Tuesday, August 9, 2011
Elaine Chiu (Saint John's University - School of Law) has posted That Guy's a Batterer!: A Scarlet Letter Approach to Domestic Violence in the Information Age (Family Law Quarterly, Vol. 44, p. 255, 2010) on SSRN. Here is the abstract:
Today we use the Internet to do everything: buy groceries, make vacation plans, download music, catch up on the news, etc. It comes as no surprise then that we also use the Internet to find love. There are Internet dating sites, social networking sites, personals on Craigslist and Yahoo, etc. There is even a booming dating security industry online that provides identity and background checks. So, if a person can learn the hobbies and favourite colors of a prospective romantic interest from their Facebook page, why shouldn’t they also be able to know if there is a history of domestic violence?
This article proposes that states open up their databases to allow private individuals to find out whether a person of interest has ever had a final order of protection issued against them for domestic violence. The goal is to empower potential victims of domestic violence with this critical information so that they can avoid an intimate relationship that may lead to years of suffering and abuse.
This proposal is novel for two reasons. First, the existing discussion about public access to criminal or pseudo-criminal information considers only the business interests of employers and landlords, the First Amendment freedoms for the press and other media, the privacy rights of convicted individuals and the need for successful reentry of criminals back into society. What has not been articulated is how access to criminal records is critical to the vision of criminal justice as a compact amongst individuals that governs and guides behavior and choices. This proposal focuses on access to information about final orders of protection as a tool of empowerment for individuals to prevent the harm of future domestic violence. In so doing, it restores a vision of the criminal justice as a public social compact in this digital age of information.
Second, the proposal brings a new direction to domestic violence policy. For the past several years, there has been an earnest debate over whether the legal reforms of the 1970s, 1980s and 1990s have been effective at reducing harm to women or whether these reforms need to be reformed themselves. Both sides agree that the primary legal approach thus far has been to use the criminal justice system to combat intimate abuse. Opponents of this approach have focused on mandatory arrest and prosecution policies as state - sponsored violations of victims’ autonomy. This proposal gives victims or more accurately, prospective victims, an additional tool to avoid known batterers and intimate violence in their lives. It respects the autonomy of women because women can choose not to use the database or if they use it and discover negative information, women can also choose to ignore it and still have intimate relationships with known abusers. The choice is entirely up to them. If they are abused despite the availability of this information, other legal mechanisms such as mandatory arrest and custody presumptions will still be there for them. While optional, the proposal is still meaningful and carries consequences that are as serious and threatening as those in the original criminal justice approach. A public identity as a known batterer is no small matter. In fact, the severe nature of the consequences will lead to both general and specific deterrence of batterers.
In Part I, I begin with a discussion of the current stalemate in the movement against domestic violence and in particular, reflect on the effectiveness of orders of protection. I conclude with a look at the disturbing ramifications of the Supreme Court case, Castle Rock v. Gonzalez. Part II offers a detailed vision of why and how the proposal to grant broader access to information about final orders of protection will work with the realities of domestic violence. It is a preemptive measure that respects the autonomy of individual victims while also ensuring societal interests in public condemnation of domestic violence. Finally, Part III addresses the anticipated concerns of domestic violence victim advocates as well as those who are worried about the consequences for the reentry of criminals and individual privacy.