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.