In the fall of 1996, Susan Finkelstein's live-in boyfriend was arrested and charged with abusing her. Today, Susan, a 31-year-old free-lance editor in a small Midwestern town, feels that she was abused by the justice system. "I felt so helpless," she says. "I had no rights. Nobody listened to me, nobody wanted to hear my story."
The tale sounds familiar enough--except that what angers Susan is not that her boyfriend was treated too leniently but that he was prosecuted at all.
It all started when Susan and her boyfriend, a 44-year-old college administrator whom I'll call Jim, were having a heated argument on the way home from a party. Both of them, Susan explains, were under a great deal of stress. The quarrel escalated, and Jim decided it would be best to pull over. He wanted to get out of the car and walk, and Susan tried to stop him. "I lost my temper, he lost his temper, and we got into a mutual scuffle," she says. "I may have scratched him, he may have pushed me. It got physical, but there certainly wasn't any beating."
Finally, they cooled down and got back on the road--only to be stopped by a police car. Susan remembers thinking that Jim might have been driving erratically during the fight and might have looked like a drunk driver. But it was something very different. A passing motorist had seen their altercation, written down their license plate number, and called the police.
Despite Susan's assurances that Jim hadn't hurt her and she wasn't afraid of him, he was handcuffed and taken away. Under department policy, an officer told her, they had to make an arrest in a domestic dispute. Says Susan, "I was very upset that they wouldn't listen when I said that I was fine. They said, `Well, we know that women who are abused often lie out of fear.'"
After spending the night in jail, Jim was arraigned on a misdemeanor charge of domestic violence and prohibited from having any contact with Susan, who had to stay with a friend. Her efforts to convince the judge and the prosecutor that nothing had happened were fruitless.
On a lawyer's advice, Jim pleaded no contest. He had to write a letter of apology to Susan (which he wrote in her presence and mailed to the district attorney's office, which forwarded it to her) and attend 10 weekly counseling sessions for batterers, a three-hour drive away, at a cost of $400. He is acutely aware that his record puts him at risk: "If Susan and I have a loud argument and a neighbor calls the police, I'll be arrested immediately," he says.
What happened to Jim and Susan--who are still together as a couple--is not an aberration. It's just another story from the trenches of what might be called the War on Domestic Violence. Born partly in response to an earlier tendency to treat wife-beating as nothing more than a marital sport, this campaign treats all relationship conflict as a crime. The zero-tolerance mentality of current domestic violence policy means that no offense is too trivial, not only for arrest but for prosecution. Consider these recent examples:
In 1996, Seattle City Councilman John Manning, who came home one day and was shocked to find his wife loading her things into a truck, was charged with assault for grabbing her shoulders and sitting her down on the tailgate (causing no injuries). He pleaded guilty to misdemeanor domestic violence, received a deferred prison sentence, and agreed to complete a treatment program for batterers. (The Seattle Times editorialized that the case gave "a public face" to the tragedy of domestic violence.)
The same year, Michigan Judge Joel Gehrke made headlines when he gave convicted spouse abuser Stewart Marshall a literal slap on the wrist, citing the wife's adultery with her husband's brother as a mitigating factor. This episode, which provoked cries about judges who go easy on wife beaters, should have raised questions instead about frivolous prosecutions. Aside from the fact that many of the jurors believed Chris Marshall had set up the incident as a leverage-gaining divorce tactic, Stewart's assault consisted of grabbing her by the sweatshirt and pushing her; she did not suffer a single scrape. A woman juror who backed Judge Gehrke's decision explained that the jury "had to say guilty" because "if you touch, it's battery."
In those cases, at least, the alleged victims wanted a
prosecution. But increasingly, women who don't--like Susan
Finkelstein--find their wishes ignored. This issue was brought into
the spotlight by the 1996 Texas trial of football star Warren Moon,
whose wife Felicia was forced to take the stand against him. In a
less famous case in St. Paul, Minnesota, two years earlier, Jeanne
Chacon, an attorney, tried not only to drop battery charges against
her fiancé, Peter Erlinder, but to serve as his lawyer. Though
Chacon herself had called the police and accused Erlinder of
"slamming" her to the ground, she quickly changed her story: Abused
as a child, she explained that she was prone to violent outbursts,
and that Erlinder had merely restrained her with a "basket-
hold" technique recommended by her own therapists. Her therapists corroborated her story, and Chacon had several violent episodes while the case was pending. Still, prosecutors insisted on going to trial--which, like the Moon case, ended in acquittal.
Like many crusades to stamp out social evils, the War on Domestic Violence is a mix of good intentions (who could be against stopping spousal abuse?), bad information, and worse theories. The result has been a host of unintended consequences that do little to empower victims while sanctioning state interference in personal relationships.
The battered women's advocacy movement, which has led the campaign against domestic abuse, is heavily influenced by radical feminist politics and tends to frame the issue in terms of a male "war against women." The mission statement of the National Coalition Against Domestic Violence links "violence against women and children" to "sexism, racism, classism, anti-semitism, able-bodyism, ageism and other oppressions." Booklets funded by government and by charities such as United Way assert that "battering is the extreme expression of the belief in male dominance over women."
Such thinking is responsible for such widely circulated factoids as "domestic violence is the leading cause of injury to American women," "battering causes more injuries to women than car accidents, rapes, and muggings combined," or "25 to 35 percent of women in emergency rooms are there for injuries from domestic violence." These patently false numbers (data from the Justice Department and the Centers for Disease Control and Prevention suggest that less than 1 percent of women's emergency-room visits are due to assaults by male partners, and that about 10 times as many women are injured in auto accidents) are complemented by increasingly expansive definitions of abuse.
Thus, in her landmark book, The Battered Woman (1979), psychologist Lenore Walker writes that "a battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something" (emphasis added). While Walker focuses primarily on women who have been physically assaulted, she also talks about men "battering" their wives by, for example, being inattentive. Pamphlets distributed by family violence programs stress that one doesn't have to be hit to be abused and list such forms of abuse as "calling you names," "criticizing you for small things," or "making you feel bad about yourself." A booklet published by the state of New Jersey, Domestic Violence: The Law and You, informs the reader that she is a victim of domestic violence if she has experienced "embarrassment or alarm because of lewd or shocking behavior" or "repeated verbal humiliation and attacks."