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Chapter 8 Domestic Violence
This chapter provides a comprehensive overview of domestic violence, details numerous research studies and findings from state and local domestic violence programs, and reviews case experiences of advocates who work with victims and batterers. Protocols and policies for criminal justice system, legal, and coordinated community-based interventions are also examined, along with summaries of federal and state laws relevant to domestic violence prevention and interventions. Aspects of the physical, psychological, and financial impact of domestic violence on its victims, and on children who witness violence, are addressed, along with in-depth offender typologies.
Upon completion of this section, students will understand the following concepts:
There are various definitions of domestic violence utilized nationwide, reflecting both legal definitions under law, as well as descriptions relevant to specific disciplines of caregivers, including victim advocates, medical professionals, and criminal justice practitioners. It is essential that victim service providers determine the legal definition of domestic violence in both civil and criminal law in their respective states.
A general definition of domestic violence is as follows:
Domestic violence is any assault, battery, sexual assault, sexual battery, or any criminal offense resulting in personal injury or death of one family or household member by another, who is or was residing in the same single dwelling unit. "Family or household member" means spouse, former spouse, persons related by blood or by marriage, persons who are presently residing together, as if a family, or who have resided together in the past, as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time (Office of the Attorney General, Florida 1993).
(This section was developed by the National Violence Against Women Prevention Research Center, April 1999.)
Recently, violence among intimates has received increased attention in this and other countries, and the medical need to identify victims of domestic violence is particularly well established. Domestic violence is found across ethnic, racial, and socioeconomic classes (Hotaling and Sugarman 1990). Approximately 20 to 30 percent of marriages in this country have been characterized at one point by overt interpersonal aggression (Straus and Gelles 1990; Straus, Gelles, and Steinmetz 1980), and about 1,800,000 to 4,000,000 women in the United States women are physically abused by their partners annually (Straus and Gelles 1986). In a wide scale study of couples, Straus and Gelles (1990) found that almost 13 percent of men had physically aggressed against their partners in the past year. Over 33 percent of these aggressive acts were classified as severe (i.e., punching, beating up, threatening with a knife or gun). Women are up to six times as likely to suffer violence at the hands of a partner or expartner than from a stranger (Bachman and Saltzman 1995), and are more likely to suffer injury when their assailant is an intimate (Bachman and Saltzman 1995). Indeed, almost 1,700 women are killed each year by their partners (Steinmetz 1978).
Physicians are frequently in direct contact with recent victims of domestic violence. Twenty-two to 35 percent of emergency room visits by women are in response to partner violence (Abbot et al. 1995; McLeer and Anwar 1989; Randall 1990), and approximately 53 percent of domestic violence victims present to physicians repeatedly (i.e., six or more times) with trauma-related injuries (Stark, Flitcraft, and Frazier 1979). Female victims of domestic violence are up to thirteen times more likely to suffer injury to their breasts, chests, or abdomens than accident victims (AMA 1992a). Thus, clinicians observing these injuries should be aware of the increased potential for past and future victimization. Sexual assault is also widely prevalent in domestic settings. Thirty-three to 50 percent of women who are physically assaulted by their partners also suffer sexual assault at their hands (Frieze and Browne 1989). Indeed, in their large-sample survey, Kilpatrick, Edmunds, and Seymour (1992) found that only 22 percent of rapes were perpetrated by strangers, whereas husbands and boyfriends were responsible for 19 percent, and other relatives accounted for 38 percent (the remaining rapes were perpetrated by nonrelatives and acquaintances).
Violence also seems to be widespread within the context of dating relationships. Approximately one-third of college students report experiencing relationship aggression (Arias, Samios, and O'Leary 1987; Bernard and Bernard 1983; Breslin et al. 1990; Rouse, Breen, and Howell 1988; White and Koss 1991). Some studies have revealed even higher prevalence rates of physical aggression among nonmarried, relative to married couples (Stets and Straus 1989; Yilo and Straus 1981). Propensity for domestic violence is inversely related to the male partner's income and age, and positively associated with his number of alcohol-related problems (Barnett and Fagan 1993; Hotaling and Sugarman 1990; Pan, Neidig, and O'Leary 1994). As might be expected, a higher level of marital discord has also been associated with increased risk of physical assault (Hotaling and Sugarman 1990; Pan, Neidig, and O'Leary 1994).
As noted, women are at greatest risk of injury, sexual assault, and homicide by their partners. Disappointingly, Warshaw (1989) noted that 92 percent of domestic violence cases presenting to an emergency department received no referral or follow-up information, and Kurz (1987) reported that no physician response to abuse was observed in 40 percent of positively identified domestic violence victims. This is unfortunate when considering that partner violence is typically ongoing, and failure to identify and intervene, either directly or indirectly in the form of information and referral, maximizes the potential that one's patient will eventually experience severe physical and emotional injury or even death.
Domestic violence is an ongoing, debilitating experience of physical, psychological, and/or sexual abuse in the home, associated with increased isolation from the outside world and limited personal freedom and accessibility to resources. Whenever a woman is placed in physical danger or controlled by the threat or use of physical force, she has been abused. The risk for abuse is greatest when a woman is separated from supportive networks.
Physical abuse is usually recurrent and escalates both in frequency and severity. It may include the following:
Emotional or psychological abuse may precede or accompany physical violence as a means of controlling through fear and degradation. It may include the following:
Sexual abuse in violent relationships is often the most difficult aspect of abuse for women to discuss. It may include any form of forced sex or sexual degradation:
In addition, children are often incorporated into patterns of abuse. Batterers may also do the following:
The "Power and Control Wheel" developed by the Domestic Violence Intervention Project of Duluth, Minnesota further elaborates on the forms that domestic violence takes, while the "Equality Wheel" depicts male/female interactions in a healthy relationship.
Power and Control Wheel
Equality Wheel
Men who batter share many characteristics. However, it is important to note that not all batterers possess all the following characteristics:
In Spousal/Partner Assault: A Protocol for the Sentencing and Supervision of Offenders, Quincy, Massachusetts, former Chief Probation Office Andrew Klein (1994) identifies a number of characteristics of batterers based upon extensive research of convicted batterers. Batterers present a very different posture in public than they do in the privacy of their own homes.
The fact is, they often share the same characteristics of the most dangerous offenders currently on probation and parole across the country. Many, if not most, of these men have repeatedly been in criminal courts for offenses that span the entire criminal spectrum.
EXTENSIVE CRIMINAL HISTORY
In a Quincy, Massachusetts study of men brought in for restraining orders in 1990 (Klein 1994) the following characteristics were found:
PREVALENT SUBSTANCE ABUSE
In twenty-three studies conducted between 1980 and 1988, the proportion of batterers who had prior histories of drug and/or alcohol abuse ranged from 24 percent to 86 percent. Most were in the mid-1960s (Tolman and Bennett 1990).
Quincy, MA defendants:
GENERALIZED PATTERN OF VIOLENCE
Quincy, Massachusetts defendants:
RELATIVELY YOUTHFUL
A number of studies reveal that the average abuser brought to court for restraining orders or to police attention for domestic disturbance calls is thirty-two years old, with two-thirds being between their mid-twenties and early forties.
SEPARATED OR UNMARRIED, WITH CHILDREN
OTHER RISK CHARACTERISTICS
Batterers may have other characteristics that increase their risk for domestic violence:
- A large percentage of their wives/girlfriends have already divorced and/or physically separated from them.
- As a result, family support is minimal if not negative.
- It is usual for these men to have had at least one recent residence change as a result of the abuse.
SUMMARY OF OFFENDER RISK CHARACTERISTICS
Batterers brought to court typically share the risk characteristics of the most hard core, dangerous offenders:
WHY THEY ABUSE
The above discussion has outlined a number of characteristics of those who commit intimate violence. However, these characteristics do not explain why one person would intentionally hurt his partner. No one theory has been accepted by researchers that explains why perpetrators commit acts of violence (Wallace 1999). A number of theories attempt to explain this phenomenon. Three of the most accepted theories are the Feminist Approach, the Family Systems Model, and the Psychotherapeutic Approach (Healey, Smith, and O'Sullivan 1998).
Feminist approach. The feminist approach is based upon a gender analysis of power (Pence and Paymar 1993). This perspective holds that domestic violence mirrors the patriarchal organization of society. The feminist approach views violence as one means of maintaining male power in the family. Support for this approach comes from the observation that most batterers, when provoked by someone more powerful than they, are able to maintain their composure and avoid violence. Critics of this approach claim it overemphasizes cultural factors to the exclusion of traits of the individual.
Family systems model. This model regards domestic violence as a symptom of a dysfunctional family with each family member contributing to the problem (Retzinger 1991). This theory holds that both partners may contribute to the escalation of conflict, with each striving to dominate the other. Supporters of this model state this shows that lack of communications and coping skills are at the basis of domestic violence. Critics of this model argue it does not consider the lack of power or the sensation of fear that a victim of domestic violence feels while in a relationship (Wallace 1999).
Psychotherapeutic approach. This approach focuses on the individual and holds that early childhood trauma or personality disorders predispose individuals to violence (Russell 1988).
This theory holds that batterers are physically abusive because of an underlying emotional problem that may be traced to parental abuse, rejection, or failure to meet other needs of the child. Supporters argue that this theory explains why domestic violence occurs in all socioeconomic strata since children at all levels can be subject to abuse. Critics point out that a number of children from lower economic systems did not have their emotional and physical needs met, and many of these children did not grow up to become batterers (Wallace 1999).
Domestic violence cuts across all lines related to victims' socioeconomic status, race, culture, age, marital status, and geographical location. Victims of battering may share a number of traits, many of which contribute to their inability to leave the violent environment. Similar to batterers, domestic violence victims may exhibit all or only a few of these characteristics:
It is significant that seven out of ten persons who enter domestic violence shelters are children. In 1998, the Centers for Disease Control published a study that indicated violence against mothers by their intimate partners may also pose a concurrent risk of abuse to the victim's children. Conversely, mothers of abused children are at a higher risk of being abused than mothers of nonabused children. Concurrence of child abuse is defined as the proportion of families in the population or research sample in which women and their children are victims of abuse by an intimate. In the mother's case, the intimate is her partner; the child may be abused by either the mother's intimate or by the battered mother. There is a continuing controversy regarding the prevalence of this type of abuse, but most authorities describe the concurrence rate of approximately 50 percent (McKibben, DeVos and Newberger 1989; Ross 1996).
The effects on children who witness family violence or who, in some cases, are themselves victims, were summarized in Family Violence: An Overview published by the National Center on Child Abuse and Neglect (n.d.). The ramifications of family violence have almost no boundaries. In addition to the obvious physical injuries and deaths that result, family violence is often cited in research and clinical case studies as contributing to numerous other individual, family, and societal problems:
- Children learn from an important role model (the parent) that violence toward a loved one is acceptable.
- Children exhibit fear, emotional symptoms such as psychosomatic complaints (physical complaints created by psychological stress), school phobias, enuresis (bed wetting), and insomnia. Young children may try to stop the violence, thus putting themselves at risk for unintended harm or may respond with immobilized shocked staring, running away and hiding, or bed wetting and nightmares.
- After age five or six, children show strong indications of identifying with the aggressor and losing respect for the victim (NCCAN n.d., 18-19).
In 1978, Dr. Lenore Walker--in the landmark book The Battered Woman--identified three distinct phases that comprise the theory of the "cycle of violence." Dr. Walker determined that the phases vary in duration and intensity; as such, it is difficult to predict how long a batterer and victim will remain in any one phase or in the length of individual cycles.
PHASE ONE: THE TENSION BUILDING PHASE
The batterer becomes more and more prone to react negatively to frustration. Little episodes of violence escalate to the level of minor assault but are minimized and rationalized by both partners. The victim may become nurturing and compliant or stay out of the abuser's way--whatever she thinks will prevent the violence from escalating. In order for her to maintain this role, she must not show anger. The abuser, spurred by this passive acceptance, does not try to control himself.
Women who have been battered over a period of time know that these lesser battering incidents will get worse. However, to help themselves cope, they reason that perhaps they did deserve the abuse and resolve to "try harder" in hopes that their behavior has some effect on the batterer's behavior. They do have some control in the initial stages of phase one; however, as the tension builds, they rapidly lose this control. When the abuser explodes, the victim often assumes the guilt by blaming herself for loss of control of the situation. Her anger steadily increases even though she may not recognize or express it.
In this phase, the abuser becomes fearful that the victim may leave him, which is reinforced as she avoids him in the hope of not triggering the impending explosion. He becomes more oppressive, jealous, threatening, and possessive. As the abuser and the battered woman sense the escalating tension during the first phase, it becomes more difficult for their coping techniques to work. Each becomes more frantic.
Minor battering incidents become more frequent. The abuser increases his possessive smothering and brutality. The battered woman is now unable to restore equilibrium as she could earlier in this phase. Exhausted from the constant stress, she may begin to withdraw even further. The abuser looks for signs of anger, sensing it even though she may continue to try to deny it. Every move she makes is subject to misinterpretation. He hovers around her, barely giving her room to breathe. The tension between them becomes unbearable. Somewhere at the end of phase one, the process ceases to respond to any controls. As the point of inevitability is reached, the couple moves rapidly into phase two, the acute battering incident.
PHASE TWO: THE ACUTE BATTERING INCIDENT
Phase two is the uncontrolled discharge of tensions built up in phase one. The lack of control and the major destructiveness of the incident distinguish it from the lesser physical assaults of the first phase. Phase two is the shortest phase, usually lasting from minutes to a few hours. During this phase, both the abuser and victim accept that the abuser's rage is out of control. While the batterer may start out intending to "teach her a lesson" and stops when he feels she has been appropriately "disciplined," he often finds that he has severely injured the victim. He ends up not understanding what has happened. The trigger for a phase two attack is rarely the victim's behavior; rather, it is usually an external event or the internal state of the abuser.
When the acute attack is over, it is usually followed by initial shock, denial, and disbelief that it really happened. Both the batterer and the victim find ways of rationalizing the seriousness of such attacks. Many victims report reactions similar to those of disaster victims. Victims of catastrophe usually suffer emotional collapse twenty-four to forty-eight hours after the disaster. Symptoms include listlessness, depression, and feelings of helplessness. Similarly, battered women do not seek help until twenty-four to forty-eight hours after the acute attack has occurred.
PHASE THREE: CALM, LOVING RESPITE
Just as phase two is characterized by brutality, phase three is characterized by the extremely kind, loving and contrite behavior of the abuser. He knows he has gone too far and tries to make it up to his victim. It is a phase welcomed by both parties, but ironically it is the phase during which the woman's victimization becomes complete.
In this phase, the batterer constantly behaves in a charming and loving manner. He is usually sorry for his actions in the previous phase. He conveys his remorse to the victim, promises that he will never do it again, and begs her forgiveness. He is like a child caught with his hand in the cookie jar. The batterer truly believes that he will never again hurt the woman he loves, and that he will be able to control himself from now on. He also believes that he has taught his partner such a lesson that she will never again behave in a way that tempts him to physically assault her. He is quite sincere and can easily convince anyone involved that his behavior will change.
The batterer frequently begins an intense campaign to win forgiveness and to prevent his victim from separating herself from him permanently. It is common for an abuser in phase three to shower his victim with elaborate gifts and to attempt to "romance" her into forgiveness. He may enlist the aid of significant others--family, friends, clergy, even counselors--to persuade her that breaking up the relationship is a bad decision. Often everyone involved believes the rationalizations--that he is sorry and will change, that his workload or his drinking is to blame, that the children need a father, that the abuser needs the help of the victim--and somehow the victim begins to assume responsibility for any punishment the batterer may receive. She sees herself as the one who must stand by her man while he gets the help he so desperately needs. In reality, it is very unlikely that the abuser will ever seriously seek professional help to change his violent behavior as long as the victim stays with him. Most often, the abuser will seek help only after his victim has left him and if he thinks seeking counseling will convince her to return.
The battered woman wants to believe that she will no longer have to suffer abuse. The abuser's contrite, reasonable behavior in phase three supports her belief that he really can change. It is during this phase that the victim gets a glimpse of her original dream of how wonderful love is. The battered woman chooses to believe that the behavior she sees during phase three is what her spouse/partner is really like. She chooses to believe that the contrite behavior is more indicative of the real person than the battering behavior. She may also see at this time how frail and vulnerable he really is. If he can only get help, he'll be warm and loving all the time. She perceives herself as the bridge to his emotional well-being.
Since almost all the rewards of being married or coupled occur in phase three, it is extremely difficult for the victim to make a decision to protect herself legally or to separate during this phase. Yet this is the time during which counselors and other helpers usually see her. When she resists leaving, she bases her reference on the phase three loving behavior, rather than on the phase one and phase two abusive behavior. However, if she has been through several cycles already, she often unconsciously knows that she is trading her emotional and physical well-being for a brief period of phase three loving behavior. That knowledge further lowers her self-esteem and adds to her shame and self-hatred.
The length of time that phase three lasts is difficult to determine. Many women report that before they know it, small phase-one incidents begin to occur. In some cases, phase three may last only brief moments. Recent research indicates that in some long-standing battering relationships, phase three disappears completely.
Learned helplessness, as applied by Walker (1979), has three basic components:
As detailed in Domestic Violence: A Guide for Health Care Providers, published by the Colorado Domestic Violence Coalition and Department of Health in 1992, learned helplessness is a psychological theory that describes what happens when a person loses the ability to predict what actions will produce a particular outcome. In psychology, this is called noncontingency between response and outcome. Because the battered woman tries to protect herself and her family as best she can, those with learned helplessness choose only those actions that have a high probability of being successful.
The perpetrator also feels helpless. He does not understand why he cannot control the victim/survivor. One time she obeys him and the next she seems to do things to throw him into a rage. He is often shocked by his level of anger and violence and does not know how to control it or stop it. As he becomes increasingly concerned with his behavior, he focuses more and more on the victim/survivor as the source of his uncontrollable violence. For the victim/survivor, learned helplessness, therefore, is a "survival-focused" (as opposed to an "escape-focused") adaptation to repeated, intermittent abuse such as domestic violence. This theory proposes that when a battered woman believes that sometimes her behavior can have an effect on the batterer and other times the same behavior does not have that effect, she learns that--
. . . she is unable to predict the effect her behavior will have . . . People suffering from learned helplessness are more likely to choose behavioral responses that will have the highest predictability of an effect within the known, or familiar, situation; they avoid responses--like escape, for instance--that launch them into the unknown . . . she believes the demons she knows well are probably preferable to the demons she does not know at all (Walker 1979).
As the battering and isolation increase, a shift in the survivor's comprehension of the situation occurs. She increasingly perceives escape as impossible. While she may continue to work at her paid job, eat, clean house, take care of the children, laugh with coworkers and appear self-confident and independent, surviving the battering relationship becomes the focus of her life at home.
In the survivor's eyes, the batterer becomes more and more powerful. She sees police and other agencies as less and less able to help (Walker 1979). She feels trapped and alone. She will likely develop a variety of coping mechanisms that may include withdrawal, asking permission to do even trivial things, compulsiveness, manipulation, substance abuse, and asking that criminal charges be dropped.
Very similar in dynamics to the Battered Women Syndrome is a condition referred to as the Stockholm Syndrome. This phenomenon occurs when persons who are held as hostages, captives, or prisoners of war begin to identify with the captors (Pagelow 1984). These victims are isolated, mistreated and in fear of their lives. They become helpless, confined to the area they are ordered to stay in, and dependent on their captors to supply everything they need to survive. They begin to develop positive feelings for their captors. The syndrome was named after an incident in Stockholm, Sweden, where four bank employees were held hostage in the bank's vault for 131 hours by two perpetrators. When the victims were finally freed, they expressed gratitude toward the offenders for sparing their lives.
The dynamics of spousal abuse are very similar to techniques used to control or brainwash prisoners of war. "As stated in a report published by Amnesty International, these techniques induce 'dependency, dread and debility.' To the extent that a person is victimized by these techniques, she or he tends to become immobilized by the belief that she or he is trapped, cannot escape" (NiCarthy 1986, 117). This heightening of fear, helplessness, dependency, and dread are all intertwined in the definition and dynamics of spousal abuse.
Dutton and Painter (1981) developed the Traumatic Bonding Theory to explain why battered women stay in abusive relationships. This theory holds that when a woman finally leaves an abusive partner, her immediate fears begin to diminish and her hidden attachment to her abuser begins to manifest itself. Emotionally drained and vulnerable, she becomes susceptible to her partner's loving contrite pressure to return. As her fears lessen and the needs previously provided by her partner increase, she may decide to give him another chance.
Dutton's theory is based on the concepts of power distribution and emotional bonding that focus on the dynamics of the abusive relationship rather than on any personality defect or socioeconomic status of the victim. Dutton states that two features--the existence of a power imbalance and the intermittent nature of the abuse--can explain why abused women stay with their abuser or even return to the relationship.
Dutton (1995) theorized that when power imbalances exist in a relationship, the person of low power feels more negative in her self-appraisal, more incapable of fending for herself and thus in need of the person with more power. This cycle of dependency and lowered self-esteem repeats itself over and over and eventually creates a strong affective bond to the high-power person.
The second factor in traumatic bonding is the intermittent nature of the abuse. This occurs when the abusive partner periodically abuses the submissive partner by threats or physical acts. The time between these incidents is normally characterized by normal, socially acceptable behavior. Thus, the victim is subjected to negative arousal and the relief or release associated with its removal. This situation of alternating negative and pleasant conditions is known within the learning theory as partial or intermittent reinforcement. Dutton states that this situation is highly effective in producing persistent patterns of behavior that are associated with strong emotional attachment to the abuser that is hard to change or modify.
Another theory is that women develop a distinct set of beliefs during the abusive process. These beliefs may be classified based upon the time of the abuse:
Pre-existing beliefs are formed as a result of early childhood experiences. The woman may have been raised in a violent household and believes that all women are abused or they confuse abuse with love. Beliefs developed during the abusive relationship may involve a sense of fear, low self-esteem, learned helplessness, or other dynamics that preclude the spouse from leaving the abuser. Beliefs that result because of the battering may include posttraumatic stress disorder, depression, and other symptoms that affect their ability to function normally in society. All of these beliefs influence the abused spouse and contribute to her decision to stay in the relationship (Webb 1992).
Another approach examines the subjective feelings of women and lists a series of factors that explain why women stay in these relationships:
As the above discussion indicates, women stay in battering relationships for a number of reasons. While one might question some of these reasons or question their validity, women living with men who kick, choke, beat, and rape them on a regular basis are totally invested with these factors. Since many women do stay in these relationships, professionals need to be able to recognize the symptoms of abuse and understand the psychosocial dynamics of the decision, so that effective assistance can be offered to battered women and their children.
In general, there are eight junctures throughout the criminal justice system about which service providers should possess knowledge that can be easily shared with victims.
INITIAL CONTACT
Domestic violence calls should receive priority from law enforcement agencies. Dispatchers should be specially trained in how to handle such calls, including victim sensitivity and having nonjudgmental attitudes in cases of repeat calls. Information dispatchers should obtain the information that is essential to police response:
- Location of assailant.
- Prior history of abuse by assailant.
- Any court orders or protective conditions in effect.
- Status of the offender within the criminal justice system (when applicable).
Often, police dispatchers remain on the line to maintain contact with a victim in crisis and to be able to relay important information to the responding law enforcement officer(s).
POLICE RESPONSE/ARREST
Many law enforcement agencies have developed and implemented protocols and policies for responding to domestic violence. As crisis responders, both victim sensitivity and extreme caution are vital to the safety and security of all involved. In addition, responding officers can provide a valuable service to victims of domestic violence by offering them information and referrals to direct assistance and support available from victim service providers.
A law enforcement protocol for responding to domestic violence can include the following objectives:
- Separate from the offender.
- Victim sensitivity is crucial.
- Statements can be considered as evidence.
- "Excited utterances" (excited statements made by victims or witnesses at the critical stage immediately following the arrival of law enforcement) may be allowed into court as exceptions to the rule against hearsay.
- Determine history of violence.
- Statements from victim(s), witnesses(es), and alleged assailant.
- Observe demeanor of victim and alleged assailant.
- Photograph victim and crime scene.
- Take notes and draw sketches that describe the crime scene.
- Emergency response or dispatcher audiotapes.
- Medical and emergency room records.
PRETRIAL RELEASE
The safety of the victim and any children must be paramount in any decisions made concerning pretrial release. Victim service providers should advocate to the court for measures that can help ensure victim security:
In some jurisdictions, postcharge diversion programs are used to suspend case processing while the abuser undergoes treatment. Victim service providers must be aware of these programs and able to explain them to victims, including program guidelines; treatment modalities; and whether or not the defendant will be prosecuted upon "successful" completion of the program.
PROSECUTION AND THE COURTS
Prosecutors play a key role in holding domestic violence offenders accountable and assisting victims and witnesses in such cases. In 1992, the National Council of Juvenile and Family Court Judges published two recommendations for prosecutors relevant to domestic violence:
These recommendations serve to place responsibility for prosecuting batterers on the criminal justice system, rather than on the victim; to provide specialized services for victims and witnesses; and to expedite criminal justice processes in domestic violence cases.
Many prosecutors' offices today offer specialized units for domestic violence cases and victims, with personnel trained in the dynamics of domestic violence, legal issues specific to such cases, and victim sensitivity. Furthermore, vertical prosecution units include prosecutors whose caseloads contain solely domestic violence cases.
Some prosecutors have adopted "no drop" policies in which cases proceed whether or not the victim chooses to cooperate. Prosecutors are often faced with victims who do not wish to testify due to a variety of factors, among them fear of retaliation. Offices with "no drop" policies rely on a number of measures to continue with cases:
Many prosecutors have victim support programs within their agencies, or rely upon services available from community-based victim service organizations. Services for victims of domestic violence may include the following:
One of the most promising innovations in the legal system is the unified family court. Judge Robert W. Page describes the unified family court as "a court for families." A genuine unified family court has authority over child abuse and neglect; divorce, child custody, and visitation; partner abuse; elder abuse; juvenile delinquency; termination of parental rights; and other family law matters. The National Council of Juvenile and Family Court Judges recommends that the family court should have "criminal jurisdiction over adults for crimes committed against family and household members."
In a paper delivered at the National Conference on Family Violence: Health and Justice in 1994, Judge Page's description of the advantages of a unified family court was offered:
The primary advantage claimed for a family court system is the unification of all complaints, petitions, and case types within one case processing and management system in order to provide a more efficient, less costly and damaging, consistent and longer lasting resolution of the problems presented. By directing that all complaints or petitions must be resolved in one unified court, the opportunities for inconsistency and errors based upon inaccurate or incomplete information are greatly reduced.
Unified family courts are operational in nine states, and are being considered in several others (Myers 1994, 3).
ORDERS OF PROTECTION
Orders of protection--also called "restraining orders"--are court orders that forbid the abuser from doing certain things to victims, having contact with victims, and/or compelling abusers to comply with certain requirements.
While orders of protection can be issued at any time, it is helpful for victims to seek restraining orders as soon as possible after a domestic violence crime has occurred.
Each jurisdiction has different policies and procedures for issuing and monitoring orders of protection. In order to best assist victims, service providers should be aware of the following considerations:
- no contact from defendant.
- prohibition of future acts of violence, intimidation or harassment by the defendant.
- the defendant must physically leave the home; pay child support, restitution, and/or rent or mortgage payments.
- carrying insurance for the victim and any children and pay all medical expenses.
- paying a fine to the state victim compensation fund.
- no possession of a weapon.
- counseling.
- refraining from using alcohol or other drugs.
- visitation conditions (when applicable).
DOCKETING
More and more courts today are giving priority to domestic violence cases. In some jurisdictions, all domestic violence cases are heard on the same day, with the same judge, prosecutor, and victim advocate present throughout all proceedings. The use of vertical prosecution units noted above also contributes to the expediting of domestic violence cases. To reduce the potential for further violence, domestic violence cases should be given priority on court dockets.
DISPOSITIONS
Victims of domestic violence should have specific rights relevant to disposition, which include the following:
MONITORING OFFENDERS
In Spousal/Partner Assault: A Protocol for the Sentencing and Supervision of Offenders, former Chief Probation Officer Andrew Klein of Quincy, Massachusetts, offers four key components of strict supervision conditions (1994):
- Punitive conditions.
- Financial assessments.
- Apology to victim.
- Community service.
- Nonjail loss-of-liberty confinement (in cases not involving incarceration).
- Electronic monitoring.
- Intensive supervision.
- Mandatory treatment that is "batterer-specific" provided by professionals who are specialists.
- Model regulations for abuser treatment that bar any approach that "blames or intimidates the victim, or places the victim in a position of danger that is not appropriate."
- No couples counseling.
- Mandatory alcohol and other drug treatment, with a mandate of abstinence.
- Restitution (including direct and indirect for replacement costs of damaged property, medical and counseling bills, and attorney costs).
- Ongoing child support.
- Mortgage or rent payments.
- All payments should be made through the court or correctional institution.
- The offender should obey all outstanding civil protective or restraining orders.
- Forfeit of weapons, particularly guns and rifles.
- Ordered to submit to warrantless searches of their persons or homes.
- Supervised at maximum intensity.
- Satisfy special protective obligations when children are involved such as custody, visitation, etc.
Batterers Intervention Programs
Generally, there are six basic principles upon which many intervention and treatment programs for batterers are based:
Seven common mainstream procedures for batterers intervention programs were identified by the National Institute of Justice:
There are a number of significant barriers to effective batterers treatment programs, most notably the overall lack of enough programs to meet the needs of convicted domestic violence perpetrators in the United States. Other factors that affect success of batterer treatment are:
There are thousands of staff and volunteers in communities across America who assist, support, and serve victims of domestic violence. Often these professionals provide a lifeline to women and children who desperately need assistance and direction but are confused by the dynamics of their victimization, the thought of leaving a violent environment, and, in some cases, entering into the criminal justice system.
The following are goals of advocacy for victims of domestic violence:
There are multiple responsibilities associated with assisting victims of domestic violence:
VICTIM VALIDATION
One of the most crucial skills a victim advocate must possess is the ability to validate the victim's feelings, experiences, and fears. Many domestic violence victims do not view themselves as victims and fail to realize that domestic violence is a crime perpetrated against many other women.
Guidelines for validation of domestic violence victims include the following:
DEVELOPING A SAFETY PLAN
If and when a victim is able to leave her battering environment, it is essential that she has a "safety plan" to increase her opportunity for a successful departure. Advance planning is crucial. Concerns and actions to be addressed include the following:
Neither victim advocates, criminal justice professionals, social service providers, nor allied professionals operate in a vacuum when it comes to providing quality services to victims of domestic violence.
There are many professionals who have responsibilities to domestic violence victims.
In a lecture to the American Probation and Parole Association's Annual Conference in Phoenix, Arizona, in 1994, national domestic violence researcher and advocate Sarah Buel identified seventeen key components of a model domestic violence response:
Many communities, counties, and states have formed Domestic Violence Coordinating Councils to address prevention, early interventions, victim assistance, and coordinated responses from the criminal justice system and community in responding to domestic violence. Such Councils serve a variety of purposes:
A Community Checklist: Important Steps to End
Violence Against Women
In July 1995, a National Advisory Council on Violence Against Women was established by Attorney General Janet Reno and Secretary of Health and Human Services Donna E. Shalala. The purpose of the forty-seven-member, multidisciplinary council was to "help promote greater awareness of the problem of violence against women and its victims, to help devise solutions to the problem, and to advise the federal government on implementing the 1994 Violence Against Women Act."
The Advisory Council developed a checklist of important steps that communities can take to end violence against women, including the religious community, colleges and universities, law enforcement, health care professionals, the sports industry, the news media, and the workplace.
As Attorney General Reno and Secretary Shalala stated in the introduction to the Community Checklist:
This is not intended to be an exhaustive list but is meant to offer some straightforward, practical suggestions that we believe can make a difference in communities across the country. By coming together as a community, exchanging ideas, and coordinating efforts, we can begin to end this violence that destroys so many American lives.
Published during 1996 National Domestic Violence Awareness Month, "A Community Checklist" offers valuable insights into what individuals and community constituencies, can do to address domestic violence.
RELIGIOUS COMMUNITY
The religious community provides a safe haven for women and families in need. In addition, it exhorts society to share compassion and comfort with those afflicted by the tragedy of domestic violence. Leaders of the religious community have identified actions to share with the nation to create a unified response to violence against women.
(Adapted in part from the Nebraska Domestic Violence and Sexual Assault Coalition and the Center for the Prevention of Sexual and Domestic Violence, Seattle, WA. Used with permission.)
COLLEGES AND UNIVERSITIES
Colleges and universities offer important opportunities to educate young men and women about violence against women. Experiences on campuses will be carried forth to everyday life and will influence future actions. Therefore, every effort to inform students may mean one less victim abused or one less crime committed. Leaders in higher education have identified the following strategies to assist educators across the country in reaching out to students and communities, and to make campuses safe places for women.
LAW ENFORCEMENT
Across the country, law enforcement is developing innovative and effective strategies to prevent and prosecute violence against women more effectively. Law enforcement leaders have identified several of these strategies that, if used consistently, may go a long way toward reducing incidents of violence against women.
HEALTH CARE PROFESSIONALS
Health care professionals are in the critical position of providing services to victims of violence as the first contact point for many of these victims. It is crucial that health care professionals recognize their potential to intervene appropriately. Immediate recognition of the problem and the provision of medical care and referrals to appropriate resources within the community can make all the difference. Leaders in the field have identified the following strategies to make interventions by health care professionals more effective.
SPORTS
Today, more than ever, our sports players and organizations have an enormous capacity to influence the minds and behaviors of Americans, both young and old. The reason is simple. For many Americans, professional, college, and Olympic athletes are today's heroes. We must utilize this outlet to send a positive message to all Americans about preventing domestic violence and sexual assault. Following are a number of ways communities can work with the local sports industry to help stop the violence.
NEWS MEDIA
The media industry represents much more than television and film stars. It is the most influential source of information for millions of Americans. Before we can change people's attitudes about violence against women and prevent violent behavior, we must not only change the way violence is portrayed in the media, but also educate members of the media who report on domestic violence and sexual assault crime. Leaders in the media industry have identified ways in which communities can work with their local media to encourage responsible reporting of violence against women.
THE WORKPLACE
Men and women spend more and more of their daily lives in the workplace. Domestic violence is a workplace issue which affects the safety, health, and productivity of America's workers. Business and labor leaders have identified several strategies that can be used to create safer and more supportive workplaces.
The Federal Domestic Violence Laws and the
Enforcement of Those Laws
(The following section is excerpted from an article written by Margaret S. Groban, Violence Against Women Act Specialist, Executive Office for U.S. Attorneys, U.S. Department of Justice, April 1999.)
In 1994, the Congress of the United States, as part of the Crime Bill, enacted legislation empowering the federal government to participate in the fight against domestic violence. The Violence Against Women Act ("VAWA") recognized that "violence against women is a crime with far-reaching, harmful consequences for families, children and society." To combat this violent crime problem, VAWA created federal domestic violence crimes to be prosecuted by the Department of Justice. Consistent with this federal initiative, the Crime Bill also amended the Gun Control Act to include domestic violence related crimes.
This [section] provides a concise summary of the federal offenses/statutes now available in both VAWA and the Gun Control Act to prosecute domestic violence offenders in the federal courts as well as a summary of selected prosecutions under each statute and a checklist of offenses.
THE VIOLENCE AGAINST WOMEN ACT
Interstate Travel to Commit Domestic Violence. 18 U.S.C. §2261
18 U.S.C. §2261(a)(1).
It is a federal crime for a person to travel interstate (or leave or enter Indian country) with the intent to injure, harass, or intimidate that person's intimate partner when in the course of or as a result of such travel the defendant intentionally commits a violent crime and thereby causes bodily injury. The law requires specific intent to commit domestic violence at the time of interstate travel. The term "intimate partner" includes a spouse, a former spouse, a past or present cohabitant (as long as the parties cohabitated as spouses), and parents of a child in common. The intimate partner definition does not include a girlfriend or boyfriend with whom the defendant has not resided unless protected by state law. There must be bodily injury for prosecution under this statute.
18 U.S.C. §2261(a)(2).
It is a federal crime to cause an intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress, or fraud. As in subsection 2261(a)(1), the defendant must intentionally commit a crime of violence during the course of or as a result of the travel and there must be bodily injury to the spouse or intimate partner.
Interstate Stalking. 18 U.S.C. §2261A. As of September 23, 1996, it is a federal crime to cross a state line with the intent to injure or harass another person, if in the course of or as a result of such travel, the defendant places such person in reasonable fear of the death of, or serious bodily injury to, that person or a member of that person's immediate family. The law requires specific intent to violate this subsection at the time of interstate travel. "Immediate family" includes a spouse, parent, sibling, child or any other person living in the same household and related by blood or marriage. It is also a federal crime to "stalk," as it is defined in Section 2261A, within the special or maritime jurisdiction of the United States.
Interstate Travel to Violate an Order of Protection. 18 U.S.C. §2262.
18 U.S.C. §2262(a)(1).
This law prohibits interstate travel (or travel into and out of Indian country) with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment, or bodily injury. To establish a violation of this statute, the Government must demonstrate that a person had the specific intent to violate the protection order at the time of interstate travel and that a violation actually occurred. This statute does not require an intimate partner relationship--although this relationship may be required by the state or other governmental body issuing the order--nor does it require bodily injury.
18 U.S.C. §2262(b)(1).
It is a federal crime to cause a spouse or intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim in violation of a valid order of protection. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress, or fraud. The Government must also prove that a person intentionally injured an intimate partner in violation of a protection order during the course of or as a result of the forced or coercive travel. This subsection, unlike corollary Section 2262(a)(1), requires an intimate relationship between the parties.
The U.S. Department of Justice recognizes that under both §§ 2262(a)(1) and (a)(2), law enforcement may be unable to verify the validity of a protection order at the time of arrest. The national data center from which law enforcement and prosecutors now can verify instantaneously protection orders will be of enormous benefit to federal authorities in the prosecution of criminal cases under Section 2262. However, because participation in the protection order registry is voluntary and not all states are participating, it will be necessary to consult with the United States Attorney in the appropriate district for guidance in these cases.
To assist in prosecution under Section 2262 it is necessary to examine the protection order currently used in one's jurisdiction.
Penalties. Penalties for violations of Sections 2261, 2261A and 2262 hinge on the extent of the bodily injury to the victim. Terms of imprisonment range from five years for bodily injury to life if the crime of violence results in the victim's death.
FIREARM OFFENSES
Possession of Firearm While Subject to Order of Protection. 18 U.S.C. §922(g)(8). It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to appear. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury.
Transfer of Firearm to Person Subject to Order of Protection. 18 U.S.C. §922(d)(8). It is also illegal to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of Section 922(d)(8) must be knowing. Proof concerning knowledge on the part of the supplier may be difficult to establish without a fully operational central registry for protection orders.
Official Use Exemption. 18 U.S.C. §925. The restrictions of Sections 922(d)(8) and (g)(8) do not apply to firearms issued by governmental agencies to a law enforcement officer or military personnel so long as the officer or military personnel is on duty. Personal firearms do not fall within this exemption nor may these personnel possess officially issued firearms when off duty.
Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence. 18 U.S.C. §922(g)(9). As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date.
Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence. 18 U.S.C. §922(d)(9). It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of Section 922(d)(9) must be knowing.
Official Use Exemption. 18 U.S.C. §925. The official use exemption does not apply to Sections 922(d)(9) and 922(g)(9). This means that law enforcement officers or military personnel who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties.
Penalties. The maximum term of imprisonment for a violation of Sections 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9), is 10 years.
OTHER RELEVANT STATUTES
Full Faith and Credit to Orders of Protection. 18 U.S.C. §2265. This civil law provides that a civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the court of another state or tribe, and is to be enforced as if it were the order of the court of the second state or tribe. This law applies to permanent, temporary and ex parte protection orders that comply with the statute's requirements. To comply, the protection order must have provided the defendant with reasonable notice and an opportunity to be heard, in a manner consistent with due process. This law does not apply to mutual protection orders if (a) the original respondent did not file a cross or counter petition seeking a protective order or (b) if such a cross or counter petition was filed, but the court did not make specific findings that each party was entitled to such an order.
Amendment of the Brady Statement. 18 U.S.C. §922(s). The Brady statement requirements were amended as of September 30, 1996, to include a statement that the recipient of the firearm has not been convicted in any court of a misdemeanor crime of domestic violence. The Brady statement still does not require that the firearm recipient state whether he/she is currently subject to a valid protection order. The recipient will be compelled to fill out, at the time of receipt of the firearm(s), an ATF form requiring certification that he/she is not subject to a valid protection order.
Right of Victim to Speak at Bail Hearing. 18 U.S.C. §2263. The victim of a VAWA crime has the right to be heard at a bail hearing with regard to the danger posed by the defendant. In addition, depending upon the circumstances of the case, the United States Attorney's Office may move for pre-trial detention of the defendant.
Other Victims' Rights. 42 U.S.C. 10606(b). All federal crime victims, including a domestic violence victim, have the rights to:
Restitution. 18 U.S.C. §2264. In a VAWA case, the Court must order restitution after conviction to reimburse the victim for the full amount of losses.
Self-Petitioning for Battered Immigrant Women and Children. 8 U.S.C. §1154. VAWA specifically provides that battered and abused spouses and children of citizens and lawful permanent residents may self-petition for independent legal residency. This statute prevents citizens or residents from using the residency process as a means to exert control over an alien spouse or child and allows victims to remain in the United States independent of their abusive husbands/parents.
The federal domestic violence statutes provide powerful weapons for United States Attorney's Offices around the country to assist state and local law enforcement in their fight against domestic violence. Increased awareness of these federal laws will allow the Department of Justice to work in a collaborative manner with our state and local counterparts in our efforts to reduce one of our nation's most serious crime problems.
A checklist of federal domestic violence statutes can be found in the Appendix at the end of the chapter.
State-Level Domestic Violence Laws
The Family Violence Division of the National Council of Juvenile and Family Court Judges, with support from the Conrad N. Hilton Foundation, provides assistance to states in drafting, enacting or implementing domestic violence laws. Its 1998 "Family Violence Legislative Update" highlights key domestic violence public policy initiatives:
Fee waiver: Federal requirements mandate that states eliminate fees charged to victims of domestic violence for orders of protection. In 1997, Louisiana and Nevada mandated them for abusers instead.
OTHER STATE LEGISLATIVE TRENDS AND ISSUES
In its 1998 "Family Violence Legislative Update," the National Council of Juvenile and Family Court Judges identified a number of trends in domestic violence legislation:
1. Model police protocols for arrest policies and procedures.
2. Model protocols for prosecutors agencies.
3. Model training programs for police and other criminal justice personnel.
4. Guidelines for enforcement of out-of-state civil protection orders under the constitutional full faith and credit clause.
5. Interagency agreements and plans among county agencies to enforce domestic violence laws.
6. Batterer intervention program operational manuals.
7. Informational pamphlets for victims of domestic violence.
8. Physician guides for recognizing and treating domestic violence as a health problem.
ILJ's link page to more than 350 web sites is located at <www.ilj.org/dv>.
- Third-year students at the Battered Women's Rights Clinic at the City University of New York Law School assist low-income clients with a range of legal needs. This may include obtaining civil protection orders, pursuing contempt charges, seeking child support or custody orders, or handling housing or public benefit cases. The clinic teaches students to consider the unique social and economic obstacles confronted by battered women and to work on law reform efforts to overcome these barriers. Students have conducted workshops in local shelters and for victim services agencies and citizen groups.
- Law students at the University of Georgia Law School assist indigent victims of domestic violence in rural counties to file pro se petitions, obtain protective orders, and find appropriate referral services. The Protective Order Project also acts as a resource center for victims and service providers in the community.
- Students in the Families and the Law Clinic at Catholic University, Columbus School of Law, develop and run community education projects on dating violence prevention in local high schools. Law students address the dynamics of domestic violence, the civil and criminal remedies available, and dating violence myths. High school students respond to the substance and format of these workshops, viewing law students as peer role models as well as a source of accurate legal information. (ABA 1997).
Domestic Violence Self-Examination
2. What are the two characteristics that are significantly and consistently correlated with batterers?
3. Describe one effect of domestic violence on children.
4. Select one of the eight junctures in the criminal justice system highlighted in this chapter, and describe three key issues of which victim service providers should be aware.
5. Describe three of the responsibilities involved with advocating for victims of domestic violence.
6. Describe a promising practice in domestic violence prevention or intervention (either one that was highlighted in this chapter, or one that exists in your community).
Chapter 8 Appendix
- Interstate travel to commit domestic violence - 18 U.S.C. § 2261
- Interstate stalking - 18 U.S.C. § 2261A
- Interstate travel to violate a Protection Order - 18 U.S.C. § 2262
- Possession of a firearm while subject to a Protection Order - 18 U.S.C. § 922(g)(8)
- Transfer of a firearm to a person subject to a Protection Order - 18 U.S.C. § 922(d)(8)
- Possession of a firearm after conviction of a misdemeanor crime of domestic violence - 18 U.S.C. § 922(g)(9)
- Transfer of a firearm to a person convicted of a misdemeanor crime of domestic violence - 18 U.S.C. § 922(d)(9)
- Official use exemption from firearms offenses (except §§ 922(d)(9) and 922(g)(9)) - 18 U.S.C. § 925(a)(1)
- Full Faith and Credit - 18 U.S.C. § 2265
- Brady statement - 18 U.S.C. § 922(s)
- Right of victim to be heard at bail hearing - 18 U.S.C. § 2263
- Other victims' rights - 18 U.S.C. § 10606(b)
- Restitution - 18 U.S.C. § 2264
- Self-Petitioning for battered immigrant women and children - 8 U.S.C. § 1154.
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Chapter 8 Additional Resources
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