Domestic violence accounts for a large share of justice system activity addressing personal violence. Reasonable evaluation of the relationship between public discourse, justice system functioning, and persons in prison cannot ignore domestic violence.

Domestic violence is addressed in the justice system in part through police actions. A highly significant police action is making an arrest. In the U.S., legal grounds for making an arrest vary by state. U.S. policy initiatives over the past two decades have focused on encouraging arrest for domestic violence. In response to police officers’ wide range of discretion in making an arrest, most states have enacted mandatory arrest policies that require police officers to make an arrest if there is probable cause to believe that domestic violence occurred.

Domestic violence arrests have increased greatly in the U.S. since the early 1980s. For example, in New Jersey in 1983, domestic violence arrests amounted to 13% of all arrests for interpersonal violence. By 2001, that share had risen to 67%. About a million arrests for domestic violence occurred across the U.S. in 2010. Domestic violence isn’t a special case of policing violence. Arrests of adults for domestic violence in the U.S. currently amount to 58% of arrests of adults for all types of interpersonal violence.

A large share of persons incarcerated for violence are incarcerated for domestic violence. In the U.S. in 2003, 42% of jail inmates who had been convicted of violence had been convicted of domestic violence. The corresponding figure for domestic-violence convictions among prison inmates convicted of violence is 20%. Jails hold persons awaiting case disposition and persons sentenced to short incarceration spells, typically shorter than a year. Prisons hold persons sentenced to long incarceration spells, typically longer than a year. Domestic violence encompasses less serious forms of violence than does non-domestic violence. That’s reflected in the declining share of domestic violence among all violence in moving from the criminal-justice stages of arrest, incarceration in jail, and incarceration in prison.

In addition to incarceration, the justice system also addresses domestic violence through restraining orders. Over the past two decades, restraining orders typically have been renamed and re-described as “protective orders” or “orders of protection.” Protective order and order of protection are periphrastic terms. Restraining/protective orders legally restrain a person’s freedom to communicate, restrain her liberty to be with her children, restrain her inmate relations, and restrain her ability to use her property, including live in her house. To the extent that the restrained person obeys the restraining order, the order protects the designated victim, in specific ways, against the restrained person.

Restraining orders have become common. In the U.S., a person can fill out a pre-printed form to get a restraining order. Restraining orders are also commonly issued as standard procedure following arrests for domestic violence. Roughly 1.7 million domestic violence restraining orders were issued in response to personal applications or arrests in the U.S. in 2008. On any given day, roughly 1.2 million persons are subject to domestic-violence restraining orders. That’s equivalent to about a quarter of the number of persons in the U.S. under criminal justice community supervision (probation and parole).^ An estimated quarter-million persons per year are incarcerated for violations of restraining orders. Restraining orders are a major form of justice system action.

Public discourse concerning domestic violence has been sensationally prejudicial against men. Violence against men attracts little public concern, even though by a reasonable measure violence against men exceeds violence against women by 55%. At the same time, the wildly inaccurate claim that domestic violence is the leading cause of injury to women has repeatedly been asserted in judicial opinions, Congressional documents, law journal articles, and newspaper articles and by criminal justice agencies over the past quarter century. Gender stereotyping of domestic violence is pervasive. Services for victims of domestic violence are sex-segregated and highly unequal. A U.S. Supreme Court opinion has recognized that domestic violence allegations account for a large share of police activity. Nonetheless, the sensationally prejudicial treatment of domestic violence is widely ignored, as if it isn’t relevant to understanding justice system functioning as a whole.

Person held in jails and prisons are highly disproportionately men. The sex ratio of persons experiencing state-directed punishment has varied widely through history. Within the U.S. in 2010, ten men per woman were in prison or jail. That large gender inequality, along with the extraordinarily high level of incarceration in the U.S., should heighten concern about gender bias in law and administration of justice.

The circumstances in which claims of domestic violence are brought to the attention of the justice system have been highly sensationalized. Stories of men brutally murdering their wives and lovers drives domestic violence policy. But that type of homicide accounts for only about 7% of all homicides. Among the remaining 93% of homicides, murdered men outnumber murdered women by more than three to one. Moreover, domestic violence is defined broadly under law. Public discourse has shown no ability to bring to reason absurd and highly damaging claims about domestic violence against women. Most domestic violence calls to the police are related to circumstances of murder mainly through sensationalization of fear. Subjects, informers, and law-enforcers frequently report as domestic violence actions otherwise commonly considered to have little criminal significance.

Calls to police concerning domestic violence are much greater than police-reported domestic violence offenses. Police typically determine whether a crime occurred using a “probable cause” standard. California state law requires police to have written policies encouraging the arrest of domestic-violence suspects if the police have probable cause to believe that a domestic-violence offense occurred. New York State law mandates arrest in such circumstances, except if the probable cause is for a misdemeanor offense and the victim objects to the arrest.^ In California in 2004, arrests for domestic violence amounted to 25% of calls to police concerning domestic violence. In New York State in 2008, the corresponding figure is 34%. In San Diego, a leader in aggressive arrest and prosecution policies for domestic violence, 25% of domestic-violence calls to police resulted in arrest about 1999. The corresponding national figure then was estimated as 20%.^ An estimated four million domestic-violence calls to police occur per year. For a large share of domestic-violence calls, police officers do not find probable cause that a domestic violence offense occurred.

Domestic violence offenses formally recognized even at an early stage in the justice system don’t objectively indicate a high level of criminal significance. Among civil petitions for domestic-violence restraining orders, the best available data indicates that about 40% claim only that the targeted party “placed me in fear of imminent serious physical harm.” The most common specific claim is that the targeted party “insulted or swore.” In 97% of arrests for domestic violence, the police report indicates that the arrestee is unarmed. The police-determined victim shows no injury in 35% of arrest incidents, and “apparent minor injury” in another 60% of arrests. The vast majority of incidents of domestic violence do not concerning stabbing, shooting, or serious physical injury. Describing domestic violence victims as “survivors” and domestic violence as “battering” or an escalating cycle of violence sensationally and tendentiously misrepresents most cases.^ ^

Sensational claims about domestic violence have shaped constitutional law in action. For example, a leading 2004 New York State ruling, People v. Moscat, classified 911 calls as non-testimonial. The ten-page written ruling was issued the same day, or perhaps the day after, the issue was raised in the court. The judge issued his ruling without yet having gained access to the tape of the 911 call specifically at issue in the case.^ A description of 911 calls figured importantly in the judge’s ruling:

The 911 call – usually, a hurried and panicked conversation between an injured victim and a police operator – is simply not equivalent to a formal pretrial examination by a Justice of the Peace in Reformation England. … Many 911 calls are made while an assault or homicide is still in progress. Most other 911 calls are made in the immediate aftermath of the crime. … Typically, a woman who calls 911 for help because she has just been stabbed or shot is not contemplating being a “witness” in future legal proceedings; she is usually trying simply to save her own life.^

This description slides between characterizing “many 911 calls” and “a woman who calls 911 for help because she has just been stabbed or shot.” The latter type of 911 call probably accounts for less than 1% of all 911 calls concerning domestic violence. In this case, the 911 call was made by a neighbor nine hours after the alleged incident, which did not involve a knife or a gun. The judge’s ruling in this case narrowed all domestic-violence defendants’ rights under the Sixth Amendment of the U.S. Constitutional.^ The judge in the case seems to have taken to heart judicial training on domestic violence.

Claims of domestic violence regularly generate restraining orders that immediately evict a person from her home and eliminate her freedom to communicate with one or more persons. In justifying these extraordinary abridgements of personal freedom, judicial review casually invokes a domestic emergency. For example, in a Kansas case, a wife filed for a restraining order one week after her husband filed for divorce. She claimed that she feared her husband. She stated that at some indefinite time in the past he had made troubling remarks, and on other occasions he had squeezed her so hard that she thought her ribs would crack. The trial court granted the wife a restraining order that effectively barred her husband from their home and required him to have no contact with her. Reviewing this case, a Kansas Court of Appeals began thus:

We pause to note that this court is extremely reluctant to involve itself in something as subjective as an order of protection from abuse {a restraining order}. These matters frequently develop in emergency situations, and the ultimate judgment of the trial court in a case such as this may literally involve risk to the lives of some or all the parties involved.^

Life-threatening emergency situations exist in cases concerning domestic violence. Such emergency situations also exist in cases concerning other types of violent acts. The actual circumstances of this case seem far from a clear and present danger to life. Lack of legal and political constraints on state invocations of “emergency situations” and domestic terrorism can lead to tyranny. Claims of extraordinary emergency and domestic terrorism are accepted without question as justification for mundanely invoking domestic-violence emergency law millions of times per year.

Justice-system action addressing claims of domestic violence represents a large share of the justice-system action addressing all types of interpersonal violence. Constitutional rights, civil liberties, and due process of law are defined in practice to a large extent through actions addressing claims of domestic violence. If done nationally, declaring a state of emergency and suspending the normal rule of law would attract massive public attention. In addressing domestic violence, the justice system effectively declares millions of such emergencies at the household level every year in the U.S. The actual circumstances of the vast majority of those situations represent a very low bar for suspending normal rule of law.

Domestic violence against women is special in important respects. Public discourse seems to be highly vulnerable to wildly false claims about domestic violence against women. Public discourse shows very little concern about injuries to men. Domestic terrorism against women has become a well-established term of art in public discussion of domestic violence.^ Supported by sensational over-generalization of such terrorism, the dominant anti-men domestic violence discourse largely ignores the deep and bitter scholarly dispute about facts concerning domestic violence. From highly specialized domestic-violence scholars to the U.S. Supreme Court, badly functioning public discussion supports domestic violence law’s suspension of normal rule of law.

Domestic-violence emergency law is astonishingly broad. In defining the personal scope of domestic-violence emergency law, the National Council of Juvenile and Family Court Judges’ 1994 Model Code defined “family or household members” to include spouses or ex-spouses; persons who live together, or have lived together; persons who are having sexual relations, or have had sexual relations; or persons who are dating, or have dated. These relational specifications extend far beyond common understanding of family or household members. The Model Code went further by defining any past existence of these relationships to associate persons permanently as “family or household members.”^ Many U.S. states have adopted similar definitions of family and household members under their domestic-violence emergency laws.^ ^ Domestic-violence emergency law isn’t closely tailored to the distinctive circumstances of families and households.

Domestic-violence emergency law also isn’t closely related to normal understanding of serious criminal acts. Under its expansive definition of “family or household members,” the Model Code declared:

A “crime involving domestic or family violence” occurs when a family or household member commits one or more of the following crimes against another family or household member: ^

The enumerated crimes include “Destruction, Damage, Vandalism of Property,” “Disorderly Conduct,” “Trespass of Real Property,” and “State to add any other.” These actions are not commonly considered to be crimes against persons. In many jurisdictions, such offenses are not considered to be crimes, but rather violations of public order. The last enumerated offense, “State to add any other,” encourages states to suspend normal law and institute domestic-violence emergency law ad hoc.

With encouragement from the National Council of Juvenile and Family Court Judges and legal scholars, states have encompassed within domestic-violence emergency law a wide range of acts. For example, under New Jersey statutory law, domestic violence is defined to include the offense of “lewdness.”^ Lewdness in New Jersey law is a disorderly person offense involving:

any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

“lewd acts” shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.^

For couples having an ongoing sexual relationship, a “lewd act” could be a prelude to desired, consensual sex. A “lewd act” doesn’t provide reasonable justification for suspending normal law and imposing domestic-violence emergency law. Under New Jersey statutory law, domestic violence also explicitly includes “harassment” and “criminal mischief.” New Jersey law defines harassment as a “petty disorderly persons offense” where a person “with purpose to harass”:

Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm ^

Criminal mischief includes the disorderly person offense of knowingly damaging another’s personal property so as to cause a loss of less than $500.^

The legal definition of domestic violence in Michigan encompasses actions not otherwise criminal. Under Michigan statutory law, “causing or attempting to cause … mental harm” specifies an action of domestic violence. So too does “placing a family or household member in fear of … mental harm” (MCL 400.1501§1(a)(i),(ii)). Challenging a person’s deeply held, false, prejudicial beliefs could cause that person considerable mental anguish and a subjective sense of mental harm. Michigan statutory law also criminalizes “engaging in activity … that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested” (MCL 400.1501§1(a)(iv)). Feeling “frightened” is commonly understood to be a much different subjective state than feeling “terrorized.” Michigan domestic-violence law combines those two terms indiscriminately in defining the crime. Family or household members commonly frighten each other. What distinguishes such mundane acts from harshly sanctioned acts can be little more than filing a simple restraining-order petition.

Florida statutory law creates a special, permanent class of persons who can invoke domestic-violence emergency law without any other specific showing. The administrative judge for Florida’s Miami-Dade County Dedicated Domestic Violence Court explained:

The court may issue an ex parte temporary injunction if the required relationship {“domestic” as defined under domestic-violence emergency law} exists and the court finds that there is an immediate and present danger of domestic violence. The petitioner must plead and prove he or she has been a victim of domestic violence or that there is reasonable cause to believe he or she is in imminent danger of becoming a victim. Note that the statute is phrased in the disjunctive and only one of the two criteria need be satisfied: petitioner has been a victim, or has reasonable fear of imminent violence.^

A person who claims to have been a victim of domestic violence at any time in the past is thus legally equivalent to a person with a reasonable fear of imminent domestic violence. That unreasonable legal equivalence defines a permanent class of person able to invoke domestic violence emergency law at will, without any public reason.

Domestic-violence law’s evisceration of a reasonable understanding of emergency is also reflect in the state’s response to a claim of domestic-violence emergency. The judge for Florida’s Miami-Dade County Dedicated Domestic Violence Court explained:

Florida law only requires the court to review the four corners of the {domestic-violence restraining order} petition to determine whether there appears to be “an imminent and present danger of violence,” the standard for issuance of temporary injunctions. No police reports, photographs of injuries, or other supporting evidence need be presented.^

When the court receives a petition that satisfies the “imminent and present danger” criterion, it doesn’t immediately summon the fire department, or the police department, or the national guard. The court cursorily reviews the petition, approves it ex parte, imposes domestic violence emergency law on a person, and defers reconsideration of that emergency law regime for up to 15 days. As noted above, a person who claims to have been a victim of domestic violence any time in the past automatically establishes the “imminent and present danger of violence” criterion. That permanent emergency status, like the judicial act of imposing domestic-violence emergency law, doesn’t invoke the mobilization of state emergency resources. These mundane domestic-violence emergency legal declarations individually have little public cost and little public visibility.

The underlying logic of domestic violence law is a perpetual, invisible state of emergency within other persons’ households. Domestic violence emergency law doesn’t require judges to weigh carefully, ex ante, case-specific facts before suspending normal due process of law. Domestic-violence law gives everyone de facto liberty to suspend other persons’ civil liberties. Domestic-violence rhetoric emphasizes the “cycle” of domestic violence, repeated battering despite the appearance of peace, hidden terrorism, the ever-present threat of a fatal assault, and a war on women that has no beginning and no end. The typical circumstances of domestic-violence calls to police and domestic-violence petitions for restraining orders don’t describe a common-sense emergency.^ Even basic facts about domestic violence are a matter of bitter scholarly dispute. That reality has been publicly ignored. Socially constructed public belief in a perpetual, invisible state of emergency within other persons’ households has prompted broad public surrender of normal rule of law.