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 ‘60’s
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 states’ 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 Center’s
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 Snyder’s 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. §
2919.25, 2919.26, 2935.03 (West 1994).
The revisions, under Substitute House Bill 335, expand the
protection for victims of domestic abuse. Under §
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 mother’s
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 Amendment’s 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 woman’s 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 don’t 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. § 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. |
