The Violence against Women Act (VAWA) of 1994 helped pave domestic violence concerns into legislative matters. Historically, family violence was handled through informal measures often resulting in mishandling of cases. Through VAWA, victims were given the opportunity to have their cases legally remedied. This legitimized the separation of specialized domestic and family violence courts from criminal courts. The law has recognized that victims of domestic violence deserve recognition and resolution. Law enforcement agencies may be held civilly accountable for their actions in domestic violence incidents. Mandatory arrest policies have been initiated helping reduce discretionary power of police officers. Courts have also begun to focus on the offenders of domestic violence. Currently, there are batterer intervention programs and mediation programs available for offenders within certain jurisdictions. Its goals are to reduce the rate of recidivism among batterers.
Domestic Violence Laws
Battered Woman Syndrome as a Legal Defense in Cases of Spousal Homicide
‘‘Battered woman syndrome’’ (BWS) is a descriptive term that refers to a pattern of psychological and behavioral symptoms found in women living in abusive relationships. Battered women sometimes use physical force to kill their batterers. These women may be charged with a criminal offense. When women are charged with murder or manslaughter for killing their batterer, they often do not deny having committed the act, but rather claim the act was committed in self-defense. In some cases, battered women may claim that they were insane at the time of the killing. Evidence of BWS may be offered to substantiate the claims of self-defense and insanity. Therefore, there is no specific legal defense called ‘‘the BWS defense’’; rather, evidence about battering and its effects is offered to assist the jury in its determination of the guilt or innocence of the defendant based on the claims of self-defense or insanity. Read more about Battered Woman Syndrome as a Legal Defense.
Batterer Intervention Programs
There are basically four types of batterer intervention programs: same-sex group therapy (for example, a group of males sent to therapy by the criminal justice system), couples therapy (which focuses on the interaction between the two members of the couple), ‘‘psychoeducational’’ groups (again, mandated by the criminal justice system but having a different focus than treatment groups), and intimate abuse circles (an innovative form of restorative justice that involves public apology to a small group and/or apology to the victim). Psychoeducational groups do not view intimate partner violence as having psychological causes but as being a case of male power and control that requires attitude adjustment. For this reason, this approach does not refer to ‘‘treatment’’ but rather to intervention and is designed with male perpetrators in heterosexual relationships in mind. It is legally required in many states, although many researchers have complained that the approach is not informed by research on perpetrators, that is, it does not have a complex picture of the subtypes of perpetrators, even within a heterosexual male group. For example, the notion that ‘‘attitudes’’ drive violence is naive. Large survey studies find that only 2.1 percent of males in the United States agree with the statement ‘‘A man is justified in using violence to keep his mate in line.’’ Even studies on male perpetrators obtain mixed results on whether attitudes predict use of intimate partner violence. It may well be that attitudes are changed by violent men to be more consistent with their behavior. Read more about Batterer Intervention Programs.
Clemency for Battered Women
One of the early questions the battered women’s movement dealt with was how to help battered women who had killed or attempted to kill their partners. Activists lobbied for the inclusion of BWS testimony in court hearings in cases in which battered women had killed their abusive partners. Because it took so long for the battered women’s movement to effect changes in the legal system, activists had to change their focus on how to help battered women who were incarcerated. Activists argued that abused women who had killed their partners were imprisoned unlawfully and that it was important for the state to reconsider these cases and grant these women clemency. Clemency has been defined as a ‘‘generic legal term that includes any executive act that reduces or alleviates a penalty for a crime.’’ Many battered women’s advocates view clemency as a way to provide justice for abused women who had been unable to defend themselves using the BWS in court. Read more about Clemency for Battered Women.
Divorce, Child Custody, and Domestic Violence
Approximately 50 percent of all first marriages in the United States end in divorce. The rate of divorce is even higher among second marriages. Approximately 1,000,000 children are affected each year by divorce. Determination of where a child will live after a parental divorce and whether the child will have ongoing contact with the noncustodial parent and on what schedule are important issues. Although only about 10 percent of first-marriage divorces where there are minor children involve a legally disputed child custody case, these are often the mostly highly contentious and hostile of situations, in which children are exposed to tremendous conflict. Accordingly, accusations of domestic violence (i.e., violence between adult intimate partners) are not uncommon in such contested custody disputes. Even when ‘‘custody’’ or primary residential responsibility for a child is not legally disputed, the presence of spousal violence significantly impacts post-divorce matters. Most notably, custody and visitation laws often promote the notion that parents should be given equal access to children as well as equal say in decision making. When parents get along well or at least are able to put aside their own differences for the sake of their children, these notions are appropriate. However, achieving equal access and decision making usually requires a high level of contact, communication, and negotiation between the parents. This can be quite difficult even in cases where there is no domestic violence. Expecting that level of cooperation to occur where there has been domestic violence may be unrealistic and potentially damaging or even life threatening for the children and the spouse-victim. Read more about Divorce, Child Custody, and Domestic Violence.
Domestic Violence Courts
Domestic violence courts are specialized to address the complex issues presented in domestic violence cases. These courts utilize approaches that reflect a significant departure from those of traditional courts. While no single model of a domestic violence court is used by all states, domestic violence courts across the United States share a similar philosophical orientation regarding their role and function. Rather than simply determining facts, applying the law, defending rights, and assigning punishment according to legal rules and procedures, these courts recognize that victim safety is as important as perpetrator accountability. As such, judges and court personnel need to be sensitive to such issues as the risk of future violence to the victim and her children, the victim’s fear and sometimes reluctance to testify, and the need to link victims to services in the community that will help them rebuild their lives, free from violence. Read more about Domestic Violence Courts.
Electronic Monitoring of Abusers
The criminal justice system’s use of EM (also referred to as ‘‘electronic tagging’’) has grown steadily since its adoption by the courts in the mid- 1980s. EM has traditionally been used as an alternative to incarceration (‘‘house arrest’’), as an intermediate sanction (e.g., as part of intensive probation), or as a condition of release from jail (i.e., as a form of pretrial supervision). EM has historically been deployed in the context of noninterpersonal offenses, including drunk driving and drug- and property-related crimes. However, courts have increasingly applied EM in response to interpersonal offenses, including cases involving charges of sexual abuse and domestic violence. When administered in an interpersonal offense context, where one party is controlled or supervised via monitoring and a second party is protected from, or alerted to potentially untoward movement by, a potential abuser, EM is best considered ‘‘bilateral’’ rather than ‘‘unilateral.’’ Such bilateral programs combine EM associated with home incarceration, originally intended to safeguard the general public, with individuated protection for specific victims named in pending or adjudicated cases. Here, bilateral electronic monitoring (BEM) is used, not only to enforce liberty restrictions in the absence of traditional detention or incarceration, but also to monitor defendants’ observance of ‘‘exclusion zones’’ around a complaining party’s home, building an ‘‘accountability’’ mechanism into a judge’s orders. Read more about Electronic Monitoring of Abusers.
Expert Testimony in Domestic Violence Cases
Many people have seen an ‘‘expert witness’’ in a courtroom or at the scene of a crime on a variety of television shows. These popular shows depict a highly educated and sophisticated expert with several degrees, including a Ph.D., who has all the answers. These shows portray both the reality and the fantasy of expert witnesses and their role in the judicial system. Expert witness testimony in domestic violence situations is still controversial. The controversy lies in the fact that many laypersons have misconceptions surrounding the complexities associated with domestic violence. Attorneys will therefore use expert witnesses in the hope of dispelling these misconceptions. The testimony of such expert witnesses can take a number of different forms. In situations where it seems unfathomable why a victim would choose to stay with her abuser, experts are brought in to testify about the dynamics of battering and explain why this might occur. In other instances, a victim may attack or kill her abuser even though she was not being abused at the time. An expert witness is then used to testify about the victim’s state of mind. The expert will discuss the issue of imminent danger and explain why the victim used deadly force as a method of defense. Read more about Expert Testimony in Domestic Violence Cases.
Judicial Perspectives on Domestic Violence
Despite the steady accumulation of research findings on the criminal justice system’s processing of domestic violence cases, relatively little is known about the beliefs and perceptions of a critical group of actors in that system, trial court judges and magistrates. For many reasons, it is important to understand how judges think about the nature and causes of domestic violence, and their perspectives on the efficacy of current practices and proposed reforms. Judges have considerable discretion at multiple decision points in criminal cases, so their decisions may be shaped by their beliefs as well as by legal aspects of cases. The overwhelming majority of domestic incidents are processed in the lower courts, where they receive even less time, documentation, and visibility than do felonies (Spohn and Cederblom 1991). Further, judges not infrequently express their views to their courtroom audiences and may thereby shape the expectations for justice held by victims, offenders, and bystanders. Finally, domestic violence has been the subject of a broad array of reforms, new programs, and legal mandates, some of which have challenged judges’ traditional roles, and few of which have enjoyed widespread endorsement from the bench. The implementation and success of many of these programs may hinge on judicial acceptance and support. Read more about Judicial Perspectives on Domestic Violence.
The Lautenberg Law, more commonly known as the Lautenberg Amendment to the Gun Control Act of 1968, establishes a regulatory scheme designed to prevent the use of firearms in domestic violence offenses. More specifically, the Lautenberg Law makes it illegal for any persons who have been convicted of certain misdemeanor crimes of domestic violence to ship, receive, or possess firearms or ammunition affecting interstate commerce. This means that the Lautenberg Law imposes a lifetime ban on firearm possession following a qualifying misdemeanor conviction. The Lautenberg Law is controversial for two major reasons. First, its prohibitions relating to domestic violence offenses apply to misdemeanor crimes; more typically, prohibitions of this kind have been applied only to felony offenses. Second, the Lautenberg Law is controversial because it does not include a government exception for law enforcement and military personnel. Therefore, under the Lautenberg Law, military personnel and law enforcement officials such as police are prohibited from carrying firearms if they are convicted of certain misdemeanor crimes of domestic violence. Under this law, police officers and members of the military must turn in their firearms when the law is applied to them. Read more about Lautenberg Law.
Legal Issues for Battered Women
The most common area of the law for the battered woman to have some contact with is family law, especially if there is a custody battle or disagreement about access to children as the marriage begins to come apart. Since so many of the children exposed to domestic violence in their homes are negatively impacted by the abuse they are exposed to or experience themselves, juvenile court, where child abuse and neglect or delinquency are adjudicated, may be another area that battered women must deal with. If the police get involved or if a battered woman files for a restraining order, she may be faced with being a witness in criminal court where her partner will be arraigned and prosecuted, especially if he violates the court’s no contact order. If she should try to kill her partner in what she believes is self-defense, then she will be under the criminal justice system’s jurisdiction; if someone dies, then probate court might get involved. Finally, if she decides to file in court for damages due to personal injury by her partner, then her case will be handled in civil court with a personal injury lawsuit that may go to a jury trial. In all of these cases, forensic psychologists, who can provide expert testimony about the psychological impact of domestic violence, may be involved. Read more about Legal Issues for Battered Women.
Mandatory Arrest Policies
Mandatory arrest policies were adopted to deter future domestic violence. However, the widespread enactment of mandatory arrest statutes did not quell the debate regarding the deterrent effect of arrest in domestic violence cases. The Minneapolis Experiment was followed by a series of studies which attempted to replicate the findings regarding the deterrent effect of arrest in domestic violence cases. These studies were conducted in California (Berk and Newton 1985), Miami–Dade County (Pate and Hamilton 1992), Milwaukee (Sherman et al. 1992), Colorado Springs (Berk et al. 1992), Charlotte (Hirschel and Hutchinson 1992), and Omaha (Dunford 1992). The studies in Miami, Milwaukee, and Colorado Springs supported findings regarding the deterrent effect of arrest. However, those conducted in Charlotte and Omaha did not indicate that arrest was a sufficient deterrent to future domestic violence. In fact, three of the replicated studies indicated an increase in domestic violence following an arrest. Some researchers have pinpointed the lack of consistency among the judicial system as a contributing factor to recidivism in domestic violence cases. Those who do not face prosecution or who have their cases dismissed by the courts will be more likely to recidivate than those who are consistently punished for their abuse. Therefore, studies confirm that mandatory arrest policies are most effective when utilized in conjunction with a significant and consistent judicial response. Read more about Mandatory Arrest Policies.
Mediation in Domestic Violence
Mediation is a negotiation conducted by a neutral third party to resolve differences and reach agreements between two or more people or organizations. Many types of mediation exist. Mediation goals may include such things as improved communication; increased cooperation; reduced anger and hostility; healing; transformation of people, families, organizations, and communities; and assessment of strengths and weaknesses of legal positions. Over the last decades of the twentieth century, an ever-growing tide of businesses, organizations, governments, and individuals have been steadily turning away from the rigid, gridlocked, adversarial criminal and civil justice litigation systems in hopes of finding new efficient, low-cost, low-stress, lasting mechanisms for resolving conflict and reducing crime. Two of those mechanisms incorporate mediation. One is alternative dispute resolution (ADR), which includes methods like mediation, arbitration, and domestic relations decision making. The second is restorative justice (RJ), a philosophy advocating that the most effective way to reduce conflict (especially crime) is by actively engaging victims, offenders, and the community in some form of dialogue or mediation. Read more about Mediation in Domestic Violence.
Police Civil Liability in Domestic Violence Incidents
The tepid law enforcement response to family violence has led to the charge that police do not place a priority on domestic violence. Some police continue to believe that domestic violence calls for service are for social workers to handle, not crime fighters. When empathetic police show sympathy toward victims at domestic violence scenes, many colleagues within the masculine police culture perceive this sensitivity to be a weakness. To the contrary, research shows that empathetic initial response by on-scene police at domestic violence incidents can lead to positive victim outcomes. Moreover, when police refer victims to appropriate social service agencies, research indicates that law enforcement officers get a ‘‘broader understanding of [police] agency procedures and policies geared toward solving the social problem of family violence, as well as to understanding the general nature of family violence from a variety of perspectives.’’ Slow and inappropriate police response to domestic violence incidents, however, has resulted in police being held legally accountable through the courts via civil litigation. Read more about Police Civil Liability in Domestic Violence Incidents.
Police Decision-Making Factors in Domestic Violence Cases
Police officers are gatekeepers to the criminal court system for those who call on their assistance, including domestic violence victims; as such, police exercise much discretion regarding how to respond to domestic violence. This research paper examines what criteria police officers use to make arrest decisions in domestic violence cases and what community, departmental, and personal factors determine whether they follow laws indicating that officers are required to or may choose to arrest the perpetrator (i.e., mandatory and preferred arrest statues). Dual arrests, where both partners are arrested, have been identified as a problem because such arrests often punish the victims for using physical aggression in self-defense. Some states have implemented primary aggressor laws that encourage officers to arrest only the main perpetrator and not persons who may have used physical aggression to protect themselves. Read more about Police Decision-Making Factors in Domestic Violence Cases.
Police Response to Domestic Violence Incidents
Wife battering emerged along with child abuse as a social issue during the 1960s. The dominant view at the time held that marital violence was a private matter between the husband and his wife. Law enforcement intervention was rare, occurring in cases where the victim had been killed or severely maimed. The common forms of domestic violence that were prohibited by criminal law usually amounted to misdemeanors; unless police officers witnessed the violence, they had no power of arrest. Police officers were trained on how to respond to family violence crises by separating the parties for a cooling-down period. It was not uncommon for the officers to ‘‘counsel’’ the parties. In extreme cases the victim would be referred to the court to file a private complaint against her husband. These complaints were rarely taken seriously, however, and they resulted in fewer prosecutions than for any other crime. Throughout the 1970s reformers sought changes that would ensure effective intervention. The debates centered on what type of intervention would be the most effective to protect victims and deter offenders; the no arrest policies of police came under strong criticism from victim advocates. Frustrations over the lack of effective remedies for women victimized through family violence gave rise to social science research exploration of potential approaches. Read more about Police Response to Domestic Violence Incidents.
Prosecution of Child Abuse and Neglect
For the public, prosecution of child abuse is marked more by notoriety than knowledge. Ever since child abuse began to be prosecuted with some frequency in the 1980s, the news media have lavished enormous attention on several high profile cases like the McMartin Preschool trial (the longest trial in U.S. history), the Louise Woodward trial, and the Michael Jackson trial. But the average case receives little media coverage (Cheit 2003), despite the fact that tens of thousands of child sexual abuse cases alone come to the attention of law enforcement (Snyder 2000), and child physical abuse has begun to be prosecuted more frequently as well. The public and many professionals understand little in an area that can have enormous consequences for perpetrators, child victims, families, and communities. Despite professional disagreement over which cases should be prosecuted, there is broad consensus that prosecution of child abuse can be an essential societal response, and professionals involved with family violence need to have a working knowledge of it. Read more about Prosecution of Child Abuse and Neglect.
Protective and Restraining Orders
Protective and restraining orders may be used in a variety of family violence situations. These protective and restraining orders are issued by a court to a specific person directing that person to stay away from or refrain from contacting the victim or victims. Protective and restraining orders can be used in other situations, but this research paper will focus on the types of protective orders that are issued in family violence situations. In order to discuss the concept of protective and restraining orders properly, it is important to define family violence. The definition of protective or restraining orders must also be set forth. This will include a discussion of the essential elements necessary to include in protective and restraining orders. The history of protective and restraining orders will be briefly examined. The full faith and credit provision in the Violence against Women Act will be discussed as well. Advantages and disadvantages of protective and restraining orders will be set forth. Finally, the effectiveness of protective and restraining orders will be evaluated. Read more about Protective and Restraining Orders.
A battered woman’s shelter is a temporary residence where victims of domestic violence (usually female victims) and their children who have no other recourse can escape violent living situations as well as work toward gaining other resources such as financial means, health care, child care, and social resources that can aid them in working toward a stable and independent violent-free life. Domestic violence, specifically violence against women, was not recognized as a social problem until the mid-1970s. As a result, women seeking help had few options available to them. It was this lack of resources that started the shelter movement. The battered women’s/shelter movement emerged from grassroots activists involved in the anti-rape movement, which focused on eliminating male violence against women. The movement was primarily feminist and focused on the notion that many of the problems women had been taught to define as private troubles were in fact widespread social problems. As the history of the battered women’s movement reveals, the shelter movement in Great Britain and the United States took similar turns at roughly the same time. Read more about Shelter Movement.
Training Practices for Law Enforcement in Domestic Violence Cases
The primary area of interest in which officers are trained should be aimed at officer and victim safety. Learning and being able to apply specific field strategies and techniques will ensure their safety, as well as the perpetrator’s arrest. It is also important for officers to understand that simply responding to domestic violence calls has an impact on the circumstances. Police may have a positive impact through proper documentation and consistent responses to domestic violence calls. Officers should be informed during training that their procedures have an impact in three areas: They increase the chances of successful prosecution, they decrease possible repeat calls, and they provide closure for officers themselves. Consistent with the training focus on ensuring officer and victim safety as well as arresting the offender, training topics should include: the approach, identifying the aggressor, police report/identifying evidence, victim protection, and victim resources. Proper training in these topics will ensure a decrease in domestic violence repeat calls. Read more about Domestic Violence and Law Enforcement Training.
Violence against Women Act
The Violence against Women Act (VAWA) of 1994 was the first and most comprehensive federal legislation to address violence against women in the history of the United States. Although some federal legislation was passed prior to VAWA to address privacy issues for rape victims, fund battered women’s shelters, and compensate crime victims, many people recognized that violence against women existed in many forms and had to be addressed on a national level. This recognition grew out of the women’s movement of the 1970s, itself a product of the earlier civil rights movement. As women talked with each other and organized themselves, they realized that rape, battering, and other types of violence were common experiences for many women. During the period of intense grassroots activism leading up to VAWA, women fought for the prosecution and prevention of rape, created shelters for battered women, and advocated for legislation that would make hurting women because they were women a crime. Until passage of VAWA, many people and some judges believed that if a woman’s boyfriend or husband hurt her, it was less of a crime than if a stranger hurt her. Many states still had laws that did not recognize violence or rape in marriage as a crime. Read more about The Violence against Women Act.