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DOMESTIC VIOLENCE AND CHILD ABUSE
Annotated Bibliography


Fran Swanson Sweeney
2nd Year Law Student
The University of Dayton School of Law
Fall 1998



Introduction

The goal of this annotated bibliography is to survey the issue of domestic violence as it impacts child abuse. Several months ago, an attorney friend of mine and I were talking about the domestic abuse legislation which has been promulgated in the last four to five years. His comment was that, rather than passing more laws, traditional laws addressing assault, battery, and stalking should have been sufficient, if applied properly. While his statement is accurate in theory, I believe, after compiling this collection of articles, that there is an inherent difference between the nature of those other crimes, and domestic violence. This fundamental difference requires legislation which explicitly states, "if any party physically injures his or her spouse, or significant other, or former significant other, he or she will be arrested and, under certain conditions, will be incarcerated." The specificity is necessary, because, unlike robbery, kidnapping, and murder, the law has not always supported the theory that spouses and lovers, and more to the point, that men, should not hit women. The articles by Yvette Mabbun and Reva Siegel, cited later in this bibliography, describe the overt permission that was granted to husbands to apply force to control their wives in English common law. This behavior was condoned in American until the Reconstruction period in the late nineteenth century. In fact, the "rule of thumb" slogan originated from the policy permitting men to strike their wives, as long as the object used was no larger in diameter than the manís thumb. Therefore, additional legislation is needed to undo the layers of assumptions in western culture about the way women should be treated.

The nexus between domestic violence and child abuse in this bibliography refers, first to the overarching problem of domestic violence, and then acknowledges the affect that domestic violence has on child abuse issues. The impact that violence in the home has on children is, in and of itself, abusive. In addition, the children learn or accept violent behavior as a way of life, and either repeat it in adulthood, or are silent victims of it. 

The literature in this bibliography reviews the status of domestic abuse, first in general terms, and then by focusing on domestic abuse in minority populations. References to minority populations in this bibliography are consistent with the nomenclatures chosen by the authors of the materials covered. For example, if an author refers to a woman of Spanish dissent as "Hispanic," rather than "Lation," I have done the same.

The four minorities groups addressed in this paper are the African American, Asian-American, Hispanic/Latino, and Native American groups. The Appalachian population is sometimes referred to as a minority entity, but is addressed only peripherally in this bibliography. A very interesting principle was noted when examining the frequency and nature of domestic violence in these four minority groups. Studies across the board demonstrated that couples living in extended families or in social neighborhood or community settings were less likely to experience the phenomenon of physical abuse. I believe the rationale is attributable to several factors. First, the social pressure not to abuse is greater if people live in an open, more communicative setting. For example, among the Asian-Americans and Native Americans, physical abuse was culturally unacceptable, so the pressure not to abuse was exercised. Secondly, low incidence in minority communities may be attributable to the negative implication doctrine. A personality trait of an abuser is his desire to isolate his victim. In cultures where the peer pressure is high to integrate with the community or family at large, the behavior may either be suppressed to comply with the norm, or the abuse may choose to isolate, by moving away from the group setting. 

This bibliography has helped me reach three conclusions about domestic violence and child abuse. The first conclusion is that domestic violence is self-perpetuating, and teaches children that abuse is an acceptable form of behavior. My second conclusion is that dealing with domestic violence in the white community and the minority communities requires different approaches. Even the definition of the word "victim" varies. Finally, I think the new laws provide sufficient support for domestic violence victims and their children. The next step toward making inroads in the field of domestic abuse is educational. Referring to the annotated article by Jo Carson appearing in this bibliography, and my reaction therein, that awareness of the high incidence of domestic violence in Americanís homes is fundamental to solving its problems. To exercise real change, I believe that the desire to solve the problem must be as focuses as that demonstrated by the proponents of the Civil Rights Act of 1964. 


The following articles are included in this bibliography:

Constitution and Statutes

OHIO REV. CODE ANN. ß 2919.25, 2919.26, 2935.03 (West 1994).

Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1902-55 (codified in part at 42 U.S.C. ß 13981 (1994).



Articles

Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 Stan. L. Rev. 1311 (1991).

Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1 (1995)

Shelby A. D. Moore, Battered Woman's Syndrome: Selling the Shadow to Support the Substance, 38 How. L.J. 297 (1995).

Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041 (1991).

Gloria Valencia-Weber and Christine P. Zuni, Domestic Violence and Tribal Protection of Indigenous Women in the United States, 69 St. John's L. Rev. 69 (1994).

DOMESTIC VIOLENCE HURTS EVERYONE: MODEL OHIO PROTOCOL FOR RESPONDING TO DOMESTIC VIOLENCE 1-54 (Debra D. Rothstein & Kelly A. Malone, eds. Ohio Department of Human Services in Cooperation with the Legal Aid Society of Cincinnati) 1995.

George B. Stevenson, Federal Antiviolence and Abuse Legislation: Toward Elimination of Disparate Justice for Women and Children, 33 Williamette L. Rev. 847 (Fall 1997).

Michelle W. Easterling, For Better or Worse: The Federalization of Domestic Violence, 98 W. Va. L. Rev. 933 (Spring 1996).

Ace Boggess, et. al., Learning to Serve, Serving to Learn: Public Service at the West Virginia University College of Law, 11-SEP W. Va. Law. 16 (September, 1997).

KAREN AILEEN HOWZE, ESQ., MAKING DIFFERENCES WORK CULTURAL CONTEXT IN ABUSE AND NEGLECT PRACTICE FOR JUDGES AND ATTORNEYS 1-89 (Sally Small Inada, et.al. Amercian Bar Association) 1996.

MARY P. KOSS, ET. AL., MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK, AND IN THE COMMUNITY, 41-69 (American Psychological Association) 1994.

Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1993).

Linda L. Ammons, Mules, Madonnas, Babies, Bath Water, Racial Imagery and Stereotypes: The African-American Woman and the Battered Woman Syndrome, 1995 Wis. L. Rev. 1003 (1995).

Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 Harv.Women's L.J. 229 (1996).

Pauline Quiron, et. al., Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation, 6 B.I. Pub. Int. L.J. 501 (Winter 1997).

THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN 1-37 (American Bar Association) 1994.

Christine A. Picker, The Intersection of Domestic Violence and Child Abuse: Ethical Considerations and Tort Issues for Attorneys Who Represent Battered Women with Abused Children, 12 St. Louis U. Pub. L. Rev., 69 (1993).

Reva B. Siegel, "The Rule of Love:" Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996).

R. BARRI FLOWERS, THE VICTIMIZATION AND EXPLOITATION OF WOMEN AND CHILDREN: A STUDY OF PHYSICAL, MENTAL AND SEXUAL MALTREAMENT IN THE UNITED STATES, 5-35, (McFarland & Company, Inc. 1994).

Yvette J. Mabbun, Title III of the Violence Against Women Act: The Answer to Violence or a Constitutional Time-Bomb?, 29 St. Mary's L.J. 207 (1997).

HARVEY WALLACE, VICTIMOLOGY: LEGAL, PSYCHOLOGICAL, AND SOCIAL PERSPECTIVES, 146-183, 283-296 (Allyn & Bacon 1998).

ROBERT A. JERIN AND LAURA J. MORIARTY, VICTIMS OF CRIME, 1-28, 81-98 (Dorothy J. Anderson, ed. Nelson Hall, Inc.) 1998.

WHEN HOME IS NOT A SAFE PLACE: HANDBOOK FOR A PASTORAL RESPONSE TO DOMESTIC VIOLENCE (Archdiocese of Cincinnati) 1996

 



Fran Swanson Sweeney is a second-year law student at the University of Dayton School of Law in Dayton, Ohio. She graduated from Goucher College in Towson, Maryland in 1966 with a B.A. in Chemistry, and has managed hospital laboratories before returning to law school. Upon graduation from the University of Dayton School of Law, she will practice in Ohio.

 




Annotations

Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 Stan. L. Rev. 1311 (1991).

This article begins with a description of two domestic violence crimes where the perpetrators received markedly-reduced sentences, on the basis of cultural evidence submitted. The author says that Pacific-Asian men justify domestic violence against women, and the women, in turn, are pressured into accepting violence as a life style, using a culture of abuse-approval as a rationale. The children learn these Pacific-Asian principles through the validation of the abusive behavior observed in their parents. 

Ms. Rimonte, who is director of the Center for Pacific-Asian Family in Los Angeles, a domestic violence agency, does an excellent job of defining and distinguishing the differences between Pacific-Asian and western cultures. The Pacific-Asian culture promotes a hierarchical, patrilineal society, where individual rights are generally diminished, in the progression from family as most important entity, to man, and finally to females/children, who are at best, described as "legitimate victims." The mainstay of Pacific-Asian society is the group or extended family, and the goal is to preserve the group unit, even at the expense of individual rights to safety at the hands of abusers. I recommend reading this article to obtain an insight into the unique issues underlying the perception of the Asian-Pacific woman as "legitimate victims" of domestic violence.

Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1 (1995)

This topic is covered in a keynote address, given at a symposium on domestic violence, child abuse, and the law. The speaker shared her observations about the results of anonymous phone calls to child abuse hot lines in the Cook County Juvenile Court. Cook County serves a predominant number of African American families. Often the phone calls trigger a series of agency policies and procedures, resulting in the termination of parental rights. The author attributes the custody losses to a network of services which, in turn, deal with child abuse and domestic violence as disconnected issues. Thus, domestic violence and child abuse are addressed in court houses separated by distance and protocols, with little or no communication between the two.

I found the lecturer's examples of the ways in which the current systems work against each other poignant. For example, it would not be uncommon for a domestic violence court to issue a protective order to the mother, while the domestic relations court would order counseling, and therefore, repeated contact, with the abused spouse. In addition, the lecturer described juvenile courts as "mother blaming," originating from a legal theory during a time when the state acted as a father figure. Because the mothers accused of child abuse in Cook County are frequently poor, unemployed, and under-represented legally, the state removes the child from the mother's home, without assessing the domestic violence component. I believe that it makes sense to combine resources into a domestic relations legal system. There is an expense, now, of removing children from their homes, and paying for foster parenting that could be redirected to assist victims and their children.

Shelby A. D. Moore, Battered Woman's Syndrome: Selling the Shadow to Support the Substance, 38 How. L.J. 297 (1995).

This article gives a brief history of domestic abuse law, and lists a number of reasons why women do not leave their abusive relationships. Ms. Moore then explains the cycle of violence and the battered woman syndrome theories. She describes both theories as advancing an image of the victim as weak and helpless. Problems arise, though, when applying those theories as a defense to killing an abuser, because a woman kills from a position of strength, not weakness. The author then traces the history of the African American female from the years she was held captive to the years after the Civil War. Ms. Moore explains that African-American women were treated as non-persons before and after the slavery period, and were repeatedly violated physically and sexually by white and African-American males alike. A stereotype has thus emerged of an angry black woman, strong, domineering, and contemptuous of black men.

The author's goal in this article is to propose a new defense for female victims who are accused of killing their abusers. Because the stereotype of the African-American woman is a person of resilience and strength in the face of adversity, the courts do not view them as helpless. The author advocates elimination of the battered woman syndrome defense, to be replaced with a theory that, during times of abuse, the woman is overpowered, but not powerless, in the relationship. It is the overpowering, in turn, that results in the abuse. The author believes that women of all races can maintain their power by not posing as helpless victims, but rather as persons mentally and physically overpowered by their abusers. I agree with the author that the perception of the African-American female as one who is strong and independent is a deterrent when advancing the battered woman defense. I do not entirely agree that the battered woman theory should be eliminated, even though the author believes that the theory only provides a shadow of equality. Women, particularly white women, have been conditioned to be submissive and passive, and those qualities are exacerbated with abuse. I believe the solution is somewhere in the middle, and depends on the relevant cultural components, which are unique to each case.

Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041 (1991).

This article describes the psychological dynamics of the battered family, including the victims, abusers, and children. Ms. Cahn wrote the article on the premise that courts which do not include domestic violence as a part of custody litigation ignore the effect domestic abuse has on the children. The author includes a list of examples of child custody policies which some states have initiated when domestic violence has been documented. Suggestions are included as to how to integrate domestic violence into child custody decisions, after overcoming the myths underlying domestic abuse. The author says extensive research on the affects of spousal abuse on children is just beginning, in part, because domestic violence, as a social problem, has only gained public credibility since the women's movement in the 1970's. 

I agree with the theory advanced by this article that children are also victims, even if they just witness domestic violence, and are not physically abused themselves. Although the sample sizes of some of the studies documented in this article are small, it appears that children who witness abuse, or are also victims of it, are impaired physically and emotionally, in the sense that their cognitive and motor skills have been altered. The legal system must begin to view domestic violence as a disorder which affects not only the spouse, but any person living in the environment.

Gloria Valencia-Weber and Christine P. Zuni, Domestic Violence and Tribal Protection of Indigenous Women in the United States, 69 St. John's L. Rev. 69 (1994).

The legal treatment of domestic violence in fourteen Native American tribes is presented. An appendix contains, in chart form, the statutory provisions. The provisions vary among the tribes, but all tribal codes contain a definition of domestic violence and describe the parties protected under the law. A majority of the tribes specifically protect children as well as adult victims, or contain codes governing child abuse under separate child protection statutes. The governments of the Indian tribes are based on communal rights, as distinguished from the individual rights promoted by western cultures after John Locke's Declaration . Tribes have sovereign rights, and determine their own forms of government, which are either patrilineal or matrilineal. Santa Clara Pueblo v. Martinez is discussed as the seminal case which disturbs feminists because the female plaintiff could not obtain property rights for her children following her marriage to a non-tribesman, whereas offspring of males who married outside the tribe had full tribal rights.[EN1

I found it interesting that the general tribal policies turn on maintaining universal harmony. Individual interests combine with the interests of the larger community, to create that harmony. Tribal governments are aware that abuse of individual women will lead to other family members being treated in an abusive manner. Tools of resolution, mediation, and prevention are employed to prevent the spread of abuse throughout the tribal community. The author stresses that women are regarded as sacred, and it wasn't until families started moving away from each other that stories emerged about spousal abuse. I believe that the Indian culture can teach some important lessons about living in harmony, but I have some doubts about the use of mediation in spousal abuse cases. Documentation in the western culture suggests that mediation is not productive, since mediation only reinforces the abuser's position of control in the relationship, and suppresses the ability of the victim to regain her sense of self. 

DOMESTIC VIOLENCE HURTS EVERYONE: MODEL OHIO PROTOCOL FOR RESPONDING TO DOMESTIC VIOLENCE 1-54 (Debra D. Rothstein & Kelly A. Malone, eds. Ohio Department of Human Services in Cooperation with the Legal Aid Society of Cincinnati) 1995.

This model protocol was developed to provide guidelines for communities across Ohio to diminish the incidence of domestic violence and provide victims with choices, including escape from the abuse. It has been updated to include the requirements of Amended Substitute Ohio House Bill 335 and Amended Ohio Senate Bill 186. The protocol contains procedures for handling children at the scene of domestic abuse. It also includes a list of factors which are not to be taken into consideration when assessing whether a crime has been committed. These factors include race, ethnicity, and social class. This comprehensive protocol also contains, in entirely, a procedure manual designed for and by Ohio's physicians.[EN2] The physicians' manual cites a 33% to 54% frequency in child abuse occurrences in families where adult domestic abuse occurs.

This comprehensive protocol is an excellent tool for use in creating local policies and procedures. It provides a road map for forming a community-based committee, so that the procedures adopted in each community can reflect local needs and resources, while still complying with current legislational provisions. Model procedures are included for dispatchers, law enforcement officials, criminal and civil clerks of courts and judiciary, prosecutors, children's protective services, domestic violence shelter responsibilities, and medical facilities. This manual will save local communities considerable hours of preparation in developing their own protocols. The procedures are written in a format which is easy to understand, with citations to the appropriate Ohio Revised Code Sections. The editors of the manual acknowledge that this is a manual-in-progress, and that there is more work to be done in the section on children's protective services. 

George B. Stevenson, Federal Antiviolence and Abuse Legislation: Toward Elimination of Disparate Justice for Women and Children, 33 Williamette L. Rev. 847 (Fall 1997).

This article gives a comprehensive overview of the major federal statutes passed by congress addressing domestic violence, rape prevention, and child abuse since 1968. A historical approach helps the reader see the progression of the law, accelerated by the startling study performed by the Minneapolis police in 1984. This research project confirmed that arrest intervention was the singular most significant factor in the reported recurrence of domestic violence. Today, the goals of federal domestic violence and abuse legislation include improved responses at all levels of the criminal justice system, more effective victim services, intensified action by state and local governments, and effective telecommunication and record-keeping systems for tracking offenders. 

I think that the historical development of abuse legislation indicates that awareness of the unique issues in spousal and child abuse cases is at an all-time high level. Recognition that abuse is a serious problem is a good first step. Education of state and local legal communities may very well be the next area of legislation which needs to be investigated. Laws currently address every possible permutation of events involving violence. Enforcement is the real challenge. In rural areas, the policeman may be called to the home of a person the officer grew up with. It would be easily understood why the policeman may perceive that a colleague would "never do anything like that. Even in larger metropolitan areas, it may be difficult to determine the "primary aggressor," if both parties in a domestic argument are intoxicated and injured. Education of law enforcement officials, as well as attorneys and judicial systems is imperative to help the legal community distinguish the evidence before them. I recommend this article for anyone who wants a concise overview of domestic law since the late Ď60ís

Michelle W. Easterling, For Better or Worse: The Federalization of Domestic Violence, 98 W. Va. L. Rev. 933 (Spring 1996).

The Violence Against Women Act (VAWA), was passed in 1994. Two new federal criminal offenses were created. This article deals with the provision on interstate domestic violence, and analyzes the federalism issue which arises regarding the optimum forum for domestic violence cases. The two arguments against federal courts assuming judicial responsibility for these cases is the floodgate of litigation argument, and the usurpation of statesí rights rationale. Those favoring federalization say that uniformity of law would result. Pro-federalists also say the federal judicial system would not be overworked, because they would select the most compelling cases. The standards they would use include weighing whether the problem is a national concern; whether the state criminal system is inadequate to handle the problem; and whether the government has the judicial resources to better handle the problem. These standards would be applied to enhance, not strip local courts of their proper authority.

Parity persists as a debatable issue. Applied here, federalism is a valid issue, because the problem of violence has persisted when left to the local and state governments to adjudicate. Similar to Civil Rights legislation, laws, at least, began to change, when the federal government intervened. The overriding advantage to continue domestic abuse litigation in the state and local courts is the argument involving local custom and sub-cultural considerations, which federal courts may overlook in their quest for uniformity of the law. Now that VAWA is approved, this debate will continue. I would choose retaining control at the most local level to support custom and cultural differences.

Ace Boggess, et. al., Learning to Serve, Serving to Learn: Public Service at the West Virginia University College of Law, 11-SEP W. Va. Law. 16 (September, 1997).

Although the Appalachian region is not defined as a minority group for the purposes of this bibliography, this article is included because the pro bono project at the Appalachian Center for Law and Public Service describes a need that is being met in a sub-cultural setting. Students from the West Virginia University College of Law volunteer at the Center, and are assigned to a practicing attorney. Battered women are part of the client base. Kathy Snyder is one of the attorney-volunteers who has spent three years at the Center, in addition to her paid position at a local firm. She commented that working with battered women means being a friend and counselor, as well as an attorney.

In a telephone interview with Randal Minor, the Centerís Director, I learned that the students work in mini-clinic programs in the areas of Domestic Law, Family Law, Wills and Estates, and Bankruptcy, and deal with cases where it appears that there will be a finite period of involvement. 

I think that Kathy Snyderís approach to domestic abuse cases speaks to the core of the issue. It is a complex area of the law, requiring a range of skills. These skills must originate either in the judicial system, or the social services vector, or both, to make progress and keep mothers and their children safe.

KAREN AILEENHOWZE, ESQ., MAKING DIFFERENCES WORK CULTURAL CONTEXT IN ABUSE AND NEGLECT PRACTICE FOR JUDGES AND ATTORNEYS 1-89 (Sally Small Inada, et.al. Amercian Bar Association) 1996.

The author states that law in the '90s is practiced in a pluralistic society. Each lawyer brings into the practice of law, his or her perceptions of race, ethnic background, poverty, drug abuse, alcoholism, mental illness, literacy, language differences, gender, age and sexual orientation. She references Harvard Law Professor, Martha Minow, who maintains that three assumptions must be applied when practicing law in the field of abuse and neglect. The first assumption is that "each family is unique", the second assumption is that "each family is different in key aspects of their lives," and the third is that "the solutions needed to repair the family or determine whether to break the parent-child relationship forever must be based upon a clear and careful understanding of family differences and family uniqueness."[EN3

The African American attorney-author first understood the need for altering assumptions and perceptions when a clerk of courts asked her to leave the confidential courtroom area, thinking she was a parent or social worker, whereas it was automatically assumed that her white colleagues were attorneys. Ms. Howze's book contains definitions and facts on minority group demographics and cultural characteristics which may alter outcomes, if weighed with the other facts before the court. I thought the chapter on defining "the process" was informative. "The process" moves away from the current "boilerplate" system of en mass handling of abuse and neglect in child abuse cases to a place where cultural issues are raised. I agree that this approach redirects family crises "into rebuilding processes." The author provides ample illustrations of her theory and describes the outcomes, which are more beneficial than traditional approaches. I also agree with her comments in the chapter entitle "The Players." She distinguishes the area of abuse and neglect from other areas of the law, because, in the area of abuse and neglect, the issues are driven by cultural and sub-cultural considerations.

MARY P. KOSS, ET. AL., MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK, AND IN THE COMMUNITY, 41-69 (American Psychological Association) 1994.

The affects of violence on children are described as socialization processes, teaching perpetration and responses to violence, which are then learned and transmitted. Studies conducted on violence in the African American, Hispanic, Asian-American, and Native American cultures are analyzed, recognizing that underreporting, small sample sizes, and multiple variables are introduced into the studies and affect outcomes. 

I agree with the author that the data on partner violence among minority groups is incomplete, rendering interpretation difficult. I think the evidence that African American violence is reduced when there is close involvement with family and friends, is supported by data from other minority cultures which indicates similar patterns. Beliefs that African Americans are inherently violent diminish the assistance available to black women who are abused. Consequently, there is a reduction in early intervention. Because homicide increases when violence escalates untreated, society creates a self-fulfilling prophecy for violence in the African-American community.[EN4] Reports show that, in very general terms, Hispanic women perceive assaults as less serious than white women, in part because the maintenance of the family unit is of fundamental importance.[EN5] The lowest incidence of reported domestic violence is in the Asian-American population. One of the suggested reasons has been underreporting, attributable to the highly private sphere surrounding the marriages of Asian-Americans.[EN6] Native American groups report a high incidence of violence against women. The violent behavior only surfaced after the influx of western culture, bringing with it, alcohol and the concept of male domination over women.[EN7] I recommend this book as a starting point for a study of domestic violence in minority groups.

Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1993).

Ms. Crenshaw, structures the outer bounds of feminist and racial biases, explaining how the political process is impacted by the intersection of these feminist and racial biases. She then applies those principals to the issue of violence against women of color. Women and people of color with political demands exert more influence than singular or small-group efforts. The author points out that both women and people of color proceed to the mutual exclusion of the issues of the other group. Feminist groups ignore the existence of women who are also people of color, and racist organizations ignore the set of issues with which women in society ordinarily struggle. Women of color are, therefore, at the margins of both groups. This dilemma emphasizes the necessity to examine more than one basis for identity when reviewing domestic abuse in women of color. Specific instances are cited where women of color receive reduced options when seeking social services after incidents of domestic violence. An extensive description is also provided of the social dynamics and experiences in the black community regarding the crime of rape. 

This article skillfully assesses the processes of politics and racism to offer a reasoned explanation regarding the additional challenges women of color, and African American women in particular, face when dealing with domestic violence. Ms. Crenshaw's statement regarding the fact that "political demands of millions speak more powerfully" accurately represents the dilemma minorities experience in attempting to exercise change. The problem is exacerbated in situations when African-American women are a minority within a minority. I agree with the theory presented here as a starting point in facilitating improvements when dealing with domestic violence issues within minority communities.

Linda L. Ammons, Mules, Madonnas, Babies, Bath Water, Racial Imagery and Stereotypes: The African-American Woman and the Battered Woman Syndrome, 1995 Wis. L. Rev. 1003 (1995).

Ms. Ammons first discusses the common traits, described by Dr. Lenore Walker, of women suffering from the battered woman syndrome.[EN8] Courts are accepting the battered woman syndrome theory, recognizing that battering produces a post-traumatic stress disorder. The disorder, in turn produces a learned helplessness, but the profile of this helplessness is a "white, middle class, passive, weak woman, who in a moment of terror," committed a crime. This article issues a stereotypic definition of the black female and explains why this image creates difficulty when African-American females raise a defense of battered woman syndrome. The author then describes battered woman syndrome, as it applies as a defense in trials where the victim has murdered her abuser. While the learned helplessness concept, when applied to white females, has been an acceptable defense, the image of the African-American female, as strong and combative, does not support the same theory.

I agree with the author's conclusion that the guilt or innocence of African-American females in crimes of self defense in domestic violence disputes is compromised due to stereotypical differences. These differences are due in part because the black woman generally has difficulty in portraying her position as a believable, reasonable person. The implied significance of this article to the issue of domestic violence and child abuse is that the mother also loses the option to parent her children if her self defense testimony is not accepted. Therefore, new defenses must be constructed to support African American abuse victims, and their children.

OHIO REV. CODE ANN. ß 2919.25, 2919.26, 2935.03 (West 1994).

The revisions, under Substitute House Bill 335, expand the protection for victims of domestic abuse. Under ß 2919.25, the definition of "family members" is broadened to include abuse committed by a party with whom the victim shares a child in common. Section 2919.26 covers temporary protection orders and, among other provisions, allows the police officer to file the motion for the order. This assists the victim if he or she is hospitalized or otherwise has a medical condition as a result of the abuse, and is therefore unable to file the motion. This section also allows a victim to be accompanied by a victim advocate during the proceedings for obtaining the temporary protection order. Section 2935.03 allows a police officer to arrest and detain a person who has been abusive, applying a reasonable cause standard. The police officer must either arrest the abuser, which is the preferred course of action, or show in his written report why he did not arrest.

It is my opinion that the regulations offer additional support from the legal community for abuse victims and their children. When the regulations are applied in a cohesive effort, inclusive of law enforcement officials, prosecutors, and the judiciary, the updated law should effectuate change. The support of law enforcement officials should instill a sense of hope for the victim that the authority is willing to step in and help protect her. I believe the system could easily break down if one or more of the players is not a willing, or a knowledgeable, participant. For example, if it is not the judge's policy to issue temporary protective orders, mandatory arrests will not be any more supportive of the abused victim. I believe that the action passed under House Bill 335 has heightened awareness of the problem, and that, in time, change will be effectuated.

Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 Harv.Women's L.J. 229 (1996).

This article addresses a nation-wide dilemma resulting from the misapplication of the "failure to protect" doctrine. Courts, in the process of removing children from abusive homes, not only remove the child from the abusive party, normally the male father figure, but also deny custody to the mother as well. Courts apply a strict liability, rather than an objective, "reasonableness test," and fail to evaluate the limitations of the abused woman's circumstances, situation, and abilities. The author suggests that the court should first examine the dynamics of the family relationship to determine whether the mother is the actual abuser. This article also discusses the trauma children experience after witnessing domestic violence, providing specifically, symptoms manifested, as well, as several excellent resources to obtain additional information about these effects.

I agree with this author's assessment of the myths and assumptions about victims of abuse, and regard the assessments of reality in response to the myths as accurate. For example, the courts first assume that a battered woman is able to leave the abuse, where, in reality, leaving the situation often creates more danger both to the battered woman and to her children. The second assumption the judicial system makes is that assistance is readily available from public service agencies, including the police and social services, if and when the abused mother wants the help. Unfortunately, the police are just now becoming more sensitive to the problems of domestic abuse, and child protective service agencies are more focused on removing the child from both parents, which deters the woman from making the contact. Additional assumptions include: the willingness of the abused woman's friends and family to help her, the belief that the woman should risk her life to protect her children, that she is in all cases responsible for the child's injuries, and that her fear is unjustified. I also agree with the author that all these assumptions are refutable. 

Pauline Quiron, et. al., Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation, 6 B.I. Pub. Int. L.J. 501 (Winter 1997).

This article surveys the reasons why domestic violence is detrimental to children, and why domestic abuse must be considered a factor in custody decisions. The first effect of domestic violence on children is the fact that children are definitely injured directly and indirectly when they witness abuse. Next, the author reports that up to eighty percent of the batterers threaten to abuse the children in the home. Third, the harm which children suffer when exposed to their motherís injuries is both developmental and behavioral. Next, children are harmed by the lack of attention the mother is able to give them, and the violence begets more violence, which is duplicated by the children in their adult years. Finally, children are placed in the middle of long, protracted custody disputes, or the mother makes excessive financial concessions to keep her children and herself safe, and distanced from the abuser.

Because the judicial system in this country is often fragmented when dealing with domestic abuse and child custody decisions, I think this article is on point that domestic violence is a very significant issue to be reviewed before custody hearings take place.

JO CARSON, STORIES I AIN'T TOLD NOBODY YET: All the Times He Hit Me, 50, 51 (Orchard Books) 1989.

"I can't remember all the times he hit me.
I might could count black eyes,
how many times I said I ran into doors
or fell down or stepped into the path
of any flying object except his fist.....

when he says he will not hit you again
as he drives you to the hospital, 
both of you in tears and you in pain,
you have stayed much too long already.

Tell the people at the hospital the truth
no matter how much you think you love him.
Do not say you fell down the stairs
no matter how much he swears he loves you.
He does love you, he loves you hurt and he will hit you
again.

 This poem is from a collection of essays and poems, written by an African American woman who listens to the stories as they come into her life, and records them later as she remembered hearing them. Amidst the statistics, theories, and legal procedures, is the reality that this story is not unique. Unfortunately, in the background, there is often at least one, helpless child watching the process, over and over again. I include the poem because domestic violence is not an issue which can be entirely solved with theories and dicta. The issue must travel to the core of our inner-selves, where the pain of the victims becomes our pain, such that there is no rest until our children are safe in their own homes. 

THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN 1-37 (American Bar Association) 1994.

This report was initiated after American Bar Association President R. William Ide, III, participated in the March 11-14, 1994 "National Conference on Family Violence: Health and Justice. Its purpose was to review the legal literature and reform proposals in the field of domestic violence and its impact on children, and then to recommend legislation and policies which attorneys could apply to improve this area of the law. The seven policies which were formed and explained in this book include: "1. Creation of domestic violence laws (that) require police and courts to adequately protect children; 2. Support of enhanced education, treatment, and awareness efforts related to domestic violence and children; 3. Enhance(ment) of legal representation for victims of domestic violence and their children; 4. Prohibit firearms purchase and possession for all perpetrators of domestic violence and child abuse; 5. (Mechanisms to) ensure that domestic violence is properly considered in all domestic relations actions involving custody and visitation; 6. Responsib(ility when addressing) the connections between domestic violence and child abuse/neglect; and 7. Address(ing) the special needs of immigrant women and their children who are victims of domestic violence."

This report also identified inherent difficulties in the Uniform Child Custody Jurisdiction Act (UCCJA), the Parental Kidnapping Prevention Act (PKPA), and state criminal kidnapping laws when victims of family violence are attempting to escape from their abusers. Examples of the obstacles include: prevention of parties from benefiting from PKPA if they have not conformed with the rules, because they have had to flee from an abuser; prevention of emergency jurisdiction necessary to obtain temporary relief; and the UCCJA requirement to disclose confidential addresses of battered woman shelters housing the victim and her children. I commend Mr. Ide for taking the step to investigate domestic violence as it relates to child abuse and look forward to the results of this work and the recommended amendments to UCCJA and PKPA. I would have also added an eighth area of concern. There are violence issues which are unique to at least four minority groups, i.e.: African Americans, Asian Americans, Latinos, and Native Americans. Because these cases from these groups actually constitute the bulk of the work load in some jurisdictions, their needs should also be given priority.

Christine A. Picker, The Intersection of Domestic Violence and Child Abuse: Ethical Considerations and Tort Issues for Attorneys Who Represent Battered Women with Abused Children, 12 St. Louis U. Pub. L. Rev., 69 (1993).

This article is written for attorneys whose domestic violence client-victims of abuse also have children living with them. Statistics show that nearly one-half of the batterers also abuse their children. Ms. Picker addresses the problems that arise when the attorney becomes aware that the children are not being protected either because: 1. The female victim is abusing the children; 2. The victim leaves the children with the abuser when she chooses to leave the relationship; or 3. The victim decides to return to the abusive home. A conflict arises because social policy implies protecting at-risk children, but ethically, the attorney-client privilege may prevent it. 

This article contains an excellent overview of the dynamics of the battered woman syndrome, and the effects of abuse on the children in the home. I agree with the author's assessment that the state departments of social services work effectively to protect children from abuse, but that there are limits to their effectiveness because they are frequently understaffed and under-funded. There is a growing body of law, beginning with the Tarasoff decision, which is directed at tort liability for failure to warn a third party. The author reviews the countervailing policies of attorney-client privilege to not report potential child abuse to state officials against a potential law suit for failure to warn. Although the failure to warn doctrine currently has limited application to attorneys reporting potential abuse, public policy favoring deterrence of abuse may warrant careful review of the choices in the future. 

Reva B. Siegel, "The Rule of Love:" Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996).

This article traces the history of domestic violence beginning with the eighteenth century Anglo-American common law "chastisement" concept that allowed husbands to inflict physical punishment on their wives as long as they did not cause permanent injury. Beginning in the middle of the nineteenth Century, the right of chastisement was no longer recognized. Instead, along with a right to divorce, if the wife could prove extreme cruelty, was an association of violence which was class dependent. The author points out that there was a doctrinal assumption that violence was a part of the lifestyle in the lower classes. This assumption made it more difficult for poorer women to divorce, that is, to prove that their treatment was, in fact "cruel," and not commonplace. Interestingly enough, the courts were more inclined to prosecute men from the lower classes for beating their wives. This assumption expanded following emancipation in a convoluted manner among the African-Americans. Groups including the KKK, formerly not interested in women's rights, became active in flogging black husbands for allegedly beating their wives. It is documented that slave owners forbid black men from beating their wives, and this practice continued after the Civil War, auspiciously to protect freedwomen.

While this article also covers the evolution of domestic abuse through the Violence Against Women Act of 1994, I found the policy targeting arrests among black men significant in the evolution of domestic violence among the African-American community. I agree with the author that the punishment of black men in disproportionate numbers served to prevent them from assuming their roles as heads of their households, as well as providing an excuse on the part of lawmakers to continue to vent racially-motivated anger. In Washington D.C. in 1906, only one out of every five males arrested for wife beating was white, and in Baltimore there was only one white male out of one hundred and thirty-one men arrested for domestic violence. The author already has documented that domestic violence occurs more frequently in impoverished homes where the man feels insecure because he is an unsuccessful provider. The policy of systematically arresting and flogging black husbands, only reinforced the servant-image among black males.

R. BARRI FLOWERS, THE VICTIMIZATION AND EXPLOITATION OF WOMENAND CHILDREN: A STUDYOF PHYSICAL, MENTALAND SEXUAL MALTREAMENTIN THE UNITED STATES, 5-35, (McFarland & Company, Inc. 1994).

The chapter in this book, entitled Domestic Violence, displays three tables of statistics on: (1) The Percent of Distribution of Single-Offender Victimizations by the Type of Crime and Detailed Victim-Offender Relationship; (2) Percent of Violent Victimizations Not Reported to the Police by Reasons for Not Reporting; and (3) Circumstances of Murder, by Victim Relationship to Offender for 1992. The interesting point gained from this data is that domestic violence can occur across all family lines. That is, violence between siblings, parents, parents and children, and children and grandchildren all occur with a frequency which should concern social workers and law enforcement officers. The author also identifies a "cycle of child abuse, " defining it as an intergenerational phenomenon. Generally, child sexual, physical, and neglect abuse is learned as a child and is repeated during adulthood. 

The author defines the scope of child abuse as broader-based than the traditional concepts describing child abuse. The quote from Richard Gelles and Murray Straus best summarizes the dangers of domestic violence for adult women and children alike: 

"With the exception of the police and the military, the family is perhaps the most violent social group, and the home the most violent social setting in our society. A person is more likely to be hit or killed in his own home by another family member than anywhere else or by anyone else."[EN9]

Yvette J. Mabbun, Title III of the Violence Against Women Act: The Answer to Violence or a Constitutional Time-Bomb?, 29 St. Mary's L.J. 207 (1997).

This article reviews the constitutionality of the Violence Against Women Act by examining two cases with decidedly different outcomes. The first case was held in favor of the plaintiff-victim, based on an application of the commerce clause under Lopez.[EN10] The Court, in the second case ruled against plaintiff, on the basis that VAWA fell outside of Lopez, and also failed to meet the scrutiny of the Fourteenth Amendmentís due process clause.[EN11] The author concludes that Title III does not meet the Lopez standard, because the relationship between the local activity (the abused womanís inability to work because of her injuries), and interstate commerce was not close enough. 

I think that the Lopez decision is an unfortunate one, because it narrows the applicability of the commerce clause in instances where no other mechanism exists to achieve a desired result. The Civil Rights movement advanced only because due process issues were not dealt with. Rather, commerce was a valid, clean, mechanism to engineer change. During the period between 1967 and 1973, wherein 39,000 Americans were killed in Vietnam, family members killed 17,500 women and children.[EN12] I donít know any more compelling reason to view Lopez as broadly as possible.

Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1902-55 (codified in part at 42 U.S.C. ß 13981 (1994).

The Violence Against Women Act was passed as part of the Violent Crime Control and Law Enforcement Act of 1994. Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of 42 U.S.C.).

Title II of the Act has a federal jurisdictional element because it applies to crimes occurring during interstate travel, or where the batterer may leave the state to avoid prosecution, or to pursue the victim who is fleeing.

Title III of the Act provides a federal civil right, and a remedy, to help victims who may not otherwise be successful in alleging domestic abuse at the state and local levels.

HARVEY WALLACE, VICTIMOLOGY: LEGAL, PSYCHOLOGICAL, AND SOCIAL PERSPECTIVES, 146-183, 283-296 (Allyn & Bacon 1998).

Mr. Wallace introduces the concept of victimology, describing it as a criminal science which is in its infancy. Chapters relevant to the topic of domestic violence and child abuse include those on spousal abuse, child victims, and the constitutional and civil rights of victims. In the section on spousal abuse, he presents the battered woman syndrome, Stockholm syndrome, and the traumatic bonding theories, all as plausible explanations for the perpetration of domestic abuse. The chapter on child victims describes three types of child abuse as physical, sexual, and neglect. The section on constitutional and civil rights introduces the Violence Against Women Act and describes the impact the act will have on an emerging area of the law which holds law enforcement officials liable for breach of duty when serious domestic injuries arise.

This recently published text is an excellent, current handbook for those wanting either an overview of the basic concepts of domestic violence and child abuse, or as a resource for further information. The endnotes appearing with each chapter contain a comprehensive list of books, articles, and occasionally, web site addresses to assist the reader in accessing in-depth information. I agree with the author's conclusion that the efforts of police, prosecutors, judges, and probation and parole agencies must function cohesively to deter domestic violence.

ROBERT A. JERINAND LAURA J. MORIARTY, VICTIMS OF CRIME, 1-28, 81-98 (Dorothy J. Anderson, ed. Nelson Hall, Inc.) 1998.

 The approach taken by the authors includes a discussion of the methods used to measure victim incidents. Chapter two, entitled "Women as Victims," describes three methods to measure victimization, and includes an explanation of the reliability of each reporting system. Statistics on the incidence of domestic violence show that anywhere from 2.1 million to 8 million women are abused each year. One of the major variables in these statistics is the phenomenon of underreporting. A brief description of five theories of domestic violence, and references to access more information on them also appears in this chapter.

Statistics on the number of mildly and severely abused children are also presented, and the terms "battered child" and "abused child" are defined. The authors suggest that the theory of child abuse turns on multiple factors and discusses a representative model which includes individual, family, community, and cultural factors.[EN13

I found the information in chapter two very informative because there is controversy in the literature regarding the accuracy of the domestic violence statistics which are published. [EN14] Of particular interest is the research on domestic homicide which shows that there is a higher incidence of homicide in the black American population. A stereotype persists that the subculture of black Americans is more accepting of violence. The author says a more credible theory is that mainstream America devalues African American life. This theory sets up a circuitous route, which confirms the theory. For example, black Americans die from injuries more often because they are denied access to adequate medical treatment. Because the lack of access to medical care produces deaths when they would not otherwise have occurred, homicide statistics are falsely elevated, confirming the violent tendency in African Americans.

WHEN HOME IS NOT A SAFE PLACE: HANDBOOK FOR A PASTORAL RESPONSE TO DOMESTIC VIOLENCE (Archdiocese of Cincinnati) 1996

 This handbook is a comprehensive manual with sections covering multicultural perspectives, reasons why women stay in abusive relationships, reasons why men batter, medical barriers, effects on children and families, civil laws, and pastoral responses. The section covering the effects on children and families addresses the damage to the fetus caused by battering. In addition, it describes that children exposed to extreme behavior learn how to harm themselves, and learn how to be alone, in a state of constant fear and anxiety. Later in life these children apply these learned patterns and are, in turn, violent to others, or are accepting of abusive treatment.

The section on multicultural perspectives reminds those who work with abuse that each multicultural community has its own value system. A very poignant issue was covered in the section on violence within the African American community. Black women who are abused have an added fear when calling the police. If police are racists, the abusive black man is placed in jeopardy of experiencing brutal police action, and that anger is projected back onto the black female.

I believe this manual is an excellent composite of articles, methods, and testimonies which illustrate the realities of abuse and its effects on victims and children. The bibliography includes a list of videos on child abuse, which can be accessed from the Archdiocese's Department of Religious Education. Of special value is that a church has taken an advocacy position on the issue of domestic violence and its effect on child abuse.


 


ENDNOTES

1. Santa Clara Pueblo v. Martinez, 436 U.S.49, 52 (1978).

2. TRUST TALK: BREAK THE SILENCE. BEGIN THE CURE (Ohio State Medical Association and the Ohio Department of Human Services) 1995.

3. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW, (Cornell University Press) 1990.

4. VIOLENCE IN THE BLACK FAMILY: CORRELATESAND CONSEQUENCES 189-205(R.L. Hampton, ed., Lexington Books 1987)(discussing a chapter written by D. F. Hawkins regarding devalued lives and racial stereotypes as ideological barriers to the prevention of family violence among blacks).

5. S. Torres, Issues in Mental Health Nursing: Psychiatric Nursing for the Ď90ís: New Concepts, new therapies, 12, 113-131 (1991)(discussing a comparison of wife abuse between Hispanic and American cultures).

6. DIVERSITY AND COMPLEXITY IN FAMILY THERAPY 129-150 (L.S. Brown & M.P.P. Root, eds., Haworth Press 1990)(discussing a chapter authored by C.K. Ho on a multicultural approach to counseling domestic violence in Asian-American communities)

7. P.G. ALLEN, THE SPEAKING PROFITS US: THE VIOLENCE IN THE LIVES OF WOMEN OF COLOR, (SAFECO Insurance Company 1990)(discussing violence and the Native American woman).

8. LENORE WALKER, THE BATTERED WOMAN (1991).

9. Richard J. Gelles and Murray A. Strauss, "Violence in the American Family," Journal of Social Issues 35, 2 (1979): 15-39.

10. Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996); United States v. Lopez, 514 U.S. 549 (1995).

11. Brzonkala v. Virginia Polytechnic & State Univ., 935 F. Supp. 779 (W.D. Va. 1996)

12. PETER JAFFEE,ET. AL., CHILDREN OF BATTERED WOMEN 19 (1990).

13. J. Belsky, Child Maltreatment: An Ecological Integration, American Psychologist, 35, 320-335 (1980).

14. R.J. Gelles, Domestic Violence Factoids, http://www.edu/mincava/factoid.htm (file created October 16, 1995)(refuting a report which quoted a March of Dimes study finding that "battering during pregnancy is the leading cause of birth defects and infant morality," when the March of Dimes did not actually know of any such study).

 


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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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