Module 3

Advocating for Battered Women and Their Children

Table of Contents

Part One:

First Introduction : A Journal

Second Introduction: An Essay

Part One: Background Readings

Effects of Domestic Violence on Children

"When Women Find Love is Fatal"

Shelters

Safety Plan

Orders of Protection

The Diversity of Battered Women

The Economics of Domestic Violence

Full Faith and Credit

Batterer Treatment Programs

Custody: Presumption Against a Batterer

Safety and Visitation

Part Two:

Batterer Treatment and Intervention Backed by Detention

Part Three:

Discussion Questions

Failure to Protect Proceedings Against Battered Mothers

Bibliography of Required and Optional Reading


Part One

First Introduction: A Journal*

As you read these journal entries, you will find links to other sections of the module. First, read through the journal and the essay that follows. Then return to the links throughout the journal - these links will take you to more detailed explanations and to assigned reading. Please make sure you've followed these links (either through the journal itself or through the Table of Contents above) before continuing on to Part Two: "Treatment and Intervention Backed by Detention."

Please Note: red links are required reading for Group A; blue links are optional reading.

March 21, 1998

I feel like Nicole Brown Simpson, turning to a journal because no one else will listen and then again there are lots of people I'd rather not tell. But this journal doesn't feel like the ones I kept growing up. This time I'm terrified because if I write something that Mike doesn't want to hear, and he finds it, well, I'd be sorry for sure.

In my head Suzanne Vega is singing that song about a woman named Luka that goes "they only hit until you cry, after that, they don't ask why, you just don't argue any more..." A later line in the song goes "I guess I'd like to be alone, nothing broken nothing thrown" which is how I feel right now. I'm just exhausted--dodging and weaving everyday, having to walk on eggshells, not knowing when the next attack is going to come or how the hell I'm supposed to prevent it.

Last night, he came home late. The kids were already in bed. I don't know, Sammy's been acting up at school and Laura is really withdrawn lately. She seems sullen and doesn't want to talk. Maybe she needs some time alone. I hope they didn't hear us fighting, but I don't think they did. It's hard not to yell, but I truly don't know what's worse--getting beaten up by someone you love, or letting your kids know what's going on.

Now it's quiet in the house. He's not home yet. I plan to be asleep when he gets here, then maybe he'll leave me alone.

March 30

Things are getting worse. They were kind of up and down for awhile. Like he bought me flowers the day after the last fight, but then the next night, he had a fit that Sammy had broken the remote control and he was yelling and throwing things around and he broke the vase that the flowers were in. I was screaming at him to stop--I thought about calling the police to get him to quiet down, but that would only make him more mad. He hit Sammy, which caused me to go into a rage. Hitting me is one thing, but to hit a child is really worse in my mind. Poor Sammy, he didn't even cry though. He didn't want to give his dad the satisfaction, then of course, if he did cry, Mike would make fun of him for being a girl. Sammy's only 10. He's such a good kid, I don't want him to get messed up. But sometimes even he acts like I should wait on him, like his father expects me to do. It's funny how you notice when something that Mike says comes out of the kids' mouths and it kind of wakes you up. What a role model. I don't know, should I be worried?

Laura is still withdrawn but she has had bad fights with Mike too. Yesterday, he was bossing her around as if she were his servant, insulting me along the way. Get this, bring me that. No recognition of what's going on in her life, or in school. As if she were on earth to serve him. He even taunted her about her looks--told her he hoped she wouldn't grow up to look like me, that she'd better remember to take better care of herself than I do ( I guess the black eye he gave me two weeks ago wasn't very attractive to him) Laura asked me 'why is daddy so mean to you?' I really didn't know what to say. Because I let him be? Because I'm worthless and deserve it? Because he can be? Because he knows I think it's really important that you and Sammy have a father?

April 8

My sister Pam came over today and brought a list of things I should have ready in case I need to leave in a hurry. I'm glad she did it, I never would have thought of this stuff. Plus, I don't feel like I'm thinking all that clearly right now. Every day, I think about leaving, but the thing is, that I don't really want to leave, I just want the violence to stop. I just want him to be the way he was before we got married.

April 10

I seem to be hearing stories every day about women getting killed by their husbands or boyfriends. I feel so sorry for them, and for their kids. Growing up without a mother, or worse, sometimes the kids get killed too. I can't imagine that he would ever get to that point and do something like that. I know he loves me--he probably can't help it. His boss always makes him feel bad--like he's not good enough, not selling enough, and that the competition from the internet companies is going to drive them out of business.

But I've told him again and again not to take it out on me. I mean, I could go back to work if he wants to get another job or something. But he didn't like when I was working. I was a receptionist at a law firm--he was jealous--he'd accuse me of dressing up to look good at work while I didn't care what I looked like for him. He didn't like the idea that I'd get paid so all those "damned lawyers" could look at me all day. He called me so much at work it was embarassing. Then if I asked him not to call me so much, he'd say, why, what do you have to hide? What are you doing that's more important than talking to me? Sometimes I think maybe he loves me a little too much.

April 29

Things have taken a turn for the worse again. This time, I really thought I could talk him out of the fight that we were about to have. But I couldn't. It was like talking to a rabid animal. Talking wasn't going to stop his rage. I hate to admit this, but he hit Sam while Sam was trying to protect me. Laura saw the whole thing, too. She was crying and yelling for him to stop. I think this is it. I told him the last time that one more violent outburst and I was leaving. So tonight (he's gone now--probably went to the bar for a drink, maybe now would be a good time to leave. Maybe I should wait till I can plan things and he doesn't expect it) I told him I was leaving. He said "Go ahead and leave. You'll never see your kids again. I'll prove that you're an unfit mother. Look at this house. Go ahead and leave. Where are you going to go? You think I can't find you? I can, but you'll probably come crawling back anyway." He slammed the door behind him.

April 30

I finally called the shelter today. They said they would help me make a safety plan. They also said that I should leave and they would try to help me find a place to stay with the kids. But then I'd have to take the kids out of school, because he would know where they are. How am I going to explain it to them, how will they explain it to their friends? This is such a tough age, because they're old enough to know what's going on. I really have to think about this.

May 4

Okay, I did it. I left one day when I knew Mike wouldn't be home until late. I picked the kids up from school and headed out of town. We're now all in a shelter. But I'm still scared. I don't know if I did the right thing. Yuck. I mean, it's better in some ways, at least I don't get beat up. But there's no privacy and I'm really worried about the kids. I haven't heard anything from Mike. Maybe he'll calm down and know I'm really serious now. Maybe it'll wake him up, shock him into reality or something. The legal counselor at the shelter is taking me for an order of protection. I hope it helps. I'm not sure if it will be better or worse. Maybe I should just call him in a week or so and try to work it out.

After all, I've realized by being here that my situation is not nearly as bad as a lot of other women. I mean, it's bad lots of times being with Mike, but it's not bad all the time. Some of the women I've met here are facing much more serious obstacles. This one woman I met, Donna, is African-American, and has a whole lot more problems just because of that. She really doesn't know what to do. She's afraid if she reports her boyfriend, who has beaten her so badly that her left eye is completely closed, he'll go to jail for a really long time. She says she doesn't trust the police to solve her problems and thinks they might even charge her boyfriend with something else, just to punish him more. She also said her boyfriend can probably send someone after her from jail anyway, so putting him away doesn't seem like much of a solution.

Another woman I met, Joanne, has three kids, but her boyfriend is only the father of the youngest. Joanne's kids are so cute and sweet. They're younger, so they seem happier here than Sammy and Laura, who just feel displaced and confused. The worst thing is that Joanne's boyfriend has threatened her that if she really leaves with "his boy" he'll sue her for total custody and she will never see her son. Once she hit her son pretty bad and it was at the top of the stairs and he fell down and hurt himself even worse. She is terrified that if her boyfriend brings that up in court, she could really lose her son, even though her boyfriend beat her all the time. Plus, he won't let her go because she shares her welfare check with him and he's threatened her about that. She's so sad in hiding and really doesn't know where to go.

May 15

I went for my order of protection hearing today. I had to go back to the town where we live because if we went to the court where we're staying, he would know where to look for us. Michael was there, it was the first time I saw him since I left. He looked terrible, I felt so bad. He didn't say anything, he just kind of glared at me like he was disgusted. My lawyer told me not to look at him so that he wouldn't scare me from telling the truth. I testified about some of the beatings and the judge granted the order. The judge kind of sentenced him to go get counselling, but I don't really think it was a sentence. Like, I don't think anything will happen if he doesn't go. But maybe that would be really good if he got some counselling. I've been trying to make him go for years--maybe he needed a judge to make him do it. I asked the woman from the shelter what to do with my order of protection if I move again from the shelter (which I'll have to do soon since they only let you stay for awhile.) She explained something about orders being good and valid all over the country without having to prove or reprove the abuse. One less worry.

May 28

Today I told my counselor I want to get back together with Mike. I was so embarrassed to tell her that, but I really don't think I should be. I mean I know Mike better than anyone else, and I think this time he's really learned an important lesson. We had dinner the other night to talk about things. He has agreed to go to counseling. He says he is really sorry and really wants me to come home. The kids are impatient and really unhappy. Shelter just doesn't seem to be the answer--they are away from their friends and familiar support systems and feel like they have something terrible to hide. Explaining to other kids at school why they're there. They haven't moved to the neighborhood, they can't tell people where we live. It makes everything so hard. Why should we be displaced like this?

Plus, I don't know what to do about finding a job. Should I try to find one around here? No, because there's a time limit on how long we can stay here. Mike was ordered by the judge to pay me some support, but he hasn't and I don't have a clue how to get it from him. My lawyer, the person here, is helpful but swamped and since we're not starving, I don't want to bother her. Like I said, a lot of women here are worse off than I am.

So here's the deal. We're going to move back home on Saturday. I'm realistic enough to know that things will be romantic and good at the beginning, and I'm concerned about how they'll be after a couple weeks. I want real change. Wish me luck...

August 6

I can't believe I haven't written in so long. I guess it's a luxury--I am barely just making it keeping things afloat. Keeping up appearances that everything is managable and okay when it isn't at all. Well, I had moved back home. We tried to make it work. He dropped out of batterer counseling--he said it was too mushy to be sitting around talking about relationships. Plus, he felt blamed for everything when he didn't really think things were his fault and he felt like the people weren't interested in his side of the story. Anyway, I had to get another order of protection because our fights were getting bad again. He moved out this time, but not willingly.

I finally made good on my threat to sue him for divorce. But this has been harder than anything else. He actually had the nerve to file for sole custody of the children! I know that it's important for kids to have fathers but not fathers like this one. I hear that in some states if you're a batterer, you can't get custody of the kids. He doesn't really want the kids at all--he just knows it's a way to get to me--like he has something over me. I hope we can make the judge understand this. My lawyer told me that supervised visitation might be an option, and I think this would be good. He also found out where I work and he has harassed me there. But he said it was an accident that he came into the store, he claims he didn't know I worked there, so there's nothing I can do about it. I just wish he'd leave me alone. I don't know anymore what I can do to stop him. I don't want to keep feeling like I have to look over my shoulder every time I walk down the street. Why should I be in this psychological prison? Why isn't he in some kind of prison? Why isn't his violent temper his problem? Why doesn't society do something about this?

*This Journal is a composite of many women's stories and is written as an introduction to the challenges battered women face every day.

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to Batterer Treatment and Intervention Backed by Detention


Part One

Second Introduction: An Essay

Please read the following essay by Andrea Dworkin before returning to the links above. You can find this and other works by Andrea Dworkin at this web site.

"A Battered Wife Survives"

Rape is very terrible. I have been raped and I have talked with hundreds of women who have been raped. Rape is an experience that pollutes one's life. But it is an experience that is contained within the boundaries of one's own life. In the end, one's life is larger. Assault by a stranger or within a relationship is very terrible. One is hurt, undermined, degraded, afraid. But one's life is larger.

A battered wife has a life smaller than the terror that destroys her over time. Marriage circumscribes her life. Law, social convention, and economic necessity encircle her. She is roped in. Her pride depends on projecting her own satisfaction with her lot to family and friends. Her pride depends on believing that her husband is devoted to her and, when that is no longer possible, convincing others anyway. The husband's violence against her contradicts everything she has been taught about life, marriage, love, and the sanctity of the family. Regardless of the circumstances in which she grew up, she has been taught to believe in romantic love and the essential perfection of married life. Failure is personal. Individuals fail because of what is wrong with them. The troubles of individuals, pervasive as they are, do not reflect on the institution of marriage, nor do they negate her belief in the happy ending, promised everywhere as the final result of male-female conflict. Marriage is intrinsically good. Marriage is a woman's proper goal. Wife-beating is not on a woman's map of the world when she marries. It is, quite literally, beyond her imagination. Because she does not believe that it could have happened, that he could have done that to her, she cannot believe that it will happen again. He is her husband. No, it did not happen. And when it happens again, she still denies it. It was an accident, a mistake. And when it happens again, she blames the hardships of his life outside the home. There he experiences terrible hurts and frustrations. These account for his mistreatment of her. She will find a way to comfort him, to make it up to him. And when it happens again, she blames herself. She will be better, kinder, quieter, more of whatever he likes, less of whatever he dislikes. And when it happens again, and when it happens again, and when it happens again, she learns that she has nowhere to go, no one to turn to, no one who will believe her, no one who will help her, no one who will protect her. If she leaves, she will return. She will leave and return and leave and return. She will find that her parents, doctor, the police, her best friend, the neighbors upstairs and across the hall and next door, all despise the woman who cannot keep her own house in order, her injuries hidden, her despair to herself, her smile amiable and convincing. She will find that society loves its central lie--that marriage means happiness--and hates the woman who stops telling it even to save her own life.

The memory of the physical pain is vague. I remember, of course, that I was hit, that I was kicked. I do not remember when or how often. It blurs. I remember him banging my head against the floor until I passed out. I remember being kicked in the stomach. I remember being hit over and over, the blows hitting different parts of my body as I tried to get away from him. I remember a terrible leg injury from a series of kicks. I remember crying and I remember screaming and I remember begging. I remember him punching me in the breasts. One can remember that one had horrible physical pain, but that memory does not bring the pain back to the body. Blessedly, the mind can remember these events without the body reliving them. If one survives without permanent injury, the physical pain dims, recedes, ends. It lets go. The fear does not let go. The fear is the eternal legacy. At first, the fear infuses every minute of every day. One does not sleep. One cannot bear to be alone. The fear is in the cavity of one's chest. It crawls like lice on one's skin. It makes the legs buckle, the heart race. It locks one's jaw. One's hands tremble. One's throat closes up. The fear makes one entirely desperate. Inside, one is always in upheaval, clinging to anyone who shows any kindness, cowering in the presence of any threat. As years pass, the fear recedes, but it does not let go. It never lets go. And when the mind remembers fear, it also relives it. The victim of encapsulating violence carries both the real fear and the memory of fear with her always. Together, they wash over her like an ocean, and if she does not learn to swim in that terrible sea, she goes under.

And then, there is the fact that, during those weeks that stretch into years when one is a battered wife, one's mind is shattered slowly over time, splintered into a thousand pieces. The mind is slowly submerged in chaos and despair, buried broken and barely alive in an impenetrable tomb of isolation. This isolation is so absolute, so killing, so morbid, so malignant and devouring that there is nothing in one's life but it, it. One is entirely shrouded in a loneliness that no earthquake could move. Men have asked over the centuries a question that, in their hands, ironically becomes abstract: "What is reality?" They have written complicated volumes on this question. The woman who was a battered wife and has escaped knows the answer: reality is when something is happening to you and you know it and can say it and when you say it other people understand what you mean and believe you. That is reality, and the battered wife, imprisoned alone in a nightmare that is happening to her, has lost it and cannot find it anywhere.

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Part Two:

Batterer Treatment and Intervention Backed by Detention

 

One of the goals of this cybercourse is to provoke you to think in new ways--to approach old issues anew. Our purpose is to find ways to challenge the current structure of gender relations in which violence by males against females is an expected part of our social schema. When focusing on the problems of women who are beaten by their intimate partners, we find a system that is tragically flawed in its failure to provide meaningful protection from abuse for these women. Now that the battered women's movement has made significant progress in providing services for battered women and raising public awareness of their plights, we can move beyond triage. It's time to reconsider the institutional arrangements surrounding the state response to domestic violence and to redistribute more fairly the burdens and responsibilities for intimate partner violence.

It's time to shift the focus to where it belongs: on the batterer.

Current batterer treatment or intervention runs the gamut from court-ordered weekly counselling sessions to jail. Our system not only expects, but also supports, the notion that battered women should leave their homes and seek shelter in hiding; no programs have yet been developed that displace the batterer (except for jail).  Adding a housing component to the most promising batterer intervention programs could augment significantly the effectiveness of the criminal justice system's response to domestic violence. It would keep the batterer in custody and leave the battered woman free to stay safely at home.

"Why Doesn't He Leave? The Creation of Batterer Detention Facilities"
--Diane L. Rosenfeld

All Rights Reserved, 1999

Rhonda confessed that she was so scared of her ex-boyfriend Steve that she had been sleeping in her car for the past four days.  The day after she had obtained an emergency order of protection against him, he followed her in his car, forced her off the road, and threatened to “rip her guts out” with a lug wrench that he held in his fist, poised in the air and aimed at her stomach.  Rhonda’s 63 year-old father, who was with her, jumped out of the car and tried to restrain Steve.  Steve then turned his violent rage toward Rhonda’s father and beat him so severely that he required a visit to the emergency room.  When Rhonda called my office, she was facing a return to court for a full hearing to extend the protection order, and was terrified.  I agreed to accompany her. Steve received a month-long continuance to hire an attorney, leaving Rhonda in pretty  much the same situation she was in before the hearing—in possession of an order of protection that did not seem to provide any protection at all.  When we talked about a safety plan, her options for hiding were limited. She was afraid to go to her apartment--Steve already had broken in there.  She also did not want to go to her father’s house and risk further endangering him.  Rhonda spoke of her need to hide from Steve with an air of inevitability—a fear that he would find her anyway.  We agreed she needed to go to a battered woman’s shelter.Rhonda's story is fairly typical. After a violent attack by an intimate partner, she tried to leave and seek protection from further abuse. He responded by tracking her down adn attempting to reassault her, this time more severely than the first. The criminal justice system responded by advising her to hide in a battered women's shelter and by offerering her an order of protection. One might question the inconsistency of this response, for if orders of protection provided the protection they claim to, why would the battered woman need to seek shelter?

Indeed, why, after a woman has been beaten by her intimate partner, should she then be forced to seek shelter outside of her home, while her abuser is free to roam the streets and terrorize her?  Doesn’t this arrangement just add insult to injury—the insult of leaving one’s home as a result of the injury of being beaten there?  Why must she restrict her own freedom of movement out of realistic fear that he will stalk her and assault her again, while his freedom of movement remains relatively unfettered?

The current paradigm of response to domestic violence is built upon the notion that she should leave.  Thus, we should stop being surprised that ‘unenlightened’ people persistently ask “why doesn’t she just leave?”  The entire system is founded on the assumption that it is the responsibility of the battered woman to leave—as if leaving is something completely within her power.  A better question is: why should she leave?  Why doesn’t the system require the batterer to bear the responsibility for his own violence?

To some extent, the answer lies in the history of the battered women’s movement and domestic violence law.  The movement to provide shelter for battered women seeking to escape intimate partner violence began in England in the 1970’s. (Elizabeth Pleck, Domestic Tyranny, Oxford University Press: 1987).  It spread to the U.S. in the mid-1970’s before domestic violence was visible in the eyes of the law.  Battered women’s shelters became a central feature of societal response to domestic violence.  In a way unique to domestic violence, the state relies upon the existence of shelters, yet in most states, neither fully supports nor runs them.  

Now that domestic violence is so clearly visible in the eyes of the law, however, it is time to reexamine these institutional arrangements. I believe that the appropriate response to domestic assault is the creation of Batterer Detention Facilities to house batterers after an arrest. The program would couple the most important features of successful batterer intervention programs with housing detention. The hope is that the housing requirement woudl augment the effectiveness of the batterer intervention, while increasing victim safety through strict offender monitoring.

The criminal justice system expects the battered woman to be responsible for her own safety. In effect, this program would change that, by shifting the responsibility for battering from the battered woman to the batterer. It is grounded in the notion that she should not be punished by having to uproot her life and that of her children to escape an abusive spouse or partner. Rather, the batterer will be the one affected by the domestic assault. The detention would be a limitation on his liberty, and thus a real consequence to him of his criminal behavior.

 She Just Wants the Violence to Stop—She Might Not Want to Leave

Normatively, this program is centered not on the question of ‘why doesn’t she leave,’ but rather on the notion that she just wants the violence to stop.  Many battered women I have talked to and read about claim that this is what they want.  They don’t necessarily want to leave; and it is wrong for people to presume that they do.  After all, they often have strong emotional ties to the batterer, and he is not violent all of the time. 

This article will describe the central features of creating a Batterer Detention Facility.  I suggest that the program be thoroughly vetted and carefully designed as a pilot program that could be adapted in different communities according to local needs.

COORDINATED COMMUNITY RESPONSE

Ideally, the program would be situated in a community that already has an infrastructure of coordinated community response that includes a dedicated judicial apparatus, vertical prosecutorial policies, coordination with victim services, probation officers, law enforcement officials, batterer intervention staff, and health organizations (to address substance abuse and mental health issues).  Additionally, members of the defense bar should be included in the design of the program, as their cooperation and involvement can facilitate their clients’ participation in the program.

The creation of batterer detention facilities will raise many questions that are most appropriately answered by the individual community that is serious about addressing domestic violence.  Political will is a necessary element of a successful pilot program.  Moreover, the program will work best in a community that understands the importance of structuring a coordinated response to domestic violence.

VICTIM SERVICES

The safety of the victim is the cornerstone of the batterer detention facility proposal. Indeed, the proposal is structured to increase her range of options, as well as to redistribute the rights and responsibilities for the domestic assault. Detaining the perpetrator allows the battered woman to confront her options in relative safety. Moreover, she will be able to make these choices while staying at home, rather than being confined to the 'choice' of hiding from her abuser or going back to him.

Communities should ensure that comprehensive victim services are fully incorporated into the Batterer Detention Facility.  Victim advocates must be included in the design of the program to guarantee that victim safety concerns are incorporated into the program and to ensure that victim preferences are realized.

The detention program should include the appointment of a special victim liaison to communicate with victims.  Victim notification is very important at certain times in the program.  In most existing batterer’s programs,  victims are notified when a batterer begins the program, when he is terminated for non-compliance, when he completes the program, and when there is an imminent threat to the victim’s safety. (NIJ Report, Batterer Intervention: Program Approaches and Criminal Justice Strategies, Feb. 1998) (Hereinafter NIJ Report).  Notification procedures should be developed specifically to accommodate the needs of victims whose abusers are in the detention program.  While a victim would of course be informed of threats to her security, the detention program increases the extent to which the batterer’s behavior is controlled and monitored.  Thus,  threats to her safety would be more immediately and effectively addressed, since he is already in a custodial setting.

The victim liaison could also perform the role of explaining safety planning and the basic features of the program.  Many battered women whose abusers are in batterer intervention programs are not aware of services available to them.  Importantly, many of them do not know that they are not alone.  Victim liaisons can provide crucial information to help battered women build the support system they need to improve their lives and ensure their safety.  They can help the victim understand that enrollment in the batterer detention facility does not guarantee that the batterer will change.  The liaison can help the battered woman evaluate her options.  Importantly, she can serve as a person to call whenever the battered woman needs support.           

FUNDING           

The funding stream for any such program should come from sources other than battered women service provisional funding.  Prison budgets and community initiative budgets should be tapped as income sources.  Public/private partnerships should be explored for the initiation of the program.  Also, the batterer should be required to pay for his participation.  The work-release aspect of the program (described below) would allow this to happen.  Fees could be structured on a sliding scale so that all batterers would be required to pay something, but the lower income batterers would still be able to participate.           

JUDICIAL ALTERNATIVES           

The proposal to create batterer detention facilities should have intuitive appeal to the judiciary.  It adds a meaningful alternative to the current choice of jail or no-jail. Judges are often uncomfortable issuing only orders of protection, knowing the probability that the order may not protect the victim.  Yet, they impose jail only for the most eggregious intimate partner assaults.  Many judges simply feel that a prison sentence is incommensurate with the crime of domestic violence.           

The creation of Batterer Detention Facilities as a criminal justice option is not intended to suggest that battering is not criminal.  Indeed, battering is criminal, but it is important to be mindful that the common criminal sanction has not proven to be the most effective way to address domestic violence.  For example, sentencing a batterer to jail for a relatively short period of time might have the effect of incubating the violence. Placing a convicted batterer in confinement with other violent offenders offers the opportunity for male bonding over violent criminal behavior.  A prison sentence without specific batterer intervention will likely produce an angrier batterer with a stronger desire to seek revenge on his victim upon his release.           

Jail remains an option, however.  The program could be structured as a graduated sanctions schema in which the default is jail.  If the batterer violates terms of the program, he could go to jail without a hearing.

AN ASPIRATIONAL MODEL

Ideally, the program would be tried in a jurisdiction that has (or creates) the legal apparatus to support it.  As a preliminary matter, the community would have a dedicated domestic violence court with judges willing to impose serious sentences for domestic violence offenses and willing to follow up forcefully on any violations of an order of protection.           

Within this model, development of intake procedures would be critical.  The goal is to keep the batterer in state custody from arrest through entry into the detention program.  This accomplishes at least three distinct purposes. First, holding the batterer in custody would reduce or eliminate the risk to the victim since it would disable him from physically threatening her or reassaulting her.  The victim would then be able to seek services and begin the healing process in relative safety.  She would not be burdened with having to uproot her life by seeking shelter.  Instead of being forced to leave her support system (her family and friends), she would be able to focus on the choices ahead for her.

The second benefit is related to the first—the state intervention will be aimed at defusing the volatile domestic violence situation.  Current state response to domestic violence is largely inadequate and often operates to place a battered woman at an increased risk of danger.  This response, however, could be transformed into meaningful intervention.  The state knows that separating the parties after a domestic assault is necessary.  Mandatory arrest statutes reflect this knowledge.  Yet, it is also commonly known that releasing the offender shortly after his arrest poses a direct threat to his victim.  Although the batterer is usually released pursuant to the terms of a protection order, these protection orders are habitually violated.           

The state intervention should safely separate the parties to a domestic violence incident. The intervention would be aimed at derailing the violent events that so often are like a runaway train.           

The third benefit of continuous custody is that it eliminates the problem of no-shows or drop-outs.  Current research on batterer intervention found that batterers who fail to show up for treatment programs are more likely to reassault than program completers. (Patterns of Reassault in Batterer Programs, forthcoming in Violence and Victims, Gondolf, 1998).  The NIJ Report found high levels of slow compliance and noncompliance with enrollment in batterer intervention programs for various reasons.  “Whatever the causes, by allowing slow compliance and noncompliance with court-ordered batterer intervention, the criminal justice system…may also endanger the victim.” (NIJ Report, emphasis added, pp. 85-6).  Thus the Report suggests that enrollment in the batterer intervention should occur quickly.  (Id. at 84).           

In the Batterer Detention Facility proposal, the arrest, intake, sentencing and enrollment would take place in a short time span after arrest.  The problem of not showing up is eliminated—since the batterer is routed directly from arrest to the detention program, it will not be within his discretion to attend or avoid the therapy sessions, because they are part of the program.

During his initial detention, the batterer would be subject to an intake evaluation to assess his lethality risk. 

Lethality assessments are a critical determinant of entry into the Batterer Detention Facility.  For repeat batterers, jail is the more appropriate sanction.  The Batterer Detention Facility would be most beneficial to first-time offenders who appear genuinely interested in changing their behavior and have something to lose if they do not.

The legal apparatus necessary to sustain a Batterer Detention Program would include a structure of incentives to make the program attractive to the batterer. First would be a sentencing alternative.  If the batterer agrees to enter the program and then completes it successfully, after a period of perhaps a year during which he has not reassaulted his victim or a new victim, the conviction could be expunged from his record.  Second, this program is targeted at men who are genuinely interested in reforming their violent behavior to eliminate the destructive force it has on their lives.  Prosecutors and judges who participate in the coordinated community council that creates the program should construct carefully this system of incentives.

WORK RELEASE UNDER ELECTRONIC MONITORING

A key feature of the batter detention facility proposal is that it allows perpetrators to participate in a work release program. Allowing work release serves at least two purposes.  First, it removes the economic obstacle that too often prevents a battered woman from participating in the prosecution of her batterer.  If the battered woman is economically dependent on the batterer, she will find herself between a rock and a hard place. If he is acquitted, she is endangered.  If he is convicted, he may go to prison and lose his job.  This might mean the battered woman and her children go hungry.

Under the batterer detention facility proposal, however, the perpetrator will continue working so that he may—and must--continue support payments to his partner.  This eliminates the economic consequences to the battered woman.

Second, allowing the batterer to keep his job while under detention will likely seem more fair to a judge.  Losing one’s job and going to prison for a short period could create more serious safety risks to a battered woman, because the batterer is likely to try to reconcile with her after his release, but will be more angry at her for what “she has done to him.”

While under work-release, the batterer would be monitored electronically and otherwise.  Phone check-in systems and restricted transportation, as well as involvement with the batterer’s employer can all be integrated into the program.  Technological advances in electronic monitoring should be explored to find the systems most effective for ensuring the safety of the victim.

COUNSELING AND INTERVENTION

Batterers who partipate in the program would receive intense counseling and intervention therapy.  Treatment modalities would be modeled after programs like EMERGE in Cambridge, Massachussetts.  Optimal sites for pilot programs would have highly regarded batterer intervention services available.

While current research does not provide a clear answer to the question of whether such a program would work, Batterer Detention Facilities are consistent with principles emerging from the research. The therapeutic component of a batterer detention facility would be designed to incorporate various recent findings in batterer intervention research.  There is much current research to indicate that a batterer intervention program could be usefully augmented by the development of a special batterer detention facility.  Three findings of note are as follows. First, Gondolf reported that the findings of his multi-site evaluation “demonstrate that court review coupled with batterer counseling contribute to substantial reduction in rearrests.” (Impact of Mandated Court Review on Batterer Program Compliance, Gondolf, 1998).  The detention program would include both court review and batterer counseling. Second, men who complete batterer intervention programs have been found to be half as likely as drop-outs to reassault. (Gondolf, 1998). As discussed above, batterers in the detention program would not have the option of dropping out. Third, the evaluation found that when the batterer and victim continue to live together, the likelihood of reassault significantly increased.

CONCLUSION

Integrating the most recent findings regarding effective batterer intervention into a comprehensive, community-supported program to house batterers in detention is a program that should be tried.  It has intuitive appeal as well as the potential to transform public perception of domestic violence.  It offers a real answer to a problem that causes too many people to shrug their shoulders wondering what might be done to make a difference.

A community dedicated to doing something to stop the violence that tears families apart could study, plan and pilot a program such as this.  I am hopeful that meaningful intervention could defuse the violence, prevent further violence, and offer a chance for a battered woman to make essential choices in safety.  Finally, I believe that the state owes a battered woman equal protection under the laws.  Such protection currently is sorely lacking, leaving battered women at predictable and unacceptable risk of further and more severe assault.  Creating Batterer Detention Facilities could offer real protection to victims, real consequences to batterers, and real meaning to orders of protection offered by the criminal justice system.   

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The Effects of Domestic Violence on Children

Children experience domestic violence both as witnesses and as victims. Some children watch their fathers beat their mothers but are never hit themselves. It would be a mistake to think these children escape the cycle of violence. They recognize, understand and absorb the violence they see at a very early age:

Parents often believe that their children are unaware of violent incidents because they were "sleeping" or "in the next room with the television on." Adults also assume that children will "forget" or will not understand the violence that they have witnessed. Interviews with children, however, demonstrate that almost all can provide detailed accounts of the violent behavior. Case studies demonstrate that children are able to recall traumatic events that occurred when they were as young as eighteen months of age.
--Philip C. Crosby, Custody of Vaughn: Emphasizing the Importance of Domestic Violence in Child Custody Cases (citations ommitted).

In a guide for shelter workers, the Massachusetts Coalition for Battered Women Service Groups advises readers that "[t]he emotional effects of observing one's mother being battered are similar to the effects of being abused directly . . . ." Children who witness family violence may experience depression and post traumatic stress disorder. They may feel responsible for the abuse and blame themselves. A child may try to protect her mother or she might identify with her father and believe him when he says it's all her mother's fault. Children who witness domestic violence may become quiet and withdrawn or they might repeat the violence they see at home with childhood friends. Children who have experienced violence in the home are more likely to become involved in an abusive relationship later in life (as batterers or as victims) and even to commit violent crimes. Please read these excerpts from Crosby and McGill, Deutsch and Zibbell which describe the effects on children of witnessing abuse and tell the story of one particular family in Massachusetts. (For the full text of the McGill article, go here.)

Like Vaughan, many children directly experience physical abuse at the hands of their mothers' batterers. For a different story and a first-person perspective, please read the (very brief) Preface and Chapter 1 of Stephanie Rodriguez's book Time to Stop Pretending. Statistics show that wife abuse and child abuse often go together. Various studies found a co-occurrence of partner and child abuse in anywhere from 20% to 100% of violent families, with a median of 59%. (For this statistic and additional sociological data, feel free to read: Clare Dalton, When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System). These statistics would seem to demand a close working relationship between battered women's advocates and child protective services (CPS). With so much overlap, a concerted effort to end all family violence would be the most effective and logical response. In reality, there has been only a noticeable lack of cooperation. Those advocating for battered women and those responsible for protecting children see themselves as serving two very different populations with frequently competing interests. Some of this difference in focus can be explained by structure: battered women's shelters are usually nonprofit agencies while child protective services are "institutionalized" and part of the public sector. Other basic assumptions have traditionally kept battered women's advocates and CPS apart:

. . . domestic violence advocates and child welfare practitioners have different focuses, missions, and mandates. Many child welfare workers believe that battered women's advocates focus exclusively on the woman and regard the well-being of battered mothers as more important than that of their children. They also believe, with some justification, that domestic violence service programs have been slow to acknowledge and deal openly with child abuse and neglect perpetrated by women.

On the other hand, many battered women's advocates fear family preservation means encouraging women to stay with their batterers. Many view the child protection sytem as simply re-victimizing battered mothers by removing their children from their home, often after charging mothers with failure to protect their children from abuse perpetrated by their batterers.
--From: National Council of Juvenile and Family Court Judges, Family Violence: Emerging Programs for Battered Mothers and Their Children 10-11 (1998).

As just one example of this mutual suspicion, the manual for shelter workers published by the Massachusetts Coalition of Battered Women's Service Groups warns that "many social service workers will take a punitive view of the mother, treating her as the abuser and threatening foster placement."

Battered women's advocates see domestic violence as a symptom of women's fundamental disempowerment in American society. Most advocates are trained to overcome this disempowerment by listening to the battered woman, giving her options, and restoring the choice that has been violently taken from her. This "woman-centered philosophy" involves working with the battered woman "to set her own goals." See Sandra K. Beeman, Child Protection and Battered Women's Services: From Conflict to Collaborations. In the words of one advocate, "They set their own goals and we help them, we give them options . . . . we don't set their goals." And according to another: ". . . if a woman wants to go back into a situation, we emphasize that we are here to help women do what they want to do. It may not be what I would choose to do, but I am there to help them to do what they want to do. It is their life and it is not up to me. I can give them options, but they make their choices." In other words, if a battered woman wants to return with her children to an abusive stiuation, it is not for the shelter worker or advocate to tell her she is making a bad decision. This attitude recognizes that battered women need to feel they can make choices, that their decisions will be respected. It also recognizes that leaving is difficult (there are often serious economic pressures to stay, and there is rarely much available shelter space) and often the most dangerous thing a battered woman can do. (Women who leave are at 75% greater risk of being killed than those who stay - http://www.famvi.com/dv_facts.htm)

CPS workers believe they must look out for the children, and they may feel alone in their attempts to do so. Often CPS workers deal exclusively with the mother: "CPS workers described a standard practice of opening cases in the name of the primary caretaker - usually the mother. According to the child protection workers, the consequence of the case being opened in the mother's name, even if the offender was the child's father or the mother's male partner, was that the service planning focused on the mother making changes to protect her children." (See Beeman, cited above). CPS workers generally leave punishment of the batterer to the criminal courts; they feel they lack the "'clout' or leverage with [the batterer]" necessary to involve him in changes on behalf of the children. In addition, the child protection data system makes it difficult to track violent husbands and fathers. All this means that women are held more responsible than men, and batterers can escape the system altogether (as explained above, their names are probably not even associated with the CPS file). CPS workers may recognize this: "We do hold the mothers accountable for staying out of these relationships, and I think that the mothers are held to higher standards and more accountability than the fathers or the offenders." (Again, see Beeman). But they still feel there is little they can do. Protecting children means exerting influence over the parent most likely to take action, and that parent is generally assumed to be the mother. CPS workers realize that "[c]oncern about the wellbeing of her children often has a determinieng role in a battered woman's decision whether or not to leave her violent partner . . . ." (See Patricia K. Kerig and Anne E. Fedorowicz, “Assessing Maltreatment of Children of Battered Women: Methodological and Ethical Considerations”). Unfortunately, CPS workers often end up forcing women to choose: leave him or lose your children, get a protection order or lose your children, leave him or face criminal charges of neglect or failure to protect. See Beeman. Battered women who do not take the steps ordered by CPS may lose custody in juvenile court. They may also be charged with failure to protect their children, both from abuse itself and from witnessing abuse. Failure to protect charges will be discussed in more detail below, but for an introduction please read this Village Voice article.

All this infuriates battered women's advocates. They see a process of re-victimization; battered women are attacked in the CPS system just as they are at home. A battered woman may face criticism as a mother just as she is trying to escape abuse herself. Advocates insist that CPS should hold the batterer, not the mother, responsible. But CPS workers, as described above, usually feel helpless when dealing with a batterer and leave that effort to the courts. The juvenile and criminal courts are often not working together, however (if a criminal proceeding against the batterer exists at all). As a CPS case makes its way through family court, it is still the mother whose name is on record, who is assumed to be responsible. And the abuse she has suffered may not be the focus of (or even come to the attention of) the court. A comprehensive attempt to end family violence must not only resolve the apparent conflicts between battered women's advocates and CPS workers but must also educate the judiciary and focus its attention on the complex and systemic nature of family violence. Batterers must be held accountable and battered women must not be the sole targets of blame.

There is reason for hope. Battererd women's advocates and CPS workers have the same basic goal: a safe family life free of violence. In talking to CPS workers and battered women's advocates, Beeman, Hagemeister and Edleson found that both groups have similar ideas of success. CPS workers recognize that ensuring the safety of the mother is perhaps the best way to guarantee safety for the children; one CPS worker says "I think that [the two groups] can find a common ground, if you're looking for what is safe for the woman, that will by default provide safety for the children. And maybe that is where the child protection and the domestic advocates can come together . . . ." In addition, both groups realize their most successful outcomes involve punishing the batterer so he is "no longer a threat to the woman and her children": "The one thing that seems to be really key in it from what I have seen is the criminal prosecution of the offending party." Innovative programs in several states attempt to bridge the gap between battered women's advocates and CPS. In Duluth, Minnesota, the Domestic Abuse Intervention Project has cosponsored a training program for CPS workers. (For more on the Duluth program, feel free to read this optional article: Melanie Shepard and Michael Raschick, How Child Welfare Workers Assess and Intervene Around Issues of Domestic Violence.) In Massachusetts, the Department of Social Services has created a Domestic Violence Program with trained battered women's advocates who help DSS staff deal with cases involving partner abuse; DSS staffers are trained to recognize signs of abuse and can turn to the battered women's advocates for specific advice and guidance. (For more on the Massachusetts program, feel free to read this optional article by Pamela Whitney and Lonna Davis - analyzing the integration of domestic violence and child welfare services ). With funds from the Violence Against Women Office of the Department of Justice, Miami-Dade County has created the first integrated program which also involves the judiciary. The Miami program - the Dependency Court Intervention Program for Family Violence (DCIPFV) - begins with a domestic violence screening by protective investigators. Women who are identified as victims of abuse are then offered advocacy services on a voluntary, no-cost basis (these services can range from shelter provisions to job training and depend on what the woman identifies as her most pressing need); before accepting such services, women are told that advocates might share information with child abuse investigators and that advocates are mandated child abuse reporters. If the case becomes serious enough to merit court proceedings, the woman is put in touch with an advocate from a local battered women's shelter who is present at court (Florida law provides for privileged communication between a battered woman and her advocate, as long as the advocate is employed by a domestic violence center). Battered women accused of abuse or neglect may be referred to a 12 week intervention program with their children, and DCIPFV also includes a batterer intervention program. (For more on the Miami-Dade program, feel free to read this optional article by Gregory L. Lecklitner).

None of these solutions is perfect, and there is clearly no easy answer. Many of these problems are further complicated when the mother herself is abusive, either verbally or physically. It is unclear how often battered women are also guilty of direct abuse, but battered women's advocates insist their clients are often wrongfully accused. An honest assessment can only come once CPS workers and battered women's advocates recognize their common goals and begin to work together. The system as a whole must also adjust; battered women cannot be held soley responsible for their children and for the actions of the batterer. They cannot be expected to do everything themselves, and forcing them to choose between their children and the dangerous decision to leave is often counter-productive. To the extent DCIPFV addresses these various complexities, it is perhaps the best program in existence today. Later in this section we will consider a more complete re-evaluation of the system's approach to domestic violence.

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Erica Goode, "When Women Find Love Is Fatal," New York Times at F1: February 15, 2000.

 They had little or nothing in common. And in the normal course of events, it is unlikely their worlds would ever have intersected.

Kathleen A. Roskot, 19, the daughter of middle-class parents on Long Island, was a star athlete on the Columbia University lacrosse team. Marie Jean-Paul, 39, known to her friends as Carol, grew up in Haiti, and worked as a nurse's aide at a hospital in Brooklyn. Joy Thomas, 18, graduated from Mount Vernon High School in June and was studying to be a teacher at Westchester Community College.

Yet in the course of 48 hours, the lives of these three women were abruptly and horribly linked together: they were, all three, the targets of homicidal attacks by men with whom they had had romantic relationships.

On Feb. 6, Ms. Roskot's throat was slashed in her dormitory room with a kitchen knife, apparently wielded by a former Columbia student she had dated. The next morning in Brooklyn, Mrs. Jean-Paul's husband used a machete to cut his wife's throat, then doused her body and set it on fire.

Ms. Thomas, shot in the head in Westchester hours later, lived, but only through a stroke of luck: her former boyfriend's pistol jammed. In all three cases, the men believed responsible for the attacks committed suicide shortly afterward.

Such events ought to be surprising. In fact, anyone who examines the crime reports knows that they are commonplace.

According to homicide statistics collected by the Federal Bureau of Investigation, 32 percent of the 3,419 women killed in the United States in 1998, the latest year for which data are available, died at the hands of a husband, a former husband, a boyfriend or a former boyfriend.

On the basis of smaller, regional studies and the limitations of the data gathering methods used by the F.B.I., however, many experts believe that the true figure is much higher, perhaps as much as 50 percent to 70 percent. In comparison, 4 percent of 10,606 male homicide victims in 1998 were killed by current or former intimate partners.

And while homicide rates as a whole have sharply declined over the past 20 years, and the rate at which men are killed by intimate partners along with them, rates for women, and particularly for white women, have not declined as sharply, despite efforts by police departments around the country to increase their response to calls involving domestic violence. In some regions, New York City for example, they have not gone down at all.

"We haven't come close to affecting intimate partner violence and homicide the way we have other kinds of violence and assault," said Dr. Susan Wilt, director of the New York City Department of Health's Office of Health Promotion and Disease Prevention. "It remains a shocking issue that this is the main reason that women end up dead and that it occurs within the context of their home and family, where they are supposed to be safe."

"Women worry when they go out," Dr. Wilt said. "They should worry when they stay in."

Why are men so much more likely to kill their partners than women? Feminist scholars and domestic violence experts have long contended that such crimes reflect a society in which men feel entitled to exercise power and control over women, and to use physical violence when necessary to assert their dominance.

"We are in a culture that in many ways celebrates male dominance and female submission, and that is in some ways the definition of an erotic heterosexual relationship," said Sally Goldfarb, an associate professor at Rutgers School of Law in Camden, N.J., and an expert in family law.

Some evolutionary psychologists who study spousal murders, like Dr. Margo Wilson and Dr. Martin Daly at McMaster University in Ontario, also argue that men as a whole, rather than individual men, are the problem. But they base this assertion not on culture but on biology. Violence, they believe, may have developed as a strategy for men to exert proprietary control over women, and in particular over their reproductive capacities. Many psychologists, in contrast, focus on the personality characteristics and life histories that lead men to batter and kill.

Whatever the validity of such views, social scientists have in recent years begun to investigate homicides by intimate partners in a much more systematic way, hoping to find ways to spot the potential for lethal violence before it occurs, and to develop better tactics for intervention.

What emerges from such studies is a picture as consistent as it is discomforting. Many studies confirm, for example, that women are at particular risk when they are in the process of leaving a relationship, something long noted by domestic violence workers.

In a study of 293 women killed by intimates in North Carolina from 1991 to 1993, Dr. Beth Moracco of the University of North Carolina School of Public Health and her colleagues found that 42 percent had been killed after they threatened separation, tried to separate or had recently separated from their partners. In another study, researchers found that of 551 intimate partner homicides in Ontario from 1974 to 1990, 32 percent were committed in the context of a separation; in another 11 percent, the killer believed that the female partner was sexually unfaithful.

The period just after a woman has left is often the most risky, studies find. In a review of homicides in Chicago, for example, Dr. Wilson and Dr. Daly found that 50 percent of the killings of wives by their husbands took place within two months of a separation; 85 percent occurred within a year.

"The link between separation and murder is more than incidental," Dr. Wilson and Dr. Daly observed in their study. "Homicidal husbands are often noted to have threatened to do exactly what they did, should their wives ever leave them, and they often explain their homicides as responses to the intolerable stimulus of the wife's departure."

The intensity of emotion that leads men to kill women they once loved is often evident in the crimes themselves.

"It's absolutely a crime of rage," said Dr. Wilt, who has been tracking homicides by intimate partners in New York City since 1990. "There is a sense of 'How dare you think you can live without me?' "

Of the 379 women known to have been killed by male intimates in New York from 1990 to 1997, Dr. Wilt and her colleagues found, 46.7 percent were killed with guns, 26.6 percent were stabbed, 8.2 percent were bludgeoned, 7.9 percent were strangled, and 10.6 percent were killed by other means, including suffocation and being pushed from a window or the top of a building.

That women killed by a male partner are more likely to be stabbed or strangled than those killed by someone less close to them, Dr. Wilt said, reflects the emotional nature of the crime. "When you stab or strangle someone to death, it's a lot more intimate than shooting them," Dr. Wilt said.

Dr. Donald Dutton, a psychologist at the University of British Columbia, who recently completed a study of 50 men in prison for killing their wives, said that "typically, the murder itself is overkill -- there is more done to the woman than is necessary to kill her."

Dr. Dutton said men who killed their wives or girlfriends tended to fall into two categories. A minority, he said, are calculating killers, whose motive is instrumental: cashing in on an insurance policy, for example. More common, he said, are killers who suffer from severe personality disturbances. Such men, Dr. Dutton said, often have a terror of being abandoned and express their dependency in extreme jealousy and controlling behavior.

"What's going on deep down is that they believe the woman is leaving them and they can't live without her," he said. "The prospect of her leaving throws them into a downward spiral where they feel like they are staring into the abyss."

Frequently, Dr. Dutton added, the killer enters a "dissociated," trancelike state after the killing. In one case, he said, a man killed his wife and children in Berkeley, Calif., boarded a plane for New York, and was picked up by the police at La Guardia Airport still wearing his bloody clothes.

Sometimes when a woman is murdered, it appears to come out of nowhere: Thomas G. Nelford, the Columbia dropout who is believed to have killed Ms. Roskot, appears to have had no history of battering, and friends described him as a pacifist.

More often, though, there were many portents of danger. Through a study of completed and attempted murders of women by intimate partners in 11 large and mid-size cities, a group of researchers, led by Dr. Jacquelyn Campbell at Johns Hopkins University School of Nursing, is trying to put together a list of risk factors for lethal violence.

The study is not yet completed, but Dr. Campbell and her colleagues have published a small part of their findings and have posted some preliminary findings on the Internet.

The study reinforces the findings of other research. For example, Dr. Campbell said in an interview, the researchers are finding that the biggest risk factor is a history of violent behavior by the man in the relationship. Of 250 women in the study who were killed by current or former partners, 65 percent had been assaulted by their partners in the past. Of the 200 victims of attempted homicide, 72 percent had experienced a previous assault.

Past stalking of the woman by her male partner, Dr. Campbell and her colleagues found, also posed a significant risk, occurring in 69 percent of homicides and 84 percent of attempted homicides. When the woman had separated from her partner, the frequency of stalking rose to 88 percent.

In many cases, Dr. Campbell said, stalking occurred even when the couple lived together. A man, for example, might show up unexpectedly at his partner's workplace, beep her repeatedly on a pager, demanding to know where she is, or telephone her dozens of times a day.

Other predictors of lethal violence included an escalation in the frequency or severity of physical abuse, attempts by the man to choke the woman or to force her to have sex, the presence of a gun in the house, the use of street drugs or the abuse of alcohol by the man, verbal threats, and the woman's belief that her partner was capable of killing her.

A history of domestic violence is found less often in men who kill themselves after killing their partners, Dr. Campbell said. Studies indicate that about 25 percent of men who kill their partners commit suicide afterward. Often, they do so with an equal display of emotion: Mrs. Jean-Paul's husband, for example, is believed to have set himself on fire. The man police believe killed Ms. Roskot threw himself in front of a subway train a few hours after she was killed.

Curiously, in the multicity study, men who tortured or killed animals -- long thought to be a sign of potential danger -- were no more likely to kill their partners. But Dr. Campbell cautioned: "No matter what the research says, what I say to women is, 'If he does something that is terribly frightening, be scared! If it makes the hair stand up on the back of your neck, be scared!' "

In one case she encountered, Dr. Campbell said, a man slit the throat of his wife's favorite dog and left the dead pet in the bathtub for her to find.

What can women do to protect themselves? At least one study, by the National Center for State Courts, of civil protection orders issued in three jurisdictions, found that contrary to popular belief, such orders are effective in the majority of cases, making women feel safer and reducing incidents of violence. A court order obtained by Ms. Thomas, the Westchester Community College student, however, appears to have done her little good.

Still, in most cases, by the time a court intervenes, the woman's situation is already dire. For young women, said Ms. Goldfarb of Rutgers, an important preventive measure is to be alert for signs that a man is potentially dangerous -- before the relationship grows serious.

"Many of the same types of gestures or comments that we are taught as young girls to view as romantic are, in fact, major warning signs of a serious potential for domestic violence," Ms. Goldfarb said.

She gave as examples statements that might appear solicitous but that in reality may indicate extreme jealousy or a controlling nature. A man might say, for example, "I can't live without you," or "You only need me," or "I can't breathe unless I'm near you." Or he might phone her 20 times a day or appear unexpectedly at her door.

"It may sound like Prince Charming," Ms. Goldfarb said. "But in reality that kind of possessiveness is designed to isolate a woman from other sources of support in her life. It is a foreshadowing of violence."

And perhaps a signal to stay as far away as possible.

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Shelters

The battered women's shelter movement grew out of feminism's second wave. The earliest shelters appeared in the 1970s and were an entirely grassroots response to the problem of domestic violence. Today many shelters receive state and federal funding and some shelter networks are administered by local government; the shelter system has become a large part of society's institutional response to battering. This incorporation of the battered women's movement has improved public understanding of the problem and has changed the way courts, police officers and lawmakers respond to domestic violence.

Despite these changes, shelters remain the only hope for many battered women in desperate situations. Most shelters operate in conjunction with a 24 hour hotline women can call at any time, seven days a week. Shelters also provide a number of services for the women who stay there. They offer child care and counseling and will try to help women who need them find jobs. Many shelters organize support groups and provide legal advocates; they also try to offer services in several languages when possible. Please take this virtual shelter tour and read the narratives of battered women who have stayed there.

Unfortunately, shelters are often full to overflowing and women are regularly turned away. In New York, for example, shelter capacity in 1997 was estimated to meet only half the public need, even after a 30% expansion initiated by the mayor; only a few beds were available each day for up to 90 women who called city hotlines seeking shelter. Clean Up the Shelter Mess, N.Y. Times, February 18, 1997, at A18. In 1990, there were still nearly 3 times as many animal shelters in the U.S. as battered women's shelters. (Statistics found at http://www.famvi.com/dv_facts.htm). If a woman does find shelter space, she cannot stay indefinitely; permissible length of stay varies from shelter to shelter and can be anywhere from a few days to several months.

A woman with children is, of course, less likely to find a shelter with enough space for her entire family. Some shelters do not take children over a certain age (usually 12 or 13); women with teenage sons are especially difficult to place in shelter. Because shelters are generally left to protect themselves from sometimes dangerous batterers, many try to maintain a low profile and encourage women to seek shelter in a neighborhood or region not near their home. It can be too easy for a batterer to find his partner if she is staying in a shelter nearby. Shelters must strike a difficult balance; they must be visible enough for battered women to find but not so visible as to completely undermine shelter security. For an example of the very real effects of this dilemma, read this 1997 New York Times article.

Battered women face other difficulties when looking for shelter. They are usually pre-screened before being admitted to a shelter and must answer questions about past shelter stays, drug and alcohol use, mental health, etc. A woman identified during screening as "'streetwise' (often a euphemism for 'homeless' or 'drug user') will have difficulty gaining entrance into that shelter, whether or not she has left an abusive partner." Jean Calterone Williams, Domestic Violence and Poverty: Narratives of Homeless Women 19 Frontiers 143 (1998). This means women in particularly difficult situations may have a hard time finding help.

Part of the problem is that homeless and battered women's advocates have long seen themselves as serving two discrete populations: battered women are generally encouraged to leave their homes and are praised for doing so, but homeless women are more easily blamed for their situation and rarely encounter such an encouraging reaction. Women identified as "homeless" may not be welcomed at a battered women's shelter, and "some homeless shelters refuse to accept women who become homeless when they leave abusive relationships, even if battered women's shelters are full, because they do not define these women as 'homeless.'" (Williams, 148.) A few battered women's shelters have begun to address this problem. The manual for shelters provided by the Massachusetts Coalition of Battered Women Service Groups encourages hotline workers to avoid "exclusionary screening" so callers who seem difficult to help will not be rejected too quickly.

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Safety Plan

If a battered woman decides to leave, she faces economic difficulty and possible custody challenges. She also faces one of the most dangerous phases of any abusive relationship: women are at particular risk when they threaten to separate or actually leave. Batterers faced with ultimately losing control often react violently. Statistical estimates of this increased danger vary; one recent study in Chicago found that 50% of wives killed by their husbands were killed within two months of a separation, 85% occurred within a year.

Given this increased risk, many batered women's advocates encourage women to create a safety plan before they decide to leave. A good safety plan covers several topics: phone numbers to call, documents to have on hand in case of emergency, escape routes, safety on the job, emotional health, etc. Please read this sample safety plan, attached as Appendix A to an article by Heather Fleniken Cochran. For the full text of the article, go here.

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Orders of Protection

A battered woman may choose to seek either a civil or criminal protection order.

All 50 states now have laws creating civil orders of protection for victims of domestic violence, though the form, content and name of these orders may vary by jurisdiction (no contact orders, stay away orders, harassment orders, and restraining orders are all orders of protection). To get a temporary civil order of protection, a woman need only go to the courthouse, fill out and sign an affidavit detailing the abuse suffered, and participate in what is often an informal hearing. Usually fees will be waived if a woman cannot pay, and an attorney need not be present. (Many shelters try to provide legal advocates who help women write affidavits; this often ensures that affidavits are written with enough specificity to merit a protection order). This ex parte proceeding is later followed by a hearing to determine whether the temporary order should be made permanent; the batterer is notified of this hearing and given an opportunity to be heard. A "consent" order is issued if the batterer chooses not to appear or agrees to the entry of the order. "Mutual" orders are also possible; these contain mutual "no contact" provisions which direct both parties to stay away from each other. A protection order can include additional terms and specific directives. In most states, judges can:

1) Remove the respondent from the parties' home;

2) Require the respondent to pay child support;

3) Prohibit the respondent from having direct or indirect interaction with the victim;

4) Grant temporary custody of the children to the victim;

5) Require the respondent to attend counseling

6) Remove guns from the premises; and

7) Determine conditions of visitation with the children.

Cindy S. Lederman & Neena M. Malik, Family Violence: A Report on the State of the Research, 73 FLA. B.J. 59 (1999).

Batterers can also be ordered to return housekeys, pay to change the locks at home, and reimburse the victim for other expenses resulting from the abuse.

Criminal orders of protection may contain many of these same terms, but they are issued as part of a criminal proceeding - after a batterer has been arrested and charged. Criminal orders are frequently issued as conditions of release or as part of a probation order. In these cases, the battered woman is no longer alone; the state has become a party to the case and and the decision to seek a protection order may not be voluntary (remember the "no-drop" prosecution policies discussed in Module 2). In addition, criminal proceedings generally demand a higher standard of proof. (But see Christopher R. Frank, Criminal Protection Orders in Domestic Violence Cases: Getting Rid of Rats with Snakes - arguing that a less rigorous standard is substituted for "beyond a reasonable doubt" when criminal protection orders are sought). Despite these differences, enforcement mechanisms are often the same for both civil and criminal orders. For example, violation of a civil order can usually be prosecuted as a criminal contempt charge.

Civil protection orders may appeal to battered women because they provide a remedy which does not involve a criminal proceeding; the batterer is not charged with a crime and will not be jailed unless he violates the order. This might make batterers less likely to retaliate. It also allows batterers to continue working so they can support their families. Unfortunately, civil protection orders come with several obvious limitations: " . . . civil protection orders are useless with the 'hard core' batterer for whom nothing short of incapacitation with a jail sentence would be effective." The sad truth is that a batterer "absolutely determined to batter or kill his partner will not be deterred by a piece of paper telling him not to." (Remember that the murder of Carol Cross - Module 2 - occurred after she had obtained an order of protection) (You can find these quotations and more on this topic in law review article by Peter Finn).

Poor enforcement of civil protection orders has long been an additional drawback. Police can usually arrest without a warrant if they have reasonable cause to believe a protection order has been violated, but most battered women's advocates believe police often refuse to arrest violators. Instead, they may take the batterer for "a walk around the block to cool off." Little empirical evidence statistically analyzes police response, but most of the literature recognizes poor enforcement as a common problem. (Peter Finn discusses in his article above; for more, feel free to read this optional Harvard Law Review article - meant to be an introduction to domestic violence law). A battered woman is likely to encounter additional enforcement problems when she crosses state lines, though the Violence Against Women Act does provide for full faith and credit. 18 U.S.C. 2265 (1994). (For more on full faith and credit, see the next section of this module).

The overall effectiveness of civil protection orders is hard to estimate. A study begun in 1994 by the National Center for State Courts surveyed more than 500 women in three cities (Denver, Wilmington and Washington D.C.) and found that most (72.3%) felt their lives had improved almost immediately after getting a protection order. Unfortunately, the incidence of repeat abuse after 6 months was measured at 10.9% in Delaware and 11.9% in Washington D.C. (things were much better in Denver where only about 2% reported repeat abuse). Repeat psychological abuse was reported by 12.6% of victims after 6 months. Few study participants filed contempt motions for violation of their orders. (This study was reported by Susan L. Keilitz, Paula L. Hannaford and Hillery S. Efkeman in: Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence, 20 State.Ct. J. 17 (1996)). Even these numbers seem optimistic. It may be that protection orders give women a false sense of security; just like Carol Cross (see Module 2) and Joy Thomas (remember the New York Times article assigned in the journal entries for this module), many women killed by their batterers have at least one restraining order. Often women will have gone to the courts more than once and will have several orders of protection even though each one is labeled "permanent." Multiple restraining orders indicate that the batterer is not intimidated by the courts and that enforcement has been weak. Yet most courts will simply issue additional ineffective protection orders without taking additional steps.

Many have recognized that protection orders (like shelters) cannot be left to do all the work of preventing domestic violence. More pro-active and aggressive steps seems necessary, especially since seeking civil protection orders (like seeking shelter) is a burden placed on the victim not the batterer. Later in this module we will read Professor Rosenfeld's suggestions for a new system that would re-allocate these burdens and that would (hopefully) be more effective.

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The Diversity of Battered Women

It is often said that all women are affected by the violence that occurs against women and that no woman is immune. This is particularly true of domestic violence. Women of all colors, of different ethnic backgrounds, of many cultures, and on all the steps of the socioeconomic ladder have violence in the homes in their communities. While we will deal with the international aspects of violence against women in a later module, we reflect in this module on the tremendous diversity of battered women in this country. A sample of some statistics demonstrate this diversity:

· Forty-seven percent of murdered African American women are killed by acquaintances and forty-three percent of them are killed by family members.

· Thirty-four percent of undocumented Hispanic women in California reported personal domestic violence experiences and over half of the women stated that the violence increased upon their arrival in the United States.

· In Massachusetts, Asians made up eighteen percent of the victims killed from domestic violence in 1997 while comprising only 3% of the state population. Similarly, in Santa Clara County in California, Asians were 33% of the domestic violence homicides from 1993 - 1997 while accounting for only 14% of the county population.

Much of the literature and writing on the experiences of battered women, especially early on, overlooked or ignored this diversity and the differences of the victims' experiences. However, in the last decade, there has been an explosive growth in the attention paid to the unique problems faced by many classes of victims. For instance, the NOW Legal Defense Fund has a Battered Immigrant Women Program. Also, the Domestic Abuse Intervention Project in Duluth, Minnesota has adapted their seminal Power and Control Wheel to the particular tactics used by abusers against immigrant women. Immigrant women are severely handicapped by quadruple discrimination because of their sex, race, immigration status and inability to speak English. Thus, they face other significant barriers in addition to those faced by other battered women. These additional obstacles include complex cultural issues, lack of access to public assistance and services, and threat of deportation.

In addition to the increased focus from traditional women's groups, there has also been the growth of new organizations dedicated to the different classes. To name a few, there is:

· The Institute on Domestic Violence in the African-American Community
· Ayuda
· Jewish Women International (www.jewishwomen.org)
· Manavi
· Muslims Against Family Violence

Confronting the diversity of domestic violence has led many to question the approaches that have been the focus thus far. Please read the following article by Rinku Sen, the co-director of Center for Third World Organizing, for a commentary on the questionable focus on the criminal justice system as a solution for women of color.

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The Economics of Domestic Violence

Many battered women are financially dependent on their abusive partners. As if the thought of leaving home weren't difficult enough, these women face an additional set of economic constraints that may seem overwhelming. And a batterer motivated by power and control will probably do whatever he can to encourage this dependence - he may forbid his wife to work or beat her so badly she has to call in sick or eventually quit her job.

The problem of financial dependence cuts across class lines: a middle or upper-middle class woman may be as financially dependent on her husband as a woman in a low-income family. A middle or upper-middle class woman who wants to leave may have a little money saved or may have family who can support her for a time, but even this sort of assistance will not last forever and will likely involve a substantial change in standard of living. In addition, an adult woman may be reluctant and embarrassed about asking parents and siblings for help. A poorer woman is less likely to have any of these resources and is more likely to turn to a shelter for help. And since shelters only provide temporary housing and are often full, many of these women will eventually become homeless or welfare-dependent.

We have all heard stories of the mythical "welfare queen" who prefers food stamps to paid work, but until recently little has been said about the striking overlap of domestic violence, homelessness and poverty. The reality is that as many as 50% of homeless women identify battering as a reason for their homelessness. (statistics found at http://www.famvi.com/dv_facts). This overlap makes even more troubling the "feminization of poverty."

The narratives of homeless women reveal that domestic violence and economic dependence are often hard to separate. One woman notes "that the poverty and violence escalated simultaneously over time." And Marta's story shows that both battering and economic need have been central to her homelessness:

 

A forty-year-old Latina, Marta . . . had tried leaving her
twenty-year marriage several times in the past, but, because she did not
know that shelters existed, Marta lived in her car with her youngest child
for five months while attempting to become financially independent of her
husband. Unable to make the transition from the car to housing, she returned
and lived with her husband for a few months. During a fight between Marta
and her husband that resulted in a fire in the house, the police were called,
and they provided Marta with a list of battered women's shelters. She applied
to Rose's House and was accepted within a week, staying for a month before
moving to The Family Shelter.

The day [the author] met Marta, she had only two weeks left in the shelter before
her ninety days expired. When she spoke about her search for housing or
another program for her family, her face clouded with worry: "I have too
many children to get into the Endowment for Phoenix Families. Other people
have found me eligible, but no one has a place open." Nor could Marta find
an apartment building that would accept her, even though she had enough
money saved to pay her deposits. As soon as the managers learned that she
had five children, lived on an income of $561 per month from AFDC, and
had a problematic credit history, they refused to rent to her. The caseworker
at The Family Shelter was pressuring Marta to ask her husband for money
to help support their children. Indeed, her stay at the shelter for the
next two weeks was contingent on her demanding money from her husband.
Marta did not want to involve him in her financial difficulties, believing
that a request for his assistance would be the first step in returning
to her husband. In thinking about her options, Marta remarked, "I'm in
a position now where I will remain homeless or go back with my husband."
She did not want to live with him again, saying that she had spent a weekend
with him and saw his "old behaviors coming up" and felt that it was "dark
and tense" at his apartment.

In the ensuing weeks, shelter staff allowed Marta to stay beyond their
usual ninety-day limit, but she still could not find housing. . . . When Marta's extensions
at the shelter had run out, she refused to return to her husband. A month
after the first interview she was sleeping in her car and her children
were sleeping in a tent trailer behind an acquaintance's home.
--Jean Calterone Williams, Domestic Violence and Poverty: The Narratives of Homeless Women, 19 Frontiers 143 (1998).

Despite stories like these, many continue to deny the economic importance and impact of domestic violence. Remember that in Brzonkala (see Module 2, Civil Rights Remedy), the 4th Circuit wrote that violence against women isn't even "arguably 'economic.'" (For relevant excerpts of the 4th Circuit decision, go here). Yet most shelter workers can tell many stories like Marta's; stories of women for whom economics and abuse seems largely inseparable. In the lives of women like Marta, domestic violence - the most "private" of crimes - comes face-to-face with money and economics - traditional signposts of the "public" sphere.

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Full Faith and Credit

Under the Violence Against Women Act (VAWA), all jurisdictions are required to give valid protection orders full faith and credit:

"Any protection order issued that is consistent with subsection (b) of this section by the court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the court of another State or Indian tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or tribe." 18 U.S.C. sec. 2265.

This means a victim should have the full benefit of her protection order wherever she goes. The full faith and credit provision applies to both civil and criminal orders as long as the issuing court had personal and subject matter jurisdiction and the respondent had notice and opportunity to be heard (if the order is ex parte, notice and opporunity to be heard must be provided within a reasonable period of time). If the civil protection order is mutual (directing both parties not to contact or abuse each other), it should be enforced against the respondent and not the petitioner unless: 1) the respondent originally cross filed a written pleading for a protection order and 2) the issuing court made a specific finding that both parties had been abusive (so if the issuing court does not make a specific finding that the battered woman abused her partner, the order is only enforceable against the partner under full faith and credit). (Much of the information in this and the next few paragraphs can be found in: Pa. Coalition Against Domestic Violence & U.S. Dep't of Justice, An Advocate's Guide to Full Faith and Credit for Orders of Protection: Assisting Victims of Domestic Violence.)

The issuing jurisdiction determines: whether an order of protection should be issued, who is to be protected, terms and conditions of the order, and duration of the order. The enforcing jurisdiction determines: how the order is enforced, the arrest authority of the responding officer, detention and notification procedures, and the crimes to be charged for violation of an order. Police officers should enforce an order of protection if it appears to be valid, and if they have probable cause to believe a violation of the order occurred in enforcing jurisdiction. In doing so, they should enforce the terms and conditions specified in the order itself and should follow all policies, laws and procedures of their own jurisdiction concerning violation of orders of protection. (To read more about what the police should do when enforcing orders of protection, go here to read a guide written by the International Association of Chiefs of Police).

A protection order should be presumed valid if it contains: the names of the parties, the date the order was issued, an expiration date (and expiration has not occurred), terms and conditions to be enforced against the abuser, the name of the issuing court, and a signature of, or on behalf of, a judicial officer. VAWA does not require the registration or filing of an order in the enforcing jurisdiction before the order can be enforced, but a few states have passed statutes requiring this additional step (for this reason, it is always a good idea to encourage a victim to register her order wherever she goes). (Go here for a map and here for a list of the relevant statutory provisions in each state). Though not required by VAWA, many states also require that a copy of a valid protection order be certified (usually with a stamp, raised seal or signature) in order to be registered or filed. Even if a woman does not have a paper copy of her protection order, the order is still enforceable is the police officer acts based on a good faith belief that the order is valid. The officer can also attempt to verify the order before enforcing it; verification can include checking the state's registry, checking the FBI's National Crime Information Center (NCIC) Protection Order File - though this system is limited because many states do not participate, or contacting the issuing jurisdiction.

Not all states have registration systems for protection orders; creating and updating these systems will make enforcement of protection orders much easier. Standard certification orders and policies across jurisdictions would also help eliminate barriers to enforcement - to encourage standardization, the Full Faith and Credit Project (a cooperative agreement between the Justice Department's Violence Against Women Office and the Pennsylvania Coalition Against Domestic Violence) has issued a model full faith and credit state code and a model protection order certification form.

Custody Provisions

Separate custody and support orders are not protection orders and are excluded from the VAWA full faith and credit requirement. Custody terms are often included as part of a protection order, however, and it is not clear whether those terms are also excluded. In practice, courts will probably look to federal and state laws that govern custody before enforcing the custody terms of a protection order. Relevant statutes include the Uniform Child Custody Jurisdiction Act (UCCJA, adopted by most states), the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, meant to replace the UCCJA and adopted by some states), and the Parental Kidnapping Prevention Act (PKPA). If possible, a woman seeking a protection order that includes custody terms should ask the court to clearly indicate that those terms meet the requirement of the UCCJA, UCCJEA and PKPA; this should help make enforcement easier in other jurisdictions.

The enforcement of custody provisions is a complex issue, and the relevant statutes can be quite confusing. Though VAWA's full faith and credit provision is a step in the right direction, women with children continue to face important additional barriers to safety.

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Batterer Counseling Services

Since the late 1970s, batterer treatment programs have developed in many cities around the country. These programs have become part of the institutional response to domestic violence as courts increasingly order batterers to seek treatment and attend counseling sessions. Treatment programs appeal to batterers as a way to avoid more serious penalities, and many battered women hope counesling will help their relationship survive. Batterer programs vary in quality, and it not clear how effective they usually are . In addition, courts face difficult enforcment problems - it is often not easy to make sure batterers complete quality treatment programs.

In this optional article, Jeffrey L. Edleson analyzes the effectiveness of these treatment programs.

To read about Emerge, the nation's first batterer treatment program, go here.

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Custody: Presumption Against a Batterer

Women with children have special needs and concerns as victims of domestic violence. This is true because of the serious effects on children from domestic violence and because of the traditional legal rights of parents to their children. The increasing documentation of the effects on children and the mounting conflicts among victim advocates, children advocates and fathers' rights groups have led to significant legal changes in the rights of parents in domestic violence situations. For example, many states now mandate the consideration of domestic violence in custody decisions; indeed, 13 states have the rebuttable presumption that it is not in the best interest of the child to be placed in sole or joint custody with the abuser. Custody laws are still changing as states now struggle with adjusting longstanding policy preferences for shared parenting to the realities of domestic violence. Professor Clare Dalton has commented on this struggle.

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Safety and Visitation

In addition to custody changes, there has also been corresponding recognition of domestic violence in visitation arrangments. Children are inevitably a continuing link between victim and abuser and judges and advocates need to ensure that while the parenting continues, the abuse and violence does not. Recent reforms include supervised visitation centers that provide for strict supervision of abusers during visitation and address confidentiality programs that restrict access of abusers to victims' information. Safety should be the paramount concern in visitation and numerous changes can be made to ensure it.

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Part Three: Discussion Questions

 

1. The Tragedy of Janice Loch and Her Children

What happens when our feelings about the responsibilities of parenthood and sympathy for innocent abused children collide head-on with our beliefs about the plight of domestic violence victims?

One case discussed in V. Pualani Enos' article, "Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children," forces all of us to confront with this troubling conflict. As gathered from the article, the appellate decision, and a newspaper article, here is a brief summary of the tragedy of Janice Loch and her children: In the spring of 1992, Janice Loch lived by herself with her three children, a 1 year old infant, a 7 year old son and an 11 year old daughter. The father of the infant was Janice's ex-boyfriend, Daniel Roethler. Smelling of alcohol, Roethler went to Loch's home and announced that he was taking the 11 year old girl to bed for sex. He ordered Loch and her daughter into the bedroom. Loch remained in the bedroom during the hour and 45 minute assault and did not try to leave or stop the attack. She told her daughter to lie still and to do what Roethler told her to do. At one point during a pause in the attack, Roethler locked the daughter in the closet and then left with Loch to go into the kitchen. When the 7 year old son asked from outside the bedroom if everything was alright, Loch did not tell him anything and sent him away. The prosecution contended that during the sexual assault, Roethler did not threaten or beat Loch at any point. They also introduced evidence that the daughter had told Loch of a prior sexual assault against her by Roethler months earlier and that Loch had not reported this earlier assault even though the daughter had suffered bleeding that lasted several days. Finally, the jury also heard about an incident where the daughter had complained of chest pain and Janice had responded by lifting the daughter's shirt in front of Roethler to inspect the complaint and said to Roethler, "I bet this would be a real treat for you." In her defense, Loch put forth a battered woman defense, arguing that as a result of her condition, she believed that if she tried to escape, seek help or intervene, Roethler would have killed her or her daughter. Indeed, there had been a disturbing history of domestic violence between Loch and Roethler. He had punched her in the mouth, breaking a tooth, smashed her car window, broken into her apartment and threatened repeatedly to kill her and her children. Loch claimed to have sought help from the police and child protective services in Minnesota but was told there was nothing they could do. Unfortunately, because these agencies do not keep track of matters in which they fail to act, there was no documentation available at trial to support her claims. Loch had even sought a restraining order and had almost been attacked by Roethler in response but was saved by neighbors. She had also moved to another state temporarily, but then moved back after learning that Roethler was undergoing treatment for his alcohol problems. Loch also explained that she had financial difficulties and could not easily leave and hide from Roethler. She said at the time of the second sexual assault against her daughter, she was waiting for one more paycheck to fix her car and flee without his knowledge. After a five day trial, the jury returned with a verdict of guilty after 2 hours of deliberations. Janice Loch was convicted of two counts of aiding and abetting (1) first degree criminal sexual conduct and (2) solicitation of a child to engage in sexual conduct. On appeal, the second count was overturned. The trial court refused to consider her battered woman condition as grounds for a downward departure and sentenced Janice Loch to 86 months in prison. This sentence was affirmed on appeal. Meanwhile, Daniel Roethler had pled guilty and received 126 months in prison.

Should all parents, including battered mothers, be expected to give their lives for the protection of their children? Is this the message that the prosecution, the jury and the judges sent to Janice Loch in convicting her? What if a stranger had raped Janice Loch's daughter instead of Daniel Roethler? Would she have been convicted for aiding and abetting then? Do you think her conviction is based upon an expectation that domestic violence victims can somehow control their batterers? Are you disturbed by Loch's alleged reactions to the prior sexual assault against her daughter and by her alleged teasing of Roethler? Does her battered woman condition sufficiently explain or excuse these reactions? Of what significance are Roethler's prior threats to kill Loch and her children if he didn't threaten her during the rape incident? What about the "textbook" occurrences of the cycles of domestic violence in this case-Loch trying to leave, being financially dependent, getting reassaulted by Roethler in retaliation for seeking an order of protection, and moving back to the state after learning that Roethler was in treatment for alcohol abuse? In general, how do we expect battered women to protect their children if they can't protect themselves?

If you would like to read more about failure to protect proceedings initiated against battered women, go here.

Group A: Post your responses here.

Group B: Post your responses on the general discussion board.

 

2. Batterer Intervention Facilities

The proposal to create Batterer Intervention Facilities would need to be carefully studied and planned before implementation. What would be important to know about the community before launching such an initiative? Do you have an instinct about what types of batterers this would most likely help? Should parenting classes be incorporated into such a program? Supervised visitation? Let us know your impressions and ideas for the creation of this new alternative in addressing domestic violence.

Group A: Post your responses here.

Group B: Post your responses on the general discussion board.

 

3. (optional) Orders of Protection

As we've seen in other Modules, orders of protection often fail to provide adequate protection to the battered women who rely on them. Consider alternatives to such orders for a moment. Should judges be required to provide additional protection if a batterer violates an order of protection? If a battered woman comes back to court because her abuser has violated the order of protection, how can she make the intensified danger of her situation more visible to the court? Should courts considered "super-orders" or creating some other legal remedy to provide more meaningful protection? What might these other remedies be?

Group A: Post your responses here.

Group B: Post your responses on the general discussion board.


Failure to Protect Proceedings Against Battered Mothers (Supplemental Reading, not required)

Perhaps the most disturbing consequence of the research on the effects on children from domestic violence is the rise of failure to protect proceedings against battered mothers. In many contexts, women have long suffered from the unequal and romanticized expectations that society places upon mothers and not fathers. When it comes to domestic violence, the experience of battered mothers is more of the same. In the inevitable search for who to blame for the tragic experiences of abused and neglected children in domestic violence families, society has not stopped (or necessarily, started) with the abusers themselves, but instead has also expressed its wrath at battered mothers. Exulting the uncompromising importance of child safety, society has rushed to label these mothers as being bad mothers without engaging in a serious and thoughtful analysis of the entire dynamics in a domestic violence situation.

Under the umbrella phrase, "failure to protect," there are actually four different types of legal proceedings in which battered mothers may be accused of failing to protect their children from the dangers of an abusive partner. They are (1) criminal prosecution; (2) termination of parental rights by the State; (3) child custody and visitation proceedings in family court and (4) civil lawsuits by parties other than the State.

As of 1996, forty-nine states and the District of Columbia had criminal child abuse laws. In thirty-eight of these jurisdictions, the laws allow for the criminal prosecution of "omissions" where a person who has a duty to protect a child from abuse fails to do so. Some of these statutes require that there be reckless knowledge or malicious intent behind the omission; but many of them do not require any level of intent whatsoever. In those states, battered mothers are held strictly and criminally liable for the harms they fail to prevent. In addition to the child abuse laws, most states have used other criminal provisions such as murder, manslaughter, assault, battery, mayhem, endangering the welfare of a minor and criminal child neglect to prosecute battered mothers. V. Pualani Enos described several prosecutions in this excerpt from her article as she examined one troubling myth to which many subscribe, including judges, prosecutors, child advocates and police officers: that knowledge of abuse is the same as the ability to stop the abuse and protect the child.

Even more frightening than criminal prosecutions are the proceedings to terminate the parental rights of battered mothers to their children. The rights of parents to determine their children's upbringing and to be involved in their lives have constitutional, as well as emotional, dimensions. This was clearly stated by the Supreme Court in the seminal case of Wisconsin v. Yoder, 406 U.S. 205 (1972). However, parental rights are not absolute; all fifty states have the power to remove children from their parents if the children are neglected, abused or mistreated and further to terminate all contact if appropriate. Overwhelmed and angered by the sad plight of abused and neglected children, courts and agencies close their eyes to the surrounding violence against the mothers and instead blame the mothers too. Instead of being another victim of the abuser allied with her children, battered mothers are regarded as a danger to her children, just like the abuser.

Aside from the extremes of criminal prosecution and termination of parental rights, battered mothers are also accused of the failure to protect in the context of custody and visitation hearings. Indeed, leaving your children behind in the heat of the moment when fleeing from certain death or serious physical injury at the hands of your abuser is a decision that comes back to haunt battered mothers in the worst ways. Finally, in some states, victims of abuse can civilly sue, not only their abusers, but also any other parties who were under a duty to protect them, but did not do so. To read the opinion that upheld such a claim in Michigan, please click here.

Battered mothers have faced these accusations of "failure to protect" for quite some time. The bibliography includes examples of these types of proceedings as optional reading. Indeed, there have so many cases that battered mothers are rightfully afraid of reporting domestic violence incidents to the authorities or shelters for fear of losing their children, especially in states with mandatory child abuse reporting statutes. Recognizing the injustice of these proceedings against battered mothers, some states have adopted reform measures while others are proposing even more ideas.

For instance, four states allow battered women to assert that they reasonably believed that intervention would have caused her or her children greater harm as an affirmative defense in both criminal and civil proceedings. The elements and proof burdens of the defense vary with each state.

Some prosecutors' offices, particularly in New York, California and Georgia, have refocused their efforts on the abusers and have successfully charged abusers with endangering the welfare of children by exposing them to acts of domestic violence. Indeed, one advocate from the Pace Law School Battered Women Justice Center has been inspired by these prosecutions to draft a model criminal provision that would focus liability on the abuser away from battered mothers.

Still others have proposed that the strict liability standards in criminal prosecutions and civil termination proceedings be replaced with more subjective standards that accommodate and recognize the rational steps that battered women take in the interests of their children.

Working creatively within the traditional "best interests of the child" framework, some are even pursuing the rights of children to continue their relationships with their parents. The Supreme Court has declined to rule on this issue, but some state courts have recognized this right in non-domestic violence contexts. Although this could prove promising, caution is also warranted as abusers may also use this legal theory to continue their relationships with children.

Perhaps the most promising of all the reforms in this area has been the coordinated community efforts that have focused on building cooperation and coalitions between child and domestic violence victim advocates. As described above, the superficial conflicts and history of tension between these two camps have long hindered any fruitful progress in doing what is truly best for the children. Many of these children do not need to be separated from their non-violent parent; rather, these children along with their non-violent parent need support and assistance as they seek to create a safe and non-violent life together. These coordinated community efforts have been made at the local level and have involved child protective agencies, children's hospitals, prosecutors' offices, welfare services, etc. The most inspiring of these programs include The Dependency Court Intervention Program for Family Violence (DCIPFV) in Miami, Project Awake at Children's Hospital in Boston, the Family Violence Program in San Diego and the Domestic Violence Unit of the Massachusetts Department of Social Services. Coordinated community responses are the most promising because they work on bridging the gap between advocates and finding solutions to the common problems before situations develop into criminal prosecutions or civil termination proceedings.

To conclude this section on "failure to protect" proceedings, please read the following excerpts from Professor Miccio's article. As we work towards reducing society's blame on battered mothers, we need to draw attention to the true failure to protect and that is, the failure of the state to protect both domestic violence victims and their children.


 

Bibliography

Required Reading

The Effects of Domestic Violence on Children

Crosby, Philip C., Case Comment, "Custody of Vaughan: Emphasizing the Importance of Domestic Violence in Child Custody Cases," 77 B.U. L. Rev. 483 (1997) [excerpts].

Houppert, Karen, "Victimizing the Victims," Village Voice, June 15, 1999, at 44.

McGill, Joseph C., Robin M. Deutsch and Robert A. Zibbell, "Visitation and Domestic Violence: A Clinical Model of Family Assessment and Access Planning," 37 Fam. & Conciliation Courts Rev. 315 (1999) [excerpts].

Rodriquez, Stephanie, Time to Stop Pretending (1994) (visited Feb. 16, 2000) <http://www.famvi.com/pretend.htm> [excerpts].

Shelters

Victim Services, "Tour a Domestic Violence Shelter" (visited Feb. 17, 2000) <http://www.dvsheltertour.org/tour.html>.

Safety Plan

Cochran, Heather Fleniken, "Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence," 7 Tex. J. Women & L. 89, 114-122 (1997) [excerpt].

The Diversity of Battered Women

Domestic Abuse Intervention Project, Power and Control Wheel: Tactics Used Against Immigrant Women at http://www.fvpf.org/immigration/pcintro.html

Sen, Rinku, "Between a Rock & a Hard Place: Domestic Violence in Communities of Color," 2 Colorlines 1 (Spring 1999) at http://www.arc.org/C_Lines/CLArchive/story2_1_07.html

Full Faith and Credit

18 U.S.C. sec. 2265, Domestic Violence and Stalking (1994).

Custody: Presumption Against a Batterer

Dalton, Clare, "When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System," 38 Fam. & Conciliation Courts Rev. 273, 276-79 (July 1999) [excerpt].

Family Violence: A Model State Code, Section 401, National Council of Juvenile and Family Court Judges (1994).

Safety and Visitation

Clement, Debra A., "A Compelling Need for Mandated Use of Supervised Visitation Programs," 36 Fam. & Conciliation Courts Rev. 294, 296-299 (April 1998) [excerpt].

Dalton, Clare, "When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System," 38 Fam. & Conciliation Courts Rev. 273, 288-90 (July 1999) [excerpt].

Zorza, Joan, "Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Men," 29 Fam. L.Q. 273, 281-83 (Summer 1995) [excerpt].

 

Optional Reading

Effects on Children

Beeman, Sandra K., Annelies K. Hagemeister, and Jeffrey L. Edleson, "Child Protection and Battered Women's Services: From Conflict to Collaborations," 4 Child Maltreatment 116 (1999).

Crosby, Philip C., Case Comment, "Custody of Vaughan: Emphasizing the Importance of Domestic Violence in Child Custody Cases," 77 B.U. L. Rev. 483 (1997).

Dalton, Clare, "When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System," 37 Fam. & Conciliation Courts Rev. 273 (1999).

Kerig, Patricia K., and Anne E. Fedorowicz, “Assessing Maltreatment of Children of Battered Women: Methodological and Ethical Considerations,” 4 Child Maltreatment 103 (1999).

Lecklitner, Gregory L., Neena M. Malik, Sharon M. Aaron and Cindy S. Lederman, "Promoting Safety for Abused Children and Battered Mothers: Miami-Dade County's Model Dependency Court Intervention Program," 4 Child Maltreatment 175 (1999).

Massachusetts Coalition of Battered Women Service Groups, Inc., For Shelter and Beyond: Ending Violence Against Battered Women and Their Children (2d ed. 1992).

"Myths and Facts about Domestic Violence" (visited Feb. 17, 2000) <http://www.famvi.com/dv_facts.htm>.

McGill, Joseph J., Robin M. Deutsch and Robert A. Zibbell, "Visitation and Domestic Violence: A Clinical Model of Family Assessment and Access Planning," 37 Fam. & Conciliation Courts Rev. 315 (1999).

National Council of Juvenile and Family Court Judges, Family Violence: Emerging Programs for Battered Mothers and Their Children (1998).

Shepard, Melanie, and Michael Raschick, "How Child Welfare Workers Assess and Intervene Around Issues of Domestic Violence," 4 Child Maltreatment 148 (1999).

Whitney, Pamela and Lonna Davis, "Child Abuse and Domestic Violence in Massachusetts: Can Practice Be Integrated in a Public Child Welfare Setting?," 4 Child Maltreatment 158 (1999).

Shelters

Belluck, Pam, "Shelters for Women Disclosing Their Locations in Spite of Risk," New York Times, August 10, 1997, at A1.

"Clean Up the Shelter Mess," New York Times, February 18, 1997, at A18.

"Myths and Facts about Domestic Violence" (visited Feb. 17, 2000) <http://www.famvi.com/dv_facts.htm>.

Williams, Jean Calterone, "Domestic Violence and Poverty: The Narratives of Homeless Women," 19 Frontiers 143 (1998).

Safety Plan

Cochran, Heather Fleniken, "Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence," 7 Tex. J. Women & L. 89, 114-122 (1997).

Orders of Protection

Finn, Peter, "Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse," 23Fam. L. Q. 43 (1989).

Frank, Christopher R., "Criminal Protection Orders in Domestic Violence Cases: Getting Rid of Rats with Snakes," 50 U. Miami L. Rev. 919 (1996).

Keilitz, Susan L., Paula L. Hannaford and Hillery S. Efkeman, "Civil Protection Orders: The Benefits and Limitations for Victims of Domestic Violence," 20 State.Ct. J. 17 (1996)

Lederman, Cindy S. and Neena M. Malik, "Family Violence: A Report on the State of the Research," 73 Fla. B. J. 58 (1999).

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

Massachusetts Coalition of Battered Women Service Groups, Inc. For Shelter and Beyond: Ending Violence Against Battered Women and Their Children (2d ed. 1992).

18 U.S.C. sec. 2265, Domestic Violence and Stalking (1994).

The Diversity of Battered Women

Family Violence Prevention Fund, "Battered Immigrant Women," at http://www.fvpf.org/immigration/index.html

Gonzalez, Gloria, "Barriers and Consequences for Battered Immigrant Latinas," at http://www.aad.berkeley.edu/96journal/gloriagonzalez.html

HUES: Hear Us Emerging Sisters, "Breaking the Silence: Author Beth Richie Studies the Impacts of Abuse on African American Women," 1997 at http://www.sistahspace.com/nommo/vio13.html

The Institute on Domestic Violence in the African-American Community, at http://www.dvinstitute.org/home.htm

Memo, Kamran, "Wife Abuse in the Muslim Community," Islamic Horizons, at http://www.mpac.org/mafv/article_01.html

Naresh, Himani and Suerndran, Aparna, "Silence: Domestic Violence," at http://www.columbia.edu/cu/zamana/sangam/fall96/Silence.html

Richie, Beth E., Compelled to Crime: The Gender Entrapment of Battered Black Women, (1996) (stories of battered African-American women in New York City jail that detail what happens when the justice system is a repressive force in their lives).

Wong, Bet Key, "Domestic Violence and Asian Families," at http://www.familyculture.com/domestic_violence1.htm

The Economics of Domestic Violence

"Myths and Facts about Domestic Violence" (visited Feb. 17, 2000) <http://www.famvi.com/dv_facts.htm>.

Williams, Jean Calternone, "Domestic Violence and Poverty: The Narratives of Homeless Women," 19 Frontiers 143 (1998).

Brzonkala v. Virginia Polytechnic, 169 F.3d 820, 834 (4th Cir. 1999) [excerpts].

Full Faith and Credit

Full Faith and Credit Project, "Model Full Faith and Credit State Code" (last modified Nov. 30, 1999; visited Feb. 18, 2000) <http://www.vaw.umn.edu/FinalDocuments/ModelFFC.htm>.

Full Faith and Credit Project, "Sample Universal Certification Form for Restraining Orders" (last modified Nov. 30, 1999; visited Feb. 18, 2000) <http://www.vaw.umn.edu/FinalDocuments/restrain.htm>.

Int'l Ass'n of Chiefs of Police, "Protecting Victims of Domestic Violence: A Law Enforcment Officer's Guide to Enforcing Orders of Protection Nationwide" (last modified Nov. 4, 1999; visited Feb. 18, 2000) <http://www.vaw.umn.edu/FinalDocuments/ protect.htm>.

Minn. Center Against Violence & Abuse, "Progress Report on Full Faith and Credit Enabling Legislation" (last modified Dec. 8, 1999; visited Feb. 18, 2000) <http://www.vaw.umn.edu/FinalDocuments/FFCProgfin.htm>.

Pa. Coalition Against Domestic Violence, "FFC Enabling Legislation" (last updated December 1997; visited Feb. 18, 2000) <http://www.vaw.umn.edu/FFC/Matrix>.

Custody: Presumption Against a Batterer

Adrine, Ronald B. and Ruden, Alexandria M., "Shared Parenting Considerations," Ohio Domestic Violence Law Treatise d 14.14 (1999) (discussing Ohio laws and policies).

Final Report of Child Custody and Visitation Focus Group, at a National Council of Juvenile and Family Court Judges Family Violence Department conference at the University of Nevada-Reno, March 1-3, 1999, at (http://www.vaw.umn.edu/FinalDocuments/custodyfin.htm).

Kurtz, Lynne R., "Protecting New York's Children: An Arguments for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child," 60 Alb. L. Rev. 1345, (1997) (advocating the adoption of a custody presumption in New York).

Rapkin, Marlene, "The Impact of Domestic Violence on Child Custody Decisions," 19 J. Juv. L. 404, (1998) (urging the adoption of presumption in California).

Saunders, Daniel G., "Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Research Findings, and Recommendations," August 1998.

Wallerstein, Judith, Second Chances: Men, Women and Children a Decade After Divorce, (1989).

Failure to Protect Proceedings Against Battered Mothers

Enos, V. Pualani, "Recent Development: Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children," 19 Harv. Women's L.J. 229, 240-48 (Spring 1996) [excerpt].

Melner, Amy R., "Rights of Abused Mothers vs. Best Interest of Abused Children: Courts' Termination of Battered Women's Parental Rights Due to Failure to Protect Their Children From Abuse," 7 S. Cal. Rev. L. & Women's Stud. 299 (Spring 1998).

Miccio, G. Kristian, "A Reasonable Battered Mother? Redefining, Reconstructing, and Recreating the Battered Mother in Child Protective Proceedings," 22 Harv. Women's L.J. 89, 101-02, 104-06, 116 (Spring 1999) [excerpt].

Phillips v. Deihm, 541 N.W. 2d 566 (Mich. Ct. App. 1995).

Schechter, Susan and Edleson , Jeffrey L., "In the Best Interest of Women and Children: A Call for Collaboration Between Child Welfare and Domestic Violence Constituencies," briefing paper prepared for the conference Domestic Violence and Child Welfare: Integrating Policy and Practice for Families sponsored by The University of Iowa School of Social Work and The Johnson Foundation with support from The Ford Foundation, June 8-10, 1994.

Schechter, Susan, "Model Initiatives Linking Domestic Violence and Child Welfare," a briefing paper prepared prepared for the conference Domestic Violence and Child Welfare: Integrating Policy and Practice for Families sponsored by the University of Iowa School of Social Work and the Johnson Foundation with support from the Ford Foundation, Racine, Wisconsin, June 8-10, 1994 at http://www.cssp.org/kd28.htm.

Stone, Audrey E. and Fialk, Rebecca J., "Recent Development: Criminalizing the Exposure of Children to Family Violence: Breaking the Cycle of Abuse," 20 Harv. Women's L.J. 205, 222-24 (Spring 1997) [excerpt].

Scott, Keldon K., "Feature: Family Law: Negligence Actions by Abused Children Against Parents and Caretakers," 85 Mich. B.J. 654 (1996).

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Criminal Prosecutions Against Battered Mothers

Massachusetts v. Lazarovich, 574 N.E.2d 340 (Mass. 1991)

Pennsylvania v. Cardwell, 515 A.2d 311 (Pa. Super. Ct. 1986)

Phelps v. Alabama, 439 So. 2d 727 (Ala. Crim. App. 1983)

Termination of Parental Rights Proceedings Against Battered Mothers

In re Betty J.W., 371 S.E.2d 326 (W. Va. 1988)

In re C.D.C., 455 N.W.2d 801 (Neb. 1990)

In re J.L.S., 793 S.W.2d 79 (Tex. Ct. App. 1990)


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