. The question of which approach works best to prevent future beatings requires impartial evaluations by researchers committed to objectivity.

Most IPV cases (nearly 85 percent) prosecuted in state courts involved charges filed against a male defendant by a woman. The overwhelming major- ity (almost 80 percent) concerned accusations of misdemeanor assault, and many of the rest involved the felony of aggravated assault (more than 10 per- cent). Close to half (46 percent) of the defendants had a history of previously abusing that same per- son. More than half were convicted, and most of them (over 80 percent) were sentenced to serve time in jail or prison (for the aggravated assaults), according to a study of prosecutions in large cities (Smith and Farole, 2009).

The Judicial Response The final set of obstacles facing victims arises from their attempts to get the courts to act in their best interests. Judges seeking to dispose of cases and clear their calendars are reluc- tant to clog up their courtrooms with long and drawn-out spouse abuse cases. But judges can take several steps to assist those who were hurt: accede to their wishes that bail either be made low, kept high, or revoked if reprisals occur; speed up case processing by avoiding continuances; and issue orders of protection or restraining orders, which are intended to shield injured parties from further attacks. These court orders are supposed to grant immediate relief by enjoining abusers from entering the battered women’s sphere of activity.

A judge’s order can evict and bar an assailant from their shared residence; prohibit contacts, threats, harassment, or stalking (and even emailing and text- ing); limit communication to matters like super- vised child visits; require him to stay away (usually at least 300 feet); insist that he pay child support; compel him to enter treatment; and force him to surrender any guns he owns (Findlaw, 2014). In the interest of the complainant’s immediate safety, a temporary order of protection can be handed down in the defendant’s absence if there is insuffi- cient time to grant notice and hold a hearing. (After a proceeding where both parties have an opportu- nity to present their versions of events, the tempo- rary order might be extended for up to a year.)

Because the orders are issued in civil court, the aim is separation of the disputants and not punish- ment. The standard of proof is a preponderance of the evidence, not guilt beyond a reasonable doubt. Violating a court order of protection can be a civil or criminal offense that subjects the trespasser to immediate arrest. However, criminal justice officials and advocates for battered women have serious doubts whether orders of protection currently are, or can ever be, truly effective. In theory, stay-away orders straddle the middle ground between inaction (no arrest, dropped charges) and overreaction (incarceration that results in escalating tensions, a criminal record, diminished job opportunities, and reduced financial support for the family).

In practice, the greatest problem is that civil orders are not vigorously enforced by many police departments, especially in high-crime urban areas (see Finn, 1991; Ferraro, 1992; and Buzawa and Buzawa, 1996). A restraining order is often dispar- aged by critics as nothing more than a piece of paper that can not guarantee security unless it is taken seriously (Kristof, 2014a). The limits of the depend-on-the-courts approach are illustrated by this worst-case scenario:

A former police officer with a prior history of abusing an ex-girlfriend gets married and then repeatedly beats his wife. He is arrested several times over the years. Eventually the mother of his four children files for divorce and gets an order of protection against him.

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But he barges into their home, kills her, and dumps her body in the woods. He is arrested at his mother’s apartment and charged with murder. (Paddock, Shapiro, and Siemaszko, 2011)

However, the overwhelming majority of women who had received a temporary or perma- nent order of protection reported that they felt bet- ter about themselves and felt safer. After obtaining the order, they also were less likely to have experi- enced unwanted contact from the abuser and less likely to have suffered injuries, according to a sur- vey conducted in the mid-1990s (Keilitz et al., 1997; see also Heisler, 2004).

To facilitate the application process, domestic violence protective order packets are provided to battered women, victim advocates, prosecutors’ offices, and private attorneys, and are also available online. The simple instructions in the kits are writ- ten in a number of languages (Lippincott, 2006). The stay-away stipulation of restraining orders is enforced using cell phones, electronic ankle bracelets, and alarm systems in some jurisdictions (Herszenhorn, 1999). The Violence Against Women Act, passed by Congress in 1994 and renewed in 2000, requires that every state fully recognize and enforce protective orders issued in a different state.

Specialized domestic violence courts have been set up to encourage battered women to call the police, file complaints, press charges, testify as wit- nesses for the state, seek orders of protection, and see cases through to completion. Judges in these integrated services courts preside over domestic vio- lence cases exclusively and are authorized to imple- ment no-drop policies that allow cases to go forward using 911 calls and police reports in place of the testimony of reluctant victims. Dismissal rates reportedly have fallen, and conviction rates have risen due to increased guilty pleas from batterers, who are often compelled to enter anger manage- ment programs as a condition of probation. Every complainant is assigned an advocate in these exper- imental specialized courts so that more victims will have faith in the effectiveness of the criminal justice system. An estimated 300 domestic violence courts were operating in 23 states at the start of the

twenty-first century (Gettleman, 2005), but a later study located only around 210 of these narrowly focused courts. A survey of key personnel deter- mined that holding offenders accountable and keeping victims safe by issuing orders of protection were their highest priorities. Most courts or the prosecutors’ offices that diverted cases to them employed victim advocates whose job was to accompany complainants throughout the process, counsel them, and make referrals to help them with matters like seeking housing. And yet substan- tial proportions of these courts did not furnish escorts to the building (50 percent), lacked separate waiting areas (40 percent), and were unable to provide childcare (75 percent), largely because of limited resources (Labriola et al., 2010).

The Legislative Response Over the decades since the “silent crisis” was rediscovered, lawmakers at federal, state, county, and municipal levels have passed numerous statutes that are intended to pro- vide special solutions to the unique problems faced by victims of domestic violence. As a consequence, the response of the legal system has improved in some ways. For example, during custody battles in family court, husbands accused of violence may claim that their former wives are poisoning the minds of their children against their fathers. The use of this argument, known as “parental alienation syndrome,” has been restricted by law in custody cases in several states (Childress, 2006). Another new regulation stipulates that landlords cannot penalize a battered woman who breaks her lease before the rental arrangement expires if she must quickly move away to a new address unknown to the abuser. When abusers are locked up, the targets of their wrath are entitled to be kept posted about their whereabouts within the correctional system and to get advance notice if their assailants are about to be released from custody (on bail, from jail, or on probation). In many states, when domes- tic violence offenders are released, they must wear electronic monitoring devices that use global posi- tioning satellites to track their locations so that their former victims can be assured that their estranged partners are a safe distance away (Higgins, 2013).


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Civil orders of protection used to be restricted to victims who were legally married or who had a child in common with their abuser. These stay away orders are now available for unmarried couples involved in domestic partnerships, whether they are heterosexual or homosexual. Also, in many states, a person—even a law enforcement officer—restrained by a domestic violence court order is prohibited from possessing a firearm while the order is in effect. This is a crucial matter because some men tend to reach for their guns right after women take out restraining orders, so to protect these complainants the firearms must be confiscated at the same time that the order of protection is issued. But in many states, a gun does not have to be handed over when a judge issues only a temporary restraining order, since the opposing party has not had a chance to present his version of events. Gun surrender laws remain a subject of great controversy, since they pit the rights of a fearful complainant against the gun ownership rights of the accused. The laws seem to be working effectively in only a few states, and fed- eral provisions intended to disarm abusive spouses are difficult to enforce. Firearms confiscation provisions, when actually carried out, were correlated with fewer IPV murders of women, according to a study of files from large cities (Heisler, 2004; Zeoli and Webster, 2010; Luo, 2013; and Editors, New York Times, 2014).

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