Better Public Discussion of Domestic Violence Emergency Law

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Domestic violence emergency law has largely developed without fact-based, reasoned discussion among diverse and competing viewpoints. Sensational, grotesquely false claims about domestic violence against women have been reproduced across public discourses for decades. Gender-stereotyping of domestic violence prevails despite bitter scholarly controversy over the incidence of domestic violence. The legal academy has largely ignored law — equal protection of law, due process of law, and the legal justification for emergency law — in analyzing domestic violence emergency law. The significance of domestic violence policies for mass incarceration have hardly been explored. Formally free, open public discussion of domestic violence has performed badly in uncovering relevant facts, informing policy choices, and generating public understanding.

More public discussion of domestic violence might improve public understanding of the problem. An article in 2010 in the Cornell Journal of Law and Public Policy observed that domestic violence offenders haven’t been legally and socially stigmatized to the extent that sex offenders have been. Moreover, the public response to domestic violence has fallen far short of the massive state response to the terrorism attack of September 11th. The article declared:

Ironically, as Catharine MacKinnon has noted, the approximately 3,000 people who died on September 11th is almost the same number of women who die at the hands of male intimates in the United States every year.^

That’s a mis-citation of Catherine MacKinnon’s scholarly article. She actually referred to “women who die at the hands of men every year.”^ For the decade from 1999 to 2008, on average per year 3,682 women and 12,654 men were murdered. Deaths per year at the hands of intimate partners averaged considerably less: 1,183 women and 341 men. Deaths by suicide per year averaged 6,480 women and 25,392 men. The article in the Cornell Journal of Law and Public Policy advocated “strategies grounded in the idea that domestic violence is a community problem that affects us all.”^ The justice system and mass incarceration affect us all. The article, however, didn’t understand justice system action addressing domestic violence as a community problem that affects us all. It advocated “social marketing campaigns designed to elicit concern about the social costs of tolerating woman battering.”^ Raising public fear of domestic violence has significant social costs. Better public understanding of the relative magnitude of intimate-partner homicide deaths (1,183 women and 341 men) and suicide deaths (6,480 women and 25,392 men) could help to inform more reasonable public understanding of fatal risks.

Domestic violence policy has arisen from relatively narrow interests. In a law review article published in 2004, a law professor writing about domestic violence warned of “outside critics” with a “dangerous agenda” that “attacks and blames battered women.”^ More specifically:

a distinct and dangerous strain of criticism has recently emerged, which has been espoused by men’s right proponents, pseudofeminists, “old guard” resisters, and now, by psychological theorists who claim to be part of the battered women’s advocacy movement. … These groups have diverse goals, but they are united in attacking both battered women and their advocates.^

The article is organized with section headings that distinguish criticisms “from Within” and criticisms “from Outside.” The article asserts, with images of the spread of an infectious strain, possible dire consequences of criticisms “from Outside”:

a disturbing strain of criticism of the current policy … recently has been making its way into the popular culture. … The critique offered by these groups, who do not have the interests of battered women at heart, threatens to destroy decades of progress in domestic violence policy.^

This law professor-author had played an important role in shaping the New York judicial system’s response to domestic violence. She served as Deputy Director of the Center for Court Innovation, a public-private partnership with the New York State Unified Court System. As the Director of Domestic Violence and Family Court Programs at the Center for Court Innovation, she was closely involved with the development of the influential Felony Domestic Violence Court in Brooklyn:

She spent a great deal of her time with the original judge in the courtroom, consulting with him on a case-by-case basis. This provided extensive on-the-job training to the judge. … In her wider role as Director of the Domestic Violence and Family Court Programs, the Director works closely with judges in all the specialized domestic violence courts throughout the state, gives presentations to judges and others at a variety of setting on the principles of a domestic violence court, and ensures that the principles of the court model piloted in Brooklyn are faithfully replicated throughout the state.^

Battered women’s advocates have in general had important roles in training judges.^ In a 2009 law review article, the trainer for the influential Felony Domestic Violence Court in Brooklyn focused on the stalling of progress in addressing domestic violence:

the stalling of progress that has come from deep resistance among those in our society to comprehending the dynamics of domestic violence and addressing its consequences. Whether from the public as a whole—as represented by our juries—or from our legislatures or the highest ranks of the judiciary, this resistance is difficult to name and to address. However, it has had an enormously negative impact on our ability to achieve effective domestic violence reform.^

This article set out mythic history of domestic violence criminalization, gestured to the humorless misunderstanding of coverture, and ignored gender inequality in incarceration. The article addressed at length lack of judicial appreciation for “expert battered women’s syndrome testimony in self-defense cases,” weaknesses in the prosecution of marital rape, and how to overcome Supreme Court decisions supporting defendants’ rights (Crawford v. Washington) and denying a property right in police action (Castle Rock v. Gonzales). These are high-status objects of lament in the legal academy.^ In a conversation among leading criminal law scholars published in 2009, this influential domestic-violence scholar and policy leader argued passionately for stronger enforcement of domestic violence emergency law:

It is underenforcement — failure to arrest and prosecute aggressively, reluctance to issue protection orders and enforce them consistently — that remains the most serious concern in domestic violence criminalization. With over a thousand women kill by intimate partners annually and millions more injured, the real question is why we are permitting violence against women to continue with impunity.^

In the U.S., arrests for domestic violence account for a majority of arrest for interpersonal violence. About 1.7 million restraining orders (“protection orders”) are issued per year. In light of those facts, the statement “we are permitting violence against women to continue with impunity” seems somewhat exaggerated. But among law professors gathered to converse about criminal restraining orders imposing de facto divorce, under-enforcement of domestic violence emergency law was a major concern.^ Judges probably continued to be trained in more aggressive application and enforcement of domestic violence emergency law.

Scholarly concern for deliberative boundaries underscores the narrowness of public understanding of domestic violence. Within the dominant deliberative framework of gender-stereotyping domestic violence, a scholarly article in 2009 examined the issue of “enemy boundary creep”:

Domestic violence continues to be a serious problem for women in the United States. As a result, the battered women’s movement has been tireless in campaigning for greater awareness of the issue, tougher penalties against offenders, and public vigilance against potential batterers, including fathers from dissolving families. In reaction to this stance, a small but vocal countermovement composed of activists in the fathers’ rights movement has argued that the BWM is guilty of what I term enemy boundary creep, a perception whereby these men maintain that they have been inappropriately targeted. Using 40 in-depth interviews with fathers’ rights activists located across the country, this article details the narrative that these men have composed as to why the BWM is expanding the scope of its enemies, the tactics that the BWM is using in this campaign, and the insidious effects that these efforts are having on fathers across the country. This narrative formulates a boundary-push back response.^

This rhetorical scholarship examines the deliberatively polarized groups BWM {Battered Women’s Movement} and the “father’s rights movement.” Such scholarly discussion obscures the failure of scholarly discussion to generate even common understanding of basic facts about domestic violence. In the context of mass incarceration, domestic violence policies are of much broader public interest than the interests of the battered women’s movement and the father’s rights movement.

Patrolling of boundaries has even taken the form of arguing that veterans accused of domestic violence should not be given a hearing in veteran’s courts, but only in specialized domestic violence courts. An article in the Veterans Law Review in 2012 asserted that veterans court lack domestic violence expertise:

Until a reliable knowledge base and evidence-based practice is developed for proper assessment, veterans charged with intimate partner violence should not be admitted to veterans court programs.^

Given the anti-men gender bigotry deeply entrenched in domestic violence “expertise,” lacking such expertise might be appropriately regarded as an advantage in administering justice. Heightened concern for fair administration of justice is particularly appropriate for persons who have risked their lives in service to their country. The article’s concern about problematic public messages favors specialized domestic violence courts only in the context of accepting the democratic failure in public discussion of domestic violence. The article also makes arguments of the type “nothing works” in treatment. Understanding about four million domestic violence police calls per year as indicating a escalating cycle of violence for which no treatment is possible leaves only the solution of mass incarceration. Veterans returning to their home country should not have to fight totalitarian misunderstanding of domestic violence. The article gender-stereotypes domestic violence. It describes extreme forms of domestic violence unlike the vast majority of domestic violence allegations. Veterans are subject to this such shameful deliberative assault because of intense anxiety to maintain boundaries in public deliberation concerning domestic violence.

Domestic violence is too important of a public problem to continue to be a horrific failure of deliberative democracy. As a myopic recent law article declared without a whiff of irony, “innovative, bold, and brave approaches” are now needed to address domestic violence.^ Persons publicly discussing domestic violence in ways not supportive of entrenched, dominant domestic-violence interests face dangers and risks. Sustaining and strengthening democracy requires citizens not be afraid to accept some dangers and risks. Judiciously and bravely confronting fear could help to bring reasoned accountability to domestic violence policy.

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