Democratic Failure: a Case Study of Domestic Violence

face of a prisoner

U.S. domestic violence policy over the past few decades provides an astonishing example of democratic failure. False claims of various types are a normal part of open, democratic discussion. The marketplace of ideas is a metaphor associated with the hope that the best ideas will garner the greatest popular assent. Or if not, at least the best ideas will garner the greatest assent among sober thinkers engaged in the scholarly ideals of deliberative democracy. The results of human social communication in reality are far from those abstract ideals. Domestic-violence policy provides a case study of how badly public discussion can go wrong. Sustaining humane, democratic societies requires finding new, practical means, consistent with democracy and human rights, for correcting serious democratic failures.

Since the early 1990s, sensational, false claims that domestic violence is the leading cause of injury to women have proliferated across U.S. newspaper articles, law-review articles, Congressional documents, judicial opinions, and websites. U.S. legislative, judicial, and executive authorities created and now administer an extraordinary regime of domestic-violence emergency law. Legal scholars have generated little critical analysis of that emergency law. Rare, elite legal work critically addressing one aspect of domestic violence policy largely reveals the futility of such work in serving broad public interests. Rather than truth and facts, the power and control of socially recognized domestic violence expertise has supported harsh, expansive criminalization of domestic violence. In creating and administering domestic violence emergency law, democratic authorities have done their jobs well relative to the dominant public misunderstanding of domestic violence.

U.S. state legislatures have enacted statutes addressing domestic violence with amazing frequency per year over nearly two decades. During each year from 1995 to 2011, about 75% of U.S. states have enacted some legislation addressing domestic violence. Fourteen U.S. states have enacted domestic-violence legislation every year from 1995 to 2011, or every year but one. The most commonly enacted and re-enacted domestic-violence legislation is in the category “criminal penalties and procedures.” About half of states in any given year enact legislation in that category. The second most commonly enacted category of domestic-violence legislation is “(civil) orders for protection.” The least commonly enacted of the six enumerated categories of domestic-violence legislation is “prevention and treatment.” Enacting statutes addressing domestic violence seems to have value in the act of enacting, especially if the statutes promote criminal punishment or orders of protection, more appropriately called restraining orders.

Domestic-violence problem solving in the judicial system has responded to sensational accounts of domestic violence against women. About 2004, the Chief Judge of New York State explained:

Shortly before I became Chief Judge ten years ago, tragedy struck in an affluent community in Westchester County, north of New York City. Sadly, it often takes a tragedy to galvanize attention. A woman was bludgeoned to death by her husband of four years, who then jumped to his death from a nearby bridge. The wife, an educated, articulate woman, had appeared in Family Court weeks earlier. With no lawyer or victim advocate to assist her, she stood before the judge, asked for an order of protection, and received precisely what she requested: an order that allowed the husband to remain in the house but prohibited him from harassing her or removing their child. Her death was headline news, and the media heaped blame on the judge for permitting the husband to stay in the home. I wondered what more might have been done.^

That’s a horrific case. It’s also a bizarre case for thinking about the judicial system doing more. A court granted an educated, articulate woman precisely what she requested. She subsequently died through a homicide-suicide. The much larger number of women who kill themselves galvanizes much less public attention than the much smaller number of women who are killed by their husbands in homicide-suicide incidents. The fundamental problem is that the media heaped blame on the judge for not forcibly divorcing the wife from her husband and not tyrannically imposing pre-emptive, pre-act incarceration.

Inability to reason through media-driven fears about security undermines fundamental democratic values. The Chief Judge of New York State continued with another story:

Not long after that, in Brooklyn, a Russian immigrant was murdered by her ex-boyfriend. While the ex-boyfriend was awaiting trial on prior charges of assaulting her and violating prior orders of protection, a judge modified the bail terms into terms the ex-boyfriend was able to satisfy. Shortly after his release, he went to the car dealership where she worked, shot her in the head, and then fatally shot himself. Again, press coverage was unrelenting, with blame heaped on the courts. Again I asked myself, what more could be done to prevent tragedies like these?^

New York City lessens the risks of the media heaping blame on the courts by imposing no-contact domestic-violence restraining orders uniformly at the arraignment of persons arrested for domestic violence.^ ^ These restraining orders evict persons from their homes and deprive them of custody of their children. Most persons arrested for domestic violence are arrested for misdemeanor offenses. Perfunctorily issuing domestic-violence restraining orders encompasses many persons arrested for relatively minor domestic violence offenses. At the same time, a no-contact restraining order offers little protection against a person intent on homicide-suicide. Uniformly issuing no-contact orders upon persons arrested for domestic violence eviscerates fundamental constitutional rights and eliminates judges’ professional task of judging. Doing so probably also generates extreme anger and an acute sense of being treated unjustly among some formally restrained persons. The actual protective effect of a restraining order relative to homicide-suicide is far from clear. But perfunctorily issuing domestic-violence restraining orders is judicial problem-solving. It solves the problem of the media blaming judges for horrific cases of domestic-violence homicide-suicide.

Sensational media reporting of tragedies isn’t a good basis for systemic thinking and problem-solving. Most domestic violence involves acts that are not otherwise regarded as criminally serious and do not build to life-threatening violence. Police in the U.S. handle about four million domestic violence calls per year. About two thousand domestic violence homicides occur per year among a total of about sixteen thousand homicides of all types. In incidents involving domestic violence homicide, about 40% of deaths occur in circumstances of homicide-suicide. Domestic violence homicides are sensational. They encompass only a small share of all homicides. They are very rare among all domestic violence incidents.

Identifying and forceful deterring domestic violence homicide-suicides is more difficult and more costly than addressing non-domestic terrorism. Domestic violence homicide-suicide cases differ from terrorist suicide bombers in that domestic violence suicide killers have much stronger social connections to the relevant society. For example, in violation of the terms of an initial restraining order, one evening a husband took his three young girls to an amusement park. After his wife evidently informed him that the police were seeking him for this action, he murdered his three daughters. He then went to the police station. At the police station, he began shooting at the police with a semiautomatic handgun he had purchased that day. Police officers shot back and killed him.^ The violence that the father committed is egregiously wrong. No media firestorm would blame a judge for these killings. Yet peace and justice are connected. A well-functioning democracy should sustain wide-ranging discussion about systemic changes that could lessen domestic violence homicide-suicide. The appropriate response to domestic violence homicide-suicide is not obviously stronger state coercive control of persons within their homes and families.

Like other state judicial systems, the New York State judiciary has responded to the dominant public understanding of domestic violence through judicial education. By 2003, the Chief Judge of New York State had mandated domestic violence education for all judges dealing with family-related matters.^ In addition, the Chief Judge of New York State and other leading New York judicial officials have stated in scholarly publications:

Domestic violence is the number one source of injury to women in the United States, “causing more injuries than rapes, auto accidents, and muggings combined.” ^

Domestic violence is the leading cause of injury to women.^

That’s the sensational, horrifically fear-inspiring, false domestic violence claim that has been prevalent in public discourses since the early 1990s. Judicial education about domestic violence hasn’t even effectively established simple truths about domestic violence among judicial leaders promoting domestic violence education. Education becomes nothing more than popular indoctrination under the collapse of reason. Such education isn’t a propitious means to promote peace and justice. Domestic violence judicial education has encouraged unjustified criminal suspicion of men and the imposition of emergency domestic violence law.

Judicial leaders have framed domestic violence as women being victimized by men. A judge on the New York State Supreme Court declared in a 2005 law review article:

Among the issues that I hope will be at the top of the agenda for the New York court system in the next few years is the continuing effort to make the courts fully responsive to female victims of male violence, particularly the violence visited on them by intimate partners. The Task Force report {Report of the New York Task Force on Women in the Courts (1986)} pinpointed this as a huge problem.^

Intimate-partner homicides accounted for 9% of all homicides in the U.S. Men account for about 20% of intimate-partner homicide victims. Among the remaining 91% of homicides, male victims outnumbered female victims by about five to one. Framing the agenda of the New York Court system in terms of female victims of male violence, particularly intimate-partner violence, focuses on a small share of violent victimizations. That agenda supports pervasive gender-stereotyping of domestic violence and obscures bitter scholarly controversy about the relative shares of men and women victims of domestic violence. It’s also consistent with gender-profiling men for arrest for domestic violence and ignoring men victims of domestic violence. Nonetheless, it looks good in public discourse:

officials in charge of these bureaucracies {chief judges, police chiefs, county administrative heads} are uniformly, absolutely committed to looking good on domestic violence. Those who are elected, like the State’s Attorney, are particularly committed to looking good on domestic violence.^

Wanting to look good is completely understandable. The problem is that public discourse has developed such that looking good on domestic violence means embracing grotesque falsehoods and unprecedented injustices.

The dominant public understanding of domestic violence, supported by vigorously competitive media, affects judges’ case-specific decisions. In 1990, the U.S. National Institute of Justice published a lengthy report, Civil Protection Orders: Legislation, Current Court Practice, and Enforcement. The primary purpose of this report was to “explain how sitting county and municipal court judges can effectively use and enforce civil protection orders to protect victims of domestic violence.” Chapter 1 of that report is entitled “Civil Protection Orders: A Unique Opportunity for Court Intervention.” That chapter briefly dismisses judges’ concerns about due process under law:

Many judges express concern over the due process rights of the defendant in a protection order proceeding. However, judges in courts with clearly defined procedures for notice and hearing believe they have adequately addressed these concerns.^

Initial civil protection orders are issued ex parte. Notice here thus means notifying the targeted person of the restraining order entered against her. That means, for example, notifying her that she is evicted from her home, deprived of custody of her children, and now has about two weeks to prepare for an informal hearing that will determine whether those deprivations will be extended for years. Within Chapter 1, a section entitled “Judges’ Changing Perspective on Civil Protection Orders” tendentiously and emotively encouraged judges to err “on the side of safety”:

domestic violence cases are complicated: many victims seeking protection orders have been seriously assaulted; others have not but, fearful of the dangerousness of their situation, petition to enjoin borderline behavior and prevent a more serious assault from occurring. Judges must make decisions in cases which fall all along this continuum.

Nonetheless, civil protection orders are seen as a simple, immediate remedy to increase the safety of victims in many of these cases. Because {initial} protection orders are temporary, they provide the court an opportunity to “get a handle” on the violent behavior. In issuing orders, judges can err, if at all, on the side of safety by effectively protecting the party in danger of injury, while at the same time allowing the parties and the courts to deal with the complexities of the domestic situation in more appropriate forums. Erring on the side of safety is also important to help protect the children, who are not only at risk of physical and emotional abuse by the offender but may also suffer from witnessing violence within their own home.^

By 1995, judicial education in New Jersey was delivering a simple message about restraining orders:

“If I had one message to give you today, it is that your job is not to weigh the parties’ rights as you might be inclined to do as having been private practitioners,” Russell {Judge Richard Russell, a municipal court judge providing domestic violence training to other judges} told the judges. “Your job is not to become concerned about all the constitutional rights of the man that you’re violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, ‘See ya’ around.’ Your job is to be a wall that is thrown between the two people that are fighting each other and that’s how you can rationalize it. Because that’s what the statute says. The statute says that there is something called domestic violence and it says that it is an evil in our society.”^

This judicial training apparently was oriented toward promoting legislative intent and urgency, as understood through legislatures’ repeatedly enacting domestic-violence statutes:

The training, however, stresses the Legislature’s urgency in passing the law, which last year was amended again to extend possible domestic violence situations to dating relationships. The trainers encourage the judges to focus on the legislative findings, which, in emphasizing rapid law enforcement response, state “that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants.”

This, said Kessler {Nancy Kessler, chief of juvenile and family services for the Administrative Office of the Courts of New Jersey} at a training session last year, is justification for an approach advocated by Russell: Talk to the complainant, talk to the reporting officer, issue the TRO, and let the family court sort it out later.

On a tape of the April 1994 session obtained by the Law Journal, Kessler told the judges that “in that legislative findings section, people are told to interpret this law broadly in order to maximize protection for the victim. So if anybody ever came back at you and said, ‘Gee, that’s a real reach in terms of probable cause,’ you have a legislatively mandated response which is, ‘I erred on the side of caution for the victim.'”

Kessler was reacting to a question that arose during Russell’s presentation. “The statute says we should apply just cause in issuing the order,” an unidentified, new municipal judge said, adding, “You seem to be saying to grant every order.”

Russell quickly replied, “Yeah, that’s what I seem to be saying.”^

About 90% of ex parte restraining order petitions are granted. Many are granted based on no information other than what the petitioner has written on a pre-printed form. A law professor who formerly worked as a District Attorney in Manhattan explained:

In the oral culture of prosecutors, a misdemeanor DV {domestic violence} defendant has the potential to turn out to be an O.J. Simpson. Rookie prosecutors are warned that their DV misdemeanor cases could get them negative media attention for failure to prevent more serious violence.^ ^

Prosecutors’ and judges’ concerns about negative media attention are well-founded. Consider the removal of King’s County New York Supreme Court Justice Judge Lorin Duckman. According to a New York State Court of Appeals judge who reviewed former Judge Duckman’s petition opposing his removal:

It is clear from the public record that petitioner {former Judge Lorin Duckman} was targeted for investigation and formal discipline because of the publicity he received in connection with a routine bail decision he made in a misdemeanor prosecution involving one Benito Oliver. Some three weeks after his release on bail, Oliver located his former girlfriend, Galina Komar, shooting her and then himself. The following day, the incident was reported by the New York City tabloids in sensational headlines which implied that petitioner was somehow to blame for the tragic incident. One tabloid blared a headline indicating that petitioner had said “{e}ven I beat my wife” — a remark that he never actually made.

The lurid newspaper coverage was followed only a few days later by a letter from the State Senate Majority Leader to the State Commission on Judicial Conduct demanding that petitioner’s fitness be investigated immediately. At the same time, Governor Pataki initiated his own “investigation” of petitioner.^ ^

A law review article insightful described judges’ incentives in issuing restraining orders:

While the costs of a wrongly granted order fall on the respondent, the costs of a wrongly denied order fall on both the petitioner and on the judge. No one who needs to be re-elected or reappointed wants to be the judge who denied a protective order in a case where the respondent later engages in headline-worthy violence. Wrongful denial could easily be portrayed as softness on crime—or its civil equivalent—and possibly insensitivity to women or obliviousness to domestic violence. It’s better to be safe than sorry.^

U.S. judges issue about 1.7 million domestic-violence restraining orders per year. Judges thus frequently enact in narrow, mundane circumstances emergency law of extraordinary power. A 2001 study supporting no-drop prosecution policies noted:

defense attorneys are very much opposed to judicial training by victim advocates, arguing that it is simply indoctrination. The defense attorneys have a point in that federal and state money seems to be available to train judges to be sympathetic to prosecution arguments but not to train them in the defense perspective on these cases (viz, that not all domestic violence cases involve efforts at control by a primary aggressor but are “fights” that result from interpersonal conflict between two people with different points of view).^

A New York State study on stakeholders’ views of the development of domestic violence emergency law in New York observed:

Most defense attorneys opined that judges’ perceptions are biased. … Most defense attorneys believed that the judge’s behavior is the result of the media and publicity that domestic violence cases receive when they go wrong.^

A criminal defense attorney explained to prospective clients:

If the police or the District Attorney’s Office labels your case a “domestic violence” or “special victims” case, then your case takes on layers of difficulty not associated with other cases in the system (even compared with cases of seemingly greater violence).

The real reason these cases take on extra layers of difficulty is a simple, basic motivation for human behavior: FEAR. Every agency that comes into contact with a domestic violence case (police, prosecutor, and judicial) is driven by FEAR of the consequences if THIS case is going to be THE CASE. …

The policies of the District Attorney’s Office, the Police, and the reaction of judges to cases involving domestic violence combine to treat many cases as if they were THE CASE of the madman who will immediately kill everyone involved. And it is so clearly a case of covering themselves against absurd New York Post stories that they often don’t seem to understand how absurd the results often are.^

These aren’t merely the predictable (and largely ignored) views of a particular stakeholder.^ A fair, non-tendentious review of the evidence shows enormous support for them. Sensational media reports about domestic violence, as well as direct judicial training that only an obscure, cranky, rural judge would dare publicly criticize^, have taught judges how to reason about issuing restraining orders. A district court judge in Kentucky stated that he grants at least 95% of initial, ex parte restraining orders:

The problem is that the statute is so broad that almost anything (including people yelling at each other) legally constitutes domestic violence. And besides, if I am going to err in my ruling, I am going to err on the side of caution.^

The extraordinary effects of commonly evoked domestic violence emergency law has no reasonable judicial basis other than better safe than sorry and err on the side of hidden harm.^ ^ ^

Domestic violence emergency law isn’t a triumph of progressive democracy. Contrary to mythic domestic-violence history, domestic violence has been of public concern since at least Cain and Abel. Communities have historically addressed domestic violence against men and women in a variety of ways — story-telling, punitive gossip, public shaming, fines, judicial orders of restraint, and bodily punishment. In recent decades, domestic violence policy has shifted strongly toward extensive criminal punishment and privately triggered acts of extraordinary state power. In the U.S., that shift has contributed significantly to world-leading levels of incarceration and legally justified suspicion of enduring intimate relations between women and men.

The deeply rooted democratic failure of public discussion about domestic violence will be difficult to redress. Domestic-violence experts have made no progress for decades in achieving consensus about basic domestic-violence facts. Who teaches what about domestic violence has become a question of social and political power, not a matter of truth. Legal scholars, with keen understanding of what arguments win, have embraced domestic violence emergency law with only meager and marginal actual legal analysis. Public authorities across all important public institutions have embraced sensational, grotesquely false claims about domestic violence against women. Many, diverse parties have large investments in harshly punitive, fundamentally anti-men domestic violence policy. Complex and vital, family law is constitutional law in ordinary life. A democratic path out of the domestic violence constitutional disaster desperately needs to be found.

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