Domestic Violence—The Laws and the Courts - The Courts

An appeal to the American judicial system should be an effective method of obtaining justice. For battered women, however, this has not always been the case. In the past, ignorance, social prejudices, and uneven attention from the criminal justice system all tended to underestimate the severity and importance of battering crimes against women. Although society has become significantly less tolerant of domestic violence, and laws in many states criminalize behavior previously considered acceptable, old attitudes and biases continue to plague intimate partner violence and spouse abuse cases in the courts.

Intimate partner abuse cases are often complicated by evidence problems because domestic violence usually takes place behind closed doors. The volatile and unpredictable emotions and motivations influencing the behavior of both the abuser and victim may not always fit neatly into the organized and systematic framework of legal case presentation. Finally, training mandates to ensure that prosecutors and judges are better informed about the social and personal costs of domestic violence, along with society's changing attitudes toward abuse, influence the responses of the judicial system.

Keeping the Family Together

Traditionally, the family has been the basis of American society. While the value of an intact family cannot be underestimated, the traditional family is one of the fastest changing aspects of our culture. Preserving an unhappy marriage "for the children's sake" is much less common than it was just two generations ago. Nonetheless, there are still many women, police officers, lawyers, judges, and other community opinion leaders, such as members of the clergy, politicians, and social scientists, who feel that only the most extreme instances of abuse justify breaking up a family.

In the past, many judges backed away from the responsibility to punish batterers under the pretense of protecting and preserving the family. Confronting Domestic Violence, cited above, quoted a judge who claimed, "Even if the woman shows up in my court with visible injuries, I don't really have any way of knowing who is responsible or who I should kick out of the house. Yes, he may have beaten her but nagging and a sharp tongue can be just as bad. Maybe she used her sharp tongue so often… she provoked him to hit her."

Confronting Domestic Violence offered evidence that attitudes are changing and cited several judges' statements from the bench. "I don't care if she's your wife or not," one judge declared. "A marriage license is not a hitting license. If you think that the courts can't pin you for assaulting your wife, you are sadly mistaken." When another defendant claimed his girlfriend had provoked a beating, the judge warned, "This is your problem, not your girlfriend's. You will damage your next relationship in the same way if you don't get help." Another judge took the pressure off a wife testifying against her abusive husband by saying, "It's not your wife's fault that she's here to testify. She has no choice. I could have arrested her to make her come. She's not prosecuting you. The city is. She's required to tell the truth. It's perjury if she doesn't."

Alcohol and Drug Abuse and Domestic Violence Cases

Alcohol, and later illegal drug abuse, has sometimes been considered the cause of domestic violence. Authorities base this conclusion on studies like that of William Fals-Stewart in "The Occurrence of Partner Physical Aggression on Days of Alcohol Consumption: A Longitudinal Diary Study." He found that the likelihood of physical aggression toward intimate partners among battering males entering outpatient alcoholism or domestic violence treatment programs was eight to eleven times higher on days when the male partner consumed alcohol (Journal of Consulting and Clinical Psychology, vol. 71, no. 1, 2003). Even though a causal link has not been established, courts and other authorities encourage and mandate that substance abusers seek treatment on the assumption that curing a drinking or drug problem would bring an end to abuse.

Some researchers, however, refute the hypothesis that completing substance abuse treatment programs effectively serves to reduce rates of intimate partner violence or prevent recurrences of battering. These researchers include Julia C. Babcock and Ramalina Steiner, writing in "The Relationship between Treatment, Incarceration, and Recidivism of Battering: A Program Evaluation of Seattle's Coordinated Community Response to Domestic Violence" (Journal of Family Psychology, vol. 13, no. 1, March 1999).

Obstacles to Prosecuting Abusers

One of the most formidable problems in prosecuting abusers is the victim's reluctance to cooperate. Although many abused women have the courage to initiate legal proceedings against their batterers, some are later reluctant to cooperate with the prosecution because of their emotional attachment to their abusers. Other sources of their reluctance are fear of retaliation, mistrust or lack of information about the criminal justice system, or fear of the demands of court appearances. These are among findings by Lisa Goodman, Lauren Bennett, and Mary Ann Dutton (cited below) and JoAnn Miller in "An Arresting Experiment: Domestic Violence Victim Experiences and Perceptions" (Journal of Interpersonal Violence, vol. 18, no. 7, July 2003). A victim's fear and ambivalence about testifying, and the importance of her behavior as a witness, can undoubtedly discourage some prosecutors from taking action.

On the other hand, a victim might choose not to move forward with the prosecution because the violence ceases temporarily following the arrest while the batterer is in custody. Most women do not want their husbands to go to jail with the attendant loss of income and community standing. They simply want their husbands to stop beating them.

Religious convictions, economic dependency, and family influence to drop the charges place great pressure on victimized women. Consequently, many prosecutors, some of whom believe abuse is a purely personal problem and others who believe winning the case is unlikely, test the victim's resolve to make sure she will not back out. This additional pressure drives many women to drop the charges because after being controlled by their husbands, they feel that the judicial system is repeating the pattern by abusing its power. Hence, the prosecutors' fears contribute to the problem, creating a self-perpetuating cycle.

A STUDY OF VICTIMS' WILLINGNESS TO COOPERATE. In "Obstacles to Victims' Cooperation with the Criminal Prosecution of Their Abusers: The Role of Social Support" (Violence and Victims, vol. 14, no. 4, Winter 1999), Goodman, Bennett, and Dutton explored the reasons many domestic violence victims refuse to cooperate in the prosecution of their abusers.

Goodman, Bennett, and Dutton studied ninety-two abused women in Washington, D.C., whose partners had been arrested on misdemeanor domestic abuse charges, such as simple assault, threats, or destruction of personal property. Almost 90% of the women were African-Americans aged eighteen to forty-six; they had lived with their abusive partners for, on average, a little more than three years.

The participants generally reported high levels of physical violence during the previous year with 90% reporting at least one instance of severe physical violence. More than half reported an instance of "minor" sexual assault and a comparable proportion reported severe injury from sexual abuse or physical assault.

The victims all struggled with a number of health and socioeconomic problems. More than half were unemployed, about three-quarters reported symptoms consistent with a diagnosis of clinical depression, and about one-fifth met the criteria for substance abuse. Despite these difficulties, Goodman, Bennett, and Dutton found that more than half of the women cooperated with the prosecution at the time of the defendant's first scheduled trial date, about twelve weeks into the case. Women who received tangible support, such as help with taking care of their children or an emergency loan, were about twice as likely to cooperate with the prosecution of their abuser as women who received little support. Researchers cited several possible reasons for this finding. Although 82.7% of the participants were not financially dependent on the abuser, some indicated that the abuser provided other forms of support, such as child care or transportation. When families or friends provided these types of support, the victims were more likely to seek help from the criminal justice system and cooperate with prosecutors.

Surprisingly, the researchers found that the relationship between emotional support and cooperation with prosecutors was not significant. Similarly, institutional support, whether from police or victim advocates, was also unrelated to cooperation. Psychological factors also were unrelated to cooperation—neither level of depression nor degree of emotional attachment to the abuser had an effect. This finding refuted the common perception that the battered woman is too depressed, helpless, or attached to the abuser to cooperate in his prosecution. Instead, Goodman, Bennett, and Dutton's findings showed that many domestic violence victims persevere in the face of depression and the sometimes complex emotional attachment to their partner.

Consistent with findings from earlier studies, Goodman, Bennett, and Dutton found that the more severe the violence, the more likely the abused women were to cooperate with prosecutors. Participants rearing children with the abuser were also more likely to cooperate, perhaps because these women hoped that the criminal justice system would force the abuser into treatment.

In contrast, women with substance abuse problems were less than half as likely as other women to cooperate with the prosecution. Goodman, Bennett, and Dutton concluded that the women who used alcohol or drugs believed that the abuse was partly their fault or that a judge would not take them seriously. Some also feared that their substance abuse might negatively affect the court proceedings and possibly even lead to criminal charges or the loss of their children.