MODULE II
Table
of Contents
Introduction
Case Studies
Federal Criminal Cases under the VAWA
Grants
Law Enforcement
Prosecutorial Policies
Judiciary
Failure to Protect Lawsuits
Civil Rights Remedies
Hate Crimes and Gender Bias
Discussion Questions
Bibliography of Required
Reading and Optional Reading
In the previous Module, we left you pondering the relationship between the gendered difference in the use of violence and its possible implications for equal protection. In this Module, we move on to a consideration of some different legal approaches to address the gender bias embedded in so many crimes of violence against women.
Our goal in this Module is to provide you with a sense of the kinds of cases that arise involving violence against women, as well as the laws and policies that have been developed to address it. This Module contains a fair amount of law and policy--more so than other Modules likely will. We will return to materials presented here in later Modules.
The background reading for this Module is layered so as to let you explore a certain topic deeply, or to just read and get an overview of a particular issue. We offer it this way to accomodate the different backgrounds of each of you--some of you are quite familiar with laws and policies regarding domestic violence--others will be learning about it for the first time.
To start with, please read the case studies. These cases are offered as examples of tragic situations in which women have been violently assaulted, raped or killed by a boyfriend, stranger or intimate partner, respectively. Following the case studies, we move to a consideration of legal policies on violence against women.
The legal policy section first overviews the Violence Against Women Act (VAWA). As part of the Omnibus Crime and Control Act of 1994, Congress enacted the VAWA after four years of legislative hearings concerning the extent and nature of violence against women in this country. It is the most comprehensive and significant women's rights legislation to date. It authorized new federal crimes involving domestic violence, $1.6 billion in grants to state and local governments to help build effective responses to violence against women, and a civil right to be free from gender-motivated violence. Click here to view optional readings on the history of the passage of the VAWA. Current efforts are underway to reauthorize the VAWA (as "VAWA II") and expand it in certain areas. Click here to read about VAWA II.
Reform efforts aimed at the criminal justice system have exposed sexist attitudes and practices in police departments, prosecutors' offices and the judiciary. Read through the descriptions of law enforcement, prosecutorial polices, and the judiciary to get a sense of the main problems in each agency and the initiatives taken to address them.
Finally, we look at some legal remedies available to victims of gender-based violence. These include failure to protect cases, the civil rights remedy under VAWA, and state hate crimes legislation.
Discussion questions follow the reading. The creators of this module will monitor the responses to these questions. They are:
Diane Rosenfeld, Fellow of the Berkman Center for Internet and
Society at Harvard Law School
Elaine Chiu, Teaching Fellow
Jessica Dubin, Teaching Fellow
Claire Prestel,Teaching Fellow
If you have any technical questions or experience any technical difficulties, please email Melissa Baily, Head Teaching Fellow, at mbaily@cyber.law.harvard.edu.
Group A must read all of the required reading, which is designated by red links. Optional readings are designated by blue links.
Please read the following excerpts from cases.
1. US v. Page, 167 F.3d 325 (6th Cir. 1999).
The facts of this case are not unlike the stories of many women who attempt to leave abusive relationships. Carla Scrivens's relationship with Page started out on fairly blissful terms. Yet, Page soon became controlling, possessive, and even physically abusive, demanding that Scrivens stop associating with her friends and family, controlling what she could wear and eat, and on one occasion even punishing her disobedience with a stun gun and mace. In light of the deterioration of their relationship, after less than three months together, Scrivens told Page that she was moving out and ending their relationship. . The planned attack against Scrivens took place when she attempted to retrieve her belongings, all of which were still in Page's condominium in Columbus, Ohio. Upon Scrivens's arrival, Page pushed her down, dragged her away from the door when she attempted to leave, and tried to spray her with mace. He then beat her with his fists, a claw hammer, and a pipe wrench over the course of several hours. Scrivens also testified that Page used a stun gun during the assault. After the beating, Page carried his victim, who could not walk on her battered feet and legs and who had fallen into unconsciousness several times during the attack, and placed her into his car under threat of further violence from his stun gun. Page then drove around for approximately four hours, crossing state lines through West Virginia into Pennsylvania and intentionally passing several local hospitals on the way even though Scrivens pleaded with him to stop for medical treatment at either Riverside or Ohio State University, two hospitals in the Columbus area. During this time, Scrivens continued to bleed, and painful swelling from her injuries increased. Page eventually left her at a hospital in Washington, Pennsylvania, where, after she realized that Page would not return, Scrivens told emergency room personnel that Page had attacked her and agreed to report the incident to the police.
2. Doe v. Doe, 929 F.Supp. 608 (D. Conn. 1996).
Plaintiff alleges that from 1978 until 1995 the defendant "systematically and continuously inflicted a violent pattern of physical and mental abuse and cruelty upon the plaintiff," including throwing her to the floor, kicking her, throwing sharp and dangerous objects at her, threatening to kill her, and destroying property belonging to the plaintiff. Plaintiff also alleges that the defendant forced her "to be a 'slave' and perform all manual labor, including maintaining and laying out his clothes for his numerous dates with his many girlfriends and mistresses." She claims extreme emotional distress, including battered women's syndrome, post-traumatic stress disorder, and depression.
3. And consider this excerpt by Julie Goldscheid, a national expert on gender-based violence:
"The coercion and control that typifies domestic violence frequently reflects men's attempts to ensure that their partners conform to traditional women's roles, regardless of the women's preferences. Male batterers go to great lengths to control all aspects of their partners' lives, through means that frequently involve insisting on their partners' conformity to traditional gender roles. They may insist that their partners stay home, control their manner of dress, and limit their interactions with others. They may berate their partners if they depart from traditional gender-specific roles such as cooking or cleaning. Batterers typically interfere with women's working lives, dramatically inhibiting their independence and ensuring their conformity to traditional roles. Similarly reflecting conduct that targets a woman's 'femaleness,' batterers may target a woman with violence when she is pregnant." Goldscheid, Julie, "Gender-Motivated Violence: Developing a Meaningful Paradigm for Civil Rights Enforcement," 22 Harv. Women's L. J. 123, 147-148 (1999) [footnotes omitted].
Case Study 2
Please read the following two newspaper articles.
1. Meadow Rue Merrill, "Murder has abuse victims terrified," Boston Globe, Sept. 12, 1999: C11.
BATH, Maine - When Chris Fenno, the executive director of the Abused Women's Advocacy Project in Lewiston, went to work Tuesday she expected her staff to be extra busy helping women fill out court orders to keep their abusers away.
After a three-day weekend, the agency is usually flooded. But this time not one person showed up, Fenno said. In fact, the number of women seeking protection-from-abuse orders here has dropped drastically since Aug. 10. That is the day Carol Cross, 38, was shot to death by her estranged boyfriend just one day after receiving the court order meant to save her.
In a state with a domestic homicide rate about one-third greater than the national average, such a killing doesn't usually generate such a huge fallout, Fenno said. But what makes this different is that it appears Cross did everything right. She had a plan. She had a court order. She even had a police officer escort her to her apartment to collect her clothes that muggy August afternoon.
But in the end it didn't matter. While the officer was inside the apartment, police say Kenneth Emrick, also 38, barricaded himself in the bedroom, aimed a hunting rifle out the window and shot Cross through the neck while she waited outside. Cross died instantly, then they say Emrick shot and killed himself with the same gun.
The effect has been chilling. On the day after the killing, 75 percent of the people scheduled to receive protection-from-abuse orders did not show up at the court house, Fenno said. And advocates across the state say since Cross's death, abuse victims are more terrified than ever.
"This case has very serious repercussions," Fenno said. "We haven't seen anything on this scale since the O.J. Simpson case."
While the number of people seeking court protection has dropped since Cross's murder, the number calling the agency's hotline has increased, Fenno said. What upsets her the most, she says, is that callers are saying their abusers are using the murder as a threat, clipping newspaper articles about it and leaving them around the house, threatening that the women could end up like Cross if they dare leave.
To encourage women to seek help, the program is writing letters in the local newspaper and working with the Lewiston police chief, who has agreed to do the same.
But the impact of the killing has gone well beyond city limits. Other agencies around the state said they also have seen an increase in threats and phone calls since Cross's death.
"Whenever there is a murder, we go through a couple days of complete silence," said Kathleen Morgan, executive director for New Hope for Women in Rockland. "Women are scared. It takes a couple days for the terror to go away. Then we start getting calls from women who are reporting threats. It is even more terrifying when the systems in place to protect you, can't."
Many people have been asking what went wrong when it appears Cross did everything right.
Ten agencies scattered across the state are charged with helping victims get protection. For the past five years they have been working with police officers, health care workers, and others to develop communitywide systems to recognize abuse and help victims, said Tracy Cooley, state coordinator in Bangor for the Maine Coalition to End Domestic Violence, which oversees the agencies.
In Cross's case, the help she got was not enough, Cooley said.
"Law enforcement continually says responding to domestic disputes are one of the most dangerous calls they make," Cooley said. "So where was the back up, why was only one officer there? This is a very sad case, a case I believe shouldn't have happened."
Many questions remain unanswered, including why Maine, with one of the lowest overall murder rates in the nation has one of the highest rates of domestic homicide. Last year 26 people were murdered here. Fourteen of those deaths were related to domestic disputes, said Anita St. Onge, chairwoman of the Maine Commission on Domestic Abuse. And for four out of the past five years, Maine has had more domestic homicides than the national average.
Part of the problem is that it is difficult to get details on the killings, said St. Onge. Other than the number of deaths, the only information tallied by the state is how many domestic violence phone calls police receive, she said. To find out what actually happened in each incident requires going to individual departments, reading reports, and tracking down court records to see how the assaults were handled. In some cases when St. Onge has done that, she said she hasn't even been able to find the records.
"Are batterers held accountable?" St. Onge asked. "We don't know."
The prevalence of guns and the rural nature of the state also might contribute to domestic violence here, St. Onge said.
"When a gun is handy, an abuser will use it," she said, and isolation makes it harder for people to get help.
Even when help is close by, sometimes it is safer for victims to leave everything behind. That is something Cross's killing has made especially clear.
"The denial of how dangerous a situation is comes from living in it for so long. To psychologically make it, you have to be kind of numbed out," said Karen Woodcock, an advocate with The Family Violence Project in Augusta. "In some ways this makes it a little easier for me to say, 'We don't want you to go back to your house - we can replace those things.' "
2. Nancy Grape, "Editorial: Carol Cross Did Everything Right, and Still Was Murdered; Police and Others review How to Avoid Future Deaths at the Hands of Abusers," Portland Press Herald, Aug. 22, 1999: 5C.
Thirty-eight-year-old Carol Cross of Lewiston is dead. And her epitaph, written in the souls of Maine women, reads, "She did everything right."
Twelve days ago, Cross joined the growing number of shadows that represents Maine women killed at the hands of domestic abusers. Her abuser, 38-year-old Kenneth Emrick, shot Cross in the neck as she moved out of the apartment they shared. He then ended his life by turning his rifle on himself.
Cross, no stranger to abuse, thought she had covered all the bases on the day she went to the apartment to remove her belongings and the couple's three young children, born to what police describe as a 19-year on-again, off-again relationship.
Cross had spoken with abuse counselors. She had obtained a protection-from-abuse order from the courts. She had brought friends to help her move out. And she had also brought a Lewiston police officer to assure her safe departure.
Yet Cross is dead. And that leaves the rest of us -- Maine police and Maine courts, friends and neighbors, families and the public -- to figure out what we can do to prevent domestic violence from escalating into fatal violence.
Let's start by thinking small.
Item: Heightened safety for women may well lie in the details. And it is details that we need to carefully review.
Lewiston police are doing that now. At midweek, the department was completing its investigation into the Cross case and preparing to conduct what Police Chief Bill Welch calls "a critical incident debriefing session" with all the personnel involved.
"We go into everything that took place and try to brainstorm and ask, 'Is there something we can do differently?' " Welch told me.
"Sometimes when a relationship is parting as this one was, it's a very emotional situation," Welch said. He should know. Last year, Lewiston police responded to 753 domestic disturbance calls and served 381 protection-from-abuse orders. Overall, that same year, Maine recorded 26 homicides; 15 stemmed from domestic violence.
That's what makes learning from Carol Cross' death so important.
Item: Convince women that, despite violent exceptions, protection-from-abuse orders do work in a majority of cases.
Lewiston police pursued 134 violations of such orders last year. "They give the police a tool to use," Welch said. "Three-quarters of the time people are adhering to them."
Item: In potentially volatile departures, when a police officer is present, direct the officer to stay at all times with the alleged abuser until the partner has left.
Such close attention, patterned on police reaction to domestic violence complaints, offers a better chance of success.
Instead, Welch explained, Lewiston police "allow the officer to make some sort of assessment." In the Cross case, there was, Welch emphasized, "no indication there was going to be any violence. He (Emrick) seemed to be very cooperative."
Moreover, the chief said, "even if our procedure was that you stay with that person, at some point the officer and everyone else is going to be leaving that building and he's going to be home alone. They could all have been outside at the same time and he could have been shooting at all of them. I don't know how predictable that is and what you can really do to change that."
Why not start with close, consistent surveillance?
Item: Enable police to know, as certainly as possible, whether there are firearms in the house.
Lewiston police did not know that Emrick had a gun. The rifle he possessed did not have to be registered. The protection-from-abuse order Cross obtained gave them no clue to its presence.
"The protection-from-abuse order had a slot asking if there is a firearm within the home and she had not checked it off. So we had no indication he had a firearm," Welch said.
"I'm going to make an assumption on the officer's part," he continued. "Had he known there was a potential for a gun in the home, he would have asked the question, 'We understand you have a gun in the home, where is it now?' "
Why not ask the gun question as a matter of course?
Item: Know -- and act on the knowledge -- that it is vital for abused women to get out of their situations early.
Family, friends and abuse counselors can help -- and they need to, because the numbers are staggering.
"Bear in mind that we are essentially dealing with 6,700 cases in court and, with the ones that never get to court, there are from 6,700 to 15,000 very volatile cases. Buried in them are perhaps a hundred that have the potential to be fatal," Maine Chief Justice Daniel Wathen told me last week.
"It's sort of like playing with firecrackers, for the police and for the people involved and for the court," Wathen said. "You know that ultimately there's going to be one that gets by. You really have to keep redoubling your efforts, because any slip is just so expensive in human terms."
Indeed it is. Just ask the children of Carol Cross.
NOTES: Nancy Grape (e-mail: spargrape@msn.com) comments on state and national issues for the Maine Sunday Telegram.
THE VIOLENCE AGAINST WOMEN ACT OF 1994
Federal Criminal Cases under the VAWA
VAWA authorized new federal crimes involving domestic violence offenses with an interstate component. Understanding that batterers sometimes pursue their victims across state lines, Congress passed the new criminal provisions to explicitly give federal prosecutors authority over these cases. Prior to the enactment of this legislation, if a batterer attacked his victim and then carried her across state lines (possibly to try to avoid prosecution), it was unclear which state would have jurisdiction and responsibility for prosecuting the crime. Federal jurisdiction closes the gap through which a battered woman's safety might have fallen. These provisions include interstate travel to commit domestic violence and interstate travel in violation of a protection order. Further, the Full Faith and Credit Provision of the VAWA (Section 2265) requires that courts of another state must give full faith and credit to protection orders validly issued from other jurisdictions as if the orders were issued by the enforcing court. In 1996, Congress passed an interstate stalking provision to add to the cadre of interstate domestic violence protections. And, under the Gun Control Act, Congress made it a federal crime to possess a firearm and/or ammunition while subject to a qualifying Protection Order or after conviction of a qualifying misdemeanor crime of domestic violence. Please read a short summary of these criminal provisions.
Thus far, there have been over 200 indictments in the federal courts for these new domestic violence crimes. U.S. Attorneys across the country have "Points of Contact" prosecutors designated in each office to receive information regarding possible federal violations in the context of domestic violence cases. The Department of Justice offers trainings to US Attorneys in which the various offices share experiences and information on the prosecution of these cases. Importantly, the US Attorney's Offices engage in outreach to state and local prosecutors and service providers to let them know that they are interested in investigating and possibly prosecuting potential violations. These prosecutions are often the result of joint decisions as to which agency is in the best position to bring a particular action. Depending on the state, the federal system may have had a longer potential sentence, greater resources with more attention and staffing and/or more relaxed evidentiary rules. On the other hand, state law may be stronger in certain areas, and the case might be brought there. Please read the testimony of Bonnie J. Campbell, Director of the Violence Against Women Office in the Department of Justice, that was delivered before a Congressional committee in September 1999. Despite almost uniform statutory attacks by defendants, the federal domestic violence provisions have survived constitutional challenges.
Grants to State and Local Governments
"We promised America's women real help, not just talk. Now we have got to deliver with funds of millions of women and families that have suffered - for shelter, for counseling, for training, for law enforcement - all of which is so desperately needed throughout this country. Some argue that we can't afford to live up to our commitments. I say we cannot afford not to." Attorney General Janet Reno, address to the Advisory Council on Violence Against Women (July 13, 1995).
Certainly, the most extensive feature of the VAWA is the money it grants to state and local governments to strengthen their responses to domestic violence, stalking and sexual assault. VAWA authorized $1.6 billion in grants to state and local governments to help create effective responses to domestic violence, stalking and sexual assault. These grants have been used across the country, in Native American lands and in rural areas to help build infrastructures and responses to violence against women. Now that we are into the sixth year of these grants, the Department of Justice has been able to get a sense of what is working and where improvements still need to be made. What we now know is that the most effective response involves many different actors within a community.
For a brief introduction to this topic, view the Coordinated Community Action Model. To familiarize yourself with the specifics of what some of these programs actually do, read about the Domestic Abuse Intervention Project in Duluth, Minnesota. Also read two other program descriptions of your choice from the document Promising Practices that highlights some of the best programs created through VAWA funding.
CRIMINAL JUSTICE SYSTEM
Law enforcement plays an absolutely critical role in stopping domestic violence. Often, a police officer answering a domestic violence call signifies the first intervention by the state into the "private" sphere of the home. At this intersection in time and event, the actions of the police officer can be determinative of what kind of protection from abuse the battered woman might obtain from the state, as well as what she might expect. The officer's attitude will shape whether she will turn to them in the future, or feel safer fending for herself.
Many serious problems with law enforcement have been exposed since domestic violence started receiving attention. First, police officers are similar to the military in several respects -- they represent, for example, legitimated use of violence. Second, police forces are overwhelmingly male dominated. Third, there is a problem within police ranks of male officers beating their wives and girlfriends. What makes this problem particularly horrible is that the officer's fellow officers will usually not arrest when called to an officer's home in response to a domestic assault. Please read Kevin Flynn, Rise in Claims of Wife Abuse Against Police, and consider the International Association of Police Chiefs' Police Officer Domestic Violence Model Policy.
Advocacy efforts have focused on developing police department protocols for responding to domestic violence. Much progress has been made on this front and some police departments are truly models for the rest of the country. Police training efforts are aimed at educating the officers about the dynamics of domestic violence and the particular pressures facing a battered woman surrounding the assault. A model training program is run by Lt. Mark Wynn of the Nashville Police Department. Please peruse the Nashville Police Department’s model curriculum and a unique term project done by students at the New Haven Police Academy.
Many states have enacted mandatory arrest policies that require police officers to make an arrest when there is a reasonable certainty that a domestic assault has occurred. The rationale for mandatory arrest is that if left to police discretion, police officers would believe the batterer's denials of the assaults and his assurances that it was just a misunderstanding better resolved between him and his abused partner. Mandatory arrest sends the message that the criminal justice system takes seriously domestic violence. Opponents to it counter that it deprives the victim of the agency with which to make the decision whether to have her abuser arrested. Advocates, however, argued that batterers would pressure their victims to minimize the attack in front of police and to not cooperate with any prosecution. This was the situation the majority of the time. Mandatory arrest policies were necessary to remove the pressure from the victim and to make the police treat it seriously. Joan Zorza's article, Mandatory Arrest for Domestic Violence: Why It May Prove the Best First Step in Curbing Repeat Abuse, is optional reading.
Reform efforts have produced protocols implemented at many prosecutorial offices, including the following: (1) specialized domestic violence units with trained prosecutors, and sometimes, social workers and advocates; (2) vertical prosecution for domestic violence cases in which one prosecutor is assigned to a case for the life of the case; (3) no-drop policies whereby prosecutors refuse to drop domestic violence cases simply at the requests of victims; (4) creation of domestic violence treatment programs for abusers as alternatives to incarceration for punishment; and (5) the pursuit of domestic violence prosecutions, even without the participation of victims. For a better explanation of prosecutorial policies, please see an article by Linda A. McGuire.
As mentioned by Linda McGuire, one of the most frustrating aspects of working with victims of domestic violence is their reluctance to cooperate in the prosecution of their abusers. In response to this frustration, numerous state and local prosecutors have adopted the "no-drop" policy and/or the subpoena policy. For a description of these policies and their histories, please read the excerpts from Cheryl Hanna and from Angela Corsilles.
In contrast to these mandated participation policies, some prosecutors' offices have also adopted trial strategies that strive to convict abusers without victims by using evidence aside from the victims themselves. A description of such evidence is found in an excerpt from Heather Fleniken Cochran.
Like the police and prosecutors, judges have not always acted appropriately in domestic violence cases. Advocates have achieved limited progress in changing judicial attitudes, but several incidents in the 1990s demonstrate that much still remains in the judicial arena that must be changed. Consider some examples from a magazine article entitled America’s Most Sexist Judges. Then read Deborah Epstein’s insightful explanation for judges’ insensitive behavior in Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System (her full article is available in the optional reading section). Lynn Hecht Schafran believes that improving judges’ responses to domestic violence requires several strategies, including "focusing on the attitudes of candidates for the bench before they become judges, then on judicial education, specialized domestic violence courts, and the accountability that can be imposed on sitting judges through court watching, judicial performance evaluation, media attention, and insistence on a meaningful response from judicial disciplinary commissions"; please skim her article, There’s No Accounting for Judges. Although not required reading, the National Council of Juvenile and Family Court Judges’ recommendations, in Family Violence: Improving Court Practice, are also useful in understanding what changes should be implemented in the judicial system in order to make it a better place for domestic violence victims.
LEGAL REMEDIES
In the past, the police often responded to domestic violence by doing nothing at all, or by trying to pacify the batterer and return the parties to marital harmony. This practice began to change in 1984, when a woman named Tracey Thurman successfully sued a Connecticut police department for failing to protect her from her husband’s violence. Ms. Thurman repeatedly asked the police for help, but in the wake of their refusal to intervene, her husband stabbed her, leaving her paralyzed. She won a $3.6 million jury award. Ms. Thurman’s personal tragedy and legal success put police stations across the country on notice that they could no longer ignore domestic violence. Please read excerpts from this seminal case, Thurman v. City of Torrington (1984). Then, to better understand the legal doctrines used in the failure to protect cases, read Failure to Protect Basics. While the intricacies of the legal theories at play here cannot be discussed in great detail, feel free to refer to the several articles in the bibliography discussing this body of law if you would like to learn more. To gain a sense of how truly abhorrent some police departments have behaved, please read the Failure to Protect Case Summaries, which focus less on the legal outcomes of the case and more on the factual situations. Many of the citations of some of the failure to protect cases are listed in the bibliography.
"…(V)iolence that primarily targets women has too often been dismissed without response…I've become convinced that the violence against women reflects as much a failure of our nation's collective moral imagination as it does a failure of our nations' laws and our nations' regulations. We are helpless to change the course of this violence…unless and until we achieve national consensus that it deserves our profound public outrage and laws that reflect that profound public outrage…The bill is the first comprehensive approach to fighting all forms of violence against women…But most important in my view, the VAWA creates for the first time a civil rights remedy for victims of crime motivated by gender" [emphasis added].
Senator Joseph Biden (D-De), one of the primary sponsors of the VAWA, Major Leader Special Transcript, Response to Release of "Response to Rape Report," Federal News Service, May 27, 1993.
The VAWA gives all persons the right to be free from gender-motivated violence. This civil rights provision is both the most important and the most controversial of the entire Act. The civil rights provision embodies the spirit of the VAWA. It gives women who have been victims of gender-motivated violence the right to bring a private suit in federal court. If successful, plaintiffs can recover compensatory and punitive damages and injunctive or declaratory relief. The civil rights provision recognizes, for the first time, the right to be free from gender-motivated violence as a federal civil right.
The District Court found that Brzonkala's allegations would constitute a case for gender-based animus, but struck down the statute as an unconstitutional exercise of Congressional authority under the Commerce Clause. Some of the evidence that constituted gender-based animus was that among other things, defendant Antonio Morrison allegedly warned Brzonkala after the rape that she “better not have any fucking diseases” and announced in a dining hall that he “like[d] to get girls drunk and fuck the shit out of them.”
(For summaries of the various VAWA Civil Rights cases, please see the NOW LDEF here; this reading is not required).
Many other courts across the country have upheld the constitutionality of the Civil Rights Remedy, and recognized the gender-based motivation of the various crimes of violence against women. The Supreme Court is expected to issue its decision in late spring or early summer.
Besides failure to protect suits and the federal civil rights remedy, approximately twenty states include gender as a protected category in their hate crimes legislation, yet very few cases have been brought. The infrequency of cases is not because there is a lack of them--crimes of violence against women are often motivated by misognynist attitudes and these attitudes are exactly what the gender-based hate crimes statutes are intended to address. The lack of prosecutions of gender-based hate crimes could be attributable to a failure to understand gender-based violence as hate. Skinhead scrawling epithets on a synagogue wall are clearly expressing hate--the type of hate traditionally understood to be covered by hate crimes statutes. A critical difference between gender-based hate crimes and traditional ones is that in gender crimes, the perpetrator claims to love his victim. He commits the act in the name of love, not hate.
Federal sentencing legislation includes enhancements for gender-based violence. Legislation currently pending in Congress would amend the federal hate crimes statute to include gender, sexual orientation and disability. Sponsored by Senator Kennedy (D-MA), the Hate Crimes Prevention Act signifies a major recognition that gender-based hate crimes should be federally actionable.
Thus, there is evidence that governments understand gender-motivated violence as a category of hate crimes. Given the uncertain status of the federal civil right to be free from gender-motivated violence, however, other reform efforts to locate and redress the problem must be considered. Illinois, for example, might be the first state to enact its own version of a Violence Against Women Act. (Read more about the Illinois VAWA here).
1. What do you think it is about the civil rights remedy that sparked such intense controversy? Isn't a notion of a right to be free from gender-motivated violence inherent in most laws protecting women from domestic violence? In the development of the reform efforts discussed in the section on legal policy (VAWA and Criminal Justice System), the desire for power and control is understood to motivate domestic violence. It is also widely understood that when a victim of domestic violence leaves or attempts to leave an abusive relationship, it signifies a loss of the abuser's control over her, so he reassaults her more violently in an attempt to reassert control.
If we understand the gender bias that lies at the heart of domestic violence, what happens to this understanding when we assert a right to be free from such bias? Why would a battered woman need to prove the existence of gender-based motivation when such motivation is already assumed in the existence of certain laws and policies? What arguments could you advance along these lines?
Group A Participants: Post your responses here.
Group B Participants: Post your responses on the general discussion board.
2. To answer this question, please refer to Case Study #2.
The reaction to Carol Cross' murder represents a crisis of confidence in the criminal justice system. Instead of the usual effect such murders have on battered women -- increased calls for help and legal assistance -- Carol's murder had the opposite effect. Women in abusive relationships got the message that orders of protection would not protect them. In fact, abused women in Lewiston got the message that trying to get an order of protection might well place them in more serious danger than if they seek safety on their own, without the help of the criminal justice system.
If police departments are trained on the seriousness and increased danger that separation poses for a battered woman, what can they do to protect a woman in that situation? Does it strike you as obvious that perhaps Kenneth Emrick, after being found appropriately subject to an order of protection, should not have been allowed in the house, and with the children? Could he or should he have been taken into custody after the court hearing? What if anything could have been done to prevent Carol Cross' murder, and Kenneth Emrick's suicide?
Does your answer change if you learn that the Chief of the Lewiston Police Department undertook after the murder to enact several changes suggested by the local advocacy organization, and then failed to implement them? What if you learned that the advocacy group closed down a federally funded program within the police department because of the hostile environment that the advocates encountered while there? What if you learned that the Chief is subject to three lawsuits by three different women, alleging such violations as sexual harassment, hostile environment, and physical assault?
Group A Participants: Post your responses here.
Group B Participants: Post your responses on the general discussion board.
VAWA: Introduction and Federal Cases
Short Summary of VAWA's Criminal Provisions at (http://www.ojp.usdoj.gov/vawo/laws/vawa_summary.htm).
Testimony of Bonnie J. Campbell, Director of the Violence Against Women Office in the Department of Justice, September 1999, before the VAWA Oversight Committee of the House at (http://www.house.gov/judiciary/camp0929.htm).
VAWA: Grants and Coordinated Community Responses
"Assessing the Justice System Response to Violence Against Women: A Tool for Communities to Develop Coordinated Responses," Promising Practices Initiative. STOP Violence Against Women Grants Technical Assistance Project, July 1998, at (http://www.vaw.umn.edu/Promise/PP3.htm).
Domestic Violence Institute of Michigan, "Coordinated Community Action Model," at (www.mincava.umn.edu/ccam/index.html).
Law Enforcement
Flynn, Kevin, "Rise in Claims of Wife Abuse Against Police," New York Times Nov. 14, 1999: A39.
International Association of Police Chiefs', Police Officer Domestic Violence Model Policy, at (http://www.theiacp.org/pubinfo/Pubs/ModelPolicy.htm).
Nashville Police Department's Model Curriculum at (http://www.telalink.net/~police/abuse/index.htm) [students to peruse, not read every page].
New Haven Police Academy Term Project "Within These Walls" at (http://www.cityofnewhaven.com/govt/police/within.htm).
Prosecution
Cochran, Heather Fleniken, "Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence," 7 Tex. J. Women & L. 89, Section VI (Fall 1997) [excerpt].
McGuire, Linda A., "Criminal Prosecution of Domestic Violence," at (http://www.vaw.umn.edu/BWJP/prosecuteV.htm).
Judges
Epstein, Deborah, "Effective
Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors,
Judges, and the Court System," 11 Yale J. L. & Feminism 3 [excerpt]
[full article is available in the option reading section].
Hecht Schafran, Lynn, "There's No Accounting for Judges," 58 Alb. L. Rev. 1063 (Spring 1995).
Weller, Sheila, "America's Most Sexist Judges" Redbook, Feb. 1994, at 83 [excerpt] [full article is available in the option reading section].
Failure to Protect Lawsuits
Compiled by Jessica M. Dubin, Failure to Protect Case Summaries, Winter 2000.
Thurman v. City of Torrington, 595 F.Supp. 1521 (D. Conn. 1984) [excerpts].
VAWA: Civil Rights Remedies
42 U.S.C.A. sec. 13981 (1994).
Brzonkala v. Virginia Polytechnic, 169 F.3d. 820 (4th Cir. 1999) [excerpts] [full case is available in the optional reading section]..
Greenhouse, Linda, "Justices Cool to Law Protecting Women," New York Times Jan. 12, 2000.
Mauro, Tony, "States' Rights Triumph in Supreme Court Kimel Decision, Oral VAWA Argument," Legal Intelligencer Jan. 12, 2000.
National Public Radio, Transcript, "Supreme Court Reviews Congress' Rulings on Age Discrimination and States' Rights," All Things Considered Jan. 11, 2000.
NOW Legal Defense and Education Fund, "Proving 'Gender-motivation' in VAWA Civil Rights Remedy Cases," at (http://www.nowldef.org/html/courts/proving.htm).
VAWA: In General and Federal Cases
Executive Summary of All of VAWA's Provisions at (http://www.ojp.usdoj.gov/vawo/laws/cycle.htm).
Groban, Margaret S., "The Federal Domestic Violence Laws and the Enforcement of These Laws," at (http://www.vaw.umn.edu/FFC/chapter5.html).
NOW Legal Defense and Education Fund, "Policy Watch on Federal Legislation," at (http://www.nowldef.org/html/policy/flindex.htm) [a current outline of efforts to pass VAWA II, a reauthorization of the original Act].
Shepard, Robert, "Female Agenda Takes Long Way to Become Law," Chicago Tribune, September 25, 1994, at 1 [succinctly describes the bipartisan history of the first Violence Against Women Act].
"The Violence Against Women Act: Breaking the Cycle of Violence," at (http://www.ojp.usdoj.gov/vawo/laws/cycle.htm) [summary about all of VAWA's provisions].
"The Violence Against Women Act of 1994: Evaluation of the STOP Block Grants to Combat Violence Against Women," prepared for the National Institute of Justice, at (http://www.ncjrs.org/vaw-hglt.htm).
VAWA: Grants and Coordinated Community Responses
American Bar Association Commission on Domestic Violence, "Multidisciplinary Responses to Domestic Violence," at (www.abanet.org/domviol/mrdv).
Diamant, Anita, "How the Quincy District Court Protects Battered Women," Boston Globe Magazine, Oct. 11, 1992 [no link available].
Mattimore, Carolyn and Elizabeth Ward, "Domestic Violence: Looking for Solutions," Malcolm Wiener Center for Social Policy, Joan P. Curhan Student Working Paper, Jan. 16, 1996, at (http://ksgwww.harvard.edu/socpol/domvio.htm).
Shepard, Melanie, "Evaluating Coordinated Community Responses to Domestic Violence," at (www.vaw.umn.edu/Vawnet/ccr.htm).
Thelen, Rose, "Advocacy in a Coordinated Community Response: Overview and Highlights of Three Programs," at (www.vaw.umn.edu/BWJP/communityV.htm).
Law Enforcement
Mandatory Arrest Sources
Esfandiary, Renee, "Interview with the Honorable John E. Klock of the Alexandria Circuit: Court Defending Mandatory Arrest," 3 Wm. & Mary J. Women & L. 241 (Spring 1997).
Garner, Joel, "Evaluating the Effectiveness of Mandatory Arrest for Domestic Violence in Virginia," 3 Wm. & Mary J. Women & L. 223 (Spring 1997).
Goldberg, Carey, "Spouse Abuse Crackdown, Surprisingly, Nets Many Women", New York Times, Nov. 23, 1999: A16.
Hart, Barbara J., "Arrest: What's the Big Deal?," 3 Wm. & Mary J. Women & L. 207 (Spring 1997).
Lyon, Andrea D., "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 (1999).
Russell, Harriet, "Virginia's Response to Family Violence," 3 Wm. & Mary J. Women & L. 189 (Spring 1997).
Sherman, Lawrence, "Policing Domestic Violence: Experiments and Dilemmas," New York : Free Press, 1992 [no link available].
Zorza, Joan, "Mandatory Arrest for Domestic Violence: Why It May Prove the Best First Step in Curbing Repeat Abuse," 10 Criminal Justice 2 (Fall 1995).
Other Law Enforcement Reform Articles
Andy Klein's Letter, National Bulletin on Domestic Violence Prevention, October 1998, at (http://www.quinlan.com/dvp/andy/andy1098.html).
"Developments in the Law: Legal Responses to Domestic Violence", 106 Harv. L. Rev. 1498, Section IV A, 1552-1556 (May 1993) [excerpt].
Sadusky, Jane, "Working Effectively with the Police: A Guide for Battered Women's Advocates" (1994) at (http://www.vaw.umn.edu/BWJP/policeV.htm).
General Web Sites of Interest
New Castle County Police Department's Domestic Violence Unit at (http://www.nccpd.com/domestic_violence.htm).
New Haven Police Academy at (http://www.cityofnewhaven.com/govt/police.htm).
Prosecution
Corsilles, Angela "No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?," 63 Fordham L. Rev. 853, Sections I & II (December 1994) [excerpt].
Clute, Penelope D., "How Prosecutors Can Make a Difference Pro-Actively Handling Domestic Violence Cases," 66 N.Y.St. B. J. 44 (July/ August 1994).
Hanna, Cheryl, "No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions," 109 Harv. L. Rev. 1849, Section IB (June 1996) [excerpts].
Lutz, Victoria L., "My Husband Just Trashed Our Home; What Do You Mean That's Not A Crime?," 48 S.C. L. Rev. 641 (Spring 1997) at (http://www.law.pace.edu/bwjc/criminal_mischief_.html).
Obenauf, Meg, "The Isolation Abyss: A Case Against Mandatory Prosecution," 9 UCLA Women's L.J. 263, (Spring/Summer 1999).
Wills, Donna, "Domestic Violence, the Case for Aggressive Prosecution," 7 U.C.L.A. Women's L. J. 173 (1997).
Judges
Family Violence Project of the National Council of Juvenile and Family Court
Judges, "Family
Violence: Improving Court Practice," 1990, at
(www.vaw.umn.edu/Documents/Bluebook.htm).
Lewin, Tamar, "What Penalty for a Killing in Passion?" New York Times, Oct. 21, 1994, at A18.
Quindlen, Anna, "Public & Private; Same Old Math," New York Times, Oct. 22, 1994, at A23.
Weller, Sheila, "America's Most Sexist Judges," Redbook, Feb. 1994, at 83.
Weller, Sheila, "More of America's Most Sexist Judges," Redbook, Dec. 1994, at 88.
Failure to Protect Lawsuits
Failure to Protect Law Scholarly Articles
Bandes, Susan, "The Negative Constitution: A Critique," 88 Mich. L. Rev. 2271 (1990).
Borgmann, Caitlin E., "Battered Women's Substantive Due Process Claims: Can Orders of Protection Deflect DeShaney?," 65 N.Y.U.L. Rev. 1280 (November 1990).
Browne, Susanne M., "Due Process and Equal Protection Challenges to the Inadequate Response of the Police in Domestic Violence Situations," 68 S. Cal. L. Rev. 1295 (July 1995).
Compiled by Jessica M. Dubin, Failure to Protect Constitutional Law Basics, Winter 2000.
Miller, Carroll J., "Annotation:
Governmental Tort Liability for Failure to Provide Police Protection to Specifically
Threatened Crime Victim," 46 A.L.R.4th 948
(2000).
Miccio, G. Kristian, "With
All Due Deliberate Care: Using International Law and the Federal Violence Against
Women Act to Locate the Contours of State
Responsibility for Violence Against Mothers in the Age of DeShaney,"
29 Colum. Human Rights L. Rev. 641 (Summer 1998).
Failure to Protect Newspaper Article
Palmer, Louise D., "Women's Cries Often Ignored in Cases of Abuse; Protection Laws Not Enforced," Times-Picayune, Feb. 8, 1993: A22.
Failure to Protect Cases
[Due to time constraints, these cases are not linked. Many of them are available at (findlaw.com) or the local law library. All of them are available on Lexis and Westlaw. We apologize for the inconvenience.]
Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9th Cir. 1988), amended and superseded by 901 F.2d 696 (9th Cir. 1990).
Bartalone v. County of Berrien, 643 F.Supp. 574 (W.D.Mich. 1986).
Berliner v. Thompson, 174 N.Y.S.2d 220 (N.Y.App.Div. 1992).
Brown v. Grabowski, 922 F.2d 1097 (3rd Cir. 1990).
DeShaney v. Winnebago County Dept. of Social Services, 109 S.Ct. 998 (1990).
Didzerekis v. Stewart, 41 F. Supp. 2d 840 (N.D.Ill. 1999)
Doe v. Calumet City, 641 N.E.2d (Ill. 1994).
Eagleston v. Guido, 41 F.3d 865 (2nd Cir. 1994).
Fajardo v. County of Los Angeles, 179 F.3d 698 (9th Cir. 1999).
Ford v. Town of Grafton, 44 Mass.App.Ct. 715 (1998).
Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990).
Hyson v. City of Chester, 864 F.2d 1026 (3rd Cir. 1988).
Jensen v. Conrad, 747 F.2d 185 (4th Cir. 1984).
Ketchum v. County of Alameda, 811 F.2d 1243 (9th Cir. 1987).
Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir. 1991).
McKee v. City of Rockwall, 877 F.2d 409 (5th Cir. 1989).
Navarro v. Block, 72 F.3d 712 (9th Cir. 1995).
Pinder v. Commissioners of Cambridge, 821 F. Supp. 376 (1993).
Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995).
Raucci v. Town of Rotterdam, 902 F.2d 1050 (2nd Cir. 1990).
Ricketts v. City of Columbia, 36 F.3d 775 (8th Cir. 1994).
Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992).
Semple v. City of Moundsville, 963 F.Supp. 1416 (N.D.W.Va. 1997).
Sorichetti v. City of New York, 65 N.Y.2d 461 (1985).
Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997).
Thurman v. City of Torrington, 595 F.Supp. 1521 (D. Conn. 1984).
Watson v. City of Kansas City, 858 F.2d 690 (10th Cir. 1988).
Williams v. City of Montgomery, 21 F.Supp.2d 1360 (M.D.Ala. 1998).
Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).
VAWA: Civil Rights Remedies
Bergeron v. Bergeron, No. 96-3455-A, 1999 U.S. Dist. Lexis 8181 (M.D. La. May 28, 1999).
Brzonkala v. Virginia Polytechnic, 169 F.3d. 820 (4th Cir. 1999).
Goldsheid, Julie, "The Civil Rights Remedy of the Violence Against Women Act: Legislative History, Policy Implications & Litigation Strategy," 4 J. L. & Pol'yl. 391 (1996).
Goldscheid, Julie, "Gender-Motivated Violence: Developing a Meaningful Paradigm for Civil Rights Enforcement," 22 Harv. Women's L. J. 123 (1999).
Nourse, Victoria, "Where Violence, Relationship and Equality Meet: The Violence Against Women Act: Civil Rights Remedy," 11 Wisconsin Women's L. J. 1 (1996).
NOW Legal Defense and Education Fund, "Proving 'Gender-motivation' in VAWA Civil Rights Remedy Cases," at (http://www.nowldef.org/html/courts/proving.htm).
NOW Legal Defense and Education Fund, "Violence Against Women: Courts Address Constitutionality of VAWA Civil Rights Remedy," at (http://www.nowldef.org/html/courts/courts.htm).
"Statement of Christy Brzonkala," Sept. 11, 1996, at (http://www.campussafety.org/LEGIS/104/brzonkala470.html).
In General
Armatta, Judith, "Getting Beyond the Law's Complicity in Intimate Violence against Women," 33 Willamette L. Rev. 774 (Fall 1997).
Epstein, Deborah, "Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges and the Court System," 11 Yale J.L. & Feminism 3 (1999) [full article].
Mills, Linda G., "Killing Her Softly: Intimate Abuse and the Violence of State Intervention", 113 Harv. L. Rev. 550, (December 1999)
Touchette v. Ganal, 922 P.2d 347 (HA 1996).