Developments in the Law: Legal Responses to Domestic Violence, Traditional Mechanisms of Response to Domestic Violence, 106 Harv. L. Rev. 1505 (1993).

  A.  Introduction

 

  This Part analyzes the "traditional" [FN1] mechanisms of government response to woman battering, their current application, and methods of improving or integrating such mechanisms.  Section B describes shelters and related services for battered women, and section C analyzes *1506 civil restraining or protection orders.  Section D describes recent local government efforts at concerted intervention that utilize shelters, protection orders, and criminal prosecution of the non-stranger assailant into an integrated scheme. Section E analyzes these integrative efforts and the traditional devices generally.

 

  This Part argues that, given the specific attributes, advantages, and shortcomings of each traditional device, their integrated application, with primary emphasis on criminal prosecution as a means of assailant control and attitudinal change, is the optimal policy.  The features of these devices also suggest that, to ensure preventive access for victims and coordinated administration, creative local service delivery, supported by state and federal guidance and funding, is a preferred method of intervention.

 

B.  Shelters and Support Services for Battered Women

 

  A shelter is often the battered woman's first encounter with the legal system after she flees her assailant.  Shelters are peculiarly necessary for domestic violence victims; unlike most other victims of violent crime, the domestic violence victim faces the prospect of a domicile occupied by the assailant. [FN2]  Shelters for battered women provide immediate safety and support, and are thus indispensable to a successful response to domestic violence.

 

  Shelters are part of a larger array of services that includes hotlines,  "drop-in centers," support groups, counseling, advocacy, and miscellaneous financial and social services. [FN3]  Some of these services usher the victim into the shelter; once at the shelter, the woman may gain access to further resources and information, as well as the traditional legal devices. In examining shelters and related services, important differences among jurisdictions include the types of intervention provided, the source and amount of funding, and the manner of delivery of the services, as well as the integration of shelters with other means of intervention.  Shelters are typically underfunded, understaffed, and unable to respond fully to the needs of battered women.  Other means of intervention must therefore supplement shelters.

 

  Many jurisdictions provide for crisis intervention - immediate physical refuge from a violent situation - as well as farther reaching *1507 counseling, informational, and advocacy services. [FN4]  A given jurisdiction may provide other tangible physical services, such as child care, housing access, job referral, food and clothing, transportation, and case monitoring. [FN5]  In this manner, depending on the resources of the particular jurisdiction, shelters may act as a point of access to the larger support system.

 

  States use various means to fund shelters and programs, [FN6] including marriage license fees and assessments levied against assailants themselves. [FN7]  A state legislature may make grants and provide funding based on specific goals or priorities. [FN8]  States may also encourage interagency cooperation and coordinated efforts among state or local governments, community service groups, and private sources.  Besides the states, service providersalso receive funding from federal, municipal, and private sources. [FN9]  In virtually every jurisdiction, however, such funding is insufficient to provide the needed facilities and services. [FN10]  As a result, the inadequate number of shelters leaves many victims at risk. [FN11]

 

  *1508 Even if shelters are provided, they are not always available to all potential users because of lack of knowledge or other barriers to access.  Some states have attempted to address this problem.  A survey of state legislation reveals efforts to increase accessibility of shelters and services to victims, [FN12] to promote victim awareness of resources, to facilitate police involvement in referral, and to address confidentiality concerns. [FN13]

 

  States have tried in various ways to solve the problem of victims' ignorance of available facilities and services. [FN14] State agencies, police, and hospital staff often act to channel women into the support system.  For example, a Chicago program links police with a support group that provides contact, legal information, and aid to victims. [FN15]  Statutes may require that police transport victims to a shelter and provide notice of rights and services. [FN16]  In many areas, hotlines provide the initial contact that brings the woman into the support system, [FN17] although *1509 several jurisdictions pursue around - the clock accessibility through various other means. [FN18]

 

  Refuge in a shelter may lead victims to pursue traditional legal means of intervention, namely protection orders and criminal prosecution.  Some jurisdictions integrate shelters with these other devices through police referral. [FN19]  For example, special police reports or filings may inform prosecutors of victim entrance into shelters. [FN20]  At the shelters, provision of counseling or victim advocacy may be coordinated with legal services, [FN21] thus facilitating criminal prosecution, the pursuit of a protection order, or other alternatives.  States may also provide formal court advocacy projects for victims along with shelters and related services. [FN22]  Thus, shelters play an important role in heightening victim awareness of services and resources, and facilitating the victim's access to legal and related support systems.

 

  Commentators have assessed the efficacy of shelters with various criteria, including termination of abusive relationships, recurrence of violence, and "self reported measures of effectiveness." [FN23] These empirical studies have proven inconclusive as to the overall effectiveness of shelter and service intervention, but suggest that women who receive such intervention still remain "at risk," though the shelters do help to reduce violent episodes. [FN24]  This finding suggests that shelters, to go beyond temporarily preventing immediate violent contact, must be integrated with other traditional mechanisms if they are to respond effectively to woman battering. The efforts at integration mentioned above facilitate this effective response.

 

C.  Civil Protection Orders

 

  A civil protection order is "a legally binding court order that prohibits an individual who has committed an act of domestic violence *1510 from further abusing the victim." [FN25] There are two types of protection orders, ex parte [FN26] and full (or permanent) orders; [FN27] these orders are obtained through distinct procedures and have different contents. [FN28]  A wide variety of civil [FN29] courts issue protection orders.  A frequently cited advantage of civil protection orders is the breadth of remedies available to the court. [FN30]  These orders issue after petition, in the course of hearings, and are "designed to separate the parties and prevent future unlawful conduct." [FN31]  Thus, the primary aim of the protection order is not to punish past conduct, but to prevent future harms.

 

  Protection orders, however, are beset with practical difficulties. [FN32]  They are frequently violated, rarelyproduce an arrest for violation, and often fail to prevent further violence. More generally, protection *1511 orders are often criticized as embodying a "soft" approach to woman battering that fails to treat battering as crime to be punished, but merely proscribes future conduct with uncertain enforcement and ineffective sanctions for violations. [FN33]  With these criticisms in mind, this section examines state efforts to achieve and sustain continuing preventive involvement after the issuance of the protection order, and judicial control of order violators through sanctions.  In pursuing these overlapping goals, jurisdictions vary in their emphasis, and balance the concern for protecting women against the competing considerations of resource allocation, appropriate levels of state aggressiveness, and defendants' interests.

 

  These endemic problems suggest that current efforts to enhance victim access to protection orders [FN34] will only be partly effective.  The poor record of protection orders as a means of preventing further violence or intimidation shows that protection orders should be complemented by substantial monitoring and enforcement efforts, as well as strict punishments for violations. Increased preventive state involvement, as well as assailant incapacitation and deterrence, will augment the capacity of protection orders to prevent further violence.  These support measures are especially necessary because of the tenacity of non stranger assailants and their resistance to control. [FN35] Without ongoing, preventive government involvement, a protection order is just a piece of paper; without strict punishments for violations, batterers will flaunt orders.

 

  1.  Ongoing Preventive Involvement and Assailant Control. Enforcement is the principal weakness of protection orders.  The range of state enforcement efforts reflects divergent views of the appropriate vigor needed to enforce orders effectively and to prevent further violations.  Although the resources that some jurisdictions allocate to the monitoring, enforcement, and punishment of violators reflect a strong commitment to ongoing preventive involvement and assailant control, *1512 these tasks generally have received inadequate emphasis in many jurisdictions. [FN36]

 

  Ongoing preventive government involvement may consist of service of orders, monitoring of compliance, and immediate responses to order violations. Orders may be served on the abuser, issued to the victim, the police, or the sheriff, or all of the above. [FN37] Monitoring compliance is frequently left to the victim, although some jurisdictions have arranged for more active government involvement in enforcement. [FN38]  Law enforcement agencies may take specific actions to assist the petitioner in enforcing the order. [FN39]  Even rarer are government efforts at active batterer surveillance. [FN40]

 

  Other recent efforts are similarly aimed at continuing preventive intervention after a victim obtains an order. [FN41] Several states have pursued interjurisdictional information sharing and enforcement of orders. [FN42]  Most states also now pursue mandatory arrest policies, which require an intervening officer to apprehend the batterer when probable cause of an order violation exists; such policies generally do not require that the violation be committed in the officer's presence. [FN43]

 

  States respond to order violations [FN44] with arrest, temporary incarceration, civil or criminal contempt charges, and prosecution. A majority of states authorizes a finding of civil contempt, fewer allow the imposition of criminal contempt charges, and a majority of states *1513 defines a violation as a misdemeanor or other crime. [FN45]  Others permit courts to require assailant counseling for order violations.  Vermont is illustrative of states that also mandate specific law enforcement actions to help a victim reassert control over theresidence and obtain sole custody of the children. [FN46]  Unfortunately, in practice, many jurisdictions have developed only ad hoc procedures for responding to and imposing sanctions for order violations. [FN47]

 

  The following is an illustrative sampling of approaches to a more systematic administration of sanctions for order violations, with minimum thresholds of punishment.  In Illinois, penalties for second, knowing order violations "should" increase over previous sanctions, with a minimum twenty four hour incarceration for second and subsequent violations, in addition to fines and restitution. [FN48]  In Hawaii, counseling is mandated for any violation, a minimum forty-eight hour incarceration is required for second violations, and a minimum thirty day imprisonment for third violations. [FN49]  California is noteworthy as a state that requires a relatively substantial minimum jail sentence for any order violation that involves physical harm to the victim, though the court may lower the mandatory sentence "in the interests of justice." [FN50]  Strong sanctions like the above approaches may serve to improve the effectiveness of protection orders by mandating more significant responses in a predictable fashion.

 

  Recent efforts at increased, continued preventive involvement and assailant control attempt to address the enforcement problem and to render protection orders more effective and less reactive.  These efforts are advisable because of the general tenacity of batterers, their resistance to control, and the historical failings of protection orders as applied to persistent batterers. Similarly, the choice among sanctions for an order violation may serve to convey the state's view of the seriousness of order violations. Systematic and strict punishments for order violations are desirable to incapacitate the recalcitrant batterer, to deter future misconduct, to serve as a conduit for treatment, [FN51] to allow the victim time to obtain support services, and in a broader sense, to convey a stern message of disapproval of the batterers' conduct to the individual and society. [FN52]

 

  *1514 2.  Protection Orders and Criminal Prosecutions. Some jurisdictions allow the coordinated filing of criminal charges and petitions for protection orders. [FN53]  Full protection orders or, more simply, "no contact" orders may also be imposed as a condition of bail or pretrial release (assuming that the incident in question provides sufficient support for criminal charges). [FN54]  In this manner, protection orders determine the relations between the parties [FN55] while a criminal prosecution is pending and foster continuing preventive state involvement.

 

  Protection orders can thus be effective in two different contexts.  First, when the assailant's behavior is not sufficiently serious to support criminal charges, [FN56] an order ushers the victim into the legal system [FN57] and provides more ready access to the courts upon order violations.  Efforts at ongoing preventive state involvement after order issuance enhance this role. Second, when the triggering conduct is criminal, protection orders, when implemented in tandem with criminal prosecution, can help ensure victim safety and material well-being pending disposition of the case. [FN58]  In both contexts, easy and early access, continuing preventive state involvement, and full enforcement (with stringent, systematic sanctions for violations) [FN59] are essential to enhance the effectiveness of orders, to send the correct message about woman battering, and to mitigate the reactive nature of orders.

 

  Civil protection orders should not be utilized in isolation when the violence is sufficient to support criminal charges or when the violence is likely to escalate. [FN60]  When criminal charges are justified, relying on protection orders alone and declining to pursue criminal charges are contrary to the need for vigorous criminal justice responses to the problem of woman battering. [FN61] More practically, in situations that are likely to escalate, an order will not deter the assailant; the order will not adequately protect the victim from a renewed attack absent provisions for immediate police response. [FN62]

 

*1515 D.  Current Responses That Combine the Traditional Mechanisms

 

  The previous sections describe the current status and application of the  "traditional" devices of shelters and protection orders largely in isolation. This section discusses innovative local efforts that combine these devices with criminal prosecution, [FN63] a third traditional mechanism.  The local efforts described in this section are successful examples of local implementation of legal devices to serve the needs of battered women.

 

  State and federal legislative efforts define the broad institutional background rules for addressing domestic violence. [FN64]  Federal legislation that addresses domestic violence has been recently introduced; [FN65] state legislatures also have been extremely active in recent years. [FN66]  Such state statutory provisions can foster effective local intervention and provide the legal framework for innovative local service delivery. [FN67]  On the local level, this vertical coordination must be coupled *1516 with horizontal integration between government agencies or offices in the provision of services and intervention. [FN68]

 

  Many local government domestic violence programs have received scholarly treatment and publicity, including the San Francisco Family Violence Project [FN69] and programs in Minneapolis and Duluth. [FN70]  Among the most comprehensive and effective local responses to the problem of domestic violence has been that of the Quincy District Court, in Norfolk, Massachusetts. [FN71]

 

  The Quincy plan employs each of the means of intervention discussed above in a coordinated fashion and places equal emphasis upon access for victims and efficient criminal processing of the batterers. [FN72]  The programs featured include referral and support services for the victim, initial and ongoing preventive state action, and control of the assailant (through monitoring, treatment, and incapacitation for criminal offenses or order violations). [FN73]  The plan fosters communication and coordination between prosecutors, police, shelters, advocates for victims, and treatment programs for batterers themselves, thus "uniting all the actors in the process." [FN74]  The Norfolk police operate a domestic violence unit, while similar special units operate to provide support services, enforce orders and probation terms, prosecute, and foster community awareness.

 

  The first part of Quincy's two pronged approach focuses on improved access to the system for victims.  Daily briefing sessions are held for women who seek restraining orders or who press criminal charges in order to educate them about their legal rights and the court *1517 system. [FN75]  Staff members accompany women into the courtroom; [FN76] referral services direct women to shelters, support groups, and related services; and, support groups operate from the district attorney's office. [FN77]  In addition, trained advocates serve as coordinators, assist in obtaining protection orders, and devise comprehensive responses for victims.

 

  The second prong of the Quincy plan concerns an approach to criminal justice designed to control abusers.  The Quincy plan treats initial prophylactic intervention, as well as continuing preventive involvement, as essential. Protection orders are strictly enforced, with any contact constituting a violation; batterers are closely monitored, sometimes through "saturation surveillance." [FN78]  Assailants who violate orders or threaten further violence are apprehended and brought to court. [FN79]  The domestic violence wing of the District Attorney's office monitors police reports daily and contacts victims to arrange briefings and to apprise them of their options. [FN80]  A special domestic violence team thus both prosecutes and coordinates police response.  Pretrial probationprograms specify weapons forfeiture and no contact orders, and domestic violence cases receive "fast track court scheduling" to expedite trials. [FN81]

 

  The judicial branch also operates in the scheme.  The court's stated approach is that cases will not be "dropped for want of prosecution or victim ambivalence." [FN82]  Case disposition specifically incorporates assailant control through strict "tourniquet sentencing," which increases penalties with subsequent offenses.  The court also imposes substance use monitoring and treatment of the batterer for psychological problems. [FN83]

 

  The Quincy scheme thus incorporates improved victim access to the system, victim support, and victim advocacy, simultaneously with strict assailant control, the second prong.  As a point of comparison, authorities in Duluth, Minnesota similarly pursue coordinated intervention that stresses victim support and assailant control. [FN84]  The Duluth *1518 approach links shelters, police, probation departments, and counseling agencies through the "coordinating body" of the Domestic Abuse Intervention Project (DAIP). [FN85]  The project emphasizes swift arrest, vigorous criminal prosecution, support services for the victim, and rehabilitation for the assailant, with the latter perhaps receiving more emphasis than in the Quincy plan. [FN86] These two successful [FN87] local approaches demonstrate the capacity for local government innovation and productive adjustments to meet the needs of battered women.

 

E.  Analysis and Conclusion

 

  The descriptive sections above highlight the strengths and weaknesses of the traditional mechanisms of state response to woman battering.  State responses display two dimensions, one structural, the other substantive.  This section argues that, structurally, the traditional mechanisms are best delivered in an integrated package at the local level, although necessarily supported by uniformly vigorous state provisions of legal devices and funding, as well as federal support through funding, model programs, and moral encouragement. Substantively, among the traditional mechanisms, criminal prosecution and punishment are the best means of controlling assailants, modifying behavior, and promoting public awareness.

 

  1.  Structure.  Structurally, the ideal approach to domestic violence involves coordinated and ready access for victims to all of the traditional mechanisms. [FN88]  Early and ongoing preventive governmental involvement through each of these mechanisms is necessary to rewrite the usual scripted chain of events. [FN89] Well defined channels of communication and frequent interaction between shelter providers, victim advocates, police, prosecutors, and judges are at the core of the Quincy plan and similar successful approaches. [FN90]  The alternative *1519 is disjointed, probably inadequate, and possibly duplicative intervention.  Such productive interaction is most feasible and effective at the local level.

 

  At the state and federal levels, governments can best support local efforts through funding and the marshaling of public opinion. [FN91]  Any piecemeal local effort will enjoy only limited success without this broad systemic support.  Increased access to the traditional mechanisms for victims should be delivered through carefully defined and manageable units that are parts of larger integrated networks that share information and pursue enforcement goals in a cooperative fashion. [FN92]

 

  Within local jurisdictions, coordination of service providers is crucial; within states, cooperation and the relative uniformity of protection and provision of services is desirable to prevent balkanization and inconsistencies; finally, vigorous federal support, funding, and suggestion of fruitful approaches will also prevent regional inadequacies or lethargy.  The federal government should not, however, mandate local plans. [FN93]  Local conditions differ, as do the range of desirable responses, within certain parameters. [FN94]  The local governments should serve as "laboratories" to test and adjust responses within those parameters.  Local discretion, perhaps the source of fears over inconsistent enforcement, can be channeled through the setting of national [FN95] and state agendas and funding priorities.  Within these broad policy constraints, the specifics of implementation can be safely left to local adaptation. [FN96]

 

  *1520 The most daunting problems are the most obvious ones:  the lack of funding and resources, and the complexities of bureaucratic coordination among several agencies or departments. [FN97]  Such coordination is expensive, but funding is especially scarce given the current domestic economic and political climate. [FN98]  The Quincy plan, however, was implemented within existing budgetary constraints, solely through "altered priorities" and the reorganization and training of existing staff, departments, agencies, and community groups. [FN99]  The Duluth plan combined local, state, and private funds, with each participating agency sharing the cost. [FN100]  Either of these two alternative approaches admittedly involves a policy choice in allocating public resources, one that should be influenced by the gravity of the domestic violence problem, the number of constituents affected, and the costs that this category of violent crime imposes on society.

 

  A helpful analogy is provided by the history of efforts to curb drunk driving.  The legal treatment of drunk driving in the 1980s illustrates a concerted response by federal, state, and local officials to a matter of overwhelming public concern.  The federal government prompted state responses through funding, guidance, and encouragement, ensuring uniformity when essential to enforcement efforts. [FN101]  State and local governments have pursued a combination of saturation education, innovative prevention, and strict enforcement, coupled with stringent punishment. [FN102]  The results have been telling. [FN103]

 

  *1521 In public policy terms, a threshold awareness and concern about domestic violence exists that can be further expanded, [FN104] just as was recommended and pursued effectively to prevent and deter drunk driving. [FN105]  The goal should be to educate both school age children [FN106] and adults, [FN107] to change public attitudes in a lasting and indelible manner, and to incapacitate and deter those persons impervious to education. This approach is not novel, but must be pursued vigorously at both the state and national levels in order to succeed.

 

  2.  Substance.  Criminal prosecution should receive the greatest emphasis of all substantive approaches to domestic violence.  As a corollary, protection orders should be backed by stringent enforcement and significant sanctions. Both of these control strategies should be conveyed through and combined with exhaustive community education, as well as improved access for victims to shelters and related support services.  In this manner, arguments against strict criminal prosecution of batterers may be answered constructively.

 

  (a)  Criminal Prosecution as a Control Strategy.  Within the domestic violence community, there are two distinct schools of thought concerning the proper prioritization among substantive responses to domestic violence.  One school advocates "control" strategies, which would punish and restrain assailants; the other favors a more community based (for the victim, focusing on shelter and assistance) and treatment oriented (for the victim and assailant) approach. [FN108]  The most striking aspects of the domestic violence problem, however, are the tenacity of the assailants and the mounting violence evident in most cases. [FN109] On a systemic level, the breadth of the problem and *1522 the manner in which it is replicated and leads to further violent crime is equally troubling. [FN110]

 

  Domestic violence is thus a phenomenon both deep and wide. [FN111]  These patterns of violence suggest that counseling or treatment of the individual assailant is ineffective unless coupled with punitive measures. [FN112]  Because most batterers are persistent and recalcitrant, state intervention must control, educate, and deter in the individual case. Furthermore, because battering is so prevalent, society must convey a message of stern disapproval through punishment and efforts at education (of the assailant and the public), and with a focus on condemnation, public awareness, and general deterrence. [FN113]  The emphasis should thus be on assailant control through stringently enforced protection orders and vigorous prosecution, combined with community education. The criminal justice system's response should be of the same severity as that accorded to other major categories of criminal activity.

 

  States' successful experiences with deterrent approaches to drunk driving suggest using the same primarily criminal law approach to domestic violence as a means of public education, deterrence, and assailant control.  All states have "domestic abuse" statutes, so the legal devices are already largely in place. [FN114]  As described above, [FN115] the proposed federal act and several of the recent state enactments embody a stern approach to domestic violence.  In theory, this approach is not novel, [FN116] but in practice, states should narrow the "flexible range" of the dispositions of domestic violence cases, [FN117] eschew lenient dispositions that lack a sufficiently punitive element, and *1523 administer a range of substantive penalties in a manner that makes apprehension and punishment of the batterer highly likely, as the drunk driving deterrent philosophy emphasizes. [FN118]

 

  Rehabilitation should play only a secondary role. [FN119]  Any treatment must be coupled with and forcefully convey blame and public disapproval. Dispositions such as community service or suspended sentence fail to affix blame to the assailant; they instead make domestic violence appear to be a "special" crime or suggest that the assailant is less than fully culpable for his criminal behavior.  In addition, given the propensity to violence and the tenacity of assailants, preventing continued violence  or "specific" [FN120] deterrence  is also a most immediate concern. Incarceration is the best way to control assailants, express societal disapproval, and mandate intensive treatment.  Thus, significant criminal sanctions best promote the interests of society and of individual victims.

 

  On a societal level, domestic violence is so widespread and destructive that an energetic criminal response is indispensable.  A stern criminal approach dispels any lingering myths of society's acceptance of wife beating or exaggerated and antiquated notions of family privacy as a shield to criminal behavior. [FN121]  The fostering of further non stranger violence and the future criminal activity that has generally been shown to result from violence in the home should also be a paramount concern.  Statistics compiled through the Los Angeles District Attorney's office suggest that arrest, prosecution, and substantive punishment deter the assailant most effectively. [FN122] Treatment of the *1524 assailant may ultimately protect the victim in lasting fashion, but in the individual case, immediate incapacitation is often the safest and most pressing recourse, and the most effective at achieving the preventive goals described above.

 

  (b)  The Role of the Other Traditional Mechanisms.  The enforcement problems and repeated violations endemic to protection orders pursued in isolation also support an increased emphasis on criminal prosecution. [FN123]  Without vigorous emphasis on prosecution, it is unlikely that protection orders will be backed by similarly vigorous monitoring, enforcement, and sanctions; the two must work in tandem to actually control and deter the assailant. Civil protection orders should complement criminal prosecution by providing for the removal of the assailant from the home and other related measures pending prosecution. [FN124]  The civil/criminal distinction should be bridged constructively to also permit criminal sanctions for order violations. [FN125]  When the possible penalties overlap or the possible remedies coincide, states should pursue an integrated strategy that "view s antisocial behavior as a problem to be met, managed, and resolved by whatever civil or criminal tools seem promising." [FN126]  This approach will help make sense of the morass of overlapping charges and resolve procedural ambiguities. Orders should be backed by mandatory arrest and either criminal contempt or prosecutorial proceedings, rather than just civil sanctions, [FN127] in order to ensure victim safety and present the assailant with an integrated deterrent response.  Such a constructive *1525 bridging could, however, require procedural and jurisdictional reforms and added protections for defendants' rights. [FN128]

 

  Shelters and support services should also complement prosecution, as the Quincy and Duluth plans formulate. Community based responses are important for providing shelter in the short term, while the batterer is being apprehended; for providing counseling, support, advocacy, resources, and mobility in the interims while the suspect is incapacitated; and, if possible, for attempting treatment and conciliatory intervention in the long run. The focus must be on shielding the victim, though in keeping with a philosophy of strict enforcement and punishment.

 

  (c)  Criticisms of the Emphasis on Criminal Prosecution.  The criticisms of a punitive state approach to battering (through sanctions and prosecution of order violations) include two major arguments for a shift to more conciliatory strategies.  First, criminal prosecution raises serious concerns about harms to the victim of domestic violence.  Second, an increased emphasis on prosecution may strain an already overburdened criminal enforcement and prosecution apparatus.

 

  (i)  Harm to the Victim.  Woman battering is often perceived as a "special" situation, best handled in the early stages by more creative (or at least less punitive) means conducive to keeping the family or relationship intact and capable of avoiding irreversible effects from premature state involvement. [FN129] Prosecution may also "create havoc," prompting retaliation by assailants; [FN130] this risk may in turn make victims reluctant to call the police. [FN131]  These arguments, however, overlook the argument that the state should intervene in and prosecute any violent crime, regardless of the identity of the parties.  More importantly, the state must choose between competing values, and on balance, preventing lethal violence is more urgent than preserving a relationship that is by definition injurious to the victim. Alternatives to prosecution have proven ineffective in protecting victims; [FN132] they ignore the risk of continued and escalating violence and, for deterrent purposes, fail to focus societal disapproval squarely on the assailant.

 

  *1526 Furthermore, non stranger assailants possess access to their victims that presents clear risks of revictimization whether prosecution is initiated or not.  Refraining from prosecution based on a belief that state intervention is a last resort ignores this high probability of continued and intensified abuse.  State initiation of criminal charges [FN133] and state assistance in petitions for preventive protection orders can alleviate victims' reluctance to report and to initiate prosecution due to fears of retaliation. Stringent pretrial release conditions and monitoring, possibly in the form of a vigorously enforced protection order, can prevent further contact and resulting violence. [FN134]

 

  Some commentators also argue that prosecution and incarceration of batterers may inflict economic hardship on victims who depend upon their batterers for support.  This argument proves too much; civil remedies or simple self help by victims also produce hardship without providing the deterrent effect of criminal sanctions, although spousal and child support are an option under some protection order statutes.  Yet, as the scope of protection order coverage demonstrates, many battered women are not married to, are divorced from, or do not reside with the assailant, both limiting the reach of such compelled support and undermining the claims of widespread hardship.  Moreover, woman battering cuts across all socioeconomic lines, [FN135] so any generalizations about economic dependence are of limited usefulness, and may be generated more by negative stereotypes than by economic realities.  Finally, victims' financial hardships, if any, may be alleviated by augmenting shelters and related social services.  Shelters and services can also translate into access to child care, job referral and training, more permanent housing, and welfare assistance, thus breaking the pattern of reliance if one indeed exists.

 

  (ii)  An Overburdened System.  The second major argument against increased emphasis on criminal prosecution is that state resources could not support the increased caseload and the resulting strains on prisons, judges, parole officers, and other parts of the legal system. [FN136]  This argument is misguided for many reasons. First, allocation of sufficient resources has been accomplished through altered law enforcement priorities in the domestic violence area in some jurisdictions and in other contexts generally.  It is difficult to argue that domestic violence does not deserve high priority resource allocation. [FN137]  Second, heightened sanctions and stricter enforcement should ultimately *1527 deter and decrease criminal activity, [FN138] thus lowering caseloads. [FN139] Third, the strategic purpose of criminal punishment is not to incarcerate all batterers and to raise levels of punishment until the state prevents the activity with an absolute prophylactic approach.  Rather, the emphasis on strict punishment aims primarily to control assailants in the short run and to provide intensive treatment in a strictly monitored setting that bears the imprimatur of state disapproval.  This short  term control also serves a broader goal of public awareness and general deterrence.  Through visible prosecution of egregious cases, the state increases public awareness of the problem and encourages informal social mechanisms for preventing abuse.  Finally, increased caseload is not a valid excuse for the state to shirk its responsibility to control violent crimes, and in this case, to control tenacious batterers who do not respond to lesser sanctions and education.

 

  3.  Conclusion.  A coordinated federal, state, and local effort is essential to convey a recognition of the breadth and seriousness of domestic violence, and effectively to combat the problem.  The tangible delivery of the traditional services and devices is best effected through comprehensive local plans, devised with state and federal support.  Local creativity and flexibility in such delivery, centered around a stern criminal justice response in conjunction with shelters, services, protection orders, and community education, can lead to progress in controlling and preventing woman battering.

 

  More generally, domestic violence should not be treated as a special crime.  [FN140]  Any special treatment or policy "adjustments" other than the increased allocation of resources and vigorous prosecution will have stigmatizing effects for the victims, hamper energetic enforcement efforts, and serve to perpetuate myths and societal tolerance for woman battering. [FN141]  Formally equal treatment, in this context at *1528 least, [FN142] will facilitate the recognition of woman battering as an equally undesirable crime as other assaults and batteries, and at least as pervasive [FN143] as other destructive problems like drunk driving or drug abuse. Woman battering should be treated like any other violent crime; it also deserves the priority, resources, and effort that we invest in other criminal epidemics with untold consequences.

 

[FN1] It is important to note the limitations of the term "traditional."  The history of state recognition and response to domestic violence can be encapsulated in the last two decades, with such efforts only reaching significant proportions in the 1980s. See Elizabeth M. Schneider, The Dialectic of Rights and Politics:  Perspectives from the Women's Movement, 61 N.Y.U. L. REV. 589, 644 (1986); Kathleen Waits, The Criminal Justice System's Response to Battering:  Understanding the Problem, Forging the Solutions, 60 WASH. L. REV. 267, 267 68 (1985).  Thus, "traditional" may be a misnomer.

 

[FN2] See Naomi R. Cahn & Lisa G. Lerman, Prosecuting Woman Abuse, in WOMAN BATTERING:  POLICY RESPONSES 95, 97 (Michael Steinman ed., 1991) [hereinafter WOMAN BATTERING].

 

[FN3] See Mary Ann Dutton Douglas & Dorothy Dionne, Counseling and Shelter Services for Battered Women, in WOMAN BATTERING, supra note 2, at 113, 118 21; see also ATTORNEY GEN.'S TASK FORCE ON FAMILY VIOLENCE, FINAL REPORT 46 61 (1984) (proposing a list of community services for victim assistance) [hereinafter TASK FORCE].

 

[FN4] Shelters and related services provide for needs that have been classified as crisis issues, transition issues, and recovery needs. See Dutton  Douglas & Dionne, supra note 3, at 114 17.  More controversial are programs for the batterer, which are largely beyond the scope of this Part.  See Richard M. Tolman & Gauri Bhosley, The Outcome of Participation in a Shelter Sponsored Program for Men Who Batter, in ABUSED AND BATTERED 113, 120 22 (Dean D. Knudsen & JoAnn L. Miller eds., 1991), for a discussion of the possible efficacy of shelter provided intervention counseling for assailants.

 

[FN5] See, e.g., Minn. Stat. § 611A.31 (1992) (dividing the state services into emergency shelter services (secure crisis shelters and emergency housing networks) and support services (advocacy, legal, counseling, transportation, child care, and 24 hour information and referral services)).

 

[FN6] See, e.g., Iowa Code § 236.15A (Supp. 1991) (implementing an income tax checkoff for donations to shelters); id. § 236.16 (granting funds directly for shelter and support services, including pilot programs and a state hotline); Kan. Stat. Ann. § 74 7325 (Supp. 1991) (establishing a "protection from abuse fund" from which the crime victims compensation board is to administer grants for shelters, education, and counseling services).

 

[FN7] See, e.g., Idaho Code § 39 6312 (Supp. 1992) (requiring that $10 of each fine assessed for a protection order violation be deposited in a domestic violence project account); Ill. Rev. Stat. ch. 38, para. 1005 9 1.5 (Supp. 1992) (mandating a $10 addition to any fine for domestic battery, and a $100 fine assessed upon a guilty plea for the commission of any crime in the domestic context, both to be deposited in the Domestic Violence Shelter and Service Fund).

 

[FN8] See, e.g., Mont. Code Ann. § 52 6 103 (Supp. 1992) (instructing that grants be given only to locally controlled domestic abuse programs based on need, merit, administrative design, and "efficiency of administration").

 

[FN9] See, e.g., S.D. CODIFIED LAWS ANN. § 25 10 17 (Supp. 1992)  (requiring that local sources account for at least 20% of the program costs); id. § 25 10 32 (authorizing funding from federal sources and gifts).

 

[FN10] See MAJORITY STAFF OF SENATE JUDICIARY COMM., 102D CONG., 2D SESS., VIOLENCE AGAINST WOMEN:  A WEEK IN THE LIFE OF AMERICA 39 (Comm. Print 1992) [hereinafter WEEK IN THE LIFE]. Shelters, although generally inadequately funded, are completely lacking in some intrastate regions.  See, e.g., Cal. Penal Code § 13823.15 (Deering 1993).

 

[FN11] The impermanence of shelters can lead women either to "face homelessness" or to "go back to an abusive situation."  Adrian Walker, Restraining Orders Are At a Record High, BOSTON GLOBE, Sept. 23, 1992, at 1. Women may also face this dilemma if turned away froma shelter because of overcrowding, another dilemma that faces jurisdictions with tight fiscal constraints.  Cf. Jane Gross, Abused Women Who Kill Now Seek Way Out of Cells, N.Y. TIMES, Sept. 15, 1992, at A16 (relating stories of women who eventually killed their batterers after being turned away from overcrowded shelters).

 

[FN12] See, e.g., S.D. CODIFIED LAWS ANN. § 25 10 28 (Supp. 1992)  (requiring that programs provide shelter, telephone, and referral services 24 hours a day, seven days a week).

 

[FN13] Confidentiality concerns most often arise in two contexts:  in statistical reports of services provided, and more immediately, in shielding the victim from the assailant.  The latter may be addressed in a variety of ways.  See, e.g., S.D. CODIFIED LAWS ANN. § 23A 3 23 (Supp. 1992) (requiring each law enforcement agency to withhold the location of the victim from defendant); Wyo. Stat. § 1 12 116 (Supp. 1992) (establishing confidentiality of information between the advocate, service provider, and victim); 1991 Wis. Laws 228 (requiring that abuse services maintain confidentiality and specifying penalties (maximum $500 fine, 30 days in jail) for deliberately making prohibited disclosures); see also Steven P. Oates, Caller ID:  Privacy Protector or Privacy Invader?, 1992 U. Ill. L. Rev. 219, 231 (1992) (expressing privacy concerns raised by a caller identification feature in which incoming callers to a hotline or from a shelter may be identified); cf. Pennsylvania Pub. Util. Comm'n v. Bell Tel. Co., No. 201, 1992 Pa. LEXIS 242, at *3 (Mar. 18, 1992) (noting the complaints of the Pennsylvania Coalition Against Domestic Violence that "Caller ID" poses threats to confidentiality).

 

[FN14] See, e.g., Minn. Stat. § 611A.02 (1992) (establishing a program that involves a collaborative effort between the commissioner of public safety and the "crime victim and witness advisory council" to notify victims about victim services (hotlines, shelters, and programs) and rights).

 

[FN15] See Richard K. Caputo, Police Classification of Domestic Violence Calls:  An Assessment of Program Impact, in ABUSED AND BATTERED, supra note 4, at 147, 147 48.

 

[FN16] See, e.g., Tenn. Code Ann. § 40 7 103(7) (Supp. 1993).  Police in Montana are required to give victims a written form that lists their rights and informs them of available resources and means of intervention.  See Mont. Code Ann. § 46 6 602 (Supp. 1992); see also Iowa Code § 236.12 (Supp. 1991) (requiring a police response to include notice of right to transportation to a hospital, temporary police protection, and "telephone numbers of safe shelters, support groups, or crisis lines operating in the area").

 

[FN17] See Dutton Douglas & Dionne, supra note 3, at 119; see also Wash. Rev. Code § 10.99.030(4) (Supp. 1991) (establishing a standard police procedure of notifying victims of a toll free hotline number); 1991 Wis. Laws 96 (appropriating funds for a 24 hour telephone service for domestic abuse shelters to respond to arrests).

 

[FN18] See, e.g., N.J. STAT. ANN. § 52:4B 43.1.c(3) (West Supp. 1992)  (specifying a 24 hour crisis response and hotlines for shelter facilities); N.Y. EXEC. LAW § 548 c (Consol. 1992) (establishing "neighborhood based initiatives project" with 24 hour accessibility, coordinated provision of services, and comprehensive case management to ensure the effective delivery of services for a variety of citizen needs).

 

[FN19] See, e.g., Mich. Comp. Laws § 764.15c (1991) (requiring the intervening police officer to give the victim notice of the content and availability of protection orders and of the option of criminal prosecution).

 

[FN20] See Cahn & Lerman, supra note 2, at 96, 99.

 

[FN21] See, e.g., Neb. Rev. Stat. § 42 909 (Supp. 1991) (requiring that a social service agency help formulate a 30 day "plan of action," possibly to include "relocation, financial security, employment, advocacy, assertiveness training, and alternatives to returning").

 

[FN22] See, e.g., R.I. GEN. LAWS § 12 29 7 (Supp. 1991) (providing funds fora court advocacy project to advise victims as to their rights; assist victims with protection order petition and process; refer victims to shelters and services; and, monitor the justice system's response to and treatment of victims).

 

[FN23] Dutton Douglas & Dionne, supra note 3, at 121 25.

 

[FN24] See id. at 123.

 

[FN25] PETER FINN & SARAH COLSON, CIVIL PROTECTION ORDERS: LEGISLATION, CURRENT COURT PRACTICE, AND ENFORCEMENT at v (1990).

 

[FN26] In every state with domestic abuse statutes, ex parte orders may include eviction of the batterer and temporary child custody, see Peter Finn, Civil Protection Orders:  A Flawed Opportunity for Intervention, in WOMAN BATTERING, supra note 2, at 129, 166; some states allow the court discretion in fashioning such emergency orders, see, e.g., Ky. Rev. Stat. Ann. § 403.740(1)(f) (Baldwin Supp. 1992) (permitting the judge who issues a temporary order to "[e]nter other orders the court believes will be of assistance in eliminating future acts of domestic violence and abuse; or any combination thereof"); Minn. Stat. Ann. § 518B.01(7) (West Supp. 1993) (allowing prohibition on contact at home or work, eviction from the dwelling, a no abuse order, and "granting relief as the court deems proper").

 

[FN27] Specific provisions of full protection orders include:  "no further abuse" orders, "no contact" orders, barring the assailant from the residence, and eviction of the assailant from the residence.  Eviction is universally available.  In most states, the order may designate temporary child custody and visitation rights and may also include temporary child support and temporary spousal support. See Finn, supra note 26, at 167.  A minority of states allows for the disposition of certain property, monetary compensation, and related financial provisions such as the payment of court costs.  Finally, an order may mandate counseling for the assailant.  See, e.g., 1992 Okla. Sess. Laws 379 (authorizing the court to order treatment or counseling for the assailant or victim or both, and for the defendant to pay compensation).  Some jurisdictions, such as Duluth, Minnesota, have created monitoring systems for treatment to ensure attendance and to monitor progress. See DOMESTIC ABUSE INTERVENTION PROGRAM, CITY OF DULUTH, INNOVATIONS IN STATE AND LOCAL GOVERNMENT:  APPLICATION II, ¶¶ 1, 3 (Mar. 27, 1987) (application for award, on file at the Harvard Law School Library) [hereinafter DAIP APPLICATION].

 

[FN28] In some states, ex parte and permanent orders are coextensive; most states, however, "exclude" certain types of relief from ex parte orders, such as spousal or child support, and orders for mandatory counseling.  See Finn, supra note 26, at 166. These exclusions apparently reflect concerns with procedural due process or other constitutional strictures.  See id. at 170.

 

[FN29] The civil nature of the proceeding translates into a lower burden of proof, by a preponderance of the evidence, not beyond a reasonable doubt.

 

[FN30] See Elizabeth Topliffe, Why Civil Protection Orders are Effective Remedies for Domestic Violence but Mutual Protection Orders are Not, 67 IND. L.J. 1039, 1064 (1992).

 

[FN31] Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23 FAM. L.Q. 43, 44 (1989).

 

[FN32] Problems with protection orders, and with access to the system generally, include the lack of security at the courthouse where orders are sought, lax responses to requests for orders, and failures in enforcement.  See Patricia Nealon, Troubles of Battered Women in Cambridge Court Decried, BOSTON GLOBE, Oct. 22, 1992, at 34.

 

[FN33] See Finn, supra note 26, at 155.

 

[FN34] Some of the variables that determine victim access to protection orders include the scope of coverage of state laws, the formal procedures for obtaining an order, and victim awareness of order availability.  From 1983  1988, the trend among states was toward significantly broader coverage.  See FINN & COLSON, supra note 25, at 7.  As an illustrative structural example, access after business hours has increased.  See, e.g., Ky. Rev. Stat. Ann. § 403.735 (Baldwin Supp. 1992) (mandating that procedures be established to provide for the 24 hour availability of ex parte orders); 1992 Me. Laws 760 (providing for after hours protection for "good cause" (e.g., "immediate and present danger")).  Many jurisdictions have also simplified the procedures for obtaining orders.  See, e.g., Minn. Stat. Ann. § 518B.01 (West 1992) (providing for no filing fees, simplified terms composed by a state court administrator and victim advocates, and "clerical assistance").  In addition to these substantive areas, many states have undertaken efforts to increase victim awareness of order availability.  See, e.g., Cal. Pen. Code § 13711 (Deering 1993) (requiring a clerk of the superior court to provide to a battering victim a pamphlet that describes legal options).

 

[FN35] See infra pp. 1521 22.

 

[FN36] Inadequate enforcement may have lethal consequences for the victim.  See FINN & COLSON, supra note 25, at 49; Topliffe, supra note 30, at 1044 47. It is possible to enhance accessibility while emphasizing strict monitoring, enforcement, and punishments for violators.  See the discussion of the Quincy plan below at pp. 1516 17.

 

[FN37] See, e.g., Colo. Rev. Stat. § 14 4 103 (Supp. 1992). According to Peter Finn, "quick service is critical" in many domestic abuse situations in order to locate the batterer and alert him to the order's existence.  Finn, supra note 26, at 182.  For a chart showing the methods used by various states, see id. at 160 61.

 

[FN38] See FINN & COLSON, supra note 25, at 53.

 

[FN39] See, e.g., Ky. Rev. Stat. Ann. § 403.755 (Baldwin Supp. 1992).

 

[FN40] See infra p. 1517.

 

[FN41] See, e.g., Colo. Rev. Stat. § 14 4 103 (Supp. 1992). In order to aid the identification of violators, Massachusetts has created a computerized registry of batterers placed under such orders and domestic abuse offenders generally. See 1992 Mass. Adv. Legis. Serv. 188 (Law. Co op.).  The central registry is intended both to enhance effective monitoring in specific cases and to isolate and identify repeat offenders who move between jurisdictions and multiple abusive relationships.  See Patricia Nealon, Domestic Violence:  No Easy Answers; Hearing Today at State House, Boston Globe, Mar. 2, 1992, at 1. Similar legislation has been passed in Kentucky, see Ky. Rev. Stat. Ann. § 403.770(2) (Baldwin Supp. 1992), and Minnesota, see Minn. Stat. § 518B.01 (Supp. 1993).

 

[FN42] See, e.g., Ariz. Rev. Stat. § 13 3602 (1992).

 

[FN43] For a detailed discussion of various mandatory arrest policies, see Part III below at pp. 1535 40.

 

[FN44] This discussion of state responses to violations is principally concerned with contact or abuse in contravention of orders, not the nonrestraining content of orders such as child or spousal support.

 

[FN45] See Finn, supra note 26, at 160 61.  Some states classify each successive violation as a more serious offense. See, e.g., Vt. Stat. Ann. tit. 13, § 1030 (Supp. 1992); Finn, supra note 26, at 163.

 

[FN46] See Vt. Stat. Ann. tit. 15, § 1108(a)(2)(3) (Supp. 1992); id.  § 1108(b).

 

[FN47] See FINN & COLSON, supra note 25, at 2; Topliffe, supra note 30, at 1046 47.

 

[FN48] See Ill. Rev. Stat. ch. 38, paras. 12 30 (Supp. 1992).

 

[FN49] See Haw. Rev. Stat. § 586 11 (Supp. 1992).  The penalties may be suspended if the defendant remains drug free, conviction free, or completes counseling. See id.

 

[FN50] See Cal. Penal Code. § 273.6 (Deering 1993).

 

[FN51] See FINN & COLSON, supra note 25, at 2.

 

[FN52] See infra p. 1523.

 

[FN53] See 1992 Mass. Adv. Legis. Serv. 188, at *5 (Law. Co op.), available in LEXIS, Legis Library, **ALS File; Eleanor Lyon & Patricia G. Mace, Family Violence and the Courts:  Implementing a Comprehensive New Law, in ABUSED AND BATTERED, supra note 4, at 167, 169 70; see also Topliffe, supra note 30, at 1048 ("Civil protection orders are also used in conjunction with other civil and criminal remedies.").

 

[FN54] See, e.g., S.D. Codified Laws Ann. § 25 10 23 (Supp. 1992); 1992 Ill. Legis. Serv. 1186 (West); Finn & Colson, supra note 25, at 156.

 

[FN55] See supra note 27.

 

[FN56] See Topliffe, supra note 30, at 1047 48.

 

[FN57] Cf. Caitlin E. Borgmann, Battered Women's Substantive Due Process Claims:  Can Orders of Protection Deflect DeShaney?, 65 N.Y.U. L. REV. 1280, 1323 (1990) ("Indeed, the order of protection ... tightens the relationship between the state and the battered woman.").

 

[FN58] See FINN & COLSON, supra note 25, at 3, 60.

 

[FN59] See id. at 3.

 

[FN60] See Topliffe, supra note 30, at 1046.

 

[FN61] See infra pp. 1521 22.

 

[FN62] See Finn, supra note 26, at 181.

 

[FN63] Alleged batterers are prosecuted for the usual litany of generic substantive offenses.  Many states have passed measures that define substantive crimes more closely linked to domestic violence specifically, including new "stalking" or harassment statutes, see infra pp. 1534 35, and more general "domestic abuse" statutes, see, e.g., Mont. Code Ann. § 45 5 206(3) (Supp. 1992).

 

[FN64] See Bernadette D. Sewell, Note, History of Abuse: Societal, Judicial, and Legislative Responses to the Problem of Wife Beating, 23 SUFFOLK U. L. REV. 983, 998 (1989).

 

[FN65] The most recent federal legislative initiative is the Violence Against Women Act of 1993, S.11, 103d Cong., 1st Sess. (1993) [hereinafter Violence Against Women Act].  The innovations proposed in the Act are discussed at pp. 1544 45.  The Act touches on each of the traditional mechanisms, such as augmenting shelter funding, see id. § 241, enhancing the interstate reach of protection orders, see id. §§ 2261 62, encouraging aggressive and systematic arrest and criminal prosecution initiatives, see id. § 231, and sponsoring educational efforts for students and the public, see id. §§ 261, 281.  Given the limited funding available under the proposed Act and its broad focus, the most promising attribute of the federal effort is its contribution to awareness of the problem of domestic violence.  The Act has not become law as of this writing.  See Kelly Richmond, Boxer Pushes Bill to Stop Violence Against Women, STATES NEWS SERV., Feb. 24, 1993 (discussing the optimism of the sponsors that the bill will pass in 1993, and the promise of President William J. Clinton to sign the bill).

 

[FN66] The breadth of legislative activity in nearly every state represents a commitment to combat domestic violence.  See, e.g., Minn. Stat. §§ 611A.02, 0311 (Supp. 1993) (providing goals and a pilot program for criminal prosecution of assailants, creating additional shelter resources, and revising protection order access, content, and coverage); N.J. Rev. Stat. § 2C:25 2 (Supp. 1992) (emphasizing three elements of government response:  uniform enforcement of criminal laws in domestic situations, protection of the victim, and use of available resources for the victim); 1992 Cal. Adv. Legis. Serv. 162 (Deering) (establishing a comprehensive Family Code and codifying and amending existing devices to combat domestic violence).  The New Jersey provisions also provide for "prompt response in an emergency situation" and create "domestic crisis teams" of police, social workers, and counselors to provide an array of services.  N.J. Rev. Stat. §§ 2C:25 20, 52:4B 43.1 (Supp. 1992).

 

[FN67] See, e.g., Jon Nordheimer, In Domestic Violence, These Charges Stick, N.Y. TIMES, Sept. 13, 1992, at 56 (describing Sussex County mandatory prosecution policy as one "inspired, but not mandated, by New Jersey's" latest domestic violence act).

 

[FN68] This integration must overcome an array of administrative obstacles.  See Michael Steinman, The Public Policy Process and Woman Battering:  Problems and Potentials, in WOMAN BATTERING, supra note 2, at 1, 10.

 

[FN69] See Jeffrey L. Edleson, Coordinated Community Responses, in WOMAN BATTERING, supra note 2, at 203, 204; Esta Soler, Domestic Violence is a Crime:  A Case Study  San Francisco Family Violence Project, in DOMESTIC VIOLENCE ON TRIAL 21, 21 (Daniel J. Sonkin ed., 1987).

 

[FN70] See, e.g., DAIP APPLICATION, supra note 27, ¶¶ 17, 19; Finn, supra note 26, at 188.

 

[FN71] The Quincy Court Model Domestic Abuse Program was recently honored by the Innovations in State and Local Government Awards Program.  See Patricia Nealon, Quincy Program to Aid Battered Women Wins Grant, BOSTON GLOBE, July 15, 1992, at 27.  The National Council of Family and Juvenile Court Judges has chosen the Quincy program as a model and has promoted its replication throughout the country.  See QUINCY COURT MODEL DOMESTIC ABUSE PROGRAM, TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS, INNOVATIONS IN STATE AND LOCAL GOVERNMENT:  1992 PRELIMINARY APPLICATION:  DATA SHEET 7 8 (Jan. 8, 1992) (application for award, on file at the Harvard Law School Library) [hereinafter QMDAP PRELIMINARY APPLICATION].

 

[FN72] See QMDAP PRELIMINARY APPLICATION, supra note 71, at 7.

 

[FN73] See id.

 

[FN74] QUINCY MODEL DOMESTIC ABUSE PROGRAM, TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS, INNOVATIONS IN STATE AND LOCAL GOVERNMENT:  SEMIFINALIST APPLICATION 2 (Mar. 27, 1992) (application for award, on file at the Harvard Law School Library) [hereinafter QMDAP SEMIFINAL APPLICATION].

 

[FN75] See id. at 2.

 

[FN76] The prospect of an unaccompanied confrontation with the assailant may have a chilling effect upon a victim's pursuit of civil or criminal remedies. Cf. Nealon, supra note 32, at 34 (describing the fear that some women feel when sitting "alone and unprotected" in court hallways).

 

[FN77] See Nealon, supra note 71, at 27.

 

[FN78] QMDAP SEMIFINAL APPLICATION, supra note 74, at 2 3.

 

[FN79] See id. at 3.

 

[FN80] See Nealon, supra note 71, at 27.

 

[FN81] See QMDAP SEMIFINAL APPLICATION, supra note 74, at 2.

 

[FN82] Id. at 3.

 

[FN83] See QMDAP PRELIMINARY APPLICATION, supra note 71, at 8.  The Duluth plan, see DAIP APPLICATION, supra note 27, similarly places emphasis on coupling rehabilitation with "increasingly harsh penalt[ies]."  Id. ¶ 3.

 

[FN84] See DAIP APPLICATION, supra note 27, ¶ 1.

 

[FN85] Id.

 

[FN86] See id. ¶ 2.

 

[FN87] See id. ¶ 8 (describing an increase in the misdemeanor assault conviction rate from 20% to over 80%, provision of counseling to over 220 assailants per year, and victim surveys that demonstrate 71% victim satisfaction with police attitudes and response); QMDAP SEMIFINAL APPLICATION, supra note 74, ¶ 14 (citing fewer homicides, increased number and effectiveness of protection orders, and increased completion of compulsory treatment of batterers).

 

[FN88] See DAIP APPLICATION, supra note 27, ¶ 2; FINN & COLSON, supra note 25, at 63; TASK FORCE, supra note 3, at 13.

 

[FN89] See Anthony Bouza, Responding to Domestic Violence, in WOMAN BATTERING, supra note 2, at 191 (stating that domestic violence "begins with angry words, then maybe a shove or a slap" and that, "[i]f [it] is not treated at this crucial juncture, it escalates, frequently culminating in murder").

 

[FN90] See DOMESTIC ABUSE INTERVENTION PROGRAM, CITY OF DULUTH, INNOVATIONS IN STATE AND LOCAL GOVERNMENT:  PRELIMINARY DATA SHEET 1 (Dec. 12, 1986) (application for award, on file at the Harvard Law School Library) [hereinafter DAIP PRELIMINARY DATA SHEET]; Cahn & Lerman, supra note 2, at 99 (describing the cooperative protocol in Denver, Orleans County, Vermont, and Bellevue, Washington).

 

[FN91] Advocates of increased government action have recently called for greater federal action and involvement, suggesting that "the full and uniform authority of, and funding by, the federal government" must replace "piecemeal attempts at solution."  Paul Langner, US Must Act on Domestic Violence, Sen. Kennedy is Told at Hearing, BOSTON GLOBE, Feb. 2, 1993, at 17.

 

[FN92] Cf. Ky Rev. Stat. Ann. § 403.755 (Baldwin Supp. 1992) (stating that protection orders are "enforceable in any county in the commonwealth").

 

[FN93] The Senate bill proposed by Senator Joseph R. Biden appears to reflect this notion in its provisions for grants and the establishment of model programs and in calling for the "encouragement" of arrest policies and the avoidance of any federally mandated solution.  See Violence Against Women Act, supra note 65, §§ 231, 241.

 

[FN94] See NATIONAL COUNCIL OF JUVENILE & FAMILY COURT JUDGES, FAMILY VIOLENCE:  STATE OF THE ART COURT PROGRAMS 8 26 (1992) (exploring the range of comprehensive local responses to domestic violence, including the ones of Minneapolis, Baltimore, Cleveland, Denver, and Maui).

 

[FN95] See TASK FORCE, supra note 3, at 46 (recommending federal "financial incentives and encouragement" to states).

 

[FN96] Cf. Bruce K. MacMurray, Legal Responses of Prosecutors to Child Sexual Abuse:  A Case Comparison of Two Counties, in ABUSED AND BATTERED, supra note 4, at 129, 163 64 (discussing the different, though generally vigorous, approaches taken by two different county prosecutors in applying state enactments to local conditions in the context of criminalizing child sexual abuse).  See the discussion of the drunk driving campaign, below at p. 1520, in which the federal government set a national agenda and provided incentives and funding to respond to the problem.  State and local governments assumed the specifics of local adaptation within certain uniform constraints (such as the required increased drinking age).

 

[FN97] See Lyon & Mace, supra note 53, at 178 79.

 

[FN98] See Cahn & Lerman, supra note 2, at 107.

 

[FN99] See QMDAP PRELIMINARY APPLICATION, supra note 71, ¶ 8.

 

[FN100] See DAIP APPLICATION, supra note 27, ¶ 7.

 

[FN101] See AN ASSESSMENT OF DRUNK DRIVING POLICIES IN TEXAS AND OTHER STATES 3, 7 (The Univ. of Texas at Austin Highway Safety Policy Research Project ed., 1985) (describing federal activities in the 1970s as providing funding for "countermeasure techniques," including driver identification and law enforcement training) [hereinafter ASSESSMENT OF DRUNK DRIVING POLICIES]; PRESIDENTIAL COMM'N ON DRUNK DRIVING, FINAL REPORT 12 (1983) (recommending methods of encouraging state and local action and identifying the treatment of drunk driving as a high law enforcement priority) [hereinafter PRESIDENTIAL COMM'N].  In the early 1980s, federal efforts included forming a task force to study drunk driving and make recommendations for attacking the problem, enacting financial incentives for states to treat driving under the influence more strictly, and utilizing highway construction funds to encourage a uniform minimum drinking age.  See ASSESSMENT OF DRUNK DRIVING POLICIES, supra, at 3, 7.

 

[FN102] See ASSESSMENT OF DRUNK DRIVING POLICIES, supra note 101, at 63 83  (describing state and county "DWI Information Collection Systems"); id. at 87  109 (describing local county responses in Texas).

 

[FN103] See Kay Salliant, Arrests for Drunk Driving Decline, L.A. TIMES, Dec. 29, 1992, at B2 (reporting that drunk driving arrests were at their lowest in Ventura County on Christmas weekend "in at least seven years"); All Things Considered (National Public Radio broadcast, Dec. 30, 1992) (attributing the lowest national road fatality total in 30 years to interest group activity, social pressure, and societal recognition of the drunk driving problem).

 

[FN104] See, e.g., A Cry for Help:  The Tracey Thurman Story (Dick Clark Prods. 1989) (television movie based on Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984)).  But see Martha R. Mahoney, Legal Images of Battered Women:  Redefining the Issue of Separation, 90 MICH. L. REV. 1, 2 3 (1991) (warning against sensational depictions of battered women's plights, which could make their situation appear rare or exceptional); Martha Minow, Words and the Door to the Land of Change:  Law, Language, and Family Violence, 43 VAND. L. REV. 1665, 1678 (1990) (noting the difficulty of using language and the information media to convey the simultaneously pervasive and "monstrous" nature of domestic violence).

 

[FN105] See PRESIDENTIAL COMM'N, supra note 101, at 7 8.

 

[FN106] See TASK FORCE, supra note 3, at 70 (recommending that abuse  prevention programs become a "part of every child's school experience").  For more recent efforts, see Violence Against Women Act, cited above in note 65, which funds programs for "educating youth about domestic violence," id. § 261. See generally Natalie L. Clark, Crime Begins at Home:  Let's Stop Punishing Victims and Perpetuating Violence, 28 WM. & MARY L. REV. 263, 267 (1987) (noting the generational, learned nature of domestic violence and of violent crime generally).

 

[FN107] See TASK FORCE, supra note 3, at 65 67 (advocating the development of a "national family violence prevention and awareness campaign" by the federal government and the private sector, targeting all age groups).

 

[FN108] See Cahn & Lerman, supra note 2, at 104 05; Lyon & Mace, supra note 53, at 167.

 

[FN109] See QMDAP PRELIMINARY APPLICATION, supra note 71, at 8 ("More than any other violent criminal, male abusers are the most dangerous and tenacious in their pursuit of their victims as well as the most resistant to court control.").  This tenacity is suggested both by anecdotal accounts and institutional responses. See Brown v. Grabowski, 922 F.2d 1097, 1101 03 (3d Cir. 1991) (describing a typical fact pattern of repeated abuse, attempted protection orders, and ultimately, the murder of the victim).

 

[FN110] See supra pp. 1501 02.  The concerns domestic violence generates include escalating violence in the individual case, intergenerational replication of domestic violence, and a "ripple effect" of violent crime generally.  See FINN & COLSON, supra note 25, at 4 (noting that 30% of all female murder victims in 1986 were killed by their husbands or boyfriends); Charles H. Whitebread & John Heilman, Increasing Our Effectiveness Against Crime:  Expanding the Limits of Law Enforcement, 93 YALE L.J. 1399, 1412 (1984) (noting that domestic violence perpetuates itself and fosters more crime).

 

[FN111] See WEEK IN THE LIFE, supra note 10, at iii ("Our snapshot of one week in the life of violence against women demonstrates not only the extent, but also the depth of the brutality experienced by individual women.").

 

[FN112] See Ann L. Ganley, Perpetrators of Domestic Violence: An Overview of Counseling the Court Mandated Client, in DOMESTIC VIOLENCE ON TRIAL, supra note 69, at 155, 156 58.

 

[FN113] See Schneider, supra note 1, at 647 n.270.

 

[FN114] See Sewell, supra note 64, at 984.

 

[FN115] See supra p. 1515.

 

[FN116] See David A. Ford, Preventing and Provoking Wife Battery Through Criminal Sanctions:  A Look at the Risks, in ABUSED AND BATTERED, supra note 4, at 191, 207 08.

 

[FN117] See infra pp. 1541 43.

 

[FN118] See TASK FORCE, supra note 3, at 4; Lyon & Mace, supra note 53, at 177; Soler, supra note 69, at 21.

 

[FN119] See DAIP APPLICATION, supra note 27, ¶ 5.

 

[FN120] See Kenneth L. Wainstein, Comment, Judicially Initiated Prosecution:  A Means of Preventing Continuing Victimization in the Event of Prosecutorial Inaction, 76 CAL. L. REV. 727, 728 29 (1988) (distinguishing between "general" deterrence, which discourages potential offenders from committing crimes, and "specific" deterrence, which "dissuad[es] the criminal from continuing to commit crimes").

 

[FN121] See Cahn & Lerman, supra note 2, at 96 97 ("Prosecution is the formal expression of social norms....  If we do not prosecute [abusers], we give them tacit permission to continue."); Clark, supra note 105, at 281 ("Only vigorous prosecution, brought and continued at the state's initiative, teaches the abuser that such behavior is unacceptable to society.").  Advocates of more vigorous prosecution often perceive historical and attitudinal inertia as a barrier to effectivestate response, and argue for treating domestic violence as a serious violent crime.  See Cahn & Lerman, supra note 2, at 96 97. Indeed, until the 1970s, nonintervention seems to have been the traditional, "preferred" policy among most prosecutors.  See id. at 96. See generally Kelly Rowe, Comment, The Limits of the Neighborhood Justice Center:  Why Domestic Violence Cases Should Not be Mediated, 34 EMORY L.J. 855, 874 78 (1985) (discussing historical attitudes and approaches toward domestic violence).

 

[FN122] See Giving Batterers Their Due:  Two Vital Bills Aimed at Curbing Domestic Violence Could Get Lost in the Shuffle, L.A. TIMES, Aug. 27, 1992, at B6 (arguing that "increased penalties" are "particularly effective" at decreasing the incidence of battering); see also Michael Steinman, Coordinated Criminal Justice Interventions and Recidivism Among Batterers, in WOMAN BATTERING, supra note 2, at 221, 235 36 (citing a Lincoln, Nebraska study that found that "coordinated criminal justice interventions" consisting of arrest and prosecution led to "significantly less re offending").

 

[FN123] Indeed, the rationale behind widespread enactment of protection order statutes in the early 1980s was to provide a civil remedy for "what is essentially criminal behavior" in response to a perceived laxity in enforcement of criminal laws.  See Cook, supra note 1, at 271 72.  The common wisdom a decade ago was that protection orders could provide "financial support and physical protection."  Id.  The problem is, however, that lax criminal enforcement is likely to exist in tandem with lax civil order enforcement, as the shortcomings of protection orders demonstrate.  Thus, both can and should be pursued vigorously.

 

[FN124] See FINN & COLSON, supra note 25, at 1.

 

[FN125] See Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives:  Understanding and Transcending the Criminal Civil Law Distinction, 42 HASTINGS L.J. 1325, 1413 (1991).

 

[FN126] See id. at 1328.  Professor Cheh describes the formation of intraoffice divisions or task forces to bridge the criminal/civil "divide," actions contained in the Quincy plan described above at pp. 1516 17.  See id. at 1328 n.19.

 

[FN127] Civil contempt provides police with limited arrest powers because an offender must be given the opportunity to rectify his behavior; arrest powers under criminal contempt are coextensive with those for misdemeanors, unless otherwise provided by state law. See Finn, supra note 26, at 164.  One of the persistent weaknesses of the administration of protection orders is unclear guidelines regarding the punishment of violators.  See FINN & COLSON, supra note 25, at 1 2.

 

[FN128] See Cheh, supra note 125, at 1331, 1389 94.

 

[FN129] See Amy Eppler, Battered Women and the Equal Protection Clause:  Will the Constitution Help Them When the Police Won't?, 95 YALE L.J. 788, 800 02 (1986) (criticizing the "police justification of 'family privacy"' for not intervening in domestic violence cases).

 

[FN130] Clark, supra note 106, at 273 (arguing that victim initiated prosecution can give the assailant an incentive to escalate violence in an attempt to force the victim to drop charges); accord Finn, supra note 26, at 181.

 

[FN131] But see Ford, supra note 116, at 191, 207 08 (finding that  "seemingly harsher sanctions do not place victims at greater risk of new violence" beyond the threshold risk posed by initial police intervention).

 

[FN132] See, e.g., Gladys Kessler & Linda J. Finkelstein, Evolution of a Multi Door Courthouse, 37 CATH. U. L. REV. 577, 588 (1988) (acknowledging that mediation "can be inappropriate" for cases that involve domestic abuse).

 

[FN133] See Clark, supra note 106, at 268 74.

 

[FN134] See FINN & COLSON, supra note 25, at 1.

 

[FN135] See supra p. 1501.

 

[FN136] See generally Lyon & Mace, supra note 53, at 171 73, 178 (discussing the problems of increasing case volumes and limited resources experienced by administrators after Connecticut adopted "one of the most comprehensive domestic violence laws in the country").

 

[FN137] See supra p. 1501.

 

[FN138] Indeed, the deterrent effect is likely to be greater in the case of non stranger violence than otherwise because the assailant's known identity virtually eliminates any chance that the victim will be unable to identify her attacker.  See TASK FORCE, supra note 3, at 4 5.  The likely deterrent effect of "swift and certain" punishment is high.  Id.

 

[FN139] See Steinman, supra note 122, at 235 (discussing findings of lowered recidivism in Lincoln, Nebraska after government responses that included arrest, prosecution, and possibly sanctions).  In the drunk driving context, the effectiveness of deterrence has been tangible.  See supra p. 1520.

 

[FN140] See Franklin E. Zimring, Legal Perspectives on Family Violence, 75 CAL. L. REV. 521, 531 (1987).  Within the "compulsory intervention" rubric of state response, Zimring describes the possibility of a "separate and specific sub jurisprudence" of doctrinal modifications and adjustments of sanctions.   Id. at 531 32.  But see Waits, supra note 1, at 306 07 (urging the development of "special strategies to overcome [the victim's] reluctance to become involved in the batterer's prosecution").

 

[FN141] See Carolyne R. Hathaway, Case Comment, Gender Based Discrimination in Police Reluctance to Respond to Domestic Assault Complaints, 75 GEO. L.J. 667, 675 (1986) (arguing that treating woman battering "differently than traditional criminal behavior" reinforces negative societal attitudes and contributes to inadequate law enforcement responses); Kit Kinports, Evidence Engendered, 1991 U. ILL. L. REV. 413, 417 (1991) (discussing the possibility that a feminist focus on gender "differences" may "perpetuate stereotypes about women and therefore contribute to their continued subordination").

 

[FN142] See Sewell, supra note 64, at 1016 ("Providing domestic abuse victims with the same prosecutorial protection accorded other victims of violent crime, both prosecuting complaints and seeking commensurate penalties, guarantees fundamental equal justice for abuse victims.").  But see Kinports, supra note 141, at 416 (noting that formal equality based on traditional male norms may "bear little resemblance to actual equality").

 

[FN143] See FINN & COLSON, supra note 25, at 4; Cahn & Lerman, supra note 2, at 97.