Domestic Violations

Cathy Young from the February 1998 issue

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These ideas have consequences. By 1982, largely due to lobbying by advocacy groups, a majority of states expanded police authority to make arrests in misdemeanor assaults which the officers had not actually witnessed--a move applauded by most law enforcement personnel and family violence researchers. But as the rate of arrest remained low, many states and jurisdictions began to go further and mandate arrests, a policy viewed with far more ambivalence. This trend has been boosted by the post-O.J. Simpson-trial attention to domestic abuse and by incentives for pro-arrest policies in the federal Violence Against Women Act of 1994.

Such policies have undeniably increased the number of arrests. It is far less clear, however, that they have had a significant impact on spousal abuse. Christopher Pagan, who was until recently a prosecutor in Hamilton County, Ohio, estimates that due to a 1994 state law requiring police on a domestic call either to make an arrest or to file a report explaining why no arrest was made, "domestics" went from 10 percent to 40 percent of his docket. But, he suggests, that doesn't mean actual abusers were coming to his attention more often. "We started getting a lot of push-and-shoves," says Pagan, "or even yelling matches. In the past, police officers would intervene and separate the parties to let them cool off. Now those cases end up in criminal courts. It's exacerbating tensions between the parties, and it's turning law-abiding middle-class citizens into criminals."

Many police officers agree--though all of those who were willing to discuss their misgivings asked that their names not be used, given the charged nature of the subject and their criticism of official policy. "We need domestic violence law but we need common sense, too," says a veteran small-town policeman in New Jersey. The officer stresses that he doesn't miss the days when a woman could be bruised or bloodied and you couldn't arrest the man unless she was willing to risk enraging him further by signing a complaint. But today, he says, the law has gone to the other extreme: "Sometimes the wife's begging, `Don't arrest him, the kids are here,' and you have to arrest."

It's not just male officers who chafe at having their hands tied. A woman I'll call Sally Gilmore, a sergeant on the nearly all-male police force of a working-class New Jersey town, feels that mandatory arrest rules often force cops to act against their better judgment. She recalls responding to a quarrel between a woman and her ex-boyfriend, who had come over to pick up his things. After being told that he couldn't be arrested for shouting at her, the woman suddenly "remembered" that he had also hit her and pointed to a bruise on her leg. "I asked, `When did this happen?' and she said, `Just now,'" says Gilmore. "Well, this bruise was days old. He said he didn't hit her. I basically knew she was lying, but I had no choice."

The effects of mandatory arrest are compounded by no-drop prosecutions. The assumption behind no-drop policies is that when women recant or refuse to press charges, it is out of fear or dependence. But reality is far more complex. The woman may feel, rightly or not, that she is not in danger and can handle the situation better without the complications of a legal case; or the lines between aggressor and victim may be blurred; or the charge may have been false, made in anger, and later regretted.

A counselor with a family violence intervention program in Florida who generally favors no-drop prosecutions saw this happen with her own daughter Angela--a troubled young woman with a severe drinking problem--and her live-in boyfriend. One evening, says the counselor, who also requested anonymity, an intoxicated Angela wanted to go out to buy more liquor: "Her boyfriend won't give her the money. So she goes out to the corner and calls the police saying he has locked her out--which he probably had because he didn't want trouble--and fills out a report saying he threatened her, she's afraid of him, and so on." The police took her home and arrested the young man. The next day, a now-sober Angela was appalled by what she had done and tried to back out--to no avail. With her mother's help, she hired a lawyer, and her boyfriend was eventually allowed to plead no contest.

These policies apply not only to violence between spouses or cohabitants. Shortly after Wisconsin's mandatory arrest law took effect, a Milwaukee mom was locked up for slapping her misbehaving teenage son. In 1996 in Missouri, a father was arrested and charged with assault because, after his 17-year-old son refused to get up early to mow the lawn, the father pushed the lawnmower into the teenager's room and started it up.

Curiously, battered women's advocates (and journalists who take their cue from the activists) continue to claim that police and the courts treat domestic abuse less seriously than non-family assaults. In fact, this may not have been true even prior to feminist-initiated reforms. In the 1992 book Policing Domestic Violence, University of Maryland criminologist Lawrence Sherman concludes that underenforcement of assault and battery laws was hardly unique to domestic violence. He cites data from the 1970s showing that police were reluctant to intervene in any violent personal dispute, be it a marital squabble, a neighborhood quarrel, or a bar brawl. All else (such as injury) being equal, the rates of arrest were similar for domestic and non-domestic cases. Certainly, more recent studies show no evidence of discrimination against battered women. Analyzing the handling of violent offenses in 1987-88 in Arizona, feminist criminologist Kathleen Ferraro found--to her own surprise--that while most attacks of any kind were either not prosecuted or were charged as misdemeanors, felony assaults were less likely to be dismissed if they involved spouses or partners (even though the victims in domestic cases were much more likely to request a dismissal). Nor did the victim-offender relationship affect the severity of the sentence.

Nowadays, however, some crusaders openly argue that domestic violence should be taken more seriously than other crimes. In 1996, the sponsor of a New York bill toughening penalties for misdemeanor assault on a family member (including ex-spouses and unwed partners) vowed to oppose a version extending the measure to all assaults: "The whole purpose of my bill is to single out domestic violence," Assemblyman Joseph Lentol said. "I don't want the world to think we're treating stranger assaults the same way as domestic assaults."

These arguments, however, are rooted in the paradigm of domestic violence promoted by the battered women's movement: the woman, powerless and trapped by economic or psychological dependency, is victimized by the brutal, domineering man who uses force to impose control. Certainly, some cases fit this model; but many others do not.

For one, the feminist paradigm ignores mutual combat and female aggression. Surveys by pioneering family violence researchers Murray Straus of the University of New Hampshire and Richard Gelles of the University of Rhode Island have found that half of all spousal violence is reciprocal while the rest is evenly split between female-only and male-only violence (though men are more likely to inflict serious damage). Those findings are confirmed by a host of other studies. Nonetheless, materials distributed by advocacy groups and used in training for judges, prosecutors, and police assert that 95 percent of domestic violence is male-on-female and dismiss mutual brawling as a "myth."

Because of this ideology, the War on Domestic Violence gets a bit schizophrenic when it comes to female aggression. Ironically, mandatory arrest laws have led to a rise in the number of women arrested for domestic assault, as sole perpetrators or together with their partners; in some states, women now account for about a quarter of all arrests. According to criminologist Lawrence Sherman, this "resulted in intensive lobbying [by battered women's advocates] not to arrest women regardless of probable cause to do so." In response, many jurisdictions have devised ways around formal gender neutrality.

In Michigan, for instance, when Susan Finkelstein told the arresting officer that she was at least as much the aggressor in their altercation as Jim, she was informed that the policy required arresting the larger of the two parties. More commonly, mandatory arrest laws are amended with a "primary aggressor" clause, which can be interpreted quite creatively: Sherman recalls an incident he saw in one of his field studies in which the man was arrested because he had yelled at his wife--even though she was the only one to actually strike a blow.

While battered women's advocates have had a major impact on the ways in which charges of spousal assault are handled by criminal courts, the reach of the War on Domestic Violence is still somewhat limited by constitutional protections for defendants. Perhaps the worst excesses of this crusade are found in the use and abuse of civil orders of protection, also known as restraining orders--which require lower levels of evidence and can be issued without the accused having a chance to defend himself.

Court orders prohibiting one party not only from harassing but, in some cases, from approaching or contacting another are not limited to domestic violence cases. Normally, getting such an order is a cumbersome process. But under abuse prevention laws, on the books in 48 states by 1988, restraining orders are easily available against current or former spouses or cohabitants and some other family members. (Whether the relationship is close enough to qualify--how about an ex-sister-in-law?--can become the key issue at a hearing.) In the last decade, many states have strengthened this legislation, further streamlining the process of obtaining an order, extending eligibility to people who had dated but not lived together, and toughening penalties for violators.