Characterizing Domestic-Violence Calls for State Action

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The circumstances in which claims of domestic violence are brought to the attention of the justice system have been highly sensationalized. Stories of men brutally murdering their wives and lovers drives domestic violence policy. But that type of homicide accounts for only about 7% of all homicides. Among the remaining 93% of homicides, murdered men outnumber murdered women by more than three to one. Moreover, domestic violence is defined broadly under law. Public discourse has shown no ability to bring to reason absurd and highly damaging claims about domestic violence against women. Most domestic violence calls to the police are related to circumstances of murder mainly through sensationalization of fear. Subjects, informers, and law-enforcers frequently report as domestic violence actions otherwise commonly considered to have little criminal significance.

Calls to police concerning domestic violence are much greater than police-reported domestic violence offenses. Police typically determine whether a crime occurred using a “probable cause” standard. California state law requires police to have written policies encouraging the arrest of domestic-violence suspects if the police have probable cause to believe that a domestic-violence offense occurred. New York State law mandates arrest in such circumstances, except if the probable cause is for a misdemeanor offense and the victim objects to the arrest.^ In California in 2004, arrests for domestic violence amounted to 25% of calls to police concerning domestic violence. In New York State in 2008, the corresponding figure is 34%. In San Diego, a leader in aggressive arrest and prosecution policies for domestic violence, 25% of domestic-violence calls to police resulted in arrest about 1999. The corresponding national figure then was estimated as 20%.^ An estimated four million domestic-violence calls to police occur per year. For a large share of domestic-violence calls, police officers do not find probable cause that a domestic violence offense occurred.

Domestic violence offenses formally recognized even at an early stage in the justice system don’t objectively indicate a high level of criminal significance. Among civil petitions for domestic-violence restraining orders, the best available data indicates that about 40% claim only that the targeted party “placed me in fear of imminent serious physical harm.” The most common specific claim is that the targeted party “insulted or swore.” In 97% of arrests for domestic violence, the police report indicates that the arrestee is unarmed. The police-determined victim shows no injury in 35% of arrest incidents, and “apparent minor injury” in another 60% of arrests. The vast majority of incidents of domestic violence do not concerning stabbing, shooting, or serious physical injury. Describing domestic violence victims as “survivors” and domestic violence as “battering” or an escalating cycle of violence sensationally and tendentiously misrepresents most cases.^ ^

Sensational claims about domestic violence have shaped constitutional law in action. For example, a leading 2004 New York State ruling, People v. Moscat, classified 911 calls as non-testimonial. The ten-page written ruling was issued the same day, or perhaps the day after, the issue was raised in the court. The judge issued his ruling without yet having gained access to the tape of the 911 call specifically at issue in the case.^ A description of 911 calls figured importantly in the judge’s ruling:

The 911 call – usually, a hurried and panicked conversation between an injured victim and a police operator – is simply not equivalent to a formal pretrial examination by a Justice of the Peace in Reformation England. … Many 911 calls are made while an assault or homicide is still in progress. Most other 911 calls are made in the immediate aftermath of the crime. … Typically, a woman who calls 911 for help because she has just been stabbed or shot is not contemplating being a “witness” in future legal proceedings; she is usually trying simply to save her own life.^

This description slides between characterizing “many 911 calls” and “a woman who calls 911 for help because she has just been stabbed or shot.” The latter type of 911 call probably accounts for less than 1% of all 911 calls concerning domestic violence. In this case, the 911 call was made by a neighbor nine hours after the alleged incident, which did not involve a knife or a gun. The judge’s ruling in this case narrowed all domestic-violence defendants’ rights under the Sixth Amendment of the U.S. Constitutional.^ The judge in the case seems to have taken to heart judicial training on domestic violence.

Claims of domestic violence regularly generate restraining orders that immediately evict a person from her home and eliminate her freedom to communicate with one or more persons. In justifying these extraordinary abridgements of personal freedom, judicial review casually invokes a domestic emergency. For example, in a Kansas case, a wife filed for a restraining order one week after her husband filed for divorce. She claimed that she feared her husband. She stated that at some indefinite time in the past he had made troubling remarks, and on other occasions he had squeezed her so hard that she thought her ribs would crack. The trial court granted the wife a restraining order that effectively barred her husband from their home and required him to have no contact with her. Reviewing this case, a Kansas Court of Appeals began thus:

We pause to note that this court is extremely reluctant to involve itself in something as subjective as an order of protection from abuse {a restraining order}. These matters frequently develop in emergency situations, and the ultimate judgment of the trial court in a case such as this may literally involve risk to the lives of some or all the parties involved.^

Life-threatening emergency situations exist in cases concerning domestic violence. Such emergency situations also exist in cases concerning other types of violent acts. The actual circumstances of this case seem far from a clear and present danger to life. Lack of legal and political constraints on state invocations of “emergency situations” and domestic terrorism can lead to tyranny. Claims of extraordinary emergency and domestic terrorism are accepted without question as justification for mundanely invoking domestic-violence emergency law millions of times per year.

Justice-system action addressing claims of domestic violence represents a large share of the justice-system action addressing all types of interpersonal violence. Constitutional rights, civil liberties, and due process of law are defined in practice to a large extent through actions addressing claims of domestic violence. If done nationally, declaring a state of emergency and suspending the normal rule of law would attract massive public attention. In addressing domestic violence, the justice system effectively declares millions of such emergencies at the household level every year in the U.S. The actual circumstances of the vast majority of those situations represent a very low bar for suspending normal rule of law.

Domestic violence against women is special in important respects. Public discourse seems to be highly vulnerable to wildly false claims about domestic violence against women. Public discourse shows very little concern about injuries to men. Domestic terrorism against women has become a well-established term of art in public discussion of domestic violence.^ Supported by sensational over-generalization of such terrorism, the dominant anti-men domestic violence discourse largely ignores the deep and bitter scholarly dispute about facts concerning domestic violence. From highly specialized domestic-violence scholars to the U.S. Supreme Court, badly functioning public discussion supports domestic violence law’s suspension of normal rule of law.

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