Formal Rational Basis for False Claims about Domestic Violence

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In U.S. v. Morrison (2000), a dissenting Supreme Court opinion reproduced false claims about domestic violence against women in finding a rational basis for provisions of the Violence Against Women Act. That Supreme Court opinion, which four justices supported, observed that Congress passed the Violence Against Women Act after “extended hearings,” “vast amounts of testimony and documentary evidence,” “years of the most thorough legislative consideration,” and the assembly of a “mountain of data.” The opinion explicitly presented twenty Congressional statistical findings. Among that list of statistical findings were the following two:

  1. “Violence is the leading cause of injuries to women ages 15 to 44….” S.Rep. No. 103-138, p. 38 (1993) (citing Surgeon General Antonia Novello, From the Surgeon General, U.S. Public Health Services, 267 JAMA 3132 (1992)).
  2. “[B]attering ‘is the single largest cause of injury to women in the United States.’ ” S.Rep. No. 101-545, at 37 (quoting Van Hightower & McManus, Limits of State Constitutional Guarantees: Lessons from Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269 (May/June 1989).^

Both of these statistical findings are variants of the prevalent false claim that domestic violence is the leading cause of injury to women. While the Supreme Court opinion cited these findings from two different Congressional reports, they also occur within a single Congressional report.

The justices reviewed to some extant these findings. The Senate report cited for the first finding above incorrectly attributed the finding to Surgeon General Antonio Novello. The Supreme Court opinion correctly substituted Antonia for Antonio. The opinion’s presentation of the Senate’s finding also suggests some substantial evaluation. The Senate’s finding was actually reported by the Senate thus:

Violence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined.3 {footnote 3} Surgeon General Antonio Novello, “From the Surgeon General, U.S. Public Health Services,” “Journal of the American Medical Association,” vol. 267, No. 23, at 3132 (June 17, 1992).^

In presenting that Senate finding, the Supreme Court opinion omitted the frightening comparators “more common than automobile accidents, muggings, and cancer deaths combined.” Those frightening comparators underscore the irrationality of the reported finding. The Supreme Court opinion’s editing and selective quotation of the Senate’s finding suggests some consideration of that finding.

The Supreme Court opinion did not provide additional, simple review of the above two Congressional findings. The frightening comparators in the Senate’s finding (“more common than automobile accidents, muggings, and cancer deaths combined’) don’t actually occur in the Senate’s cited text for the finding. Moreover, the finding as reported in the Senate report, even without the frightening comparators, isn’t a fair representation of the statement in the Senate report’s cited text. Thus the Supreme Court opinion produced, as formal evidence of a rational basis for a law, a specific Senate finding that is formally false at the first level of reference.

The findings that Supreme Court opinion cited are formally false in more sophisticated ways. The source (“Van Hightower & McManus”) cited for the second of those findings actually attributed that finding to the Surgeon General:

In fact, the United States Surgeon General identifies battering as the single largest cause of injury to women in the United States.^

MacManus and Van Hightower’s article provides no citation to support attributing this claim to the Surgeon General. The Senate report eliminated that problem by moving down the chain of claim reproduction. In addition, the first finding refers to violence, while the second refers to battering. Battering (repeated, severe abuse) is a subset of domestic violence, which itself is a subset of violence. The first finding addresses the population “women ages 15 to 44,” while the second finding addresses women in general. Causes of injury, not surprisingly, vary substantially between young women and elderly women. The two findings are inconsistent at their surface levels. An exercise of reason could easily reveal that the these Congressional findings are formally factual, but also formally inconsistent, formally ill-supported, and substantially false. Such an exercise of reason apparently was not part of the Supreme Court opinion’s marshaling of those findings to indicate a rational basis for the Violence Against Women Act.

In reproducing such findings, the Supreme Court opinion did not analyze how gender affects motivation, but rather expressed an impression of gender motivation. The opinion noted:

It is true that these data {findings} relate to the effects of violence against women generally, while the civil rights remedy limits its scope to “crimes of violence motivated by gender” – presumably a somewhat narrower subset of acts. See 42 U.S.C. § 13981(b). But the meaning of “motivated by gender” has not been elucidated by lower courts, much less by this one, so the degree to which the findings rely on acts not redressable by the civil rights remedy is unclear. As will appear, however, much of the data seems to indicate behavior with just such motivation.^

In specific cases of violence, motivation is typically described with case-specific facts. Impressions of motivation for highly aggregated classes of behavior reflect more general feeling. Consider, for comparison, a true finding: as measured by visits to hospital emergency departments, men suffer 45% more injuries from violence than do women. In aggregate, a man is more likely to attack a man than to attack a woman. Is violence against men motivated by gender? The current impression in public discourse seems to be that violence against men is not motivated by gender. That factually incongruous impression seems best understood, like the presentation of findings on domestic violence, as motivated by gender.

Prevalent reproduction of false claims about domestic violence against women indicates men’s vulnerability to criminal suspicion in public discourse. In U.S. federal and state courts, 21 judicial opinions have explicitly reproduced claims like the claim that domestic violence is the leading cause of injury to women. False claims about domestic violence against women have gained support at pinnacles of public reasoning such as the U.S. Congress and the U.S. Supreme Court. Such institutions have supported false claims about domestic violence against women through highly formal processes of reasoning such as extensive public hearings and lengthy court proceedings. These results, which are examples of a more general pattern of judicial reasoning about domestic violence, are weighty evidence for gender motivation in public reasoning. These results should inform public consideration of sex disparity among persons incarcerated.

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