Tuesday, April 3, 2018
In our third commentary on gun violence and its aftermath, Prof. Margaret Drew notes that the desire for revenge and accountability following mass shootings and other crimes often results in prosecutors charging intimate partners of the shooters.
Noor Salman was punched, verbally degraded and sexually assaulted by her husband throughout her marriage. She was kept under lock and key by her in-laws following her husband's crimes. Ms. Salman had the misfortune to be married to the Pulse Nightclub killer.
If the connection between domestic abuse and mass murder had not been clear at the time of the Pulse nightclub killings, it certainly is undeniable now. To imagine that someone so horribly abused would have an ability to persuade her husband out of his violence, or even have the ability to contact police when under the threat of death herself, defies any understanding of the impact of trauma and specifically the dynamics of intimate partner abuse.
According to the The Intercept, "the underlying phenomenon of abuse-to-criminalization is remarkably commonplace. Almost 80 percent of women who are currently in federal and state prisons were victims of physical or sexual abuse before their incarceration. And the Correctional Association of New York, which has been monitoring New York prisons since 1846, estimates that around 75 percent of incarcerated women have experienced severe abuse at the hands of an intimate partner during adulthood." Ms. Salman is not alone. Victims are charged with the crimes of their abusers more frequently than the public is aware.
Marissa Alexander was convicted in 2012 of aggravated assault for firing a warning shot at her long abusive husband. "There are other situations that lead to charges against abuse victims: Many women are charged with failure to protect their children from their abusive partners, or for failure to report the criminal activity of their abusers to authorities. Others, like Salman, are charged with aiding and abetting their abusers in crimes they didn’t commit themselves. In many of these latter cases, victims face prosecution for felony murder if they were present when abusive partners killed their children, family members, acquaintances, or strangers"
As in the Salman case, charges are often brought even when the perpetrator is dead. Conspiracy laws are used to sweep victims into the law's net for a variety of crimes, when a victim's only act was to cohabit with the perpetrator.
In these instances, prosecutorial discretion was misguided. Rather than investigate and become educated on the dynamics of abuse and the impact of trauma, the prosecutors adopt the same victim blaming stance that historically has kept abused women from receiving adequate help to become independent.
Ms. Salman''s acquittal brings some comfort that judges and juries can sort out the difference between aiding and abetting and entrapment.
But sometimes it is impossible to sort the difference between an uninformed prosecutor and those who callously overreach in the name of the state.
Tuesday, January 17, 2017
Russia has taken the first step to de-criminalize much of domestic violence. The pending bill would de-criminalize acts of abuse that do not result in "serious injury" and would apply not only to intimate partners but to children. Such matters will be treated administratively for first offenses.
The bill was introduced by attorney and member of parliament Yelena Mizulina who in the past has
sponsored anti-gay legislation and other legislation preserving "traditional" family norms. Traditional, of course, should be interpreted as anti-human rights.
While there is no central data base in Russia tracking domestic violence, one source estimates that domestic violence happens in 40% of Russian households with 36,000 women beaten daily by intimate partners. 12,000 Russian women die from domestic violence each year.
Women in the US are experiencing more than a backlash. Women report dramatically increased sexual harassment and sexual assaults post election. This is not a climate where women can expect legal protections to be either maintained or enforced. The incoming U.S. government has expressed admiration for Russia. Will this include promoting and mimicking the pending Russian anti-female legislation? You know how friends can influence friends.
Wednesday, December 28, 2016
New Bedford and Fall River, Massachusetts passed resolutions declaring freedom from domestic violence a fundamental human right.
The resolutions, passed in November, resulted from the work of UMass Law students enrolled in the school's Domestic Violence course. The students did amazing work and were divided into teams, one for Fall River and one for New Bedford. Any professors considering assigning adoption of the DV-HR resolution as a class project, will find the process a beneficial one, as will the students. Students report unexpected results, not the least of which is realizing the benefits of local action on a universal human rights project.
Some student reflections follow:
"My initial understanding of the resolution, specifically why DV should be recognized as a basic human right definitely changed. As we read more and more material, it becomes obvious that although people recognize that DV is bad, attaching a human rights label forces it into the consciousness of a wider group. Instead of being labeled as a family or local problem, it becomes a national and international issue that necessitates action."
"As we began to work on background research for our project, I felt myself becoming more interested and vested in creating the resolution. I had never worked on one prior to this course, so the task still seemed quite daunting to me. Looking back, this experience was not what I was worried it would be. I learned, I changed, and I left the meeting inspired to begin working on a similar resolution for my native city."
"This is one of my favorite projects during my law school career because I feel like we did something that will be beneficial to members of the Fall River and New Bedford communities, now and in the future."
"In order for the communities to stand up and take its rightful place, they must first be aware of the presence of domestic violence in their community and the complexity of the issue. I believe drafting the resolution is definitely taking the right step in the right direction."
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Sunday, February 28, 2016
Although Matter of A-R-C-G-, the landmark Board of Immigration Appeals (Board) decision, gave women fleeing domestic violence a pathway to asylum, survivors continue to be routinely denied asylum by immigration judges who interpret the decision narrowly.
To address this problem, the Harvard Law School’s Immigration Refugee Clinical Program, the Center for Gender and Refugee Studies at the University of California Hastings College of Law (CGRS), and a number of prominent NGOs and immigration law experts have encouraged the Board to designate as precedent certain unpublished decisions related to domestic violence-based asylum claims. See Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22(1) SW. J. Int'l L. (forthcoming). The Board publishes only a limited number of decisions per year. For example, last year it published only thirty-five. The Board has sought comments for this request from the lawyers of record of those unpublished cases (including one of the authors of this post), suggesting it is taking this request seriously.
We have seen first-hand the consequences of narrow interpretation of Matter of A-R-C-G- at the IJ level. Catholic Legal Immigration Network, Inc. (CLINIC) referred “Jimena” to us at Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic. Jimena, is a Salvadoran woman who was repeatedly raped, beaten, and stalked by her long-term partner. The severe abuse continued even after their relationship ended and Jimena fled with her children. On several occasions, Jimena’s former partner hunted her down and even managed to find her when she went to Guatemala. Even years after Jimena left, her former partner would appear on her doorstep, attack her, and tell her that she was his property. Jimena obtained a restraining order and called the police numerous times, but her abuser was never arrested. Worse still, the police often refused to intervene, telling her this was a private matter, best resolved between the couple.
Although Jimena’s story was nearly identical to that of A-R-C-G-, the immigration judge declined to grant asylum because Jimena, unlike the respondent in A-R-C-G-, was not married to her abuser. On appeal, the Board held that Jimena still qualified for asylum on the basis of domestic violence, despite being unmarried. The Board decision further clarified that the police’s failure to intervene satisfied the state nexus requirement.
But this decision came after Jimena had already been detained for more than a year. During that time, she was sentenced to solitary confinement for 30 days for a minor infraction (without proper process), which resulted in her near-mental collapse. Because of her distress, she was unable to eat while in solitary confinement. When the guards found her uneaten meals, they threatened to confiscate her clothes and her bed. The idea of having her clothes removed caused her so much anguish that she asked us to withdraw her appeal before the Board. Fortunately, the detention center placed her back with the general population after only a few days, perhaps because they realized the punishment had been overly severe and instituted without proper process. There, in a less-distressed state of mind, Jimena reaffirmed her desire to seek asylum. The Board granted a reinstatement of her case and ultimately granted her asylum. Nevertheless, a woman with a meritorious asylum claim, who faced extreme danger if returned to El Salvador, almost gave up this claim merely because her detention was so prolonged and traumatizing.
We strongly encourage the Board to publish precedent decisions that clarify and extend Matter of A-R-C-G-. Doing so would ensure that women like our client, who have meritorious claims, do not languish in prison-like detention centers because of immigration judges who are reluctant to apply the underlying principles of Matter of A-R-C-G and who instead interpret it as only giving a pathway to asylum for married women from Guatemala. It will also promote judicial efficiency.
While designating more decisions as precedential is essential, to truly secure the pathway for domestic violence-based asylum claims, one of the authors has argued elsewhere that more drastic measures are needed. A solution this author proposes is finalizing the Department of Justice regulations that have been pending since 2001. Carolyn Wald, Does Matter of A-R-C-G- Matter that Much?: Why Domestic Violence Victims Seeking Asylum Need Better Protection, 25 Cornell J.L. & Pub. Pol'y (forthcoming).
The consequences of continuing to allow immigration judges to decide domestic violence-based asylum cases without further guidance is already apparent. It is imperative that something be done to prevent more women with meritorious cases from having to endure lengthy detention while the BIA considers their appeal.
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Tuesday, November 10, 2015
Prof. Jill Engle reported the following: Joining a growing national movement, the Mayor of State College and the City Council declared Freedom from Domestic Violence a Fundamental Human Right and adopted a declaration that provides chilling statistics on the frequency of domestic violence. One statistic that is particularly disturbing is the range of age- 2o days to 92 years- of those who were killed because of family violence.
Prof. Engle was joined in this endeavor by Courtney Kiehl, a former student and current fellow in the Family Law Clinic directed by Prof. Engle. Courtney gives her personal account of her commitment to the project:
I came to law school because of my experience working with victim-survivors of sexual and domestic violence. I’ve seen cuts, bruises, scars, and fingers that had been broken so many times that the bones would never lay straight again. I’ve seen the emotional impact that goes far past the skin’s surface, the relentless fear, devastation, broken hearts and families. I’ve held the hands of young children as I walked them in to the courtroom and I’ve sat beside them as they testified about the violence they’d seen. For over a decade, this has been my world. I’ve dedicated myself to one mission, one goal: creating a world free from gender-based violence.
On October 12, 2015, that goal moved a little closer when my university town of State College, Pennsylvania joined the growing list of local government bodies across the country that have declared it is a fundamental human right to live free from domestic violence. These proclamations raise awareness and demonstrate support for a new, human rights-based approach to domestic violence. Further, these proclamations highlight the responsibility of local government to address domestic violence while acknowledging the important role they play in keeping their citizens safe.
The human rights proclamation was a policy project started by students in Penn State Law’s Family Law Clinic, where I’m currently doing a fellowship. In 2013 a clinic client, Tracy Raymond Miscavish, was killed by her estranged husband. This project has been deeply important to me and to each student who has worked on it.
During my second year of law school, I was fortunate enough to be a student in the Family Law Clinic
Thursday, October 29, 2015
In 2003, Alabama hairdressers were trained in domestic abuse so that they could assist their clients who found themselves in abusive intimate relationships. The program, a creation of the Women's Fund of Birmingham and the Alabama Coalition Against Domestic Violence, spread across the country thanks to the National Cosmetology Association. Training programs have reached hundreds of volunteer salon workers, training them in how to talk with and help clients experiencing domestic violence. CUT IT OUT Salons Against Domestic Abuse is, according to its website, "dedicated to mobilizing salon professionals and others to fight the epidemic of domestic abuse in communities across the U.S. by building awareness and training salon professionals to recognize warning signs and safely refer clients, colleagues, friends and family to local resources."
Now two Illinois legislators are proposing a law that would require cosmetologists to take mandatory domestic violence training as part of license retention. Setting aside the inadequacy of the proposed one hour of training, the proposed legislation is an interesting example of the soft misogyny addressed earlier this week. What began as a voluntary effort is at risk now of becoming an obligation. And who are the targets of this legislation? Primarily women. Under the law, nail technicians, hairdressers and cosmetologists would be subject to the training. Absent from the list are barbers. Once more the women are given responsibility for addressing what is a predominantly male problem. For every female survivor of abuse who frequents a hair salon, a male survivor or male perpetrator is sitting in the barber's chair.
Could these legislators think of other professionals who should be required to receive domestic violence training? Judges, doctors and lawyers come to mind. Yet, "Say No More", a Chicago organization dedicated to ending domestic violence and sexual assault, supports the bill proving Prof. Dunlap's point that sometimes advocates for survivors fail to anticipate the unintended consequences.
At hearings on the proposal, one lone representative, Chicago City Alderman Willie B. Cochran, attempted to turn the focus to the vital resources needed by survivors. No response was had. Cochran noted the complexity of domestic abuse and the financial and other supports desperately needed by survivors. In a local report of the hearings, writer Phil Kadner said that "Cochran's concerns about providing adequate support for victims of domestic violence should not be ignored. Good intentions are wonderful. But follow-through is essential and often lacking, even when government officials are well-intentioned." Soft misogyny indeed.
Monday, October 26, 2015
Domestic violence "reforms" often have results that even some advocates may not have anticipated at the time of enactment. Others, however, harm survivors of intimate partner abuse and range from patrimony to misogyny. In her new article, Soft Misogyny: The Subtle Perversion of Domestic Violence Reform, Prof. Justine Dunlap examines some of these not so helpful "reforms".
As Prof. Jane Stoever wrote in her article Stories Absent from the Courtroom, "Suggestions for reform must always ask whether a particular policy creates more harm to survivors, greater gender subordination, or other problems, and whether it makes the next step of women’s liberation harder."
For example, the definition and applicable categories of petitioners for abuse prevention orders has expanded well beyond the intimate relationship. Household members, those related by blood and various other categories of individuals may apply for protection under the statutes of many states. The consequence has been to dilute both focus and understanding of the dynamics of intimate partner abuse. The dynamics of one intimate partner abusing another is not the same as two cousins who engage in a fist fight. Both the causes and remedies are different - as is risk. How are we to convince judicial officers of the need to study the special dynamics of intimate partner abuse when a legislature has determined that many different forms of abuse can be addressed in one statute.
Another perversion, and one that appears on the upper end of the misogyny spectrum, is the misinterpretation by civil courts of criminal proceedings. For example, in civil court, a survivor's credibility is often determined on whether or not the survivor prosecuted the criminal domestic violence complaint and, if so, whether or not the defendant was adjudged guilty.
As Dunlap writes: "Another path to understanding these unfortunate consequences relies on something deeper and more challenging: the implicit bias of soft misogyny. There are of course straight-out misogynists, whose hateful screed can be dismissed or laid bare-- pure and simple. But that known hatred is easier to combat, because it is obvious." But the more difficult situations are those created by well-intended people.
The soft misogyny borne of implicit bias will be nigh on impossible to erase. Because it occurs without the conscious awareness of the part of the holder, we must first name it in order to have a chance at erasing it. Once named, an opportunity opens up. By naming it, its presence is made real. By naming it, then talking about it, we can move to a new understanding of its perverse effects. By naming it, perhaps we will create the willingness to listening honestly to survivors, rather than to twist and discount their narratives so that they fit into our (mis)understanding. By naming it, perhaps we create societal ears that can hear and acknowledge the deep roots of intimate partner abuse.
Editors' Note: Prof. Dunlap's article will be published this winter by Seton Hall Law Journal.
Tuesday, July 21, 2015
The killing of five - four marines and one Navy sailor- in Chattanooga was immediately classified as an act of terrorism for purposes of investigation.
The violence certainly was terrorism, but not of the sort government investigators had in mind. Domestic terrorism has long been a favored term of many who advocate against domestic violence. Terrorism was at the root source of the Chattanooga killings.
As described in court documents, Muhammad Youssef Abdulazeez, the shooter who also died, grew up in a home where his father severely abused the mother and abused the children as well. The children were abused directly and also by being in the home when their mother suffered horrific beatings and sexual assault.
CBS news on-line reported that Mr. Abdulazeez' mother filed for divorce in 2009. In court pleadings she stated that "there are five children in the family and her husband, Youssuf Saed Abdulazeez, had repeatedly beaten her, at times in front of them. " Rasmia said on one occasion, she was beaten so severely she fled their home and went to a crisis center. She requested a restraining order and custody of the youngest child. In the documents, Rasmia also stated that she was sexually assaulted by her husband while the children were in the home. The documents allege that, on occasion, Youssuf had also been abusive towards the children, striking and berating them without provocation or justification."
Eliminate violence in the home and the remaining terrorism may disappear.
Friday, July 3, 2015
Ohio v. Clark is a lesser reported, but as significant as any, case decided this Supreme Court term. This case raises concerns regarding an often unprotected class: children.
Three year old L.P.arrived at pre-school with bruises. When his teachers spoke with him, L.P.indicated that his mother’s boyfriend, Clark, hurt him. L.J.’s statements were admitted at trial and Clark was convicted. The fundamental issue before the Court was whether the child’s statements were properly admitted, particularly in light of Crawford v. Washington. In a 9-0 opinion, the Court held that the statements were properly admitted. In doing so, the Court relied on Crawford’s applicability only where statements are testimonial in nature and made for purposes of substituting for live witness testimony. The Crawford test presumes that the speaker is available for trial. “This Court’s decision in Crawford v. Washington, … held that the Confrontation Clause generally prohibits the introduction of 'testimonial' statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A statement qualifies as testimonial if the "primary purpose" of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
L.P. was deemed unavailable for trial due to his young age. Neither the setting of the questioning nor the reason for the inquiry supported the responses as testimonial in nature. The use of L.P.’s statements at trial was not, then, in violation of the Sixth Amendment’s Confrontation Clause.
The opinion is important because it enhances the ability of the state to protect children through prosecution of their abusers.
However, what is significant for those who represent abused parents is the often judicially ignored connection between abuse of a woman’s children when the mother herself is abused. The Supreme Court implicitly noted the interconnectedness. Justice Alito’s opinion begins: “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.” L.P.’s bruises were discovered the very next day.
Forced prostitution is often a tool of intimate partner abuse. Experienced advocates have heard client disclosures of being forced into sex work by the current or former intimate partner. The culture may refer to men such as Clark as “pimp”, but to someone such as L.P.’s mother he is “boyfriend”.
To researchers, the child abuse was predictable. When a mother is abused, the chances that her children will be abused hovers around 50%. Some studies place the risk higher. How heartening it would be for the U.S. Supreme Court to explicitly acknowledge this connection, even in a footnote. Advocates for abused mothers would find their work in family court so much easier if only one SCOTUS case supported the empirical data that family courts so often ignore.
Thursday, June 11, 2015
“Trauma is not random. Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest). Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex). Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.
Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume those involved in the legal system are capable of linear, non-traumatized planning and reasoning. Juvenile law is one example. Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities. Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles. These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles. The status of the defendant's brain development should drive any decision on prosecution charging and sentencing. But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender.
Similarly judgments are made regarding traumatized adults. Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma. Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order. Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans. The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.
Human rights theories are difficult to argue successfully in these settings. Triers of fact and others often disregard and disrespect traumatized individuals who appear before them. Whether this behavior results from a lack of information or a disregard of literature is irrelevant. The outcome is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization. Motivation is not important. State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma. State perpetration of re- traumatization is a violation of fundamental human rights. And it is not random.
Tuesday, June 2, 2015
This week, the Supreme Court of the United States issued its opinion in Elonis v. United States. Mr. Elonis was convicted of making threats under 18 U.S.C. 875(c), which criminalizes threats to harm another person. On Facebook, Mr. Elonis had posted statements interpreted as seeking to kill his estranged wife. He referenced an elementary school as well as harm to former co-workers. Before these writings were posted, Mr. Elonis' wife had left him along with their children. Following the postings, Mr. Elonis was fired from his job and Mrs. Elonis obtained a civil protection order.
The Supreme Court reversed Mr. Elonis' conviction.
In an opinion which eight of the nine justices joined or concurred, discussion centered on the level of proof the government must show to demonstrate the defendant's intent. The statute under which Mr. Elonis was charged was silent on this issue, and therein was the problem.
The Court acknowledged that absence of a standard does not invalidate the section of the statute under which Mr. Elonis was convicted; what that standard should be was a source of disagreement. The government argued that only two elements need be proved: that the person making the statements understood the context and content of the words and that a reasonable person understood those words as a threat.
If the reasonable person standard brings you back to first year law classes, then you remember its use in civil litigation. The reasonable person properly belongs on the civil side of the law. Prosecutorial introduction of the reasonable person standard to determine criminal culpability is inappropriate. Some evidence of the defendant's mental state must be proved. Just what level of proof that is remains unaddressed.
The court neither defined what the standard should be nor gave instructions to lower courts on how to divine the proper standard. We do not know where this decision leaves Mr. Elonis and others who may be charged criminally for cyber threats, but we do have a good sense of where this leaves Mrs. Elonis and other survivors.
Mrs. Elonis was afraid when she saw references to her death in her estranged husband's postings. Her fears were all the more understandable when he posted a diagram of her residence and discussed the best direction from which to send a mortar shell into her house.
There are other signs that Mrs. Elonis was in danger. Mr. Elonis newly claimed that he was a "rapper" and such status gave him license (and cover) for any words he posted. If Mr. Elonis had a long history of rapping, the argument might be credible. But abusive partners often claim new interests (for example, in the children) once separation occurs as a way of continuing control of the partner. Mr. Elonis' claim of being a rap artist was a ruse. To the unfamiliar, this may not indicate danger. But to a survivor, a partner morphing identities to adapt to circumstances that will enhance the partner's goals is alarming.
Mr. Elonis may have had no intention of killing his estranged wife, or of having another person kill her. The emotional upheaval that perceived threats of harm cause would be sufficient satisfaction for most abusers, even if that satisfaction was temporary. Mr. Elonis would be not guilty of a threat to do physical harm. But what Mrs. Elonis knows is that the posted messages emotionally control her. For her, this was a "true threat".
Mrs. Elonis sought the civil remedy of a protection order. There is no evidence that she initiated prosecution. Her husband's co-worker brought the postings to the FBI's attention. Yet she is now in the mix of those whose state protection may change following entry of the the Elonis decision. The case ought not deter local prosecutions where state statutes are more artfully crafted in determining intent and other standards. Nonetheless, prosecution vehicles may shift. Disguised threats occurring after entry of a protection order can be prosecuted as a violation of that portion of an order prohibiting a partner from abusing the petitioner and from communicating with her.
While violation of protection order may be perceived as a safer prosecution route, what prosecution vehicle will be available should the target not wish to seek a protection order is unclear.
Even more serious difficulties for survivors will result from the interpretation that civil trial courts are likely to assign to the case. Civil courts routinely conflate the "beyond a reasonable doubt" standard with the more common "preponderance of the evidence" standard when hearing civil domestic abuse matters. This is particularly so where collateral criminal cases exist. The Elonis decision inadvertently enhances this confusion. Civil courts are influenced by criminal findings and decisions even where the application of those findings is not relevant in the civil matter.
First amendment concerns may similarly compound civil courts' confusion. While the Elonis court did not reach free speech arguments, survivors can expect constitutional concerns to be raised in hearings involving internet posts. Some states are beginning to address those concerns. No doubt an internet free speech defense to threats charges will present to the Supreme Court soon, most likely in the criminal context.
Domestic abuse survivors can expect to be caught again in the civil/criminal crossfire.
Thursday, May 14, 2015
Arrest and criminal prosecution; civil protection orders; judicial trainings. Necessary band aids resulting from our refusal to address cultural change . As sincere as individual state actors may be in extending relief to those who experience intimate partner abuse, the efforts are overstated in significance. Legal process is responsive to immediate need and danger, but is inadequate to provide long term help or autonomy. Intimate partner abuse largely impacts the lives of women. Current legal responses permit systemic players and the public to believe that they are protecting a vulnerable population. And in part, we do address some of the needs of those who experience abuse. As a culture, we are good at "rescuing" women when they are in crisis but rarely provided them with the supports that will actually help them attain autonomy.
Appearance drives public consciousness.
Unseen is how the experience of intimate terrorism ultimately boomerangs on the target. Survivors are provided with insufficient financial support. The result is that the stress of financial insecurity and other adverse conditions are not relieved. Largely, the limited legal remedies do not free the psychic and emotional energy that permits individuals to implement realistic options to escape poverty and abuse.
If we truly wish to end intimate partner violence and gender discrimination, more radical remedies are needed. We need to change how we raise our boys. Are we willing to take that on?
Tuesday, May 5, 2015
South Carolina has long been a dangerous place for women, particularly those in intimate partner relationships. The Carolina Post & Journal took on the topic and was awarded a Pulitzer Prize for its efforts. The series, Til Death Do We Part, explored the state's history of sanctioned violence. South Carolina is a state leader for the number of women murdered by men, and on some occasions it has been No. 1. In the latest report, South Carolina was ranked No. 2.
The Post & Journal's investigators studied 300 deaths of females by current or former intimate partners over the past decade and exposed a legal system in which first-time offenders face at most 30 days in jail for a domestic violence beating but can get five years in prison for cruelty to a dog.
There you have it in a nutshell, folks.
And the problem exists in all U.S. jurisdictions.
The solution to domestic abuse will come only when we examine how we are raising our boys. And we must be willing to do something about it. Until civil society is willing to fund effective interventions with boys, including examining why we do not consider verbal degradation of women in front a children as child abuse, little change will be made.
The effort would require a huge culture shift. We would have to admit what survivors have been saying all along: verbal and emotional abuse is far more damaging, and far more difficult to recover from, than physical abuse. Non-physical forms of violence are prelude to serious physical injury and death. We would have to overcome our fears of invading privacy when physical abuse may not be involved. Mostly, we would have to let go of our stereotypes of what constitutes abuse and open our minds to a paradigm shift.
You may listen to the entirety of the Smith interview here.
Tuesday, April 14, 2015
On March 17 of this year, Florida resident Michael Bigwood drunkenly pounded on his ex-wife’s door and demanded to speak with her, in violation of a domestic violence protective order. On June 7 of last year,Daniel Diaz Deleon fired six gunshots into the walls of his Denver, Colorado home while his wife and children cowered in the bathroom. This past November, George Holcombe threatened to kill his wife in front of their child and two police officers from the Philadelphia police force.
These three men have something in common other than committing acts of domestic violence: all were active duty police officers at the time they committed their crimes.
Police officers are trained how to intimidate and interrogate suspects, conduct surveillance, find people who don’t want to be found, and use force without causing serious injury — all valuable and important skills when used to protect the public. But when used against an intimate partner, such efforts can be devastating. Studies and various academic papers dating as far back as 1991 and continuing through 2006 suggest that police officers commit intimate partner violence two to four times more often than the general population.
This has some stark implications for victims, even beyond the initial abuse they suffer. For one thing, in a society in which the primary response to domestic violence is to call 911 and proceed through the criminal legal system with cops acting as the go-betweens, the partners of police officers often have nowhere to turn when they are victims of domestic violence. Police officers know the locations of domestic violence shelters and often have collaborative relationships with the staff, which means that the partners of police officers suffering from intimate violence don’t see women’s shelters as viable options.
Officers can also appeal to the “blue wall of silence” to protect fellow officers from intervention in domestic violence situations. Few police departments, in fact, have specific policies for responding to intimate partner abuse perpetrated by one of their own. A study by Kimberly Lonsway in 2006 found that only 29% of police departments had any policy at all, despite the efforts of the International Association of Chiefs of Police, which, in July 2003, promulgated a model policy that adopts a “zero tolerance” stance on officer-involved intimate partner abuse and sets forth procedures for prevention and training, early warning and intervention, incident response, victim safety and protection, and post-incident administrative and criminal decisions.
There is a significant overlap between police officers who commit intimate partner abuse and officers who commit other forms of violence.In their study of media reports of officer-involved domestic violence between 2005 and 2007, officer-turned-academic Philip Stinson and professor John Liederbach found that almost 22% of the officers accused of domestic violence had also been named as defendants in federal civil rights police misconduct claims.
This is not wholly surprising: Officer-involved domestic abuse arises, in part, out of the hyper-masculinized world of policing, which often not only tolerates, but encourages, the kinds of attitudes and behaviors that undergird intimate partner violence. From the minute they enter the police academy, even when the training is facially gender neutral, police officers are expected to adhere to a form of masculinity that devalues and objectifies women. In their 2002 study of one law enforcement training academy, sociologists Anastasia Prokos and Irina Padavic found that male recruits at this academy regularly belittled and objectified women, adopting the phrase “There outghtta be a law against bitches” as their mantra when joking about female police recruits and women generally.
Male recruits at this academy also downplayed the seriousness of violence against women, ignoring the content of a domestic violence training film in order to rate the attractiveness of the actresses playing roles in that film. (This type of verbal degradation can continue even after officers leave the academy; criminologist Susan Miller, in her 1999 book “Gender and Community Policing: Walking the Talk,” describes how, in a progressive, diverse law enforcement agency, female officers were “still privately classified as ‘bitch,’ ‘whore,’ ‘dyke,’ or ‘prude,’ and never seen as just another officer.”)
Despite the high rates of intimate partner abuse by police officers, incidents of officer-involved abuse are treated as isolated events, rather than part of a systemic problem. Every day, one can find individual news stories about cops who are abusive, but policy makers and domestic violence advocates generally don’t explain how police culture creates an atmosphere in which abuse flourishes. Considering the resounding silence from policymakers, and the lack of any outcry about the fact that most law enforcement agencies don’t have any policy, officers are largely able to act with impunity because of their centrality in the legal and policy solutions to intimate partner abuse in the United States.
Since 1984, federal policy and funding have prioritized law enforcement responses to domestic violence over other types of support. For example, $290 million dollars was allocated in the 2013 reauthorization of theViolence Against Women Act (VAWA) to criminal justice initiatives, versus about $40 million that was set aside for transitional housing, even though housing is regularly cited as the top need by people who have been abused. And because the Violence Against Women Act disproportionately funds law enforcement and incentivizes close collaboration between law enforcement and the non-profit organizations that serve people subjected to abuse, addressing the problem of intimate partner abuse by law enforcement officers could jeopardize the relationships police and anti-violence advocates have developed. (Illuminating the problem also threatens significant funding sources for both non-profits and law enforcement, calling into question the wisdom of continuing to rely on law enforcement as the primary means of addressing domestic violence in the United States.)
The state has a serious stake in this conversation, not only because it trains and arms abusers, but because it depends upon these same abusers to enforce the very laws that they are violating in their own relationships. (There is a growing conversation about decriminalization, but since we can’t get policymakers and practitioners to even acknowledge the problem, finding alternatives isn’t really on the radar.) And without fundamentally changing the cultural context within which police officers do their jobs — environments in which violence against women or against those who are feminized is both tolerated and used to assert one’s own masculinity— intimate partner abuse among officers is unlikely to decrease.
Editor's note This post first appeared on fusion.net
Monday, April 6, 2015
As reported on Brenden Kelsey McKim's Post, two more localities have declared freedom from domestic violence to be a fundamental human right. The city of Ithaca became the 23rd city to do so when it passed its resolution on March 4 of this year. The city joins Tompkins County, New York in supporting human rights advocates. Since November 2014, five NY localities have joined in passing the human rights resolutions.
According to the McKim post, students with Cornell Law School’s Global Gender Justice Clinic drafted the City of Ithaca resolution, as well as five other similar resolutions that have been passed by local governments in Tompkins County since Nov. 2014.
The Clinic partnered with Cornell Law School’s Avon Global Center for Women and Justice and the Advocacy Center of Tompkins County, provider of domestic violence education and survivor support services, to draft and propose the resolutions.
“This resolution really is part of a national movement,” Alexandra Kitson, Cornell law student and member of the Clinic, said. “There are cities and counties all across the country that passed similar resolutions, and we were really proud that Tompkins County was the first rural community to [do so].”
Friday, March 6, 2015
Strangulation is a method of torture used in intimate relationships by abusive men against women. That information may be no surprise to advocates for women who experience abuse. Anecdotally, those who advocate for abused women are informed that men strangle their female intimate partners at an alarming frequency. While not every case involves strangulation (often describe by clients as "choking"), the use of strangulation is disturbingly common.
While more work remains to be done on strangulation in same sex relationships, we know that in heterosexual relationships, strangulation proves to be an indicator of high danger in male-female intimate relationships.
Over the past ten years, strangulation has been studied in a significant way and the results have changed how the crime is treated in criminal charging decisions, in medical treatment and in safety planning.
Of 300 strangulation cases reviewed by Attorney Gael Strack of San Diego, 299 were committed by men against women. The results were published in 21 Journal of Emergency Med.Vol. 21 (2001). The criminal justice system frequently failed to pursue prosecution of strangulation because it is often an invisible crime, leaving no external indications of harm. The consequences are often unrecognized and delayed. Complicating charging decisions further was the lack of information and training in the field. A few of the lesser known facts of strangulation are: even fatal strangulation can leave no external evidence; women who are strangled by intimate partners are 800% more likely to be victims of homicide (Non-fatal Strangulation Is An Important Risk Factor for the Homicide of Women, 35 J. Emergency Med. 314 (2008)); serious health consequences, including stroke, can occur decades after the strangulation.
Female strangulation is a worldwide phenomenon that until recently has been misunderstood. Those of us who have advocated enhanced inclusion of violence against women under the Convention Against Torture , and who have promoted CEDAW and other conventions, have not addressed strangulation in the gender context. Our advocacy must keep pace with science on this heinous act of violence against women. Worldwide education on strangulation is needed. We became familiar with recent forms of torture through those seeking elimination of water boarding. We understand the methods and goals of that particular type of torture. We can do the same for strangulation, which globally impacts many thousands more of our population and is both an ancient and contemporary form of torture.
Monday, March 2, 2015
Leigh Goodmark, University of Maryland Francis King Carey School of Law
Dr. Alesha Durfee, Associate Professor, School of Social Transformation, Arizona State University
Sarah Drewer had a protective order against her husband when he shot and killed her after dragging her outside their home on February 3, 2015. This, of course, was the first question that most people asked: Did she have a protection order? Did she ever try to get one?
We often talk about domestic violence homicides as if the murder could have been avoided if only the protective order had “worked.”
At the same time, in interview after interview, survivors, advocates, lawyers, judges and police officers say that protective orders are “just a piece of paper.” And a piece of paper can’t stop a bullet.
This was true in 1998, when Carlton Edwards killed Melanie Edwards (who had a valid protection order) and her two-year-old daughter Carli during a supervised visitation exchange in Seattle. It was still true 15 years later when Mike Sanders shot and killed his wife, Carol Sanders, her 16 year old daughter Audra, and her brother in Phoenix shortly after the hearing where Carol was awarded a protection order.
Time and time again, women are killed despite being granted the court’s protection.
For some women who have been abused, protective orders provide safety and essential resources, including temporary custody determinations, orders removing their partners from the home and economic support. For others, whose partners are not deterred by the threat of an arrest, protective orders are just a piece of paper.
In some cases, particularly those cases in which threats have been made but physical abuse has not yet occurred, judges are unwilling to grant the orders, despite the very real fear of the women who are asking for them. For some women, the prospect of going to court to get a protective order is daunting enough to make securing an order impossible.
So do protective orders “work”? That’s a complicated question with no easy answer.
Protective orders are not a one-size-fits-all solution. Sometimes they “work,” sometimes they don’t. Part of this is because the “protection” of a protection order is only the threat of an increased criminal justice response. A better name for them might be “enhanced response orders”—then we would have more realistic expectations about how they operate and what they can actually provide to victims. If we really want to protect victims, we need to think about how to provide the services and supports that each individual woman needs to stay safe.
Protecting victims means taking proactive steps to give victims the kinds of resources that are not often available through the legal system. In addition to an enhanced criminal justice response to violations, protection orders should provide victims with access to resources that they can use to protect themselves.
Courts should offer access to safety planning for anyone given a protection order. Orders could provide access to economic resources for victims to move to a new residence, purchase an alarm system, change the locks to their home, and/or have someone supervise visitation transfers. Police could remove firearms from the home and escort a victim home so that she is safe while she picks up her belongings to go to a safe location. These are specific, concrete things that victims can use immediately to protect themselves and their children.
Some courts are able to provide these services, often funded by federal grants or supported by local domestic violence organizations. When the grant ends, the services are gone. These more protective parts of protection orders have not been funded by the state of Arizona in any permanent, systematic way or incorporated into any statute. When grants end, we are only left with the threat of a response—and over and over again, that threat does not work.
The legal system holds out the promise of safety, but can't always deliver on that promise. And that failure to deliver leads to an even greater vulnerability for victims—and, in the most extreme cases, like that of Sarah Drewer, to death.
The expectation is still that every woman who has been abused will ask for and receive a protective order and that protective order will keep her safe from future harm—even as that order is dismissed by everyone involved in the system as just a piece of paper. There is a strange disjuncture between the solution we’ve offered to domestic violence survivors—get a protective order—and our belief in whether that solution will work. It’s as if we told people who are drowning to grab life jackets that have no flotation material, and then are surprised when these people drown, again and again.
We need to acknowledge that even when a woman does everything “right,” she can’t stop an abuser who is determined to kill her. Place responsibility for those deaths where they belong—on the abuser, not the woman who has been abused—and give her tools that she can use to achieve safety.
Editor's Note: A prior version of this post was published in the Arizona Republic.
Friday, January 30, 2015
As reported in the Huffington Post, the feminist website UltraViolet requested that Sports Illustrated run a short video which it produced as part of its #GoodellMustGo campaign. Sports Illustrated agreed. The video will run this Thursday in anticipation of this Sunday's superbowl. A discussion on what it means to be a man will follow the video. The video shows a man in full football gear tackling an unhelmeted woman who is standing on the field. The video notes that 55 domestic violence complaints have gone unanswered by the National Football League.
You may view the video here.
During the Superbowl, the NFL will show a more subtle but gripping domestic violence ad. Based upon an actual 911 call, the viewer hears the conversation as the caller orders a pizza. The dispatcher twice reminds the caller that she reached 911. The first statement that the caller makes is her address. Eventually the dispatcher understands the seriousness of the call. No violence is shown but camera pans the home which has items turned over. The subtlety of the ad is effective and may be viewed here.
The different focus of the ads is interesting. The first visualizes the enormous physical power differences between abuser and target. The assault seems to come out of the blue, a factor often reported by survivors. What is missing is information that there is a relationship between the player and woman tackled. Nonetheless, the tackle is a powerful image mimicking the contents of the Ray Rice video and is appropriate, given the organization's goal in convincing the NFL to replace the commissioner. There is no subtlety in this video, as there was no nuance in the Rice video.
The NFL donated the running time for the Superbowl anti-domestic violence ad, as part of its "No More" campaign. This ad exposes the more common reality of victims' lives. The chaos of day to day living. The disrupted household. The intimidation that occurs through thrown objects or a push, which obviates the need to escalate to the Ray Rice punch in the face. This ad demonstrates the complexities of survivors' decision making, which can be a powerful education for viewers . Both ads depict different types of abuse, both of which are effective methods of controlling the actions of the target. Perhaps both ads will be effective in attaining their goals.