Domestic Violations

By Cathy Young

REASON, February 1998

In the fall of 1996, Susan Finkelstein's live-in boyfriend was arrested and charged with abusing her. Today, Susan, a 31-year-old free-lance editor in a small Midwestern town, feels that she was abused by the justice system. "I felt so helpless," she says. "I had no rights. Nobody listened to me, nobody wanted to hear my story."

The tale sounds familiar enough--except that what angers Susan is not that her boyfriend was treated too leniently but that he was prosecuted at all.

It all started when Susan and her boyfriend, a 44-year-old college administrator whom I'll call Jim, were having a heated argument on the way home from a party. Both of them, Susan explains, were under a great deal of stress. The quarrel escalated, and Jim decided it would be best to pull over. He wanted to get out of the car and walk, and Susan tried to stop him. "I lost my temper, he lost his temper, and we got into a mutual scuffle," she says. "I may have scratched him, he may have pushed me. It got physical, but there certainly wasn't any beating."

Finally, they cooled down and got back on the road--only to be stopped by a police car. Susan remembers thinking that Jim might have been driving erratically during the fight and might have looked like a drunk driver. But it was something very different. A passing motorist had seen their altercation, written down their license plate number, and called the police.

Despite Susan's assurances that Jim hadn't hurt her and she wasn't afraid of him, he was handcuffed and taken away. Under department policy, an officer told her, they had to make an arrest in a domestic dispute. Says Susan, "I was very upset that they wouldn't listen when I said that I was fine. They said, `Well, we know that women who are abused often lie out of fear.'"

After spending the night in jail, Jim was arraigned on a misdemeanor charge of domestic violence and prohibited from having any contact with Susan, who had to stay with a friend. Her efforts to convince the judge and the prosecutor that nothing had happened were fruitless.

On a lawyer's advice, Jim pleaded no contest. He had to write a letter of apology to Susan (which he wrote in her presence and mailed to the district attorney's office, which forwarded it to her) and attend 10 weekly counseling sessions for batterers, a three-hour drive away, at a cost of $400. He is acutely aware that his record puts him at risk: "If Susan and I have a loud argument and a neighbor calls the police, I'll be arrested immediately," he says.

What happened to Jim and Susan--who are still together as a couple--is not an aberration. It's just another story from the trenches of what might be called the War on Domestic Violence. Born partly in response to an earlier tendency to treat wife-beating as nothing more than a marital sport, this campaign treats all relationship conflict as a crime. The zero-tolerance mentality of current domestic violence policy means that no offense is too trivial, not only for arrest but for prosecution. Consider these recent examples:

In 1996, Seattle City Councilman John Manning, who came home one day and was shocked to find his wife loading her things into a truck, was charged with assault for grabbing her shoulders and sitting her down on the tailgate (causing no injuries). He pleaded guilty to misdemeanor domestic violence, received a deferred prison sentence, and agreed to complete a treatment program for batterers. (The Seattle Times editorialized that the case gave "a public face" to the tragedy of domestic violence.)

The same year, Michigan Judge Joel Gehrke made headlines when he gave convicted spouse abuser Stewart Marshall a literal slap on the wrist, citing the wife's adultery with her husband's brother as a mitigating factor. This episode, which provoked cries about judges who go easy on wife beaters, should have raised questions instead about frivolous prosecutions. Aside from the fact that many of the jurors believed Chris Marshall had set up the incident as a leverage-gaining divorce tactic, Stewart's assault consisted of grabbing her by the sweatshirt and pushing her; she did not suffer a single scrape. A woman juror who backed Judge Gehrke's decision explained that the jury "had to say guilty" because "if you touch, it's battery."

In those cases, at least, the alleged victims wanted a prosecution. But increasingly, women who don't--like Susan Finkelstein--find their wishes ignored. This issue was brought into the spotlight by the 1996 Texas trial of football star Warren Moon, whose wife Felicia was forced to take the stand against him. In a less famous case in St. Paul, Minnesota, two years earlier, Jeanne Chacon, an attorney, tried not only to drop battery charges against her fiancé, Peter Erlinder, but to serve as his lawyer. Though Chacon herself had called the police and accused Erlinder of "slamming" her to the ground, she quickly changed her story: Abused as a child, she explained that she was prone to violent outbursts, and that Erlinder had merely restrained her with a "basket- hold" technique recommended by her own therapists. Her therapists corroborated her story, and Chacon had several violent episodes while the case was pending. Still, prosecutors insisted on going to trial--which, like the Moon case, ended in acquittal.

Like many crusades to stamp out social evils, the War on Domestic Violence is a mix of good intentions (who could be against stopping spousal abuse?), bad information, and worse theories. The result has been a host of unintended consequences that do little to empower victims while sanctioning state interference in personal relationships.

The battered women's advocacy movement, which has led the campaign against domestic abuse, is heavily influenced by radical feminist politics and tends to frame the issue in terms of a male "war against women." The mission statement of the National Coalition Against Domestic Violence links "violence against women and children" to "sexism, racism, classism, anti-semitism, able-bodyism, ageism and other oppressions." Booklets funded by government and by charities such as United Way assert that "battering is the extreme expression of the belief in male dominance over women."

Such thinking is responsible for such widely circulated factoids as "domestic violence is the leading cause of injury to American women," "battering causes more injuries to women than car accidents, rapes, and muggings combined," or "25 to 35 percent of women in emergency rooms are there for injuries from domestic violence." These patently false numbers (data from the Justice Department and the Centers for Disease Control and Prevention suggest that less than 1 percent of women's emergency-room visits are due to assaults by male partners, and that about 10 times as many women are injured in auto accidents) are complemented by increasingly expansive definitions of abuse.

Thus, in her landmark book, The Battered Woman (1979), psychologist Lenore Walker writes that "a battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something" (emphasis added). While Walker focuses primarily on women who have been physically assaulted, she also talks about men "battering" their wives by, for example, being inattentive. Pamphlets distributed by family violence programs stress that one doesn't have to be hit to be abused and list such forms of abuse as "calling you names," "criticizing you for small things," or "making you feel bad about yourself." A booklet published by the state of New Jersey, Domestic Violence: The Law and You, informs the reader that she is a victim of domestic violence if she has experienced "embarrassment or alarm because of lewd or shocking behavior" or "repeated verbal humiliation and attacks."

These ideas have consequences. By 1982, largely due to lobbying by advocacy groups, a majority of states expanded police authority to make arrests in misdemeanor assaults which the officers had not actually witnessed--a move applauded by most law enforcement personnel and family violence researchers. But as the rate of arrest remained low, many states and jurisdictions began to go further and mandate arrests, a policy viewed with far more ambivalence. This trend has been boosted by the post-O.J. Simpson-trial attention to domestic abuse and by incentives for pro-arrest policies in the federal Violence Against Women Act of 1994.

Such policies have undeniably increased the number of arrests. It is far less clear, however, that they have had a significant impact on spousal abuse. Christopher Pagan, who was until recently a prosecutor in Hamilton County, Ohio, estimates that due to a 1994 state law requiring police on a domestic call either to make an arrest or to file a report explaining why no arrest was made, "domestics" went from 10 percent to 40 percent of his docket. But, he suggests, that doesn't mean actual abusers were coming to his attention more often. "We started getting a lot of push-and-shoves," says Pagan, "or even yelling matches. In the past, police officers would intervene and separate the parties to let them cool off. Now those cases end up in criminal courts. It's exacerbating tensions between the parties, and it's turning law-abiding middle-class citizens into criminals."

Many police officers agree--though all of those who were willing to discuss their misgivings asked that their names not be used, given the charged nature of the subject and their criticism of official policy. "We need domestic violence law but we need common sense, too," says a veteran small-town policeman in New Jersey. The officer stresses that he doesn't miss the days when a woman could be bruised or bloodied and you couldn't arrest the man unless she was willing to risk enraging him further by signing a complaint. But today, he says, the law has gone to the other extreme: "Sometimes the wife's begging, `Don't arrest him, the kids are here,' and you have to arrest."

It's not just male officers who chafe at having their hands tied. A woman I'll call Sally Gilmore, a sergeant on the nearly all-male police force of a working-class New Jersey town, feels that mandatory arrest rules often force cops to act against their better judgment. She recalls responding to a quarrel between a woman and her ex-boyfriend, who had come over to pick up his things. After being told that he couldn't be arrested for shouting at her, the woman suddenly "remembered" that he had also hit her and pointed to a bruise on her leg. "I asked, `When did this happen?' and she said, `Just now,'" says Gilmore. "Well, this bruise was days old. He said he didn't hit her. I basically knew she was lying, but I had no choice."

The effects of mandatory arrest are compounded by no-drop prosecutions. The assumption behind no-drop policies is that when women recant or refuse to press charges, it is out of fear or dependence. But reality is far more complex. The woman may feel, rightly or not, that she is not in danger and can handle the situation better without the complications of a legal case; or the lines between aggressor and victim may be blurred; or the charge may have been false, made in anger, and later regretted.

A counselor with a family violence intervention program in Florida who generally favors no-drop prosecutions saw this happen with her own daughter Angela--a troubled young woman with a severe drinking problem--and her live-in boyfriend. One evening, says the counselor, who also requested anonymity, an intoxicated Angela wanted to go out to buy more liquor: "Her boyfriend won't give her the money. So she goes out to the corner and calls the police saying he has locked her out--which he probably had because he didn't want trouble--and fills out a report saying he threatened her, she's afraid of him, and so on." The police took her home and arrested the young man. The next day, a now-sober Angela was appalled by what she had done and tried to back out--to no avail. With her mother's help, she hired a lawyer, and her boyfriend was eventually allowed to plead no contest.

These policies apply not only to violence between spouses or cohabitants. Shortly after Wisconsin's mandatory arrest law took effect, a Milwaukee mom was locked up for slapping her misbehaving teenage son. In 1996 in Missouri, a father was arrested and charged with assault because, after his 17-year-old son refused to get up early to mow the lawn, the father pushed the lawnmower into the teenager's room and started it up.

Curiously, battered women's advocates (and journalists who take their cue from the activists) continue to claim that police and the courts treat domestic abuse less seriously than non-family assaults. In fact, this may not have been true even prior to feminist-initiated reforms. In the 1992 book Policing Domestic Violence, University of Maryland criminologist Lawrence Sherman concludes that underenforcement of assault and battery laws was hardly unique to domestic violence. He cites data from the 1970s showing that police were reluctant to intervene in any violent personal dispute, be it a marital squabble, a neighborhood quarrel, or a bar brawl. All else (such as injury) being equal, the rates of arrest were similar for domestic and non-domestic cases. Certainly, more recent studies show no evidence of discrimination against battered women. Analyzing the handling of violent offenses in 1987-88 in Arizona, feminist criminologist Kathleen Ferraro found--to her own surprise--that while most attacks of any kind were either not prosecuted or were charged as misdemeanors, felony assaults were less likely to be dismissed if they involved spouses or partners (even though the victims in domestic cases were much more likely to request a dismissal). Nor did the victim-offender relationship affect the severity of the sentence.

Nowadays, however, some crusaders openly argue that domestic violence should be taken more seriously than other crimes. In 1996, the sponsor of a New York bill toughening penalties for misdemeanor assault on a family member (including ex-spouses and unwed partners) vowed to oppose a version extending the measure to all assaults: "The whole purpose of my bill is to single out domestic violence," Assemblyman Joseph Lentol said. "I don't want the world to think we're treating stranger assaults the same way as domestic assaults."

These arguments, however, are rooted in the paradigm of domestic violence promoted by the battered women's movement: the woman, powerless and trapped by economic or psychological dependency, is victimized by the brutal, domineering man who uses force to impose control. Certainly, some cases fit this model; but many others do not.

For one, the feminist paradigm ignores mutual combat and female aggression. Surveys by pioneering family violence researchers Murray Straus of the University of New Hampshire and Richard Gelles of the University of Rhode Island have found that half of all spousal violence is reciprocal while the rest is evenly split between female-only and male-only violence (though men are more likely to inflict serious damage). Those findings are confirmed by a host of other studies. Nonetheless, materials distributed by advocacy groups and used in training for judges, prosecutors, and police assert that 95 percent of domestic violence is male-on-female and dismiss mutual brawling as a "myth."

Because of this ideology, the War on Domestic Violence gets a bit schizophrenic when it comes to female aggression. Ironically, mandatory arrest laws have led to a rise in the number of women arrested for domestic assault, as sole perpetrators or together with their partners; in some states, women now account for about a quarter of all arrests. According to criminologist Lawrence Sherman, this "resulted in intensive lobbying [by battered women's advocates] not to arrest women regardless of probable cause to do so." In response, many jurisdictions have devised ways around formal gender neutrality.

In Michigan, for instance, when Susan Finkelstein told the arresting officer that she was at least as much the aggressor in their altercation as Jim, she was informed that the policy required arresting the larger of the two parties. More commonly, mandatory arrest laws are amended with a "primary aggressor" clause, which can be interpreted quite creatively: Sherman recalls an incident he saw in one of his field studies in which the man was arrested because he had yelled at his wife--even though she was the only one to actually strike a blow.

While battered women's advocates have had a major impact on the ways in which charges of spousal assault are handled by criminal courts, the reach of the War on Domestic Violence is still somewhat limited by constitutional protections for defendants. Perhaps the worst excesses of this crusade are found in the use and abuse of civil orders of protection, also known as restraining orders--which require lower levels of evidence and can be issued without the accused having a chance to defend himself.

Court orders prohibiting one party not only from harassing but, in some cases, from approaching or contacting another are not limited to domestic violence cases. Normally, getting such an order is a cumbersome process. But under abuse prevention laws, on the books in 48 states by 1988, restraining orders are easily available against current or former spouses or cohabitants and some other family members. (Whether the relationship is close enough to qualify--how about an ex-sister-in-law?--can become the key issue at a hearing.) In the last decade, many states have strengthened this legislation, further streamlining the process of obtaining an order, extending eligibility to people who had dated but not lived together, and toughening penalties for violators.

The basis for a restraining order need not include violence. In Massachusetts, over half of the 60,000 restraining orders in domestic cases issued every year do not, according to a 1995 state report, involve so much as an allegation of physical abuse. Elaine Epstein, past president of the Massachusetts Bar Association, recalls "affidavits which just said someone was in fear, or there had been an argument or yelling--not even a threat." In 1990, the state's highest court ruled that a restraining order had to be based on "reasonable fear" of "imminent serious physical harm"; but many judges don't like taking chances and are satisfied with a positive answer to the question, "Are you afraid of bodily harm by the defendant?" In New Jersey, abusive acts which qualify for a restraining order include verbal harassment (which need not involve threats).

Moreover, temporary restraining orders are granted ex parte, without the defendant being present or notified--much less informed of the specific charges. Supporters of current laws concede that getting an order takes very little evidence. "I think judges grant the restraining orders without asking too many questions," Massachusetts state legislator Barbara Gray, a sponsor of the original abuse prevention statute, told me in 1995. (Gray has since retired.)

Usually within 10 days, a hearing must be held to determine if the order will be extended for a year or more. That's when the defendant can tell his side--in theory. In fact, writes Boston attorney Miriam Altman, "the mere allegation of domestic abuse...may shift the burden of proof to the defendant." Hearsay is allowed; cross-examination may be limited; and, many lawyers say, the judge is unlikely to give serious consideration to exculpatory evidence. "I don't need a full-scale hearing," one judge told attorney (and Massachusetts state legislator) James Fagan when he brought witnesses disputing a woman's claim of harassment by his client. The only issue, the judge declared, was whether he felt the woman was fearful--"it isn't even who's telling the truth," he said.

The consequences of a restraining order for the man on the receiving end (and it usually is a man) can be quite serious. If he shares a home with the plaintiff, he will usually be ordered to vacate the premises. Any contact becomes illegal--in many states, a felony punishable by prison or fines (it doesn't matter if the "victim" agreed to or even initiated the contact). This can have particularly wrenching consequences when there are children involved.

Men who have had restraining orders issued against them on the basis of uncorroborated or trivial allegations have been jailed for sending their kids a Christmas card; for asking a telephone operator to convey a harmless message; for accidental "contact" at the courthouse; and for returning a child's phone call. The pressure on judges and prosecutors to be tough on violators comes not only from women's groups but from the media. In Massachusetts, the Boston Globe has been crusading tirelessly on the issue, while showing no interest in horror stories of restraining-order overkill.

While father-rights activists claim that most restraining orders are based on false claims, defenders of the law say that no more than 5 percent of the charges are false. That still adds up to about 2,000 a year in Massachusetts alone--hardly an insignificant figure when it's a matter of people being evicted from their homes, cut off from their children, sometimes jailed, and branded with the equivalent of a criminal record (their names are entered in the abusers' registry)--all without the safeguards of a criminal trial.

The policies in Massachusetts may be unusually tough, but they're hardly unique. Connecticut attorney Arnold Rutkin, editor of the legal journal Family Advocate, writes that judges tend to take a "rubberstamping" approach to protection orders, and the "due process hearings" held later are "usually a sham." A New Jersey woman whose estranged husband threatened to take "drastic measures" if she didn't pay the household bills--by which he meant having her telephone disconnected--was granted a permanent restraining order due to "harassment." When state appellate courts moved to curb these excesses, resulting in fewer restraining orders, an outcry from advocates was quick to follow.

When the advocates and their friends in the legislatures do acknowledge the potential for the misuse of restraining orders, it is usually to say that no safeguards can be adopted without endangering victims. As Barbara Gray told me, "You [would be] saying to a judge: On an emergency basis, you have to look at this woman and see whether you think she's telling the truth." Given the horrifying statistics on violence against women, says Gray, one can't take the risk of not taking all accusations seriously.

Some judges seem to share that attitude. At a 1995 seminar, dispensing advice to incoming municipal judges, Judge Richard Russell of the Ocean City, New Jersey, municipal court declared, "Your job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, see ya around. ...The woman needs this protection because the statute granted her that protection....They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell's comments, captured on tape and printed in the New Jersey Law Journal, raised a few eyebrows. However, he suffered no consequences beyond a mild chiding from the Administrative Office of the Courts. By contrast, recently in Maine, Judge Alexander MacNichol was denied reappointment by Gov. Angus King after battered women's advocates complained about his alleged insensitivity to women applying for restraining orders--which, the judge's many defenders said, meant simply that he listened to both sides of the story.

Beyond questions of civil liberties and due process, there is no proof that the crackdown prevents domestic homicides, the ostensible goal of hardline restraining order procedures. Nor is there evidence that it prevents serious assaults. A man who intends to kill a woman and either plans to take his own life or knows that he will face murder charges won't be deterred by the penalties for violating a restraining order, as too many headlines show. A 1984 study by Janice Grau, Jeffrey Fagan, and Sandra Wexler has concluded that the orders have a protective effect for women who were not severely victimized in the first place. If so, peddling them to women in real danger is like giving cancer patients aspirin.

"The restraining order law was changed to protect women who were really abused, but it doesn't work," says Sally Gilmore, the New Jersey police officer. "All it does is create an incredible amount of paperwork for the cops, and most of the time it's just revenge, or just to get him out of the house."

Indeed, it has become a commonplace among lawyers of both sexes that restraining orders are routinely misused as a weapon in divorces. It's hard to come up with reliable estimates of how frequently that happens. But given the advantages conferred by a restraining order, from possession of the house to virtually automatic custody of the children, the temptation is certainly there.

Robert Byers, a Georgia contractor, found himself embroiled in a particularly twisted saga. In 1993, his wife, Lori Anderson, left the state with their 8-year-old daughter. He soon learned that they were with her relatives in Massachusetts--and that the police there were trying to serve him with a restraining order. He went to Massachusetts for a hearing; his request for a continuance so that he could get a lawyer was denied, and the order was extended for a year, barring him from all contact with his wife or child.

Byers went home and filed for divorce. When the Georgia court had trouble locating Anderson to notify her of the custody hearing, he returned to Massachusetts and went to serve her with the papers. She called the police and he was arrested for violating the restraining order; unable to make bail, he was locked up for three months. Finally, he pleaded guilty to the violation in exchange for a suspended sentence.

In October 1994, Byers won custody in Georgia and went back to Massachusetts to petition for the return of his daughter. The next day, Anderson filed a complaint, alleging that he had loitered in her driveway and made threatening calls to her sister. This time, Byers was held without bail. In February 1995, he was found not guilty by a five-woman, one-man jury; the judge also threw out his earlier suspended sentence after reviewing the evidence.

Two hours after Byers's release, Anderson got a new restraining order. It's hard to tell how long this farce would have dragged on if a probate judge had not put an end to it by ruling that Massachusetts had to honor the Georgia custody decree. Byers was able to take his child home only after a total of nearly 200 days behind bars.

Stories like that of Byers, perhaps without happy endings, are likely to become increasingly common. Spurred by the O.J. Simpson case, the War on Domestic Violence has intensified in the past three years. The Michigan legislature, in a fit of O.J.-itis, decided to allow restraining orders to take effect as soon as they are issued, before the defendant has been served--which means that he can face criminal charges for something he didn't know was a crime, creating great opportunities for entrapment. Last June, California abolished a provision allowing defendants in misdemeanor domestic assaults to have the incident expunged from police records if they compensate the victim and undergo counseling--an option still available to the accused in other assault cases. In 1996, a new federal law made domestic violence the only misdemeanor for which a person loses the right to own a gun (with the spurious explanation that domestic assaults are more likely to be prosecuted as misdemeanors than non-domestic ones of equal gravity).

Undoubtedly, there are cases in which victims of intimate violence are badly let down by the system, sometimes with fatal results. But apathy and excessive zeal can coexist--just as horror stories of children yanked from parental homes on flimsy suspicions of abuse coexist with ones of abused children handed back to their tormentors. Indeed, when apathy and excessive zeal do coexist, the policy implications are often disastrous. Douglas Besharov, a child welfare expert at the American Enterprise Institute, compellingly argues that overzealous probes of frivolous claims of child abuse lead to underenforcement where action is needed most because the system is too bogged down in trivial pursuit to single out the serious cases.

It's probably the same with domestic violence. The system, says sociologist Richard Gelles, fails to differentiate between minor charges of abuse and cases rife with danger signs--such as the events leading to the death of Kristin Lardner, the daughter of Washington Post reporter George Lardner. (The former boyfriend who fatally shot her in May 1992 before killing himself had a long history of criminal behavior; yet after assaulting Kristin, he was not jailed, despite violating his probation.) Indeed, manipulators may be more likely to get the system to work to their advantage than real victims, too scared or too unsophisticated to navigate its channels.

Even if the dangerous cases are caught early, some people are going to be badly hurt or even killed by their mates. Such things are not always predictable. And we might ask, without creating a new "abuse excuse," whether being denied access to his children might not push a nonviolent person over the edge. "People with nothing to lose are dangerous people," says James Fagan, the Massachusetts attorney and state legislator.

The most obvious casualties of the War on Domestic Violence have been men, particularly men involved in contentious divorces. But it has also hurt many of the women who are its intended beneficiaries. Part of the problem is the one-size-fits-all approach to domestic violence. For many couples in violent relationships, particularly those involved in mutual violence, joint counseling offers the best solution. But if they have come to the attention of the authorities, it's one form of counseling to which they are unlikely to be referred. Couples therapy is vehemently opposed by battered women's advocates--ostensibly out of concern for women's safety, but also because of the implication that both partners must change their behavior.

A few years ago, James Dolan, first justice of Dorchester District Court in Massachusetts, warned that the system may be engaging in "benign abuse" by "denying women the right to continue a relationship without submitting to the authority of the court." Dolan may have been stretching the term abuse, but quite a few women might agree with his assessment.

And then there are the women who, often on the basis of a misunderstanding or a single, trivial incident blown out of proportion, are labeled as victims against their will. "It was very paternalistic, even if women were involved in the system," says Susan Finkelstein, reflecting on her experience. "At one point, I told a prosecutor that I didn't appreciate being told what was best for me by someone who didn't even know me. She said, `It strikes me as odd that you don't appreciate the fact that we're trying to protect you.' What I said didn't matter. It seems so ironic that in trying to give women a voice, they are taking away their voices."

Contributing Editor Cathy Young is vice president of the Women's Freedom Network. Her book Ceasefire: Beyond the Gender Wars will be published next year by The Free Press.