Thursday, January 31, 2013
Tamara L. Kuennen (University of Denver Sturm College of Law) has posted Recognizing the Right to Petition for Victims of Domestic Violence (Fordham Law Review, Vol. 81, p. 837, 2012) on SSRN. Here is the abstract:
Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide-protection from harm. That right, recently described by the Supreme Court as "essential to freedom," is the right "to petition the Government for a redress of grievances" guaranteed by the First Amendment.
This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV victims that flow directly from calling the police, thereby creating an impediment to the right of victims to petition. The vast majority of DV victims do not report the violence to the police. Feminist legal scholars and policymakers widely acknowledge that this underreporting is a major roadblock to the justice system's ability to effectively address DV.
The underreporting problem is most severe with battered mothers. In many jurisdictions across the country, police report battered mothers to Child Protective Services (CPS) as a matter of course, without any investigation of actual risk to the child. The practice serves a wellintentioned goal: by referring all DV cases to CPS, the police bring to the attention of the state at-risk children who might otherwise fall under the radar. However, given the notorious treatment of DV victims and their children by CPS, a significant number of victims choose not to call the police at all, for fear of having their children taken away.
In addition to the chilling effect on victims' calls for help, a sweeping practice of reporting all DV calls to CPS inundates the agency with reports it must, by law, investigate. In the last decade, 60 percent of the reports made each year were unsubstantiated. While an across-the-board, "reportall" policy may be motivated by a praiseworthy goal, a reporting practice that produces fewer, but more accurate, referrals to CPS would provide greater protection to children. The Petition Clause requires as much.
This Article lays out the claim that these systemic barriers to reporting DV create such a significant impediment to calling the police that they violate the right to petition. It first defines the right to petition, reviews its history and purpose, and demonstrates that it has been overshadowed by, and confused with, the right to speech. Building on the growing body of scholarly literature suggesting that this should not be so, the Article shows that, while the rights of speech and petition overlap, they are not coextensive. Judicial analysis of the right to petition should not be identical to that of speech. Rather, in evaluating petition claims by DV victims, the courts should apply strict scrutiny analysis: only by proving a compelling state interest and the use of the least restrictive means for achieving that interest should government policies that infringe upon a victim's right to call the police survive. Furthermore, even under a less-than-strict level of scrutiny, the report-all practice should be unconstitutional. The Article concludes by identifying other government practices that deter victims' reports that might implicate the Petition Clause. It then discusses the broader, political implications of viewing a call to the police as an invocation of a constitutional right to petition and makes the case that the right to petition has as of yet untapped potential for feminist legal scholars and policymakers addressing DV.