Domestic violence against women has become central to U.S. Supreme Court jurisprudence concerning domestic life and personal relations. Since the early 1990s, the exemplary woman in that jurisprudence has been the battered woman:
By presenting her as the exemplary women, the Court foregrounded understandings of marriage as a relationship in which women fear abuse by their husbands. The woman we have after the formal demise of coverture is the battered woman. The modern marital home is exemplified by its potential to be violent.^
Like coverture in contemporary legal scholarship, the battered women in Supreme Court jurisprudence is formally factual, but realistically discursive. Amid strongly sex-biased public discourse, emphasizing domestic violence against women is only prudent legal reasoning for individual justices and the Court as a whole.
The reality of domestic violence is nearly unspeakable. Among the Supreme Court opinions in Georgia v. Randolph (2006), a dissenting opinion queried:
Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out?^
That question implicitly invokes pervasive gender stereotyping of domestic violence. Men account for about 40% of visits to hospital emergency departments due to domestic violence. Such visits by men number in the hundreds of thousands per year. Given pervasive gender stereotyping in public discourse about domestic violence and anti-men bias in the prosecution of domestic violence, many men who are victims of domestic violence may rationally shun police intervention for fear that entrenched gender bias will direct the police against them. That may well be the usual pattern in current circumstances.
While judges are experts in detecting testimonial bias, that expertise apparently becomes inoperative with respect to claims about domestic violence. In U.S. v. Morrison (2000), a Supreme Court opinion reproduced factually incorrect Congressional findings about domestic violence against women. In Randolph, the majority opinion turned to the scholarly literature on domestic violence. It declared:
we recognize that domestic abuse is a serious problem in the United States. See U. S. Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women 25-26 (2000) (noting that over 20 million women and 6 million men will, in the course of their lifetimes, be the victims of intimate-partner abuse); U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States 19 (2003) (finding that nearly 5.3 million intimate-partner victimizations, which result in close to 2 million injuries and 1,300 deaths, occur among women in the United States each year); U. S. Dept. of Justice, Bureau of Justice Statistics, Crime Data Brief, C. Rennison, Intimate Partner Violence, 1993-2001 (Feb. 2003) (noting that in 2001 intimate-partner violence made up 20% of violent crime against women); see also Becker, The Politics of Women’s 118*118 Wrongs and the Bill of “Rights”: A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 507-508 (1992) (noting that women may feel physical insecurity in their homes as a result of abuse from domestic partners).^
This particular factual characterization of domestic violence focuses on women. It also reports facts with relatively low credibility as objective knowledge. For example, lifetime prevalence of victimization, which was measured through a single point-in-time survey, is a rather incredible statistic. So too are statistics from a project commissioned and funded with narrow objectives and entitled “National Violence Against Women Survey.”
The suspension of judicial expertise concerns not just judging social-scientific claims, but also in interpreting and applying the law. In Giles v. California (2008), the Supreme Court majority opinion stated:
Is the suggestion that we should have one Confrontation Clause (the one the Framers adopted and Crawford described) for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women? Domestic violence is an intolerable offense that legislatures may choose to combat through many means — from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal.^
At a formal level, the opinion describes domestic violence (against women) as an “intolerable offense.” The legal definition of domestic violence ranges from misdemeanor disorderly conduct to felonious assault. Among persons arrested for domestic violence, 97% are unarmed. In incidents of arrest for domestic violence, 35% of arrest are in circumstances of no physical injury to victims, and an additional 60% are in circumstances of “apparently minor injury” to victims. What characteristics make domestic violence an “intolerable offense” in contrast to other offenses such as murder or Driving While Intoxicated? The offense of murder, unlike domestic violence, is consistently a felony. Driving While Intoxicated in some circumstances isn’t a felony. In practice, domestic-violence protection orders vitiate the constitutional rights of criminal defendants under the assumptions of emergency law.
Domestic violence has become a major component of police activity. A concurring opinion in Randolph referenced the majority’s formally social-scientific description of domestic violence and added facts on the extent of police activity:
“Family disturbance calls . . . constitute the largest single category of calls received by police departments each year.” Mederer & Gelles, Compassion or Control: Intervention in Cases of Wife Abuse, 4 Journal of Interpersonal Violence 25 (Mar. 1989) (emphasis deleted); see also, e.g., Office of the Attorney General, California Criminal Justice Statistics Center, Domestic Violence Related Calls for Assistance, 1987-2003, County by Year, http://ag.ca.gov/cjsc/publications/misc/dvsr/tabs/8703.pdf (as visited Mar. 1, 2006, and available in Clerk of Court’s case file) (providing data showing that California police received an average of 207,848 domestic violence related calls each year); Cessato, Defenders Against Domestic Abuse, Washington Post, Aug. 25, 2002, p. B8 (“In the District [of Columbia], police report that almost half of roughly 39,000 violent crime calls received in 2000 involved domestic violence”); Zorza, Women Battering: High Costs and the State of the Law, Clearinghouse Review, p. 385 (Special Issue 1994) (“One-third of all police time is spent responding to domestic disturbance calls”).^
The opinion then added, “And, law enforcement officers must be able to respond effectively when confronted with the possibility of abuse.” Possibilities for abuse exist in a wide range of human circumstances besides those of arrests for domestic violence. In contrast to mythic domestic-violence master narratives that dominate contemporary academic discourse, domestic violence has been a publicly recognized problem since at least Abel and Cain. The survival and welfare of human societies from their earliest evolution has depended greatly on the quality of close, personal relations. Formal and informal regulation of domestic violence has been an aspect of political and social life long before the U.S. Bill of Rights was written. The extraordinary status of domestic violence under U.S. law today reflects extraordinary circumstances of public communication.
Compared to crimes between persons not having a close, ongoing relationship, domestic violence tends to be more difficult for hierarchical, socially distant authority to judge and punish satisfactorily. For more than two decades public discourse has supported grotesquely false, highly sensational claims about domestic violence against women. Domestic violence law and policy has largely ignored domestic violence against men. Persons incarcerated in prisons and jails are highly disproportionately men. In such circumstances, focusing judicial interpretation of criminal law and procedure on domestic violence against women exacerbates existing inequalities in public attention and encourages further gender inequality in criminal punishment. That’s an unjust path of democratic development.