|NVAA 2000 Text|
Chapter 9 Domestic Violence
This chapter provides a comprehensive overview of domestic violence, details numerous research studies and findings from state and local domestic violence programs, and reviews case experiences of advocates who work with victims and batterers. Protocols and policies for criminal justice system, legal, and coordinated community-based interventions are also examined, along with summaries of federal and state laws relevant to domestic violence prevention and interventions. Aspects of the physical, psychological, and financial impact of domestic violence on its victims, and on children who witness violence, are addressed.
Upon completion of this section, students will understand the following concepts:
(The following section was developed by the National Violence Against Women Prevention Research Center, April 1999.)
Recently, violence among intimates has received increased attention in this and other countries, and the medical need to identify victims of domestic violence is particularly well established. Domestic violence is found across ethnic, racial, and socioeconomic classes (Hotaling and Sugarman 1990). Approximately 20 to 30 percent of marriages in this country have been characterized at one point by overt interpersonal aggression (Straus and Gelles 1990; Straus, Gelles, and Steinmetz 1980), and about 1,800,000 to 4,000,000 women in the United States women are physically abused by their partners annually (Straus and Gelles 1986). In a wide scale study of couples, Straus and Gelles (1990) found that almost 13 percent of men had physically aggressed against their partners in the past year. Over 33 percent of these aggressive acts were classified as severe (i.e., punching, beating up, threatening with a knife or gun). Women are up to six times as likely to suffer violence at the hands of a partner or ex-partner than from a stranger (Bachman and Saltzman 1995), and are more likely to suffer injury when their assailant is an intimate (Bachman and Saltzman 1995).
Physicians are frequently in direct contact with recent victims of domestic violence. Twenty-two to 35 percent of emergency room visits by women are in response to partner violence (Abbot et al. 1995; McLeer and Anwar 1989; Randall 1990), and approximately 53 percent of domestic violence victims present to physicians repeatedly (i.e., six or more times) with trauma-related injuries (Stark, Flitcraft, and Frazier 1979). Female victims of domestic violence are up to thirteen times more likely to suffer injury to their breasts, chests, or abdomens than accident victims (AMA 1992a). Thus, clinicians observing these injuries should be aware of the increased potential for past and future victimization. Sexual assault is also widely prevalent in domestic settings. Thirty-three to 50 percent of women who are physically assaulted by their partners also suffer sexual assault at their hands (Frieze and Browne 1989). Indeed, in their large-sample survey, Kilpatrick, Edmunds, and Seymour (1992) found that only 22 percent of rapes were perpetrated by strangers, whereas husbands and boyfriends were responsible for 19 percent, and other relatives accounted for 38 percent (the remaining rapes were perpetrated by nonrelatives and acquaintances).
Violence also seems to be widespread within the context of dating relationships. Approximately one-third of college students report experiencing relationship aggression (Arias, Samios, and O'Leary 1987; Bernard and Bernard 1983; Breslin et al. 1990; Rouse, Breen, and Howell 1988; White and Koss 1991). Some studies have revealed even higher prevalence rates of physical aggression among nonmarried relative to married couples (Stets and Straus 1989; Yilo and Straus 1981). Propensity for domestic violence is inversely related to the male partner's income and age, and positively associated with his number of alcohol-related problems (Barnett and Fagan 1993; Hotaling and Sugarman 1990; Pan, Neidig, and O'Leary 1994). As might be expected, a higher level of marital discord has also been associated with increased risk of physical assault (Hotaling and Sugarman 1990; Pan, Neidig, and O'Leary 1994).
As noted, women are at greatest risk of injury, sexual assault, and homicide by their partners. Disappointingly, Warshaw (1989) noted that 92 percent of domestic violence cases presenting to an emergency department received no referral or follow-up information, and Kurz (1987) reported that no physician response to abuse was observed in 40 percent of positively identified domestic violence victims. This is unfortunate when considering that partner violence is typically ongoing, and failure to identify and intervene, either directly or indirectly in the form of information and referral, maximizes the potential that one's patient will eventually experience severe physical and emotional injury or even death.
Various definitions of domestic violence are utilized nationwide, reflecting both legal definitions and descriptions relevant to specific disciplines of caregivers, including victim advocates, medical professionals, and criminal justice practitioners. While it is necessary for victim service providers to determine the legal definition of domestic violence in both civil and criminal law in their respective states, it is useful to start with a generic definition of domestic violence:
Domestic violence is a pattern of coercive behavior designed to exert power and control over a person in an intimate relationship through the use of intimidating, threatening, harmful, or harassing behavior.
The following isolates elements of domestic violence: what it is, who commits it, and when, where, and why it typically occurs.
WHAT IS DOMESTIC VIOLENCE?
Domestic violence is coercive behavior through the use of intimidating, threatening, harmful, or harassing behavior. This definition validates that domestic violence includes multiple forms of abuse--physical, sexual, and emotional or psychological. Here are specific examples of these types of behavior:
Physical abuse. Physical abuse is usually recurrent and usually escalates both in frequency and severity. It may include the following:
Sexual abuse. Sexual abuse in violent relationships is often the most difficult aspect of abuse for women to discuss. It may include any form of forced sex or sexual degradation:
Emotional or psychological abuse. Emotional or psychological abuse may precede or accompany physical violence as a means of controlling through fear and degradation. It may include the following:
WHO COMMITS DOMESTIC VIOLENCE?
Domestic violence is primarily perpetrated by men against women. Numerous studies repeatedly illustrate this finding, as shown in the statistics cited earlier. Yet, in recent years, some studies suggest women use violence in intimate relationships as frequently as men do. These studies are refuted by credible members of the domestic violence discipline, particularly batterers' treatment providers, who are concerned about flaws in such studies:
1. Motivation for the use of violence. Most of the recent studies suggesting women and men equally engage in domestic violence fail to ask the survey respondent what motivated the use of violence in the intimate relationship. In studies that ask this question, the answer is consistent: Men use violence to establish or maintain power and control, and women use violence either in self-defense, in anticipation of violence, or in retaliation for violence perpetrated against them. In other words, if a woman is able to free herself from the abuser, she is very unlikely to continue to use violence. By contrast, most men engage in serial domestic violence: If he leaves or is left by one victim, he quickly becomes involved with another woman against whom he engages in domestic violence. If this question is factored into these studies, it becomes clear that women's use of violence is largely in response to the violence perpetrated against her.
2. Impact of violence on the intimate other--the fear factor. Recent studies suggesting women and men equally engage in domestic violence generally fail to ask what the impact of the domestic violence is on the victim. When this question is asked, women report greater numbers of injuries, greater severity of injuries, and greater risk of harm. Men report few or no injuries, unless the woman uses a weapon, in particular a gun. The issue most of these studies fail to examine is "who is afraid of whom?" Women report tremendous fear of violence--and injury--by the intimate other. Men largely report they are unafraid of the woman's use of violence, often finding it annoying or even amusing, unless the woman uses a weapon. Women generally only use a weapon in an effort to make him stop being violent.
3. Credibility of response. Recent studies that suggest women and men equally engage in domestic violence fail to factor in the credibility of the survey respondent. There are several issues to consider:
- First, those who work with batterers know that men who batter deny, minimize, and blame their use of violence on others. Thus, if these men are asked if they use violence in a relationship, there is a high probability they will say they do not. By comparison, a female victim of abuse is likely to feel responsible for the abuse and thus say she does use violence, even when in self-defense, in anticipation of violence or in retaliation for abuse against her.
- Second, it is crucial to know just how a study defines "abuse" and what questions the survey respondents were asked before accepting their findings. National studies show that men do not define many forms of violence as abuse. For example, if a couple in which domestic violence is perpetrated by the man against the woman is asked whether they have ever used violence, there is high probability the man will say he has not done so, because he does not define his behavior (including shoving, kicking, striking, hitting, punching, etc.) as abusive. Rather, he justifies his behavior as being provoked, triggered, and/or in response to something she did or did not do; and therefore, in his belief system, his behavior is not abusive because she is responsible for his actions. The woman, by contrast, will admit she has struck back or even initiated violence in response to his violence.
- Finally, if the study asks an open-ended question about abuse, rather than asking whether the person has engaged in specific forms of abuse, women are far more likely to include in their definition of abuse such behavior as shoving, pushing, slapping, or restraining the other person in addition to other more overt forms of violence. Men often do not include what they perceive to be "minor" forms of abuse in their definitions.
- The bottom line: Unless the survey asks questions about specific types of behavior, there is no way to assess what the survey respondent meant when she or he did or did not acknowledge the use of violence against his or her intimate other.
Although domestic violence is perpetrated by both genders, it is crucial to note and understand the above-described gender differences in the use of violence by men and women. This chapter refers to victims of domestic violence generally as females--this is not to exclude the genuine existence of male victims of domestic violence, but rather to acknowledge the reality that the vast majority of domestic violence victims are women.
WHEN DOES DOMESTIC VIOLENCE OCCUR?
Domestic violence occurs as a pattern of abuse, not as a single isolated incident. When dealing with victims of domestic abuse, it is important to ask whether the types of behavior described above or described in the power and control wheel (see Appendix A) are occurring or have occurred at any time in the past. Domestic violence can be distinguished from one-time situational violence, which can and does occur in many intimate relationships, such as the individual who shoves or slaps his spouse when learning she is having an affair or filing for a divorce. While this means of conflict resolution is not acceptable--and may result in an arrest and prosecution--it is not domestic violence because it is not a pattern of abuse. The role of the victim advocate is to ask questions to ascertain whether a pattern of physical, sexual, and/or emotional and psychological abuse is or has occurred.
WHERE DOES DOMESTIC VIOLENCE OCCUR?
Domestic violence occurs in intimate relationships. These relationships include current or former spouses, partners, and significant others, including boyfriend/girlfriends, gays, lesbians, transgendered persons, inter-sex persons, and bisexuals; family members, both by blood or by familial ties, such as in-laws, step-family members and foster family members; those who currently or formerly reside together, such as roommates and household members; those who have or share a child in common, or created a child in common; and those who provide services to a dependent person, such as attendants or caregivers for an elderly person or for a physically, cognitively, or mentally disabled person.
WHY DOES A PERSON ENGAGE IN DOMESTIC VIOLENCE?
A person engages in domestic violence because he or she wishes to gain and/or maintain power and control over an intimate other, and believes he or she is entitled to do so.
Power and control wheels. The power and control wheel demonstrates the pattern of coercive behavior in a domestic violence relationship (see a sample in Appendix A following this chapter). At the heart of the wheel is power and control. This is the motivation behind the abuse--the answer to the question: Why does a person engage in domestic violence? The abuser has a need to ensure that he gains/maintains control of how the partner thinks, feels, and behaves. The outside of the wheel contains the cement of the abusive relationship: the threat of or actual use of physical and sexual violence. Physical and sexual abuse is the behavior most people think of as "the problem." It is the abuse most easily recognized or identified and often the only behavior that is illegal. However, the abuser may not need to use physical forms of abuse against the victim to maintain control because the victim attempts to do all she can to avoid the physical and sexual attacks. A victim need only be threatened or harmed once to know the abuser is willing and able to use physical and/or sexual abuse against her.
Inside the wheel are a variety of behaviors, known as tactics, which the abuser uses to gain and maintain control. Not all of these tactics are used in every relationship, and the tactics may be changed as the victim's response changes. The abuser will switch tactics when the victim learns to respond to one type of tactic or attack. When the struggle to challenge the abuser becomes too exhausting or too dangerous, the victim begins to modify her behavior--slowly giving up control of pieces of her life in order to avoid further abuse or to survive.
A victim advocate needs to be aware of three issues when dealing with a victim of domestic violence. First, most victims report they experience far greater shame and lasting effects as the result of psychological and emotional abuse than as the result of physical abuse. Victims report they feel less able to explain "crazy-making behavior" to others; they are more often disbelieved when they report forms of psychological and emotional abuse; and they do not have any visible injury to substantiate their allegations. Victims often report that the physical injuries heal and are forgotten--the psychological and emotional injuries repeatedly haunt their minds.
Second, while all abusive tactics are harmful to victims, the use of isolation may have the most severe impact on victims of domestic abuse. Once the abuser has succeeded in isolating the victim, she has no one with whom to reality check, making it more likely she will believe the abuser's perceptions of reality--including the abuser telling her she is responsible for the abuse. This means she has no one to whom she can describe the psychological and emotional abuse, which leads her to feeling more desperate and alone. Continued isolation also means she has fewer options and resources. This means women in isolated communities, such as rural farms or suburban homes with large lawns, are already physically isolated, possibly putting them at higher risk of injury and nonreporting.
A third issue to consider when dealing with victims of domestic violence is that the use of power and control tactics varies according to the abuser and the victim. The original Power and Control Wheel, developed by the Domestic Violence Intervention Project of Duluth, Minnesota, reflects the experience of those first victims who sought services from a domestic violence program or shelter: relatively young, able-bodied, white women. Because it is now known that domestic violence is perpetrated against women in all cultures, of all conditions, and all ages, additional power and control wheels have been created to reflect the tactics reported as experienced by these victims. It is useful for victim advocates to share with victims the power and control wheel(s) most appropriate to their situation. For example, domestic violence against the elderly has often been ignored, misunderstood, or misnamed as caregiver stress. A power and control wheel depicting domestic violence in later life illustrates power and control tactics that may not be used against a younger victim. At the other end of the life cycle, statistics indicate teen violence is the most rapidly growing form of domestic violence in the country. Again, the tactics used against a teen victim of domestic violence may be very different from those used against an older victim.
Victim advocates need to recognize that domestic violence can and does occur against all women, regardless of age, socioeconomic status, culture, race, etc. The sample Power and Control Wheel in Appendix A illustrates some of the tactics used by batterers. The Equality Wheel, also in Appendix A, depicts male/female interactions in a healthy relationship.
The underlying reason for the abuser's behavior and the victim's response to his behavior are known as the dynamics of domestic violence. To understand why an abuser behaves as he does and why the victim responds to his behavior as she does, the victim advocate needs to be familiar with the abuser's and the victim's thinking patterns.
The best indicator of whether a man will abuse his spouse/intimate other is whether he has experienced or witnessed violence in his family of origin. Yet, not all men from violent homes abuse their spouse/intimate other. What makes the difference? The answer is simple--his thinking pattern.
A thinking pattern can be described as the thoughts one has that lead to behavior, all underscored by one's belief system. The specific steps in a thinking pattern follow:
A typical scenario involving a thinking pattern in terms of the dynamics between an abuser and the victim is as follows:
The negative consequence may be that he is now in a bad mood. Another negative consequence may be that he no longer enjoys the party. An additional negative consequence may be that his wife begins to distance herself from him and he does not feel connected to her. If he engages in violent behavior, a final negative consequence may be an arrest, charge, and criminal justice intervention.
Now let's examine the other half of the dynamics--the victim's response to this scenario:
The negative consequence may be that she is now in an apprehensive mood, and she may no longer enjoy the party. Another negative consequence may be that she feels wary so she begins to distance herself from him and she does not feel connected to him. If he engages in violent behavior, she will view arrest, charge, and criminal justice intervention as a negative consequence because she feels responsible for making him mad, and she believes she has broken the rules he told her to follow. Further, she believes and/or knows he will subject her to higher levels of abuse if he is arrested, charged, or prosecuted. She believes his involvement in the criminal justice system is due to her failure to act like a good wife.
TYPICAL DEVELOPMENT OF A DOMESTIC VIOLENCE RELATIONSHIP
Most victims describe the beginning of their relationship as being wonderful and intense. He pays a lot of attention to her; he wants to be with her all the time; he wants to be with her when she is with her friends and family members; he takes an active interest in where she goes, what she does, and how she spends her time; he suggests they spend most of their time doing things they both enjoy doing, rather than doing things on their own, so they can be together; he begins to make decisions for her, explaining he is happy to help her out; he is extremely attentive in public places, huddling over her, monitoring who she interacts with and letting other guys know she is with him. Simultaneously, he flatters her, confides in her, and reveals that he really wants to make a life with her. Sometimes he admits he does not know how to live without her. Then he begins to pout or express concerns about her interest in him if she does things independently of him. He may also explain how glad he is that she is not like his former spouse/partner, who was really difficult and even forced him to leave or doesn't let him see his kids. He explains his former spouse/partner did not understand him and turned everyone against him.
For many victims, they mistake these behaviors as devotion to a relationship--rather than recognizing these behaviors as red flags that indicate an abusive personality. These red flags include his insistence on obtaining information about her whereabouts at all times. Other red flags include the rapidness with which he establishes himself in her life, including making decisions for her, stating his inability to live without her, and insisting on a commitment to a relationship. His discussion about his former spouse/partner is a red flag as he does not take responsibility for the problems he experienced with that person. Big red flags include saying things like "she had him arrested" or she slapped a restraining order on him. He is already displaying abuser characteristics: signs of obsessive and controlling behavior. He is acting on his belief system which says he is to be in charge, make the rules, and can expect her to follow him and attend to his needs.
As the relationship continues, she is drawn to the positive side of his actions: his attentiveness and his interest in her activities and the people in her life. She may enjoy feeling doted upon and may be flattered by his initial bouts of jealousy. She makes a commitment to him--usually under pressure from him very early in their relationship--and is happy to be with someone who cares so much about her life. As time passes, she becomes aware of feeling discomfort around some of his behavior, such as his reactions when she discusses doing things with others, but dismisses these feelings due to her desire to make the relationship work. Like any person in a new relationship, she figures it will take time for them to develop a trusting relationship.
Domestic violence generally begins with forms of control through psychological and emotional abuse. He begins to suggest she ought not to do certain things or ought to do things a certain way if she loves him. He begins to subtly suggest she may wish to wear or not wear certain items of clothing. He tells her she may wish to change her hairstyle to look a certain way. He tells her he would prefer her to act or not act in certain ways, such as how she talks, walks, or smiles. Generally these statements begin in a subtle manner by suggesting the changes he would like her to make, but the implication is that her appearance or behavior is not good enough. She also begins to experience his anger if she does something he does not like. He begins to demand that she never do that again, or if she does not make the suggested changes, he asks her if she does not love him or thinks she is too good for him. He believes any action she takes that draws positive attention from others, especially attention from other men, is a threat to him. Again, just as any person in a new relationship is apt to do, she tends to attribute his reactions to their not yet knowing each other very well. She believes she will earn his trust.
When confronted with the first incident of physical abuse, the victim will typically view the response as an aberration--a behavior that is not typical of this person and will not occur again. It is normal, then, for the victim to excuse or explain the behavior--to "forgive" the behavior. This is a normal response for anyone in a new relationship experiencing a new situation. The abuser's telling her that he is sorry and it will never happen again reinforces this response. She has no reason to think it will ever happen again, so she will, understandably, accept his apologies and/or explanation. Further, she is likely to question what caused this behavior and wonder what she did to prompt this behavior, since he has never acted in this manner before.
If an unacceptable form of psychological or physical abuse occurs again, the victim will respond as most persons do: They will likely ask why the person is repeating such behavior. In an abusive relationship, the abuser will quickly shift the focus from his behavior to her behavior--stating that his actions are "provoked," "triggered," and/or "caused" by something she did or did not do. This form of blaming can be quite subtle or very overt. He makes it clear that she is responsible "for setting him off" and it won't happen again if she just changes her behavior. She wants their relationship to return to the way things used to be, so she is likely to accept his statements, thinking she can easily change whatever behavior he now claims caused him to act as he did. This process, repeated over and over again, begins to erode her sense of confidence and self-esteem. In addition, she begins to internalize the blame.
Simultaneously, he is beginning the isolation process. He questions whom she spends time with, suggests family and friends are interfering with their relationship, and either asks or forbids her from seeing them again. Even if he does not prevent her from such contacts, he makes it very difficult either before or after (or both) she spends time with others by engaging in such behavior as questioning exactly what they did, where they went, and what they talked about. He acts in a suspicious manner and becomes uncomfortable if she describes doing anything that suggests she had a good time without him. After awhile, it is easier for her to simply quit seeing the people of whom he disapproves rather than face the consequences. She tries to figure out what will set him off so she can avoid those situations. It takes her a long time to realize nothing she does can please him or stop his constant barrage of criticism. As she becomes more isolated, she has fewer people with whom to reality check.
Additionally, she experiences a lot of emotional conflict. She is confused about what is happening to her, but she also feels responsible, resulting in feelings of shame, embarrassment, and humiliation. She does not want to believe she could be "one of those women" so she works to justify why he behaved in an abusive fashion, further reinforcing her sense of blame. She is grieving the loss of the person she has come to love and the life they intended to create, so she keeps struggling to change her behavior so he has no reason to become upset and act badly. She keeps trying to control him by changing her behavior to conform to his ever-growing list of complaints. All the while, he is engaged in the thinking pattern of denying he is doing anything unreasonable in making such demands, blaming his actions on her and believing she is responsible for the conflicts they experience. They become enmeshed in a pattern that stops only when she learns she is not responsible for his behavior and when he is held accountable for his behavior.
Adding to the complexity of this pattern is his increasing use of threats and force. This creates a new reaction--fear--which often keeps the woman trapped in the relationship. If she confronts him, he escalates his use of threats and force. If she states her intention to leave if he does not change his behavior, he engages in more severe forms of abuse, telling her that he will kill her if she tries to leave the relationship. She may find it takes less energy to stay and appease him than to try to leave. She may also come to realize it is safer to stay in the relationship than to leave.
OBSTACLES PREVENTING A VICTIM FROM LEAVING
The victim of abuse fears that when she tries to leave, she cannot make it on her own, for a variety of reasons such as lack of finances, lack of resources (i.e., housing), inability to care for the children without assistance, fear of what he will do when he finds the children and her, his pleas and promises that he will change if she just gives him one more chance, her desire to have a lasting marriage/relationship and father for her children, and her all-too-human desire to be with someone who loves her. Interspersed with his abusive behavior are his pronouncements of his love for her, his promise that he will change, and his statements that only she can help him change.
The reality is that most people in nonabusive relationships do not immediately leave even when they believe there is a problem with the relationship. Most people leave more than once before they finally sever the relationship. Victims of domestic violence act just like everyone else: they waiver; they return; and they give it another chance. Rather than saying victims of domestic violence do not leave, it is more accurate to describe their pattern as coming and going from the relationship. Most victims of domestic violence repeatedly attempt to leave the relationship, but return when they cannot overcome the obstacles of getting away from the abuser. They will make a final separation if they are able to find a combination of resources to attend to the needs of their children and themselves, and to do so safely.
The question is not: "Why does a victim stay?" But rather, "What are the obstacles that prevent a victim from leaving?" A victim may face any/or all of these, or other obstacles:
1. Economic dependence on the abuser.
2. Fear for her safety and the safety of her children and/or other family members.
3. Isolation. She has no support system or others with whom to reality check.
4. Low self-esteem, especially after years of being told by the abuser how worthless she is and how she is to blame for all the violence that occurs.
5. Beliefs about family. She may believe that a family is not to air its dirty laundry and that all families encounter hard times. These beliefs are often reinforced by family, church members, and the legal system.
6. Beliefs about marriage. She may believe she must stay married forever, that it is "God's will."
7. Belief that she is the only person who can stop the abuser which is reinforced by the abuser who says that she is the only one who ever understood him.
8. Belief that he will find her no matter what she does to try to leave. This belief is based in reality if the abuser has hurt the victim when she attempted to leave.
9. Lack of options and resources. She does not have the money or the resources to support herself and her children.
10. Fear of being seriously hurt or killed if she attempts to leave. This fear is reinforced by the abuser who tells her that he will kill her if she ever tries to leave. Victims know these are not idle threats as they have feared for their lives before.
11. Threats against others if the victim leaves. The abuser frequently threatens to hurt all those whom the victim knows and loves--including children, family members, friends, and co-workers.
12. Health concerns. A victim of family violence may experience her own health issues in later life that make it difficult for her to leave, or she may feel that she must stay to take care of the abusive partner because of his health issues.
13. Society's ageist responses to elder victims. When elder victims of domestic violence report abuse, those to whom the abuse is reported often presume the abuse is the result of the victim's age, not the result of abuse. For example, people may blame the bruises on the victim's frail condition rather than on abuse. People may interpret the victim's silence around financial and other issues as senility and lack of ability rather than fear to speak up in the presence of the abusive person.
LEAVING DOES NOT MEAN SAFETY
Those who work with victims of domestic violence often put their emphasis on pushing the victim to leave the relationship. This approach may, in fact, put her at higher risk of danger. An appropriate response is to help her determine what her risks are and help her to problem-solve how to minimize those risks. In some cases, staying within the relationship may be the safest response.
HOW THE DYNAMICS OF DOMESTIC VIOLENCE AFFECT LEGAL CASES
Once victim service providers working within the legal system understand the dynamics of domestic violence, they know to expect and prepare for these types of victim behavior:
It is crucial for members of the legal system to view these behaviors as the victim's effort to be safe and stay alive.
When a prosecutor is involved in a case with a reluctant witness (which is likely to be most cases, because the dynamics of domestic abuse teach us that the victim will not testify if she believes it will subject her or her children to further violence), the prosecutor needs to educate the jury as to her behavior. If the prosecutor uses an expert witness, the witness is being asked to describe the "battered woman's syndrome." The battered woman's syndrome explains her behavior via the cycle of violence and the theory of learned helplessness. What follows is an examination of these concepts and their drawbacks. Nationally, prosecutors report they are more successful in cases with reluctant witnesses when they provide this explanation, rather than rely on an expert.
The Cycle of Violence. In 1979, Dr. Lenore Walker--in the landmark book The Battered Woman--identified three distinct phases that comprise the "cycle of violence." Dr. Walker determined that the phases vary in duration and intensity; as such, it is difficult to predict how long a batterer and victim will remain in any one phase or in the length of individual cycles.
Phase One is described as the tension building phase in which the abuser becomes more and more prone to react to any stimulus negatively. The victim responds to the escalation in tension by trying to nurture or appease him--or to stay out of his way. In this phase, the abuser becomes fearful that the victim may leave him, which is reinforced as she avoids him in the hope of not triggering the impending explosion. He becomes more oppressive, jealous, threatening, and possessive. Victims often describe this phase as "walking on eggshells."
Phase Two is the battering incident. Phase two is the shortest phase, usually lasting from minutes to a few hours. When the acute attack is over, it is usually followed by initial shock, denial, and disbelief that it really happened. Both the batterer and the victim find ways of rationalizing the seriousness of such attacks. Many victims report reactions similar to those of disaster victims. Victims of catastrophe usually suffer emotional collapse twenty-four to forty-eight hours after the disaster. Symptoms include listlessness, depression, and feelings of helplessness. Similarly, battered women often do not experience the full emotional impact of an attack until twenty-four to forty-eight hours after it has occurred.
Phase Three is described as the "honeymoon phase." Just as phase two is characterized by brutality, phase three is characterized by the extremely kind, loving, and contrite behavior of the abuser. He knows he has gone too far and tries to make it up to his victim. It is a phase welcomed by both parties, but ironically it is the phase during which the woman's victimization becomes complete. In this phase, the batterer constantly behaves in a charming and loving manner. He is usually sorry for his actions in the previous phase. He conveys his remorse to the victim, promises that he will never do it again, and begs her forgiveness. He is like a child caught with his hand in the cookie jar. The batterer truly believes that he will never again hurt the woman he loves, and that he will be able to control himself from now on. He also believes that he has taught his partner such a lesson that she will never again behave in a way that tempts him to physically assault her. He is quite sincere and can easily convince anyone involved that his behavior will change.
The batterer frequently begins an intense campaign to win forgiveness and to prevent his victim from separating herself from him permanently. It is common for an abuser in phase three to shower his victim with elaborate gifts and to attempt to "romance" her into forgiveness. He may enlist the aid of significant others--family, friends, clergy, even counselors--to persuade her that breaking up the relationship is a bad decision. Often everyone involved believes the rationalizations--that he is sorry and will change, that his workload or his drinking is to blame, that the children need a father, that the abuser needs the help of the victim--and somehow the victim begins to assume responsibility for his behavior. She sees herself as the one who must stand by her man while he gets the help he so desperately needs. In reality, it is very unlikely that the abuser will ever seriously seek professional help to change his violent behavior as long as the victim stays with him. Most often, the abuser will seek help only after his victim has left him and if he thinks seeking counseling will convince her to return. The battered woman chooses to believe that the behavior she sees during phase three is what her spouse/partner is really like. She chooses to believe that the contrite behavior is more indicative of the real person than the battering behavior.
Victims and advocates for domestic violence victims identify several drawbacks to the use of the cycle of violence. First, not all victims experience these stages. Some abusers simply batter without any indication they are about to do so--there is no tension building phase. Many victims report they never experience a honeymoon phase--he shows no remorse or contrition in spite of the severity of abuse. Most victims report if they ever experienced a honeymoon phase, it disappears over time. Victims report their experience of violence is not a cycle: they may experience none of these phases or they may experience the phases in random order.
A second problem with the use of the cycle of violence is the tendency of the legal system to use it to try to "explain" why violence occurs. In fact, it does not answer the key question the legal system needs to address: Why does the batterer engage in violence? The power and control wheel is the current tool used to explain both the why (to exert power and control) and the how (tactics used to exert power and control) of domestic violence.
Another problem with the cycle of violence is its description of the third phase, in which the abuser is said to show remorse in an attempt to prevent her from leaving. In reality, since there have been concerted efforts to arrest abusers and hold them accountable through the criminal justice system, many victims report abusers as likely to use negative efforts to keep her in the relationship or to encourage her to drop the charges. For example, after an arrest he may act in a loving, begging, contrite manner or he may become more agitated and threatening, blaming her for the consequences of his behavior. He is just as likely to threaten harm to her if she attempts to leave as he is to beg her to stay. The honeymoon phase might more accurately be described as a coercion phase, the coercion may be through the use of positive and/or negative tactics.
Finally, the cycle of violence fails to address the thinking patterns of the abuser and the victim. Rather, it tends to be explained in terms of their pathology--his sense of desperation and her response based on her low self-esteem. While this may be true, it also shifts the focus from the abuser's violence and makes the issue a "couple's problem," rather than focusing on his choice to use violence and other controlling behaviors to accomplish his goal of control.
In spite of its limitations, the cycle of violence is commonly referred to in the criminal justice system because it is a component of what is known as the battered woman's syndrome. An attorney may use the battered woman's syndrome to explain why the victim's behavior in the incident under scrutiny is reasonable in light of this woman's circumstances. For example, a prosecutor might introduce the battered woman's syndrome to explain why the victim recants, while a defense attorney might use it to explain the victim's belief that she had to use the amount of force or violence she did that resulted in her abuser's death. The battered woman's syndrome, however, does not consider the thinking patterns of the abuser and the victim.
The battered woman's syndrome requires the attorney to explain both the cycle of violence and the theory of learned helplessness and show how they apply to the victim in the legal case. The theory of learned helplessness can be even more troubling than the cycle of violence for victims of domestic violence.
The Psychosocial Theory of Learned Helplessness. As detailed in Domestic Violence: A Guide for Health Care Providers, published by the Colorado Domestic Violence Coalition and Colorado Department of Health in 1994, "learned helplessness" is a psychological theory that describes what happens when a person loses the ability to predict what actions will produce a particular outcome. Because the battered woman tries to protect herself and her family as best she can, those with learned helplessness choose only those actions that have a high probability of being successful.
As the battering and isolation increase, a shift in the survivor's comprehension of the situation occurs. She increasingly perceives escape as impossible. While she may continue to work at her paid job, eat, clean house, take care of the children, laugh with coworkers and appear self-confident and independent, surviving the battering relationship becomes the focus of her life.
In the survivor's eyes, the batterer becomes more and more powerful. She sees police and other agencies as less and less able to help (Walker 1979). She feels trapped and alone. She will likely develop a variety of coping mechanisms that may include withdrawal, asking permission to do even trivial things, manipulation, substance abuse, and asking that criminal charges be dropped.
The problem with the use of the theory of learned helplessness is it suggests/implies/requires a passive victim. In reality, victims often do shift their survival mechanisms from very assertive and community-based options to simply trying to keep the abuse and its impact quiet. This may not be a sign of passivity, as the theory of learned helplessness suggests, but rather a sign of her recognition that a more quiet response to his violence will provide the best safety for her and her children. A jury has a hard time buying into the theory of learned helplessness when presented with a victim who has used violence to kill her abuser.
Recent studies on the battered woman's syndrome suggest the theory of learned helplessness has limited usefulness in the legal system. Rather, a jury can far better understand why a victim makes the choices she does when the jury is given an accurate and complete description of the batterers' abusive tactics. This information alone--without trying to fit her into a cycle of violence which may not apply to her experiences or to paint her as exhibiting learned helplessness--may be enough to allow the jury to understand she is acting in a reasonable manner in light of her experiences.
Prior to making a choice to use the battered woman's syndrome, a prosecutor needs to clearly understand the pros and cons of this decision. This information can be obtained from the National Clearinghouse on the Defense of Battered Women. The Clearinghouse has a number of treatises on this issue which examine under what conditions the battered woman's syndrome may be helpful but also outline the serious drawbacks to its use. The Clearinghouse also provides information as to how to explain to a jury the victim's actions by presenting her life to the jury through the use of witnesses and police testimony. The Clearinghouse can be reached at 800-903-0111, ext. 3.
There are thousands of staff and volunteers in communities across the country who assist, support, and serve victims of domestic violence. Often these professionals provide a lifeline to women and children who desperately need assistance and direction but are confused by the dynamics of their victimization, the thought of leaving a violent environment, and, in some cases, entering into the criminal justice system.
The following are goals of advocacy for victims of domestic violence:
Multiple responsibilities are associated with assisting victims of domestic violence:
One of the most crucial skills a victim advocate must possess is the ability to validate the victim's feelings, experiences, and fears. Many domestic violence victims do not view themselves as victims, and fail to realize that domestic violence is a crime perpetrated against many other women.
Guidelines for validation of domestic violence victims include the following:
In her book, Safety Planning with Battered Women--Complex Lives/Difficult Choices, Jill Davies encourages advocates to provide woman-centered advocacy, which for purposes of this discussion will be hereinafter referred to as victim-centered advocacy. Victim-centered advocacy involves engaging in a risk analysis with the client based on her perceptions. An advocate needs to find out what a client perceives as risks, and how the advocate can most effectively use this information to advance the woman's plans and priorities. The advocate and the woman may be working at cross-purposes, either deliberately, because they have different goals, or inadvertently, because the advocate does not know enough to ask about the client's concerns.
Victim-centered advocacy involves a three-step process: (1) help the client identify what she perceives as batterer-generated risks and what the effect of staying or leaving may be on those risks; (2) help the client identify life-generated risks and identify how the abuser may manipulate these risks to further his control; and (3) assess the client's past and current safety plans.
The first step involves identification of batterer-generated risks. These include risk of physical injury; risk of psychological harm (including concerns regarding her mental health, drug and alcohol abuse, and suicidal ideation); child-related risks; financial risks; risks to family and friends, including the possible loss of relationship with them; and risks involving arrest and legal status. Gathering this information involves approaching each woman as a unique individual whose concerns may vary from those of other victims; listening effectively; and understanding that a woman's perspective will change as the process unfolds.
The second step in identification of batterer-generated risks is to listen effectively. This involves creating a safe place in which the woman can speak openly. Only then can an assessment of risk factors be made. This approach is quite different from the approach taken by an advocate who says "I only have twenty minutes to spend with the client so I make sure I spend the time describing what services are available to her." This approach to advocacy does not explore whether any of these services are relevant to the particular woman. In addition, this approach does little or nothing to establish trust with the client. Without a relationship of trust, the client is less likely to contact the advocate again. Establishing trust begins by listening to her story and hearing her concerns and questions.
Battered women analyze the risks to themselves and their children on an ongoing basis. What she fears as the biggest risk will likely change as his tactics change and as she receives information that allows her to reassess her previous concerns. Unfortunately, advocacy often stops at assessment of the physical risks, which is only one of her fears.
An advocate can also assist the client to identify life-generated risks. These include such issues as: finances; home location; physical and mental health; discrimination based on race, ethnicity, gender, sexual orientation, age, disability or other form of bias; and inadequate response from major social institutions including the legal and/or health system and workplace. Beyond identification of the concerns, real or perceived, the client expresses about such life-generated risks, the advocate also needs to assist the client in discussing the methods by which the batterer may manipulate these risks to reinforce his power and control.
Once the batterer-generated and life-generated risks are discovered, the advocate can begin the process of giving the client complete and accurate information to dispel any concerns or explain options to address the concern. The advocate can also begin the process of allowing the woman to engage in decision making and safety planning. As women weigh the risks and their options, the decision they face is more complex than simply whether to stay or to leave. Even if the woman does stay in the relationship, it does not mean she accepts the violence. It cannot be overemphasized that leaving the relationship provides neither a guarantee of her safety nor a guarantee that other risks will be reduced, despite social beliefs to that effect.
Studies show that women typically try many strategies to deal with the abuse. Researchers find the process of change is slow for most battered women, with an average of leaving five times before permanently leaving, and an average length of eight years to leave permanently. As noted earlier, studies also show women who left suffered more abuse than those who stayed.
After identifying the risks, the goal is to help the victim to create a safety plan that addresses the batterer-generated and life-generated risks. Such a plan includes protection strategies, staying strategies, and leaving strategies.
DEVELOPING A SAFETY PLAN
If and when a victim is able to leave her battering environment, it is essential that she has a "safety plan" to increase her opportunity for a successful departure. Advance planning is crucial. Start by assessing the battered-generated and life-generated risks with her. Based on this information, concerns and actions may need to include the following:
INITIAL CONTACT WITH THE LEGAL SYSTEM THROUGH 911 EMERGENCY CALLS
Domestic violence calls should receive priority from law enforcement agencies. Dispatchers should be specially trained in how to handle such calls, including victim sensitivity and nonjudgmental attitudes in cases of repeat calls. Information dispatchers should obtain the information that is essential to police response:
- Location of assailant.
- Prior history of abuse by assailant.
- Any court orders or protective conditions in effect.
Police dispatchers are encouraged to remain on the line to maintain contact with a victim in crisis and to be able to relay important information to the responding law enforcement officer(s). The 911 call is invaluable for later criminal justice intervention because it contains information as to who was doing what to whom and the impact of the violence on the victim and children.
Many law enforcement agencies have developed and implemented protocols and policies for responding to domestic violence. As crisis responders, both victim sensitivity and caution are vital to the safety and security of all involved. In addition, responding officers can provide a valuable service to victims of domestic violence by offering them information and referrals to assistance and support from victim service providers.
A law enforcement protocol for responding to domestic violence can include the following objectives:
- Maintain sensitivity toward the victim(s).
- Be accurate and thorough, because the police report will be the basis for the case.
- Determine history of violence.
- Record "excited utterances" (excited statements made by victims or witnesses at the critical stage immediately following the arrival of law enforcement), which may be allowed into court as exceptions to the rule against hearsay.
- Record statements from victim(s), witness(es), and alleged assailant.
- Observe demeanor of victim and alleged assailant.
- Photograph victim and crime scene.
- Take notes and draw sketches that describe the crime scene.
- Obtain a copy of the emergency response or dispatcher audiotapes (911 call) and/or police videotape of scene.
- Include medical and emergency room records.
Because domestic violence cases are prosecuted largely without the assistance of the victim, it is crucial the officer recognize his/her role as the chief witness for the case. The officer will be the witness who provides both the eyes-at-the-scene report for the jury and an impartial--and thus, credible--description of what occurred. This person is the "make-it-or-break-it" witness. The officer's testimony, coupled with an explanation of why the victim acts as she does, is generally all that is needed for successful prosecution. The police report is the crux of the prosecution and must be thorough, accurate, and nonjudgmental. The following items are needed in the police report for successful prosecution with a reluctant witness:
1. Times (incident, arrival, statement).
2. What parties are present? If certain parties are not present, where are they? Document your effort to locate missing party(ies) and how they responded if located.
3. Record (describe) the emotional state of the victim and suspect. This information is needed to establish the foundation for testimony.
4. Determine injury to victim; injury to suspect. Self-defense? Strangulation? Attach a body map with victim/suspect injury (e.g., marks, bruises, swelling, or statement of the same).
5. Obtain nonconsent statement from victim, if appropriate, i.e., nonconsent to injury by the suspect. In some states nonconsent is an element of crime.
6. Describe the scene, especially where parties say the incident occurred. Does the injury match the story? Is anything disturbed? Are there any signs of force?
7. Determine relationship of victim/suspect: Where did they live in the past few years? Who are their relatives and friends?
8. State if children are present or not present and witnesses or involved. Also, describe the involvement of children.
9. Take pictures of the victim and suspect. Take pictures of the condition of the home and places of incident/injury. Repeat photos of injuries several times later.
10. Collect evidence. Telephone? Torn clothing? Weapons? Blood stains? Any items used to defend or injure?
11. Determine if medical attention was sought. Obtain a copy of the medical release.
12. Note when any of the following are present: temporary order or injunction; probation; alcohol or other drug for victim/suspect; suicide threats; and/or abused pets.
13. Include all statements/excited utterances from parties--make no editorial/speculative remarks.
14. Note how the parties interact. For example: the suspect's treatment of the victim; who answers questions; description of language and behavior directed at the victim by the suspect; victim's eye contact or continual "checking in" with the suspect.
15. Record witnesses' names, addresses, telephone numbers, workplaces, relationship, and the same information for family and friends.
16. Note how the responding officer can reach the victim during the next twenty-four hours: name, address, workplace, family contact name and telephone number, and the telephone number of a person who knows how to reach the victim.
17. Take notes for narrative: victim statement; suspect statement; witness and child's statement; probable cause for arrested party; description of injuries to both parties; possibility of self-defense; any history of abuse; presence of risk factors. Determine if statements of incident match the physical evidence and injuries. If not, how do they differ? Are there self defense wounds such as bite marks, scratches, marks on suspect's knuckles or hands?
18. Request to save the 911 tape and request a copy of the videotape, if either exists.
PRETRIAL RELEASE AND TRIAL STRATEGY: ADVOCATE AND PROSECUTION ROLE
Many prosecutors have victim support programs within their agencies or rely upon services available from community-based victim service organizations. Services for victims of domestic violence may include the following:
The safety of the victim and any children must be paramount in any decisions made concerning pretrial release. Victim service providers should provide the prosecutor with the following information and advocate for these measures to help ensure victim security:
Information to convey to the prosecutor.
Safety measures to suggest to the prosecutor, dependent on the victim's situation:
In some jurisdictions, postcharge diversion programs are used to suspend case processing while the abuser undergoes batterers' treatment. Victim service providers must be aware of these programs and able to explain them to victims, including program guidelines; treatment modalities; and whether or not the defendant will be prosecuted upon "successful" completion of the program as well as what could happen if he does not complete it.
PROSECUTION AND THE COURTS
When prosecuting domestic violence cases, all members of the criminal justice system need to proceed with two goals in mind at all times: provide safety for the victim and hold the abuser accountable for his behavior. The victim will make decisions about what she believes best protects her and her children. Her decisions may appear to conflict with the desires of one or more members of the criminal justice system. Victim advocates should anticipate this tension and be prepared to explain why it exists. They should not force or expect a victim to act against what she believes best provides for her safety; to do so puts her at high risk of abuse/death.
Prosecutors play a key role in holding domestic violence offenders accountable and in assisting victims and witnesses in such cases. In 1998, the National Council of Juvenile and Family Court Judges published two recommendations for prosecutors relevant to domestic violence:
These recommendations serve to place responsibility for prosecuting batterers on the criminal justice system rather than on the victim; to provide specialized services for victims and witnesses; and to expedite criminal justice processes in domestic violence cases. They are a reminder of the separate roles of each member of the legal system.
Many prosecutors' offices today offer specialized units for domestic violence cases and victims, with personnel trained in the dynamics of domestic violence, legal issues specific to such cases, and victim sensitivity. Furthermore, vertical prosecution units include prosecutors whose caseloads contain solely domestic violence cases.
Prosecutors are encouraged to adopt some version of a "no drop" policy in which cases proceed whether or not the prosecutor is dealing with a reluctant victim. They should avoid referring to the victim as being "noncooperative;" she is cooperative: she is making choices to do what she believes best enhances her safety and the safety of her children.
Prosecutors should expect to deal with victims who do not wish to testify for a variety of factors, among them fear of retaliation. Cases can and are easily won with a reluctant witness by preparing the case from the beginning as if it is a homicide case. This is done as follows:
In some cases, the victim does not show up even with the issuance of a subpoena. The prosecutor needs to decide how crucial the victim's testimony is to determine whether the prosecutor will send an officer out to bring the victim in for the trial. Generally, if the prosecutor has prepared the case well and has the testimony of a police officer regarding the incident, the case can go forward without the victim's presence. It is absolutely contrary to the goals of the criminal justice system to prosecute a victim for failure to respond to a subpoena. This action gives the victim the message that if she calls for help, she will be punished. It also gives the abuser another tool for manipulation by reminding the victim that the criminal justice system will not take her fears seriously if she calls for help. This defeats the purpose of prosecution in these cases and further endangers the victim's safety while contributing to the abuser's belief system that she is the problem.
PROSECUTOR ROLE IN LETHALITY ASSESSMENT
Throughout the trial, the prosecutor needs to do a lethality assessment to make choices relevant to major decisions such as whether to subpoena the victim to appear; whether to set no contact conditions; and whether to provide enhanced safety measures. The prosecutor also needs to present this information to the judge and the jury so they understand the severity of the abuse and the likelihood of its continuation.
While all batterers are dangerous, some are more likely to kill than others are, and some are more likely to kill at specific times. Assessment is difficult and never foolproof. The following checklist (adapted from "Beyond the Duty to Warn," written by Barbara Hart) provides a list of issues to be explored with the victim to assess lethality. The presence of any of the following factors does not mean the batterer will kill; however, the greater number of these indicators demonstrated by the batterer or the greater the intensity of the indicators, the greater the likelihood of a life-threatening attack. When assessing lethality, it is important to gather information about these indicators from the batterer and the battered victim separately. Further, information obtained from the victim is significantly more reliable than that from the batterer. Finally, lethality is to be assessed for the victim, family members and those who assist the victim.
1. Threats of homicide or suicide. The batterer who has threatened to kill himself, his partner, the children and/or relatives must be considered extremely dangerous.
2. Fantasies of homicide or suicide. The more the batterer has developed a fantasy about who, how, when, and/or where to kill, the more dangerous the batterer may be. A batterer who has previously acted out part of a homicide or suicide fantasy may believe killing is a viable "solution" to his "problems." As with suicide assessment, the more detailed the plan and the more available the method, the greater the risk.
3. Weapons. When a batterer possesses weapons and has used them or threatened to use them in the past, access to weapons increases the potential for lethal assault. The use of guns is a strong indicator of homicide potential. If the batterer has a history of arson, fire should be considered a lethal weapon.
4. Depression. If a batterer is acutely depressed and sees little hope for moving beyond the depression, the batterer may be a candidate for suicide or homicide.
5. Alcohol or other drug consumption. Consumption of alcohol or other drugs when in a state of despair or fury can escalate violence.
6. Obsessiveness about partner or family member, also exhibited as "ownership" of the battered partner. A batterer who obsesses about his or her partner, indicating an unwillingness or inability to live without the partner, likely believes he or she is entitled to the partner no-matter-what. Statements such as "death before divorce," or "you belong to me and no one else can ever have you," are an indication that the batterer believes his or her partner has no right to a life separate from the batterer. A batterer who believes in entitlement to his partner, including the partner's services, loyalty, and obedience, is likely to be life threatening.
7. Centrality of the partner. A batterer who either idolizes or depends on his partner to organize and sustain his life, or who isolates himself from the community, may find the loss of his partner represents the loss of hope for the future. If the batterer's partner tries to leave or end the relationship, the batterer may retaliate against the partner, rationalizing that the partner's "betrayal" justifies a lethal reaction. The prosecutor should become familiar with what, if any, support system the batterer has created for himself aside from the victim.
8. Pet abuse. If a batterer assaults or mutilates pets, he is more likely to kill a partner.
9. Rigid beliefs about partner roles. A batterer who has rigid beliefs about the roles to be assumed by himself and his partner may be more likely to seriously harm or kill the partner. For example, a batterer whose religious beliefs say the man is to be in charge may feel sanctioned to engage in violence.
10. Repeated outreach to law enforcement. Partner homicide almost always occurs in the context of a history of violence. If law enforcement is called repeatedly, this pattern may indicate that the batterer is not internally motivated to change his or her behavior. Prior calls to law enforcement likely indicate an elevated risk of life-threatening conduct.
11. Separation violence. The most life-endangering rage usually occurs when the batterer believes his partner intends to leave, and the batterer does not desire a life alone.
12. Escalation of batterer personal risk. When a batterer begins to act without regard to the legal or social consequences that previously constrained his or her violence, chances of lethal assault increase. One example of this could be the closeted gay or lesbian batterer who is now risking exposure by engaging in severe, life-threatening attacks. Risking the loss of invisibility may be an indication that the batterer is very desperate.
13. Hostage-taking. A hostage-taker is at high risk of committing homicide. Between 75 to 90 percent of all hostage-takings in the United States are related to domestic violence situations.
14. Access to the partner or the partner's family members. If the batterer cannot find his partner, he cannot kill the partner. If the batterer does not have unsupervised access to the children, the batterer cannot use the children as a means to have contact with his partner. Careful safety planning and police assistance are required when there is to be contact between the batterer and the victim for such things as court appearances, custody/visitation exchanges, or family functions.
JUDICIAL RESPONSE TO POLICY REGARDING
DOMESTIC VIOLENCE CASES: DOCKETING
More and more courts today are giving priority to domestic violence cases. In some jurisdictions, all domestic violence cases are heard on the same day, with the same judge, prosecutor, and victim advocate present throughout all proceedings. This use of vertical prosecution units also expedites handling of domestic violence cases. To reduce the potential for further violence, domestic violence cases should be given priority on court dockets. The judge has the greatest, if not total, influence over the docketing calendar.
JUDICIAL RESPONSE DURING TRIAL
The judge has an enormous opportunity to contribute to victim safety and hold the batterer accountable by making appropriate decisions regarding whether to allow pretrial release, and if so, what conditions to place on the abuser. During the course of the trial, the judge sets the tone for questioning in the courtroom. At the time of sentencing, the judge has an excellent opportunity to provide victim safety and to hold the abuser accountable through the use of sentencing options.
These options begin with the judge requesting the following information from the prosecutor:
JUDICIAL RESPONSE AT THE TIME OF SENTENCING: MONITORING OFFENDERS
In Spousal/Partner Assault: A Protocol for the Sentencing and Supervision of Offenders (1994), former Chief Probation Officer Andrew Klein of Quincy, Massachusetts, offers four key components of strict supervision conditions:
- Punitive conditions.
- Financial assessments.
- Apology to victim.
- Community service.
- Nonjail loss-of-liberty confinement (in cases not involving incarceration).
- Electronic monitoring.
- Intensive supervision.
- Mandatory treatment that is "batterer-specific" provided by professionals who are specialists.
- Model regulations for abuser treatment that bar any approach that "blames or intimidates the victim or places the victim in a position of danger that is not appropriate."
- No couples counseling (keep victim separated from abuser).
- Mandatory alcohol and other drug treatment, with a mandate of abstinence.
- Restitution (including direct and indirect for replacement costs of damaged property, medical and counseling bills, and attorney costs).
- Ongoing child support.
- Mortgage or rent payments.
- All payments should be made through the court or correctional institution.
- Obey all outstanding civil protective or restraining orders.
- Forfeit weapons, particularly guns and rifles.
- Submit to warrantless searches of person or home.
- Be supervised at maximum intensity.
- Satisfy special protective obligations when children are involved such as custody, visitation, etc.
Batterers Intervention Programs. Generally, there are six basic principles upon which successful intervention and treatment programs for batterers are based:
Seven common mainstream procedures for batterers intervention programs were identified by the National Institute of Justice:
1. Intake. First contact with batterer referred by the criminal justice system.
2. Assessment. Client agrees with terms of the program and is assessed for dangerousness, extent of abuse, substance abuse, mental illness, illiteracy, or other obstacles to treatment.
3. Victim contact. Victims may be notified about the batterer's status in the program, of any imminent danger, and victim services.
4. Orientation. An initial phase of group intervention that may be more didactic than later meetings.
5. Group treatment. A setting for a specific educational curriculum or less structured discussions about relationships, anger-management skills, or group psychotherapy.
6. Leaving the program. Batterers may complete the program, be terminated for noncompliance, or be asked to repeat the program.
7. Followup. May consist of informal self-help groups of program graduates or less frequent group treatments (Healey, Smith, and O'Sullivan 1998).
There are a number of significant barriers to effective batterers treatment programs, most notably the overall lack of enough programs to meet the needs of convicted domestic violence perpetrators in the United States. Other factors that adversely affect the success of batterer treatment are as follows:
Victims of domestic violence should have specific rights relevant to disposition, which include the following:
ORDERS OF PROTECTION
Orders of protection--also called "restraining orders"--are court orders that forbid the abuser from doing certain things to victims, having contact with victims, and/or compelling abusers to comply with certain requirements.
While orders of protection can be issued at any time, it is helpful for victims to seek restraining orders as soon as possible after a domestic violence crime has occurred.
Each jurisdiction has different policies and procedures for issuing and monitoring orders of protection. To best assist victims, service providers should be aware of the following considerations to maximize community response to domestic violence:
- No contact from defendant.
- Prohibition of future acts of violence, intimidation, or harassment by the defendant.
- The defendant physically leaving the home and paying child support, restitution, and/or rent or mortgage payments.
- Carrying insurance for the victim and any children to cover all medical expenses.
- Paying a fine to the state victim compensation fund.
- No possession of a weapon.
- Refraining from using alcohol or other drugs.
- Visitation conditions (when applicable).
It is significant that seven out of ten persons who enter domestic violence shelters are children. In 1998, the Centers for Disease Control published a study that indicated violence against mothers by their intimate partners may also pose a concurrent risk of abuse to the victim's children. Conversely, mothers of abused children are at a higher risk of being abused than mothers of nonabused children. Concurrence of child abuse is defined as the proportion of families in the population or research sample in which women and their children are victims of abuse by an intimate. In the mother's case, the intimate is her partner; the child may be abused by either the mother's intimate or by the battered mother. A continuing controversy regarding the prevalence of this type of abuse exists, but most authorities describe the concurrence rate as approximately 50 percent (McKibben, DeVos and Newberger 1998; Ross 1996).
Children are often incorporated into patterns of abuse. Batterers may also do the following:
The effects on children who witness family violence or who, in some cases, are themselves victims, were summarized in Family Violence: An Overview published by the National Center on Child Abuse and Neglect (NCCAN) (n.d.). The ramifications of family violence have almost no boundaries. In addition to the obvious physical injuries and deaths that result, family violence is often cited in research and clinical case studies as contributing to numerous other individual, family, and societal problems:
- Children learn from an important role model (the parent) that violence toward a loved one is acceptable.
- Children exhibit fear, emotional symptoms such as psychosomatic complaints (physical complaints created by psychological stress), school phobias, enuresis (bed wetting), and insomnia. Young children may try to stop the violence, thus putting themselves at risk for unintended harm or may respond with immobilized shocked staring, running away and hiding, or bed wetting and nightmares.
- After age five or six, children show strong indications of identifying with the aggressor and losing respect for the victim.
Victim advocates, criminal justice professionals, social service providers, and allied professionals cannot operate in a vacuum when it comes to providing quality services to victims of domestic violence. There are many professionals who have responsibilities to domestic violence victims. In a lecture to the American Probation and Parole Association's Annual Institute in Phoenix, Arizona, in 1994, national domestic violence researcher and advocate Sarah Buel identified the following key components of a model domestic violence response by the community:
Many communities, counties, and states have formed Domestic Violence Coordinating Councils to address prevention, early interventions, victim assistance, and coordinated responses from the criminal justice system and community in responding to domestic violence. Such Councils serve a variety of purposes:
See Appendix B for a comprehensive community checklist (1996) detailing important steps to end violence against women, developed by the National Advisory Council on Violence Against Women, established in 1995 by Attorney General Janet Reno and Secretary of Health and Human Services Donna E. Shalala.
(The following section is excerpted from an article written by Margaret S. Groban, Violence Against Women Act Specialist, Executive Office for U.S. Attorneys, U.S. Department of Justice, April 1999.)
In 1994, the Congress of the United States, as part of the Crime Bill, enacted legislation empowering the federal government to participate in the fight against domestic violence. The Violence Against Women Act ("VAWA") recognized that "violence against women is a crime with far-reaching, harmful consequences for families, children and society." To combat this violent crime problem, VAWA provided that federal domestic violence crimes be prosecuted by the Department of Justice. Consistent with this federal initiative, the Crime Bill also amended the Gun Control Act to include domestic violence related crimes.
This [section] provides a concise summary of the federal statutes in both VAWA and the Gun Control Act that allow prosecution of domestic violence offenders in the federal courts and provides a summary of selected prosecutions under each statute and a checklist of offenses.
THE VIOLENCE AGAINST WOMEN ACT
Interstate Travel to Commit Domestic Violence. 18 U.S.C. §2261
18 U.S.C. §2261(a)(1).
It is a federal crime for a person to travel interstate (or leave or enter Indian country) with the intent to injure, harass, or intimidate that person's intimate partner when in the course of or as a result of such travel the defendant intentionally commits a violent crime and thereby causes bodily injury. The law requires specific intent to commit domestic violence at the time of interstate travel. The term "intimate partner" includes a spouse, a former spouse, a past or present cohabitant (as long as the parties cohabitated as spouses), and parents of a child in common. The intimate partner definition does not include a girlfriend or boyfriend with whom the defendant has not resided unless protected by state law. There must be bodily injury for prosecution under this statute.
18 U.S.C. §2261(a)(2).
It is a federal crime to cause an intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress, or fraud. As in subsection 2261(a)(1), the defendant must intentionally commit a crime of violence during the course of or as a result of the travel and there must be bodily injury to the spouse or intimate partner.
Interstate Stalking. 18 U.S.C. §2261A. As of September 23, 1996, it is a federal crime to cross a state line with the intent to injure or harass another person, if in the course of or as a result of such travel, the defendant places such person in reasonable fear of the death of, or serious bodily injury to, that person or a member of that person's immediate family. The law requires specific intent to violate this subsection at the time of interstate travel. "Immediate family" includes a spouse, parent, sibling, child or any other person living in the same household and related by blood or marriage. It is also a federal crime to "stalk," as it is defined in Section 2261A, within the special or maritime jurisdiction of the United States.
Interstate Travel to Violate an Order of Protection. 18 U.S.C. §2262.
18 U.S.C. §2262(a)(1).
This law prohibits interstate travel (or travel into and out of Indian country) with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment, or bodily injury. To establish a violation of this statute, the Government must demonstrate that a person had the specific intent to violate the protection order at the time of interstate travel and that a violation actually occurred. This statute does not require an intimate partner relationship--although this relationship may be required by the state or other governmental body issuing the order--nor does it require bodily injury.
18 U.S.C. §2262(b)(1).
It is a federal crime to cause a spouse or intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim in violation of a valid order of protection. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress, or fraud. The Government must also prove that a person intentionally injured an intimate partner in violation of a protection order during the course of or as a result of the forced or coercive travel. This subsection, unlike corollary Section 2262(a)(1), requires an intimate relationship between the parties.
The U.S. Department of Justice recognizes that under both §§ 2262(a)(1) and (a)(2), law enforcement may be unable to verify the validity of a protection order at the time of arrest. The national data center from which law enforcement and prosecutors now can verify instantaneously protection orders will be of enormous benefit to federal authorities in the prosecution of criminal cases under Section 2262. However, because participation in the protection order registry is voluntary and not all states are participating, it will be necessary to consult with the United States Attorney in the appropriate district for guidance in these cases.
To assist in prosecution under Section 2262, it is necessary to examine the protection order currently used in one's jurisdiction.
Penalties. Penalties for violations of Sections 2261, 2261A and 2262 hinge on the extent of the bodily injury to the victim. Terms of imprisonment range from five years for bodily injury to life if the crime of violence results in the victim's death.
Possession of Firearm While Subject to Order of Protection. 18 U.S.C. §922(g)(8). It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to appear. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury.
Transfer of Firearm to Person Subject to Order of Protection. 18 U.S.C. §922(d)(8). It is also illegal to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of Section 922(d)(8) must be knowing. Proof concerning knowledge on the part of the supplier may be difficult to establish without a fully operational central registry for protection orders.
Official Use Exemption. 18 U.S.C. §925. The restrictions of Sections 922(d)(8) and (g)(8) do not apply to firearms issued by governmental agencies to a law enforcement officer or military personnel so long as the officer or military personnel is on duty. Personal firearms do not fall within this exemption nor may these personnel possess officially issued firearms when off duty.
Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence. 18 U.S.C. §922(g)(9). As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date.
Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence. 18 U.S.C. §922(d)(9). It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of Section 922(d)(9) must be knowing.
Official Use Exemption. 18 U.S.C. §925. The official use exemption does not apply to Sections 922(d)(9) and 922(g)(9). This means that law enforcement officers or military personnel who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties.
Penalties. The maximum term of imprisonment for a violation of Sections 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9), is ten years.
OTHER RELEVANT STATUTES
Full Faith and Credit to Orders of Protection. 18 U.S.C. §2265. This civil law provides that a civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the court of another state or tribe, and is to be enforced as if it were the order of the court of the second state or tribe. This law applies to permanent, temporary, and ex parte protection orders that comply with the statute's requirements. To comply, the protection order must have provided the defendant with reasonable notice and an opportunity to be heard, in a manner consistent with due process. This law does not apply to mutual protection orders if (a) the original respondent did not file a cross or counter petition seeking a protective order or (b) if such a cross or counter petition was filed, but the court did not make specific findings that each party was entitled to such an order.
Amendment of the Brady Statement. 18 U.S.C. §922(s). The Brady statement requirements were amended as of September 30, 1996, to include a statement that the recipient of the firearm has not been convicted in any court of a misdemeanor crime of domestic violence. The Brady statement still does not require that the firearm recipient state whether he/she is currently subject to a valid protection order. The recipient will be compelled to fill out, at the time of receipt of the firearm(s), an ATF form requiring certification that he/she is not subject to a valid protection order.
Right of Victim to Speak at Bail Hearing. 18 U.S.C. §2263. The victim of a VAWA crime has the right to be heard at a bail hearing with regard to the danger posed by the defendant. In addition, depending upon the circumstances of the case, the United States Attorney's Office may move for pre-trial detention of the defendant.
Other Victims' Rights. 42 U.S.C. §10606(b). All federal crime victims, including a domestic violence victim, have the right to:
Restitution. 18 U.S.C. §2264. In a VAWA case, the Court must order restitution after conviction to reimburse the victim for the full amount of losses.
Self-Petitioning for Battered Immigrant Women and Children. 8 U.S.C. §1154. VAWA specifically provides that battered and abused spouses and children of citizens and lawful permanent residents may self-petition for independent legal residency. This statute prevents citizens or residents from using the residency process as a means to exert control over an alien spouse or child and allows victims to remain in the United States independent of their abusive husbands/parents.
The federal domestic violence statutes provide powerful weapons for United States Attorney's Offices around the country to assist state and local law enforcement in their fight against domestic violence. Increased awareness of these federal laws will allow the U.S. Department of Justice to work in a collaborative manner with state and local counterparts in an effort to reduce one of the nation's most serious crime problems.
A checklist of federal domestic violence statutes can be found in Appendix C at the end of the chapter.
The Family Violence Division of the National Council of Juvenile and Family Court Judges, with support from the Conrad N. Hilton Foundation, provides assistance to states in drafting, enacting, or implementing domestic violence laws. Its 1998 Family Violence Legislative Update highlights key domestic violence public policy initiatives:
OTHER STATE LEGISLATIVE TRENDS AND ISSUES
In its 1998 "Family Violence Legislative Update," the National Council of Juvenile and Family Court Judges identified a number of trends in domestic violence legislation:
- Ensure that every incident reported indicates whether children live in the home, where the children were during the incident, and where they were located when the officer arrived.
- Let hiding children know the police officers are in the room and then count to five before opening the door or looking under the bed.
- Kneel down to the child's level when speaking to him or her and calmly ask open-ended questions.
- Ask the child "How can I help?"
- Photograph every child whether or not they have visible injuries
- Document the name, age, school, and teacher of each child in order to alert teachers of the situation.
In a paper delivered at the National Conference on Family Violence: Health and Justice in 1994, Judge Page's description of the advantages of a unified family court was offered:
The primary advantage claimed for a family court system is the unification of all complaints, petitions, and case types within one case processing and management system in order to provide a more efficient, less costly and damaging, consistent and longer lasting resolution of the problems presented. By directing that all complaints or petitions must be resolved in one unified court, the opportunities for inconsistency and errors based upon inaccurate or incomplete information are greatly reduced (Myers 1994, 3).
1. Model police protocols for arrest policies and procedures.
2. Model protocols for prosecutors agencies.
3. Model training programs for police and other criminal justice personnel.
4. Guidelines for enforcement of out-of-state civil protection orders under the constitutional full faith and credit clause.
5. Interagency agreements and plans among county agencies to enforce domestic violence laws.
6. Batterer intervention program operational manuals.
7. Informational pamphlets for victims of domestic violence.
8. Physician guides for recognizing and treating domestic violence as a health problem.
ILJ's link page to more than 350 Web sites is located at <www.ilj.org/dv>.
- Third-year students at the Battered Women's Rights Clinic at the City University of New York Law School assist low-income clients with a range of legal needs. This may include obtaining civil protection orders, pursuing contempt charges, seeking child support or custody orders, and handling housing or public benefit cases. The clinic teaches students to consider the unique social and economic obstacles confronted by battered women and to work on law reform efforts to overcome these barriers. Students have conducted workshops in local shelters and for victim services agencies and citizen groups.
- Law students at the University of Georgia Law School assist indigent victims of domestic violence in rural counties to file pro se petitions, obtain protective orders, and find appropriate referral services. The Protective Order Project also acts as a resource center for victims and service providers in the community.
- Students in the Families and the Law Clinic at Catholic University (Washington, DC), Columbus School of Law, develop and run community education projects on dating violence prevention in local high schools. Law students address the dynamics of domestic violence, the civil and criminal remedies available, and dating violence myths. High school students respond to the substance and format of these workshops, viewing law students as both peer role model and an accurate source of legal information (ABA 1997).
Domestic Violence Self-Examination
2. What are the two characteristics that are significantly and consistently correlated with batterers?
3. Describe one effect of domestic violence on children.
4. Describe three of the responsibilities involved in advocating for victims of domestic violence.
5. Describe a promising practice in domestic violence prevention or intervention (either one that was highlighted in this chapter, or one that exists in your community).
Chapter 9 References
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Chapter 9 Additional Resources
Bureau of Justice Statistics (BJS). 18 February 1999. "Characteristics of Crime." Summary Findings. Washington, DC: U.S. Department of Justice.
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Chapter 9 Appendix A
Chapter 9 Appendix B
In July 1995, a National Advisory Council on Violence Against Women was established by Attorney General Janet Reno and Secretary of Health and Human Services Donna E. Shalala. The purpose of the forty-seven-member, multidisciplinary council was to "help promote greater awareness of the problem of violence against women and its victims, to help devise solutions to the problem, and to advise the federal government on implementing the 1994 Violence Against Women Act."
The Advisory Council developed a checklist of important steps that communities can take to end violence against women, including the religious community, colleges and universities, law enforcement, health care professionals, the sports industry, the news media, and the workplace.
As Attorney General Reno and Secretary Shalala stated in the introduction to the Community Checklist:
This is not intended to be an exhaustive list but is meant to offer some straightforward, practical suggestions that we believe can make a difference in communities across the country. By coming together as a community, exchanging ideas, and coordinating efforts, we can begin to end this violence that destroys so many American lives.
Published during the 1996 National Domestic Violence Awareness Month, "A Community Checklist" offers valuable insights into what individuals and community constituencies can do to address domestic violence.
The religious community provides a safe haven for women and families in need. In addition, it exhorts society to share compassion and comfort with those afflicted by the tragedy of domestic violence. Leaders of the religious community have identified actions to share with the nation to create a unified response to violence against women.
(Adapted in part from the Nebraska Domestic Violence and Sexual Assault Coalition and the Center for the Prevention of Sexual and Domestic Violence, Seattle, WA. Used with permission.)
COLLEGES AND UNIVERSITIES
Colleges and universities offer important opportunities to educate young men and women about violence against women. Experiences on campuses will be carried forth to everyday life and will influence future actions. Therefore, every effort to inform students may mean one less victim abused or one less crime committed. Leaders in higher education have identified the following strategies to assist educators across the country in reaching out to students and communities, and to make campuses safe places for women.
Across the country, law enforcement is developing innovative and effective strategies to prevent and prosecute violence against women more effectively. Law enforcement leaders have identified several of these strategies that, if used consistently, may go a long way toward reducing incidents of violence against women.
HEALTH CARE PROFESSIONALS
Health care professionals are in the critical position of providing services to victims of violence as the first contact point for many of these victims. It is crucial that health care professionals recognize their potential to intervene appropriately. Immediate recognition of the problem and the provision of medical care and referrals to appropriate resources within the community can make all the difference. Leaders in the field have identified the following strategies to make interventions by health care professionals more effective.
Today, more than ever, our sports players and organizations have an enormous capacity to influence the minds and behaviors of Americans, both young and old. The reason is simple. For many Americans, professional, college, and Olympic athletes are today's heroes. We must utilize this outlet to send a positive message to all Americans about preventing domestic violence and sexual assault. Following are a number of ways communities can work with the local sports industry to help stop the violence.
The media industry represents much more than television and film stars. It is the most influential source of information for millions of Americans. Before we can change people's attitudes about violence against women and prevent violent behavior, we must not only change the way violence is portrayed in the media, but also educate members of the media who report on domestic violence and sexual assault crime. Leaders in the media industry have identified ways in which communities can work with their local media to encourage responsible reporting of violence against women.
Men and women spend more and more of their daily lives in the workplace. Domestic violence is a workplace issue that affects the safety, health, and productivity of America's workers. Business and labor leaders have identified several strategies that can be used to create safer and more supportive workplaces.
Chapter 9 Appendix C
- Interstate travel to commit domestic violence - 18 U.S.C. §2261.
- Interstate stalking - 18 U.S.C. §2261A.
- Interstate travel to violate a Protection Order - 18 U.S.C. §2262.
- Possession of a firearm while subject to a Protection Order - 18 U.S.C. §922(g)(8).
- Transfer of a firearm to a person subject to a Protection Order - 18 U.S.C. §922(d)(8).
- Possession of a firearm after conviction of a misdemeanor crime of domestic violence - 18 U.S.C. §922(g)(9).
- Transfer of a firearm to a person convicted of a misdemeanor crime of domestic violence - 18 U.S.C. §922(d)(9).
- Official use exemption from firearms offenses (except §§922(d)(9) and 922(g)(9)) -
18 U.S.C. §925(a)(1).
- Full Faith and Credit - 18 U.S.C. §2265.
- Brady statement - 18 U.S.C. §922(s).
- Right of victim to be heard at bail hearing - 18 U.S.C. §2263.
- Other victims' rights - 18 U.S.C. §10606(b).
- Restitution - 18 U.S.C. §2264.
- Self-Petitioning for battered immigrant women and children - 8 U.S.C. §1154.
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