• > Introduction

    • Nelson Mandela and South Africa’s Constitutional Court:
    Increasing Disproportionate Imprisonment of Men

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    Despite highly disproportionate imprisonment of men, South African President Nelson Mandela and the South African Constitutional Court enacted and validated sex-discriminatory release of only women prisoners. The Constitutional Court observed that in post-apartheid South Africa, equality gained fundamental legal importance:

    The importance of equality in the constitutional scheme bears repetition. The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.^

    In 1994, thirty-eight men were in prison in South Africa for every woman in prison.^ For comparison, in Europe from the sixteenth to the nineteenth centuries, a typical ratio of men to women disposed in punishment was about four. Across most of the world in 2003, the ratio of men in prison to women in prison was sixteen. Nelson Mandela’s act and the Constitutional Court’s decision in President v. Hugo occurred in South African circumstances of highly disproportionate imprisonment of men, absolutely and in comparative perspectives.

    Through a special, sex-discriminatory legal act, Nelson Mandela directly increased highly disproportionate imprisonment of men in South Africa. In 1994, acting in his capacity as President of South Africa, Nelson Mandela ordered freed from prison “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years,” who had not been committed to prison for an enumerated list of offenses. Imprisoned fathers with such children received no such privilege.

    South Africa’s Constitutional Court decided that such sex discrimination does not violate South Africa’s constitution. In an affidavit in support of the President’s action, the National Director of the South African Council for Children and Family Welfare directed attention away from equal human dignity and toward “the best interests of the children.” The National Director defined that emotive concept in terms of sex differences and gender stereotypes:

    In my opinion, the identification of this special category {of women in prison} for remission of sentence is rationally and reasonably explicable as being in the best interests of the children concerned. It is generally accepted that children bond with their mothers at a very early age and that mothers are the primary nurturers and care givers of young children.^

    The Court itself was less concerned about maternal bonds and more concerned with women’s burdens of child-rearing. Seven judges’ majority opinion affirmed that gender stereotypes about women’s burdens of child-rearing are not valid reasons for discriminating against women:

    To use the generalisation that women bear a greater proportion of the burdens of child rearing for justifying treatment that deprives women of benefits or advantages or imposes disadvantages upon them would clearly, therefore, be unfair.^

    A mother’s burdens of child-rearing isn’t a valid reason for refusing to admit a mother to a demanding job such as being an attorney. The question in this case, however, was about being in prison. The judges declared that such generalizations about child rearing, while not valid reasons for depriving women of opportunities, are valid reasons for preferentially releasing women from prison.

    Even accepting that gender stereotypes about child-rearing burdens are just reasons for sex discrimination in releasing prisoners, the practical reasoning is backwards. Since children are no longer allowed to accompany their parents to prison, parents in prison do not bear the burdens of child-rearing. Released prisoner-parents do. Concern about women’s burdens of child-rearing logically imply preferentially releasing fathers from prison so that those fathers could help rear children, or at least earn money to make government-specified financial payments to children’s mothers. The Court, however, apparently didn’t consider women’s burdens of child-rearing as a practical problem. Instead, the Court seems to have viewed women’s burdens of child-rearing as a general harm for which women can receive special compensation through criminal justice policy.

    Eight judges emphasized the practical importance of existing, large gender inequality in imprisonment. These judges reasoned:

    Male prisoners outnumber female prisoners almost fiftyfold. A release of all fathers would have meant that a very large number of men prisoners would have gained their release. … In the circumstances it must be accepted that it would have been very difficult, if not impossible, for the President to have released fathers on the same basis as mothers. Were he obliged to release fathers on the same terms as mothers, the result may have been that no parents would have been released at all.^

    The specific level of prisoner sex inequality wasn’t a matter of careful concern. That “male prisoners outnumber female prisoners almost fiftyfold” summarized figures, explicitly given in a footnote, implying a sex ratio of thirty-eight male prisoners per female prisoner. What apparently mattered was the existing, large gender inequality in the prison population. The Court’s validation of discriminatory prison release had the effect of raising even higher the highly disproportionate imprisonment of men. Large gender inequality in imprisonment provided legal justification for action directly making that gender inequality even larger.

    The prevailing highly disproportionate imprisonment of men didn’t preclude feasible, non-discriminatory prison release policies. A special remission of sentence could have been issued for all parents, with minor children under the age of twelve, who had not been committed to prison for an enumerated list of offenses, and who had less than X days of imprisonment remaining on their prison sentences. The parameter X could been chosen to effect the release of any given total number of prisoners. Conditioning release by time remaining on sentences is a common practice in statutes governing probation and remission of prison sentences. Rather than conditioning release on days of remaining imprisonment without sex discrimination, the release order conditioned release on the prisoner being female. Conditioning release on the prisoner being female increased already highly disproportionate imprisonment of men. That’s blatant sex discrimination. It’s unjustified in reason apart from power in public deliberation.

    Equality is a fundamental democratic ideal, yet public deliberation seems incapable of expressing common sense of this ideal with respect to men and imprisonment. For example, in discussing the criminal justice system, a high-ranking English judge recently declared:

    I am, as you might expect, a passionate believer in equality. But equality is a complicated subject.^

    The judge went on to offer suggestions that would raise the ratio of men in prison per woman in prison in England from the then-current ratio of sixteen. Confronting gross failures in legal deliberation in the U.S. in the late 1950s, a legal scholar proposed moving outside of public deliberation as it’s typically understood:

    Equality, like all general concepts, has marginal areas where philosophical difficulties are encountered. But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is solemnly propounded whether such a race is being treated “equally,” I think we ought to exercise one of the sovereign prerogatives of philosophers – that of laughter.^

    What about equality in criminal justice and imprisonment when ten men per woman, or twenty men, or fifty men per woman are in prison?^ Surely some ratio exists beyond which public deliberation about gender equality becomes absurd and meaningless. Then individuals active in self-government become only girlfriends, wives, brothers, sisters, mothers, fathers, family and friends of prisoners, weeping for their imprisoned men. Caring persons should weep for South Africa and humanity when considering South African President Nelson Mandela’s act and the South African Constitutional Court’s decision in President of the Republic of South Africa and Another v Hugo.

    Sex-Biased Job Restrictions on Men Prison Staff

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    Sex-biased job restrictions on men prison staff illustrate public deliberation supporting sexual suspicion of men. In 1929, the International Penitentiary Commission adopted the following rule governing relations between prison officials and prisoners:

    The supervision of female prisoners should be entrusted, as far as possible without exception, to female officers.

    No male officer, whatever his rank, should be allowed to enter the female prisons or sections of prisons, except when he is called by his duties. In this case he should be always accompanied by a female officer, unless in the case of the Governor, the Medical Officer or the Chaplain.^

    This rule was subsequently adopted by the League of Nations.^ In 1955, the United Nations adopted a similar rule, with additional provisions:

    53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.

    (2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.

    (3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.^ ^

    These rules, which remain in effect, don’t represent informed officials’ necessary response to specific circumstances of sexual abuse that could not be feasibly addressed in a way that did not treat men prison staff as generically suspect in relation to female prisoners. These rules blur the distinction between convicted offenders and men as a class. These rules categorize men as per se threats of sexual misconduct.

    While the League of Nations and United Nations representatives who adopted these rules were mostly men, women-dominated bodies have also endorsed rules restricting employment of men prison staff. With respect to facilities for federally sentenced women inmates in Canada, the Third and Final Annual Report of the Cross-Gender Monitoring Program offered as Recommendation 1:

    It is recommended that males should not be permitted to be front line Primary Workers. This would include not being permitted to act in a security function with respect to living and segregation units, cell extraction teams regardless of time of day, and escorts of any kind.^

    This report lists as authors four females, along with the assistance of two females. The Canadian Association of Elizabeth Fry Societies, a strong advocate for this position, is also women-dominated. Both men and women leaders have endorsed employment restrictions on men based on sexual suspicion.

    U.S. courts have upheld specific cases of employment restrictions on men prison staff. In Everson v. Michigan Dept. of Corrections (2004), the U.S. Court of Appeals, Sixth Circuit, decided that the Michigan Department of Corrections (MDOC) could restrict men prison staff’s employment opportunities within women prison housing units. MDOC justified these employment restrictions with specific reasons:

    First, the presence of males in the housing units necessitates the use of “artificial barriers to security” such as covers for cell windows, doors on the toilet stalls, shower curtains, the moratorium on pat-down searches by male officers, and the “knock and announce” policy. Second, allegations of sexual abuse, whether true or not, create a “poisoned atmosphere” that breeds misconduct on the part of inmates and guards. Third, many male officers, afraid of false accusations of sexual abuse, become “gun-shy” and fail to monitor and discipline inmates in a proactive fashion.^

    Employment of men in women’s prisons is currently standard practice nationwide in the U.S.^ However, the Court cited the previous decade’s factual record as indicating that MDOC had not successful addressed serious problems of staff sexual abuse and other mistreatment of women inmates.^ The court reasoned that, if men continued to be employed, action to stop sexual abuse and mistreatment of women prisoners could not succeed while maintaining a necessary level of prison security. However, MDOC’s reasons for its employment restrictions are generic. Both staff sexual victimization of men and women inmates, along with false accusations of such victimization are serious problems in U.S. prisons and jails generally. The Court stressed that its ruling applies narrowly to MDOC’s specific circumstances. That’s generic narrowing move for legal decisions. More significantly, the Court failed to recognize the history of employment discrimination against men in women’s prison and the prevailing culture of criminal suspicion of men.

    Women have supervised incarcerated men from no later than the eighteenth century. In England in the eighteenth century, jail keeping was a commercial business. Widows occasionally become jail keepers when their jail-keeping husbands died.^ In the U.S., the first woman named to run a major municipal agency of New York City was appointed in 1914 to be Commissioner of Corrections for New York City.^ At that time, men probably outnumbered women in New York City jails by more than ten to one. Only about a decade later, the League of Nations forbid men prison staff from supervising women’s prisons, or even entering a women’s prison without a woman escort. Women supervising men prisoners has been much less restricted historically than men supervising women prisoners.

    Women prison staff’s sexual misconduct is mitigated in public discourse in ways that men prison staff’s sexual misconduct isn’t. In Virginia prisons from 2002 to 2005, 80% of prison staff who perpetrated substantiated sexual misconduct toward inmates were women.^ A national survey of U.S. prisons in 2005 found that women staff perpetrated 62% of substantiated cases of sexual misconduct or sexual harassment of inmates. The percent of women perpetrators in a parallel survey of jails in 2005 was only 13%.^ A newspaper article reporting these findings included a quotation from an authority explaining why the share of women staff sexual misconduct is lower in jails than in prisons:

    in jails, sexual relations between staff and inmates are “much more likely to involve a force or abuse of power . . . as opposed to something that is more characterized as romantic in nature in a prison.” ^

    The article quoted a law professor and authority on prison administration. She rationalized the high share of women staff sexual misconduct:

    “You will often find that the culture that allows this kind of stuff to happen is also a culture that is particularly inhospitable to female staff,” she said, noting that female staff might align themselves with inmates for protection.^

    These explanations invoke folk stereotypes about sex differences and academic conventions for justifying women’s interests. Explanations of sexual misconduct and harassment as romantic, or, alternatively, as necessary instrumental action, are not explanations that would excuse men’s sexual misconduct.

    The prominence of ideological explanations for the relatively high share of women staff sexual misconduct is particularly remarkable given a reasonable statistical explanation. Worldwide, the prisoner population is much more skewed toward men than is the prison staff population. That’s also true in the U.S. Like in most populations, most prison staff are heterosexual. Circumstances for women staff/men prisoner sexual misconduct are thus much more prevalent than circumstances for men staff/women prisoner sexual misconduct. Given equal propensities of men and women staff to commit sexual misconduct, a higher share of women staff sexual misconduct would be expected with such sex disparity among inmates.

    Job restrictions on men prison staff reflect criminal sexual suspicion of men in public deliberation. The chaste woman and the predatory, brutish male are gender stereotypes deeply embedded in public deliberation.^ Elite men imagine themselves as champions for the chaste woman. Elite women imagine themselves as defenders against the predatory, brutish males. Ordinary men working as prison staff confront the reality that their employment opportunities are restricted because of their sex.

    Sex Discrimination for Prisoner Telephone Calls Upheld

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    In Benzel v. Grammer (1989), a U.S. Court of Appeals upheld a prison regulation that explicitly discriminated against communication with men. Under Nebraska State Penitentiary’s telephone regulations, prisoners held in disciplinary segregation could make any number of telephone calls to legal or religious professionals. In addition, prisoners could submit a list of three persons to be approved for telephone contact. The list could include family members and at most one female nonfamily member. Prisoners were allowed to make no more than two phone calls per week to approved persons from that list. Prisoners were thus allowed to make up to two calls per week to a female nonfamily member, but prisoners were not allowed to make any calls to a male nonfamily member. The court cited the Nebraska State Penitentiary Warden’s explanation for this sex discrimination:

    in looking at the kinds of contacts that we felt it would be most significant, allowing that there also was the privilege of visiting, mail to continue, we felt that some family contact certainly was significant, and that primarily the other significant kinds of contacts with men within the institution [sic] were with significant females in the community, in terms of mother or children or wife or girlfriend or fiance or common-law wife or something of that sort. And we thought that would be the most significant kind of contact, rather than another male contact.

    This description blurs the distinction between telephone contact with “family members” and with “non-family members.” Of the enumerated relational categories, “girlfriend” is the category least likely to be generally recognized as specifying a family member. For a homosexual male inmate, “boyfriend” is a category similar to “girlfriend” for a heterosexual male inmate. The reason for allowing a male inmate to telephone a girlfriend, but not a boyfriend, seems to be categorical sex discrimination. Nonetheless, that categorical sex discrimination troubled little the Court of Appeals in its brief opinion. That opinion uncritically deferred to prison officials’ descriptions and asserted “the inherent reasonableness of the challenged restriction.”

    Men are subject to more criminal suspicion than women are. Prison officials screen persons whom prisoners can call. Prison officials also record and review prisoners’ telephone conversations. Discriminating telephone contacts by sex is an additional regulatory control. The added value of that additional sex-based control is far from clear to reason. As a sex, men are vastly disproportionately represented among prisoners. Presuming greater criminal suspicion of men contributes to highly unequal punishment by sex.

    Domestic Violence Amid Criminal Justice System Malfunctioning

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    In a highly unusual article, a law professor who practiced as a public defender in the District of Columbia considered domestic violence within the broad context of the functioning of the U.S. criminal justice system. This scholar-participant observed:

    Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the result feminist law reformers hoped for when they began their movement of resistance against patriarchy that legitimized domestic violence? … in recent times, victims’ rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda.^

    Many legal scholars consider the U.S. criminal justice system to be malfunctioning. In a highly respected law review, a law professor, a prominent scholar of the criminal justice system, declared in 2006:

    the train has run off the rails.… American criminal justice seems to me an outrage that generates more injustice than its opposite. The absence of any clear villain heightens the sense of tragedy without lessening the outrage.^

    Another law professor noted:

    If the system is doing justice now it is by accident – the accident that particular prosecutors bargain prudently and humanely. There are good reasons to doubt that this happy accident is really taking place.^

    The legal literature emphasizes that overcriminalization, excessive prosecutorial discretion, and overly harsh punishment plagues the U.S. criminal justice system. Yet the legal literature seldom considers those problems in relation to law and policy regarding domestic violence. That silence points to broader problems of democratic governance of criminal justice.

    Public discourse shows relatively little concern about overcriminalization, excessive prosecutorial discretion, and overly harsh punishment. Injustices in the criminal justice system attract much less public attention than sensational crimes. Proposing new crimes and urging harsh punishment is much more popular than decriminalization and calls for mercy. In historical and international perspectives, the U.S. has been exceptional in punishment: the U.S. had an exceptionally high ratio of men to women in prison in the nineteenth century and currently has an exceptionally high prevalence of imprisonment. Why don’t these exceptional circumstances attract more public concern?

    The legal academy has formulated various explanations for the public’s failure to appreciate the malfunctioning of the criminal justice system. One eminent law professor has linked much harsher punishment in the U.S. compared to Europe to contrasting civic cultures. In Europe, nobles were accorded dignity in punishment. That dignity was subsequently generalized democratically. Since a noble class has been much less recognized and institutionalized in the U.S, demand for democratization of noble dignity, according to this eminent authority, doesn’t exist in the U.S. A scholarly study showing major problems with California’s “Three Strikes” penal law attributed lack of public concern about these problems in part to a “large gap between law professors and the legislative process.”^ A contrasting opinion is that leading lawyers have successfully pursued symbolic victories in constitutional law and have thereby suppressed local political possibilities for constraining the extent and harshness of punishment.^ In any case, a gap between law professors and the legislative process in discussing domestic violence doesn’t favor the expertise of law professors.

    Consider an important statement from the American Bar Association’s Commission on Domestic Violence. For at least a decade, 1996-2005, this leading organization of the law profession had available on the web a document about domestic violence. Under the heading “Identifying Domestic Violence,” sub-heading “What is Domestic Violence?” was this guidance for law enforcement professionals:

    When spouses, intimate partners, or dates use physical violence, threats, emotional abuse, harassment, or stalking to control the behavior of their partners, they are committing domestic violence. Physical violence includes putting your hands on a person against their will. It also includes shoving, pushing, grabbing, pulling, or forcing some one to stay somewhere. Regardless of the relationship between two people, using physical violence against someone is a crime. {emphasis added}^

    Describing “putting your hands on a person against their will” as “a crime” trivializes domestic violence. No one deserves to be a victim of physical violence or domestic violence. Domestic violence is a serious public problem. At the same time, a crime-and-punishment approach has limitations in solving problems, particularly problems among intimates sharing children and a home and aspiring to love one another. Moreover, public discussion of domestic violence has been highly prejudicial toward men. The criminal justice system highly disproportionately imprisons men. Reasonable legal consideration of domestic violence should squarely recognize these facts. The law profession largely doesn’t.

    General properties of public discourse contribute to a badly functioning criminal justice system. The justice system’s response to domestic violence is oriented toward punishing men and providing services to women. In that deliberative context, legal scholars appear largely unable to discuss much of what legal scholars typically discuss and lament — overcriminalization, lack of procedural protections for civil and human rights, plea-bargaining outside the shadow of well-understood criminal law, enormous gender and racial inequalities, state-perpetrated insults to human dignity, overly harsh punishment, etc. Sociological, criminological, judicial, and mass-media spheres of public discourse show similarly poor performance in discussing domestic violence. Public deliberation about domestic violence is a microcosm of the more general sex problem in public deliberation about criminal justice.

    Family Law Is Constitutional Law in Everyday Life

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    Intense personal relations are a difficult field for law. Writing with the benefit of extensive judicial experience addressing domestic violence, a judge observed in 1995:

    It is apparent that the attitudes of law enforcement officers, prosecutors, judges, and treatment counselors are evolving toward the belief that the court system must treat violence toward loved ones occurring behind closed doors in the same manner that it treats violence toward strangers occurring on the streets.^

    A law professor writing in a leading law journal has similarly warned against categorizing an “intimate sphere” in law.^ On the other hand, a leading state court judge has declared:

    Without question, the relationship between the perpetrator and victim makes domestic violence different from prototypical “stranger” crimes.^

    Domestic violence statutory law defines a separate sphere of criminal law and criminal procedure for allegations of interpersonal violence within statutorily defined relations of love, romance, and sex. What is the legal justification for equal treatment, or different treatment?

    Domestic violence law’s particular concern with intimate relations doesn’t have a clear substantive basis. Romance and sex occurs among persons who know each other in some cases for just a few hours. In other cases, intimates know each other for a whole life. Sex usually occurs behind closed doors, as do many other activities. Sex often doesn’t involve sharing a home, sharing economic assets, and sharing care for children. Dating relationships and relationships of shared home and children are conflated within domestic violence statutes. Those relationship categories differ as do an arms-length transaction and a joint proprietorship. The latter pair implies much different legal codes.

    Law defined within a category of personal relationships (family law or domestic relations law) has received too little attention from legal scholars with diverse backgrounds and interests. In law schools, family law appears to be a low-prestige field that narrowly interested female professors dominate. One might think that the explanation for this outcome is obvious:

    What sphere of ordinary life does our law regulate the least?^

    With respect to lives of men, military service has probably been the sphere of ordinary life that “our law” (the law that citizens make through the regular process of self-government) has regulated the least. But a different answer tends to justify the legal academy’s prestige hierarchy and sexual division of labor:

    The answer … is probably families. The law of domestic relations regulates a great many transactions, but it says little about the ordinary interactions between spouses, parents and children, or siblings. Consequently, that law is a small presence in daily life. ^

    That measure of law’s presence ignores the constitutional significance of the law of domestic relations. What if I had better opportunities for sharing a bed and hearth with someone, or worse opportunities? What if I had more children, or none? What if I had a father at home? Family law, meaning law governing intense personal relationships, has great personal and social significance. Family law is constitutional law for the human relations of everyday life.

    Revising the above text to refer to “intact families” doesn’t save the claim that family law has relatively little importance. The last sentence in the above text was published in a revised form:

    At least for intact families, that law {family law} is a small presence in daily life.^

    While this revision at least hints at realities of ordinary life, it misleadingly suggests that relational brokenness is abnormal and unrelated to the law that governs family life. Ordinary family life exists in the shadow of possibilities for disruption. “Intact families,” however that concept might be defined, do not exist in a realm isolated from family law.

    A large number of statutes across the U.S. address fears of harm, threats and attempts to do harm, and incidents of harm specifically within relationships commonly associated with love, lost love, and hopes of love. The relationship categories of statutory concern include spouses, ex-spouses, cohabitants, parents of the same child, persons who have been sexually intimate, and dating relationships. The statutory definitions of dating relationships highlight the importance of love:

    • dating relationship…a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature {Hawaii Revised Statutes §586-1(2) (2003)}
    • dating relationship means frequent intimate associations primarily characterized by the expectation of affectional involvement {Michigan Comp. Laws §600.2950(30)(a)(2004)}
    • dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context {Nebraska Revised Statutes §42-903 (2004)}

    A Kansas statute on protection from abuse declares that a dating relationship is a “social relationship of a romantic nature.” The statute also declares that such a relationship will be presumed to exist if one party states that it exists.^ In Missouri and Texas, such statutes have developed through an active, ongoing process of legislative amendment.^ ^ Love relations, rather that material and biological relations, are the primary focus of protective statutes.^ Special protective statutes much less frequently address relations of kinship or relations defined in terms of sharing a high percentage of economic assets. Statutory emphasis on love relations is consistent with democratic law-making through sensational press coverage of intimate violence.

    Change in domestic violence law has contributed significantly to the rise of mass incarceration in the U.S. In the U.S., adults arrested for domestic violence account for a majority of adults arrested for any form of interpersonal violence. Arrests for domestic violence have driven the increase in arrests for interpersonal violence from 1980 to 2011. Crime is a potent tool for attracting mass-media attention. Domestic violence, even more so. Action against domestic violence has largely been an uncritically celebrated front in the war on crime.^

    In truth, the scope and legal difference of personal relations is a dilemma. Insightful institutional analysis has recognized “the great advantages, in the home setting, of informally associating with a few trustworthy intimates.”^ Law tends to undermine the informality and trust important in intense personal relationships. Yet material, biological, and sexual relations also increase vulnerability to harm from betrayal, fraud, and violence. Personal stakes in family law are high. Possibilities for highly discretionary and discriminatory legal judgments are also high. Like constitutional law, family law becomes less meaningful as it becomes broader, more detailed, and more complex. The practice of family law is a fundamental public test of interpersonal trust and rule of law. A legal aphorism is that there is no law in family law.^ If that’s true, then there is no law in the most important sphere of most persons’ lives.

    Criminal Suspicion:
    Domestic Violence Leading Cause of Injury to Women

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    On July 10, 1994, an article in the Times-Picayune, a major newspaper in New Orleans, Louisiana, led with this news:

    You’ve probably seen the fact somewhere now – that domestic violence is the leading cause of injury to women between the ages of 15 and 44.

    Newsweek used it. The Washington Post used it. CNN and ABC used it.

    And you may have heard that more women are injured by domestic violence than by auto wrecks, cancer and muggings combined.

    But there’s a problem with these facts: They aren’t true.^

    Uncovering this news required nothing more than standard journalistic practices — checking sources, asking relevant persons significant questions, and recognizing the broader context of current events. The journalist interviewed Linda Saltzman, one of the authors of an influential 1992 Surgeon General’s statement on domestic violence. The journalist reported:

    With respect to the claim, “domestic violence is the leading cause of injury to women between the ages 15 and 44,” Saltzman stated: “I spend my life trying to get it unattributed to us because we didn’t say it and it’s not accurate,” Saltzman said. “It’s a very misleading quote, and I don’t know how to stop it.”^

    In February, 1995, a government agency with well-established and well-institutionalized statistical expertise published a technical report with summary statistics from a nationally representative survey of hospital emergency rooms. The relevant statistics indicated that violence (not just domestic violence) was the fifth-largest cause of injury to females and accounted for less than a third as many injures to females as did motor vehicle accidents.^ Discerning that domestic violence is far from the leading cause of injury to women doesn’t place large demands on public reason and public information.

    Variants of the false claim that domestic violence is the leading cause of injuries to women have been widely supported and disseminated in public discourse. From 1996 to 2005, variants appeared at least 70 times in U.S. Congressional records, at least 19 times in judicial opinions (including in U.S. Supreme Court opinions), at least 202 times in law reviews and law journals, at least 105 times in newspaper articles, and at least 178 times in web pages. In 1999, the prestigious New England Journal of Medicine published an article authored by nine persons, each having an M.D., a Ph.D., or both. The article began by authoritatively claiming:

    Domestic violence is the most common cause of nonfatal injury to women in the United States.^

    In 2005, Lifetime Television, in conjunction with its fourth annual “Stop Violence Against Women Week,” issued a press release reporting:

    young women and men have a much higher “IQ on Violence Against Women” than previous studies have found. … 80% {of 600 persons ages 16-24, surveyed online Feb. 9-16, 2005} knew that, in the US, the leading cause of injury to women between 15 and 25 is battering.^

    Across public discourse for more than two decades, influential communicators have encouraged the public to believe a highly damaging, false claim about domestic violence against women.

    Support in public discourse for the false claim that domestic violence is the leading cause of injury to women obscures the true distribution and scope of human injuries. A compassionate response to injuries focuses first on injuries, not on causes. Men between ages 15 and 44 suffer about 40% more injuries prompting visits to hospital emergency rooms than do women of those ages. Limiting those injuries to only injuries from violence, men suffer 60% more injuries from violence than women do. Limiting those injuries from violence to only injuries from domestic violence, men suffer 40% fewer injures from domestic violence than women do. Injuries to men and women from domestic violence account for about 2% and 4%, respectively, of all injuries prompting a visit to a hospital emergency rooms. Falsely exaggerating injuries from domestic violence against women obscures many injuries that men and women suffer. Focusing on domestic violence against women does not credibly express compassion for human injury itself. The actual, implicit concern seems to be not helping the injured but spurring criminal suspicion of a particular class of persons: men.

    Support in public discourse for the false claim that domestic violence is the leading cause of injury to women undermines public trust. That false claim devalues men’s love for women and supports the criminal disposability of men from their families and their communities of ordinary life. Trust is a fundamental element of civilization.^ Intimate relations are crucial to human flourishing. Domestic violence has been publicly recognized as a problem long before the late-twentieth century. Public media, however, have become far more powerful than they were in the nineteenth century and earlier. Using historically unprecedented capabilities of public media to mislead intimates into fearing each other is extraordinarily damaging to human trust personally and socially.

    Support in public discourse for the false claim that domestic violence is the leading cause of injury to women supports sex inequalities in criminal fear and punishment. That false claim is one of many sensational, highly exaggerated domestic-violence factoids that have circulated throughout public discourse.^ Highly exaggerated claims of domestic violence against women foster fear for women and criminal suspicion of men. An academic study of criminals and victims found that the “ideal criminal” is male, and the “ideal victim,” female. That study argued that the consequence for women are bad: “Fear of crime is one of the most oppressive and deceitful sources of informal social control of women.”^ The study didn’t consider a severe formal social control: incarcerating persons. In 2010, about ten men were in prison in the U.S. for every woman in prison. Fostering criminal suspicion of men supports highly disparate criminal punishment of men.

    Influential Claim about Domestic Violence Against Women

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    The U.S. Surgeon General’s statement in 1992 in the prestigious Journal of the American Medical Association was highly influential for proliferating false claims about domestic violence against women. That journal’s June 17, 1992, issue highlighted domestic violence against women. It included a one-page statement entitled “From the Surgeon General, US Public Health Service.” The Surgeon General’s statement began:

    A Medical Response to Domestic Violence: Domestic violence is an extensive, pervading, and entrenched problem in the United States. It is an outrage to women and the entire American family. … It is a violation of our criminal laws and a callous disregard for human life.^

    This statement as a whole implicitly equated domestic violence (“an outrage to women”) with domestic violence against women. Its fourth paragraph stated:

    One study found violence to be the second leading cause of injuries to women, and the leading cause of injuries to women ages 15 through 44 years (Am J Epidemiol. 1991;134:59-68).

    The Surgeon General’s statement, which began with an explicit scope of domestic violence (“A Medical Response to Domestic Violence: “), didn’t address violence in general. Hence a reader would reasonably assume that the reference to violence referred to domestic violence. The appended scholarly citation (“Am J Epidemiol. 1991;134:59-68”), the only scholarly citation in the Surgeon General’s statement, examined injuries treated in hospital emergency departments. The injuries of concern were all injuries from violence, not just injuries from domestic violence. The population studied was poor, urban, black women in western Philadelphia in 1987-88.^ That population is far from representative of the U.S. population as a whole. The Surgeon General’s statement concluded:

    As health professionals, we must make every effort to end domestic violence. Women must be able to live their lives free from violence, both inside and outside the home. … As professionals, we can make a remarkable difference.

    After the Surgeon General’s statement were the authors’ names and impressive credentials:

    • Antonia C. Novello, MD, MPH, Surgeon General, US Public Health Service
    • Mark Rosenberg, MD, PhD
    • Linda Saltzman, PhD, National Center for Environmental Health and Injury Control, Centers for Disease Control
    • John Shosky, PhD, Consultant to the Surgeon General

    With the statement “From the Surgeon General,” these authors made a remarkable difference. Variants of the false claim that domestic violence is the leading cause of injury to women proliferated after its publication. Many scholarly references to that false claim have reference chains leading back to the Surgeon General’s statement in the June 17, 1992, issue of the Journal of the American Medical Association.

    That journal issue also included a report that contributed to the proliferation of false claims about domestic violence against women. The report was entitled “Physicians and Domestic Violence.” It was subtitled “Ethical Considerations.” The Council on Ethical and Judicial Affairs of the American Medical Association authored it. This report’s third paragraph stated:

    Women in the United States are more likely to be victimized, through assault, battery, rape, or homicide, by a current or former male partner than by all other assailants combined.{one endnote reference} The rate of injury to women from battering surpasses that of car accidents and muggings combined. {four endnote references}^

    References to the Surgeon General’s misleading statement about domestic violence often include frightening comparators like “car accidents” and “muggings”. These terms do not occur in the Surgeon General’s statement. References that include these terms seem to have evolved from an intertwining and exchange of symbol material between the Surgeon General’s statement and the report of the American Medical Association’s Council on Ethical and Judicial Affairs. Despite the additional scholarly paraphernalia attached to the latter report, nationally representative injury surveys indicate that the claim about the battering injury rate for women is false by a wide margin.

    The June 17, 1992, issue of The Journal of the American Medical Association also included an editorial supporting the proliferation of false claims about domestic violence against women. This editorial was entitled “Violence, Values, and Gender.” Echoing the Surgeon General’s misleading statement, that editorial noted “our findings that domestic violence was a leading cause of women’s injuries.”^ The author of the editorial was “Anne H. Flitcraft, MD.” The American Medical Association’s Council on Ethical and Judicial Affairs thanked Flitcraft for “critical review” of its report in that issue (see above). Flitcraft, along with Evan Stark, had published for the National Clearinghouse on Domestic Violence in 1981 a tendentious monograph entitled, Wife Abuse in the Medical Setting: An Introduction for Health Personnel.^ Apparently established as a domestic-violence expert, Flitcraft testified in 1985 at a Senate hearing on domestic violence and public health. She declared to the Senate:

    domestic violence accounts for more injuries to women than street crimes, rapes, muggings, and motor vehicle accidents combined. It is the single largest cause of injury to women in this country.^

    Flitcraft also co-authored a paper with Evan Stark for the Surgeon General’s Workshop on Violence and Public Health in 1985. As published in 1991, that paper stated that spouse abuse “results in more than three times as many injuries as auto accidents.”^ Nationally representative injury surveys indicate that these claims grotesquely exaggerate injuries from domestic violence.

    The Surgeon General’s statement, in its context in the 1992 issue of the prestigious Journal of the American Medical Association, provided highly authoritative support for the claim that domestic violence is the leading cause of injury to women. That claim and its variants proliferated after 1992. That those claims are false by a wide margin mattered little. In stark contrast, scholarly studies indicating that domestic violence against men is a serious public problem have generated violent scholarly controversy and attracted little public attention. The Surgeon General’s statement on domestic violence provides a stunning example of a fundamental anti-men sex bias in public discourse.

    Tracing Proliferation of False Claims about Domestic Violence

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    False claims like “domestic violence is the leading cause of injury to women” increased sharply in the U.S. in the late 1980s and early 1990s. No such claims were found in a broad search of U.S. Congressional documents, law journals, and newspapers published in 1985 and 1986. In 1987, that search found 3. The count rose from 17 in 1989 to 115 in 1993. Within the corpus of searched texts, claims that domestic violence is the leading cause of injury to women and closely related variants peaked at 188 in 1994. That was the year that Ronald Goldman and Nicole Brown Simpson, O.J. Simpson‘s wife, were murdered. O.J. Simpson was charged with both murders. The O.J. Simpson case provided a prominent opportunity to sensationalize domestic violence against women.

    While the O.J. case supported sensationalization of domestic violence against women, the claim that domestic violence is the leading cause of injuries to women had considerable public significance prior to the O.J. case. A variant of that claim appeared in the U.S. national news weekly Time in 1983. The Surgeon General in 1984 reportedly made such a claim. Additional instances of the claim appear in specialized studies published in the 1980s. In 1992, the prestigious Journal of the American Medical Association published a Surgeon General’s statement on domestic violence. That statement seems to have been the key event in proliferating the false claim that domestic violence is the leading cause of injury to women.

    "Domestic violence is the leading cause of injury to women"

    Instances, with variants, in Congressional documents, law reviews, and newspapers
    yeartotalleading causelargest causegreatest cause
    19850000
    19860000
    19873120
    19885023
    1989173113
    19903412193
    19917025441
    19928764185
    1993115752515
    1994188153269
    1995101721415
    19968969191
    19978770107
    19985842133
    19996146105
    2000594955
    2001614876
    2002282530
    20034326152
    2004392685
    2005373070
    2006373052
    2007403631
    2008231580
    2009272322
    2010232102
    2011201901
    Note: The above figures are from well-defined corpuses of relevant documents. They provide a lower bound on the number of such claims actually published. The newspaper claim count does not include all US newspapers and is probably biased toward greater coverage after the mid-2000s. The above counts exclude court cases, where citing opportunities are case-dependent, and web documents, which aren't easily categorized by year of posting. The underlying data, including the specific text and context of the claims, are available in the Domestic Violence Claims Dataset.

    The Surgeon General’s 1992 statement on domestic violence included distinctive phrases that help to trace its influence on false claims about domestic violence. The Surgeon General in 1992 was Antonia C. Novello. Here’s the focal text from the Surgeon General’s statement:

    One study found violence to be the second leading cause of injuries to women, and the leading cause of injuries to women ages 15 through 44 years

    References to this statement have nearly uniformly dropped the reference to “one {unrepresentative} study.” References to this statement have also nearly uniformly replaced “violence” with “domestic violence” or a related term such as “spouse abuse,” “battering,” or “intimate partner violence.” Within that family of variants, the text has distinctive symbolic markers: the phrase “leading cause” and the age specification “ages 15 through 44 years.” These markers help to identify the influence of the Surgeon General’s 1992 statement.

    In 1984, the Surgeon General reportedly made a formally distinguishable statement about domestic violence against women. The Surgeon General in 1984 was C. Everett Koop. The U.S. Congressional Record from 1988 to 1993 contains at least seven statements similar to the following example from the Congressional Record in 1988:

    In 1984, U.S. Surgeon General C. Everett Koop reported that domestic violence is the single largest cause of injury to women in the United States.

    Primary-source evidence for this Surgeon General’s statement apparently doesn’t exist. In any case, this statement doesn’t shield the Surgeon General behind the the findings of “one study.” The statement also explicitly refers to domestic violence, uses the phrase “largest cause,” and contains no qualification as to women’s ages. Some substitution between the phrases “leading cause” and “largest cause” probably occurs in paraphrasing references. The age qualification in the Surgeon General’s 1992 statement, although highly relevant quantitatively, is often dropped. Nonetheless, the relative frequency of references to “leading cause” and “largest cause,” and the relative frequency of the age specification “ages 15 to 44,” help to distinguish the communicative influence of the Surgeon General’s 1984 and 1992 statements.

    The Surgeon General’s 1992 statement contributed significantly to false claims that domestic violence is the leading cause of injury to women. Before 1992, such claims favored the phrase “largest cause.” After 1992, the phrase “leading cause” was by far the most common. Moreover, for the sample of claims recorded in the Domestic Violence Claims Dataset (DVCD) from 1996 to 2005, the phrase “leading cause” was associated with an age specification split roughly evenly between “women ages 15 to 44” and “women” in general. Claims referring to “largest cause”, in contrast, referred to women in general six times as frequently as referring to “women ages 15 to 44.” Claims that domestic violence is the leading/largest/greatest cause of injury to women were increasing prior to the Surgeon General’s 1992 statement on domestic violence. The Surgeon General’s 1992 statement is associated not just with continuing increase in these claims, but also with an increase in the relative frequency of the symbolic markers “leading cause” and “ages 15 to 44.”

    The false claim that domestic violence is the leading cause of injury to women has persisted with a high public profile for more than two decades. In 1994, a journalist published a newspaper article documenting that domestic violence is far from the leading cause of injury to women. A relatively small number of such debunking articles appeared in newspapers, law journals, and on the web from 1996 to 2007. In contrast, from 1998 to 2007, a fairly steady 46 documents per year within a searched corpus of Congressional documents, law journal publications, and newspaper articles asserted variants of the claim that domestic violence is the leading cause of injury to women. From 2008 to 2011, the number of such claims within the searched corpus fell to about 23 per year. While that decline might indicate some working of public reason, the overall performance of public reason has been poor. Since the mid-1990s, sufficient information has been readily available to make clear to any person engaged in reasonable truth-seeking that domestic violence is far from the leading cause of injury to women.

    Comparative Analysis of False Domestic Violence Claims

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    Different communicative fields support and propagate criminal suspicion of men in different ways. Define as S the claim “domestic violence is the leading cause of injury to women” or the many closely related formal variants of that claim. S has been prevalent throughout public discourse. S supports highly damaging criminal suspicion of men. S has no rational basis in good reason. S instances by year, the use of frightening comparators with S, and the share of debunking S instances differ across communicative fields (news sources, web texts, law journals, Congressional documents, and judicial opinions). Those S differences provide a quantitative index of different communicative fields’ reasoning about criminal acts. They indicate the extent that different communicative fields support criminal suspicion of men.

    Simple textual searches through general-purpose databases of different communicative fields provide a dataset of S instances for quantitative analysis. The dataset of S instances is called the Domestic Violence Claims Dataset (DVCD). The S statistics below, summarized from the DVCD, should be consider lower bounds on the actual number of S instances. Collecting instances of S through general searches of textual corpora not pre-selected for S helps to ensure the representativeness of S statistics relative to communicative fields. Because the scope of searching is difficult to measure and standardize across communicative fields, count differences between fields are less informative than time-series trends and S instance shares within fields.

    "Domestic violence is leading cause of injury to women":
    S Instances in Different Communicative Fields, 1985-2010

    yearscommunicative fields
    newslaw journalsCongresscourts
    2006-20101094012
    2001-200511075242
    1996-20001881294617
    1991-199538096872
    1986-1990441130
    peak-years comparison
    1993-74101429810
    2006-10 as share of 1993-727%28%1%20%
    Source: Domestic Violence Claims Dataset.

    While S concerns criminal acts, law journals were relatively slow to produce S. The Surgeon General reportedly claimed S in 1984. The earliest directly documented S instance occurred in a news article in 1987. Two S instances occurred in the Congressional Record in 1988. From 1986 to 1990, news articles and Congressional records contain at least 44 and 13 instances of S, respectively. From 1986 to 1990, only one instance of S occurred in a law journal (in 1989) and no instances occurred in judicial opinions. That judicial opinions lagged in producing S isn’t surprising: judicial opinions producing S have typically done so through citations to Congressional records and law journal articles. Law journals are commonly thought to be a leading forum for thinking about issues of law. Law journals’ relative late performance in producing S might be attributed either to stronger reason or less attention to current issues of legal practice. Law journals’ subsequent frequent production of S favors the latter explanation.

    S instances per year peaked about 1994 in news articles, law journals, and Congressional documents. The 1994 peak is particularly sharp for news articles. S instances in news articles in 1994 (126 instances found) were about double the level in 1993 and 1995. In 1994, O.J. Simpson was charged with murdering Ronald Goldman and Nicole Brown Simpson, O.J. Simpson‘s wife. That sensational event probably stimulated news articles asserting S.

    S instances in U.S. judicial opinions peaked at 6 in 1997. Judicial opinions are a communicative field with different characteristics from news articles. Judicial opinions typically don’t respond to high-profile current events such as the O.J. Simpson case. No S instance in a judicial opinion was essential to the argument in that judicial opinion. Judicial opinions produced S in the context of documenting, in a supporting way, authoritative claims about domestic violence. The reduction in S instances in judicial opinions after 2000 is difficult to interpret. Fewer S instances may reflect fewer cases that presented judges with the opportunity to assert S.

    After peaking in the mid-1990s, the frequency of S instances dropped much less in news articles and law reviews than in Congressional documents. Congress has regular opportunities to produce S through, for example, statements associated with yearly proclamations of Domestic Violence Awareness Month. Nonetheless, only one instance of S occurred in Congressional documents from 2006 to 2010. Many instances of S occurred in news articles and law journals from 2006-2010. Instances of S in that period amounted to about 27% of instances during the general peak from 1993 to 1997. Politicization is commonly thought to work against good reason. But with respect to reducing production of S, deliberation in Congress outperformed news articles and law journals. Commercial, market-driven news arguably favors sensational crime stories and encourages punitive criminal justice policy.^ However, status-driven competition for publications in law journals has responded no better than market-driven news in moving away from sensational, false claims of S.

    "Domestic violence is leading cause of injury to women":
    S Instances Associated with Frightening Comparators & Debunking, 1996-2005

    fieldtotal instancesinstances with frightening comparatorsshare with frightening comparatorsinstances with debunking claimsshare with debunking claims
    Congress7057%00%
    courts19632%00%
    law journals2047336%31%
    news1283124%1411%
    web2018643%2211%
    Source: Domestic Violence Claims Dataset.

    Debunking claims against S have been relatively rare and not influential. The first documented debunking instance was in a news article in 1994. That news article included a clear statement disavowing S from a co-author of the Surgeon General’s 1992 statement on domestic violence. Nonetheless, many instances of S occurred in news articles, web texts, law journals, and judicial opinions after that debunking article was published.

    News articles published between 1996 and 2005 contain 14 debunking S instances. Debunking S instances account for about 11% of total S incidents in news articles. Debunking instances occurred in news stories with titles such as “Ending Bias in Domestic Assault Law,” “Bashing Boys Is, Like, Not Ok,” “In Abuse, Men Are Victims, Too,” and “Reports of domestic violence exaggerated.” All the identified authors of the S debunking articles are women. Just two women wrote 10 of the 14 debunking articles. Stories about the need to help battered women or about praiseworthy efforts to do so are the typical context in newspapers for affirmative incidents of S. While men did not explicitly author any of the debunking articles, men wrote about 40% of news articles affirmatively stating S. Compared to news article affirmatively stating S, news articles debunking S were much less common and only authored by women.

    Among the 204 instances of S in law journal articles published between 1996 and 2005, only three of those instances were associated with debunking claims. One instance put the debunking claims in a footnote to an affirmative S claim. It sourced the debunking to one woman and did so in a way tending to undermine her credibility.^ Another instance put both the affirmative claim and the debunking claim in a footnote. The debunking claim was a newspaper reference and the statement that S was based on a sample of black women. The third debunking instance declared:

    While no one would argue that the statistics show that domestic violence is one of the leading causes of injury among women, there is polarization in the field regarding what constitutes domestic violence, its causes, and appropriate treatment to end that violence. ^

    That statement debunks S, but, as the dataset of S instances shows, it does so with a grossly false claim. Many instances of S have been produced across communicative fields. At least with respect to S, law journals show surprisingly little exercise of good reason.

    The predominance of women among authors of law-journal articles asserting S is probably best understand in terms of the different professional interests of female and male law professors. In 2000, roughly 30% of law professors were female.^ About 70% of law journal articles asserting S had female authors. Hence female law professors were more likely to assert S than were male law professors. Nonetheless, as the paucity of debunking claims against S in law journals indicates, neither female nor male law professors have seriously challenged S. Asserting S in law journals appears to be largely a convention of writing about domestic violence or family law more generally. Female law professors predominately in the highly under-appreciated field of family law.

    Among searched communicative fields, the web had the highest frequency and quality of documents with debunking S instances. Structured web searches for S in early 2006 found 11% of S instances to be associated with debunking claims. The second-highest result on the Google search result page for S instances containing the phrase “leading cause” was a web page that provided detailed injury statistics, by cause, based on data from the 1996 National Hospital Ambulatory Medical Care Survey Data File. That web page noted that the relevant data file could be freely downloaded from the website of the National Center for Health Statistics. Tables of leading causes of injury, based on the National Electronic Injury Surveillance System, are currently easily available online via WISQARS, an online system of the National Center for Injury Prevention and Control. Debunking claims, and authoritative injury data, exist on the web along with many affirmative instances of S. Affirmative S instances exist on web sites of colleges, major non-profit organizations, and organizations involved in the administration of criminal justice. Low-cost, readily accessible communication across the web hasn’t resolved with good reason important, contrasting factual assertions.

    Frightening comparators used with S provide an additional indicator of non-reasoning. Among communicative fields searched, the web had the highest share of S instances associated with frightening comparators. Law journals had the second-highest share. Congressional documents, in contrast, had the lowest share of S instances associated with frightening comparators. The difference is large: the share of S instances associated with frightening comparators is 43% and 36% for the web and law journals, respectively, while Congressional S instances had a frightening-comparator share of only 7%. At least with respect to S, freedom to think and write without respect to political and economic interests (the web and law journals) didn’t produce better reasoning than a high-pressure political field (Congressional documents).

    Comparative analysis of false domestic violence claims in different communicative fields suggests that criminal suspicion of men won’t be mitigated through the growth of more free, more information-rich fields of public communication. Such communication, however, is not the only possible direction of development of democratic communication. New fields and new forms of communication offer the best hope for better democratic governance of criminal justice and punishment.

    Rationalizing Domestic Violence As the Leading Cause of Injury to Women

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    High-quality, highly credible, U.S. nationally representative injury surveys indicate that domestic violence is far from the leading cause of injury to women ages 15 to 44, or to women generally. Nonetheless, public discourse has successfully rationalized the many variants of the claim that domestic violence is the leading cause of injury to women. Common standards of public reasoning — assessments of interests, credibility, representativeness, etc. — have not been applied to highly damaging claims directly related to criminal acts. Instead, these false claims have been rationalized in a variety of ways.

    False claims about domestic violence have been rationalized by claiming under-reporting. An influential claim about domestic violence being the leading cause of injury to women concerned injuries prompting visits to hospital emergency departments. Extensive public investment exists in emergency services for treating injuries and in nationally representative surveys for measuring the incidence of such injuries. Domestic violence being the leading cause of women’s injury-related visits to hospital emergency departments would imply massive under-reporting of such injuries. Under common standards of reasoning, such a claim would require weighty evidence. No weighty evidence supports massive under-reporting of domestic-violence injury-related visits to hospital emergency departments.

    False claims about domestic violence have been rationalized by re-description. For example, the leading cause of injury to women ages 15 to 44, as measured by U.S. national injury surveys, is unintentional falls. One might claim that a large share of what injury surveys record as women’s injuries from accidental falls are actually domestic violence against women: Humpty Dumpty was pushed. However, a cause category “Injury Undetermined Whether Accidentally or Purposely Inflicted” was explicitly included in one such survey. That cause category amounted to only 1% and 5% as many injury visits as accidental falls in 1992 and 2001, respectively. In 2001, women and men ages 15 to 44 suffered 1.2 million and 1.4 million emergency-department visits, respectively, from accidental falls. Under common standards of reasoning, weighty evidence would be necessary to claim that a large share of domestic violence injuries to women are misreported as accidental falls and that the true incidence of unintentional falls is much less for women than for men. No such weighty evidence has supported rationalizations that a large share of women’s, but not men’s, accidental falls resulted from them being pushed, i.e. domestic violence.

    False claims about domestic violence have been rationalized through pettifoggery. With sufficiently fine subdivisions of all other causes of injury, any given cause of injury can be made the leading cause of injury. A more subtle variation is to call domestic violence “a leading cause of injury” or “one of the leading causes of injury” and to define implicitly the number of leading causes to be sufficiently large so as to include domestic violence. Alternatively, one can define injury in such a way that good evidence isn’t available to measure alternate causes of injury. Shifting the definition of injures to a broader class of injuries than serious physical injuries increases the number of injuries from domestic violence and from all other causes. That can create desired confusion about comparative numbers. Broader categories of injuries are more difficult to measure and thus favor arbitrary claims. Shifting the definition of injury to encompass psychological harm helps to create measurement difficulties and to advance arbitrary claims. For example, here’s a sweeping, practically unfalsifiable claim: “Domestic violence affects more people than any other health-care problem in the United States.”^ For the most part, such pettifoggery has not been necessary. Without good reason, public discourse has widely supported the claim that domestic violence is the leading cause of injury to women.

    Good reason is unlikely to overcome the claim that domestic violence is the leading cause of injury to women. From 1988 to 1997, instances of that claim (including variants ) have been asserted as true at least 780 times in U.S. Congressional records, federal and state judicial opinions, law journal articles, and newspaper articles. Nonetheless, in 1998, a psychotherapist working domestic-violence cases wrote in the law journal Arizona Attorney:

    While no one would argue that the statistics show that domestic violence is one of the leading causes of injury among women, there is polarization in the field regarding what constitutes domestic violence, its causes, and appropriate treatment to end that violence.^

    That statement’s introductory clause denies a large public record of just such claims. The article making that statement addressed domestic violence in terms of power and control. The claim that domestic violence is the leading cause of injury to women has remained prevalent in public discourse. That’s an astonishing example of the power and control of thinly veiled anti-male gender animus.