Linda G. Mills*, "Commentary: Killing Her Softly: Intimate Abuse and the Violence of State Intervention," 113 Harv. L. Rev. 550 (1999).



* Associate Professor, New York University, Shirley M. Ehrenkranz School of Social Work and Affiliated Professor, New York University School of Law. B.A. 1979, University of California at Irvine; J.D. 1983, University of California, Hastings College of Law; M.S.W. 1986, San Francisco State University; Ph.D. 1993, Brandeis University. Intellectual work is an outgrowth of community. Tamara Nestle, a University of California, Los Angeles (UCLA) law student, served not only as a sounding board and research assistant, but also as a colleague. Kimberly Yang and Phuong Hoang, also UCLA law students, merit my deepest appreciation. Special thanks to Jeff Risher and Amy Levin, UCLA Law Review students, for their invaluable editorial and citation advice. Carrie Petrucci, a UCLA Ph.D. student, offered search and rescue skills well beyond the call of duty. Emily Abel, Rick Abel, Alison Anderson, Brenda Aris, Antonia Bernath, Gary Blasi, Kristin Bumiller, Kelly Dunn, Lisa Frohmann, Laura G<um o>mez, Audrey Goodrich, Ronnie Goodrich, Sue Greenwald, Joel Handler, Joyce James, Duncan Lindsey, Christine Littleton, Peter Margulies, Dana McPhall, Adele Mills, Martha Minow, Joe Nunn, Gail Pincus, Paul Reinstein, Al Roberts, James Rubin, Mary Rubin, Marjorie Silver, David Wexler, Bruce Winick, and Donna Wills have all been key to this important journey. Scott Gordon has offered insights and been a catalyst for refining my analysis. Tatiana Flessas helped clarify my work in innumerable ways. Ed Cohen allowed me to imagine this commentary as art. Colleen Friend, Zeke Hasenfeld, and Mark Kleiman provided invaluable comments on earlier drafts. Linda Durston's magic can be found throughout the essay. Both the U.S. Department of Health and Human Services, Administration for Children and Families, and the U.S. Department of Justice helped fund this research. A presentation to the Cardozo law faculty helped me develop my legal argument and inspired many of the critical reflections contained in the footnotes. The community of women faculty and students at Georgetown University Law Center played a central role in the evolution of my thesis. The faculty at the NYU School of Social Work provided important feedback on the clinical dimensions of this work. The Harvard Law School community provided intellectual and technical support and encouragement. Peter Goodrich, my beloved, has always been central to the journey and, in this case, was at the heart of the semiotics I use to expose state violence. I dedicate this commentary to my loving parents, Anne and Harold Mills, who first taught me to question authority.

[Numbers in brackets refer to the original page numbers.]


[*551]

In this commentary, Professor Mills argues that we need to reconsider the feminist position that mandatory interventions in domestic violence cases, including mandatory arrest, prosecution, and reporting, serve the best interests of all battered women. Reviewing the findings from relevant empirical studies, Professor Mills concludes that battered women are safest - and feel most respected - when they willingly partner with state actors to investigate and prosecute domestic violence crimes. Clinically speaking, a battered woman needs a healing response to the intimate abuse, one that nurtures her strengths and empowers her to act. Mandatory state interventions, even when sponsored by feminists, not only disregard these clinical concerns, but also are in danger of replicating the rejection, degradation, terrorization, social isolation, missocialization, exploitation, emotional unresponsiveness, and close confinement that are endemic to the abusive relationship. In an effort to alter these abusive dynamics and promote a more respectful relationship between state actors and battered women, Professor Mills proposes a Survivor-Centered Model that relies on clinical methods that engage the battered woman, foster her healing, and promote her safety.



[*552] Laura entered the emergency room with some trepidation. Her eye was bruised and her head was pounding. When she was finally seen, she told the doctor that Thomas, her husband, had pushed her. They had fought and she had accidentally fallen into a lamp. It had bruised her eye and she had a migraine. Thomas and Laura had been married for four years and he had never been violent before. Within moments, the doctor told Laura that under California's mandatory reporting law, he would have to call the police. n1

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n1. For a more thorough description of the effect of mandatory reporting, see infra pp. 562-63.

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Laura was horrified. "What about what I want to do?" she asked. "What about my rights?" Laura explained that she did not want Thomas arrested; he was a good man and a fine provider, and she was not worried that his behavior was or would become dangerous. The doctor had no choice - he would be held personally liable if he failed to report the abuse.

The doctor called the police. Laura warned Thomas by phone that the police were coming. Laura arrived home just as the police showed up. She tried to convince the officers not to arrest him - to no avail. The officers informed her that the Los Angeles Police Department has a mandatory arrest policy. n2 If the officers have "probable cause" n3 to suspect that domestic violence has occurred, they must arrest the suspect regardless of the woman's objections or protestations.

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n2. For a more thorough description of the effect of mandatory arrest policies, see infra pp. 558-60.

n3. In this case, the doctor's report at the emergency room establishes probable cause. See, e.g., Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1850, 1903-04 (1996).

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Thomas spent three days in jail. Having been arrested on Friday night, he missed work on Monday and worries that he may be fired if he is convicted of a crime. He also awaits prosecution on a domestic violence charge.

Laura has spoken with the prosecutor and has begged her not to prosecute. She has explained that Thomas may lose his job and that their daughter, who suffers from multiple disabilities, relies on both parents for her care. n4 Thomas's employer-provided health insurance covers their daughter's health care.

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n4. The violence the system inflicts on battered women when it takes away their children is beyond the scope of this essay. For a review of these child welfare issues, see Jill A. Phillips, Comment, Re-Victimized Battered Women: Termination of Parental Rights For Failure to Protect Children From Child Abuse, 38 Wayne L. Rev. 1549, 1549-78 (1992).

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The prosecutor does not listen. She informs Laura that the Los Angeles City Attorney's office adheres to a no-drop prosecution policy. n5 The prosecutor assigned to the case will proceed against Thomas regardless of Laura's objections or her reluctance to testify. If she refuses [*553] to testify, the City Attorney's office will subpoena her. And, to prove the case against Thomas, the prosecutor will use the statements Laura made to the emergency room doctor. n6

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n5. For a more thorough description of mandatory prosecution, see infra p. 561.

n6. Laura's story is drawn from the experience of a battered woman living in California. I have altered her name and some facts to protect her identity. For a similar case, see Scott Winokur, DA: Were You Hit? Wife: No! DA: You Lie!, San Francisco Examiner, Feb. 16, 1999, at A15.

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Emotional abuse has a way of creeping into every intimate relationship. Technically speaking, emotional abuse is "the nonphysical degradation of the self which lowers worth and interferes with human development and productivity." n7 It can be experienced in a wide variety of ways by the recipient or victim. Emotional abuse of children often interferes with their development. n8 Emotional abuse can prevent adults from performing such daily functions as going to work or caring for children. n9 Emotional abuse is not limited in origin to batterers. It is evident in intimate relationships and families, in the workplace, and even in public settings. n10

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n7. Robert Geffner & B.B. Robbie Rossman, Emotional Abuse: An Emerging Field of Research and Intervention, 1 J. Emotional Abuse 1, 2 (1998). Emotional trauma is often the glue that holds a physically violent relationship together. Emotional abuse is the most prevalent form of domestic violence, even more prevalent than physical abuse. Often the victim tolerates, overlooks, or excuses it, or the abuser denies it. Some people can see emotional abuse coming; others cannot. Because abuse is personal, what may be emotionally devastating to one person can go unnoticed by another. Emotional wounds, like physical ones, heal, but not without leaving scars. Battered women often describe emotional abuse as the most devastating of the traumas they have experienced. See, e.g., Evelyn C. White, Chain, Chain, Change: For Black Women in Abusive Relationships 5-6 (2d ed. 1994).

n8. Cf. Stuart N. Hart, Nelson J. Binggeli & Marla R. Brassard, Evidence for the Effects of Psychological Maltreatment, 1 J. Emotional Abuse 27, 29-30 (1998) (describing how psychological maltreatment is in "direct opposition to basic human need fulfillment"). One form of emotional abuse experienced by children is witnessing incidents of violence inflicted by one parent or caretaker on another. See, e.g., Carole Echlin & Larry Marshall, Child Protection Services for Children of Battered Women: Practice and Controversy, in Ending the Cycle of Violence: Community Responses to Children of Battered Women 170, 172-73 (Einat Peled, Peter G. Jaffe & Jeffrey L. Edleson eds., 1995).

n9. Cf. Judith Lewis Herman, Trauma and Recovery 33-95 (1997) (discussing the disabling effects of terror, disconnection, and captivity); John P. Wilson, Trauma, Transformation, and Healing: An Integrative Approach to Theory, Research, and Post-Traumatic Therapy 11-20 (1989) (detailing individual responses to trauma); Geffner & Rossman, supra note 7, at 2-3 (examining the consequences of the psychological mistreatment of children and adults).

n10. See Geffner & Rossman, supra note 7, at 2.

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The argument that the state, or more specifically its representatives or policies, can be emotionally abusive n11 has been a recurring theme in [*554] the jurisprudential literature. Punishment, n12 third-world development, n13 and welfare reform n14 have all been analyzed from the perspective of state violence. Indeed, Robert Cover, in his famous essay Violence and the Word, n15 recognized that "legal interpretation takes place in a field of pain and death." n16 This reality remains apparent, if often unacknowledged, in contemporary legal discourse and action. Cover's insight that "the relationship between legal interpretation and the infliction of pain remains operative even in the most routine of legal acts" n17 suggests that the dynamic that underpins the law's relation to its subjects can itself be abusive and that the state can inadvertently replicate the very violence it aims to eradicate. n18

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n11. In this essay, I do not address the physical violence that the law is capable of inflicting. Police brutality, prison practices, and the death penalty are all forms of physical violence or potential abuse sanctioned by the state. In this essay I am concerned with a more subtle form of abuse, namely the emotional abuse caused by state intervention in domestic violence.

n12. See, e.g., Michel Foucault, Discipline and Punish 15-16 (Alan Sheridan trans., Vintage Books 1979) (1977).

n13. See, e.g., Joke Schrijvers, The Violence of 'Development' 24-27 (Niala Maharaj ed. & Lin Pugh trans., 1993).

n14. Cf. Joel F. Handler & Yeheskel Hasenfeld, We the Poor People: Work, Poverty, and Welfare 21-26 (1997).

n15. Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986), reprinted in Narrative, Violence, and the Law: The Essays of Robert Cover 203 (Martha Minow, Michael Ryan & Austin Sarat eds., 1992) [hereinafter Essays of Robert Cover].

n16. Id. at 203; see also Peter Margulies, The Violence of Law and Violence Against Women, 8 Cardozo Stud. L. & Literature 179, 184-88 (1996) (examining Robert Cover's perspective in the context of civil and criminal remedies for woman abuse and the ambiguous relations among courts, violence, and lawmaking).

n17. Cover, supra note 15, at 1607.

n18. See generally Law's Violence (Austin Sarat & Thomas R. Kearns eds., 1992) (examining the jurisprudence of violence).

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Drawing on this observation and the extensive literature that accompanies it, this commentary exposes the myriad ways in which the state's regulation of domestic violence in the United States has become tinged with emotional violence. n19 I argue more specifically that such policies as mandatory arrest, prosecution, and reporting, which have become standard legal fare in the fight against domestic violence and which categorically ignore the battered woman's perspective, n20 can themselves be forms of abuse. n21 Indeed, I argue that, ironically, the very state interventions designed to eradicate the intimate abuse in battered women's lives all too often reproduce the emotional abuse of [*555] the battering relationship. n22 In these instances, state policies have the inadvertent effect of rendering battered women less, rather than more, safe from violence. Proceeding on the assumption that battered women are as often survivors as they are victims, n23 I argue that mandatory state interventions rob the battered woman of an important opportunity to acknowledge and reject patterns of abuse and to partner with state actors (law enforcement officers, prosecutors, and medical professionals) in imagining the possibility of a life without violence. Therefore, I propose an empowerment n24 model that reverses the violent dynamic imposed on the battered woman by the batterer, a method that nurtures the survivor's need for emotional support and helps heal the wounds inflicted by the abuser. n25

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n19. I am concerned in this commentary with the experience of the battered woman in the criminal justice system. By design, I place the victim - not the batterer - front and center in my analysis. I believe that she should, in most cases, direct how the criminal justice system responds to the batterer.

n20. Throughout this commentary, I refer to victims as women and batterers as men. While these gender designations are the most likely in domestic violence cases, they are certainly not exclusively one or the other.

n21. Martin Symonds refers to this additional trauma as "the second injury" to victims. Martin Symonds, The "Second Injury" to Victims, Evaluation & Change 36, 36 (1980). While my essay peripherally addresses mandatory reporting by health care professionals, I primarily focus on mandatory arrest and prosecution, as they have been implemented far longer than other forms of state intervention in cases of domestic violence.

n22. One obvious explanation for this response by the state, which this essay does not develop, is the state's propensity to ignore or dismiss emotional violence while placing special emphasis on physical abuse. The prioritizing of physical over emotional abuse blinds the state to its own emotionally violent response to battered women.

n23. For a discussion of battered women's strengths, see Edward W. Gondolf, Assessing Woman Battering in Mental Health Services 95-109 (1998).

n24. The term "empowerment," as it has been used and abused in the literature, is riddled with confusion. See, e.g., Leslie Margolin, Under the Cover of Kindness: The Invention of Social Work 117-19 (1997) (exposing how the rhetoric of empowerment in social work discourse masks the disempowerment of social work practice). On the one hand, under the guise of empowerment, feminists argue that police and prosecutors should arrest and prosecute batterers, in the "interests" of survivors. For a discussion of this position, see Carolyn Hoyle, Negotiating Domestic Violence: Police, Criminal Justice and Victims 209-11 (1998). On the other hand, empowerment is a term used by advocates who support policies that respect, or "follow," a battered woman's wishes, regardless of the professional's judgment of those desires and irrespective of the battered woman's "interests." See Linda G. Mills, The Heart of Intimate Abuse: New Interventions in Child Welfare, Criminal Justice, and Health Settings 4 (1998) [hereinafter Mills, Heart of Intimate Abuse]. Empowerment, for the purposes of this essay, refers to a clinical policy and programmatic posture that assumes that battered women are in the best position to decide how to respond to the violence in their lives, unless they are otherwise found incompetent. Related articles on domestic violence and empowerment include Linda G. Mills, Mandatory Arrest and Prosecution Policies for Domestic Violence: A Critical Literature Review and the Case for More Research to Test Victim Empowerment Approaches, 25 Crim. Just. & Behav. 306 (1998) [hereinafter Mills, Mandatory Arrest and Prosecution Policies] and Lisa Newmark, Adele Harrell & Peter Salem, Domestic Violence and Empowerment in Custody and Visitation Cases, 33 Fam. & Conciliation Cts. Rev. 30 (1995).

n25. I draw on Judith Herman's work with survivors of trauma for my definition of empowerment and for a clinical method of intervention. In her book, Trauma and Recovery, supra note 9, Dr. Herman describes how professionals should encourage trauma victims to be the architects of their own recovery by offering them support, advice, and the tools to prompt change - but no more. "No intervention that takes power away from the survivor can possibly foster her recovery, no matter how much it appears to be in her immediate best interest." Id. at 133; see also Linda G. Mills, On the Other Side of Silence: Affective Lawyering for Intimate Abuse, 81 Cornell L. Rev. 1225, 1228 (1996) (proposing that lawyers meet their clients on an "interpersonal" level and accept battered women as they are).

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I begin, in Part I, with a description of the mandatory interventions that I believe do violence to battered women. In this section, I also [*556] present the advantages and disadvantages of mandatory interventions, relying in part on empirical support for my contention that state-imposed interventions may actually increase violence in the lives of some battered women. Similarly, I argue that mandatory interventions, as they are designed, discourage many survivors from forming partnerships with state officials to help control the violence they endure.

In Part II, I explore the strategies used by clinicians (social workers, therapists, psychologists, and psychiatrists) when working with trauma victims and with survivors of domestic violence - strategies designed to empower and heal. I then contrast these healing-oriented approaches with the efforts of state actors who have contact with battered women in the criminal context. This comparison exposes the contagion of violence and reveals the ways in which helping professionals, if unreflective, can become submerged in a reactive dynamic with the battered woman that is counterproductive to her recovery and safety. This evidence supports my thesis that state actors' abusive posture toward survivors comes dangerously close to mirroring the violence in the battering relationship. This dynamic is psychologically predictable when the unspoken or repressed feelings of public officials are exposed and explored in the context of the trauma literature. Close examination reveals a connection between the unexpressed rage, shame, and guilt of the professionals who work with victims of intimate abuse and their unwavering support for mandatory interventions that render victims helpless.

In Part III, I build on this clinical analysis and on my critique of mandatory interventions and present a framework that includes eight subtypes of emotional abuse that are common to the battering relationship and to the dynamic between state actors and victims in domestic violence cases. The table and the accompanying text present in stark terms the parallels between the batterer's and the state's abuses and the specific ways in which state actors who carry out these policies promote an emotionally abusive dynamic with the battered woman. In this section, I reveal how state approaches that involve coercive and dismissive tactics may effectively revictimize the battered woman, first by reinforcing the batterer's judgments of her, and then by silencing her still further by limiting how she can proceed.

In Part IV, I present an alternative method of state action called a Survivor-Centered Model of intervention in domestic violence cases that helps connect the battered woman to her resistance and fear through deliberate emotional and strategic programmatic support. This model rejects violent patterns of state intervention that reinforce destructive dynamics and help prevent the battered woman's recovery.

In Part V, I conclude with a call for policies that would create a healthy dynamic in the relationships between state agents and battered women. Policies that support and empower victims of battering must [*557] respect their emotional, cultural, and financial challenges and must not reinforce the emotional oppression, initiated by batterers, that the state currently perpetuates.

I. Mandatory Policies

For many battered women's advocates and state officials, mandatory arrest, mandatory prosecution, and mandatory reporting policies represent significant political progress in forcing the state to take domestic violence crimes seriously. After years of indifference to intimate abuse, many state actors now respond uniformly to crimes between domestic partners, an approach that eliminates both the state actor's discretion and the victim's desires from the state's decisionmaking equation.

The polemics generated by domestic violence are deeply entrenched in the conflicting discourses of psychology and law. In the early nineteenth century, several state courts adopted the English common law position that a man was permitted to beat his wife as long as he used a "rod not thicker than his thumb." n26 Several state courts condoned violence against women by their husbands or partners, and prevented the women from prosecuting their abusers. n27 By the end of the nineteenth century, spousal abuse was legally prohibited. n28 However, not until the 1960s, when feminists made domestic violence a "public" issue, did services develop to address the battered woman's plight. n29 Steps taken focused on the battered woman's safety and mental health. Shelters provided supportive living arrangements for women who sought refuge. As the focus shifted from addressing the battered woman's private concerns to highlighting the public's collusion with the violence through state inaction, feminists undertook the important project of reforming institutional responses to domestic violence. Educational campaigns designed to change attitudes became an important component of this effort. n30 However, education was not enough. The critical last step was to reform how the police officers, prosecutors, health workers, and judges who compose the front line of the criminal justice system respond to cases of intimate abuse.

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n26. Pat Campbell, Comment, Adult Abuse in Missouri: The Beating Continues, 58 UMKC L. Rev. 257, 258 (1990).

n27. See id. The Mississippi Supreme Court allowed a man to "chastise[]" his wife, see id., and the North Carolina courts permitted a man to inflict force as long as there was no permanent injury, see id. at 258-59.

n28. See id. at 259.

n29. Cf. Developments in the Law - Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1502 (1993).

n30. See Bernadette Dunn Sewell, Note, History of Abuse: Societal, Judicial, and Legislative Responses to the Problem of Wife Beating, 23 Suffolk U. L. Rev. 983, 997 (1989).

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[*558]

A. Mandatory Arrest

Mandatory or pro-arrest policies require an officer to arrest a suspect if there is probable cause to believe that an assault or battery has occurred, regardless of the victim's consent or objection. This policy, depending on how stringent it is, may eliminate police discretion in intimate abuse cases. n31 At least fifteen states and Washington, D.C., have adopted mandatory, or limited-discretion, arrest policies. n32 Although nearly every state in the United States permits police officers to make warrantless arrests in domestic violence cases when the officer has probable cause to believe a misdemeanor has occurred, n33 some observers question whether anything short of stripping the officer of his discretion is effective in increasing arrests of batterers. n34

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n31. Researchers Robert Davis and Barbara Smith pose the provocative question: "[Do] mandatory arrest statutes simply move discretion from the point of arrest to the point of prosecutional screening?" Robert C. Davis & Barbara Smith, Domestic Violence Reforms: Empty Promises or Fulfilled Expectations?, 41 Crime & Delinq. 541, 546 (1995).

n32. See Marion Wanless, Note, Mandatory Arrest: A Step Toward Eradicating Domestic Violence, But Is It Enough?, 1996 U. Ill. L. Rev. 533, 534 (1996). The states with mandatory or limited-discretion arrest policies include Arizona, Ariz. Rev. Stat. Ann. 13-3601 B (West 1989); Colorado, Colo. Rev. Stat. 18-6-803.6 (1998); Connecticut, Conn. Gen. Stat. Ann. 46b-38b (West 1997); Hawaii, Haw. Rev. Stat. Ann. 709-906(4) (Michie 1999); Iowa, Iowa Code Ann. 236.12 (West 1994); Maine, Me. Rev. Stat. Ann. tit. 19-A, 4012 (West 1998); Missouri, Mo. Ann. Stat. 455.085 (West 1997); Nevada, Nev. Rev. Stat. Ann. 171.137 (Michie 1997); New Jersey, N.J. Stat. Ann. 2C:25-21(a) (West 1995); Oregon, Or. Rev. Stat. 133.055(2) (1997); Rhode Island, R.I. Gen. Laws 12-29-3 (1994); South Dakota, S.D. Codified Laws 23A-3-21 (Michie 1998); Utah, Utah Code Ann. 30-6-8 (1998); Washington, Wash. Rev. Code Ann. 10.31.100(2) (West Supp. 1999); Wisconsin, Wis. Stat. Ann. 968.075(2) (West 1998). Washington, D.C., also has such arrest policies. D.C. Code Ann. 16-1031 (1997).

n33. West Virginia is the sole exception. See Joan Zorza & Laurie Woods, Mandatory Arrest: Problems and Possibilities 7 (1994).

n34. For a description of a program that has increased batterer arrests without making arrest mandatory, see Lynette Feder, Police Handling of Domestic and Nondomestic Assault Calls: Is There a Case for Discrimination?, 44 Crime & Delinq. 335, 339, 346-47 (1998), which found that in Florida, which has a nonmandatory arrest policy but has otherwise taken steps to combat officer resistance in domestic violence cases, law enforcement officers are more likely to arrest batterers when answering domestic as opposed to nondomestic calls.

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Mandatory arrest first became the preferred policy in 1984 when Lawrence Sherman and Richard Berk published their landmark study of the relationship between arrest and recidivism in domestic violence criminal cases. n35 This study, conducted in Minneapolis, was the first of six published, randomized field experiments that tested the relationship between police intervention and recidivism or future incidents of [*559] violence. n36 Using a sample size of 314 cases, Sherman and Berk concluded that arrest was the most effective means of reducing the likelihood of incidents of new violence. n37 On the heels of this study, the U.S. Attorney General recommended that arrest become the standard response to misdemeanor domestic violence cases. n38 In 1986, a survey of United States police departments revealed that one-third had changed their arrest policies in domestic violence cases because of the Minneapolis findings. n39

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n35. See Lawrence W. Sherman & Richard A. Berk, The Specific Deterrent Effects of Arrest for Domestic Assault, 49 Am. Soc. Rev. 261 (1984). For a fascinating account of the impact of this study, see Richard J. Gelles, Constraints Against Family Violence: How Well Do They Work?, in Do Arrests and Restraining Orders Work? 30, 30-32, 40-41 (Eve S. Buzawa & Carl G. Buzawa eds., 1996), which notes that the media ignored subsequent studies that questioned these results.

n36. The other five published studies are presented in: Richard A. Berk, Alec Campbell, Ruth Klap & Bruce Western, A Bayesian Analysis of the Colorado Springs Spouse Abuse Experiment, 83 J. Crim. L. & Criminology 170 (1992); Franklyn W. Dunford, David Huizinga & Delbert S. Elliott, The Role of Arrest in Domestic Assault: The Omaha Police Experiment, 28 Criminology 183 (1990); J. David Hirschel & Ira W. Hutchison, III, Female Spouse Abuse and the Police Response: The Charlotte, North Carolina Experiment, 83 J. Crim. L. & Criminology 73 (1992); Antony M. Pate & Edwin E. Hamilton, Formal and Informal Deterrents to Domestic Violence: The Dade County Spouse Assault Experiment, 57 Am. Soc. Rev. 691 (1992); Lawrence W. Sherman, Janell D. Schmidt, Dennis P. Rogan, Douglas A. Smith, Patrick R. Gartin, Ellen G. Cohn, Dean J. Collins & Anthony R. Bacich, The Variable Effects of Arrest on Criminal Careers: The Milwaukee Domestic Violence Experiment, 83 J. Crim. L. & Criminology 137 (1992). The National Institute of Justice funded a study in Atlanta, Georgia, but no results have been published to date.

n37. See Sherman & Berk, supra note 35, at 265, 268-70.

n38. See Dep't of Justice, Attorney General's Task Force on Family Violence: Final Report 22-25 (1984).

n39. See Arnold Binder & James W. Meeker, Experiments as Reforms, 18 J. Crim. Just. 347, 348 (1988). No subsequent randomized study of the effects of arrest on recidivism has revealed similar results. Overall, the arrest studies found that the positive deterrent effects of arrest diminished over time. See, e.g., Hirschel & Hutchison, supra note 36, at 117-18; see also Sherman et al., supra note 36, at 154-56 (concluding that there is some evidence of "long-term escalation" of violence after arrests). An investigation of combined data found that arrest deterred "good-risk" perpetrators who were more likely to suffer embarrassment and stigmatization from the arrest, but did not deter "bad-risk" offenders. See Berk et al., supra note 36, at 181-96 (qualifying the results for bad-risk suspects). For a general discussion of the deterrent effects of arrests, see Mills, Mandatory Arrest and Prosecution Policies, supra note 24, at 309-11, 313-14. For a study on the effectiveness of arrest and prosecution combined, see Richard M. Tolman & Arlene Weisz, Coordinated Community Intervention for Domestic Violence: The Effects of Arrest and Prosecution on Recidivism of Woman Abuse Perpetrators, 41 Crime & Delinq. 481, 488-94 (1995), which found that in DuPage County, Illinois, arrest and prosecution deterred batterers for the 18-month period studied.

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Other police departments changed their lax policies in intimate abuse cases when civil awards to victims began costing them precious resources. In 1979, the daughter of a batterer was awarded a $ 2 million judgment in Sorichetti v. City of New York n40 after her father attacked her during a visitation with a fork, a knife, and a screwdriver, and attempted to saw off her leg. n41 The New York Court of Appeals held that the court order of protection in this case created a special duty on the part of the authorities to protect the battered woman and [*560] her daughter. n42 Thus, the court found the New York City Police Department liable when officers failed to investigate reports that the daughter had not returned from the visit with her father. n43

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n40. 482 N.E.2d 70 (N.Y. 1985).

n41. See id. at 72-74.

n42. See id. at 75.

n43. See id. at 76-77.

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In 1984, Tracey Thurman was awarded $ 2.9 million after suing the Torrington, Connecticut, Police Department and twenty-four city police officers on the grounds that the city's policy and practice of nonintervention and nonarrest in domestic violence cases was unconstitutional. n44 Tracey Thurman's estranged husband was on probation for smashing the windshield of her car while she was in it. Police failed to arrest him on many occasions, even when he violated both the terms of his probation and a restraining order. n45 On June 10, 1983, after Tracey Thurman called the police, one officer showed up. He was too late - Tracey's batterer had already repeatedly stabbed her and she was severely injured. n46 The court found a violation of the Fourteenth Amendment's Equal Protection Clause because Thurman was able to prove that the police department treated violence by a male friend or relative differently from crimes committed by strangers. The court interpreted this deviation as sex discrimination. n47

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n44. See Thurman v. City of Torrington, 595 F. Supp. 1521, 1524 (D. Conn. 1984). For a detailed description of the case, see Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response 102-03 (2d ed. 1996).

n45. See Buzawa & Buzawa, supra note 44, at 102.

n46. See Thurman, 595 F. Supp. at 1525-26.

n47. See Buzawa & Buzawa, supra note 44, at 102-03.

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Finally, other police departments changed their policies in response to battered women's advocates who lobbied for mandatory interventions because they were frustrated with police officers who minimized and/or ignored domestic violence crimes. n48 Advocacy on behalf of battered women became an important part of the women's movement in the 1970s, and the National Coalition Against Domestic Violence was formed to lead this effort. n49 In addition, the movement was enhanced by women who entered the legal profession and who felt they could design legal strategies to counteract violence against women. n50 Mandatory arrest offered these advocates a policy that guaranteed aggressive police intervention in domestic violence cases.

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n48. See Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. Crim. L. & Criminology 46, 63-65 (1992); see also Richard L. Davis, Domestic Violence: Facts and Fallacies 23-24 (1998).

n49. See Sewell, supra note 30, at 994-96.

n50. See, e.g., Stephanie B. Goldberg, Nobody's Victim, A.B.A. J., July 1996, at 48, 48-53 (profiling Sarah Buel, a former battered woman who went to Harvard Law School and became a prosecutor).

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[*561]

B. Mandatory Prosecution

Following on the heels of mandatory arrest, and as a natural extension of it, prosecutors have begun to use a policy that has been referred to as mandatory or no-drop prosecution. This policy requires prosecutors to prosecute cases regardless of the victim's recantations or protestations. n51 Prosecutors have developed new ways of prosecuting domestic violence cases to implement a mandatory prosecution policy. n52 To address the problem of battered women's reluctance to testify against their batterers, some prosecutors have begun to treat these cases as though no victim were available to testify - prosecutors try these cases in the same manner in which they conduct murder trials. n53 Spontaneous statements made by the victim at the time of arrest, videos or photographs taken at the time of injury, and police officers' testimony form the case against the batterer. As early as 1995, nine jurisdictions, including Los Angeles and San Diego, had adopted mandatory prosecution policies. n54

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n51. There is, at best, mixed support for the proposition that mandatory prosecution is the most efficacious approach to domestic violence cases. Compare David A. Ford & Mary Jean Regoli, The Preventive Impacts of Policies for Prosecuting Wife Batterers, in Domestic Violence: The Changing Criminal Justice Response 181, 182-83 (Eve S. Buzawa & Carl G. Buzawa eds., 1992) (finding mixed results concerning recidivism in domestic violence cases pursued under mandatory prosecution policies and choice), and Robert C. Davis, Barbara E. Smith & Laura B. Nickles, The Deterrent Effect of Prosecuting Domestic Violence Misdemeanors, 44 Crime & Delinq. 434, 441 (1998) (finding no effect of mandatory prosecution on re-arrest), with Christopher M. Murphy, Peter H. Musser & Kenneth I. Maton, Coordinated Community Intervention for Domestic Abusers: Intervention System Involvement and Criminal Recidivism, 13 J. Fam. Violence 263, 278-79 (1998) (finding that a coordinated community intervention approach that included domestic violence counseling, successful prosecution, and probation monitoring contributed to lower criminal recidivism), and Amy Thistlethwaite, John Wooldredge & David Gibbs, Severity of Dispositions and Domestic Violence Recidivism, 44 Crime & Delinq. 388, 396 (1998) (finding that more severe sentences that included jail plus probation lowered recidivism, especially in cases involving perpetrators with a stake in conformity). See generally Mills, Mandatory Arrest and Prosecution Policies, supra note 24, at 311-16 (summarizing the research in this area and concluding that more research is needed to determine the relationships between mandatory prosecution and recidivism).

n52. See Candace J. Heisler, Evidence and Other Information Sources in Domestic Violence Cases, in Domestic Violence Law: A Comprehensive Overview of Cases and Sources 563, 563-65 (Nancy K.D. Lemon ed., 1996); Teri L. Jackson, Lessons Learned from a Domestic Violence Prosecutor, in Domestic Violence Law, supra, at 561, 561-62; see also Fredrica L. Lehrman, Strategies for Interviewing Domestic Violence Clients, 31 Victims & Violence 38, 38-43 (1995) (discussing the practical aspects of interacting with domestic violence clients); Jane Armstrong, Rita Daly & Caroline Mallan, Hitting Back in San Diego, The Toronto Star, Mar. 16, 1996, at C1 (discussing prosecutor strategies for handling domestic violence cases).

n53. For an explication of the effort by some prosecutors to treat these cases as murder trials and related strategies, see Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev. 297, 298-303 (1993).

n54. See Hanna, supra note 3, at 1862 n.47; Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 Wm. & Mary L. Rev. 1505, 1520 n.52 (1998). According to Cheryl Hanna, jurisdictions that have aggressive, vertical, or no-drop policies include Alexandria, Virginia; Baltimore, Maryland; Quincy, Massachusetts; Brooklyn, New York; Denver, Colorado; Duluth, Minnesota; King County, Washington; Los Angeles, California; and San Diego, California. See id. Four states have statutes encouraging but not mandating the use of no-drop prosecution policies: Florida, Fla. Stat. Ann. 741.2901(2) (West 1997); Minnesota, Minn. Stat. Ann. 611A.0311(2)(4) (West Supp. 1999); Utah, Utah Code Ann. 77-36-2.7(1)(e) (Supp. 1998); and Wisconsin, Wis. Stat. Ann. 968.075(7)(a)(2) (West Supp. 1997-98). Currently, the federal government encourages state interventions, including mandatory arrest and prosecution, by providing federal funds to jurisdictions that adopt stringent domestic violence policies. See 42 U.S.C. 3796hh (1994).

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[*562]

C. Mandatory Reporting by Medical Personnel

In the medical arena, mandatory policies require doctors to file a domestic violence report with the police when they suspect that the patient's injuries are related to intimate abuse. As of 1998, five states had adopted broad mandatory reporting laws, while most other states had some mandatory reporting laws that governed cases in which medical personnel suspected domestic violence. n55 Because mandatory reporting is the most recent addition to the arsenal of mandatory interventions, the verdict is still out on its effectiveness in preventing future incidents of violence. n56 Based on statistics that suggest that battered women are much more likely to visit a physician than to call the police following an incident of domestic violence, n57 supporters of mandatory reporting laws argue that this policy ensures state intervention in a violent relationship at the earliest possible point. n58

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n55. See Mills, Heart of Intimate Abuse, supra note 24, at 85-87. The five states are Arkansas, California, Colorado, Kentucky, and Rhode Island. See id. at 87. Most other states have statutes that mandate when health care professionals must file reports with the police. See id. at 85-87. Many states require physicians to report injuries that appear to be caused by a gun, knife, firearm, or other deadly weapon. See id. at 85-86. Other states require physicians to report injuries that are the result of an "act of violence." Id. at 87.

n56. One small study suggests that victims of domestic violence have mixed feelings toward mandatory reporting laws. On the one hand, this study of 45 women indicates that they overwhelmingly support mandatory reporting laws for other victims. As for themselves, they were uncertain whether reporting would have helped. See Martha L. Coulter & Ronald A. Chez, Domestic Violence Victims Support Mandatory Reporting: For Others, 12 J. Fam. Violence 349, 350-53 (1997). Physicians also have negative feelings toward reporting on the grounds that it violates patient confidentiality, creates potential barriers to care, may escalate violence of abuse, and violates autonomy. See Michael A. Rodriguez, Elizabeth McLoughlin, Heidi M. Bauer, Valentine Paredes & Kevin Grumbach, Mandatory Reporting of Intimate Partner Violence to Police: Views of Physicians in California, 89 Am. J. Pub. Health 575, 577 (1999).

n57. See, e.g., Evan Stark & Anne Flitcraft, Medical Therapy as Repression: The Case of the Battered Woman, 1 Health & Med. 29, 29-32 (1982); Winifred Yu, Doctors Urged to Be on Lookout for Victims of Domestic Violence, Times Union (Albany), Mar. 5, 1997, at B5.

n58. For an analysis of the pros and cons of mandatory reporting in domestic violence cases, see Ariella Hyman & Ronald A. Chez, Mandatory Reporting of Domestic Violence by Health Care Providers: A Misguided Approach, 5 Women's Health Issues 208, 209-11 (Winter 1995). Such factors as class and race influence whether a physician reports child abuse. Hospitals are far more likely to report African-American and Hispanic families than white families to child protection services. See Robert L. Hampton & Eli H. Newberger, Child Abuse Incidence and Reporting by Hospitals: Significance of Severity, Class, and Race, in Coping with Family Violence: Research and Policy Perspectives 212, 215 (Gerald T. Hotaling, David Finkelhor, John T. Kirkpatrick & Murray A. Straus eds., 1988); see also Mills, Heart of Intimate Abuse, supra note 24, at 89-96.

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[*563] Critics of mandatory reporting laws believe that these laws can deter battered women from seeking medical attention and can therefore have a negative impact on their health and safety. n59 Furthermore, fifty-nine percent of physicians surveyed in California said that if a patient objected, they might not report the incident. n60 The physicians also believed that reporting could make the violence worse. n61 Mandatory reporting laws are specifically designed to counteract physicians' indifference and fear. Once a report is triggered, an officer is contacted and an investigation is required. Assuming the jurisdiction also has mandatory arrest and prosecution policies, the batterer becomes the subject of a criminal investigation and subsequent prosecution.

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n59. See Hyman & Chez, supra note 58, at 209.

n60. See Rodriguez et al., supra note 56, at 577.

n61. See id.

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D. Mandatory Interventions

1. The Long Road Traveled. - Mandatory interventions have many advantages that merit discussion. n62 First, they force professionals to take domestic violence seriously. For several years, law enforcement personnel, prosecutors, and physicians failed to recognize or respond to the cries of battered women. n63 Indeed, at one level, the system clearly colluded with the batterer and replicated the violence endemic to patriarchy by failing to take the victim's complaints seriously. This outright hostility has often led intimate abuse survivors and other advocates of women's rights to become frustrated with the legal system and distrustful of its capacity to protect women from men's violence. The Sorichetti and Thurman cases exemplify battered women's challenges to law enforcement's indifference to gender violence.

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n62. For a fuller discussion of the advantages of mandatory interventions, see Forum: Mandatory Prosecution in Domestic Violence Cases, 7 UCLA Women's L.J. 169, 169-99 (1997); Jeffrey Fagan, National Institute of Justice Research Report, The Criminalization of Domestic Violence: Promises and Limits 1, 6-11 (1996); and Miriam H. Ruttenberg, A Feminist Critique of Mandatory Arrest: An Analysis of Race and Gender in Domestic Violence Policy, 2 Am. U. J. Gender & L. 171, 187-94 (1994).

n63. See Joan Zorza & Lauri Woods, Analysis and Policy Implications of the New Domestic Violence Police Studies 6-7 (1994); Hanna, supra note 3, at 1857; Wanless, supra note 32, at 535-36.

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Many advocates of mandatory arrest and prosecution have argued that mandatory policies force state actors to treat crimes against women in the same manner in which they treat other crimes. n64 These [*564] mandatory arrests and prosecutions, they argue, require professionals who are reluctant to respond to intimate abuse crimes to take the same steps they would take in cases in which the assailant is a stranger and the victim is male. n65 This response, proponents argue, has the additional benefit of eliminating racial discrimination from the criminal justice system, insofar as it ensures that all perpetrators, regardless of race, are treated similarly. n66

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n64. See, e.g., Davis, supra note 48, at 23, 86 (arguing that mandatory intervention policies are no more than lip service to women's rights advocates); Richard A. Berk, What the Scientific Evidence Shows: On the Average, We Can Do No Better Than Arrest, in Current Controversies on Family Violence 323 (Richard J. Gelles & Donileen R. Loseke eds., 1993); Gena L. Durham, The Domestic Violence Dilemma: How Our Ineffective and Varied Responses Reflect Our Conflicted Views of the Problem, 71 S. Cal. L. Rev. 641 (1998) (arguing that fewer reports of domestic violence and lower recidivism rates might indicate that victims are choosing not to involve the criminal justice system - at the batterers' behest - because when they do, they have no control over the process); Lisa A. Frisch, Research That Succeeds, Policies That Fail, 83 J. Crim. L. & Criminology 209 (1992); Evan Stark, Mandatory Arrest of Batterers: A Reply to Its Critics, in Do Arrests and Restraining Orders Work? 115 (Eve S. Buzawa & Carl G. Buzawa eds., 1996).

n65. See, e.g., Eve Buzawa, Thomas L. Austin, & Carl G. Buzawa, Responding to Crimes of Violence Against Women: Gender Differences Versus Organizational Imperatives, 41 Crime & Delinq. 443, 447-49 (1995) (finding that officers make fewer arrests for domestic violence than for stranger violence).

n66. See generally Hampton & Newberger, supra note 58, at 215 (arguing that in the absence of mandatory reporting, medical personnel are more likely to report African-American and Hispanic families for child abuse); Machaela M. Hoctor, Domestic Violence as a Crime Against the State: The Need For Mandatory Arrest in California, 85 Cal. L. Rev. 643, 688-90 (1997); Jenny Rivera, Intimate Partner Violence Strategies: Models for Community Participation, 50 Me. L. Rev. 283, 286 (1998) (arguing that domestic violence legislation has failed to reflect the interests of communities of color).

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In addition, supporters of mandatory interventions believe that these approaches keep battered women safe. They rely on the results of the Minneapolis arrest study to claim that when the police intervene regardless of the battered woman's wishes, the impact is positive. n67 They argue that arrest, on balance, deters future incidents of violence. n68

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n67. See Zorza & Woods, supra note 33, at 9.

n68. See id.; see also Sherman & Berk, supra note 35, at 196. City Attorney Casey Gwinn has argued that an aggressive arrest and prosecution policy has reduced intimate homicides in San Diego. Gwinn & O'Dell, supra note 53, at 1508; see also Hoctor, supra note 66, at 697. For an explicit critique of this central premise, that is, that arrest in domestic assault cases deters future incidents of violence, see Peter K. Manning, The Preventive Conceit: The Black Box in Market Context, in Do Arrests and Restraining Orders Work?, supra note 64, at 83, 84 (arguing that the assumption that arrest has a deterrent effect in domestic assault cases has no theoretical basis). Manning also points out that current police practices disproportionately affect "lower class, minority residents of large cities," because "not all families are being policed for violence." Id. at 92.

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Finally, and in some respects most significantly, advocates believe that these proactive policies structurally alter the politics of gender violence. A strong stand against intimate abuse, with legal sanctions accompanying it, is evidence of the state's feminist consciousness. n69 In policy and practice, police officers, prosecutors, and medical personnel [*565] no longer collude with batterers by ignoring violence inflicted on women. n70 This approach or attitude, proponents argue, dismantles sexism at the level of institutions and achieves the overarching goal of altering discrimination against women. n71 The significance of reforming criminal justice practice at the systemic level must be underscored. As feminists embraced the challenge of reforming state actors' responses, they were confronted with the enormity of their task. They aimed to advocate reform more generally and to address the attitudes of state actors that prevented them from considering the needs of battered women as a whole. Not until recently have we become aware of the ways these policies fail the particular interests of women and hence, have raised questions about their ongoing effectiveness as feminist strategies. n72

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n69. For a discussion of these issues, see Hanna, supra note 3, at 1877-78.

n70. See Hoctor, supra note 66, at 653-55.

n71. See Hanna, supra note 3, at 1886 (claiming that mandatory intervention is "the solution that best promotes long-term equality for women given the current stage of women's progress and our ideal concept of gender").

n72. Ironically, it is the tension between particularity and generality that generates the conflict between gender politics and the interests of individual battered women. Some advocates are willing to sacrifice individual women for the political interest of the gender as a whole. Others, myself included, are unwilling to sacrifice any woman for the larger goals of altering institutional dynamics. This position grows out of our commitment to radical change and our belief that we as feminists have a duty to practice non-violence toward other women so as not to replicate the dynamics of battering relationships. I believe that feminist political practice should rest on techniques of persuasion and supportive intervention - not on threats of legal coercion. See generally Mills, The Heart of Intimate Abuse, supra note 24, at 3-8. For further discussion of the particularity/generality point, see Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse, 67 N.Y.U. L. Rev. 520 (1992), and Hanna, supra note 3, at 1868.

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2. The Price We Pay. - There are, however, significant costs associated with mandatory interventions. For example, the empirical evidence suggests that individual battered women suffer when mandatory intervention policies go awry. n73 Indeed, mandatory arrest may actually increase the incidence of violence in some battered women's lives. n74 In 1992, Lawrence Sherman conducted a study in Milwaukee on the effects of arrest on batterers in that city. n75 The study design recognized three possible interventions: full arrest, short arrest, and no arrest [*566] (with a warning if police were called back). n76 Sherman found that full or short arrest had a short-term deterrent effect. n77 However, over the long term there was a trend that violence increased in cases in which the perpetrator had been arrested. The frequency of repeat violence increased when the persons arrested were unemployed, unmarried, high school dropouts or African-American. n78 Violence decreased when the persons arrested were employed, married, and white. Sherman concluded that when Milwaukee police arrest 10,000 African-American men, they produce 1803 more acts of domestic violence - primarily against African-American women - in any given year than in cases in which the African-American men are warned and not arrested. When, on the other hand, Milwaukee police arrest 10,000 white men, they produce 2504 fewer acts of domestic violence against white women when compared to cases in which the white men are warned. Sherman surmised that if three times as many African-Americans as whites are arrested in Milwaukee (which would be typical given police practices in that city), a mandatory arrest policy would prevent 2504 acts of violence primarily against white women, at the price of 5409 acts of violence primarily against African-American women. n79 Sherman concluded, based on this study, that mandatory [*567] arrest policies are highly problematic. n80

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n73. See, e.g., Martin D. Schwartz, Ain't Got No Class: Universal Risk Theories of Battering, 12 Contemp. Crises 373 (1988) (exposing the myth that all women are equally victimized by intimate violence); see also James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses 16-46 (1999) (highlighting domestic violence researchers' tendency to ignore race and class and calling for research on battering that focuses on the most marginalized women); Angela Moore, Intimate Violence: Does Socioeconomic Status Matter?, in Violence Between Intimate Partners: Patterns, Causes, and Effects 90, 99 (Albert P. Cardarelli ed., 1997).

n74. See Lawrence W. Sherman, Policing Domestic Violence: Experiments and Dilemmas 3 (1992); Barbara Hart, Battered Women and the Criminal Justice System, 36 Am. Behav. Scientist 624, 626 (1993); see also Ruttenberg, supra note 62, at 172.

n75. See Sherman et al., supra note 36.

n76. See id. at 147.

n77. See id. at 152-53.

n78. See id. at 158-63; see also Donna Welch, Comment, Mandatory Arrest of Domestic Violence Abusers: Panacea or Perpetuation of the Problem of Abuse?, 43 DePaul L. Rev. 1133, 1136 (1994).

n79. I have pondered how to address the differential effect of mandatory policies on racial groups for many years. In this instance, the Fourteenth Amendment prevents what may be the most obvious policy, that is, a mandate that considers the educational background and socioeconomic status, as well as the race of the batterer. See U.S. Const. amend. XIV. This reflection has led me to prefer a victim-driven policy as the one most likely both to provide opportunities to heal and to address the particular violence the victim experiences.

Some might conclude from Sherman's findings that African-American men are more violent than other racial groups. This conclusion is not necessarily an appropriate one. Joann Miller and Amy Krull reanalyzed the data from the arrest studies and found that in one city, Colorado Springs, race and repeat incidents of violence were associated. White victims in Colorado Springs were more likely to experience recidivism than African-American, Asian, or Latino victims. See JoAnn L. Miller & Amy C. Krull, Controlling Domestic Violence: Victim Resources and Police Intervention, in Out of the Darkness: Contemporary Perspectives on Family Violence 235, 246 (Glenda Kaufman Kantor & Jana L. Jasinski eds., 1997). One commentator has reviewed studies that compared violence in racial groups. See Donald G. Dutton, The Domestic Assault of Women: Psychological and Criminal Justice Perspectives 220-22 (1995). Dutton found that "family disputes in Norwalk [a white middle-class community] were more likely to be assaultive than were family disputes in Harlem (44% vs. 30%)." Id. at 222. These findings cast doubt on previous studies that found a higher level of minority recidivism. See Murray A. Straus, Richard J. Gelles & Suzanne K. Steinmetz, Behind Closed Doors: Violence in the American Family 134-35 (1980) ("Wife Abuse: Highest among blacks - nearly 400 per cent more common than in white families."); Michael Steinman, Evaluating a System-Wide Response to Domestic Abuse: Some Initial Findings, 4 J. Contemp. Crim. Just. 172, 181 (1988) ("This agrees with studies finding higher abuse rates among minorities but does not necessarily mean that the abuser's race per se is the explanation."); cf. Richard A. Berk, Sarah Fenstermaker & Phyllis J. Newton, An Empirical Analysis of Police Responses to Incidents of Wife Battering, in Coping with Family Violence: Research and Policy Perspectives 158, 164 (Gerald T. Hotaling, David Finkelhor, John T. Kirkpatrick & Murray A. Straus eds., 1988) (finding that when the victim and offender are of different racial backgrounds, for example, white and Hispanic, the police are less likely to take a "punitive stance"); Andrea D. Lyon, Be Careful What You Wish For: An Examination of Arrest and Prosecution Patterns of Domestic Violence Cases in Two Cities in Michigan, 5 Mich. J. Gender & L. 253, 287 (1999) (finding that men are less likely to be arrested if they are in a mixed-race relationship). See generally Buzawa & Buzawa, supra note 44, at 163 (expressing concerns about mandatory arrest policies); Zorza & Woods, supra note 33, at 41 (listing the costs and benefits of mandatory arrest policies).

It is important to note that one study showed that most reports of domestic violence crimes to the police were from African-American women. Similarly, the police were most likely to arrest African-American offenders. These findings may suggest that African-American women are more likely to rely on the police for some form of intervention, but this finding does not necessarily suggest that African-American women want their abusers arrested. See Ronet Bachman & Ann L. Coker, Police Involvement in Domestic Violence: The Interactive Effects of Victim Injury, Offender's History of Violence, and Race, 10 Violence & Victims 91, 100-02 (1995); see also Daniel G. Saunders & Patricia B. Size, Attitudes About Woman Abuse Among Police Officers, Victims, and Victim Advocates, 1 J. Of Interpersonal Violence 25, 37 (finding that battered women believe that arrest is the best way to deal with domestic violence "for immediate protection" but do not necessarily want police to jail the abuser).

n80. See Sherman et al., supra note 36, at 139.

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Mandatory prosecution may pose similar problems. Very few studies have tested the effectiveness of mandatory prosecution policies in eliminating violence in battered women's lives. Indeed, the one randomized study specific to the topic, conducted by David Ford and Jean Regoli in 1986, suggested mixed results at best. n81 Ford and Regoli assigned batterers to one of three tracks: pre-trial diversion, prosecution and rehabilitation, or prosecution and other sanctions (such as jail time). n82 The study found that if a battered woman files charges in a jurisdiction that permits her to drop the case and she refuses to drop it, she is at lower risk of subsequent abuse than if she had been in a jurisdiction that made that decision for her through a mandatory prosecution policy. n83 Ford and Regoli surmised that prevention of future incidents of violence was related to the victim's "power" to drop the charges. n84

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n81. See David A. Ford & Mary Jean Regoli, The Criminal Prosecution of Wife Assaulters: Process, Problems, and Effects, in Legal Responses to Wife Assault: Current Trends and Evaluation 127, 151-57 (N. Zoe Hilton ed., 1993).

n82. See id. at 144.

n83. See id. at 157.

n84. See id. The Ford and Regoli study has been criticized on a number of important grounds. See Mills, Mandatory Arrest and Prosecution Policies, supra note 24, at 312 (discussing problems such as the small sample size and the method of selecting subjects for the study).

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A recent study on the effects of prosecution on recidivism presented striking results. n85 After reviewing a large sample of domestic violence [*568] misdemeanor cases (1133), the researchers found that prosecution had no effect on the likelihood of re-arrest of the batterer within a six-month period. n86 More specifically, Robert Davis and his co-authors determined that recidivism was unaffected by whether a case was dropped, dismissed, or prosecuted. n87 While the authors warned that their findings were tentative, they nevertheless concluded that "there is little support for the idea that law enforcement responses to domestic violence misdemeanors reduce or eliminate violence." n88 Given these study findings, the advantages of mandatory interventions do not clearly outweigh the disadvantages, especially if these interventions protect the safety of white women at the expense of African-American women.

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n85. See Davis et al., supra note 51, at 441.

n86. See id.

n87. See id.

n88. Id. at 441-42; see also Robert C. Davis, Barbara E. Smith & Laura Nickles, Prosecuting Domestic Violence Cases with Reluctant Victims: Assessing Two Novel Approaches in Milwaukee, in Legal Interventions in Family Violence: Research Findings and Policy Implications 71, 71-72 (Nat'l Inst. of Justice & Am. Bar Ass'n ed., 1998) (describing the benefits of prosecuting more cases in a specialized domestic violence court and finding that introduction of a policy to prosecute more domestic violence arrests increased pretrial crime and decreased victim satisfaction with how the prosecutor handled the case).

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This essay argues not only that mandatory policies might increase the incidence of physical abuse against victims by their intimate partners, but also that these policies visit upon these victims an entirely distinct violent interaction, one that contains many of the emotionally abusive elements of the victim's relationship with the batterer. Feminist political practice - even in the name of gender warfare - should not mimic patriarchy through either the use of threat tactics or the inattention to individual desire. Laura's case, described in the introduction to this commentary, vividly illustrates how we can threaten or disregard a battered woman's interests for a larger political cause. Whether a misogynist police officer or a feminist prosecutor implements the policy is irrelevant.

My argument is that many women, as members of a patriarchal society, are so deeply influenced by male expressions of power that their ability to reflect on these dynamics is hampered, even destroyed. Women's ability to respond relationally and in a feminist manner is contaminated by the oppressive beliefs they seek to eradicate. n89 This assertion requires theoretical development and is not the primary focus of this essay. However, I offer this tentative explanation for the contradiction [*569] between the feminist commitment to women's self-development and empowerment and some feminists' complete disregard for these principles in their unwavering support for mandatory policies. My theoretical contention is that mandatory policies may be a product of this patriarchal influence on feminist perspective. It is hard to imagine that women unencumbered by the influence of such oppression would reproduce the abusive dynamics they otherwise claim to reject.

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n89. Luce Irigaray argues that little girls address their mothers with intersubjective respect - as one person addresses another with whom she is engaged in a joint enterprise. Mothers, on the other hand, direct their daughters to "listen and obey." Irigaray concludes that "dominant male culture has intervened between mother and daughter and broken off a loving and symbolic exchange." Luce Irigaray, I Love To You: Sketch for a Felicity Within History 130-31 (1996).

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Finally, I oppose mandatory interventions because they fundamentally ignore the fact that the form and substance of intimate abuse crimes are intimate. It is not the privacy of the crime that requires protection, but rather the woman's emotional relationship to the experience. These issues can be identified as "clinical." This position grows out of my awareness that most, if not all, battered women experience intimate abuse as emotional - not as legal or political. n90 This approach is not designed to pathologize a survivor or to relegate the issue of domestic violence to the sphere of mental health, and hence to push it outside the scope of feminist or political concern. By adopting the survivor's perspective, which is fundamentally an emotional one, we should be charged with hearing her story on her terms and in ways that take into account her particular circumstances. Only after we attend to this clinical task should we consider the larger feminist interest. This respectful and gentle attitude will allow those interested in pursuing a political agenda to do so with the broadest base of support and in ways that value the integrity of the battered woman's struggle. While this approach may prolong women's oppression overall, it promises, in time, to include more willing female participants. n91 Engaging survivors in the political struggle against domestic violence must begin with facilitating their personal empowerment in the intimate sphere. Coercive tactics serve only to disengage these women and alienate them from the larger feminist power base that has become so strongly identified with these approaches.

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n90. Herman clarifies the link between the clinical and the political in a way that resonates with my efforts: "The study of psychology trauma is an inherently political enterprise because it calls attention to the experience of oppressed people." Herman, supra note 9, at 237.

n91. I agree with Joyce Klemperer's position that although policy change is needed, "these changes will be futile unless women have a sense of their own right to safety and freedom and are empowered to demand that which they are entitled to." Joyce Klemperer, Symposium on Reconceptualizing Violence Against Women By Intimate Partners: Critical Issues: Programs For Battered Women - What Works?, 58 Alb. L. Rev. 1171, 1190 (1995).

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The attention to particularity, that is, individual circumstances, that I describe involves taking stock of each survivor's emotional condition. The importance of developing responses that recognize each [*570] battered woman's unique predicament is underscored in the clinical literature described in the next section.

II. Clinical Concerns

Exposing the dynamics of state violence in intimate abuse cases requires several steps. In this section, I explore the emotional - or clinical - dimensions of the battered woman's experience of the abuse for the explicit purpose of exposing the trauma she may feel. Beginning from this clinical or therapeutic perspective, we can begin to understand the emotional states of survivors who come in contact with the criminal justice system. Similarly, this clinical analysis helps reveal how prosecutors and advocates for battered women are likely to react on an emotional level to the survivor's experience of the trauma. Once these dynamics are uncovered, it is easier to understand why survivors and state actors so often clash n92 and to predict that these relationships are ripe for the emotional abuse that is so vividly exposed in the next section.

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n92. See, e.g., Edna Erez & Joanne Belknap, In Their Own Words: Battered Women's Assessment of the Criminal Processing System's Responses, 13 Violence & Victims 251, 256-59 (1998). This recent study exposes the urgency of the task to reform the dynamics between battered women and state actors. Erez and Belknap interview women about their experiences with the criminal justice system and reveal that police, see id. at 256-57, prosecutors, see id. at 257-58, and judges, see id. at 258-59, often dismiss and marginalize battered women's concerns, in turn affecting battered women's desire to take affirmative action toward ending the abuse in their lives, see id. at 263. See also George S. Rigakos, Constructing the Symbolic Complainant: Police Subculture and the Nonenforcement of Protection Orders for Battered Women, 10 Violence & Victims 227, 234-42 (1995) (arguing that police do not conscientiously enforce protective orders because of a patriarchal police subculture); Anna Stewart & Kelly Maddren, Police Officers' Judgements of Blame in Family Violence: The Impact of Gender and Alcohol, 37 Sex Roles 921, 929 (1997) (finding that police officers hold gender stereotypes that influence the way they respond to family violence). But see Robert J. Kane, Patterns of Arrest in Domestic Violence Encounters: Identifying a Police Decision-Making Model, 27 J. Crim. Just. 65, 69 (1999) (finding that risk to the victim is the most important factor in officer decisions to arrest during domestic violence incidents); Daniel G. Saunders & Patricia B. Size, Attitudes About Woman Abuse Among Police Officers, Victims and Victim Advocates, 1 J. Interpersonal Violence 25, 38 (1986) (arguing that police officers have a better understanding of the emotional ties victims have with batterers than do advocates for battered women).

One study found differences between the attitudes of patrol officers and cadets. Patrol officers, more than cadets, believed the victim would reconcile with the perpetrator while cadets believed that it was important that the victim seek protection in a shelter. See S. Patrick Thornton & Richard P. McGlynn, Reasoned Action and Predictors of Arrest of a Violent Spouse, 13 J. Police & Crim. Psychol. 1, 8 (1998).

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Fragments of clinical explanations pepper the discourse that justifies mandatory interventions. The most salient rationalization is that the survivor is suffering from a syndrome that prevents her from thinking for herself. n93 Articulated as "the battered woman really [*571] wants to see him punished, but she is too terrified to say," mandated policies are "what she really wants, but can't ask for." This rationalization takes many forms. Recently, Assistant U.S. Attorney Robert Spagnoletti, Chief of the Domestic Violence Unit for the District of Columbia, reported that he had interviewed "tens of thousands of victims" and "the one thing that became apparent to [him] after a year of this is that [he could not] tell a thing [about what the victim really wants]." n94 Because he could not tell which victims were intimidated and which victims made "an informed, voluntary and knowing" decision not to pursue prosecution, he concluded that a no-drop policy that did not "make any differentiation between domestic violence as a crime and any other crime" made the most sense. n95

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n93. The most well known of the syndromes is Battered Women's Syndrome. Battered women are also often diagnosed with Post-Traumatic Stress Disorder (PTSD). See generally Herman, supra note 9, at 117, 116-29 (discussing the tendency to misdiagnose patients who "suffer from the complex aftereffects of chronic trauma ...as having personality disorders").

n94. Robert Spagnoletti, Remarks at the First Annual Gender, Sexuality, and the Law Symposium, Georgetown University Law Center on Violence and State Accountability Conference 4, 5 (Feb. 20-21, 1998) (transcript on file at the Harvard Law School Library).

n95. Id. Spagnoletti, a lawyer, has no training in clinical assessment or intervention. The clinical limitations of prosecutors have been noted in other legal contexts. See, e.g., Lisa Frohmann, Constituting Power in Sexual Assault Cases: Prosecutorial Strategies for Victim Management, 45 Soc. Probs. 393, 400-01 (1998) (finding that in rape cases, prosecutors reinterpret victim trauma within a legal framework, preventing empowerment); Maureen McLeod, Victim Noncooperation in the Prosecution of Domestic Assault, 21 Criminology 395, 412 (describing a study of the variables affecting victim cooperation and the importance of improving prosecutors' understanding of victims' decision-making processes).

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A correlative justification for these policies, often muttered only in whispers, is that victims are just "too difficult." Spagnoletti's comment that "there is no way to tell" what victims want and why n96 is one expression of this frustration. Donald Rebovich's study of large prosecutorial offices reports that one-third of prosecutors surveyed believe that over fifty-five percent of battered women are "uncooperative." n97

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n96. Spagnoletti, supra note 94, at 5.

n97. See Donald J. Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of Large Jurisdictions, in Do Arrests and Restraining Orders Work? 176, 185-86 (Eve S. Buzawa & Carl G. Buzawa eds., 1996).

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My contention is that professionals have become dependent on these one-dimensional strategies because they reject therapeutic or clinical approaches. Typically, professions resist intrusion, enjoy their distinctive epistemologies, and protect their authoritative positions. n98 "Lawyers," it is often repeated, "are not social workers." n99 While professional tensions have persisted throughout the modernist period, [*572] feminism, critical race theory, postmodernism, and other theoretical developments have challenged traditional professional boundaries and encouraged the growth of interdisciplinary approaches to problem-solving. Indeed, the law itself contributes to these substantive and theoretical border-crossings.

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n98. Cf. David R. Culp, Law School: A Mortuary for Poets and Moral Reason, 16 Campbell L. Rev. 61, 79-80 (1994) (noting that law students seem to deprecate forms of reasoning other than "thinking like a lawyer").

n99. See, e.g., Jackson, supra note 52, at 561, 561-62; cf. Donna Wills, Domestic Violence: The Case for Aggressive Prosecution, 7 UCLA Women's L.J. 173, 173 (1997) (arguing that prosecutors serve the state's interests, not the victim's).

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State actors should champion good clinical practice. Clinical practice is particularly appropriate in domestic violence cases because advocates so often advance clinical reasons for mandatory interventions. Advocates of these policies assert, among other things, that mandatory interventions are necessary because battered women are too scared of or too easily influenced by their batterers. n100 State actors should consider other relevant clinical principles, elucidated more fully below, when working with battered women.

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n100. See Gwinn & O'Dell, supra note 53, at 308 (describing some victims as "too frightened and confused to cooperate"); Wills, supra note 99, at 177 n.23.

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A marriage between clinical and policy discourse penetrates other areas of lawmaking as well. For example, state laws require nurses, physicians, social workers, therapists, teachers, and psychologists to report incidents of child abuse, elder abuse, and threatened homicide. n101 While in general there has been some resistance to these mandates, professionals have increasingly come to accept these clinical responsibilities. n102 In sum, the law is infused with clinical episteme; my argument is that state actors should honor its distinct and rich tradition. n103

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n101. The distinction between reporting domestic violence and reporting child abuse must be underscored. The latter involves minors who are, in most legal contexts, dependent on adults. While battered women may be dependent on their abusers, they should in most cases be viewed in light of the strength and agency they often exhibit. For child abuse reporting requirement laws, see, for example, Cal. Penal Code 11,166 (West 1999). For the requirement that psychologists report threatened homicide, see, for example, Tarasoff v. Regents of the University of California, 551 P.2d 334, 345 (1976); and Mass. Gen. Laws Ann. ch. 112, 129A (West 1999).

n102. See Gary King, Robert Reece, Robert Bendel & Vrunda Patel, The Effects of Sociodemographic Variables, Training, and Attitudes on the Lifetime Reporting Practices of Mandated Reporters, 3 Child Maltreatment 276, 280-81 (1998). Arguably, social workers have been the most accepting of these external demands. See, e.g., Margolin, supra note 24, at 128-34 (revealing the ways social workers have come to accept their investigative roles in the child welfare context, and demonstrating their capacity to "sanction and punish" clients). Physicians, on the other hand, have more vehemently resisted reporting requirements. See Douglas J. Besharov, Overreporting and Underreporting Are Twin Problems, in Current Controversies on Family Violence, supra note 64, at 257, 259-60. Lawyers have generally remained protected from these impositions. While some commentators have argued that lawyers are, or at least should be, mandated reporters in child abuse cases, most lawyers have resisted the imposition of such a requirement. See Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 207-11 (1992); Robin A. Rosencrantz, Note, Rejecting 'Hear No Evil Speak No Evil': Expanding the Attorney's Role in Child Abuse Reporting, 8 Geo. J. Legal Ethics 327, 328 (1995).

n103. Similarly, Dutton contends that the law should find ways to consider context when evaluating battered women. See Mary Ann Dutton, Battered Women's Strategic Response to Violence: The Role of Context, in Future Interventions with Battered Women and Their Families 105, 120-21 (Jeffrey L. Edleson & Zvi C. Eisikovits eds., 1996).

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[*573] In light of the interdisciplinary nature of contemporary domestic violence practice, it is helpful to elucidate what constitutes good clinical practice for the purpose of beginning a dialogue between the legal and therapeutic communities. As my work is primarily concerned with understanding the survivor, I begin with her. How does violence affect its victims? I examine this question broadly in the context of the trauma literature, and in the context of studies of Holocaust and Hiroshima victims and of abused children and battered women. n104

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n104. The trauma literature encompasses a broad range of experiences of violence. Historically, social workers have resisted translating from one experience to another (for example, from combat or prisoner violence to intimate abuse). It is apparent, however, that the experience of trauma, regardless of its specifics, often triggers similar symptoms in its victims. I have attempted to respect the differences among experiences and to translate in a sensitive and open fashion, relying on the relevant literature to expose commonly characteristic symptoms.

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A. The Clinical Features of Trauma

Several distinguishing features of trauma help explain why battered women react to practitioners in the ways that they do. It is important to remember, however, that no single reaction can be predicted or anticipated. Reactions vary depending on, for example, the nature and extent of the violence, the timing of the incident, and the characteristics of the victim. n105 Following an abusive event, the trauma victim is likely to be in a state of excitement, anticipating that the danger might return at any time. n106 Losing sleep, suffering nightmares, being easily startled, and reacting irritably to minor disturbances are predictable reactions to the traumatic intrusion. n107 Other distinguishing features of trauma include helplessness, depression, and isolation. n108 Martin Symonds, a psychiatrist, describes four stages of response to victimization. n109 Victims begin with shock and disbelief, then feel "frozen fright" or "pseudo-calm.",FN='1 11'> Self-blame and questions about "why did it happen to me" later replace those feelings. n111 In the final phase of recovery, victims learn to integrate the trauma into their lives. n112

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n105. See, e.g., Dutton, supra note 79, at 161-62; Wilson, supra note 9, at 19-20.

n106. See Herman, supra note 9, at 34.

n107. See Wilson, supra note 9, at 31, 197.

n108. See id. at 32-34.

n109. See Symonds, supra note 21, at 36-37.

n111. Id.

n112. See id.

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Images of the trauma penetrate the victim's memory at unexpected times and in unusual ways. Traumatic memory is often inarticulate. It may even be silent. Yet it penetrates to the survivor's bone. Traumatized children may not be able to verbalize precisely what happened [*574] or may be incapable of recalling the abuse, but many of them will exhibit signs of the violence through expression of fears, personality changes, and reenactments through play. n113 Lenore Terr, a child psychiatrist, characterizes these imprints as "behavioral memory." n114 Adults might crystallize abusive events into a recurring memory, which may emerge unexpectedly. n115 According to psychiatrist Robert Jay Lifton, victims of trauma are often in denial of the abuse or are "psychically closed off" to the memories. n116

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n113. See Lenore Terr, What Happens to Early Memories of Trauma? A Study of Twenty Children Under Age Five at the Time of Documented Traumatic Events, 27 J. Am. Acad. Child & Adolescent Psychiatry 96, 98 (1988).

n114. Id.

n115. See Wilson, supra note 9, at 14. Robert Jay Lifton identifies a similar problem in Hiroshima survivors, who recalled one memory out of many and labeled it the "ultimate horror." Robert J. Lifton, Observations on Hiroshima Survivors, in Massive Psychic Trauma 168, 175 (Henry Krystal ed., 1968).

n116. Lifton, supra note 115, at 174-75.

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Some survivors relive trauma through their actions. Terr identified this repetition and found that traumatized children repeat the abuse in their play. n117 Terr (citing Freud) believes that children repeat their abuse "in order to practice at mastery - to practice enough so that anxiety will be overcome." n118 Psychiatrist Mardi Horowitz describes a similar phenomenon in adults, as victims struggle through repetition to integrate the traumatic event into cognitive processing, often without success. n119 Repetition and reenactment can take many forms. Nightmares, flashbacks, and dissociative episodes can occur without conscious provocation. n120 The most extreme example of repetition involves a trauma victim who returns to the site of an event in order to relive it. n121 This repetition is the mind's effort to resolve the trauma or repair the injury. n122 Given the possibility that survivors repeat the trauma hoping for a different outcome, interactions with the unsuspecting [*575] professional can quickly turn painful, frustrating, or even destructive. n123 Promoting reappraisal of the traumatic event(s) and re-exposure to the painful experience(s) in therapy can often help the trauma victim work through this painful history. n124

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n117. See Terr, supra note 113, at 98.

n118. Id. at 103 (citing Sigmund Freud, Beyond the Pleasure Principle, in 18 The Standard Edition of the Complete Psychological Works of Sigmund Freud 7 (James Strachey ed., 1955)).

n119. See Mardi Jon Horowitz, Stress Response Syndromes 120-29 (1997).

n120. See Wilson, supra note 9, at 222-23; Gustav Bychowski, Permanent Character Changes as an Aftereffect of Persecution, in Massive Psychic Trauma, supra note 115, at 75, 78-79, 86.

n121. It is possible that battered women return to their batterers because of this repetition or reenactment syndrome. Donald Dutton refers to this process, which often involves sudden reversals, as "traumatic bonding." Dutton, supra note 79, at 189-217. If that is the case, it is even more critical that the interventions battered women seek from the state address the underlying dynamic of the trauma.

n122. See Freud, supra note 118, at 36; Robert J. Lifton, Understanding the Traumatized Self: Imagery, Symbolization, and Transformation, in Human Adaptation to Extreme Stress: From the Holocaust to Vietnam 7, 27-28 (John P. Wilson, Zev Harel & Boaz Kahana eds., 1988) (emphasizing the importance of emancipating the survivor from "the bondage from his own inner deadness").

n123. See, e.g., Hanna, supra note 3, at 1874-75 (recounting stories of battered women who suffered further beatings after persuading the prosecutor they would not be injured again); cf. Jackson, supra note 52, at 561-62 (arguing that listening to battered women may often frustrate the listener).

n124. This assertion suggests that testifying may have a healing effect, if used carefully. See Stephen Joseph, Ruth Williams & William Yule, Understanding Post-Traumatic Stress: A Psychosocial Perspective on PTSD and Treatment 118-19 (1997).

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Repressing the abusive history and resisting its repetition operate simultaneously with the reliving of the trauma. This tension between "constriction" and "intrusion" is what psychiatrist and trauma expert Judith Herman calls "the dialectic of trauma." n125 According to Herman, the "numbing" or repression is similar to what is observed in animals who "freeze" when they are attacked. n126 Herman believes that one way that trauma victims cope with the helplessness they feel when abused is to "go into a state of surrender." n127 In this state, victims detach from the abuse and numb themselves to the trauma they cannot integrate. n128 They may submerge themselves in their work or in other activities that keep them emotionally preoccupied. The most extreme example of constriction is the trauma victim who dissociates from her history by fragmenting into multiple personalities. n129

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n125. Herman, supra note 9, at 47-50.

n126. See id. at 42-43.

n127. Id. at 42.

n128. See id. at 42-43.

n129. See id. at 103-07.

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The dialectic of intrusion and constriction, identified by Herman, prevents the victim from integrating the traumatic experience: "She finds herself caught between the extremes of amnesia or of reliving the trauma, between floods of intense, overwhelming feeling and arid states of no feeling at all, between irritable, impulsive action and complete inhibition of action." n130

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n130. Id. at 47.

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The implications of this psychological tension are that a victim's symptoms are likely to persist for a long period of time, possibly indefinitely, especially when no intervention or treatment is forthcoming. n131 While the traumatic memory, if unaddressed, may fade, the underlying dynamics that led to the trauma become internalized. [*576] Asking for help becomes difficult or even impossible. n132 Feeling disconnected, even dead to oneself and others, is a reaction that trauma victims often identify. n133 The contrast between this death or disconnection and the demands placed on the survivor by the state during a criminal prosecution are both striking and revealing. Conflict is bound to arise.

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n131. See Carol C. Nadelson, Malkah T. Notman, Hannah Zackson & Janet Gornick, A Follow-Up Study of Rape Victims, 139 Am. J. Psychiatry 1266, 1268-69 (1982) (reporting the results of a follow-up study of rape victims between one and two-and-one-half years after the incident: 41% of the women reported symptoms of depression, 49% feared being alone, and 76% were still suspicious of others).

n132. See Emmanuel Tanay, Initiation of Psychotherapy with Survivors of Nazi Persecution, in Massive Psychic Trauma, supra note 115, at 219, 219-28 (describing the resistance of Holocaust survivors to psychotherapy).

n133. See Lifton, supra note 115, at 185-87 (describing the experience of the survivor as "under-living" and suffering from "survivor hubris").

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B. The Healing Process

What is possibly most distinctive about treating or addressing trauma in general is that it requires a "relational" cure, connected somehow to the initial traumatic experience. Because traumatic events occur in the context of human relationships, most experts agree that healing and recovery require a therapeutic intervention that promotes what psychologist John Wilson calls "trust, bonding, and mutual support." n134

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n134. Wilson, supra note 9, at 159; see also id. at 159-95 (describing an intervention designed to provide these features).

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Several critical features promote a healing relationship between the helping professional and the survivor, which is the kind of relationship most likely to facilitate the trauma victim's recovery and her rejection of violence as a form of relating. n135 In presenting a clinical picture of the battered woman's dilemma, and of ways to direct her toward a healing path, Herman suggests that trauma is uniquely relational because:

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n135. Despite the fact that eradicating domestic violence is the overriding state objective, I can only assume that promoting healing is a goal that all state actors (law enforcement officers, prosecutors, and medical professionals) strive for in one form or another. Rejecting violence is rarely accomplished alone. Indeed, in some cases, the battered woman's rejection of violence is fruitless. Rejection of violence, in this instance, refers to the battered woman's desire to limit, to the extent possible, the violence she endures. This rejection may or may not involve leaving the abusive relationship.

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The core experiences of psychological trauma are disempowerment and disconnection from others. Recovery, therefore, is based upon the empowerment of the survivor and the creation of new connections. Recovery can take place only within the context of relationships; it cannot occur in isolation. In her renewed connections with other people, the survivor re-creates the psychological faculties that were damaged or deformed by the traumatic experience. These faculties include the basic capacities for trust, autonomy, initiative, competence, identity, and intimacy. Just as these capabilities [*577] are originally formed in relationships with other people, they must be reformed in such relationships. n136

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n136. Herman, supra note 9, at 133; see also Robert J. Lifton, The Broken Connection: On Death and the Continuity of Life 176-77 (1979) (exploring how survivors of trauma reengage in relationships to find meaning); cf. Yael Danieli, Confronting the Unimaginable: Psychotherapists' Reactions to Victims of the Nazi Holocaust, in Human Adaptation to Extreme Stress, supra note 122, at 219, 219-20 (stating that Holocaust survivors could recover only if "surrounded by people who understood and loved them and empathized with their difficulties").

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This clinical observation suggests that a battered woman's contact with a state actor, in whatever form (a 911 call, a visit from law enforcement officers following an incident, or an interaction with an emergency room physician), is inherently part and parcel of the survivor's healing and/or psychological decline. Along these lines, state actors must reevaluate their practices in light of these significant dynamics and the relationships that they reflect, and in terms that consider the survivor's recovery.

Certain clinical rules govern a healing relationship. For example, the empowerment of the survivor is the most important goal. n137 Empowerment provides a space for the battered woman to decide how to proceed in the healing process. This kind of empowerment does not imply that she is obligated to choose among options; rather, it suggests the need for those involved in the healing process to present options and relevant data, encouraging the survivor to choose the path with which she is most comfortable. In Herman's terms:

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n137. See Herman, supra note 9, at 133.

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[The survivor] must be the author and arbiter of her own recovery. Others may offer advice, support, assistance, affection, and care, but not cure. Many benevolent and well-intentioned attempts to assist the survivor founder because this fundamental principle of empowerment is not observed. No intervention that takes power away from the survivor can possibly foster her recovery, no matter how much it appears to be in her immediate best interest. n138

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n138. Id.

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Hence, helping victims restore power and control and diminishing their helplessness by increasing their choices can contribute significantly to reversing the negative dynamics that dominate the abusive relationship. n139 This reversal, in turn, fosters the victim's capacity to engage in a healthy and affirming relationship. n140 Developing a therapeutic [*578] alliance with a battered woman is challenging work. This collaboration between victim and therapist, survivor and practitioner, is a partnership, which is built on the "basis of their implicit confidence in the value and efficacy of persuasion rather than coercion, ideas rather [than] force, mutuality rather than authoritarian control." n141

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n139. In a study of rural survivors of intimate abuse, Marilyn Merritt-Gray and Judith Wuest found that the "central process [of leaving the abusive relationship] for survivors was reclaiming self." Marilyn Merritt-Gray & Judith Wuest, Counteracting Abuse and Breaking Free: The Process of Leaving Revealed Through Women's Voices, 16 Health Care for Women Int'l 399, 399 (1995).

n140. See Mills, Heart of Intimate Abuse, supra note 24, at 104; see also Evan Stark & Anne Flitcraft, Personal Power and Institutional Victimization: Treating the Dual Trauma of Woman Battering, in Post-Traumatic Therapy and Victims of Violence 115, 126-31 (Frank M. Ochberg ed., 1988) (arguing that battering is a physical and psychosocial problem because "institutional neglect, isolation, and maltreatment are added to assault," which suggests the importance of "exorcizing institutional maltreatment of victims of battering"). Contrast this approach to the one taken in Evan Stark, Mandatory Arrest of Batterers: A Reply to Its Critics, 36 Am. Behav. Sci. 651 (1993), which argues that "the entrapment associated with battering justifies a proactive response from the state in anticipation of future assault and coercive control - hence a proarrest policy." Id. at 675.

n141. Herman, supra note 9, at 136.

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In the case of a battered woman, this empowerment may or may not involve pursuing the arrest and prosecution of the batterer. She should decide whether she would like to pursue these strategies or whether she would prefer state representatives to pursue arrest and prosecution on her behalf, and without her active participation.

Herman and others have identified several of the challenges that the clinician and client are likely to encounter in the difficult task of forging the healing relationship. "Traumatic" transference and countertransference are two salient dynamics evident in the relationship between a practitioner and a survivor. State actors such as police officers and prosecutors are not trained to detect or understand these unconscious dynamics, which carry positive and negative forces, so it becomes especially important to provide an introduction to how they operate. The following sections will help provide practitioners with the skill necessary to detect the violence I describe in Part III and to begin to imagine the new dynamic I set forth in Part IV.

1. Traumatic Transference. - Transference operates in any successful therapeutic relationship. It is the process by which a client engages with the therapist unconsciously to reproduce and work through the traumatic events in her childhood or other relevant periods. In the context of domestic violence, "traumatic transference," as Herman calls it, occurs when the traumatized client engages in trauma-induced transference with the therapist. n142 Given the history of abuse, the emotional responses of a survivor of violence are all too often mired in terror, defensiveness, and anger. In these instances, the violence, or "destructive force," n143 reproduces itself in the therapeutic relationship as a survivor seeks to work through her violent history and to integrate the experience into her life. In this reproduction, the survivor experiences both terror and helplessness. Her response to these feelings is complex, even conflicting. She may, on the one hand, expect no [*579] one to respond to her cry for help; after all, she was profoundly abandoned during the abusive episode. On the other hand, the survivor may unconsciously expect to be rescued by an "omnipotent" savior. In this idealization, the survivor expects the therapist to protect her from the abuse.

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n142. Id. at 136-40.

n143. Id. at 136.

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Even when the therapist succeeds in helping the survivor feel protected, she inevitably fails her. This failure can take multiple forms. The therapist may fail to elicit sufficient detail of the abuse, leaving the victim to feel that the therapist does not really care what happened. Alternatively, the therapist may listen too closely to traumatic detail; the survivor may interpret this response as voyeuristic. Similarly, the survivor may view the therapist's inadvertent dismissal of her unconscious demand to discuss the trauma - no matter how inexplicit - as the failing of the therapist. n144

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n144. See Tanay, supra note 132, at 225.

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Typical of traumatized clients is their capacity to read the therapist's every move. According to Herman, "chronically traumatized patients have an exquisite attunement to unconscious and nonverbal communication." n145 Emmanuel Tanay, who has worked extensively with survivors of the Holocaust, reports that the therapist must be very careful to avoid blocking the patients' "process of expression and catharsis" because "one question or even a glance which is 'out of tune' and the 'psychological closing off' is re-established." n146

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n145. Herman, supra note 9, at 139.

n146. Tanay, supra note 132, at 225 (citation omitted) (quoting Lifton, supra note 115, at 174 (discussing "psychological closing off")).

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Traumatic transference and an attuned reaction by the therapist to these conflicting demands produce the conditions under which the survivor can heal. Given the significant role of transference in the therapeutic relationship, it is critical that practitioners who are likely to encounter battered women be prepared for these sentiments and reactions. For example, battered women are likely to evaluate state actors on the actors' ability to listen without interrupting them, or to ask detailed questions that enable the women to tell their stories. Along these lines, practitioners should expect that state actors' reactions and clumsy attempts to connect will inevitably disappoint intimate abuse victims, like other trauma survivors. As they come to expect certain reactions, practitioners can become less judgmental and more patient with battered women.

Building a relationship with a battered woman is challenging work. Being aware that traumatic transference might arise can enable the practitioner to understand and better predict how the battered woman might respond and also how the victim's response, especially if it is negative, affects the practitioner.

[*580]

2. Traumatic Countertransference. - The practitioner's reaction to the trauma survivor, described as traumatic countertransference, is equally significant in building the kind of connection that is necessary to facilitate healing. Countertransference is the therapist's reaction to the emotional material that the patient presents. Countertransference is thought to be evoked by the client's transference experience and is therefore likely to involve an unconscious response. n147 The countertransference "pull" is so powerful that, as Jung suggests, the psychoanalyst is as much "in the analysis" as the patient. n148

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n147. See Carl G. Jung, The Practice of Psychotherapy: Essays on the Psychology of the Transference and Other Subjects 164-167 (Herbert Read, Michael Fordham & Gerhard Adler eds. & R.F.C. Hull trans., 2d ed. 1966); see also Carol R. Hartman & Helene Jackson, Rape and the Phenomena of Countertransference, in Countertransference in the Treatment of PTSD 206, 219 (John P. Wilson & Jacob D. Lindy eds., 1994). For an excellent exploration of the countertransference issues in the legal context, see Marjorie A. Silver, Love, Hate and Other Emotional Interference in the Lawyer/Client Relationship, 6 Clinical L. Rev. 259, 270-74 (1999).

n148. Jung, supra note 147, 166. For an enlightening discussion of countertransference issues that arise when working with clients who are culturally different from the practitioner, see RoseMarie Perez Foster, The Clinician's Cultural Countertransference: The Psychodynamics of Culturally Competent Practice, 26 Clinical Soc. Work J. 253, 255-56 (1998), which suggests the importance of staying attuned to the multiple countertransferences that are likely to emerge in the therapeutic relationship.

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Countertransference with trauma victims has its own distinct and unique history. Yael Danieli is a psychoanalyst who has studied both Holocaust-survivor and nonsurvivor therapists who treat Holocaust survivors and their children. She identifies several countertransferential influences that intrude into the healing relationship through the therapist's negative reaction to the client. n149 These reactions, described in detail below, may include "conspiracy of silence," n150 "bystander's guilt," n151 "rage," n152 and "shame." n153

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n149. See Danieli, supra note 136, at 219-21.

n150. Id. at 220 (emphasis omitted).

n151. Id. at 226; see id. at 226-27.

n152. See id. at 227-28.

n153. See id. at 228-29.

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According to Danieli, a "conspiracy of silence" occurs when the therapist represses discussion of a particular topic or feeling. Danieli's theory is that this phenomenon helps the therapist "contain" the difficult feelings the trauma evokes in the therapist. n154 This conspiracy can take different forms: the therapist may prevent a client from sharing or may direct how the client's narrative should be revealed. Psychoanalyst Henry Krystal also observes this phenomenon. He finds [*581] that therapists who worked with Holocaust survivors commonly conducted the therapeutic interview "in a 'questionnaire' fashion": n155

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n154. See id. at 221-26.

n155. John M. Dorsey, The Massively Traumatized Individuals as a Challenge to Humane Medicine, in Massive Psychic Trauma, supra note 115, at 142.

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In some cases, auxiliary personnel in the form of "history takers" were utilized by examiners. Thus, the expert made contact with a report rather than with a living person - a survivor of the most fantastic degradation and destructive machine ever invented by man. n156

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n156. Id.

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Danieli reports that "bystander's guilt" is another therapist's reaction to the client's trauma. n157 Usually this guilt manifests itself in the therapist's feeling that she leads a happy and protected life, especially when compared to the client, who has suffered a great deal. n158 Several negative consequences attach when bystander guilt emerges in the therapist/client dynamic. For example, the therapist may view the survivor and her offspring as "fragile." n159 Rather than nurture the client's capacity to work through the trauma, the therapist attempts to protect her from her pain. n160 According to Danieli, "such therapists tend[] to do too much for survivors and their children to the point of patronizing them and not respecting their strengths." n161

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n157. Danieli, supra note 136, at 226.

n158. See id.

n159. See id.

n160. See id.

n161. Id.

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Another reaction Danieli identifies in therapists working with Holocaust survivors is rage: "They often report[] that they became enraged listening to Holocaust stories and [are] overwhelmed by the intensity of their own reactions." n162 This rage manifests itself in myriad responses by therapists to their clients. Some therapists blame the victims for "bringing the Holocaust upon themselves." n163 Other therapists repress their feelings of rage out of a fear of revictimizing their traumatized patients. In either case, rage figures prominently in the therapists' feelings toward their patients, a rage that both consciously and unconsciously affects the treatment. n164

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n162. Id. at 227.

n163. Id.

n164. Some researchers have characterized this rage as the stress associated with treating a trauma victim. See, e.g., Tanay, supra note 132, at 224 ("A properly handled hour with a survivor becomes a cathartic experience for the patient, and therefore has an emotional impact upon the therapist. The modern psychotherapist is rarely exposed to this type of interaction, and will defend himself against it.").

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Shame is another important response in therapists treating traumatized clients. Danieli describes the way in which Holocaust-survivor therapists express their shame by blaming clients for not fighting back or resisting Nazi violence. These therapists condemn their clients for [*582] being "victims and, as such, weak, vulnerable, and abused." n165 In a similar vein, therapists often essentialize their clients as either victims or heroes. When viewed as victims, survivors are "passive and helpless," n166 and therapists become "'annoyed and impatient' and feel the need to liberate" these victims. n167 Heroes, on the other hand, are idealized for their bravery. n168 As might be expected, "most therapists generally prefer[] working with heroes to working with victims." n169 This preference unconsciously reinforces victim self-blame and perpetuates victims' feeling of helplessness.

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n165. Danieli, supra note 136, at 229.

n166. Id. at 231.

n167. Id.

n168. See id.

n169. Id. at 232 (emphasis omitted).

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Finally, Danieli finds that therapists who did not themselves survive the Holocaust are more judgmental and less empathetic in treating survivors than survivor therapists. The nonsurvivor therapists express "attitudes, feelings, and myths disparaging to the survivors...while viewing the survivors' offspring as the fragile victims." n170 This shift in focus away from the survivor and toward the survivor's children can lead the therapist to blame unconsciously the survivor for her children's suffering while also minimizing her trauma. n171

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n170. Id. at 235.

n171. See id. at 228.

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Danieli's findings are relevant to our inquiry into the reactions of practitioners and advocates in the domestic violence context. Discussed in more detail below, my contention is that the therapists' negative countertransference reactions parallel state actors' reactions to intimate abuse victims. My argument is that these countertransference reactions are so pervasive that they affect more than just the relationship between practitioners and battered women. These unconscious dynamics significantly but unconsciously influence the judgments of domestic violence advocates and policymakers, blinding them to the violence they inflict on victims when intervention policies disregard the survivors' experiences of the trauma.

C. Clinical Explanations for State Actors' Violence

Violence is contagious. n172 It permeates every relationship that it governs or touches, especially, as we have seen, the survivor's relationship with her clinician. Vigilance in recognizing its infectious character enables therapists to resist the negative countertransferences that intrude into the healing relationship and that so often prevent an empowering [*583] response to the survivor of trauma. As therapists are trained to do, state actors should make the effort to become aware of the unconscious penetration of countertransference into their relationships with battered women and to recognize the ways they conspire to silence, experience bystander guilt, and otherwise feel rage, shame, and the desire to blame.

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n172. Cf. Herman, supra note 9, at 140.

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One explanation advanced by state actors on behalf of mandatory interventions is that the state has a responsibility to protect its citizenry at all costs, even when those costs are imposed on the very victims the state aims to protect. n173 Indeed, state actors and policymakers often justify their decisions to disregard the battered woman's desire not to press charges on the grounds of protecting the woman's interest. As San Diego City Attorney Casey Gwinn and San Diego Police Sergeant Anne O'Dell have so eloquently argued:

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n173. See, e.g., Wills, supra note 99, at 176-82.

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In San Diego, we learned a number of years ago that abusers would become more violent and aggressive toward the victim when they learned that she controlled the outcome of the criminal prosecution. By definition, most batterers have the power in violent relationships. Thus, when the system demanded that the victim act in the role of prosecutor, in reality the batterer was being given control of the criminal case. The batterer's control over the victim is generally so complete that he was able to dictate whether she talked to the prosecutor, what she said, and whether she appeared in court.



The solution to this vexing issue was to take the responsibility out of the hands of the victim and place it with the State where it belongs. n174

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n174. Gwinn & O'Dell, supra note 53, at 310.

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The view that state responsibility in domestic violence cases should be limited to the goal of protection is conceptually narrow and clinically inappropriate. n175 This position neglects the state's collective obligation to its victimized citizenry to respond to intimate abuse in ways that reliably interrupt patterns of violence and that begin to eradicate the underlying dynamics that cause violent ruptures in the first place. Danieli suggests that society's collective responsibility to Holocaust survivors is to "share its members' pain": n176 "When [members of society] fail to listen and understand, they participate in the conspiracy of [*584] silence and may inflict further trauma on the survivor or 'the second injury to victims.'" n177 These dynamics are elucidated in Part III, which exposes specific forms of state violence in greater detail.

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n175. Phyllis Baker examines the strategies battered women use to resist how they are characterized and labeled by police and social service providers. Protection is not the women's only concern. Indeed, based on her interviews with battered women, Baker finds too narrow the domestic violence professionals' standard argument that the women should leave for safety reasons. Baker concludes that battered women who refuse to call or cooperate with police or who ignore or lift restraining orders exercise a "logical preference" in light of the threat of the abuser and their emotional attachment. Phyllis L. Baker, And I Went Back: Battered Women's Negotiation of Choice, 26 J. Contemp. Ethnography 55, 70 (1997).

n176. Danieli, supra note 136, at 221.

n177. Id. (citations omitted) (quoting Symonds, supra note 21, at 36).

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This countertransference reaction - the conspiracy of silence - is so deep and insidious, so pervasive and veiled, that I cannot help but wonder if it explains why practitioners and policymakers alike have so wholeheartedly embraced mandatory strategies. This explanation seems especially plausible when one considers the other countertransference reactions discernible in the relationship between state actors and survivors of intimate abuse. The evidence presented thus far suggests that state actors stereotype battered women's fragility as noncooperative in part because of their own "guilt" at leading a more comfortable lifestyle. Similarly, public officials' desire to blame survivors for not resisting abuse, or even for causing it, may reflect their unexpressed rage at the violence they must witness in the course of their work with victims. Finally, the state actors' propensity toward annoyance with victims' unheroic inaction and their inclination to blame battered women for not leaving suggest that a negative countertransference reaction may influence, in a meta-analysis, the state's response to survivors of intimate abuse. n178

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n178. For a fascinating discussion of lawyers' displays of anger, see Robert Eli Rosen, A Few Good (and Angry) Men (and Women): Anger and the Defensive Masculinization of the Legal Profession, Paper Presented at the 1999 Law & Society Association Annual Meeting 4 (unpublished manuscript, on file at the Harvard Law School Library), which describes how lawyers have the privilege of not having to withhold their anger. "The incivility in the profession is all too often marked by anger at co-workers, support staff, and, of course, the other side. There is anger at the system. And, there is anger at clients." Id. at 5 (citation omitted).

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Mandatory interventions, such as arrest, prosecution, and reporting, treat battered women as fragile, uncooperative, mentally ill, and/or indecisive. These reactions may, in their simplest form, be manifestations of state actors' unexpressed desire to silence or to mask their feelings of guilt, rage, and shame, which their interactions with victims of abuse so easily generate. These unexpressed feelings and countertransference reactions are not without consequences; they infect the state's relationships with battered women and reduce the possibility of developing a healing dynamic that may actually result in transformation.

That state actors are likely to feel overwhelmed and helpless in the face of their interactions with survivors of intimate abuse is understandable. Battered women's stories are painful for anyone to hear. For state actors, who are not trained to anticipate their own reactions, victims' abuse histories can be threatening, even unbearable. I fear that, instead of working through their feelings in ways that facilitate [*585] their relationships with the battered women, state actors become infected by the violence they witness and inadvertently reproduce its most destructive forms. n179

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n179. These dynamics can be detected in the work of several prominent prosecutors. See, e.g., Jackson, supra note 52, at 561, 561-62 (lamenting, from the point of view of a prosecutor, the difficulties in working with victims who reject safety concerns); Wills, supra note 99, at 181-82 (describing how domestic homicides haunt prosecutors, leading them to take an aggressive stand against domestic violence crimes, regardless of the victims' desires).

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Specifically, if not interrupted, this unconscious reaction can lead state actors to feel grandiose or omnipotent. One commentator has described this phenomenon in a clinical setting: "To usurp such a Godlike role is not only outside the authorized function of the psychiatric expert, but, in fact, is an acting out of a countertransference which will be detrimental to the doctor's function and health. Yet, the impulse to play God is as ubiquitous as it is pathogenic." n180

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n180. Dorsey, supra note 155, at 142.

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This assumed omnipotence permeates mandatory intervention policies. For example, despite the evidence that mandatory arrest may endanger the lives of some survivors of intimate abuse, particularly African-American women, law enforcement officials aggressively pursue this approach. n181 The state acts as the "omnipotent savior" by taking the decision out of the survivor's hands. Unconscious of their "impulse to play God," state actors usurp the battered woman's decisionmaking and inflict new injuries on the victim: state-inflicted violence coupled with a failed attempt at recovery.

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n181. See Sherman et al., supra note 36, at 160-63.

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Yael Danieli describes the ways in which therapists may come to fear, or even dread, the patient. n182 According to Judith Herman, such feelings sometimes mimic the ways battered women relate to their abusers. n183 Predictably, these dynamics replicate the victim's often unrelenting experience of violence and may evoke a transference reaction in which the patient becomes alienated from the healing process. Public officials and state actors who support mandatory interventions may be attempting to control the battered woman's confusion and frustration, and may even be attempting to reduce the unpredictability of her reaction to the trauma she is experiencing and of the state's response to her reaction. I believe that the overwhelming feelings that battered women's advocates have experienced have led them to legislate policy changes rather than to reflect on how their guilt and rage manifest themselves in negative reactions to, and, in turn, treatment of, battered women. Part III of this commentary reveals the ways that these policy solutions specifically replicate the very violence the state seeks to eradicate, reenforcing the battered woman's unrelenting belief [*586] that she should expect abuse whether or not she leaves the battering relationship. n184

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n182. See Danieli, supra note 136, at 219, 229-30.

n183. See Herman, supra note 9, at 140-47.

n184. See infra pp. 586-95.

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From the standpoint of law enforcement, mandatory responses seem both appropriate and necessary, especially given the trauma the battering has caused, and may still cause, the survivor. However, from a clinical perspective, premature intervention without the victim's consent only trumps her expression of will and robs her of an important opportunity to heal. The next part explores in more detail the manifestations of this state violence and shows the distinct parallel between the state's violence and the batterer's abuse.

III. A Schematic of State Violence

A. Typologies of Emotional Abuse

To crystallize the emotionally abusive dynamics of mandatory domestic violence policies, I have adapted a schematic of typologies from a work on the psychological maltreatment of children. n185 In this section, I present eight subtypes of emotional abuse (Table I) and describe examples of these dynamics. It is important to note that while these subtypes appear discrete and distinct, they are actually fluid. In other words, emotional abuse is not always confined to one particular category; rather, individual examples may easily fall within several subtypes. Together with my critique of the ways state representatives relate to victims in clinical terms, this section maps the ways in which public officials have inadvertently created a destructive, even abusive dynamic with the battered woman. n186

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n185. I draw the schematic from Ola W. Barnett, Cindy L. Miller-Perrin & Robin D. Perrin, Family Violence Across the Lifespan: An Introduction 123, tbl. 5.4 (1997). The authors developed a similar table to document the subtypes of psychological maltreatment of children that reflect the literature in the field. For the definitive piece on psychological abuse of children, see Stuart N. Hart et al., supra note 8. Table I, as I have revised it, reflects the psychological maltreatment or emotional abuse of battered women.

n186. It is worth noting that these abusive dynamics were all too evident in the ways the state addressed (or more accurately, did not address) domestic violence before mandatory policies were implemented. Despite this dramatic shift in approach, the underlying dynamics remain abusive. It is also important to remember that these dynamics are documented in administrative contexts, such as distribution of welfare benefits. See, e.g., Michael Lipsky, Street-Level Bureaucracy 107-08 (1980) (arguing that front-line workers discriminate in favor of the clients "most likely to succeed" and against the more difficult members of welfare populations); Evelyn Z. Brodkin, Inside the Welfare Contract: Discretion and Accountability in State Welfare Administration, 71 Soc. Serv. Rev. 1, 3 (1997) (pointing to the "decades of welfare history" during which "caseworkers often used discretion to distribute benefits according to their own, biased evaluations of social worth").

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[*587] TYPE EXAMPLES

1. Rejection *Criticizing, punishing, or judging the woman.

*Refusing to help the woman.

*Routinely rejecting the woman's opinion.

2. Degradation *Verbally abusing the woman.

*Publicly humiliating the woman.

3. Terrorization *Threatening to harm the woman.

*Threatening to harm the woman's loved ones.

*Punishing the woman by playing on her fears.

*Setting unrealistic expectations with threat of loss and harm if they are not met.

4.Social Isolation*Preventing the woman from engaging in normal social activities or other interactions with individuals.

5. Missocialization*Corrupting the woman by encouraging her to engage in criminal or delinquent behavior.

6. Exploitation*Using the woman to support the abuser and the abusive lifestyle.

7. Emotional Unresponsiveness*Showing detachment and lack of involvement with the woman.

*Interacting with the woman only if absolutely necessary.

*Failing to express affection, caring, and love toward the woman.

8. Close Confinement*Restricting the woman's movement.

*Imprisoning the woman.

Table I. Subtypes of Emotional Abuse: Intimate and State Violence

1. Rejection. - Rejection by the batterer often takes the form of singling the woman out for criticism, punishment, or judgment. He may criticize her cooking during a dinner party, or he may punish her for failing to clean the house in the manner he expects. He may routinely reject what the battered woman thinks and may punish her by threatening to harm her if she attempts to assert her opinion or to argue with him.

[*588] Rejecting behavior by the state also takes many forms. One recent trend is dual arrest, which occurs when a police officer who responds to a domestic violence call arrests both the abuser and the victim. n187 Police officers tend to use this strategy when they fail to identify the "primary aggressor" in an incident of domestic violence. n188 Some women fight back when confronted with violence; others injure their partners while defending themselves. n189 In some cases, the woman herself may even be the aggressor. In any case, the police officer arrives to find both parties with battle scars. n190

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n187. In the Washington, D.C., metropolitan area, dual arrest is part of a general trend toward arresting more women for assault in incidents of domestic violence. Between 1991 and 1994, the number of women charged with assault in the District of Columbia doubled to 1711; in the same period, charges brought against men increased by less than half to 6211. See Zorza & Woods, supra note 33, at 16-20 (finding high rates of dual arrest following implementation of mandatory arrest policies); Leef Smith, Increasingly, Abuse Shows Female Side: More Women Accused of Domestic Violence, Wash. Post, Nov. 18, 1996, at B1; see also Margaret E. Martin, Double Your Trouble: Dual Arrest in Family Violence, 12 J. Fam. Violence 139, 150 (1997) (finding that dual arrest often involves women who have been previously victimized in a domestic violence incident). But see Lyon, supra note 79, at 292-93 (finding higher rates of arrests of female victims when police had visited the location before, but lower arrest rates when there was a prior history of abuse).

n188. Some legislatures have addressed the issue of dual arrest by requiring officers to arrest only the "primary physical aggressor." See, e.g., Cal. Penal Code 13701 (West 1999); Iowa Code Ann. 236.12.3 (West 1994); R.I. Gen. Laws 12-29-3(c)(2) (1994); Wis. Stat. Ann. 968.075(3)1.b (West 1998). Some advocates believe that primary aggressor statutes address the shortcomings in the mandatory arrest law. See, e.g., Hoctor, supra note 66, at 683-86.

n189. Lisa Harrison and Cynthia Esqueda offer an illuminating account of the responses of white versus African-American women to domestic violence, in which they argue that "domestic violence victims that deviate from the expectancy of a passive, helpless White victim may not be perceived as victims, but as contributors to a cycle of violence." Lisa A. Harrison & Cynthia Willis Esqueda, Myths and Stereotypes of Actors Involved in Domestic Violence: Implications for Domestic Violence Culpability Attributions, 4 Aggression & Violent Behav. 129, 134 (1999); see also Jan E. Stets & Murray A. Straus, Gender Differences in Reporting Marital Violence and Its Medical and Psychological Consequences, in Physical Violence in American Families: Risk Factors and Adaptations to Violence in 8,145 Families 151, 161-65 (Murray A. Straus & Richard J. Gelles eds., 1990) (documenting that women are more severely injured by the violence of men, but use violence more often than men).

n190. See John Johnson, A New Side to Domestic Violence: Arrests of Women Have Risen Sharply Since Passage of Tougher Laws. Critics Say Some Men Manipulate the System; Others Say Female Abusers Have Long Been Overlooked, L.A. Times, Apr. 27, 1996, at A01.

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Dual arrest is a direct response to mandatory arrest policies, which compel law enforcement to hold someone responsible for the violence. n191 As a form of rejection, dual arrest effectively blames the victim, holding her equally responsible for the abuse. Los Angeles statistics may indicate a national trend. In 1987, 340 women and 4540 men [*589] were arrested for domestic violence. n192 By 1995, these figures had risen to 1262 women and 7513 men. n193 As mandatory arrest policies became the practice of choice, three times as many women were arrested, compared to less than twice as many men.

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n191. Andrea D. Lyon, who has studied the problem of dual arrest, concludes that a mandatory arrest policy may make the police feel "that they are not trusted to determine when an arrest should be made," whereupon "they will inevitably become resentful and may end up 'retaliating' by arresting a battered woman who returns to her batterer and once again needs help." Lyon, supra note 79, at 298.

n192. See Johnson, supra note 190, at A01.

n193. See id.

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Another form of rejecting behavior by the state occurs when state actors routinely discount or ignore the battered woman's opinion. Mandatory prosecution policies have encouraged prosecutors to use strategies that disregard the victim's desires and that reject her opinion about how the case should be pursued. n194 Indeed, as Gael Strack, an Assistant City Attorney in San Diego, explains: "The San Diego track record for winning domestic assault cases has been so good, prosecutors now prefer that the victim not testify.... If you leave it up to the victim ...you might as well ask the defendant: 'Should we prosecute you?'" n195 Such comments suggest that at least some prosecutors choose to ignore victims' preferences as a matter of policy, assuming that survivors cannot be trusted to make appropriate decisions regarding their situations.

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n194. See Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 Fordham L. Rev. 853, 876 (1994); Hanna, supra note 3, at 1860-63; Heisler, supra note 52, at 563-65; Jackson, supra note 52, at 561-62; see also Hoyle, supra note 24, at 216; Bettina Boxall & Frederick M. Muir, Prosecutors Taking Harder Line Toward Spouse Abuse, L.A. Times, July 11, 1994, at A1.

n195. Jane Armstrong et al., supra note 52, at C1.

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These dynamics with prosecutors and police officers are not unlike those that the battered woman experiences with the batterer. In both cases, the battered woman is "rejected" for her preferences or opinions and/or is blamed for the violence inflicted on her. Clinically speaking, the result can be devastating. The battered woman's interaction with state actors reinforces her negative self-image as she further internalizes the blame for the abuse she endures.

2. Degradation. - This form of emotional abuse manifests itself when the batterer publicly humiliates the battered woman, such as when he calls her "stupid" in front of her co-workers or "ugly" in front of her friends or family. Degradation might also occur when the batterer criticizes her parenting skills to their child's teacher or argues with her in public about a private matter.

Similarly, prosecutors degrade the battered woman when they subpoena her to attend the batterer's trial and force her to testify against her will. n196 As previously noted, thirty-three percent of prosecutors [*590] who employ mandatory prosecution policies claim that over fifty-five percent of their domestic violence cases involve "uncooperative" victims. n197 An uncooperative victim is one who either refuses to testify or recants. n198 Victims who recant deny that the abuse occurred or assume responsibility for their own injuries, usually claiming that they accidentally hurt themselves. Donna Wills, Head Deputy of the Family Violence Division of the Los Angeles District Attorney's Office, claims that ninety percent of domestic violence victims in Los Angeles recant at the time of trial. n199 Wills also asserts that when battered women recant, the prosecutor is more likely to convict the batterer. Under these circumstances, the prosecution relies on expert testimony to explain why the battered woman has "changed her story." Experts testify that it is typical for battered women to deny that the abuse occurred or to recant. The prosecutor's success depends on convincing the jury that the expert, rather than the battered woman, is the more reliable source of testimony. n200 Thus, the state's degradation of the victim is twofold: first, in forcing her to testify, and second, in publicly questioning the truth of her testimony.

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n196. The issuance of subpoenas has always been a concern in domestic violence cases. Many victim advocates worry that subpoenas revictimize the victims, but most ultimately agree that the benefits outweigh the costs associated with their use. See, e.g., Mary E. Asmus, Tineke Ritmeester & Ellen L. Pence, Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive Relationships, 15 Hamline L. Rev. 115, 135-37 (1991); Hanna, supra note 3, at 1865.

n197. See Rebovich, supra note 97, at 179.

n198. See, e.g., Asmus et al., supra note 196, at 130-31; Hart, supra note 74, at 627-28 (arguing that women typically terminate prosecution for reasons other than reconciliation). See generally Antonia Cretney & Gwynn Davis, Prosecuting Domestic Assault: Victims Failing Courts, or Courts Failing Victims?, 36 Howard J. 146 (1997) (finding that police and prosecutors in England provide little encouragement to victims to pursue prosecution, which may explain high rates of victim noncooperation and withdrawal).

n199. See Donna Wills, Head Deputy, Family Violence Division of the Los Angeles County District Attorney's Office, Class Presentation, Social Advocacy and Domestic Violence, at UCLA School of Law (Jan. 24, 1996) (on file with the Harvard Law School Library).

n200. Gena L. Durham worries that the tension created between prosecutor and victim when testimony is compelled reinforces "negative assumptions and attitudes that society holds regarding the crime.... Simply by treating the victim as a 'hostile witness' the prosecutor tends to add to the notion that domestic violence victims are not to be believed, that they are somehow to blame for their problem." Durham, supra note 64, at 653.

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This practice of subpoenaing a recanting witness not only degrades the survivor by humiliating her in court, but may also endanger her. According to David Ford and Jean Regoli, who studied prosecution patterns, battered women who have the choice to prosecute and decide not to, are at the greatest risk for further abuse. n201 Extending these study findings to the recanting victim, the reluctant survivor-witness expresses her choice not to prosecute by changing her story or denying it, and therefore may be placed in a similarly dangerous position to that of the battered woman who chooses not to prosecute at all. n202

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n201. See Ford & Regoli, supra note 51, at 201.

n202. Barbara Hart has written an excellent discussion of the importance of prosecutor sensitivity to the unique needs of victims of domestic violence. See Hart, supra note 74, at 633-34.

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[*591]

3. Terrorization. - Terrorizing occurs when the batterer causes the battered woman to be afraid or anxious. Terrorizing often takes the form of threats to abuse the battered woman if she does not comply with the batterer's commands.

Subpoenas issued by state actors may have a similar terrorizing effect. Donald Rebovich found that ninety-two percent of the prosecutors he studied reported that they always subpoena the battered woman to testify. n203 Mandatory prosecution advocates support this kind of coercive state action. Cheryl Hanna, for instance, argues that "prosecutors must be willing...to mandate participation, including having women picked up by police officers and brought to court if they refuse to appear." n204 She claims that without such an unequivocal response, the state's action in domestic violence cases would be "unacceptably undermined." n205 Insofar as the state threatens to imprison the battered woman in the same way that the batterer threatens to punish her, however, this form of government-sanctioned terrorizing mimics her abusive dynamic with the batterer.

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n203. See Rebovich, supra note 97, at 186.

n204. Hanna, supra note 3, at 1892.

n205. Id.

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Forcing a battered woman to testify by subpoenaing her may also generate such fear in her that she feels compelled to lie about her injuries or deny the abuse under oath. In these circumstances, the state inadvertently compels the battered woman to choose between the batterer's terrifying anger and the state's equally terrifying threats. Even Cheryl Hanna recognizes that "fear and mistrust of the criminal justice system may be even greater than her fear of the batterer." n206

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n206. Id. at 1884.

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4. Social Isolation. - A common form of emotional abuse in battering relationships, social isolation occurs when the batterer discourages the battered woman from pursuing social activities. The batterer may accomplish this by physically preventing her from visiting friends or family or from attending office parties or other work-related engagements, by degrading the battered woman in public so that she would rather avoid embarrassing contact with friends or family, or by terrorizing her so that she is unable to visit others socially without the threat of harm.

The state also can isolate the battered woman. A striking example of isolating state action is the government's distribution of funds to support victims of crimes. Victim compensation benefits are available to cover expenses for individual or group therapy and lost wages, but, unfortunately, they are not available to all victims of violent crimes; only survivors who report the crime promptly and otherwise cooperate [*592] with police and prosecutors are eligible for compensation. n207 Although this restriction applies to the victim of any crime, it is especially problematic in domestic violence cases, in which the victim's intimate connection to the perpetrator renders it more difficult for her to testify against him.

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n207. See Victims of Crime Act 1403, 42 U.S.C. 10602 (1994). But see 1997 Office of Victims of Crimes Program Guidelines for Compensation, 62 Fed. Reg. 31 (1997) (recognizing that some victims may have difficulty meeting the reporting and cooperation requirements because they fear reprisal or are suspicious of police officers' reactions to them and suggesting that state programs should determine the extent of the victim cooperation requirement).

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By making these funds contingent on a victim's testifying, the state conditions its assistance in a way that often leads to further social isolation. The state contributes to the battered woman's alienation by unreasonably conditioning access to services that would, in turn, allow her to engage in a social network of helping professionals who would encourage her to reconnect socially. Like the batterer, the state rejects the battered woman for her refusal to comply with its conditions and thereby isolates her in ways that mimic the battering relationship.

5. Missocialization. - Missocialization in the battering relationship occurs when the batterer coerces the battered woman to become involved in antisocial behavior or illegal activities. Batterers often force battered women to commit crimes for them, n208 such as buying drugs, committing burglary, or engaging in prostitution for the batterer's financial gain. Indeed, some battered women have actually used Battered Woman's Syndrome to explain their participation in criminal behavior. n209

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n208. See, e.g., State v. Williams, 937 P.2d 1052, 1058 (Wash. 1997) (en banc) (acknowledging the possibility that a woman charged with welfare fraud had been coerced by an abuser into accepting excess public benefits); State v. Lambert, 312 S.E.2d 31, 34-35 (W. Va. 1984) (same); Meredith Blake, Coerced into Crime: The Application of Battered Woman Syndrome to the Defense of Duress, 9 Wis. Women's L.J. 67, 68 (1994).

n209. See, e.g., Williams, 937 P.2d at 1058; Lambert, 312 S.E.2d. at 34-35; Blake, supra note 208, at 87-90.

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The state may also missocialize the battered woman. Many of the situations described thus far suggest the possibility or even probability that forcing the battered woman to testify against the batterer may inadvertently cause her to realign with him rather than face the state's violence. n210 By officially forcing her to accept the batterer's version of the relationship, however, state actors have unwittingly induced the battered woman to support the criminal act of battery. Aiding and abetting a criminal by lying on the stand is also an illegal activity, and it is an activity that state policies promote when they try to force a battered woman to act against her best interests. While compelling a [*593] witness to testify is generally not an invitation to perjury, it may be interpreted as such in domestic violence cases. In many cases, prosecutors force battered women to testify even when the prosecutors know the battered women will lie. n211 As a result of such pressure, the battered woman is often forced into this state-induced missocialization.

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n210. See, e.g., Buzawa & Buzawa, supra note 44, at 163 (describing a study in Detroit indicating that some battered women had stopped calling the police following the implementation of an aggressive arrest policy that ignored victim choice).

n211. See Wills, supra note 199, at 3 (arguing that the recanting witness is often the most reliable one insofar as she displays "typical" features of what has elsewhere been described as Battered Woman's Syndrome). A recent example of this strategy can be found in the prosecution of ex-football player Jim Brown. See, e.g., Monte Morin, Jim Brown's Wife Testifies That She Lied About Abuse, L.A. Times, Sept. 2, 1999, at B1.

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6. Exploitation. - Exploitation occurs in the battering relationship when the abuser uses the battered woman to support his lifestyle. Like missocialization, exploitation is often a means by which a batterer coerces his partner into criminal activity. Exploitation may be as simple as the batterer's forcing his partner to cook every meal or wash every dish, but it may involve serious exploitation of her body, such as when the batterer coerces his partner into prostitution.

The state replicates a batterer's exploiting behavior when it "uses" individual battered women to send a strong message to all batterers. As discussed in detail in section I.D.1., n212 many advocates and practitioners in the domestic violence arena continue to believe that aggressive arrest and prosecution policies deter batterers. Cheryl Hanna and other supporters of these policies believe that "we should choose the solution that best promotes long-term equality for women given the current stage of women's progress and our ideal concept of gender." n213 Ironically, however, one-dimensional policies often exploit the individual battered woman whose desires and interests diverge, for one reason or another, from the state's newly realized gender consciousness. n214 In my view, individual survivors should not be exploited - even for the laudable goal of eliminating gender oppression - especially when those survivors are likely to be women of color and, more often than not, exploited in other contexts by the white male and female majorities. n215 Exploitation of any woman, whether it is by abusive men via violence who seek to meet their own needs or by feminists via state policy who seek to meet the needs of all women, is a form of emotional abuse and should be avoided.

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n212. See supra pp. 563-65.

n213. Hanna, supra note 3, at 1886.

n214. There is no one, unified feminist position on domestic violence or on mandatory interventions and yet feminists who favor these approaches seem to suggest that the proper feminist political position is to support mandatory arrest, prosecution, and reporting. See, e.g., id. at 1892 (concluding that prosecutors should mandate victim participation in domestic violence cases). See generally Current Controversies on Family Violence, supra note 64 (discussing a variety of competing psychological, sociological, and feminist perspectives on domestic violence).

n215. See supra pp. 565-67.

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[*594]

7. Emotional Unresponsiveness. - A common dynamic in an abusive relationship, emotional unresponsiveness can be detected in the batterer's detachment from his partner or in his ignoring her. It is often an act of omission as opposed to commission; for example, the batterer may only interact with his partner when it is absolutely necessary, or he may fail to express affection, care, and love when his partner needs or asks for that kind of attention.

In the era of mandatory interventions, one of the most striking features of the dynamic between state actors and battered women is the state actors' emotional detachment. The police are required to ignore the battered woman's desires and to arrest the batterer regardless of her wishes, prosecutors are encouraged to craft their arguments and to gather evidence without the battered woman's input, and, as described in the introduction to this commentary, physicians are required to ignore a battered woman's request for confidentiality. In these situations, state actors emotionally detach from the battered woman and fail to respond to her emotional (and clinical) need to reconnect with people in healthy ways that promote her recovery.

8. Close Confinement. - Close confinement is another form of emotional abuse common to violent relationships. As opposed to restricting her social interactions, close confinement refers to a batterer's restricting of his partner's physical mobility. Batterers restrict their partners' movement through a variety of coercive means. In an extreme situation, he might confine her to a closet or room, or even make her hang by handcuffs from a metal bar. n216 More commonly, a batterer hides his partner's car keys or otherwise disables her vehicle.

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n216. This example comes from the Joel B. Steinberg case. See Ronald Sullivan, Stifling Tears, Nussbaum Recounts Lisa's Last Days, N.Y. Times, Dec. 2, 1988, at B1.

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Close confinement is a form of imprisonment. Dual arrest, in which the state arrests the battered woman, is a form of close confinement. Prosecutors also become dangerously close to imprisoning a battered woman when they subpoena her to testify against her will in court. Once a battered woman is served with a subpoena, she is threatened with jail time if she fails to appear. Even if the witness is never jailed, her mobility is restricted by a subpoena. In the case of the battered woman, the prosecutor's subpoena can prevent her from mobilizing to protect herself and her children. Insofar as subpoenaing a battered woman against her will prohibits her from taking steps to protect herself, state action replicates the close confinement of a batterer and reinforces an abusive dynamic tinged with the threat of physical violence.

[*595]

B. State Officials as Abusers

From the accumulated evidence, a dynamic between the state and the battered woman emerges that distinctly mimics the violent dynamic in the battering relationship. Three correlative themes are the most problematic. First, mandatory interventions reinforce the battered woman's psychic injury and encourage feelings of guilt, low self-esteem, and dependency. Mandatory interventions are predicated on the assumption that state actors are incapable of distinguishing between battered women who are truly suffering from "learned helplessness" and battered women who are capable of making reasoned decisions about which healing strategies to pursue. n217 As we have seen, this disinterest, or even laziness, on the part of the state in developing a person-by-person approach to domestic violence intervention causes the state to replicate unwittingly the behavior of the batterer in some cases.

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n217. The term "learned helplessness" was first coined by Lenore Walker in Battered Women and Learned Helplessness, 2 Victimology 525, 526 (1977). Josh R. Gerow defines "learned helplessness" as a "condition in which a subject does not attempt to escape from a painful or noxious situation after learning in a previous, similar situation that escape is not possible." Josh R. Gerow, Psychology: An Introduction 193 (2d ed. 1989).

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Second, mandatory interventions may have the ironic effect of realigning the battered woman with the batterer. Some studies suggest and numerous authors have surmised that when the battered woman has a negative interaction with the state, she is less likely to rely on governmental assistance in the future. n218 Indeed, some have argued, as I am arguing, that if a battered woman is given the choice between abuse by the batterer, which is familiar, and abuse by state actors, which is unfamiliar, she is likely to choose the abuse she knows best. n219

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n218. See, e.g., Cynthia Grant Bowman, The Arrest Experiments: A Feminist Critique, 83 J. Crim. L. & Criminology 201, 204 (1992); Kathleen J. Ferraro & Lucille Pope, Irreconcilable Differences: Battered Women, Police, and the Law, in Legal Responses to Wife Assault: Current Trends and Evaluation 96, 119 (N. Zoe Hilton ed., 1993); Christine Littleton, Women's Experience and the Problem of Transition, in Family Matters: Readings on Family Lives and the Law 261 (Martha Minow ed., 1993).

n219. See Hanna, supra note 3, at 1884; supra p. 590.

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Finally, mandatory interventions deny the battered woman an important opportunity to partner with the state to help ensure her future safety. The Ford and Regoli study, n220 along with the clinical literature discussed in Part II, clearly indicates the importance of developing new methods for encouraging battered women to engage with state actors [*596] in the development of tailored and strategic responses to the women's situations that reflect their and their children's best interests. Part IV explores these methods more fully.

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n220. See Ford & Regoli, supra note 81, at 150-60. The Minneapolis study similarly supports the position that battered women experience less violence when they partner with the state in positive ways. In Minneapolis, the researchers found that when battered women felt heard by law enforcement officers, the recidivism rate of their batterers decreased significantly. See Lawrence W. Sherman & Richard A. Berk, The Minneapolis Domestic Violence Experiment, 1 Police Found. Rep. 1, 6 (1984).

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IV. Survivor-Centered Model

I have previously argued that law enforcement agents and prosecutors would benefit from adopting a clinical or affective posture when relating to victims of domestic violence. n221 In The Heart of Intimate Abuse, n222 I present a model of Affective Advocacy for practitioners, including lawyers, nurses, physicians, and social workers, who work with battered women. The book presents case vignettes and examples of dialogue to help professionals relate to victims when time and other pressures make such interactions difficult. The Survivor-Centered Model I propose here supplements the Affective Advocacy Model in emphasizing the importance of engaging the battered woman in ways that do not replicate the violence of the battering relationship. This relational response to domestic violence is grounded in evidence that each battered woman faces an individualized problem: a subjective, emotional, and existential crisis that is not conducive to a formulaic response. n223 Given that survivors of domestic violence are generally reluctant to ask for help, n224 professionals should be trained to respond in affective or clinical ways that engage the battered woman when she does seek assistance and that foster her healing process and promote her safety.

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n221. See, e.g., Linda G. Mills, Intuition and Insight: A New Job Description for the Battered Woman's Prosecutor and Other More Modest Proposals, 7 UCLA Women's L.J. 183 (1997); see also Judith S. Gordon, Community Services for Abused Women: A Review of Perceived Usefulness and Efficacy, 11 J. Fam. Violence 315, 315 (1996) (demonstrating that abused women find police officers, lawyers, and clergy "not helpful" in addressing most types of abuse).

n222. Mills, Heart of Intimate Abuse, supra note 24.

n223. For a description of these distinct conditions, see Erez & Belknap, supra note 92, at 260-62; see also Mary Ann Dutton, supra note 103, at 105-24 (describing the importance of tailoring the response to a battered women to the particular context); cf. Danieli, supra note 136, at 236 (describing the distinct differences among Holocaust survivors and the need to recognize their heterogeneous responses, especially when tailoring interventions).

n224. See Herman, supra note 9, at 134.

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Assuming that the state inadvertently responds to domestic violence in an emotionally abusive way, we must rethink the dynamics of the relationship between the battered woman and the state and develop an alternative paradigm for the state's response. Ibegin by presenting the elements of the Survivor-Centered Model in order to elucidate the reasoning behind this approach. Given the propensity of battered women's advocates and domestic violence policymakers to react rather than respond, as described in section II.C., n225 it is important [*597] that we adopt a posture that recognizes state actors' tendencies to conspire by silence and to countertransfer their own feelings of guilt, rage, shame, or blame onto their relationships with battered women.

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n225. See supra pp. 582-86.

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A. Elements of a Survivor-Centered Model

To counteract the destructive dynamics of the current relationship between the state and battered women described in sections II and III, I have developed a Survivor-Centered Model of state response to domestic violence. This approach assumes that the victim of domestic violence is searching for a path toward healing, that state actors should help facilitate her psychological health as well as her physical safety, and that the victim of domestic violence is in the best position to dictate the terms of her healing. In opposition to the current destructive dynamics of the state's relationship with the battered woman, I present a framework for reversing the destructive typologies of emotional abuse described earlier. I describe eight subcategories of the Survivor-Centered Model and analyze how each element can encourage state actors to relate in healthier ways toward battered women. For each destructive dynamic listed in Table I, n226 the Survivor-Centered Model offers its antithesis -- a healthy dynamic designed to counteract, rather than to replicate and perpetuate, the victim's relationship with her batterer. As was true of the Typologies of Emotional Abuse, the elements of the Survivor-Centered Model are not discrete categories. Thus, while each element of this approach is unique, the elements also overlap with one another to form a synthesized response to the battered woman's particular needs.

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n226. See supra p. 587.

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Many of the recommendations of the Survivor-Centered Model rely on the ability of police officers or prosecutors to perform clinically sensitive interviews and to develop survivor-centered strategies and plans. Training is therefore necessary both to improve how state actors relate to victims and to assess the capacity of these state actors to perform services. If it is revealed that police officers and prosecutors or even their designated representatives such as victim assistance support staff (who work in close proximity to law enforcement personnel) are incapable of providing these services, then it might be necessary to restructure the system more radically so that it directly involves trained clinicians.

1. Acceptance. -

The element of acceptance is designed to counteract the rejection that all too often permeates the abusive dynamic. If the state genuinely seeks to eradicate domestic violence, as it purports, it is critically important that state actors learn to accept the battered woman "as she is." Learning more about her specific emotional [*598] and physical needs can help state actors identify how she might find a healing path. n227 The state can respond appropriately to a battered woman only if its actors understand why she remains attached to the batterer and hence may be reluctant to involve the state in her affairs.

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n227. For a thorough discussion of these issues, see the Heart of Intimate Abuse model outlined in Mills, Heart of Intimate Abuse, supra note 24, at 34-38.

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State intervention should begin with some understanding and acceptance of the emotional connections the battered woman has to the batterer. For example, she may love him during the periods when he is not violent, or she may love him because he is the father of her children. Allowing the battered woman to describe any positive emotional connections to the batterer enables her to begin the process of detaching from or reflecting critically on the relationship. n228 Forcing her to repress these positive dimensions sends them underground only temporarily. When the positive feelings inevitably reemerge, the battered woman may return to the abusive relationship in search of the positive moments she remembers. n229 Understanding and accepting the emotional bonds at stake also require the state actor to allow the survivor to express her grief. n230 Battered women are rarely given space to share their sadness at losing their relationship, as it is difficult to sympathize with the loss of a violent partner.

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n228. See, e.g., Linda G. Mills, Integrating Domestic Violence Assessment into Child Protective Services Intervention: Policy and Practice Implications, in Battered Women and Their Families: Intervention Strategies and Treatment Programs 129, 139-43 (Albert R. Roberts ed., 2d ed. 1998).

n229. For a similar argument, see Domestic Violence, supra note 44, at 89.

n230. See Gondolf, supra note 23, at 83, 100.

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The act of acceptance also involves realizing the possibility that the battered woman will need to return to the violent relationship in the hope that this time the relationship will improve. As I elucidated in Part II, this is a natural reaction to the abuse she has endured. Staying connected to the battered woman, even after she returns to the abuse, is critical to supporting the long-term healing process and will help her realize that the violence is likely to persist, regardless of her efforts to repress or overcome it.

In accepting the battered woman's attachment to the relationship, it is also important to explore how religion, culture, and race affect her decision whether to support the arrest or prosecution of her partner. Analyzing these issues with the battered woman will help her work through them in ways that allow her to feel heard and respected. n231 For example, she may be willing to compromise her physical safety in [*599] order to avoid being stigmatized by her church or synagogue. n232 Or she may fear that calling the police will inevitably unleash police brutality on the father of her child. n233 Ascertaining the relevance of these critical issues to her decisionmaking is likely to illuminate why her seemingly illogical and unsafe behavior makes sense. A state actor must also ask the battered woman whether she is economically dependent on the batterer, both to understand her decision better and to formulate a response that alleviates rather than exacerbates such dependence. n234 The process of acceptance also involves affirming the battered woman's strength. n235 Frequently, a battered woman's commitment to a relationship is evidence of her resilience. n236 Recognizing and acknowledging this strength helps the battered woman affirm her capacity to resist the pull of the violent relationship.

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n231. These issues are more fully captured by the Heart of Intimate Abuse model. See Mills, Heart Of Intimate Abuse, supra note 24, at 21-31.

n232. See, e.g., Beverly Horsburgh, Lifting the Veil of Secrecy: Domestic Violence in the Jewish Community, 18 Harv. Women's L.J. 171, 203-211 (1995) (describing pressure from religious communities to preserve familial units at all costs).

n233. See, e.g., Shirley Traylor, Remarks at the First Annual Gender, Sexuality, and the Law Symposium, Georgetown University Law Center Violence and State Accountability Conference 5 (Feb. 20-21, 1998) (transcript on file at the Harvard Law School Library) (describing police brutality in the African-American community and its effect on battered women's views of police helpfulness and the personal costs of police involvement).

n234. See, e.g., Liane V. Davis & Jan L. Hagen, The Problem of Wife Abuse: The Interrelationship of Social Policy and Social Work Practice, 37 Soc. Work 15, 16-17 (1992) (describing battered women's financial dependence on their batterers).

n235. For an excellent review of the "strengths" literature, see Gondolf, supra note 23, at 95-109.

n236. See, e.g., Baker, supra note 175, at 56-57 (arguing that battered women exercise active agency in choosing their responses to battering relationships); see also Michael J. Strube, The Decision to Leave an Abusive Relationship, in Coping with Family Violence, supra note 58, at 93, 98-104 (reviewing studies that assert that battered women have difficulty leaving when they are committed to making the relationship last).

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Keeping these principles in mind, several practical strategies are available to counteract the rejection that accompanies contemporary state practice. For example, police officers should be trained to understand the dynamics of abuse, particularly why a woman may call the police but refuse to follow through with prosecution. The police officer should view each contact as an opportunity to reinforce healthy patterns of relating: the officer listens to the woman, respects her emotional, financial, and psychological ties to the abuser, and only then counsels her on the dangers the abuser poses and the opportunities to escape that the state can offer her. If the battered woman feels heard and supported, the contact can represent a beginning point on her path toward healing. Forging and maintaining this connection between the state and the victim throughout the process that I outline, should prevent the dual arrest problem I describe in Part III.

Police officers and prosecutors should be aware that a battered woman may not extricate herself from the violent relationship until a [*600] strong pattern of abuse has been established. Given this reality, state actors should work to establish a process individually tailored to the specific issues each battered woman is addressing. For example, if the woman believes that she will be ostracized from her ethnic community should the violence be exposed, the police officer or prosecutor might develop a plan with the victim that both ensures her safety and provides resources for working through her specific issues. In another instance, if the abuser is a "respected" community leader, the police officer or prosecutor might work with the battered woman to develop a long-range strategy for leaving. If it is financial support the battered woman needs, the police officer or prosecutor should provide assistance in obtaining that support through referrals to governmental agencies or divorce lawyers. These strategies are specifically designed to counteract the rejection that has become endemic to the current system; they develop potential solutions in the context of the woman's needs and wishes. Rather than being rejected for her preferred response or blamed for the violence, the woman sees her wishes honored and accepted as a beginning point for developing realistic plans for addressing the violence and her other concerns.

2. Respect. - A respectful response to a battered woman is meant to counteract the destructive dynamic of "degradation." State actors can foster a respectful dynamic by a number of means. As a first line of response, the survivor and either the police officers or, preferably, specially trained domestic violence advocates should realistically assess the situation, especially the threat of escalating violence, using the risk assessment tools that are available. n237 Together, they should decide on a strategy that responds to her complex and sometimes conflicting concerns. Police officers and prosecutors should start from the position that they are not perfect protectors, but that some empirical evidence shows that a battered woman who seeks their help is likely to be safer. n238 Building on methods that the battered woman already employs to protect herself and her children should help her to realize that she has strengths - strengths that can be marshaled to maintain her safety and integrity in the future.

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n237. For a discussion of the issues related to risk assessment of domestic violence, see Mills, supra note 228, at 139-43, 147-55; see also Gavin de Becker, The Gift of Fear: Survival Signals That Protect Us from Violence 191, 191-92, 313-14 (1997) (describing Mosaic-20, a computerized "artificial intuition system," designed by the author for law enforcement agencies, which uses details reported by a victim to assess the level of threat her batterer poses).

n238. For a discussion of the issues relating to prosecution and recidivism, compare Ford & Regoli, supra note 51, at 157-60, who argue that the safest strategy for battered women is choosing to pursue prosecution, with Sherman & Berk, supra note 220, at 6, who suggest that when the state responds to battered women's desires, these women are less likely to experience increased incidents of violence.

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[*601] Similarly, prosecutors can respect battered women by subpoenaing them only at their request. As with the element of acceptance, respecting the battered woman involves knowing her individual needs and responding to them accordingly. By providing a requested subpoena, prosecutors both respect the victims' desires and allow victims to tell their batterers that they are required to testify - and tell the truth about the abuse - or else be prosecuted for perjury. In contrast, by subpoenaing them against their will, prosecutors may make battered women recant; battered women feel compelled to tell a "version" of the events. The state can avoid encouraging battered women to testify on behalf of their batterers by strategizing with victims who have expressed interest in prosecution on how best to address their role at trial. When a battered woman is adamantly opposed to prosecuting the batterer, the trial should not occur. Prosecutors should use their interactions with a survivor to validate the strength she has exhibited, to reassure her that they are available if and when she is ready to involve the criminal justice system, and to raise awareness of the potential benefits of state involvement. Affirming that a battered woman has the internal strength to partner with the state, even if only in discourse, helps to build her confidence to act, at a pace she defines. Staying connected to the battered woman through individually tailored contacts can ensure that the system responds at the earliest possible moment that the battered woman expresses an interest in partnering with the state.

3. Reassurance. - Reassurance by state actors should help alleviate the fear and anxiety that women feel when in an abusive relationship; it should act to help the battered woman feel cared for, heard, and understood. For example, reassurance may involve planning for her safety and documenting an inventory of social support services available to her in the event of a subsequent emergency. n239 In addition, state actors should consider the possibility that arrest and prosecution may not be the safest option for a battered woman to pursue and may actually be destructive to her healing process.

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n239. See generally Mills, Heart of Intimate Abuse, supra note 24, at 128-29, 227-33 (discussing the necessity of safety planning and offering specific procedures for state officials). While many police departments and prosecutor's offices now provide a list of referrals to battered women, they do little or nothing to encourage victims who have not left their abusers to plan for their safety in the event of a future emergency, which would do more to ensure their survival.

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When police officers respond to a call, this reassurance can take many forms. According to Karla Fischer and Mary Rose, who analyzed the narratives of battered women who left abusive relationships, "Perhaps the greatest potential role for criminal justice personnel is to kick-start the intrinsic 'enough' analysis by communicating to battered women each and every time they intervene that they are willing to do [*602] everything in their power to ensure that the abuse [the women] have already endured is more than enough." n240 State actors should be flexible enough to affirm another response whenever a battered woman is unable or unwilling to pursue criminal intervention.

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n240. Karla Fischer & Mary Rose, When "Enough Is Enough": Battered Women's Decision Making Around Court Orders of Protection, 41 Crime & Delinq. 414, 428 (1995).

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Hence, a police officer could explain to the battered woman that she has a range of available options, including, but not limited to, arrest and prosecution of her batterer. Other options include counseling services for her and for the batterer. n241 The police officer might explain the benefits of state intervention; indeed, he might even explain, in simple terms, the results of the Ford and Regoli study, which suggest that when the battered woman chooses to pursue prosecution, she is in the best position to secure her safety. n242

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n241. In most cases, couples' counseling is not recommended in domestic violence cases and therefore would not be offered as an option. See Mills, The Heart of Intimate Abuse, supra note 24, at 207-09.

n242. See sources cited supra note 238.

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Similarly, prosecutors might be well served to increase the battered woman's confidence in the criminal justice system - another form of reassurance - so that when she is ready and willing to use the system, she can feel safe and comforted within it. Prosecutors can accomplish this reassurance by never subpoenaing a witness unless she requests it and by avoiding the imposition of any pressure, direct or indirect, that might cause the victim to realign with the batterer and recant. The trauma literature informs us that battered women might collude with their batterers for myriad reasons. The state should monitor its agents' response to the battered woman to ensure that state actors do not, in any way, contribute to that collusion. If it does not heed this advice, the state may find that it has further endangered the victim by alienating her from police officers and prosecutors, who are likely to be angered by her confusion. n243

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n243. The case of football legend Jim Brown raises this issue. Assuming that Monique Brown recanted her charges that her husband had abused her, she is now in the very dangerous position of having lied to police, prosecutors, and the public. See Monte Morin, Jim Brown's Wife Testifies That She Lied About Abuse, L.A. Times, Sept. 2, 1999, at B1. If she ever needs their help again, she may be terrified and humiliated to ask for it.

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4. Engagement. - The state's effort to engage the battered woman should be designed to counteract the social isolation experienced in the battering relationship. We learned in Part II that reconnection is key to the survivor's healing. n244 State actors, especially law enforcement officers and prosecutors, should reject abusive patterns of relating and counteract their own frustration with the victim's choices. The evidence strongly suggests that a battered woman is more likely to change [*603] her life if she is involved in a non-judgmental peer support group that recognizes connection, not isolation; these groups can help the battered woman make the transition away from the abuse. n245 These support groups should be based in the criminal justice system and should be organized by victims who have used the system successfully. When the battered woman sees that state actors have facilitated these positive connections, she is more likely to consider them partners interested in securing her safety and facilitating her mental health. When she sees state actors in this light, the battered woman is more likely to cooperate in other state interventions, including arrest and prosecution. n246

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n244. See supra pp. 576-78.

n245. Lee Bowker found that participation in support groups was an important and frequently cited factor in helping battered women end abusive relationships. See Lee H. Bowker, Beating Wife-Beating 123 (1983); see also Patricia Evans, The Verbally Abusive Relationship: How to Recognize It and How to Respond 148 (1992) (describing support groups as a valuable tool in recovery from the effects of verbal abuse); Richard A. Berk, Abe Campbell, Ruth Klap & Bruce Western, What a Difference a Day Makes: An Empirical Study of the Impact of Shelters for Battered Women, 48 J. Marriage & Fam. 481, 481 (1986) (highlighting an active choice to take control of one's life as integral to the success of any support group); Marjorie Holiman & Rebecca Schilit, Aftercare for Battered Women: How to Encourage the Maintenance of Change, 28 Psychotherapy 345, 347-48 (1991) (reviewing secondary literature and cases and underscoring that support groups are most successful when they foster interdependence, which makes battered women feel stronger by helping others, and emphasize cooperation and egalitarianism).

n246. See Erez & Belknap, supra note 92, at 263-64; Hart, supra note 74, at 633. Although the state may expect some degree of quid pro quo - emotional support in exchange for help with prosecution - the state should avoid manipulative behavior that mirrors the battering relationship. It is appropriate and advisable to negotiate with a battered woman a suitable process for working collaboratively. Judith Herman suggests a "therapeutic" contract. See Herman, supra note 9, at 143, 147-51.

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In addition to providing support groups, criminal justice personnel should lobby Congress and state legislatures to alter the allocation of victim compensation benefits. It should be legislated that intimate abuse crimes are different from other crimes and involve victims who have unique safety, cultural, and emotional needs. Because the battered woman's mental and physical health depend on the provision of those benefits, the battered woman must receive these benefits without strings attached. n247 As a result, battered women should not - indeed, cannot - be placed in the position of needing funds that are contingent on their providing testimony. Providing funds that help her heal by responding to her emotional needs and safety concerns will positively [*604] position the criminal justice system in the battered woman's eyes as supportive and accessible. This inviting environment is much more likely to engage the battered woman and to build trust between the state and the victim. Police officers and prosecutors can begin their relationship with the victim not by denying her benefits in an environment fraught with judgment and conditions, but by inviting her to heal through the use of these victim compensation benefits.

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n247. See, e.g., Cal. Gov't Code 13964(e) (West Supp. 1999) (providing that the state board governing the allocation of victim compensation benefits should consider why a battered woman might not be able to cooperate in a criminal investigation and prosecution). Provisions that are sympathetic to the battered woman's complex situation are helpful only if police officers, prosecutors, and victim compensation counselors are willing to make her aware that these benefits are available regardless of her cooperation. I am suggesting that legislative and attitudinal change are necessary ingredients for the process of engagement.

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5. Resocialization. - The state could also help resocialize, rather than missocialize, by countering the alienation from friends and family that battered women so often experience. n248 Resocialization involves helping the survivor to reconnect with lost social networks and to reengage in activities outside her relationship with the batterer. State actors can help accomplish this important therapeutic goal by developing criminal-justice-based family mediation programs that enable the battered woman to heal familial relationships and that allow her to tell the truth about her abuse. It is critical that any reconnection between the battered woman and her friends and family occur in a supportive, nonjudgmental environment that attempts to ensure that these reunions reinforce healing rather than abuse. n249 Family members and friends of battered women must learn more about the dynamics in violent relationships that all too often hinder women from choosing to leave the abusive relationship. When these reunions are facilitated by the criminal justice system, state actors can be seen as playing a positive, healing role in the battered woman's recovery, rather than the negative, intrusive dynamic that currently dominates the state's interactions with the victim. Developing supportive counseling programs that are specifically linked to the criminal justice system and that may be perceived by the victim as unconditional and truly responsive to her needs is critical to creating the kind of nonjudgmental environment from which a healthy dynamic between state actors and victims can emerge.

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n248. See, e.g., Merritt-Gray & Wuest, supra note 139, at 403-04.

n249. Brenda Aris, who was convicted in California for killing her batterer, has told the story of how her family rejected her for returning to her abusive husband. See Mills, Heart of Intimate Abuse, supra note 24, at 3.

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6. Empowerment. - Empowerment is the single most critical element in promoting a dynamic in which state actors let battered women direct how an intervention unfolds. Several battered women's advocates have argued that mandatory interventions, as they are currently formulated, promote "empowerment" because they free the battered woman from making the decision to arrest or prosecute the batterer. Because the police and prosecutor make the decision for her, she cannot be blamed for the batterer's arrest and prosecution. This attitude assumes that the sole reason battered women avoid pursuing arrest [*605] and prosecution is that they fear repercussions from the abuser. In Part II, however, we learned that the experience of the trauma survivor is complex and that, although the experience may indeed involve fear, it also involves ambivalence, strength, and connection. This more nuanced clinical picture suggests that strategies should begin "where the battered woman is" rather than where others "expect" her to be. Starting with her individual perspective, state actors should not assume that they know what she needs, but rather assume that she will know what she needs if she receives the opportunity to find and listen to her voice.

Thus, an empowerment strategy helps battered women to meet their specific needs and to benefit from their personal actions. This approach focuses the state's energy on each individual survivor's interests and concerns for the overall purpose of reducing violence in her particular situation. For example, it can be empowering for the battered woman to pursue her own therapeutic treatment. n250 It can also be empowering for her to make decisions about how to proceed in the criminal courts. n251 The criminal justice system's provision of support groups, unconditional victim compensation benefits, and other positive programs will help facilitate a more trusting relationship between the victim and state actors.

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n250. See Herman, supra note 9, at 133-34.

n251. See David A. Ford, Prosecution as a Victim Power Resource: A Note on Empowering Women in Violent Conjugal Relationships, 25 L. & Soc'y Rev. 313, 313 (1991) (arguing that battered women can use prosecution to exert control over their situations and to enable themselves to increase their relative power).

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7. Emotional Responsiveness. - State actors should be emotionally responsive to the battered woman to compensate for the lack of emotional support that so often harms the battered woman. Instead of withholding support from the battered woman, state actors should respond in emotionally affirmative ways that indicate their understanding of her particular circumstances. Emotional responsiveness can take many forms, including listening, affirming, and discussing her options. When the battered woman feels heard, she is much more likely to cooperate with the state and to become involved in the arrest and prosecution of the batterer. n252

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n252. See Erez & Belknap, supra note 92, at 254 (contending that successful prosecution is most likely when "victim advocates inform[] battered women of resources and services"); Ford & Regoli, supra note 81, at 153-56 (finding that batterers' recidivism decreases when battered women pursue charges, but have the option to drop).

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The most effective strategy for involving the battered woman is to listen to the reasons that she does not want to press charges or pursue [*606] a prosecution against the batterer. n253 Listening involves recognizing, as in "acceptance," that there are justifiable reasons for not proceeding with an arrest and prosecution of the batterer. For example, she may fear that her rabbi or priest will judge her for calling the police. Or she may fear his family's judgments (or threats) if she moves forward with the prosecution. Similarly, she may fear her children's anger should she decide to press charges. At the same time, she may have developed strategies for addressing the violence, such as calling the police when she needs their assistance to interrupt the abuse.

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n253. One study revealed that when the battered woman felt "heard" by state actors, the likelihood of future incidents of violence by the batterer decreased. See Sherman & Berk, supra note 220, at 6.

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Battered women need a safe environment to explore whether their strategies make sense given their particular circumstances. Police officers and prosecutors need to remember that fears other than of violence may influence how she responds to the state's intervention. The battered woman may believe that rejecting her violent partner through arrest and prosecution threatens her place in the larger community. For example, if a religious leader has threatened to ostracize her from the only community she has, she might find enduring the violence more acceptable than losing her only "family." If she is worried about pressure from a religious leader, then the police or prosecutor should attempt to understand why and to what extent she weighs that pressure against the threat of violence. This reasoning also holds true when she fears losing the batterer's family support. If she relies on his family for shelter for herself and her children, she may have decided that the violence is worth tolerating to protect them from homelessness. With respect to the children, she may fear losing them to the batterer in a custody dispute, especially if she angers them by pressing charges. Her community, extended family, and children may very well mean more to her than preventing the few violent episodes she endures. However, when state actors give her the opportunity to reflect on the trade-offs she has made to this point, she may make different choices. Police officers and prosecutors should be trained to facilitate conversations at this level, respectfully balancing her options. If the battered woman has no chance for that reflection and must place the criminal justice system above all else - especially without the opportunity for real dialogue about those choices - she is likely to resort to her possibly unexplored and familiar modus operandi. The criminal justice system should be a catalyst for reflection and process, not for further entrenchment and rigidity. Law enforcement personnel, including prosecutors, should acknowledge that the battered woman is the most reliable judge of the threat that the batterer poses. Providing [*607] this kind of emotional responsiveness is consistent with the clinical literature that suggests that involving battered women in decisionmaking helps them experience the healing that accompanies self-assertion. n254

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n254. See Herman, supra note 9, at 192 (describing the method by which a survivor can take control of her recovery by using her "undestroyed strengths" to their fullest).

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8. Liberation. - State actors can counteract the "close confinement" evident in some abusive relationships by providing the battered woman with opportunities to escape her confinement. A battered woman should, assuming state actors have employed these other survivor-centered strategies, feel safe enough to discuss openly how best to liberate herself from the violence she endures. n255 This liberation may not involve leaving the abusive relationship. The task of state actors should be to create an emotionally safe environment in which the battered woman can decide freely how she will proceed and, in particular, whether she and the state should pursue arrest and prosecution, with or without her testimony. As I discussed earlier, many battered women's advocates believe that mandatory interventions are effective because the victim asserts (to the batterer) that she has no control over whether or not the state pursues prosecution. Depending on the jurisdiction, the battered woman may or may not participate in the trial. Except in those cases in which a battered woman is deemed incapacitated, the prosecutor should either explicitly or implicitly get the survivor's blessing to move forward with the criminal case. Consent means that the state and victim would work toward a mutual understanding of how to proceed, and if necessary devise a system of covert signs: a nod, a scratch, a wink. n256

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n255. We discuss a similar issue in Linda S. Durston & Linda G. Mills, Toward a New Dynamic in Poverty Client Empowerment: The Rhetoric, Politics, and Therapeutics of Opening Statements in Social Security Disability Hearings, 8 Yale J.L. & Feminism 119 (1996). In this article, we describe the importance of the relationship between the advocate and client in the Social Security disability hearing context. We argue that "potential for substantial change and empowerment" lies in what we call "transformational dialogue":



dialogue that unfolds when we reject prevailing mythologies about clients; dialogue that arises from faith, practical wisdom, respect and sympathy. By engaging in such dialogue, representatives can help create space and provide tools for client participation that are so powerful that they outlive whatever assertion the client succeeds in making in the hearing. Such dialogue is a springboard from which clients can act as political agents not only to influence their everyday lives in interactions within the system that traditionally disempowers them, but also to take affirmative steps to influence these institutions.

Id. at 139 (footnotes omitted).

n256. Receiving the victim's blessing through a wink or other gesture acknowledges the subtext of the communication between prosecutor or police officer and victim. In this subtext, the victim communicates her approval of the state's action without in any way participating in the arrest or prosecution of the batterer.

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This approach raises a critical question: Should the battered woman, under all circumstances, direct the decisionmaking process? In certain limited situations, battered women may suffer from an identifiable [*608] mental illness that prevents them from making decisions on their own behalf. Lawyers or other advocates should not assume, however, that all battered women have such an illness. Only a trained clinician can distinguish those battered women who can navigate the healing process on their own from those who need the aid of others. The purpose of this assessment should not be to interfere with battered women's agency, or to label them as mentally ill, but rather to develop responses that respect their individual needs and interests.

To assess incapacity, clinicians would consider such issues as the severity of the battered woman's injuries (is she physically capable of making a decision?); the significance of the threat the batterer poses (does he have weapons he has shown a propensity to use?); and the presence of illness (is she suffering from Complex Post-Traumatic Stress Disorder (PTSD) n257 or other illnesses that are so severe that they prevent her from making appropriate safety decisions for herself or her children?). Clinicians would also consider whether the intervention is likely to help the battered woman (does the batterer have ties to the community such that he may be deterred from future incidents of violence, or, regardless of his social ties, does he have a pattern of escalating violence so that he is likely to inflict serious harm?).

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n257. For a description of Complex PTSD, see Herman, supra note 9, at 121.

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A battered woman who chooses to return to her abusive partner is not necessarily incapacitated. The batterer may not pose a significant threat (there are no weapons), or he may have agreed to enter counseling. Or she may previously have taken steps toward self-protection and protection of her children (removed them from the violent situation), and may appear to be grappling adequately with the difficult financial, emotional, and safety issues that she faces. Rather than assuming incapacity in all cases, professionals should limit mandatory interventions to cases in which nonconsensual state action is appropriate and necessary. If the battered woman does not want state officials to act on her behalf because she has reasonably concluded that state intervention is inappropriate or is even unwelcome in her situation, state actors should respect her desires. Seeing state actors respond to her direction is liberating to the battered woman; it indicates respect for her decisionmaking capacity even when the state actors do not necessarily agree with her assessment.

It must be reiterated that pursuing a prosecutorial strategy may not always be the safest or most appropriate response to a battered woman's situation. In some cases, strategies such as cultural or community support, n258 shelter stays, or even diversion for the batterer [*609] make the most sense. n259 Without dialogue between state actors and the battered woman, however, state actors cannot respond with the strategy appropriate to each particular case. Mandatory arrest and prosecution policies discourage or even prevent such dialogue, because under these policies, state actors must proceed in a certain way regardless of what the battered woman wants. A Survivor-Centered Model would prohibit action without consultation and input from the battered woman. Indeed, this approach would require state actors to learn to respect the battered woman's desires in order to facilitate her liberation - even if only for the moment in which she decides how to proceed.

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n258. See, e.g., Linda G. Mills, Hope for Law: Narrative Therapy and Intimate Abuse Practice, 16 Behav. Sci. & L. 525, 526 (1998) (reviewing Narrative Therapy in Practice: The Archaeology of Hope (Gerald Monk, John Winslade, Kathie Crocket & David Epston eds., 1997), and applauding a proposed form of therapy that takes into account cultural context); Traylor, supra note 233, at 5-6 (arguing that police brutality toward African-American men, among other things, requires that we explore community-based law enforcement intervention as an alternative to mandatory arrest).

n259. A common theme in the research literature is that victims use the criminal justice system as a means to help control the violence, but they do not necessarily desire legal outcomes (especially prosecution and jail time). Victims often prefer mediation and counseling. See, e.g., Loretta J. Stalans & Arthur J. Lurigio, Public Preferences for the Court's Handling of Domestic Violence Situations, 41 Crime & Delinq. 399, 403, 406 (1995).

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B. A New State Dynamic in Intimate Abuse Cases

In light of the importance of adopting a new state dynamic in intimate abuse cases, state actors should heed the clinical call to action. To engage constructively in dialogue with battered women, state actors must be more sensitive to the psychological state of the battered woman. State actors should expect that battered women will appear anxious, overwhelmed, confused, and angry, or helpless, docile, or detached. State actors should expect these distinct emotional reactions from survivors of violence, and they should identify these reactions as unique opportunities for and possible indications of healing. That agents currently view these emotions as deviant, inappropriate, or "uncooperative," rather than as indicative of the trauma that the state seeks to address, is one of the primary impediments to effective interaction with survivors of intimate abuse.

Battered women who seek the state's assistance require, first and foremost, reconnection and relationship. The few studies that have explored these issues have found that battered women feel most satisfied with state interactions when they feel heard. n260 Even in her confusion, [*610] the battered woman is conscious and wants a response that she can control. n261 This response may involve the survivor's need for a savior or protector, someone she initially idealizes, as she attempts to work through her trauma history. Under these circumstances, state officials can function as partners in helping her come to terms with her sense of vulnerability and helplessness. Having her story heard and her individual situation recognized may be the first step on the battered woman's path to healing and change. n262

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n260. See, e.g., Eve Buzawa, Thomas L. Austin, James Bannon & James Jackson, Role of Victim Preference in Determining Police Response to Victims of Domestic Violence, in Domestic Violence: The Changing Criminal Justice Response, supra note 51, at 255, 255 (reporting that victims were generally satisfied with police intervention when the police followed the victim's preferences); Erez & Belknap, supra note 92, at 263 (finding that a sympathetic criminal processing system was necessary in order to prosecute successfully); Sherman & Berk, supra note 220, at 6 (observing that if the victim perceived that the police took time to listen to her when arresting the perpetrator, the rate of repeat violence was significantly lower).

n261. Many clinicians who work with trauma victims emphasize the importance of facilitating the victim's control over her own life by encouraging her to make decisions on her own behalf. See, e.g., Gondolf, supra note 23, at 96-97; Elizabeth A. Waites, Trauma and Survival: Post-Traumatic and Dissociative Disorders in Women 89-90 (1993). Advocates of mandatory policies often argue that criminal interventions occur at the point of crisis and therefore the battered woman should not be pressured to respond. My contention is that the police or prosecutor should assess and respond to each battered woman according to her own needs and desires.

n262. Cf. Waites, supra note 261, at 90 (pointing to other treatments, such as medication, that do not promote permanent change).

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Knowing that the "omnipotent savior" dynamic is likely to emerge in their relationship with the battered woman, and that the fragile reconnection the survivor seeks is likely to fail if she perceives a replication of the original abuse in the criminal justice process, state actors need to honor the long-term healing connection over a short-term solution of arresting and prosecuting the batterer. Given the scant evidence that mandatory interventions reduce violence, and the obvious fact that a battered woman's resolution to terminate the abusive relationship is the most enduring hope for her long-term safety, state actors should turn their attention toward the healing strategies that are most likely to alter permanently patterns of violence. n263

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n263. The punishment versus rehabilitation debate is present in this reflection. Prosecution and healing, like punishment and rehabilitation, are not mutually exclusive. Ideally, as I propose, we can integrate these two policy goals. For an insightful study of alternative legal responses to violence that move beyond the antinomies of punishment and rehabilitation for the purpose of "facing history," see Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence 118-47 (1998).

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Acceptance, respect, reassurance, engagement, resocialization, empowerment, emotional responsiveness, and liberation represent the antithesis to abuse. Reorienting the relationship between battered women and state actors using a Survivor-Centered Model of interaction provides a critical opportunity for healing through state intervention. If the survivor desired to arrest and prosecute, especially after advocates had an opportunity to inform her of the effectiveness of these actions, then prosecutors could proceed with legal measures. If, on the other hand, the battered woman sought alternative responses, [*611] including counseling for herself or the batterer, state actors would respect those desires instead.

Karla Fischer and Mary Rose studied factors that encourage battered women to leave their abusive relationships. n264 Their provocative study tried to determine the point at which battered women decide "enough is enough." n265 State actors can help survivors make their way toward "enough is enough" by listening closely to the battered woman's narrative and by responding in ways that reinforce healthy interaction. Forming a healthy relationship with the battered woman might be just the impetus she needs to understand that she is entitled to a different kind of love. n266 This realization may or may not result in leaving the abusive relationship. As I discussed earlier, leaving may not be an option for cultural, financial, or religious reasons. Consistent with the clinical literature, a Survivor-Centered Approach would help a battered woman take steps toward her own recovery, in or out of the abusive relationship, while she pursued more direct methods of treatment through therapy.

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n264. See Fischer & Rose, supra note 240, at 414.

n265. Id.

n266. See Mills, Heart of Intimate Abuse, supra note 24, at 103-19.

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V. Healing the Divides

This essay raises the question: How should Laura, the woman described in the introduction, be treated? Though the research suggests that mandatory interventions may not be the safest state response for all battered women, these policies have some benefits. The gains from these categorical strategies are essentially twofold. First, we send a message to men who batter their partners that their battering has consequences. This message is intended to have a deterrent effect, and indeed, some of the arrest studies demonstrate that it probably does. n267 Second, we gain a standard by which we can hold officers, prosecutors, and physicians accountable for not intervening in domestic violence cases. These two gains are significant and reflect important policy goals. n268

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n267. For example, see sources cited supra note 35.

n268. Some people have accused me of wanting to set the battered women's movement back twenty years. I am absolutely convinced that the "progress" that the movement has made has been essential. Indeed, the history of success in the movement allows me to raise these issues in what I hope is a constructive manner. My contention is that we are at a critical moment in U.S. gender history and that we need to reevaluate the direction we are taking; I recommend that we refine our approach by taking into account each battered woman's unique experience and corresponding narrative. This reevaluation involves both theoretical development and empirical research.

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On the other hand, we lose a great deal from mandatory arrest and prosecution policies. First, these policies may result in high rates of retaliatory [*612] violence, especially against African-American battered women n269 and battered women involved with men who are unemployed or otherwise without community ties. n270 Second, these policies reinforce the negative dynamics of rejection, degradation, terrorization, isolation, missocialization, exploitation, emotional unresponsiveness, and confinement intrinsic to the battering relationship. State perpetuation of these dynamics systematically denies the battered woman the emotional support she needs to heal. Although we can never precisely measure the effects of this state violence, studies of emotional trauma's impact on its victims suggest that this form of abuse would have long-term and devastating effects. n271

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n269. Mandatory arrest policies may inadvertently increase police brutality against men of color, especially African-American men, and may, in turn, threaten the lives of their partners or lovers. For an excellent discussion of police brutality and related issues in the African-American community, see Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 Cap. U. L. Rev. 151, 213-18 (1994). See also Traylor, supra note 233, at 5 (arguing that violence against African-American men by the police is one reason Harlem Legal Services does not support a mandatory arrest policy in their community).

n270. See Sherman et al., supra note 36, at 158-63. For a complete explication of these issues, see supra section I.D.2.

n271. For a review of the studies on psychological maltreatment of children, see Stuart N. Hart, Nelson J. Binggeli & Marla R. Brassard, Evidence for the Effects of Psychological Maltreatment, 1 J. Emotional Abuse 27 (1998).

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Rather than employ one-dimensional responses in every case, we need to enhance the clinical ability of law enforcement personnel, prosecutors, and other professionals, including doctors, who are in a position to help battered women. These professionals need to learn skills that draw on the rich clinical literature and that address the trauma of each specific victim. In addition, state actors should develop cooperative relationships with clinicians who understand the complexities of relating to trauma victims and who are trained to distinguish the survivor who will benefit from self-assertion from the victim who, because of severe mental illness, is incapable of hearing her own voice. Allocating precious resources to developing multidisciplinary responses that are committed to a Survivor-Centered Approach will provide the long-term results we all hope to achieve.

In sum, when the strategies born of broad feminist goals conflict with the interests of individual battered women, we must rethink the strategies. I suggest that prosecution and arrest be used in domestic violence cases only when women desire them or are otherwise incapable of deciding what is in their best interest. Instituting programs that strip law enforcement personnel, prosecutors, and physicians of their discretion is not an appropriate or effective response to domestic violence. Instead, we need to develop systems that respond to each battered [*613] woman on an individual basis and that help her determine what intervention strategy is best for her. n272

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n272. See, e.g., Joel Handler, Dependency and Discretion, in Human Services as Complex Organizations 276, 292-93 (Yeheskel Hasenfeld ed., 1992) (arguing for a structured empowerment model in discretionary relationships between state actors and clients in human service agencies). Handler argues that "humanistic values of mutual respect and professional pride" are the key to improving dynamics between workers and their clients. Id. at 292.

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Clinical responses should not be viewed as a threat to the feminist project, but rather as an avenue to heal the divides - public versus private, state versus victim - that separate those who legislate and implement change from those who experience its repercussions. That some women in the feminist legal community have adopted a strategy that is, albeit unwittingly, designed to ignore battered women's individual narratives is self-defeating. That some women persist in supporting these mandatory interventions once their emotional abuse and paternalistic underpinnings have been revealed is disingenuous. Feminists should reflect on the abusive character of the state power they have unleashed upon the women they seek to protect. My argument is that when they fail to do so, feminists add to, rather than alleviate, the survivor's trauma.