University of Southern California Dissertations and Theses

Criminal justice response to domestic violence: A closer look at Los Angeles County, 1995--1998

(USC Thesis Other)

Criminal justice response to domestic violence: A closer look at Los Angeles County, 1995--1998

PDF

Download a page range

Download transcript

Copy asset link

Request this asset

Transcript (if available)

Content CRIMINAL JUSTICE RESPONSE TO DOMESTIC VIOLENCE:
A CLOSER LOOK AT LOS ANGELES COUNTY, 1995-1998
Copyright 2003
by
Mary Ella Viehe
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements of the Degree
DOCTOR OF PHILOSOPHY
(SOCIOLOGY)
December 2003
Mary Ella Viehe
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
UMI Number: 3133348
Copyright 2003 by
Viehe, Mary Ella
All rights reserved.
INFORMATION TO USERS
The quality of this reproduction is dependent upon the quality of the copy
submitted. Broken or indistinct print, colored or poor quality illustrations and
photographs, print bleed-through, substandard margins, and improper
alignment can adversely affect reproduction.
In the unlikely event that the author did not send a complete manuscript
and there are missing pages, these will be noted. Also, if unauthorized
copyright material had to be removed, a note will indicate the deletion.
®
UMI
UMI Microform 3133348
Copyright 2004 by ProQuest Information and Learning Company.
All rights reserved. This microform edition is protected against
unauthorized copying under Title 17, United States Code.
ProQuest Information and Learning Company
300 North Zeeb Road
P.O. Box 1346
Ann Arbor, Ml 48106-1346
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
UNIVERSITY OF SOUTHERN CALIFORNIA
THE GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES, CALIFORNIA 90089-1695
This dissertation, written by
under the direction o f he~r~ dissertation committee, and
approved by all its members, has been presented to and
accepted by the Director o f Graduate and Professional
Programs, in partial fulfillment of the requirements for the
degree of
DOCTOR OF PHILOSOPHY
Director
D a te December 17* 2003
Dissertation Committee
Chair
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
DEDICATION
To battered and formerly battered women
and their children and to
the advocates who work on their behalf
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
ACKNOWLEDGEMENTS
To Dr. Timothy Biblarz, my dissertation chair, whose guidance,
encouragement, support, and humor enabled me to complete this project, I express
deep gratitude. To my dissertation committee members, Dr. John Brekke and Dr.
Michael Messner, thank you for your direction and encouragement. My thanks to
Dr. Constance Ahrons, for her continuing trust in me as a clinician and researcher.
I am particularly grateful to the University of Southern California Department of
Sociology for financial support throughout my doctoral program, without which
this dissertation would not have been possible.
I truly appreciate those in law enforcement—the Los Angeles County
Sheriff's Department, Arcadia Police Department, El Monte Police Department,
San Marino Police Department, and the Los Angeles Police Department—and in
the Los Angeles County Courts and the Los Angeles County District Attorney’s
Office who responded to my requests for interviews and/or provided me with the
data on which this study is based.
I express my admiration for the men and women in batterers' intervention
groups who are committed to change.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
TABLE OF CONTENTS
Chapter Page
DEDICATION v
ACKNOWLEDGEMENTS vi
LIST OF TABLES vii
ABSTRACT xi
PREFACE xili
Chapter
1. DOMESTIC VIOLENCE AND THE LAW 1
Research Questions 4
Historical Background 5
Domestic Violence as a Human Rights Issue 8
Recent History 13
Resistance to Legislative Changes 15
Batterer Intervention Groups 18
Attitude Adj ustment 19
Research on the Effects of Criminalization of Domestic Violence 22
My Concerns 24
Discretion 25
Systemic Analysis 27
2. DOMESTIC VIOLENCE AS A POLITICAL ISSUE 34
Societal Attitudes Toward Domestic Violence 36
The How and Why of Resistance to the Criminalization of
Domestic Violence 40
A Private Crime? 40
Gender Oppression Through Power, Control, and Silence 43
Power and Control 43
Silence 46
Resistance to Oppression 47
Jurisprudence 49
Gendered Institutions, Norms, and Roles Provide Continued
Support for Domestic Violence 50
iv
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Chapter Page
The Use of Law to Effect Social Change 50
3. METHODOLOGY 57
Nature of the Data 57
Parameters of the Study 58
Development of the Project 60
The Difficulty of Obtaining Public Information 62
Decisions Regarding Study Variables 66
Demographic Information 68
Children 68
Income 69
Severity of Assault 69
Case Processing 71
Empirical Analysis 72
4. THE LAW AND ITS APPLICATION 73
Law Enforcement 74
Dual Arrests: The Problem of Mutual Combat 78
Police as Perpetrators 80
Mandatory Arrest 86
Prosecution 88
Victim Control Over Arrest and Prosecution 94
Case Dismissed 98
The Court 102
Changes in Legislation 106
Domestic Violence Courts 111
Falling Through the Cracks 115
5. RACE/ETHNICITY 121
Introduction 121
African Americans: The Overriding Theme is Violence 127
Domestic Violence History of the Suspect and
Whether He Was Gone by the Time the Police Arrived 131
Asian Americans: The Overriding Theme is Silence,
Secrecy, and Shame 134
Chinese Americans 140
Japanese Americans 142
v
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Chapter Page
Korean Americans 144
South Asian Americans 146
Latino Males: The Theme is Machismo 148
Alcohol Use 157
Cohabitation, Marriage, Children, and Pregnancy 166
How do the Racial/Ethnic Groups Compare on Characteristics
of the Assault, Victim Desire for Arrest, and Criminal
Justice Processing? 170
Criminal Justice Processing 179
6. MONEY AND GENDER 185
Money 185
Public Accounts of Domestic Violence
at Higher Income Levels 200
Gender 206
7. MULTIVARIATE ANALYSIS 219
8. DO CHILDREN MATTER? 235
9. DISCUSSION 249
Societal Beliefs/Attitudes Toward Domestic Violence 249
Perpetrators 250
Victims 251
Criminal Justice Agents 253
Law Enforcement 254
Prosecutors 256
Judges 260
Racial/Ethnic Differences 264
Income Analyses 268
Strengths of the Study 269
Limitations of the Study 270
Children 271
Victim Issues 272
Financial Cost to Society 277
Recommendations 279
The Problem Still 281
vi
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
BIBLIOGRAPHY 285
APPENDICES
A. DOMESTIC VIOLENCE DEFINED IN THE CALIFORNIA
C. DOMESTIC VIOLENCE CASE PROCESSING FLOW CHART 343
D. NEWS ARTICLE ANNOUNCING APPROVAL TO ALLOW
POLICE TO MAKE WARRANTLESS ARRESTS IN
DOMESTIC VIOLENCE CASES 344
E. CALIFORNIA PENAL CODE PROVISION FOR THE
TRAINING OF PEACE OFFICERS RESPONDING TO
DOMESTIC VIOLENCE COMPLAINTS 346
F. PROVISIONS REGARDING DOMESTIC VIOLENCE
ARRESTS 351
G. CONDITIONS OF PROBATION FOR THE CRIME OF
DOMESTIC VIOLENCE 357
H. METROPOLITAN NEWS-ENTERPRISE ARTICLE ON
FUNDING FOR DOMESTIC VIOLENCE COURTS 370
I. DOMESTIC VIOLENCE CALLS AND REPORTS 373
FAMILY CODE
B. CALIFORNIA PENAL CODE 273.5
323
327
V ll
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
LIST OF TABLES
Table Page
la. Number of Domestic Violence Incidents by Year 30
lb. Cases From Each Law Enforcement Agency 30
1 c. Gender of Primary Suspect 31
Id. Suspects' Age Categories 31
le. Suspects' Racial/Ethnic Categories 32
If. Suspects' Income Categories 32
lg. Relationship Between Suspect and Victim 33
5a(l). Percentage Distribution of Two Suspect Variables by Race/Ethnicity
of the Suspect 133
5a(2). Percentage Distribution of Race/Ethnicity by Use of Alcohol/Drugs
Prior to the Incident 157
5a(3). Both Suspect and Victim Under the Influence by Race/Ethnicity and
Nature of the Relationship 160
5b. Percentage Distribution of Suspects' Age Categories by Suspects'
Race/Ethnicity 164
5c(l). Percentage Distribution of Relationship Between Suspect and Victim
by Suspects' Race/Ethnicity 168
5c(2). Percentage Distribution of Children in Common by Race/Ethnicity
of the Suspect 169
5d(l). Percentage Distribution of Characteristics of the Assault by Suspects'
Race/Ethnicity 171
5d(2). Percentage Distribution of Severity of Physical Assault by Suspects'
Race/Ethnicity 172
viii
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table Page
5e. Percentage Distribution of Two Non-Physical Violations by Suspect's
Race/Ethnicity 173
5f. Percentage Distribution of Victim's Desire for Arrest by Victim's
Race/Ethnicity 173
5g. Percentage Distribution of Suspects' Race/Ethnicity by Criminal
Justice Response 176
5fa. Percentage Distribution of Criminal Justice Processing by
Relationship Between Suspect and Victim 180
5i. Percentage Comparisons Among Five Racial/Ethnic Groups With
the Highest Percentage in Each Category in Bold 182
6a. Percentage Distribution of Suspects' Income Categories by Whether
the Suspect Was Gone on the Arrival of the Police 186
6b. Percentage Distribution of Suspects' Income Categories by Whether
the Victim Was Injured and How Severely 188
6c. Percentage Distribution of Suspects' Income Categories by Type of
Physical Injury 188
6d. Percentage Distribution of Suspects' Income Categories by Type of
Weapon Used 189
6e. Percentage Distribution of Suspects' Income Categories by Whether
There was a Non-physical Injury and Whether the Victim Was Stalked
or Otherwise Harassed 191
6f. Percentage Distribution of Income Categories by Case Processing 192
6g. Percentage Distribution of Median Family Income by Criminal Justice
Processing 193
6h. Percentage Distribution of Suspects' Income Categories by 273.5
Conviction, Years of Probation, and Weeks of Batterers' Group
Treatment Ordered 195
ix
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table Page
61. Percentage Distribution of Suspects' Income Categories by Preliminary
Hearing 197
6j. Percentage Distribution of Suspects' Income Categories by
Relationship Between Suspect and Victim and Children in Common 199
6k. Percentage Distribution of Suspects' Income Categories by Suspects'
Alcohol/Drag Use Prior to the Incident 200
61. Percentage Distribution of Suspects' Income Categories by Whether
the Suspect Was Gone on the Arrival of the Police 209
6m. Percentage Distribution of Suspects' Gender by Characteristics of the
Assault 211
6n. Percentage Distribution of Suspects' Gender by Severity of the
Assault 211
6o. Percentage Comparisons of Strangulation and Non-strangulation
Cases 213
6p. Percentage Comparisons Between Strangulation Cases (138) and
Total Cases (1040) 214
6q. Percentage Distribution of Suspects' Admission of Guilt to Police
Officer by Gender of Suspect 217
7a. Coefficients of Logistic Regression of Victim's Desire for Arrest on
Selected Independent Variables 221
7b. Coefficients From Logistic Regression of Arrest on Selected
Independent Variables 222
7c. Coefficients From Logistic Regression of Case Sent to Prosecutor on
Selected Independent Variables 226
7d. Coefficients From Logistic Regression of Charged Cases on Selected
Independent Variables 228
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table Page
7e. Coefficients From Logistic Regression of Defendants Sentenced on
Selected Independent Variables 229
7f(l). Coefficients From Logistic Regression of Criminal Justice Case
Processing on Year of Incident 231
7f(2). Coefficients From Logistic Regression of Criminal Justice Case
Processing on Year of Incident 231
8a. Coefficients From Logistic Regression of Victim's Desire for Arrest
on Selected Independent Variables 242
8b. Coefficients From Logistic Regression of Arrest on Selected
Independent Variables 243
8c. Coefficients From Logistic Regression of Case Sent to Prosecutor
Selected Independent Variables 245
8d. Coefficients From Logistic Regression of Charged Cases on
Selected Independent Variables 246
8e. Coefficients From Logistic Regression of Defendants Sentenced
on Selected Independent Variables 247
9a(l). Coefficients From Logistic Regression of Criminal Justice
Processing on Year of Incident 262
9a(2). Coefficients From Logistic Regression of Criminal Justice
Processing on Year of Incident 262
9b. Racial/Ethnic High and Low Percentages on 21 Variables 266
9c. Study Recommendations 279
xi
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
ABSTRACT
This study is a quantitative analysis of 1040 domestic violence incidents
that occurred throughout Los Angeles County in 1995-1998. The statistical data
are supplemented with narratives from interviews and the narrative portion of law
enforcement crime reports. The cases are followed through the criminal justice
process. They were selected from 5 law enforcement agencies in order to include
sufficient numbers in racial/ethnic and income level sub-groups to make
comparisons on a variety of dependent variables such as arrest, filing of charges,
sentencing, and independent variables such as the characteristics of the victim and
perpetrator and the nature of the assault. The period was chosen because a surge
of domestic violence legislation was enacted and implemented in California in the
mid-1990s. An analysis of the impact of the legislation on case processing is also
part of the study.
Domestic violence assaults are part of a pattern of power and control,
previously legitimized in law. The criminalization of domestic violence is a
political issue, with coexisting forms of resistance throughout the process.
Foremost among these are: the individual and collective grassroots resistance to
abuse, the resistance of executive, legislative, and judicial agents to treating the
problem as a public concern, the resistance of batterers to attempts to hold them
responsible and accountable for their violence, the resistance of victims to taking
control of their own lives, the resistance of criminal justice agents to changes in
xii
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
domestic violence law. This project is particularly valuable because Los Angeles
County is the largest metropolitan area that has been studied In this manner, It has
a diverse racial/ethnic population, and It has received minimal attention to this
point.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
PREFACE
The scope, extent, and social and financial costs of domestic violence are
considerable. The problem, once considered a private or family matter, is now
recognized as widespread, with the state responsible to intervene. According to
McGuire (2001, p. 1)," ... the criminal justice system created a curtain of privacy
to shield husbands who beat their wives from public view..." With the recent
criminalization of domestic violence, this system is being asked to protect victims
and prosecute offenders. Media accounts of domestic violence leave the viewer
with the impression that the problem is being addressed. Most perpetrators who
are arrested and convicted are surprised that the state is able to intrude in a
private matter. In this study I look at the extent to which the state is able and
willing to address the problem.
This dissertation Is organized into ten chapters:
Chapter 1 Is an introduction and historical background of intimate partner
violence.
Chapter 2. The enforcement of recent domestic violence laws occurs
within patterns of interpretation and action founded in longstanding
institutionalized norms. These continually resist reconceptualizations. The
phenomena of minimizing the act of violence, excusing the perpetrator, and
blaming the victim, by all of the parties involved— the batterer, the v ictim , and
xiv
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
criminal justice agents— are strong elements in the uneven application of the law.
The writings of Michel Foucault on power and knowledge, the political process,
and subjectivity provide the theoretical framework of the study.
Chapter 3 is a methodology chapter. In it I discuss the research and data
collection procedures used. Included also Is a historical account of how the ideas
and direction developed. This study is based on the analysis of archival data, in
particular, crime reports and court dockets of the cases that were eventually
adjudicated. Both of these data sources have been made available to the public
under certain conditions. Legislation, particularly sensitive to the importance of
scholarly research, has insured and protects access to the data. However, because
of a combination of legitimate concerns about confidentiality of the victims and
perpetrators, fear of public examination of the criminal justice system, and
concerns about possible legal action against municipalities and/or organizations
and particular agents of criminal justice, access to the dat6a was in many cases
denied. An account of these difficulties is included in this chapter, along with a
discussion of the decisions regarding what variables to include in the study and an
overview of the data.
Chapter 4 looks at recent domestic violence legislation. How the three
agents of criminal justice— law enforcement, prosecutors, judges— respond to
domestic violence incidents Is considered historically and with regard to the
changes in legislation.
xv
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Chapters 5 through 8 present the empirical findings of this study.
Chapter 5 assesses racial/ethnic differences in characteristics of
perpetrator and victim, nature of the assault, and decisions regarding case
processing. The focus is on a comparison of African American, Asian American,
and Latino males with Caucasian males. Historical, demographic, and social
factors are considered. I found three major themes as I analyzed the cases
involving men of color— a culture of violence for African-Americans, silence and
shame for Asian Americans, and machismo for the Latinos. Although the men of
color were more likely than Caucasians to be arrested and prosecuted, higher
levels of severity of physical assault appeared to explain most of the difference
rather than discrimination by criminal justice agents. African-American suspects
were significantly more likely to be gone when the police arrived at the scene.
Asian-American suspects were more likely to be arrested and prosecuted, in spite
of the fact that Asian-American victims were least desirous that their abuser be
arrested. A higher percentage of Latinas wanted the perpetrator arrested.
Caucasian victims were more likely to have reported past abuse to the police
while Latinas were the least likely. Latino suspects had higher incidence of
alcohol use prior to the incident and were the most likely to inflict a head or neck
injury. However, Asian perpetrators most often left multiple signs of injury on
their victims. The mean age of Asian perpetrators was highest while Latino
suspects were younger than those in the three other groups were. There appeared
xvi
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
to be a greater risk for abuse in Caucasian couples after separation and divorce
than for the coupes of color. The numerous significant differences among these
four groups suggest different prevention, criminal processing, and treatment
strategies.
Chapter 6 looks at how income level and gender are related to the nature
of the assault and the criminal justice response. Because the primary research in
domestic violence has been on low-income subjects, the focus in this chapter is on
higher income perpetrators. I found that as income increased there was a lower
incidence of physical assault and severity of assault. Higher income suspects
were the least likely to be gone when the police arrived. The income level of the
perpetrator was not a significant factor in criminal processing. Again, the lower
levels of physical assault and severity of assault were the primary factors.
However, when I compared those cases where the perpetrator resided in a census
tract where the median family income was greater than or equal to $70,000/year
to those in lower income areas, there were significant differences after the suspect
had been arrested. The higher income group, represented by a private attorney,
was less likely to have charges filed or be sentenced. They were also much more
likely to have the charge dismissed. A greater focus on solutions to non-physical
forms of abuse would benefit higher income couples.
The second part of the chapter examines gender differences and issues. I
look at the importance of investigating the gender imbalance of domestic violence
xvii
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
and address the significant differences between the two groups in domestic
violence history, nature and severity of the assault. Ninety-one percent of the
perpetrators were male. They were twice as likely to be gone when the police
arrived and more than three times as likely to have inflicted a severe physical
assault or to have threatened to kill the victim. The female suspects were more
than twice as likely to have admitted guilt to the responding police officer. There
were no significant differences between male and female perpetrators, however,
in case processing, age, or race/ethnicity.
Chapter 7 covers a multivariate analysis of the data, in particular,
predictors of a victim's desire that the suspect be arrested, arrest decision, cases
forwarded to the prosecutor, the decision to file charges, and conviction and
sentencing. Here I found that a history of domestic violence, the severity of the
physical assault, a treat to kill the victim, the violation of a restraining order, and
disabling the phone were significant predictors of a victim's desire for arrest. The
victim's desire for arrest and the severity of the physical assault were the most
significant predictors of all levels of criminal justice processing. If the suspect
was gone when the police arrived, there was little chance that the case would be
pursued. Another matter investigated in this chapter is the impact of the volume
of domestic violence legislation in the mid-1990s on criminal justice processing.
This appears to have been modest, with some changes evident, but with a decline
toward levels prior to 1995.
xviii
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Chapter 8 considers the impact of exposure to domestic violence on
children, changing attitudes toward increased penalties where children are in the
home, particularly when they witness the violence, and the extent to which their
presence affects desire for arrest and case processing. Children exposed to
domestic violence appear to be forgotten victims, even though research
consistently confirms that they experience physical abuse often and emotional
abuse always. The presence of children is not a significant predictor of the
victim's desire for arrest. Only when the victim is pregnant is there a greater
likely-hood that charges will be filed and the defendant sentenced.
Chapter 9 is an overview and discussion of the results, an assessment of
the effectiveness of the laws and their implementation, and implications for policy
and future research. A small percentage of domestic violence incidents are
reported to the police; for those that are there is little chance that the perpetrators
will be held criminally responsible, and this trend seems to be continuing.
Although these factors do not suggest that criminalization has no value, they do
indicate that resistance to criminalization is strong and other policies are needed
to supplement criminal justice efforts. In addition, the plight of children in homes
where domestic violence occurs continues to be minimized. Families where
domestic abuse is continually brought to the attention of the police require
extended support. Restraining order violations, death threats, and incidents where
the perpetrator disables the phone need to be prosecuted. Expanded education is
xix
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
necessary, provided particularly for victims to combat their isolation and improve
their awareness of support and resources, and for criminal justice and family court
personnel. Prosecution decision making in domestic violence cases should be
public. Novel policies are needed to address the problem of intergenerational
transmission of domestic violence.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Know that many personal troubles cannot be solved merely as troubles,
but must be understood in terms of public issue and in terms of the
problems of history making. Know that the human meaning of public
issues must be revealed by relating them to personal troubles and to the
problems of individual life (C. W. Mills, 1959, p. 5).
CHAPTER 1
DOMESTIC VIOLENCE AND THE LAW
The subject of this study is violence between individuals who are in or
have been in sexually intimate relationships. In particular, I am looking at the
criminalization of this violence, hereafter referred to as domestic violence, as a
practical political problem. Changes in legislation and the criminal justice system
have begun to undermine the hegemonic understanding of violence as a natural
part of gender relationships. Actions that were regarded as normal and acceptable
in family relationships have acquired new names, such as abuse; and abuse has
been redefined as a crime.
Appendix A is a copy of California Family Code 6211 which defines
domestic violence. Currently in California the standard domestic violence charge
is 273.5. Two other California Penal Codes often used to reduce the penalty in
domestic violence cases are 242 and 243. These are battery/assault charges with
lesser penalties for domestic violence cases. Appendix B is a copy of the penal
code 273.5. It addresses any incident where a person
willfully inflicts upon a person who is his or her spouse, former spouse,
cohabitant, former cohabitant, or the mother or father of his or her child,
corporal injury resulting In a traumatic condition... (where)... ‘traumatic
1
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
condition’ means a condition of the body, such as a wound or externa! or
interna! injury, whether of a minor or serious nature, caused by a physical
force.
The intent of the law is based on feminist theories, not on what Straus
(1993) refers to as a family therapy or lower risk model. Feminist theories regard
all such assaults as serious because they are intended to control the victim and are
part of a pattern of coercive control. This penal code criminalizes all such cases,
not only the extreme or most severe assaults. Straus suggested that perhaps only
10% of domestic violence cases fall into a high-risk category. He discusses the
need for focusing on these cases of “high-risk violence” in that they require a
different intervention. Although he acknowledges that high-risk cases need to be
referred to programs designed for male batterers, Straus believes that the majority
of cases of domestic violence would respond well to family therapy.
The aim of criminalization ultimately is to reduce the occurrence and
impact of domestic violence. There are five primary goals:
1. Consciousness raising—sending a clear message to perpetrators,
victims, and the community that domestic violence is against the law and
unacceptable.
2. Specific and general deterrence—the former refers to the deterrent
effect of having been arrested before; the latter is designed to prevent the
unapprehended batterer from assaulting by increasing the expected cost.
2
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
3. Rehabilitation through group treatment. This is not a punishment. It
does not deny the defendant his freedom. It is a service, although mandatory, to
improve the defendant’s life by promoting attitudinal and behavioral changes.
4. Protection of victims—criminalization brings the focus on protection of
the victim as opposed to protecting the privacy and sanctity of the family.
5. Coordinated community services to support and strengthen the victims.
An interdisciplinary approach is particularly important in the case of domestic
violence. The problem encompasses aspects of sociology, psychology,
criminology, public policy, law, public health, medicine, and mental health.
Criminalization has created the environment for increasing collaboration among
public and private agencies to serve victims.
A crucial problem with criminalization is that those who accept or are
given the responsibility for change in attitude and action—criminal justice agents,
victims, victim advocates, and perpetrators of domestic violence—are not
uniformly in favor of change or in their beliefs of how change is to be
accomplished. The purpose of this study is to explore the criminalization of
domestic violence in Los Angeles County during a period following a surge in
public awareness of the problem and the passage of legislation to limit the
discretion of police, prosecutors, and judges. My goal in this introductory chapter
Is to illustrate that there has been a long history of accepted violence by husbands
toward wives. Second, I review the major changes in attitude and public policy
3
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
that have occurred In the past forty years. Following a review of the literature on
the criminalization of domestic violence, I address the systemic nature of the
problem and attempts at its solution.
Research Questions
My research questions are:
1. To what extent are criminal justice agents holding the perpetrator
accountable when the police are called to a domestic violence Incident, and what
factors limit full criminal justice application of changing domestic violence law?
2. Is there a significant difference in the nature of domestic violence and
how the criminal justice system responds to domestic violence incidents
according to race/ethnicity, social class, and/or gender of the perpetrator and
victim? If so, what are the differences in: (a) Perpetrator and victim, (b) Law
enforcement, (c) Prosecution, and (d) Judges?
3. How are children affected and regarded by their parents and criminal
justice agents in cases of domestic violence?
Although victim advocates have been critical of the unresponsiveness of
the criminal justice system (Dobash & Dobash, 1992), during the last 3 decades
there has been an acceleration of implementation of existing and new legislation
in response to domestic violence Incidents. Criminal justice agencies have
become involved in public education campaigns (R. C. Davis, Smith, & Nickles
4
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
1998), have been encouraged to integrate themselves into community networks
(Worden 2000), and have been generally challenged by State and Federal
policymakers to expand their boundaries to coordinate improved understanding
and response to this issue. This criminalization of domestic violence has created
significant disruption and continuing conflict in long established practices and
inter-organizational relationships.
Historical Background
The forces that predispose some men to abuse women with whom they are
intimately involved and those that constrain women from escaping the violence
have been created historically and culturally. Family relationships have
traditionally been relationships of power, and force was used to maintain
traditional imbalances of power within families. For thousands of years men were
able to correct their wives in whatever ways they saw fit. The concept of
domestic chastisement was firmly imbedded as a legal and societal norm
(Acikalin, 2000). In Rome in 753 BC, according to the law of marriage, Romulus
instructed married women “to conform themselves entirely to the temper of their
husbands and the husbands to rule their wives as necessary and inseparable
possessions” (Pressman, Cameron, and Rothery, 1984, p. 18). Under Laws of
Chastisement, a husband had absolute rights to physically discipline his wife since
he was liable by law for crimes committed by her. “Wife beating and wife killing
were the recognized rights of men” in ancient Greece and Rome (p.3). The
tradition of these laws was perpetuated in English Common Law (upon which our
5
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
law is based) and throughout most of Europe. A man’s right to use violence to
manage Ms household was based in English common law and legally protected
until the late 19th century (State v. Rhodes, 61 N.C. (Phil. Law) 453, 456-57
(1868); Bradley v. State, 1 Miss. (1 Walker) 156, 157-58 (1824); Fulgham v.
State, 46 Ala. 143, 146-47 (1871)). The power strategies employed by
perpetrators of domestic violence today largely parallel those characterized by
Foucault in Discipline and Punish (1995) as pre-modem, where throughout the
state and household, physical punishment was used to avenge perceived contempt
for an authority figure (Westlund, 1999).
During the Middle Ages (900-1300), the Church sanctioned the subjection
of women. Wives were told that it was their sacred duty to obey their husband.
Priests would advise abused wives to win their husbands’ good will through
increased obedience and devotion (Trible, 1984). This response to battered
women is still common among local religious leaders. In France, during the 18th
century a husband could physically “chastise” Ms wife for asserting her
independence (Pressman et al., 1984, p. 4). In 1829 in England, a husband’s
absolute power of chastisement was abolished. In the United States, a man’s role
as family disciplinarian was affirmed in Bradley v. State (1 Miss. 156 [1824]),
and State v. Oliver (70 N.C. 60, 61-62 [1879]) recognized that criminal law had
relevance to a husband’s assaults only when the violence resulted in permanent
injury or was cruel and dangerous (Worden, 2000). It wasn’t until the end of the
19th century (1871), when courts in Alabama and Massachusetts overturned
6
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
husbands’ legal right to physically chastise their wives. Legal redress of abuse
began to appear in case law in this country in the middle to late 1800s (Hartman,
1998).
The state is being forced by women to challenge patriarchy. However, it
has accepted the role of protector of women from their husbands reluctantly.
Although wife beating had become illegal throughout the United States by 1920
(Marcus, 1988), the laws were rarely enforced (Gelles, 1997). Biases in existing
law were eliminated, enforcement policies were devised, but the legal structure
stopped short of aggressive protection of battered women. There was little
legislation on the subject, no focused organizations, reported litigation, or
published research (Pamas, 1993).1 Other than mediation, which was the typical
law enforcement response to domestic violence incidents, the criminal justice
system maintained a hands-off policy until the 1970s. Cases were treated as
“family disputes” or “disturbances.” Stranger assault, however, was penalized.
Although domestic violence has been a crime for over a century, until the
1960s domestic violence remained virtually unacknowledged by the public
(Wanless, 1996). No title in all of the issues of the Journal of Marriage and the
Family from 1939 to 1970 included the word “violence” (Steinmetz, 1987). Prior
to 1967 there was no book or journal article that focused on the law’s response to
5 Beginning in 1967 Pamas (1993) began to publish a series of law journal articles on
intrafamily violence and the public and private responses to the problem. Initial data were drawn
from the 1956-57 American Bar Foundation Survey o f the Administration o f Criminal Justice
7
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
intrafamily violence. Although family researchers began to direct attention to
domestic violence, it was largely in the context of studying dysfunctional families
(Worden, 2000). The studies done by sociologists and mental health
professionals were based on questions regarding the pathology of women who
continued to be victimized (Snell, Rosenwald, & Robey, 1964; Wolfgang, 1968).
The models presented focused on intervening to strengthen the victim.
Interpretations of the victim as masochistic continue, by batterers, psychoanalysts
(Blum, 1982; Rhode, 1997; Shainess, 1979), and criminal justice personnel.
Domestic Violence as a Human Rights Issue
Challenges to patriarchy expanded, but it was not until the 1930s that
battered women began to seek redress on the basis of human rights. Abuse by a
family member inflicted on those who are weaker and less able to defend
themselves—most commonly women and children—can be seen as violating a
basic right to live in safety and physical security. Although political theorists
have agreed for centuries that physical security is an individual’s most basic
expectation from the state, women’s protection from violence has only become a
concern of the state since the mid-20th century. The problem has now been
acknowledged at the federal and state level. There have been significant advances
in recognizing and responding to domestic violence as a crime during the past 35
years, more particularly in the last decade. Legal intervention has been codified.
conducted in Michigan, Wisconsin, and Kansas. Five books on the survey were eventually
published in 1965-1969 (Pamas, 1993).
8
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Although domestic violence and the sexual victimization of women have became
human rights issues, violence against women is one of the most difficult areas to
challenge through law reform. The response is piecemeal and fragmented, further
complicated by the fact that responsibility for domestic violence is shared by a
wide range of agencies—police, prosecutors, courts, probation, batterer’s
treatment programs, and various social services. The administration of domestic
violence law varies tremendously among jurisdictions while the effectiveness of
criminal justice response ranges from adequate to irresponsible (Coukos, 1998).
In the United States the first wave of feminism came out of the anti
slavery campaign. The concept of human rights has played an important role in
the advancement of racial and gender status law. At the first convention for
women’s rights in Seneca Falls, New York in 1848, a group of women and a few
men demanded that the United States Declaration of Independence be applied to
women, contending that the Declaration had not been written with women or
blacks in mind. More than 150 years of hard work challenging the moral fiber of
the nation, constantly meeting resistance, have succeeded in bringing women
rights of citizenship previously only available to men. Women’s claims to rights
were made abroad in country after country, and fostered the first great wave of
feminist reform. However, these claims, without the subsequent political action,
would have not been successful. Although the 19th century feminist movement
contained a campaign against wife abuse, it was presented in the context of
temperance, marital rape, and the protection of children, not in terms of human
9
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
rights. The moral claim rested more on the damage to children than to the wife.
Consciousness was raised, attitudes began to change, and by the 1870s courts
were denying men the right to physically chastise their wives (Gordon, 1989).
Foucault is skeptical of human rights claims. Foucault sees them as one
example of political strategy. He regards recourse to “human rights” or “natural
rights” as a tactical maneuver to preempt or facilitate possible actions. Implicit in
the notion of rights claims are the concepts of universality and stability, from
which Foucault distances himself. Bernstein (1994, p. 230) is critical of Foucault
because in Foucault “it is never clear, even in a specific local situation, how one is
to act and why. So the appeal to specificity and locality doesn’t help us to
elucidate the ethical-political question of how one is to act.” Bernstein and others
find fault with Foucault on this ground, that he never attempts “to legitimate
social organization by means of philosophical grounding and that he refuses to
articulate normative principles” (Bernstein, 1994, p. 228). Foucault’s criticism of
rights appears to be twofold—one is their conservative character, in effect placing
limits on human capacity, resourcefulness, and creativity; the other is their
inability to guarantee freedom. This freedom is a continuing process and
meaningful only at a very personal level. He regarded liberty as a process of
permanent contestation. “Liberty is a practice.. .The liberty of men is never
assured by the institutions and laws that are intended to guarantee them”
(Rabinow, 1984, p. 245). The framers of the U.S. Constitutions defined us as
10
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
haying “inalienable rights;” these however are continually denied and challenged,
and achieved through political struggle within systems of power relations.
Global discourse on human rights continues to expand. Within this
movement, the problem of gender violence has been formally acknowledged. In
1993, the United Nations approved a declaration calling for the elimination of
violence against women, Including domestic violence. This issue was discussed
further at the 1995 UN Fourth World Conference on Women held in Beijing.
Concurrently, the European Council issued a declaration proposing strategies to
fight violence against women in a democratic Europe. Additionally, the United
Nations began to view this violence as a female health issue to be addressed
through the World Health Organization (Nylen and Heimer, 1999). In the United
States, the final report of the Committee on Violence Against Women in June
1995, advocated federal funding to support programs addressing violence against
women.
The women’s movement arose from women questioning their situation
with respect to men. Profound dissatisfactions with the everyday and a
heightened alienation from restrictive and oppressive norms of identity and
behavior became realized through the process of consciousness raising.
Consciousness raising groups and other transforming practices in which
individuals and groups engaged became sites of change. A new truth about
women, one that was “eruptive” rather than dialogic was discovered as women
transformed their past Into a new kind of experience. Women began to perceive
11
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
their position from a perspective that was incompatible with the continued
functioning of their power relationship with men. “As soon as one can no longer
think things as one formerly though them, transformation becomes both very
urgent, very difficult, and quite possible” (Foucault, 1988, p. 155). As these
transformations continue, men find themselves in different power relations with
women.
The effects of oppression that contribute to how individuals interpret the
world and see themselves in that world are explained by Foucault (1979) in his
consideration of the concepts of power, truth, and the process of subjectivity as
three domains of experience that can only be understood in relation to each other.
The individual comes to experience the world in a certain way through power
relationships that are contingent and historical. Foucault’s position throughout his
work is that subjective experience is socially and historically constituted by
factors that individuals internalize without conscious awareness. However,
constructionism is not equivalent to determinism. He contends that change is
inevitable in that subjectivity is “fragile,” more a matter of complex, but
temporary, historical circumstances than with essence. Foucault describes the
continuing process of creating oneself out of and within the context of a diversity
of power relations or being created by others through default.
Foucault (1984) values thought, examination, and inquiry and defines
genealogy as the task of separating out “from the contingency that has made us
what we are, the possibility of no longer, being, doing, or thinking what we are,
12
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
do, or think (p. 46). For Foucault, “thought.. .is what allows one to step back from
[a] way of acting or reacting, to present it to oneself as an object of thought and
question it as to its meaning, its conditions, and its goals. Thought is freedom in
relation to what one does, the motion by which one detaches oneself from it,
establishing it as an object, and reflects on it as a problem” (Foucault, 1994, p.
117). It is through the discernment of the nature of things which allows or
enables new possibilities of experience, understanding, subjectivity, and political
identity that the individual becomes free. In questioning, making the existent
problematic, the individual is able to step back from ways of acting and reacting
and consider new truths.
Recent History
In the U.S. when the civil rights movements of the 1960s turned to law as
an instrument to confront injustice, the women’s movement began to more
aggressively utilize the law to effect social change. Nowhere has this been more
evident than in the case of domestic violence. While the intent of civil rights
reform is to improve the welfare of subordinated groups, modernization of such
law forms a foundation on which the legal system can address pervasive status
conflict.
During the 1960s, shelters for battered women began to appear because
there was no criminal justice or social service support for victims of spouse
assault. During the next 15 years there were numerous outcries in support of
battered women and grassroots organizing that began to transform public
13
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
consciousness. As victim advocacy became institutionalized through these
efforts, the social environment became more receptive to changes in attitude and
approach (Loseke, 1991). These grassroots efforts of victim advocates have
made what was formerly regarded as private and legal into a public issue and a
criminal matter.
In 1975 The National Organization for Women established the National
Task Force on Battered Women and Household Violence (Pamas, 1993). Two
years later the Oregon Coalition Against Domestic and Sexual Violence proposed
the first mandatory arrest law in the United States. It was enacted that same year
(Forell, 1991). Prior to this law, arrest was considered a last resort. In 1976
there were two class action suits against police departments on behalf of battered
women, one in Oakland, California and the other in New York City (Zorza,
1992). The settlements in these lawsuits resulted in a restructuring of response to
domestic-violence incidents in both cities that included explicit pro-arrest
policies.
In 1977 the Police Foundation published results of a study which
examined domestic assaults and homicides that occurred in Kansas City, Missouri
during a several year period. Results of this study showed that in half of the
cases police had been at the address of the incident five or more times in the 2
years preceding the domestic assault or homicide (Langan & Innes, 1986).
Mediation appeared to have little or no effect. As arrest patterns changed,
prosecutors were forced to prepare to receive a new and large group of arrestees.
14
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In 1978 Los Angeles became the first U.S. city to institute a domestic violence
. o ' ? »
unit in Its city attorney’s office. The following year the first counseling program
for batterers in Los Angeles County was started. In 1979 the California state
legislature created a Domestic Violence Diversion Program which permitted the
district attorney to decide whether a domestic violence defendant should be
diverted from the criminal justice system into a treatment program. The
defendant would not be required to enter a plea in response to the charges, but
would be ordered to enter a treatment program upon completion of which the
arrest would be expunged. If the defendant failed to complete the required
program, the criminal proceedings would be reinstated (Bigomia, 2000).
Resistance to Legislative Changes
Forms of resistance emerge from multiple and diverse historical
influences. Efforts to enact domestic violence legislation in Congress failed
repeatedly. Finally, a federal Office of Domestic Violence was established in
1979. It was closed in 1981 when the Reagan administration acceded to power.
When Congress passed the Domestic Violence Prevention and Treatment Act (42
U.S.C. 13701) in the mid-1980s, the Reagan administration refused to allocate the
funds necessary to implement its provisions.
In 1984, the U.S. Attorney General’s Task Force on Family Violence
prioritized domestic violence as a major problem facing American women and
2
However, in 1980 the LA District Attorney stated that he didn't believe domestic
violence crimes warranted a stiff response.
15
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
recommended that it be treated as a criminal activity (Ferraro & Pope, 1993;
Hart, Ashcroft, Burgess, Flanagan, Meese, Milton, Narramore, Ortega, & Seward,
1984). That same year Congress passed the Family Violence Prevention and
Services Act (Pamas, 1993). However, it was the passage of the federal Violence
Against Women Act 10 years later that set the stage for a systematic nationwide
effort to criminalize domestic violence (Buzawa, Hotaling, & Klein, 1998). It
specifies that “all persons within the United States shall have the right to be free
from crimes of violence motivated by gender.” Senator Joseph Biden, Jr., the
bill’s chief sponsor, stated three goals: (a) “to try to make streets a little bit safer
for women,” (b) “to make their homes a little bit safer,” and (c) “to protect their
civil rights” (U.S. Congress 1990). By the mid-80s, two thirds of the states
included domestic violence as a crime of battery or assault (Zorza, 1994).
California was one of the first states to mandate protocols to guide police conduct
in and the prosecution of domestic violence cases (San Jose Police Department,
1986). Currently all 50 states have domestic violence statutes, domestic violence
is considered a public health problem, the numbers of domestic assault cases
brought to the attention of law enforcement far surpass virtually all other offenses
(Buzawa et a!., 1998), and society has discovered a new kind of criminal.
In June of 1994 when Congress was completing the Violent Crime Control
and Law Enforcement Act, which Included Title IV, the Violence Against
16
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Women Act, media attention converged on the murders of Nicole Brown Simpson
and Ron Goldman in Los Angeles. O. J. Simpson was subsequently charged with
the murders of his ex-wife, Nicole, and Goldman. Massive TV and print coverage
of the investigation and trial prompted an expanding awareness of the prevalence,
nature, and dynamics of wife abuse. In August of that year Congress passed the
Crime Control bill, which included substantial funding to fight domestic violence.
The federal government did not begin to accept responsibility for intimate
violence until it was forced to recognize the problem as widespread and seldom
prosecuted. As in other criminal acts, state laws have designated domestic
violence as a crime against the state defining the state as the offended party and
the victim’s avowed protector.
There are divergent perspectives and agendas regarding what the most
pressing concerns are regarding domestic violence and even greater controversies
regarding what is a proper and effective response from the criminal justice system
(Fagan, Friedman, Wexler, and Lewis (2000); Gelles & Loseke, 1993; Worden,
2000). Currently the direction, particularly in California, is toward broadly based
training, arrest and prosecution of the perpetrator, and a preference for mandated
counseling groups during a probationary period for defendants and less on
incarceration. The assumption is that violence is a form of learned behavior
17
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
'I
which can be unlearned. An underlying assumption of the California penal code
regarding domestic violence is that it has long-term effects that negatively impact
all family members, especially children, who often conclude that violence is an
acceptable way to cope with problems or stress. (§ 3053.2© (enacted by Chapter
983)). According to the published research, children exposed to domestic violence
do matter. They are victims, even if they are not harmed physically or sexually
(Cahn, 1991; Davidson, 1994; Field and Cook, 1994; Walker, 1979).
The belief is that batterers groups4 are the most effective way reach
abusers and motivate them to refrain from domestic violence (C. M. Murphy,
Musser, and Maton (1998); Gondolf, 2001). This reflects a growing trend toward
therapeutic jurisprudence (L. Mills, 1996, 1998; Simon, 1995; Winick 2000) that
has been manifested in the increasing use of social services in victim support and
criminal sentencing.
Batterer Intervention Groups
Although batterers are very resistant to questioning their attitudes and
behaviors, if convicted of the crime of spousal abuse, they are forced, in the name
of therapeutic jurisprudence, to attend year-long batterer’s treatment groups.
Groups designed to raise consciousness and empower victims, although not
usually mandated, are also made available. In my experience, the best treatment
programs are based on a socio-educational model that addresses the intersections
3 Approximately 70% o f children who come to battered women shelters are abused or
neglected (Davidson, 1995).
18
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
of race, gender, class, culture, and sexual orientation. The central points of such a
program clearly establish the following:
1. Domestic violence is a crime.
2. Violent behavior is a choice.
3. The perpetrator of the violence is to be held responsible and
accountable for this crime.
4. The abuse must stop.
5. Domestic violence is part of a pattern of coercion and control that
includes physical, emotional, economic, and sexual abuse.
6. This pattern is a strongly entrenched and socially sanctioned gendered
system of learned behavior. Such programs provide the context in which batterers
can develop expanded subjectivities.
Attitude Adjustment
One goal of the batterers' intervention groups to which the offenders are
sentenced and the groups available to victims is to enable these individuals, in a
supportive yet confrontive environment, to step back from their destructive
situations so that they can develop expanded subjectivities and arrive at new
identities and possibilities of relating. By examining cultural artifacts, by
problemitizing accepted knowledge and truth the individual can consider
alternatives, and through this process become enriched, empowered, and freed.
4 Now officially referred to as batterers' intervention programs in California state law.
19
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
For Foucault, this process is a task, a personal responsibility. Most defendants
mandated to these groups are angry at “the system.” When they begin the groups
they are in denial about their responsibility for the violence. They will minimize
and justify their actions. It may take as many as 20 out of 52 sessions before they
can admit that they need to be in the group5. Some never take responsibility.
Ultimately, the purpose of this discernment of the nature of things—self,
relationships, issues, experiences—is to free the individual by allowing/enabling
new possibilities of experience, understanding, subjectivity, and political identity.
In this process, “Knowledge of self is always linked ...to ethics or politics”
(Foucault, 1970, p. 328). Knowledge enables a victim to resist the forces being
brought to bear In his or her subjection. Foucault’s work has its basis in ethics
where the refining subjectivity is in essence a “care of the self.” Care of the self
is not antithetical to care for others. According to Foucault, “the domination of
oneself over oneself is increasingly manifested in the practices o f obligations with
regard to others” (Foucault, 1986, p. 149). Foucault has addressed the mutuality
of self-cultivation which is particularly evident In the case of marriage, where ‘the
relationship one establishes with oneself and the rapport one forms with the
other,’ are mutually reinforcing. He notes, “The art of conjugality is an integral
part of the cultivation of the self’ (p. 163).
5 Because of this, I question the evaluation of programs that are mandated for 26 or fewer
sessions.
20
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The criminalization of domestic violence provides an opportunity for ail
involved to examine their beliefs, interpretations, their responses to the problem,
and to gain new insight into themselves. Denial has enabled the victim, the
perpetrator, and society to avoid responsibility for the problem. As this once
subjugated knowledge becomes visible, all parties involved are confronted with
different possibilities. For legislators, police, prosecutors, and judges it places
responsibility for solution to the problem in the public arena. Training is
mandated for agents of criminal justice to provide an understanding of the
severity of the problem of domestic violence and the peculiar dynamics that
distinguish it from stranger assault. For the general public, it becomes more
difficult to ignore the plight of the family member, the neighbor, the stranger on
the street who is being battered.
Pamas (1978) confronted the issue directly:
we know punishment is a clear statement of the personal responsibility of
the offender and the condemnation and retribution of society. We also
know that where punishment is to be imposed, the criminal process
provides the best safeguards that such punishment is imposed on the
appropriate person under the most adequate circumstances. ...Thus the
criminal law, the police, the prosecutor and the courts should not only
continue to respond to incidents of inter-spousal violence, but should
emphasize the importanceof the traditional response of arrest, prosecution
and sanction as a sign of public disapprobation and protection, not only at
the upper levels of violence, but also at the first minimal signs of trouble,
(p. 190-191)
Nineteen years later L. Mills (1997) cautioned:
Recent feminist theory has begun to question the utility of relying on
currently formulated legal methods to regulate domestic abuse. I am
concerned that existing strategies which unilaterally criminalize intimate
21
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
abuse and which disentangle, and in many cases divorce, the survivor
from the battering situation may so exacerbate her denial, and alienate her
from her personal history and emotional experience, that she may never
obtain the help she needs to free herself from violence (p. 102).
Research on the Effects of Criminalization
It is difficult to determine the effect legal sanctions have on recidivism.
Langan and Innes (1986) reviewed National Crime survey data from 1978 to 1982
and found that calling the police was associated with lower rates of subsequent
violence. Also, subsequent acts of violence against women who called the police
were no more serious that those against women who did not call. A Police
Foundation study in Minneapolis (Sherman and Berk, 1984) focused on arrest as a
preferred response to domestic abuse. This study, which found a lower recidivism
rate when police arrested the batterer compared to when they mediated or ordered
a cooling off period, encouraged legislators and other policy makers to adopt
mandatory or pro-arrest practices. However a replication of the study in
Milwaukee 8 years later found up to 44% recidivism among the batterers who
were arrested. This result cast doubt on the effectiveness of arrest.
Steinman (1990) found that police actions that did not lead to judicial
follow through led to increased violence. Court records and observations and
interviews with defendants and victims were used to assess recidivism (D. A.
Ford & Regoli, 1992). Victims reported that prosecution of any type lowered the
risk of recurring violence significantly. Attempts were made to determine the
combination of demographic and system variables that best predicted variation in
22
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
perpetrators’ recidivism. Sayers and Edieson (1992) found police visits to the
home, eventual arrest of the perpetrator, and court-mandated treatment to be
effective in ending repeat incidents of violence. They concluded that court
system follow-up is very important. The strength of their findings appears to
increase the longer the men are monitored. Jaffe, Wolfe, and Wilson (1993) also
found that police intervention and the filing of charges decreased violence. In
addition, with criminal justice contact, women began to access social services of
which they had previously been unaware. Durham (1998) notes that successful
rape prosecutions have had much to do with the changing attitudes of people in
society toward rape. She maintains that the reinforcement function of successful
prosecution is undeniable and that the more a crime such as domestic violence is
successfully prosecuted, the more likely people are to believe that the crime
should be prosecuted.
All of these studies are limited due to methodological problems, the
primary being the operationalization of recidivism and incomplete and short-term
data; however, they add substance to the theory that responding to domestic
violence as a crime has merit. A significant criticism is that the studies generally
have isolated one intervention without taking into account broader systemic
factors. McGuire (2001) contends that the Minneapolis study focused solely on
arrest as a deterrent without considering the effects of the prosecutorial and
judicial decisions that followed. Since only 37 of the 807 men arrested were
charged with assault, the recidivism rate may have been due to the failure to
23
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
prosecute. Another difficulty with the Minneapolis study and the arrest sites
(Milwaukee, Charlotte, Dade County Florida (Miami)) is that the cases
disproportionately from neighborhoods in which unemployment, poverty, and
divorce rates were high (Fagan, 1996, p. 26).
My Concerns
As I studied the literature and interviewed criminal justice agents in Los
Angeles County it appeared that, although the domestic violence laws were being
strengthened, very few of the perpetrators were being charged and sentenced.
There was also little known about the nature of the incident brought to the
attention of law enforcement or outcomes according to social class and
race/ethnicity of the perpetrator. Curiosity about these aspects of domestic
violence led to the questions that became the basis for my research.
Although much research has been done on the criminal justice response to
domestic violence incidents, few studies have followed cases through the criminal
justice process to explore and assess prosecution, sentencing, and probation
effects along with the effects of arrest and non-arrest. Little is known about the
nature of the cases that drop out at various points in the process. In addition, little
attention has been paid to what differences there are, if any, according to the
race/ethnicity and socioeconomic class of the perpetrator other than to determine
the prevalence of domestic violence throughout the each sub-population. Are
perpetrators in these subgroups being treated differently throughout the entire
criminal justice process? In addition, knowledge about differences among these
24
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
groups regarding domestic violence history reported, the nature of the incident,
the attitudes of victim and perpetrator, pleas, etc. enables clinicians and other
service providers to respond more effectively. The current study addresses each
of these issues.
There is continuing need for additional socio-legal research to explore and
assess the relationships between law and social change, particularly on the issue
of family violence (Fagan, 1990). Whether detection and criminal sanction of
domestic violence has to do with detecting and punishing perpetrators or
protecting and helping victims, little is known about what works. The vast
majority of wife assaults are never detected by criminal justice or social service
agencies.6 Victims of domestic violence rarely report incidents to the police
(Bachman & Saltzman, 1995; D. Dutton, 1988; Langan and Innes, 1986)7; of
those that are reported, only a fraction result in arrest, and even fewer in
conviction and sentencing.
Discretion
Criminalization of domestic assault places the responsibility on the
perpetrator and removes some of the stigmatization from the victim. However,
6 Dutton (1998) estimates about 15%. According to the Second National Family
Violence Survey, 14% o f the victims of beatings, choking, and other forms of severe violence
called the police after the attack (Gelles & Straus, 1988).
7
"According to our statistics, a woman has to be assaulted 35 times before she comes
forward. That is horrendous and leaves us with an awful amount o f awareness-raising work to do."
head of the RUC's domestic violence unit, Chief Insp. Gary White (Unsworth, 2001).
25
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
criminal conviction Is a highly selective process. This is particularly true for the
crime of domestic violence. It has been suggested that in order to determine
whether It is possible for criminal justice to embody enabling discourses and
practices for women who have been victims of violence it Is necessary to study
how new laws and policies impact the decisions of police, prosecutors, and judges
(Dobash & Dobash, 1992). As a case progresses through the criminal justice
system, it may “drop out” at any one of several points. Appendix C outlines the
major decision points in this process. Is a suspect arrested, is the case forwarded
to the prosecutor. Are charges filed? Is there a conviction? What sentence is
ordered? How compliant is the defendant with the conditions of the sentence?
These questions are addressed in my study.
There are limited data on the number of domestic violence cases that
arrive in the criminal justice system and their resolution and little discussion on
sentencing theory and practice (Hanna, 1998). Neither the National Incident-
Based Reporting System nor the National Crime Victimization Survey tracks case
dispositions, including conditions of probation such as mandated counseling
(Capurso, 1999). It is rare that a victim will be assisted competently and
compassionately from the initial encounter with the police, through prosecution,
and to a resolution that will rehabilitate or deter an offender (Buzawa & Buzawa,
1990). Because there is a widespread reluctance to incarcerate perpetrators,
26
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
mandated group counseling, established in the late 1970s, has been the generally
accepted sentence for those convicted of spouse/partner assault. In part due to the
complexity of evaluating the impact of these programs on recidivism, there is no
scientific evidence that these programs are effective. Unequivocal answers to the
problem of recidivism remain elusive.
Systemic Analysis
Criminal justice efforts, from legislation through law enforcement,
prosecution, adjudication, and correctional agencies must be treated as a whole
interlocking system. Each incident of domestic violence occurs within a larger
socio-political and historical context which impacts the nature of the assault and
its aftermath. Within criminal justice, each sector is inter-dependant upon the
others and the victim. Throughout this project there is an overriding awareness of
historically grounded yet continually changing power relations, and the systemic
nature of domestic violence and society’s response to it.
As this study developed, a theme of resistance emerged. There are
coexisting forms of resistance throughout the process of criminalizing domestic
violence. Foremost among these are:
1. The individual and collective grassroots resistance to abuse.
2. The resistance of executive, legislative, and judicial agents to treating
the problem as a public concern.
3. The resistance of batterers to attempts to hold them responsible and
accountable for their violence.
27
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
4. The resistance of victims to taking control of their own lives.
5. The resistance of all to addressing the harm to children.
6. The resistance of criminal justice agents to changes in law that
reinforce domestic violence as criminal.
In spite of all the media attention given in the mid 1990s to the progress
being made toward ending domestic violence, my study results show that only
22% of the police calls resulted in the perpetrator being sentenced. The three
primary findings of the study are: (a) Criminalization of domestic violence has
not met the expectations of victim advocates and legislators, (b) There are
significant differences among racial/ethnic and social class groups that policy
makers can utilize in prevention, response, and clinical treatment, (c) Criminal
justice processing decisions are made with little regard to the harm done to
children in these situations.
This study discloses the continuing reluctance of the state to take domestic
violence seriously and protect women and children in spite of grand
administrative and legislative pronouncements. There has been limited data on
the domestic violence cases that enter the criminal justice system and their
resolution. Dobash and Dobash (1992) suggested that in order to determine
whether it is possible for criminal justice to embody enabling discourses and
practices for women who have been victims of violence It is necessary to study
how new laws and policies impact the decisions of police, prosecutors, and
judges. The Los Angeles sample of over 1000 cases sheds considerable light on
28
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the process of criminal enforcement. This study looks at race/ethnicity and class
from a different perspective than previous studies on domestic violence where the
focus was on prevalence of and cultural attitudes toward domestic violence. Here
the focus is on these independent variables and how they are related to the
incidents and the criminal justice response. Although much is known about the
tremendous harm domestic violence poses for children, there has been little
research on how this knowledge impacts the decisions of victims and criminal
justice agents. This study begins to fill that gap.
The study is an analysis of how the Los Angeles County criminal justice
system has responded to recent changes in domestic violence legislation. It is a
closer look at what incidents and cases fall through the cracks as criminal justice
agents exercise their discretion and which result in sentencing to the full extent of
the law. Study data on 1040 incidents that occurred during the period 1995-1998
were obtained from five law enforcement agencies. Tables l(a-g) describe the
data according to year of incident, law enforcement agency, gender, age,
ethnicity, income category, and relationship between perpetrator and victim.
Attention to specific demographic populations (i.e., sub-groups of a larger
population) allows for the comparison of findings among and between groups.
Such research contributes to improved intervention strategies for clinical practice
as well as social policy.
29
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 1a
N um ber of D om estic V iolence in cid en ts by Year
n %
1995 233 23
1996 292 28
1997 232 22
1998 283 27
T o tals 1040 100
T able 1b
C a se s From Each Law E n fo rcem en t A gency
n %
A rcadia 328 32
El M onte 338 33
LAPD 23 2
San M arino 15 1
S h e riffs D epartm ent 336 32
T otals 1040 100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
G e n d e r o f P rim ary Suspect
n %
Male 949 91
Female 91 9
Totals 1040 100
Table 1d
Suspects' Age Categories
n %
Less than 25 years 188 18
25-34 409 39
35-44 288 28
45-54 97 9
55-84 33 3
65 and older 7 1
Age Unknown 18 2
Totals 1040 100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
T a b le 1e
Suspects' Racial/Ethnic Categories
n %
African-American 114 11
Asian-American 109 11
Caucasian 287 28
Latino 494 47
Other 16 1
Unknown 20 2
Totals 1040 100
Table 1f
Suspects' Income Categories
n %
Less than $20,000 39 4
$20s 000-$29,999 274 26
$30,000439,999 379 37
$40,000454,999 137 13
$55,000 and > 127 12
Unknown 84 8
Totals 1040 100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
T a b l e 1 g
Relationship Between S uspect and Victim
n %
Married 355 34
Unmarried, cohabiting 315 30
Separated 98 9
Divorced 39 4
Dating 87 8
Formerly dated 115 12
Unknown 31 3
Totals 1040 100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 2
DOMESTIC VIOLENCE AS A POLITICAL ISSUE
The issue at hand is a feminist issue because women are the primary
victims of domestic violence. Some dispute this and claim that both men and
women batter. They cite statistics from the National Family Violence Survey
(1975 and repeated in 1985), which examined how couples resolve conflicts in
their relationship, including using physical force, concluding that women are as
likely as men to abuse their intimate partners. However, the function of the
violence and its consequences differ. Tjaden (2001) reports on the National
Violence Against Women Survey designed to clarify the issue by measuring
physical injury,' use of medical services, involvement in the criminal justice
system, and time lost due to victimization. Findings were that women are far
more likely to report being victimized than men are, and women are much more
likely to be injured severely. Although most victims of domestic violence
experience relatively minor assaults, women are far more likely to be the victims
of severe physical assaults. Nationwide, although 28% of all women killed in
America in 1992 were murdered by a current or former partner, just over 3% of
men were killed as a result of domestic violence (Bachman & Saltzman, 1995).
I have chosen to look at the problem from a Foucauldian perspective
because I find Foucault’s claims intellectually compelling in that they provide a
framework through which to interpret the dynamics of this particular subject.
This use of Foucault to examine a gendered phenomenon may seem unlikely.
34
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
However, there are several strong similarities between feminist theory and
Foucault. Both feminists and Foucault regard as political, issues previously
considered private. Both regard power as pervasive yet local and unstable,
continuously in flux. Foucault’s later work recognizes a self socially constituted
but capable of resistance. His concepts of subjectivity and care of the self are
compatible with feminist insistence on social and political transformations to end
oppression. On the surface, one major difference between the two theoretical
perspectives seems to be in the realm of responsibility. Foucault sees the power
of the self to conceive new possibilities of self. Although feminists tend to focus
on the oppression of women, their efforts have revolutionized the way women see
themselves and expanded tremendously their opportunities. This has been
accomplished in strategic fields of power relations.
In Discipline and Punish (Foucault, 1995), Foucault discusses the problem
of illegality under the Ancien Regime where
each of the different social strata had its margin of tolerated illegality: the
non-application of the rule, the non-observance of the innumerable edicts
or ordinances were a condition of the political and economic functioning
of society.. .illegality.. .sometimes took on an absolutely statutory form—
as with the privileges accorded certain individuals and groups—which
made it not so much an illegality as a regular exemption. Sometimes it
took the form of a massive general non-observance, which meant that for
decades, sometimes for centuries, ordinances could be published and
constantly renewed without ever being implemented. Sometimes it was a
matter of laws gradually falling into abeyance, then suddenly being
reactivated; sometimes of silent consent on the part of the authorities,
neglect, or quite simply the actual impossibility of imposing the law and
apprehending offenders (p. 82).
3 5
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Although Foucault was referring to the general criminal law in France, his
analysis seems to fit the act/crime of domestic violence and the societal response
to it.
Societal Attitudes Toward Domestic Violence
Throughout history, from a time when women and children were
considered the property of men and a man’s right to physically chastise his wife
was coded into law, through a period when such assaults became illegal but were
generally ignored by law enforcement agents, to a period when the perpetrator of
domestic violence is at risk of incarceration and/or sentenced to a year of
batterers' intervention group counseling (California, 1996), there has been
continual resistance to change.
The problem of domestic violence is not an example of a straightforward
and linear progression toward solution. Traditional grass-roots efforts have
challenged deep-seated and historically grounded beliefs about female
subordination and a male right to dominate and control. The period between
initial consciousness raising and reform has been marked by a growing awareness
that existing understandings and structures do not adequately meet the problem.
The women’s political movement during the 1980s, new research projects, and
global networking and information exchange began to define domestic violence as
a social problem. In 1984 the Victims of Crime Act was the result of the
President’s Task Force on Victims of Crime and the U. S. Attorney General’s
Task Force on Family Violence. The latter found that family violence was one of
36
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the most under-reported crimes in this country. The conclusion was that
domestic violence and child abuse should be treated criminally because they
harmed not only the individuals involved but were also a threat to the social order.
Certainly, state legislatures over the past decade have responded to the
heightened public awareness of the prevalence and seriousness of domestic
violence. Congress concluded that “neither state nor federal criminal laws were
found to provide adequate protection to victims of gender-based violence,”
(House of Representatives Hearing, 1993, p. 96) and that an “existing bias and
discrimination in the state justice system often deprives victims of gender
motivated crimes the equal protection and redress of the laws to which they (are)
entitled” (House of Representatives Conference Report, 1994, p. 385). It found
“overwhelming evidence that gender bias permeates the court system and that
women are most often its victims” (Senate Hearing, 1991, p. 43-44). After
assessing the failure of state legal structures to provide adequate relief to victims,
both houses of Congress finally passed the Violence Against Women Act
(VAWA) in 1994. It took four years of conflict and contention, and at least
fourteen versions and numerous changes which restricted the usefulness of the
law in domestic violence situations (Brenneke, 1992).
The violent Crime and Control Act of 1994 required the courts to sentence
all first-time domestic violence offenders to probation or imprisonment. Judges
could order post-prison supervised release or sentence first-time offenders up to a
37
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
year for a misdemeanor and up to five years for a felony conviction.8 Federal
legislation in the area of data collection and sharing among states and
municipalities such as the Uniform Federal Crime Reporting Act of 1988,9 the
National Crime Information Center Project 2000 in 1990,1 0 the National Law
Enforcement Cooperation Act of 1990, and 28 U.S.C. 534 note (1994) (section
entitled “Family & Domestic Violence; Data Collection & Reporting,” all codify
and strengthen the criminalization of domestic violence (Stevenson, 1997).
State legislatures were lobbied to follow suit. Currently they challenge
preexisting consensus definitions of intimate social relationships and attempt to
alter hierarchies of power between the perpetrator of violence and the victim,
between both and the state, and among the various agents of criminal justice.
However, the law on the books and the law in practice are two different animals.
The application of law is judged reasonable or not by its context in a particular
community of interpretation. Law is not a closed system of logic, protected from
political influence. It is inexorably tied to politics, functions to serve political
purposes and interests, and lends itself to a multiplicity of interpretations. With
respect to the criminalization of domestic violence, the issues are highly political.
8 See 18 U.S.C. 3559(1994)
9 Pub. L. No. 100-690, Title VII, 7332, 102 Stat. 4468 (1988) (codified at 28 U.S.C. 534
note (1994) (section entitled "Family & Domestic Violence; Data Collection & Reporting")).
10 Pub. L. No. 101-647, Title VI, Subtitle B, 104 Stat. 4823.
38
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Laws operate in a world of opposing claims, usually working in favor of
those who hold power at the expense of those who do not. They originate in a
division between competing interests and are enforced (or not) within the
framework of a struggle for power. Conflict theory has considerable heuristic
value for analyzing our system of law and its enforcement. It provides a model
for studying the impartiality of our legal system with regard to social class, race,
and gender. Chiricos and Waldo (1975) described a new “conflict criminology”
radically different from “functional criminology.” This new criminology would
include an exploration of the relationship between the social characteristics of
defendants and victims, such as race, ethnicity, socio-economic status, and gender
and the enforcement of criminal law. The fact that perpetrators of certain offenses
such as rape, domestic violence, and hate crimes have been treated leniently
suggests that the victims of these crimes are valued less in the eyes of the law.
The enforcement of recent domestic violence laws occurs within patterns
of interpretation and action founded in longstanding institutionalized norms.
These continually resist reconceptualizations. The process of enforcement reveals
underlying understandings which have largely operated sub silentio. The
phenomena of minimizing the act of violence, excusing the perpetrator, and
blaming the victim, by all of the parties involved—the batterer, the victim, and
criminal justice agents—are strong elements in the uneven application of the law.
The laws criminalizing domestic violence exist; public rhetoric has changed. The
laws are not enforced
39
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The How and Why of Resistance
to the Criminalization of Domestic Violence
A Private Crime?
There is a reluctance to treat perpetrators of intimate assault as criminals.
The concept of the sanctity, inviolability, and privacy of the family has protected
imbalances of power by shielding them from public scrutiny and intervention.
Whereas public violence is treated as a deviation from rather than as a natural
aspect of society with the perpetrator defined as deviant, belonging to a separate
socio-demographic space, there is a strong resistance to regarding intimate
violence as criminal. There is an irony in treating violence against intimates and
family members as less important or serious than violence against strangers or
non-family members.
Because intimate violence usually occurs over an extended period, within
a relationship supposedly of trust and security, and because it has tremendous
potential for trans-generational transmission (Kalmuss, 1984; Star, 1978; Straus,
Gelles, & Steinmetz, 1980), it is a more reprehensible crime. There is surprisingly
little attention paid to the connection between family violence, street crime, and
substance abuse. This is in large part due to the artificial split between what is
considered private and what is considered public. This split continues to
undermine efforts to address domestic violence. The California Penal Code is
explicit in its recognition that “spousal abusers present a clear and present danger
40
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
to the mental and physical well-being of the citizens of the State...”1 1 Although
concern about the problem has increased, and varied social responses to the
problem have proliferated, there is still a reluctance to treat the perpetrators as
criminals.
Foucault acknowledges the pervasiveness of politics in everyday life: “To
say that everything is political is to recognize this omnipresence of relations of
force and their immanence to apolitical field” (Foucault, 1979). A crucial focus
of feminist theories is that “the personal is political.” In one sense it is a claim
that nothing is completely self-regarding or free in the sense of being unaffected
by relations of power. In another sense, the identification of something as private
or personal has defined it as being outside of the political or public arena. One
presumption has been that intimate relationships are voluntary and equal, thus not
requiring the intervention of the state (Gavison, 1992; Lopata, 1993; Fineman and
Mykitiuk, 1994; E. M. Schneider, 1994). Here a distinction is drawn between the
public or political sphere (regarding matters that concern society) and the private
sphere or family (regarding matters of private interest). This has precluded the
analysis of “personal” problems, such as domestic violence, as consequences of
social and political structures and impacting the larger society.
Even though there has been a wide range of reforms over the last thirty
years, federal and state legal actors continue to become complicit in the silence.
u Cal. Penal Code 273.8 (West 1988) (amended 1994).
41
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Preferences by Individual actors within the chain of justice to treat domestic
violence as a private matter or to ignore it whenever it does not meet their
perceived threshold level of violence, diminishes Its import and marginalizes the
needs of the victims. The result is that much of women’s victimization is hidden
(that is, not accounted for by official statistics), routine, and socially legitimated
(Stanko, 1990).
The National Crime Victimization Survey serves as the primary source of
victimization data used by criminologists. Yet before 1992, this instrument did
not question sample respondents specifically about rape or sexual assault, asking
instead only whether they had been “beaten up” or attacked in other ways. Nor
did the survey specifically attempt to measure abuse in the home, inquiring only
whether “anyone” had committed violence against the respondent. General
methodological criticisms and concerns of victim advocates led to extensive
redesign which included specific questions about rape as well as an item
addressing domestic violence. These changes increased overall estimates of
personal victimization by 44%, rape and sexual assault victimization by 157%.
The new survey also produced a 72% increase in women’s reporting that they had
been victimized by intimates, and a 155% increase in reports of victimization by
other relatives (Bachman & Saltzman 1995). The choice of research and survey
questions and challenges to these choices by victim advocates are part of the fluid
system of power relations.
42
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Gender Oppression Through Power, Control, and Silence
Power and Control
The controlling nature of this violence is exemplified by the fact that the
point of separation, when the victim chooses to leave and reclaim a separate
identity, is when there is the potential for the greatest harm. Batterers tend to
have a strong sense of entitlement (Mill, 1912; Schechter, 1982; Sousa, 1999;
U.S. Commission on Civil Rights, 1982). Their life experience has led them to
believe that violence is justifiable to get what they want, and to maintain control
of their family (Hoctor, 1997; Litendre, 2000; M. J. Pena, 2001). For men who
do not have access to other resources, battering serves as a way of doing
masculinity. Control is the batterer’s life, and he typically feels entitled to batter
when he feels out of control or powerless (D. Dutton, 1995; Gelles, 1997;
Jacobson & Gottman, 1998; Petrik, Olson, and Subotnik, 1994). This sense of
entitlement leads to a denial of wrongdoing and recalcitrance in the face of
criminal censure.
A batterer uses violence to achieve and maintain control over his partner.
Rarely is the violence a single incident. Often victims endure years, perhaps
decades of brutal treatment which always includes psychological abuse. Most
women who are victims of physical assaults generally experience multiple acts
over time” (Heise, Ellsberg, & Gottemoeller, 1999). Rodgers (1994b) found that
1/3 of the Canadian women in a 1993 national survey of women who had been
physically abused feared for their life at some time in their relationships.
43
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Physical, and psychological violence, which always co-occurs, in these
relationships (Heise et ah, 1999; C, M. Murphy & O’Leary, 1989) may result in
symptoms of post-traumatic stress disorder in the victims (CascardI, O'Leary, &
Schlee, 2000; Dakis, 1995; Kemp, Green, Hovanitz, & Rawlings, 1995; Mertin &
Mohr, 2000; Street & Arias, 2001). Battered women often say that the
psychological abuse and degradation are even more difficult to bear than the
physical abuse.
Woman battering is a form of torture (Marcus, 1988; L. Mills, 1999;
Winick, 2000). It parallels the tactics of captors who demoralize and control
prisoners of war. Romero (1985) reviewed research published in 1957 on the
treatment of U.S servicemen in Korea by their Chinese captors. The debilitation
of prisoners was usually accomplished by tactics such as sleep deprivation,
rationing of food and water, and forcing the prisoner to stand for hours or spend
time in a sweatbox. She found that common factors in the battering and prison
camp situations are: isolation (which reinforces the belief of the wife or prisoner
that the abuse is justified), violence or the threat of violence or punishment
alternated with ‘kindness,’ constant interrogation and discussion aimed at
redefining the victim/prisoner’s responsibility in the situation, and humiliation
and degradation to reinforce the feelings of helplessness. The tactics used by the
Chinese so effectively demoralized U.S prisoners that, although the camp was not
heavily guarded, they did not attempt to escape. In extreme cases some men
44
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
simply lay on their cots, turned their faces to the wall and died. While some can
understand this reaction by prisoners of war, they question the inability of women
to escape domestic violence.
To the extent that a battered woman believes she needs her batterer and is
dependent on him, she will be at a disadvantage in her ability to set boundaries to
protect herself. Domestic violence implies an imbalance of power. In a system of
gendered power imbalance, women do not see themselves as possessing authority.
Their best hope has been an appeal to the largess of their husbands or to a higher
authority to persuade their husbands to do right. Domestic violence, particularly
between husband and wife, has been considered one of the most extreme
manifestations of the system of power on which gender relations are founded in
patriarchal societies (Connell, 1987; Fuller, 2001; Goldner, Penn, Sheinberg &
Walker, 1990). Its perpetuation is incomprehensible without an understanding of
women’s dependent and subordinate status in society. Gelles and Loseke (1993)
suggest that a sociological approach to eliminate domestic violence “requires
nothing less than changing the structure of the American family” (p.5). The
structure of the family has changed, men have changed; however, as Messner
(1993) noted these changes “do not necessarily contribute to the emancipation of
women” (p. 725).
Men who benefit from a social structure of power that oppresses women
do not want to lose their perceived power over women. “.. .there is still very little
45
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
willingness among powerful men to transform the social institutions within which
they construct their power and privilege over others” (Messner, 1993, p.732).
Silence
In domestic violence the maintenance of control requires the silence,
suppression, and complicity the victim. Silence Is often the consequence of a
victim’s desire to avoid shame and retribution.1 2 Although the victim does not
actively create the situation of abuse, she internalizes the blame (Barnett & La
Violette, 1993; Gordon, 1993; Landenburger, 1989; Register, 1993; Stark, 1995;
Walker, 1979; Weissman, 2001). Social mores present the structure permitting
the silence. Popular images in the media also create forms of silence. The
silences include ignoring the existence of abuse in the home, its issues and
problems, and minimizing its occurrence and effects. Our preferred community
image dictates that we treat domestic abuse as aberrant, not something into which
society need put a lot of energy. In addition, the lack of personal financial
resources and the lack of public resources for shelters, safe havens, counseling or
other means of helping a victim end or move away from the violence contribute to
her silencing by limiting her ability to escape the abuse and reclaim her identity.
1 2 See Scream Quietly or the Neighbors Will Hear (Pizzev. 1974).
46
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Resistance to Oppression
It is difficult to separate issues of power from any examination of society.
Foucault claims that the traditional concept of power used by philosophers and
sociological theorists is inadequate. It is a partial view, only one aspect of power
relations, that of domination, prohibition, and repression. For Foucault, power is
not understood purely in negative terms. In a traditional liberal view of power,
certain arenas such as family were considered private or apolitical. With respect
to the criminalization of domestic violence the issues are highly political.
Foucault’s concept of power is particularly appealing because it considers the
notion of the political to be present in the everyday dynamics of intimate
relationships.
According to Foucault, it is at the level of the most mundane and routine .
experience—at the level of everyday existence—that the normalizing effects of
power are most insidiously deployed. He sees the self, or “subject” as being
continually transformed through these power relationships on a micro-level while
internalizing or resisting ways of being historically and culturally constructed.
Foucault describes power as dispersed across complex and heterogeneous social
networks marked by ongoing struggle. Power is always at issue in ongoing
attempts to maintain and reproduce dominant social norms and alignments. It Is
an intricate web of constraining interrelationships among actions rather than
among agents. This plurality of power also includes the variety of technologies
and kinds of knowledge that influence and/or restrict our choices. In this sense,
47
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
power Is not bad or Immoral, nor is the inevitable shaping and constraining that
goes with it. Because of the interdependence of these relations of power, the
changes that occur in the totality of power or force relations are not simply
consequences of the characteristics of Individual actors or relations but of their
interaction. The totality of interaction'is unpredictable because of the multitude
of complex and interwoven ways it occurs. Because these circumstances are
arbitrary and historical they are vulnerable to resistance, inherently unstable and
potentially reversible. Domination creates its own resistance. Throughout history
“oppressed groups both actively participate in their own domination and they
actively resist that domination” (Messner, 1993, p. 730). All systems of
domination are systems of conflict.
Every movement to challenge oppression has been met with tremendous
resistance and has required a long and arduous struggle. As many social justice
movements have and continue the struggle to protect and enlarge society’s
understanding of human rights, they face a myriad of defensive responses. More
than three decades ago, the United States took up the challenge of eradicating
gender discrimination. However, deep-rooted gender bias unavoidably stands
beyond the direct reach of law. Even if forces supporting social change succeed
in enacting legal protections, traditional norms and Institutions do not vanish
overnight. In heterogeneous societies no one normative or institutional system
exercises exclusive sway. Thus, in most situations in which social change efforts
48
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
are underway, pressures for social retrenchment vie with emerging pressures for
social change.
Jurisprudence
This study applies concepts of social change to issues of jurisprudence, in
particular, the implementation of a specific category of criminal law. Throughout
most of the 19th century, sociology and jurisprudence were closely related.
Structural-functionalist and conflict theories, which developed from nineteenth
century social theory of industrial society, recognized institutions of law as
legitimating state authority, enabling the state to maintain the prevailing order. A
structural-functionalist perspective ignored regimes of oppression and
exploitation. It was in the late 1950s that C. Wright Mills (1959), attacking this
omission, suggested that sociologists should investigate the usually ignored
subject of power. Readings in law and sociology began to focus on conflict
generated by the competing interests of societal divisions based on class, power,
wealth, prestige, and privilege. In “Out of Utopia,” Dahrendorf (1958) supported
Mill’s analysis by arguing that concepts like consensus, equilibrium, and
evolution should be replaced by conflict, power, and struggle. Social and legal
theories are both concerned with the tensions between structure and agency.
Social structures include the basic political, economic, and legal institutions of a
society which, often without an individual’s awareness, limit individual agency
and force individual behavior into specific channels. Law is part of social
49
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
structure and the law in practice operates within social structures such as
institutions and group interests.
Gendered Institutions, Norms, and Roles Provide
Continued Support for Domestic Violence
The Use of Law to Effect Social Change
The use of law to effect social change, to extend social recognition and
protection, is essential to the development of society. The great social movements
in support of individual rights—democracy, universal suffrage, representative
government, and the challenge to patriarchy—have all resorted to law. Coalitions
in conflict with an existing order have succeeded in enacting reformist laws aimed
at changing social norms, such as those insuring universal suffrage and the right
of workers to form unions, and laws criminalizing domestic violence. In this
process, interrelated norms and taken-for-granted social meanings, which operate
as largely invisible background rules in social interaction are brought to
consciousness and made visible. These norms structure social perception,
communication, and interpretation by creating a false impression of shared
meaning and experience. Women’s interests have been ignored, obscured and
excluded in a functionalist ethos where men’s interests and women’s were
assumed to be congruent (Abrar, 1996).
There Is a societal ambivalence about the crime and the parties involved.
This ambivalence, supported by long accepted understandings of the marital
relationship, explains much of the resistance to an effective response to domestic
50
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
violence. What occurs in a violent marriage has been what Foucault refers to as
“subjugated knowledge.”
By subjugated knowledges I mean two things: on the one hand, I am
referring to historical contents that have been buried and disguised by
functionalist coherence or formal systemization...on the other hand...by
subjugated knowledges one should understand something else,...a whole
set of knowledges that have been disqualified as inadequate to their task
or insufficiently elaborated: naive knowledges, located low down on the
hierarchy, beneath the required level of cognition and scientificity
(Foucault, 1980, pp. 81-82).
The fact that academic research, even in journals dedicated to family
studies, did not address domestic violence until the 1970s is an example that this
knowledge has been subjugated. The results of domestic violence research in the
United States began to be published in 1973. The first epidemiological study on
family violence (Straus et al., 1980) and Lenore Walker’s continuing work on the
subject of spouse assault (Walker 1978, 1979, 1981) contributed to the growing
awareness that domestic violence was a problem of society, not individual
pathology.
Liberal theories generally share certain assumptions about the
responsibility of the state to the individual. The state is expected to treat each
citizen with equal concern and respect and to secure for each the freedom to
pursue personal objectives that are consistent with similar freedom for others. An
appreciation of the worth of each individual underlies the commitment to equality.
Acknowledgment of this is only a beginning. The more serious problem lies in
the limited scope and inadequate enforcement of acknowledged entitlements.
51
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Discretion in the implementation of law is both necessary and a potential
for abuse and discriminatory application. After the acquittal of O. J. Simpson in
the murders of Nicole Brown Simpson and Ronald Goldman in 1995, there was a
surge in new domestic violence law in California. This activity was motivated in
part by a desire among legislators and victim advocates to limit discretion in the
enforcement of domestic violence law and to mandate training for criminal justice
agents. Foucault would refer to this as an example of govemmentality. As
knowledge in this area expands it is manipulated to change laws and to regulate
their enforcement. This kind of power is knowledge-power or a power-produced
knowledge.
The most significant advances in recognizing and responding to domestic
violence as a crime have occurred during the past 35 years, more particularly in
the past decade. However, the administration of domestic violence law varies
tremendously among jurisdictions while the effectiveness of criminal justice
response ranges from adequate to irresponsible (Coukos, 1998). While legislators
are lobbied to increasingly structure response to domestic violence incidents,
there exists a widespread ambivalence to the crime of domestic violence and its
participants (Stalans and Lurigio, 1995). Durham (1998) identifies what she
considers to be the underlying problem with current approaches to domestic
violence: the overreaction to its uniqueness. The criminal justice system tends to
not respond as vigorously to domestic violence incidents as it does for other
violent crimes (Buzawa & Buzawa, 1996a; Straus, Gelles, & Steinmetz, 1980;
52
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Vera Institute, 1977) in spite of the fact that domestic violence extracts a far
greater toll on the social fabric than any other violent crime. There is tremendous
variability in how these recent changes in law and policy have been applied.
Because formulated law takes on an independent existence in the hands of
actors in conflict with those laws, implementation continues to raise equal
protection concerns.1 3 With strong inertial pressures resulting from the dynamics
between internal politics and legislative mandate, organizations of criminal justice
are one setting for the study of praxis where ideas and material interests intersect.
They provide the context for symbolic interaction as it operates in response to a
social conflict.
Bardach (1977) refers to implementation politics as a special kind of
politics. As empirical data continue to challenge one’s map of the world yet
demand to be assimilated, tensions arise which lead to resistance. This resistance
arises from conflicts between strongly held norms and persistent data challenging
these norms. The continually expanding domestic violence law has forced
discourse and response among criminal justice agents. As horrific narratives of
domestic violence have been presented by victims and victim advocates, they
have met with denial, skepticism, and resistance for a variety of reasons.
13
In her comprehensive study o f the law and mental illness, Warren (1982) described the
failure o f law to protect the mentally ill. She explored the development and implementation of
legislation as a process o f conflict over interests. She also documented how once laws are passed
they take on an independent existence as those responsible for their implementation interpret and
respond according to structural limitations, group interests and personal predilections.
53
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Narratives such as these were silenced in the past. They are publicized in part to
establish a historical knowledge of the experiences of battered women and to use
this knowledge tactically. Whereas criminal law is intended to stigmatize and
exclude offenders through prosecution, trial, and imprisonment/ instead, silence
serves to stigmatize and exclude victims. While battered women’s voices have
become part of feminist consciousness, they are largely muted in narrative
jurisprudence.1 4 The lived experiences of victims are all but invisible in the
practice of domestic violence law. Victims’ stories become lost in the criminal
justice process1 3 with its focus on discrete incidents. Abuse is a process of control
and torture, not an incident. As the history of the distress and anguish
experienced by the victim becomes irrelevant and inadmissible in the legal
process, the crime loses its horror; the breadth and depth of the problem are
ignored—and the sentence becomes excessive (Bandes, 1996; Lacey, 1998; R.
West, 1993).
the language of embodied existence-of pain, shame, loss of self-esteem, the
sense of violation and obj ectification-find no place within formal legal
categories: nothing in those categories invites the victim to constuct her
testimonial narrative in the terms which empirical research suggests would
best relate her experience. At the level of doctrinal construction of criminal
wrongdoing, affective experience is, if not absent, more or less invisible
behind the veil of rational and abstract legal subjectivity. (Lacey, p. 62)
14
Murphy (1993) noted that providing narratives to judges as well as to lawmakers
focuses the decision-makers on human costs and the human dimension o f the problem.
1 5 Transfer from verbal accounts to written reports alter the meaning and significance of
acts of violence. Discrepancies include deletions o f abusive incidents, certain types o f abuse, and
euphemisms regarding sexual violence. These can have negative ramifications on judicial
proceedings where victims may be required to explain inconsistencies. (Trincfa 1999)
54
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Weissman (2001) also describes that victims’ narratives are compelling, but rarely
permitted to influence decisions in criminal justice case processing:
The legislative history of YAWA reveals a successful departure from
traditional law-making because it rested on a method of discourse
posturing as impersonal, general, and neutral Throughout the public
hearings, human stories unfolded, in narrative form, which informed
members of Congress of the realities of gender-based violence, and this
method of story-telling contributed to the accomplishment of a major legal
reform. VAWA witnesses thus avoided a form of truncated discourse,
frequently forced upon victims in court proceedings, which often deprives
them of their opportunity to convey their reality without being demeaned
or revictimized, or having their accounts disaggregated. Personal stories
underscored the human costs of gender-based violence and introduced
legislators to the relationship between violence against women and
women’s inequality. Public congressional testimony offered in narrative
form served to spur legislative changes, and it continues to resonate as an
effective discursive model for revealing the magnitude of the problems
associated with gender-based violence, (p. 1096)
Although changes in domestic violence law have received wide public
support, their impact has strained an already overburdened criminal justice
system. Resources are limited, there is a functional interdependence that
overrides the particular interests of judge, prosecution and defense, and outcomes
tend toward standardization as the constraints of efficiency promote a consensus
on case evaluation. There are processes of social interaction founded in history
and social economics that impact and constrain the decision-making that results in
case outcomes. There are still deep divisions among professionals (Johnson,
Sigler & Crowley, 1994) and a general ignorance on this issue throughout society.
There is a diversity of perceptions and interests among agents and uncertainty
about the relationship between means and ends. Processing these cases
55
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
necessarily involves decisions by individuals who are neither omniscient nor
immune to extralegal influences. K. C. Davis (1969) argued that
the greatest and most frequent injustice occurs at the discretion end of the
scale, where rales and principles provide little or no guidance, where
emotions of deciding officers may affect what they do, where political or
other favoritism may influence decisions, and where the imperfections of
human nature are often reflected in the choices made.
As domestic violence law increasingly limits the discretion of police, prosecutors,
and judges, one effect is to make the politics of the implementation process highly
defensive with energy being expended in maneuvering to avoid responsibility,
scrutiny, and blame.
In this chapter we have discussed domestic violence as a political issue,
one that until the past 40 years has been kept undercover as belonging to the
“private” sphere of family. Domestic violence assaults are part of a pattern of
power and control, previously legitimized in law. Although silence still reigns
and most domestic assaults remain unreported, there has been a great deal of
publicity during the past decade, particularly in California, about the prevalence
and seriousness nature of domestic violence. However, changes in law to limit
discretion in criminal justice processing have been difficult to implement. While
the recent criminalization of domestic violence is met with resistance at all levels,
it also provides an opportunity for individuals to examine their beliefs and
choices.
56
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER3
METHODOLOGY
Although I work closely with perpetrators of domestic violence in my role
as a facilitator of batterers’ intervention groups, my contact with perpetrators
during this study was limited since the research data were extracted primarily
from paper records. I recorded data, utilized a statistical software package for the
social sciences, and interpreted the results. When I interpret, process, and
communicate this information it is through the lens of my own socialization as a
woman, in particular as a woman who has intimate knowledge of the experiences
of both victims and abusers. The gender of the researcher will always play a role
in the study of gendered violence. Neither men nor women can be truly objective
on this issue. In this project I have taken a stand. I do not subscribe to the
principle that research should not influence or change anything. I am trying to
shed light on a phenomenon in order to effect change. My insight as a woman
who has worked closely with male perpetrators for nearly ten years is one of
advantage. In all aspects of my work—as a researcher, a victim advocate, or a
group facilitator—I attempt to understand the experiences of both sexes and the
relationships between them.
Nature of the Data
Archival data, primarily law enforcement domestic violence incident and
supplemental reports and court dockets, are the primary source of information for
this study. Field observation and interviews supplement the archival data.
57
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Statistical analyses have been performed on a random sample of 1040 domestic
violence reports that were filed during 1995-1998 in Los Angeles County and the
corresponding court dockets for those cases that resulted in charges being filed.
Police reports were not designed for research purposes. They contain
inaccuracies and omissions. At times they are difficult to read due to problems in
photocopying. In addition they contain much less information than is available to
a prosecutor. However they are used in courts of law. They are a cost effective
and reasonably reliable source of information. Court dockets are more
standardized and more reliable. However, although failure to appear and bench
warrant information is explicit, court dockets do not contain complete information
on other violations of probation.
Param eters of the Study
This four-year period was chosen because in California State laws passed
in 1995 made arrest and prosecution easier. The passage of 1203.097, which
required 52 weeks of counseling and 3 years of probation, effective as of January
1, 1995 limited judicial discretion. 1203.097 was amended in the 2000-2001
legislative session by AB 1570 (Pavley/Liu) which requires defendants who are
ordered to complete batterer programs to attend consecutive weekly sessions and
complete the program within 18 months unless court finds good cause to modify
the requirements.
Particularly in California, by the second half of the 1990s, statutes had
increasingly limited discretion throughout the criminal justice system as it
58
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
responds to domestic violence. The legislative mandate was clear. The statistics
in domestic violence cases in the early 1990s show that the overwhelming number
of domestic violence calls didn’t result in an arrest, and most arrests did not result
in a prosecution or a conviction. This study examines if these ratios have changed
significantly due to the changes in legislation. The endpoint was chosen so that
most defendants would have completed the major part of their sentences by 2001.
The focus of the analysis will be on how the criminal justice system
responds to changes in law and on differences according to race/ethnicity, class
and gender. Selection of cases was designed to achieve as much variation as
possible among socioeconomic status and race/ethnicity. Since the reports
generally do not include information on income or occupation of the suspect, the
suspect’s address was used to indicate socioeconomic status.1 6 Median family
income was obtained for the census tract that corresponded to each address.
Each case in the sample was followed through the criminal justice system
to its resolution. Police are generally notified by a 911 call, a victim reporting the
incident at a police station, an officer on patrol being flagged, or by direct
observation of a crime in progress. In all domestic violence incidents a report
must be submitted by the responding officer(s). Officers are instructed and
trained to determine and arrest the primary aggressor. Whether or not an arrest is
1 6 Fyfe, Klinger, & Flavin (1997) used an area-level proxy indicator that measured the
poverty level of the neighborhoods to operationalize social class.
59
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
made, the report is sent to the detectives for follow-up. In either case the
detective decides whether or not to forward the case to the prosecutor. If charges
are filed and the defendant has not been arrested, an arrest warrant is issued. The
defendant is arraigned and a plea Is entered. If the defendant pleads guilty or no
contest or if the defendant is found guilty, the defendant Is sentenced. A typical
sentence for a 273.5 conviction is three years probation, $300 in fines and
restitution, and a year of batterer’s intervention group. The jail time varies. In
this Los Angeles County sample it averaged 128 days with the median and mode
both at 30 days; however, for 9% of the sample, the sentence was in the 1-10 year
range. Typically the incarceration time ranges between 2 and 10 days.
Development of the Project
When I began my graduate program at the University of Southern
California in sociology and marriage and family therapy it was the summer of
1992. I knew I wanted to study some aspect of domestic violence. Initially, as I
began reading on the subject I called about 25 batterer’s groups in LA County
looking for reformed batterers to interview. At that point in time a great deal of
research had been done studying the victims, who were more available. Little had
been published about the men. Edward Gondolf, who at the time was a facilitator
of these groups, was an exception. It was my belief that these interviews would
lead to a greater understanding of recidivism on the one hand and the process of
change necessary to stop abuse on the other. Until 1998, my intention was to do a
qualitative study.
60
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
I began attending groups in Pasadena, Los Angeles and Beverly Hills.
Through them 1 made contact with 15 men, each of whom I interviewed for
approximately 3 hours. These interviews became the basis for my empirical
paper, entitled “Aspects of Fear in Men Who Batter” submitted to the USC
sociology department in partial fulfillment of the requirements for a master’s
degree in sociology. Throughout these interviews and attendance at the batterer’s
groups it became obvious that identifying reformed batterers would be an elusive
pursuit. In the group of 15 men I interviewed there was only one that I believed
was committed to making the substantial changes in his attitude and behaviors
necessary to end abusive patterns.
As a result of my experience in the groups, my growing knowledge of
domestic violence, and my ongoing training as a marriage and family therapist I
was asked to substitute occasionally and then regularly for the group leader in
Beverly Hills. In the fall of 1999 I began to facilitate batterer’s groups in San
Pedro, California. My work as a group facilitator at these two locations provided
me with part of my financial support during my graduate program and contributed
immensely to my understanding of domestic violence.
During the past 9 years I have also interviewed victims, law enforcement
officers, prosecutors, judges, victim advocates, the head of the head of the
domestic violence monitoring unit of the Los Angeles County Probation
Department, and a bail bondsman. I’ve sat and observed defendants appearing in
61
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
courtrooms throughout Los Angeles County, in El Monte, Van Nuys, and Santa
Monica, California.
By 1998 my interest had turned to questions about how domestic violence
incidents were treated by the Los Angeles County criminal justice system.
Questions initially focused on class differences among the perpetrators and to
what extent law enforcement officers, prosecutors, and judges responded
differently according to the class of the perpetrator. These questions eventually
and inevitably included racial/ethnic and gender categories. It was my desire to
collect information on approximately 600 domestic violence incidents in Los
Angeles County and follow these through sentencing and probation. My research
had developed into a quantitative analysis supplemented with narratives from the
interviews I had conducted and the narrative portion of the law enforcement
reports.
The Difficulty of Obtaining Public Information
It seemed appropriate to approach the Los Angeles Police Department, the
Los Angeles County Sheriffs Department, and the Long Beach Police
Department and request access to 200 domestic violence incident reports from
each of these agencies. Long Beach was selected because it is the second largest
city in Los Angeles County and has a good racial/ethnic population mix. In the
spring of 2000, the professor who later became chair of my dissertation
committee suggested that I look at 2000 cases. By that time it was clear to me
62
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
that obtaining access to the reports was very difficult.1' However. I attempted to
do what he requested. By February 5, 2001 when I had collected data on more
than 1000 cases from four police departments, he agreed that this was sufficient.
Ironically, although I had been unsuccessfully attempting to access LAPD records
for over 2.5 years, I received a call on April 27, 2001 from my contact in the
LAPD who informed me that although the Los Angeles County City Attorney’s
Office did not recommend the LAPD’s participation in the project, Commander
Zinxmon And Chief Parks were in favor of it. I was told that LAPD Chief Parks
had a staff member determine what needed to be done to satisfy the concerns of
the City Attorney’s Office.
The California Public Records Act clearly provides for access to the data
I was requesting, particularly in that the use was intended for a scholarly purpose.
However, although some police departments and court officials were very
supportive and helpful, the majority I approached declined to participate. When
Long Beach turned me down and I was repeatedly stonewalled by LAPD staff, I
selected 12 other police departments throughout Los Angeles County and
approached the police chiefs with my request. Of these 15 departments, four were
very supportive and provided access to their data. These are: Arcadia, El Monte,
San Marino, and the Sheriffs Department.
1 7 Frye et al. (1997) noted that very few municipal police agencies throughout the country
have voluntarily released their data to researchers. In their case, the Chester, PA Police
Department released their data only under court order.
63
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Generally, city attorney’s offices are very protective of the data and
usually cite confidentiality as a reason to withhold information. They were all
assured that neither the suspect’s nor victim’s name would be used and reported
in the dissertation and that the project was a statistical analysis. A member of one
city attorney’s staff told me she was “shocked” that other departments were
cooperating. It appeared that she was wary when she saw that the data included
prosecutor’s reasons for not filing or for dismissing charges. Although I was
promised that her supervisor would call me, he did not, even after I subsequently
left a message for him.
Initially, support and encouragement came from William T. Stonich, then
Commander of the Technical Services Department of the LASD. Without the
support from the Sheriffs Department, the task of approaching other law
enforcement agencies might have been too formidable. Staff at LASD
Information Management Services compiled case numbers from which 339
random cases were selected. A staff member in the LASD Records and
Identification Bureau pulled the reports and their supplements and copied them.
This archival data was provided to me over a 15-month period from March 1999
to mid summer of 2000. In San Marino there were only 15 domestic violence
incident reports for the entire 4-year period of this study. These are included in
the sample. In Arcadia and El Monte, I had direct access to the police reports and
transferred the data to a laptop computer at the police stations. For Arcadia, all of
the incidents reported during the period of study are included. For El Monte,
64
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
which has a much higher incidence of domestic violence, cases were randomly
selected. Court dockets were obtained from the clerk of court of each court where
these cases were adjudicated.
By this time, although I had initially requested only 200 reports from the
LASD, because other agencies were resistant and I had been advised to obtain a
total of 2000 reports, I requested all of these from the LASD. After
correspondence and a meeting with two attorneys of the LASD legal department
my request was denied. I was advised to seek private counsel. I subsequently
called the USC IRB which forwarded me to Dr. Sullivan, Vice-Provost for
Research who refereed me to a university general counsel. She in turn, after
researching the matter, advised me to consult with a private attorney to assist me.
It was at this point that I sent an introductory letter and request to 12 police
department chiefs in LA County. Arl Farris in San Marino and David Hinig in
Arcadia responded quickly in support. I have included all of the San Marino and
Arcadia domestic violence cases during 1995-1998. Although I had no direct
contact with Chief Wayne Clayton in El Monte, he arranged for me to access the
El Monte records. From these I randomly selected 338 cases. An additional 23
cases from the LAPD crime reports are included to increase the number of Asian
American perpetrators.
Because most of the police departments I contacted or their respective city
attorneys were uncooperative, I wrote to a State Senator and Assemblywoman,
both active in domestic violence victim advocacy. I also wrote to California’s
65
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
two senators, and to four judges in Los Angles County. Only one of these eight
individuals responded. However, he was no longer in a position to be of
assistance other than to refer me to the city manager who forwarded me to the city
attorney’s office where I was stonewalled.
By November 2000 I had obtained copies of the domestic violence
incident reports from San Marino and began extracting police report data at the
Arcadia station. In January 2001 I selected random reports from the El Monte
Police Department and entered the information at the police station. By February
5, 2001 I had information on over 1000 cases. The next step was to obtain the
court dockets for the cases in which charges were filed. This proved to be less
difficult than obtaining incident reports; however, some managers of court record
departments were very supportive and helpful while others were not.
Decisions Regarding Study Variables
On November 29, 1999 I had decided to include 48 variables. By January
8, 2000 the number had reached 72. On June 13, 2000 I had reduced the number
to 22. By the end of data gathering in July 2001 the number had peaked at 126.
My first inclination was to limit the amount of information entered for each case,
simply due to the time limits. However, as I began to appreciate how difficult it
was to obtain the information and to realize how valuable it was, the variables list
increased. As I read the reports, it was difficult to exclude information, even
though the data gathering process was time consuming and laborious. There are
items of information included initially that were dropped such as Was
66
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
hospitalization or medical treatment required as a result of the incident? or Did
either the suspect or the victim attack the responding officer(s)? Another area of
interest was Who called the police? In the two former categories the percentage of
cases in which this occurred was too small. With regard to medical cases,
although the option of medical treatment was suggested to the victim, the victim
would decline, saying she or he would obtain treatment on her own. In the latter
case, seldom is there information in the incident report on who called 911 or
otherwise notified police.
The smallest set of variables Included basic demographic information,
characteristics' of the incident, and law enforcement, prosecution, and court
outcomes. The final set also focuses on these basic areas but includes much more
detail. There are 27 variables alone that describe the incident. Information on the
domestic violence history of the perpetrator is included when that was available.
However, in many crime reports there was no mention of prior assaults made to
the responding officer(s). When available, the reason given for no arrest or no
charge filed is included. Over 50 items of prosecution, sentencing, and probation
information are included. Some of the last items that were included were the
names of the public defender or private defense attorney, the judge and the
prosecutor at time of sentencing. These were added because there appeared to be
significant variability in the court section of case processing.
67
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Demographic Information
The demographic information includes gender, age, race/ethnicity, and
income level of the perpetrator and gender, age, and race/ethnicity of the victim.
Ninety-one percent of the perpetrators were male; their mean age was 33.6 years.
Twenty-eight percent of the perpetrators were Caucasian, 47% Latino, 11%
African American, and 11% Asian American. Also included are the nature of the
relationship between perpetrator and victim and whether or not they have a
child(ren) in common. 34% of the couples were married, 30% were unmarried,
cohabiting, 13% were separated or divorced, 8% were dating, and 12% were
formerly involved in a dating relationship. In 57 % of the cases either there was
no mention of past domestic violence in the relationship or it was unclear. Often
the responding officers do not ask this question. However, in 43% of the cases,
there was past abuse noted in the report. Most often it had occurred but had not
been reported. Information on the criminal histories of the perpetrators is limited.
Particularly in the area of domestic violence, most incidents do not come to the
attention of the criminal justice system.
Children
Approximately 60% of the couples had a child or children in common;
these included 4% of the cases in which the female was pregnant. A child or
children witnessed the incident in 20% of the cases. Much has been written
about the needs of children in violent homes and the effect of witnessing this
violence has on children (Gordon, 1989; Jaffe et ah, 1990; Tang, 1997; U.S.
68
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Department of Health and Human Services, 1992; Yoshihama, 2000). This aspect
of the cases is explored further in Chapter 8. How do victims and criminal justice
the children factor a predictor of victim’s desire for arrest or agents regard the
presence of children? Does case outcome differ significantly? Is the children
factor a predictor of victim's desire for arrest or the decision to arrest and
prosecute?
Income
Mean family income in the census tracts involved was $38,000 in 1990,
with a range of no income to over $107,000 a year. The social class of
perpetrators and victims of domestic violence has received some attention. In
fact, according to Hotaling and Sugarman (1990), there is no more controversial
finding in the literature on wife assault than that concerning social class or
socioeconomic status. Although previous studies have indicated that arrest has
differential effects depending upon the socioeconomic status of the perpetrator,
with contradictory results (Berk & Newton, 1985; Sherman, Schmidt, & Regan,
1992), there is little information on class differences in arrest, prosecution, and
sentencing of perpetrators. This study provides needed information on a subset of
the population that has been under identified. The class-based analysis in Chapter
6 allows for the comparison of findings according to this variable.
Severity of Assault
Over 81% of the victims sustained physical injury. To measure the
severity of the physical assault I assigned a severity score to each case. Cases
69
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
where there was no physical assault (166 or 16% of the total) were given a score
of zero. The remaining cases ranged from 1 to 23, with a score of 23 being the
most severe. It is difficult to assess severity of assault, because a number of
aspects such as fear and pain experienced by the victim or extent of damage to the
body axe not indicated in a police crime report. Those aspects of the assault that
were given more weight were: a head or neck injury, particularly a strangulation,
multiple signs of injury, and the suspect using multiple body parts such as fists
and legs. Pushing, shoving, etc. or grabbing the victim by the hair but leaving no
sign of injury = 1. There were 227 cases (21.8%) given a score of 1. A sign of
injury = 2. The use of multiple body parts — 2. A head or neck injury, but not a
strangulation = 3. Multiple signs of injury = 3. Victim struck with a blunt
instrument = 3. Fifteen percent of the cases had a score of 2 or 3. The largest
group of cases (28.6%) had severity scores of 5 or 6. If the victim was pregnant 8
points was added to the score. If the victim was strangled 10 points were added.
Cases with severity scores of 7-23 fell into a separate category which was
comprised of 194 or 18.7% of the total cases. For example, a score of 6 was given
to a case where the suspect back-handed his victim on the face, punched her In the
nose and began pushing and shoving her, leaving two visible injuries. A score of
15 was given to a case where the suspect grabbed the victim’s hair, pushed her
facedown on the couch, knelt on her, and strangled her. Sixty-eight percent of the
cases that resulted in the defendant being sentenced had scores of 5 or above. In
70
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
over 75% of the cases where the suspect was sentenced, the suspect had inflicted
a head or neck injury.
Case Processing
Police officers are generally only interested in the incident at hand. They
are not trained or encouraged to consider the broad context of the incident such as
motivations and clinical consequences of the incident or it’s prosecution. When
available in the police reports, past history of abuse was noted. The part of the
body struck and the number of assaults was also included when available. The
nature of the archival data available did not lend it self to a conflict tactics scale
analysis, although much of the information included corresponds to items of the
scale.
There was no witness to the incident in 60% of the total cases. Prior to
1996 police officers could not make an arrest for a misdemeanor unless he or she
had witnessed the crime. AB 2116 allowed police to make warrantless arrests in
domestic violence incidents. Police would be required to have reasonable cause
to believe that the suspect had committed the assault or battery. Appendix D. is
an article reviewing support and opposition to the measure.
Half of the victims were desirous that the suspect be arrested, another 9%
wanted only a report taken. There is substantial literature on the reluctance of
victims to cooperate with the prosecution of their abusers. The reasons are
numerous and varied. There is the fear of retaliation, the dependence on the
perpetrator, the negative interaction of the victim with agents of the criminal
71
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
justice system, intimidation by the entire process, wanting the perpetrator to stop
but not wanting him/her to be punished (Barnett & LaYiolette, 1993; Carlson &
Nidey, 1995; R. C. Davis and Smith, 1995; Edwards, 1989; D. A. Ford, 1983;
Gamer & Fagan, 1997; Pagelow, 1981; Stanko, 1989; Tang, 1997; Vilhauer,
2000).
There were dual arrests 4% of the cases; one individual was arrested in
47% of the cases; however, 60% of the cases were sent to the prosecutor.
Charges were filed in 33 of the cases. A sentence resulted in 22% of the cases.
Prior to 1995, in Milwaukee, Wisconsin only about 20% of domestic violence
arrests were being prosecuted (R. C. Davis & Smith, 1995). After a change in
reliance on the victim’s cooperation, prosecution went from 20% to 80%.
However, the conviction rate in domestic violence cases with uncooperative
victims is low (D. Dutton, 1995; Fagan, 1989; D. A. Ford, 1993; Schmidt and
Steiuy, 1989).
Empirical Analysis
The data have been analyzed using the Statistical Package for the Social
Sciences (SPSS) software package. The analysis involves frequencies, cross
tabulations (Chapters 5-6), and logit analysis (Chapters 7-8). The latter method,
which is the foundation for the analyses in Chapters 7-9, is analogous to multiple
regression, but is more suitable for categorical data. It assesses the net effect of
any particular variable (or interaction of variabl es) on a dependent variable when
other variables are considered simultaneously.
72
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 4
THE LAW AND ITS APPLICATION
This chapter reviews recent changes in California domestic violence
legislation and the tremendous variability in how these changes in law and policy
have been implemented. California became the subject of attention early in the
previous decade because of the murders of Nicole Brown Simpson and Ronald
Goldman and the subsequent trial of O. J. Simpson for the murders. Media
coverage exposed what many concluded was an inadequate response to domestic
violence. O. J. Simpson had been ordered to obtain therapy after a past domestic
violence incident. He was able to satisfy the court with two phone conversations
with a psychiatrist. In part, as a response to public pressure and the awareness of
successful civil suits by victims and/or their families, California legislators and
law enforcement agencies introduced “get tough” laws and policies in the mid
1990s (Momjian, 1997). The intent of legislators was to increase domestic
violence arrests and prosecution and standardize sentencing by limiting discretion
on the part of law enforcement and the courts, and to a lesser extent the
prosecution. The following was taken from Penal Code 1270.1:
The overriding purpose of Pen. Code, § 273.5, is to deter domestic
violence. Since enacting its predecessor statute in 1945, the Legislature
has continually broadened the scope of this protection. The evolution of
this statute reflects a developing awareness of the human factors that lead
to domestic violence. The Legislature’s enactments reflect a societal
determination that domestic violence, once viewed as a purely private
matter in which the state was reluctant to interfere, will no longer be
tolerated. Victim and batterer in domestic violence situations have a
special relationship, with the victim often particularly vulnerable.
73
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In this chapter how the three agents of criminal justice—law enforcement,
prosecutors, and judges—respond to domestic violence incidents Is considered
historically and with regard to the recent changes in legislation. Ultimately, It
falls to the police and prosecutors to identify and select a manageable number of
cases to prosecute given limited resources. Prosecutors do not generally review
police decisions not to arrest or not to investigate. Similarly the courts do not
review the cases prosecutors reject. Each of the three—law enforcement,
prosecution, and the court—is considered separately.
L aw Enforcement
On August 24, 1995 the California Senate unanimously approved a bill
sponsored by the California Alliance Against Domestic Violence (CAADV) that
would expand the definition of “abuse” protected by domestic violence protective
orders to include stalking, harassing phone calls, contacting by mail to harass, and
the intentional destruction of property. The bill is intended to bring restraining
orders Into alignment to cover all aspects of domestic violence. For stalking
victims, the law changed so that the California Department of Corrections must
now notify the victim if the stalker is being released. Legislation also mandated
regular training for officers on how to deal with domestic violence calls, which
present some of the most difficult and dangerous situations for law enforcement.
The law provided for training which began in 1986 and was amended several
times. On August 31, 1995, the Assembly approved SB 132, by Sen. Diane
74
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Watson, Los Angeles on a vote of 47-3. The bill requires law enforcement
officers below the rank of supervisor who are assigned to patrol duties to
complete domestic violence training every two years. The bill, which is
supported by a consortium of law enforcement agencies, also requires officers
responding to domestic violence calls to report whether the suspect is under the
influence of alcohol. Assemblywoman Sheila Kuehl, D-Los Angeles, spoke in
support of the bill, saying its purpose is to “strengthen the response of law
enforcement officers during domestic violence calls” (Martineau, 1995).
In California as in other states, domestic violence arrests have Increased in
response to suits against police departments for “failure to protect” victims, public
awareness about domestic violence, tougher laws, and better training of police
officers. At present, California law enforcement officers make more arrests for
domestic violence than for rapes, homicides, kidnappings, and robberies
combined (California Department of Justice). A data analyst with a large
metropolitan police department in California has concluded that a high number of
1 S
calls to police suggests that the police are effective. If the police are not helping
the victims, the victims stop calling. He stated that women in their area have been
calling because they get significant police response. “They don’t have to take the
law into their hands and kill the guy, which can happen when they have
1 8 Domestic violence calls to police increased by 27% in California between 1989 and
1993, in partial response to increased law enforcement efforts (Boxall & Muir (1994)).
75
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
absolutely no recourse.” He believes that the domestic violence homicide rate
will drop when the calls are high. To him, a decrease in calls is an indication of
problems. For example, it may be due to a change in police chief who doesn’t
consider domestic violence a priority (7/31/98 Interview).
In part, because of the widely held view of domestic violence as a private,
family matter, (D. Martin, 1976; Herman, 1986; Buzawa & Buzawa, 1996b), past
law enforcement protocol was usually limited to mediating and breaking up
“fights,” but not taking the suspect into custody unless the victim suffered major
injuries (Bard & Sangrey, 1979; Gordon, 1993; D. Martin, 1976). Even when
arrests were made, the resulting misdemeanor charges brought light sentences. A
law enforcement officer in Los Angeles County related the following in an
August 1998 interview:
I’m a second-generation law enforcement officer. My father was an
Illinois state trooper. And he told me when I got into this profession; he
talked to me about the most dangerous call that a law enforcement officer
can receive, and that is a family disturbance call, a dv call. And his advice
to me was this, “Get in. Get out And don’t get sucked into taking sides.”
He thought it worked for him; I thought it worked for me when I was out
there. That’s what you do. Get in. Hairy, why don’t you take a walk,
cool off. Go on down to the local tavern and have a beer. Then you talk
to the spouse; “You want to do anything about this? No, no. He’s my
husband. I love him, and I’m sorry. Ok, great. See you later. All it
would be is a log entry. But then next Saturday night, Harry would get
drunk; we’d be back there and go through the same routine. It was
repetitious. Now, ... that’s not too far off of the way we have operated
forever. ...
when I was in a radio car 30 years ago, I’d get a call. There’s Harry and
Mary. Harry’s beating on her. “Harry, take a walk.” “Yeah, yeah.” And
off he goes, and “Mary, do you want to do anything?” “No, no; I just
want him out of the house for a while.” Do you need to go to the hospital?
“NO! NO! I’ll take care of it myself. Ok, my partner and I would log the
76
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
entry. We’d go out. Next week 10 o’clock Harry’s probably home. He’s
spent the paycheck. He’s all ginned up. We should be getting a call. I
mean we would take bets on it. Sure enough, there’s the call. We’d go
back and find the same thing.
As early as 1967 the President’s Commission on Law Enforcement and
Administration of Justice report, The Challenge of Crime in a Free Society, made
recommendations to police regarding domestic violence. They were advised to
write a report in all incidents of domestic violence. The report was to be
identified as a domestic violence crime report and be retrievable. It was deemed
important for officers to accumulate information about families that required
repeated calls, to assess for lethality, and to become familiar with community
resources to which these families could be referred.
That same year, Pamas published a series of five law journal articles on
intrafamily violence and the public and private responses to it:
I reiterated The Challenge of Crime’s important call to the police for a
clearly stated departmental policy on field practices and for changes in the
recruitment and training of officers. I also raised related practical issues
concerning the use of specialized units, beat assignments, dispatcher
guidelines, repeat offender information in the field, referral mechanisms,
follow-up, record keeping, and the relevance of subcultural criteria. I
further recommended that charging decisions be made only by lawyers,
that social service adjuncts be used if mediation and referral were
needed...p. 183
Section 13701 of the California penal code set guidelines for law
enforcement response to domestic violence. In it, every law enforcement agency
in the state is mandated to “develop, adopt, and implement written policies and
standards for officer’s response to domestic violence calls by January 1, 1986.”
77
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The policies are to reflect that domestic violence is criminal conduct and that a
request for assistance in a situation involving domestic violence is the same as
any other request for assistance where violence has occurred. Police officers
became increasingly responsible for victims.
Officers were encouraged to arrest the suspect if there was probable cause
that a crime had been committed. An arrest was required “absent exigent
circumstances,” if there was probable cause that a protective order had been
violated. Officers were to make reasonable efforts to identify the primary
aggressor in any incident and to make an effort to protect a victim of domestic
violence from continuing abuse. The victim was to be informed of her right to
ask the district attorney to file a criminal complaint. These local policies were to
be in writing and available to the public upon request. It was nearly thirty years
later that these recommendations were taken seriously in California.
Dual Arrests and The Problem of Mutual Combat
Studies of the use of physical aggression during marital and relationship
conflicts have resulted in a mutual combat hypothesis. Straus, Gelles, and
Steinmetz (1980) found that women are just as likely to use physical violence as
men. This surprising result has challenged feminist constructions of marital
violence as a problem experienced primarily by women in the patriarchal context
of marriage. The mutual combat hypothesis has generated wide controversy.
Concerns about the inattention paid to male victims of domestic violence sprinkle
the literature. Texts commonly refer to “partner” or “spousal” violence. A recent
78
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
criminology textbook begins the section on violence in marriage by framing the
problem as one of mutual combat. Feminist critics have countered that the
context in which violence is experienced is crucial. Most of women’s violence
toward men is reactive. Women are much more likely than men to use violence in
self-defense, more likely to be injured by acts of intimate violence directed
against them, more likely to feel seriously threatened by it, less likely to be able to
effectively defend themselves, and less likely to have the resources to leave
violent relationships (Gelles & Loseke 1993; Nazxoo 1995).
The following is a quote from a social worker in a prosecutor’s
office:
the police may cross-charge because they can’t make a determination,
which is real difficult for our office because then we have to mesh out who
was the aggressor. And to tell you the truth, we can’t always tell. A lot of
the time with crosscharges, we’ll nolle prosse both of them because if we
can’t go into court and sustain a charge, figure out who the aggressor was,
who the first person was who did it, then we really can’t go forth with the
charges. (S. L. Miller, 2001, p. 1360)
In all instances from the Los Angeles County sample where both parties were
arrested, no charge was filed.
Law enforcement officers have the first contact with a couple. They are
the initial gatekeepers. They have borne the brunt of criticisms that center on the
treatment of domestic violence as though it were not a crime. Because most
officers did not consider it a public order problem which is subject to arrest
(Sanders, 1988, p. 446), even where laws prohibited spousal abuse, the laws were
usually not enforced because the officers had a difficult time distinguishing
79
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
between private behavior and public crime. Examples of officers not taking
domestic violence calls seriously include delaying ser is seldom arrested (Bowker,
1983; Buel, 1988; Buzawa et al., 1998; Zorza, 1994).
Police as Perpetrators
Law enforcement officers often abuse their domestic partners and/or
condone it on the part of their colleagues (O’Donoghue, 1997; 60 Minutes feature
on LAPD domestic violence, 2/13/00; Zorza 1992). Officers who are abusive
have generally not faced arrest and prosecution and when they did, their special
circumstances resulted in a lesser sentence. In 1997 the Los Angeles City
Council was prompted by a television journalist’s expose to request a study of the
extent and nature of domestic violence within the Los Angeles Police Department.
Inspector General Katherine Mader concluded in her report that the LAPD
imposes “exceedingly light” discipline on employees who commit acts of
domestic violence. Mader’s report covered 227 internal investigations completed
by the LAPD between 1990 and May 1997. “Eight of the officers were fired, 56
were suspended for between one and 129 days, 11 were admonished, nine got
reprimands, and six left the department through resignation, retirement or death
before penalties were imposed.” Mader concluded in the report that the
department was less willing than outside agencies to make arrests in cases
involving its employees. Allegations against civilian department personnel were
sustained at nearly twice the rate of those against sworn personnel, allegations
against female employees were sustained at a significantly higher rate than males,
80
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
and allegations against sworn personnel with a rank higher than officer were
effectively removed from their records (O’Donoghue, 1997).
A May 27, 1997 San Diego Union Tribune article reported that an LASD
detective succeeded in having Ms conviction of spousal abuse expunged from the
record. The deputy also argued that it was unfair to deprive him of the right to
work as the result of a law preventing him from owing or possessing a firearm for
10 years that didn‘t exist when he pleaded no contest to the charge against him.
Judge Alfonso M. Bazan expunged O’Dell’s record, stating that O’Dell was likely
to “use a firearm in a safe and a lawful manner.”
At times when a police chief or captain attempts to hold an officer
accountable for acts of domestic violence, other officers may “go on strike.” In
the past, when an attempt was made to do the same in the San Diego Police
Department, officers with limited time would avoid responding to charges that
another officer was a perpetrator and would give other calls priority. Police
groups have attacked a 1996 federal bill sponsored by Sen. Frank Lautenberg that
prevents anyone convicted of domestic violence from possessing a gun. Police
departments nationwide found they had to lay off or transfer officers with
convictions in the past. This issue pitted the rights of law enforcement officers
against the protection of victims, with lawmakers being forced to choose between
the two constituencies (Bendavid, 1997). The U.S. Attorney General’s Task
Force on Family Violence identified the failure of law enforcement to arrest for
crimes of domestic violence as one of the most serious obstacles to curtailing the
81
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
epidemic of domestic abuse plaguing the country (Attorney General’s Task Force
on Family Violence, Final Report 16-18, 1984).
When the police did make arrests, prosecutors would frequently drop
domestic violence cases, sometimes because of their own ambivalence about
domestic violence and sometimes because of their acknowledgment that juries,
which reflect society’s ambivalence about domestic violence, might be reluctant
to convict. When an arrest was made, it was usually because the abuser was
belligerent or violent to the officers themselves. When Anne O’Dell, at the time a
San Diego police officer, began a domestic violence unit in 1992, many officers
were resistant to the changes they were being asked to make. In 1978 Alyce La
Violette, began leading a batterer’s program in Long Beach through the women’s
shelter. When she was asked to train Long Beach police officers on domestic
violence issues she was sexually harassed and vilified by officers.
When you’re trying to change a male-dominated institution regarding
domestic violence, which is so controversial, there’s a real reluctance to
deal with it. There’s little empathy because it’s hard for them to
understand the threat of being physically attacked. (Personal interview,
Long Beach, California, December 17, 1996)
When I interviewed LaViolette in 1996 she acknowledged the progress
that had been made.
there are officers who work on this, officers who go out and talk on it.
They get training. But sometimes advanced officers are really hostile.
Because they’ve been around for a while, and they have an attitude.
In my work as a Domestic Abuse Response Team (DART) volunteer with
the West LA LAPD I found that the attitude of the officers and detectives varies.
82
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Some understand the significance of the problem and respond as the law instructs.
Others are averse to becoming “social workers” or “therapists in blue.” During a
March 20, 1996 interview with Judge Peter Meeka in the Rio Hondo Municipal
Court, he related the following: “The police in this district are very aware of the
strict handling in the Rio Hondo Municipal Court; they write good reports which
contribute to successful prosecution and are available to the (batterers group)
facilitators at orientation.” The El Monte Police Department (Rio Hondo Court
District) provided 33% of the cases in this study.
Although often accused of indifference to the problem (Dobash & Dobash,
1992; Zorza, 1992), to a certain extent, officers have been reluctant to arrest
domestic violence suspects because many victims, conflicted in a tangle of fear,
dependency, guilt, and love, have been unwilling to testify against their abusers,
recanted to protect them, and/or pleaded with prosecutors and judges for mercy.1 9
Another problem for a victim is a biased or hostile attitude or controlling behavior
on the part of a responding officer. Perpetrators of domestic assaults are usually
attempting to control the victim. If a victim interprets the officer’s behavior as no
different than that of the offender, she may become highly emotional or withdraw
making it difficult for the officer to collect enough information to prosecute the
case. The victim will feel further victimized and is less likely to report future
1 9 In a survey o f prosecutors' offices, 33% of the respondents reported that victims were
uncooperative in more than 55% of their cases; 16% reported that victims were uncooperative in
between 41 % and 55% of their cases (Rebovich, 1996).
83
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
incidents of violence. A dedicated DART volunteer with the LAPD expressed
another aspect of a victim’s dilemma:
Well, this is domestic violence. And you’re talking about soliciting the
cooperation of the victim. And the victim will try to minimize, mitigate,
hide; she’s embarrassed. She’s very embarrassed about the situation to
begin with, let alone having the officers called. All the neighbors know
that the violence has been going on for a long time. It’s a complicated
dynamic. Here’s everybody in this home. It’s probably not kept clean;
because if there is any battering or beating you know there’s going to be
chaos. There’s a lot of shame. There is a tremendous amount of shame
(Interview, 8/21/98).
Langley and Leavy (1977) address the importance of the support the
battered woman needs when she finally reports the abuse:
When a battered woman comes to the end of her endurance, she reaches
outside of her home for help. For most women, it is an act of
desperation—one taken with reluctance. Typically, it has taken her a long,
long time to work up her courage. Finally, she does it. She calls for help,
hoping for compassion and understanding (and protection). What she
most likely gets is hostility and criticism (p. 153).
As social pressure on the criminal justice system to take domestic violence
seriously and criticisms of police inaction and/or bias increased, legislatures
began to enact statues to clarify, curtail, guide, or mandate police response.
Initially, efforts focused on enabling police to arrest under a wide array of
circumstances, particularly in misdemeanor offenses committed outside the
presence of an officer (MacManus & Van Hightower, 1989). When these
attempts proved ineffective, Oregon (1977) and Maine (1980) passed legislation
mandating police arrest of domestic violence suspects (Chaney & Saltzstein.,
1998). Thus, mandatory arrest of all domestic violence suspects began to be
84
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
widely legislated during the 1980s. Slapping, shoving, kicking, punching, biting,
and cutting with little or no visible injury became much more likely to result in an
arrest (Sherman, Schmidt, & Rogan, 1992).
In 1977, Oregon became the first state in the country to enact a statute
requiring police to arrest every time they had probable cause to believe that a
domestic violence assault had been committed and when they knew or should
have known that a protective order had been violated [Or. Rev. Stat. 133.055(2)
(1977) and 133.310(3) (1977)]. By mid-1983, two-thirds of the states had
adopted legislation that allowed officers to make warrantless arrests in
misdemeanor domestic violence cases, while six states had mandated arrest for
certain crimes of domestic violence. However, in 1984, only 10% of large city
police departments in the United States encouraged officers to make arrests for
crimes of domestic violence. Forty percent of these police departments
encouraged mediation, while 50% had no policy on domestic violence whatsoever
(Hoctor, 1997). California was one of the last states to continue to allow for a
warrantless misdemeanor arrest only when a domestic violence offense was
committed in an officer’s presence. Although the legislature changed the law in
1996 to allow for warrantless arrests of some misdemeanor domestic violence
offenders, a warrant is still required to arrest many domestic abusers (Hoctor,
1997). Appendix F is a copy of the penal code applying to this authority to arrest.
20 See Cal. Penal Code 836(d) (West Supp. 1997) (amending Cal. Penal Code 836(d)
(West 1996)). Effective January 1, 1997, Penal Code 836 allows officers to make a warrantless
85
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Mandatory Arrest
Although the term suggests that a police officer’s discretion is removed, in
effect mandatory arrest policies and laws vary widely as does their interpretation
(Worden, 2000). Police often ignore mandatory arrest policies because an arrest
is inconvenient, they believe stereotypes about battered women (D. A. Ford,
1987; Saunders, 1995), or they object to limits on their discretion (Ferraro, 1989).
Proponents of mandatory arrest laws claimed that they would label domestic
violence as a crime against the state and take the criminal justice system’s focus
off the victim and place it where it belongs—on the person who has violated the
0 1
laws of California. Not to arrest may communicate to a suspect that abuse is not
a serious crime and to women that society will not protect them from assaults by
intimates. It may communicate to children, who are often witnesses, that abuse is
tolerated, and to the public that violence, unacceptable when inflicted by a
stranger, is condoned when inflicted by an intimate (Buzawa et al., 1995; Dobash
& Dobash, 1979, 1992; Ferraro, 1989; Hirschel, Hutchison, Dean, Kelley, &
Pesackis, 1991). Proponents have suggested that “successful interventions by the
criminal justice system, via arrests if necessary, may be the vehicle by which
victims become empowered to prevent future abuse” (Buzawa et al., 1995, p.
arrest when they have reasonable cause to believe an offender has assaulted his or her spouse,
cohabitant, or a person with whom he or she has a child in common.
2 1 In no other criminal situation does a victim have the right to prevent the state from
arresting her attacker (Hagan, 2001).
86
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
444). Arrest also is seen as a way to identify perpetrators and track cases of
continued abuse (Buzawa et al., 1995).
Opponents of mandatory arrest, however, argued that the policy would
increase law enforcement costs and result in other crimes being ignored (Jarrett,
1996) and might inhibit a majority of victims from initiating their own efforts to
address the violence in their lives (L. Mills, 1996). Others expressed concern that
a victim might be arrested because the identity of the primary aggressor is unclear
or no effort is made to determine the primary aggressor (M. E Martin, 1997).
Martin found that one third of the Connecticut cases resulting in arrest after the
adoption of a mandatory arrest statute were dual arrests.
In spite of numerous problems, there is increasing cooperation among the
police, prosecutors, and courts regarding domestic violence response strategy.
LaViolette remarked on the progress in Long Beach from 1978 until 1997:
In 1978 there were no temporary restraining orders. There was no police
intervention, and in fact we had an abuser come out to the shelter. We
could hardly get a police car out. The attitude was, no they weren’t, no
they don’t. They didn’t want to get involved in family problems. And I
think the other piece of it is it’s chauvinistic, power, traditional hierarchy.
... Legally a lot has changed.... The attitudes have changed; the practice
of law has changed. They never arrested people, now they’re arresting
people. They still aren’t putting them in jail very much. In the first 10
months of 94 or 95, there were 900 and some dv arrests; only 8 or 9 of
them were filed as felonies....
There’s been a lot of change. There are now legal repercussions, which I
think there absolutely has to be. They need to know that the system is
offended, not just their partner. It’s really important to provide logical
consequences. I don’t think the criminal justice system, I think the
community coalition is the strongest response to it. ... We’ve got the dv
court, we’ve got a dv unit in the city prosecutor’s office, we have a dv unit
in the police department, we have a woman’s advisory committee on
87
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
crimes and violence against women for the chief of police, the shelter, and
then we have Alternatives to Violence.
Prosecution
By 1995 numerous state laws had been passed to make prosecution easier.
Among them is a provision that allows evidence of a defendant’s prior acts of
domestic violence in a prosecution for an offense involving domestic violence
(Evidence Code 1109); another establishes an exception to the marital privilege in
a criminal proceeding in which one spouse is charged with a crime against the
person or property of the other spouse or of a child, parent, relative, or cohabitant
of either (Evidence Code 972); a third admits expert evidence regarding battered
women’s syndrome (Evidence Code 1107).
The increasingly stringent domestic violence legislation in California has
made a difference in the manner in which domestic violence incidents are
handled. However, in the Los Angeles County sample, the percentages of arrest
(47%), charges filed (34%), successful prosecutions (23%), the percentage that
are prosecuted as felonies, and the number of suspects who complete 52 weeks of
batterer’s group (11%) were low. In my experience as a facilitator of batterer’s
groups, I frequently hear that these men are being told by law enforcement
officers and attorneys that their plight (being arrested and sentenced to 52 weeks
of group) is “because of O. J..” They are also hearing that if the police are called
“someone goes to jail.” This is not true. Defendants are coerced into pleading no
contest. The situation is presented to them in such a way that if the case were to
88
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
go to trial, they would risk a far greater penalty. Most are unwilling to take that
chance. If the majority would continue to insist on a not guilty plea, most cases
would be dismissed because the prosecutor and the court do not have the
resources to proceed to trial.
Although every state now defines domestic assault as a crime, each chief
prosecutor has “virtually absolute discretion in setting.. .priorities and policies for
his or her office. Furthermore, each. . .staff member exercises discretion in the
handling of individual cases” (McGuire, 2000, p. 1). Prosecutors in criminal
cases have become the most influential actors (Misner, 1996). In most instances,
it is now the prosecutor, not a judge or jury, who determines the fate of a suspect
(Easterbrook, 1999). This transformation has developed as discretion of law
enforcement officers and judges has been curtailed (Remington, 1993). Charging,
plea-bargaining, and sentencing lie primarily in the hands of a prosecutor
(Misner, 1996). In fact, the charging decision is usually the most important
decision made in any individual case (Remington, 1993). Legislators and
appellate judges rarely alter this allocation of power to prosecutors (F. W. Miller
& Remington, 1969). The increase of power in the prosecutor’s office has
occurred also in domestic violence cases. However, little has been written about
the prosecution of these cases, in spite of the proliferation of special domestic
violence units in prosecutor’s offices (R. C. Davis, Lurgio & Skogan, 1997;
2 2 In the spring of 1994 the Los Angeles City Council voted 14 to 0 to authorize $ 1.4-
mill ion for the expansion o f the city attorney’s Domestic Violence Unit. The primary intent was
89
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Linsky, 1995; Pamas, 1993; Ryan, 1998; Tolman & Weisz, 1995; Wangberg,
1991). The focus has been almost exclusively on legislation and law enforcement
(Dobash & Dobash, 1992).
Because prosecutorial decision-making is less available to public scrutiny,
the goal of limiting discretion is more easily achieved with respect to law
enforcement and the courts. Although courts are a final line of defense against
selective prosecution, they are reluctant to intervene (Poulin, 1997). The power of
a prosecutor is largely unsupervised, and prosecutorial decisions are rarely
explained or publicly defended (Allen, 1964). The fact that prosecutors have
come to possess tremendous unchecked discretion (Remington, 1993) is a matter
of concern (Blumberg, 1979; Easterbrook, 1999; Misner, 1996; Allen, 1974).2 3
Stuntz (1997) and Blumberg (1979) have argued that the tactics used in
negotiating a plea are incompatible with due process. Blumberg (p. 146)
expressed reservations with “a bargain-counter, assembly-line system of criminal
justice” created by the organizational pressures that demand guilty pleas.
Defendants are usually pressured to agree to a plea to avoid a jury trial through
threats of a possible stiffer sentence by judge and jury. With the decline of the
jury systicutor’s decision without proof of misconduct (Misner, 1996), and
allegations of misconduct usually focus on an individual prosecutor, not the
to enable the office to process cases “vertically,” so that the same personnel will be handling a
case from the filing o f charges through resolution (Merl, 1995). On October 12, 1995 Los
Angeles City Attorney James K. Hahn announced a major expansion o f the domestic violence
prosecution program.
90
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
system of prosecution. Also, pleas are publicly less visible than dispositions by
trial. It has been suggested that it Is easier to Influence the decision of a
prosecutor than a judge or a jury (Easterbrook, 1999). According to Stuntz and
Easterbrook, prosecutorial discretion favors defendants from higher
socioeconomic levels by giving connection, community, standing, and
establishment attorneys an even greater advantage. Although the Supreme Court
recognizes the abstract right of protection from selective prosecution, the
standards set by the Court for recovery are so high most claims can be easily
rejected (Poulin, 1997).
Prosecutorial discretion, by determining who will be prosecuted and how,
sets the tone for the entire criminal justice system. The police are dependent upon
the prosecutor who in turn relies on the groundwork the police have laid. For
mandatory arrest to be effective, extensive groundwork is necessary. Training
and coordination prepares the entire system for the increase in cases. In Duluth,
Minnesota, a coordinating group of police prosecutors, the court, probation, and
victim advocates determined how each would respond in a way that held batterers
accountable and protected victims (McGuire, 2000). Judges can reinforce the
efforts of police and prosecutors by the sentence and the instructions from the
bench. A lack of consistency or follow-through at any point contributes to a
2 3 Boxall and Muir (1994) discussed some o f the difficulties o f developing a precise
picture of how prosecutors and the courts handle spouse abuse cases.
91
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
batterer’s recidivism. The police department analyst I interviewed spoke of the
cooperative relationship between the department and the prosecutors’ offices:
The really good thing about this system is the very close relationship
between the police and the prosecutors. It’s the system that counts. The
police can be wonderful, but if the prosecutors don’t follow up, and the
prosecutors can be wonderful, but if they don’t get what they need from
the police... They have to work together, and avoid frustration on each
other’s part. This is so important for morale. You get very frustrated if
you do something great and it gets dropped. And we have that still. But
when we have a problem, somebody acts on it. It’s very interesting to see
because we’ve had frustration with the district attorney’s office, not with
the city attorney. Our detectives have felt that they have made very
strong felony cases, and then the district attorney has not prosecuted them.
When we started getting a bunch of those, then all hell broke loose. The
police and the district attorney got together and ironed it out. I think they
were putting people in the dv unit of the prosecutor’s office, and then
transferring them out. You’ve got to leave them in there. They’ve got to
learn it.
Although arrests have increased during the past twenty-five years, and
large numbers of domestic violence perpetrators are being referred to court
systems, prosecution of these cases is just beginning to be standard procedure. In
the 1970s and 1980s it was rare that perpetrators were prosecuted (D. Dutton,
1987; D. A. Ford, 1983). In Minneapolis as a mandatory arrest policy funneled
more cases to the courts, cases were informally dropped because prosecutorial and
judicial resources had not increased (Balos & Trotzky, 1988). More recent
studies report attrition rates of 50% or more (R. C. Davis, Smith & Nickles, 1998;
Gamer, Fagan & Maxwell, 1995).
In criminal prosecution, since large numbers of cases forwarded from law
enforcement are not filed, decisions regarding case rejection are significant.
92
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Decision in case screening is organized more toward avoiding the error of filing
cases that are not likely to result in conviction than to avoiding the error of
rejecting cases that will probably end in conviction (Scheff, 1966). Because court
systems are overcrowded, prosecutors are given credit for the number of cases
they reject (Frohmann, 1991). When in doubt, prosecutors tend to reject cases.
Efficiency and a high rate of convictions (or pleas) are demanded by a system
with limited resources. However, these decisions are based on impersonal,
rational procedures.
The goals and objectives of the court become speed and ease, that is,
efficiency, in case adjudication.. .informal agreements...simplify decision
making and limit adjudicatory uncertainty. There is a tendency toward a
consensus on case evaluation and disposition because of this functional
interdependence which facilitates decision making, standardizes outcomes,
and overrides the partisan group interests of judge, prosecution, and
defense. (Rovner-Pieczenik, 1976, p. 463)
According to Hartman (1998), who has studied the experiences with,
beliefs about, and attitudes toward domestic violence among prosecutors, judges,
and public defenders, rational-instrumental goals prevail and become a substitute
for justice.
State Department of Justice figures, relying on local and county reports,
are incomplete. However, the available statistics tracked about 60% of spouse
abuse arrests, with the thoroughness of reporting varying from county to county.
Some of the trends identified were that throughout the State, in 1990, 1991, and
1992 only about two-thirds of those arrested for felony spouse abuse were
93
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
prosecuted, with 80% of those cases treated as misdemeanors.2 4 In the Los
Angeles County sample 11% of the cases charged were treated as felonies. Of
those defendants who were prosecuted, slightly more than half were sentenced to
some jail time. The statistics reflect differences in response to domestic violence
among local district attorneys. As an example, Boxall and Muir (1994) note that
Kern County filed charges on 91% of the cases that it received from police while
San Bernardino County filed on slightly more than a third. In the Los Angeles
County sample 56% of the cases sent to the prosecutors resulted in charges being
filed.
Victim Control Over Arrest And Prosecution
A major problem in the arrest and prosecution of domestic abusers is the
ambivalence of the victim. Consequently, in domestic violence prosecution, as in
law enforcement, attempts have been made to reduce the victim’s control over the
course of a case. Just as most states mandate arrest when police have probable
cause to believe a crime has occurred, stated policy is to prosecute a case
regardless of a victim’s wishes. Prosecutors’ offices institute no-drop policies,
and the state becomes the injured party instead of the victim, ostensibly to protect
the victim from threats and attacks by the perpetrator (Durham, 1998). The no
drop policies, in which prosecutors refuse to drop cases solely because the victim
2 4 Most domestic violence incidents are filed as misdemeanors (Culliton, 1994).
94
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
wants to dismiss charges, pioneered in the early 1980s2 5 in places like San Diego,
California, Knoxville, Tennessee, and Quincy, Massachusetts. In these
communities, domestic violence homicide rates have fallen. However, according
to Worden (2000), there is no conclusive evidence that they have had the effect of
extending the scope of prosecution.
The following three incidents from the sample illustrate the significance of
how the prosecutor perceives the victim and the weight prosecutors give to the
wishes of the victim:
1. This incident particularly stood out because it was noted on the
supplemental report of the case that the deputy district attorney issued a rejection
(declined to file a charge) because the “victim on Prozac/ psychological
problems.” This incident involved a married Caucasian couple, both 40-years-
old, with no children in common. The wife woke her husband who had overslept
and needed to move his tractor-trailer from the private lot next door to their
apartment.
The following narration is taken from the crime report filed by the
sheriffs deputy:
“As the argument progressed, the victim became frustrated with the
suspect’s response and walked away from the suspect (stepping into the kitchen
25
Historically, most states had "automatic drop" policies, mandating a prosecutor drop
the case if the victim decided not to go forward (Hagan, 2001). Epstein (1999) discusses these
"automatic drop" policies and the corresponding advantage they gave defendants in the criminal
justice process.
95
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
area of the location). As the victim was standing in the kitchen area, she heard the
suspect approaching her from behind. As she turned to look at the suspect, he
suddenly tried to grab the victim’s face with both of his hands.
The victim, fearing injury, leaned back to avoid being grabbed. The
victim put her arm around her face in a defensive manner, and as she did so, the
suspect slapped the front of her right arm (in the bicep area), leaving a large red
“hand slapped” welt the victim reacted. . .by punching the suspect on the left
arm with her right fist.
In order to stop the assault, the victim told the suspect that she was going
to “call the police,” and then fled the location. The victim eventually walked to
th e.. .station (approximately 1 block away) to file this report.
I observed the above injury to the victim’s arm. She said that she would
seek her own medical treatment if needed and turned down a request for
paramedics to check her injury. She also was offered (and turned down) a T.R.O.
(temporary restraining order). The victim said she is non-desirous of prosecution.
I responded to the suspect’s and victim’s residence in order to contact the
suspect regarding the incident. . .the suspect fled the location prior to our arrival.
(The victim was notified to contact the. . .station should the suspect return.)”
2. The second incident involved a married East Indian couple with
children in common. There had been previous assaults, but they were not
96
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
reported. The husband became angry with Ms wife over how she had treated his
mother and struck her about the body repeatedly with a golf club. The hospital
where she was treated reported the incident to the police. He was not arrested; the
reason given was “victim non-desirous.”
3. In the third case, there had been prior, unreported domestic assaults
upon the 20-year-old victim. The suspect, her 23-year-old live-in boyfriend, was
angry because his girlfriend had too much to drink and wanted to leave a party
early. He said, “Why did you have to take it to the limit?” He punched the
victim in the face, cutting and breaking her nose; stitches were required. A
family member witnessed the incident, and there was a hospital record and
photographs as evidence. However, there was no arrest because the victim was
non-desirous stating she is dependant on the suspect who was gone on arrival of
the police and fled to Salinas. The case was sent to the prosecutor who did not
file charges citing that the victim was non-desirous.
In Chapter 7 we will see that a victim’s desire for arrest remains a major
predictor at all four levels of criminal justice processing. Financial dependence,
threats, pleas, and promises by the perpetrator to change, have been significant
factors in keeping women from calling the police and/or agreeing to cooperate
with prosecution. It is common for distressed, confused, and conflicted victims to
recant or change their story and/or petition the prosecutor or judge in behalf of the
defendant (Durham, 1998). Law enforcement officers are encouraged to obtain
as much information as possible initially such as 911 tapes, photographs of victim
97
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
injuries, and witnesses. Edwards (2000), in addressing the problem of case
attrition in Britain, refers to the process as “enhanced evidence gathering” which
greatly improves the prosecution prognosis. This process increases guilty pleas at
an early stage of the investigation, often when police initially interview the
suspect. It helps the victim recognize the extent of the abuse and increases her
ability to support prosecution. Enhanced evidence gathering includes complete
and detailed witness statements, a history of the abuse, and photographic
evidence. One officer stated, “I can put the picture in front of the suspect and ask
him what comments he has to make on it.” The photographic evidence Is
effective in getting suspects to plead guilty.
Gwinn and O’Dell (1993) suggest that prosecutors be retrained to rely
more on other forms of evidence besides photographs and victim testimony. The
introduction of contextual details of the crime in lieu of victim testimony helps
increase awareness of the dynamics of domestic violence and correct bias against
domestic violence victims. However, these are highly labor-intensive practices,
seldom used in prosecuting misdemeanor cases, which constitute the large
majority of domestic violence cases (Durham, 1998).
Case Dismissed
In 1997 two representatives from the Los Angeles County District
Attorney’s office addressed the issue of dismissals.
Donna Wills (1997) explained in a handout at the domestic violence
conference arranged by Linda Mills at UCLA:
98
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Once charges are filed, they “will not be dropped or dismissed merely
because he victim refuses to cooperate, recants, or minimizes the offense.
As long as there remains legally sufficient evidence to support a
conviction, the case will proceed until the defendant either pleads guilty or
his guilt or innocence is determined by a court or jury Recidivists and
serious offenders are targeted for felony prosecution (by the District
Attorney’s Family Violence Division, organized in July 1994)
From a 1997 interview with a Los Angeles County deputy
district attorney responsible for prosecuting domestic violence,
sex, and hate crimes:
In Los Angeles County, city attorneys prosecute misdemeanor offenses
while the district attorney prosecutes felony offenses, and in some parts of
the county, misdemeanor offenses. Certain cities like Beverly Hills pay
the district attorney’s office to handle misdemeanor cases. However, the
city of Los Angeles has its own prosecutor. ■ The detective in any
municipality has some discretion, whether to take it over to the district
attorney for review or take it straight to the city attorney. If it’s going to
the city attorney, they have to get some approval from their supervisors.
Also, there are guidelines that they follow. It’s not unlimited discretion.
If there’s a weapon involved, bones are broken, or serious laceration or the
person’s on parole, these are all things that mandate that it be brought to
the district attorney’s office. Also, prior convictions. Basically, the more
serious the case, it’s a felony. Penal code 273.5 (a) is the normal charging
section for domestic violence. Since Mr. Garcetti (District Attorney at the
time) took office in 1992 the district attorney’s office has renewed its
commitment to the investigation and prosecution of domestic violence
cases. We’ve created a unit of prosecutors to especially prosecute these
matters downtown. The family violence unit has approximately 16
prosecutors. Also, in the branch offices. In this unit we’ve engaged a
smaller number of deputies to handle these cases as well. The idea behind
all of these units is to vertically prosecute these cases as much as possible.
One prosecutor handles the case all the way through. The district
attorney’s commitment was reflected in the establishment of a policy
regarding the handling of these cases. Certain guidelines were established.
For example, frequently these cases are difficult to prosecute because the
victim chooses to recant or to try to drop charges. Legally that’s a term
that doesn’t exist. Only the prosecutor can drop the charges. They’re
brought on behalf of the people of the state of California. And the victim
is just that; she’s the victim of the offense, but she’s not the litigant. She
99
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
doesn’t have the option of dropping the charges. We’ve committed to
prosecute these cases, if we can, even without the victim’s cooperation.
Frequently cases are prosecuted without the victim being around or
available. The classic case, of course, is a murder prosecution.
We have a set of guidelines to follow in deciding whether to charge as a
felony or a misdemeanor. The big difference between misdemeanor and
felony cases is that convictions in felony cases go to state prison. Which
means incarceration at the state level for more than a year as opposed to
maximum incarceration in county jail for a year. The sheriff’s
department is mandated to keep inmate levels at certain numbers by the
federal courts. There are no funds for more facilities. The sheriff is
forced to release certain misdemeanor defendants before they would
ordinarily be released. However, in domestic violence cases there is a
policy enacted by the sheriff to have them serve their full sentence. This
became policy in the last year. Defendants by law are entitled to earn
certain credits to reduce their sentence. Even domestic violence
defendants get that privilege. What they don’t get is the early release to
which they would be entitled because of the overcrowding. By policy, we
generally seek a year in county jail as a condition of any felony domestic
violence case. On a year sentence, they generally do about nine months.
The three-month reduction is due to the credits they’re entitled to by law.
State prisons are also overcrowded. We haven’t been experiencing early
release from the state prison for any type of crime. We haven’t seen that
yet. With the three strikes provision, we might in the future. But right
now everybody seems to be doing the time they were sentenced to do.
You have to understand that on a conviction for the charge of domestic
violence there is a term of art for a serious felony. Those types of offenses
are defined by the penal code, and domestic violence is not included in
there. As a result the defendants can earn up to half their sentence off. If
it’s a four-year sentence they can get two years off. If they work and do
what they’re supposed to do. It is not listed as a so-called violent or
serious felony. Those are defined in certain areas of the penal code. Do
you see any chance of that changing. No, because what the injuries are
fairly light, but it’s charged as a felony to begin with because the person
might have a long record.
As a condition of probation it’s required by law that the defendants attend
a 52 week domestic violence class, both for felony and misdemeanor
convictions. From what we’ve been told, if the defendant attends and
tries to leam something there, they are fairly effective. The feedback
we’re getting is that it actually helps if the defendant is open to it. The
feedback is from the judges and the probation department. And actually,
some of the defendants have come in and said, “You know this really did
help.” And we haven’t seen those men any more.
100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
If i
I think It would be productive If the women attended the classes." But the
courts don’t have any authority to mandate that. These women have a lot
of problems. I don’t think the legislature has the authority to do that
either. You can’t criminalize being in a bad relationship. The court can
order a victim who is In contempt of court by falling to show up to some
sort of classes. We just had that done recently. And then if the conduct is
repeated a second time, the court can incarcerate the person. When
children are present the welfare and institution codes give the court some
authority to order the woman into counseling.
Although “no-drop” policies are becoming commonplace (Coukos, 1998)
and have been effective in getting more perpetrators sentenced and in reducing the
likelihood of future violence and murder (Robbins, 1999), in reality there remains
substantial discretion. No-drop is intended to limit a prosecutor’s discretion to
drop a case solely on the basis of victim non-cooperation. Robbins (1999) notes
that many prosecutors still give reluctant victim-witnesses control over their
cases, dismiss a large percentage of cases and undercharge cases by filing many
felony crimes as misdemeanors. “In a jurisdiction without a no-drop policy,
between fifty and eighty percent of all domestic violence charges are dropped. In
contrast, where no-drop policies are in effect, case attrition ranges from ten to
thirty-four percent” (Robbins, 1999). Critics of prosecutors in cases with a
reluctant victim suggest that prosecutors are insensitive to a victim’s concerns and
26
Almost all o f the defendants would agree; however, the law specifically states that
victims are not to be mandated to attend counseling. See Appendix G for the conditions of
probation for the crime o f domestic violence: "(D) No victim shall be compelled to participate in a
program or counseling, and no program may condition a defendant's enrollment on participation
by the victim."
101
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
fears and that limited advocacy is provided throughout the complicated legal
process (Fagan, 1990).
The city of San Diego has an aggressive domestic violence program that
has been a model for other jurisdictions. City Attorney Casey Gwinn, said the
dismissal of a large number of cases is a sure sign of a problem in a domestic
violence program. ‘If the dismissal rate is anything more than 4 or 5 %, there is
something very, very wrong,’ Gwinn said. ‘When you are dismissing a third of
the cases you file, you are losing credibility with the victims“ (Wallace, 1999).
In the Los Angeles County sample count 1 was dismissed in 23 of the 347 cases
(7%) in this database in which charges were filed. In 14 of those cases the
defendant was sentenced on a lesser charge which does not fall under the
sentencing guidelines for domestic violence. The remaining 9 defendants were
released.
The Court
Whereas law enforcement is the entry point into the criminal justice
system, the judge is the final arbitrator. The judge is responsible for deciding
issues of law, approving case settlements, setting bail and release on own
recognizance, controlling the presentation of the evidence, assuring a speedy and
fair trial, and sentencing a defendant in accordance with he law. Although the
judiciary has the power to ratify or dismiss the actions of police and prosecutors,
and court mandates can have a significant Impact on a defendant and victim,
limited attention has been paid to judicial perceptions of and adjudication of
102
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
spousal abuse cases (J. Ford, Rompf, Fargher, & Wisenfluh, 1995; Hanna, 1998;
Hartman, 1998; Sakoutis, 1998; Thistlewaite, Wooldredge, & Gibbs, 1998; Ursel,
1994). Noone (2000) found that victims believed that court mandated counseling
for their abusers indicated that the judges were supporting them.
The orientation of the courts and the processing of domestic violence
cases through the courts differ widely (Quarm & Schwartz, 1985). What has
resulted is a judicial system in which there is little predictability. In a study of
174 domestic violence court cases, J. Ford, Rompf, Fargher, and Wesenfluh
(1995) found that the only significant factor related to case outcome was the judge
hearing the case. The three judges observed differed significantly in dismissals,
guilty verdicts, and the number and types of orders issued suggesting that
mandatory domestic violence training forjudges be required.
In my own work as a batterers’ group facilitator in Beverly Hills during
the past seven years I’ve found that some judges will Ignore sentencing guidelines
for 52 weeks of domestic violence group counseling over a 12-15 month period
and order only 12, 26, or 36 weeks of group. Some will approve an accelerated
program in which a defendant can attend several groups a week and complete the
program in less than three months, or send a notice to the facilitator that a group
member is not to be violated for infractions. In a recent high-profile case the man
was able to attend approximately five group sessions a week and complete the
program in 10 weeks. Bardach (1977) and Warren (1982) recognized the
importance of courts in effecting reform legislation. They observed measures to
103
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
minimize the impact of legislative changes on routines and tradition. They
described ‘defensive politics’ (Bardach, 1977, p. 43) intersecting with
‘organizational inertia to produce innovative ways of getting around legislation’
(Warren, 1982, p. 189).
In the 1970s judges appeared to share the consensus of prosecutors that the
most effective response to domestic violence was not prosecution of an offender
(Dobash & Dobash, 1979; Field & Field, 1973). Judges tended to minimize
domestic violence cases and disproportionately acted to dismiss them (Pamas,
1970, 1973; Inciardi, 1996). In 1990 Crowley, Sigler, and Johnson, in a study of
272 criminal justice and social service agency personnel, found judges were more
likely than other professionals, except for police, to consider spousal abuse as
grounds for divorce rather than as a criminal offense. Some domestic violence
perpetrators, of course, are judges. When I asked the police department data
analyst (1998) why judges would object to training in domestic violence, he
replied:
Because so many of them are domestic violence perpetrators. Or they
don’t think it’s important. It’s just a bunch of crying women. Some
judges have that attitude. 2 7 . . .The paradigm shift has occurred more In
the courts than anywhere else. Those lawyers, the ones who have training
in law school, when they become judges, their attitude is going to be quite
different. But you’ve got to realize that there has been no training on
domestic violence in law schools until the last two or three years (7/31/98
Interview).
2 7 See Gwinn and O ’Dell (1993).
104
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
A San Diego case in which a judge was the defendant led to the domestic
violence task force. Judge Joseph Davis of San Diego was on trial for beating Ms
pregnant girlfriend in 1986.
On November 23, 1986....Officers, after consulting with a supervisor,
wrote the judge a citation of arrest and released him at the scene. No
photographs were taken of the xondominium or of the victim. Neither the
victim’s daughter nor the neighbors were interviewed. The final police
report was less than three pages. (Gwinn & O'Dell, 1993, p. 1504)
At the time of trial the victim was not available as a witness for the prosecution.
The Gwinn and O'Dell article is a significant treatise on the prosecution of
domestic violence cases without victim cooperation.
In 1984 the US Attorney General’s Federal Task Force recommended
mandatory training for all judges hearing civil or criminal aspects of domestic
violence cases (I. Ford et al., 1995). The intent was that development and
implementation of effective interventions in domestic violence be based on legal
and judicial policy, not on individual judge’s predilections. There was resistance
among the judiciary to systemic change (Buzawa & Buzawa, 1990). There was
no concerted, enforced mandate or nationwide trend, only isolated instances due
to the orientation and training of individual administrators. It wasn’t until the
mid-90s that judges began to realize that domestic violence is not only a family
matter, but also a community problem (Klein & Orloff, 1993; Merry, 1995). A
group of judges and commissioners in Los Angeles County began meeting for
voluntary training. Currently a group of LA County judges has monthly meetings
to exchange ideas and guidelines. Shelter, law enforcement, and probation
105
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
department personnel make presentations at the meetings. At these monthly
meetings some of the structural problems of the system are addressed as the
judges exchange ideas.
Changes in Legislation
At the end of August 1996 the California State Senate approved legislation
that would require the Judicial Council to establish domestic violence training
programs for all judicial personnel who perform duties in domestic violence
matters, including judges, referees, commissioners, and mediators. AB 2819,
introduced by Assemblyman Louis Caldera, D-Los Angeles, was approved
without discussion on a 35-0 vote and was sent back to the Assembly for a vote
on minor amendments made in the Senate. The bill had the support of the
California Judges Association and the Los Angeles County District Attorney. No
interest group voiced opposition to the bill. AB2819 became effective Jan. 1,
1997.
California State Senator, Tom Hayden, D-Santa Monica, introduced a bill
on February 3, 1995 that would require first-time batterers to serve a minimum of
three years’ probation. The proposal would also eliminate diversion programs as
a sentencing alternative. Diversion programs, instituted in 1979, permitted
batterers to have their criminal record expunged after completing counseling
(Stall, 1995). Diversion, Hayden said, is appropriate for crimes without victims,
such as drag addiction. “I can’t find any other act of violence treated this way.”
Hayden referred to a study which showed that 54% of the batterers assigned to
106
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
such programs failed to attend them and that 27% of those sentenced to diversion
were not eligible because of previous convictions or the use of a deadly weapon
during the assault. Hayden's bill was backed by an alliance of California NOW,
the California Alliance Against Domestic Violence, and the Committee on Moral
Concerns. Opponents of the bill argued that it would increase victim’s reluctance
to testify if their testimony would result in a jail sentence for the perpetrator and a
criminal record. The California District Attorney’s Association opposed the bill,
but offered a weaker version. The California Judges Association opposed the
measure, and the Judicial Council, represented by Judicial Council lobbyist
Kathleen Howard, decried the bill which “would unduly limit the court’s
discretion and would significantly increase the likelihood of trial.” The two
judges’ groups supported legislation in the Assembly that would enable the
defendant to avoid a criminal record (Ainsworth, 1995). Not all judges were
supportive of diversion programs. Santa Clara County Municipal Court Judge
Jerome Nadler testified that counseling programs do not work well if a defendant
has avoided pleading guilty. “The defendant feels in his heart that he hasn’t done
anything wrong,” Nadler said. “A few months later, he feels that diversion is the
mistake” and stops taking the counseling seriously. During the previous 3 years,
Nadler estimated he had processed 5,000 domestic violence cases and assigned
500 defendants to diversion programs. Nadler argued that judges could still
sentence domestic violence defendants to counseling and that such defendants
would have more incentive to complete the program.
107
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
On August 31, 1995 the California State Assembly, on a vote of 57-0,
approved SB 169. Hayden said, “This was probably the most argued and difficult
bill 1 can remember working on.” However, he felt that SB 169 represented
progress from decades of leniency regarding domestic violence. The bill is an
attempt to tighten California’s domestic violence laws by requiring first-time
offenders to plead guilty before taking part in court-ordered counseling programs.
James Hahn, Los Angeles City Attorney at the time of the bill’s signing, said that
SB 169 “recriminalizes” the offense of spousal battery by eliminating diversion
without a plea as an option for judges and prosecutors. “We are recriminalizing
domestic violence today. . .we’re about preventing further violence and breaking
the chain of violence within families.”
SB 169 was signed by Gov. Wilson on October 5, and took effect in
January 1996. It gives defendants the option of admitting their guilt or standing
trial. A great deal of pressure is put on the defendants to plead no contest by the
prosecutors, but also often by their attorneys, whether public or private. The
defendant becomes convinced that the risk of going to trial is too great. If a guilty
or no contest plea is entered, the defendant is to be placed on probation and
required to attend a counseling program. Failure to complete the program is a
violation of probation, and the applicable penalties, whether fines or jail-time,
may be imposed.
108
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
California Statute, section 1203.097, shown in its entirety in Appendix G,
is an attempt to standardize sentencing. The court is instructed to order, upon
conviction of 273.5, the standard domestic violence charge:
1. a minimum period of probation of 36 months
2. a criminal court protective order protecting the victim from further acts
of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate,
containing residence exclusion or stay-away conditions.
3. notice to the victim of the disposition of the case.
4. booking the defendant within one week of sentencing if the defendant
has not already been booked.
5. a minimum payment by the defendant of two-hundred dollars ($200).
If, after a hearing in court on the record, the court finds that the defendant does
not have the ability to pay, the court may reduce or waive this fee.
6. successful completion of a batterer’s program, or if none is available,
another appropriate counseling program designated by the court, for a period of
not less than one year (increased to one year in 1995) with periodic progress
reports by the program to the court every three months or less and weekly
sessions of a minimum of two hours class-time duration.
7. compliance with all probation requirements, including the requirements
to attend counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
109
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
8. a specified amount of appropriate community service, as designated by
the court.
With respect to Item 2 above, many couples continue cohabiting even
though there is an active restraining order prohibiting contact. In these situations
some perpetrators fear that their partners will have them rearrested by simply
claiming they were assaulted. Some judges penalize such victims who continue
to cohabit with their abusers in violation of a court order or who obtain a
restraining order then ignore the order. A Kentucky Judge experienced in
domestic abuse issues, Megan Lake Thornton of Fayette District Court, levied
fines of $100 and $200 in December and November of 2001 against two women
who had obtained emergency protection orders but admitted they later relented
and returned to the men accused as their batterers. Judge Thornton also cited
the men for contempt, ruling that the order was mutually binding. Numerous
studies have confirmed that most victims feel ambivalent and helpless in domestic
abuse situations (Barnett & LaViolette, 1993; Dutton, 1988; D. A. Ford, 1983;
Hammond, 1996; Martin, 1976; Noone, 2000). The desire to protect themselves
and their children, the desire to remain with the batterer, and/or the desire to
escape are conflicted emotions not easily resolved. The inability to self-protect or
escape is based on these conflicting emotions and the control and persistence of
the batterer.
110
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Domestic Violence Courts
Public response has gone from an attitude that scarce judicial resources are
“wasted” on domestic violence cases (Langan and Innes, 1986) to an increasing
?o
interest in the institution of specialized domestic violence courts (Tsai, 2000). It
appears that cases are adjudicated differently In a general court as compared to a
specialized domestic violence court. In a general court where the judge sees a
variety of cases—rape, robbery, drug charges, assault-authority for probation
monitoring is delegated. In a domestic violence court, the judge monitors a
defendant and will see him perhaps 12 times during the course of probation.
There is a shorter period between sentencing and enrollment in a batterer’s
program. In some cases there is close monitoring since the judge works closely
with the treatment programs. However, case loads can be high; one judge in the
LA County Citrus domestic violence court monitored as many as 1500 domestic
violence offenders on summary probation (Winton, 1999).
In June of 2000 there were 29 domestic violence courtrooms in California.
During the 1990s hundreds of similar courts had opened throughout the country.
Innovative programs such as these are usually financed by federal or state grants,
subsequently becoming the financial responsibility of the locality. When not
28
One such court, D.C. Superior Court Domestic Violence Unit, established in 1996,
integrates civil and criminal justice cases. It is believed to be the most comprehensive o f the U.S
courts addressing domestic abuse issues. In 1989 there were approximately 25 criminal domestic
violence prosecutions in Washington, D.C.. In the first year of the specialized court’s operation
there were 6,400 prosecutions; in the following year there were 9,000 prosecutions (Ozawa, 2001).
I l l
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
demanded by the public or by law, they are often discontinued in budget crises.
In the case of domestic violence municipal courts the only increase in funding is
minimal (Judge Peter Meeka, Rio Hondo Municipal Court, personal conversation,
April 1, 1996). However, without a strong belief among the judiciary in the
effectiveness , of these courts, there is no impetus to increase their use. Currently
there is a belief among the judges who sit in these courts that the focus on
domestic violence cases decreases recidivism substantially. However, there is no
empirical data.
The first specialized domestic violence court in LA County, Citrus
Municipal Court, was opened in October 1993. Currently in Los Angeles County
there are domestic violence courts in Rio Hondo, Long Beach, Citrus, Pomona,
and Div. 8 in downtown Los Angeles. As of August 9, 2000, there were domestic
violence clinics established in all but one of the 12 Los Angeles County Superior
Court Districts. These clinics provide free assistance to individuals applying for
temporary restraining orders (LA Superior Court website, June 26, 2002). Rio
Hondo (El Monte, CA) is the first court to use a threat assessment analysis and a
direct referral link to the Department of Child and Family Services. In late Sept.
1996 Rio Hondo began using Mosaic which utilizes police reports, arrest
histories, and information from the victim to compile a behavioral profile of the
defendant. This profile is compared to profiles of others who attempted or
successfully committed spousal homicide so that an assessment of lethality can be
made. Mosaic is a division of Gavin de Becker, Inc. Rio Hondo has two
112
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
domestic violence courtrooms. From arraignment to probation, the judge remains
with the case. This enables him/her to get to know the defendants and their
situations. An offender who has a continuing bad attitude as reported by the
facilitator will be remanded to custody for violating probation.
Personal interviews with three specialized domestic violence court judges
confirmed that there are judges who regard the problem as serious, are committed
to interpreting the increasingly firm laws on domestic violence to communicate
that, and are convinced and hopeful that the changing criminal justice position is
effective in decreasing the violence (Aichroth, 1996; Meeka, 1996; Oki, 1996).
Judge Dan Oki (March, 1996 Report) who sat on the first specialized domestic
violence court in LA County, in the Citrus Municipal District, expressed the
following:
I have. . .found that the regular positive input by defendants on probation
has a very positive impact upon the defendants and victims seated in the
audience who are appearing on new or pending cases. To hear someone in
your same situation discuss the insight they have gained through
counseling, and that their relationship with their partner has never been
better in their lives, tends to create significant hope in defendants and
victims who otherwise feel helpless.
I am now absolutely convinced that the professional counseling is
effective in stopping the violence. . . when a defendant is terminated from
a counseling program for lack of attendance and found in violation of
probation, they are given increasingly-lengthy jail sentences as a condition
of having probation reinstated—and then are order to re-enroll in
counseling. An outright refusal to participate generally results in a
maximum sentence. In appropriate cases, substance abuse counseling is
ordered as a condition of probation. Protective orders for the victims are
ordered in all cases and, when necessary, stay-away orders are issued as
w ell...
I have first-hand knowledge that our project has been effective in assisting
hundreds of families in reuniting, and has played an immeasurable role in
113
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
improving those relationships. . I am also convinced that our efforts have
saved several lives.
This specialized domestic violence court was disbanded on February 16,
1999. The domestic violence cases were distributed among the seven judges and
one commissioner in the court as it was prior to October 1993. One reason given
for the reversal was that the law had become very well defined, and “there is no
discretion.” Presiding Judge Rolf Treu was quoted in a local paper as saying,
“Drunken driving cases cause far greater disruption than domestic violence.”
This infuriated victim advocates. Treu attempted to defend his statement on
March 2, 1999. He said, “While not denigrating the toll domestic violence causes,
drunk driving causes far greater disruption to our society as a whole than do
domestic violence cases.” Reasons given for closing the court led to contention
between the deputy district attorney in Citrus and the judges who complained that
the prosecutor’s office was sending inexperienced prosecutors and rotating them
every three months or less. The judges’ report maintained that a single judge is
no longer needed to ensure consistent sentencing in domestic violence cases
because a 1995 state law created a uniform system of punishment.
The closing met with such passionate debate that in April, 1999 the Los
Angeles County Board of Supervisors called for a study of the need for these
specialized courts throughout the county. By December 24, 1999 Judge Treu
announced that the domestic violence courtroom would reopen and that he would
handle all domestic violence cases at the Citrus Municipal Court beginning
114
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
January 3. 2000. Treu referred to a promise of state funding for the court and
guarantees from the district attorney and public defender that experienced
attorneys would be assigned to it. In January 2000 California state lawmakers
killed three proposals to fund domestic violence courts. The Metropolitan News-
Enterprise article covering the issue is Appendix H.
Falling Through The Cracks
This study considers how effective new legislation has been in getting
perpetrators to take responsibility for the violence. Since so few domestic
violence incidents come to the attention of law enforcement, it would seem that in
those where the suspect has a history of domestic violence, a firmer response
would be warranted. This is not occurring. There were 43 men who had one or
more prior domestic convictions. Only 16 or 37% of these were convicted for the
current incident.
The following is a representative sample of cases in study where the
suspect had a history of domestic violence:
1. Suspect Was Not Arrested:
This incident occurred in 1996. The parties involved were a Caucasian
couple in their mid-twenties who had lived together in the past and had a child in
common. The suspect had attacked the victim about 10 times in the past. He
wanted to resume the relationship, but the victim did not. The suspect grabbed,
strangled, punched and threatened the victim, saying, “I hope you die.” Suspect’s
115
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
brother was a witness to the assault. The victim was desirous of arrest and
prosecution. No reason was given for non-arrest, prosecution.
2. Suspect Was Arrested But Not Charged:
A 1996 incident involving an Asian American married couple in their 30s
with children in common: Both had been drinking. The suspect pushed the
victim, punched her in the head, and scratched her leaving multiple visible
injuries which were photographed. There was no witness to the assault. The
neighbor who called the police said that the husband frequently assaulted his wife.
The victim claimed that the injuries were accidental or self-inflicted. The
prosecutor wrote, “As much as I’d like to file charges,” there is insufficient
evidence without the victim’s testimony.”
Another 1996 incident, this one involving a married Caucasian couple,
married with no children in common. Both had been drinking. The suspect had
been assaulting the victim for 17 years. Although the victim sustained multiple
visible injuries, she was not desirous of prosecution. In this incident the suspect
broke two of the victim’s ribs. The deputy DA declined to file charges, noting
that the victim was drunk and that she lies.
A 1996 incident involving a Caucasian couple with five children in
common, cohabiting for 20 years: The relationship had been deteriorating for
several months. The victim was afraid of the suspect. On this day she and the
suspect were arguing over a fan and clothes. The victim grabbed the car keys. In
an attempt to get them back, the suspect grabbed the victim’s forearm leaving a
116
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
large deep bruise which was photographed for evidence. The couple’s 8-year-old
daughter witnessed the incident and told her parents to “stop acting like children.”
The deputy district attorney cited insufficient evidence as the reason that no
charge was filed.
"?Q
3. Suspect Was Arrested, Charged, but the Case Was Dismissed:
A 1995 incident, a Latino couple cohabiting for 25 years with children in
common: There was a history of unreported domestic violence. The suspect had
threatened to kill the victim in the past. The victim wanted out of the relationship
but was still living with the suspect. The suspect became angry because the
victim was visiting their daughter and was not at home. He punched the victim
when she returned and dragged her by the hair, causing visible injury. Their
daughter witnessed the incident and called police. The victim was desirous of
prosecution. A warrant was issued for the suspect’s arrest, and a misdemeanor
273.5 charge was filed. The suspect was represented by a public defender, pled
not guilty, and insisted on a jury trial. The charge was dismissed 2 months and 5
days after it was filed.
In this 1995 incident a married African American couple with children in
common argued when the victim refused to give her husband, who had been
drinking, a quarter. He punched her in the head. According to the victim her
2 9 In both of these cases the defendant refused to plead guilty or no contest. Generally
when this occurred, the charge was dismissed.
117
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
husband beat her “all the time,” and although she was afraid of him, she wanted
him to be prosecuted. He pled not guilty to a 242 charge which was dismissed,
“People unable to proceed.”
4. Suspect Was Sentenced:
. A 1995 incident: A pregnant 39-year-old Caucasian woman twice lunged
at her Caucasian boyfriend with scissors in front of a police officer when her
boyfriend returned to their home to gather his belongings. She pled no contest to
a 245 misdemeanor charge and was sentenced to 3 years probation and 45 days
jail-time.
A 1996 incident involving a married couple in their early 30s with
children in common. The suspect was Caucasian, his wife a Latina. The suspect
told the victim to go to the store for some milk. When she remained sitting on the
couch, he became furious and punched her on the head and body about 10 times
saying, “I’m the man of the house.” When their son intervened, the suspect
kicked his son and told him he would kill his mother if the police were called. He
hit his son with an aquarium and a table. The wife was desirous of prosecution.
The suspect pled guilty to a 273.5 misdemeanor charge. He was sentenced to 3
years probation, 42 days of jail-time, 3 days of community service, 52 weeks of
batterer’s group and a year of AA. He never completed the batterer’s group, had
three bench warrants, and two violations in group during his probation. The
judge finally replaced the group requirement with 81 additional days in jail.
118
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
A 1997 Incident: An Asian American couple in their late 50s with children
in common argued because the husband was furious that his wife had sold her
business. He threatened to kill her and physically assaulted her, leaving multiple
visible Injuries. Their 19-year-old daughter witnessed the assault and confirmed
that her father continuously physically and verbally abused her mother. The
suspect pled guilty to a 273.5 misdemeanor charge and was sentenced to 3 years
probation, 5 days jail-time, 18 days community service, and 52 weeks of
batterer’s group, which he completed.
In Chapter 7 we will see that prior assaults were strong predictors that a
victim would want the suspect arrested. They are also strong predictors that a
charge will be filed. However, past domestic violence history loses importance at
the sentencing stage, with only past incident(s) reported by the victim significant
at the .05 level. Chapter 7 provides a more complete logistic analysis of the entire
sample.
This chapter reviewed the major changes in domestic violence legislation in
California in the mid-1990s. Domestic violence was more clearly defined as
abuse, warrantless arrests were authorized, diversion was repealed, requirements
of probation were strengthened, training requirements for criminal justice
personnel were instituted, and specialized domestic violence courts began to
adjudicate these cases. Criminalization of domestic violence was explored
separately for law enforcement, prosecution, and the courts. Although progress
was made, there was substantial resistance to change, which continues.
119
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
As I noted in Chapter 2, under the Ancien Regime
the non-appiication of the rale, the non-observance of the innumerable
edicts or ordinances were a condition of the political and economic
functioning of society. . .sometimes it was a matter of laws gradually
falling into abeyance, then suddenly being reactivated; sometimes of silent
consent on the part of the authorities, neglect, or quite simply the actual
impossibility of imposing the law and apprehending offenders. (Foucault,
1995, p .82)
The dynamics of intimate relationships is a political issue. As Foucault
described, power is dispersed across complex and heterogeneous social networks
marked by ongoing struggle. The changes that occur in the totality of power or
force relations are consequences of interactions among individual actors where
the totality of interaction is unpredictable because of the multitude of complex
and interwoven ways it occurs. Subjugated knowledges continue to erupt.
Chapters 5 and 6 contain an analysis of racial/ethnic, class, and gender
aspects of the problem respectively with a focus on empirical results of the study.
Percentage distributions of suspect and victim characteristics, nature of assault
variables, and criminal justice case processing by race/ethnicity, class, and gender
are featured. I look at significant differences that impact case processing and
inform clinical treatment and domestic violence education.
120
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 5
RACE/ETHNICITY
Introduction
In this Chapter I make distinctions among four major racial/ethnic groups
about how and in what ways domestic violence and the criminal justice response
to it differ among them. The labels African American, Asian American,
Caucasian, and Latino are socially constructed umbrellas, that when examined
closely, reveal extreme diversity within. Unfortunately, the racial/ethnic
information on police crime reports is limited and does not permit a refinement.
In spite of the diversity within these groups I did find numerous significant
differences among them. I look at how and in what ways domestic violence and
criminal justice response to it differ among African Americans, Asian Americans,
Caucasians, Latinos, and a fifth “Other” category of 16 suspects, including eight
middle-eastern males. This chapter includes a review of the literature addressing
some of these differences among African American, Asian American, and
Latinos, with comparisons among them and with Caucasian domestic violence.
The Los Angeles County sample provided enough suspects in four basic
categories3 0 -African American, Asian American, Caucasian, and Latino—to
enable a statistical analysis to further clarify the differences and similarities
3 0 The category of other was comprised o f 16 males, 8 Middle Eastern, 4 East Indian, 2
Pacific Islander men, and 2 biracial men.
121
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
according to race/ethnicity. I look at the historical and environmental context in
which men of color batter, predominant characteristics of perpetrators and victims
in each group, group differences in the nature of the assault, and differences in
how the criminal justice system responds to these groups.
The significantly different ways in which domestic violence occurs and is
responded to in communities of color compared to white experiences are based in
how people of color have responded to and continue to respond to oppression.
The violence that many women experience is often shaped by their racial/ethnic
identities and requires different strategies and approaches. Although research
indicates that race and ethnicity have an effect on attitudes toward domestic
violence (Locke & Richman, 1999; Yoshihama, 1999), there has been little
analysis of how history, culture, and structural factors shape these experiences of
violence (Allard, 1991). Research does suggest that structural factors such as
unemployment, alienation, and cultural marginality are more strongly related to
group differences in domestic violence than gender beliefs and practices within
the respective cultures (K. G. Kaufman, Jasinski, & Aldarondo, 1994; Song,
1996; Straus et ah, 1980). Other factors that confound analysis and make
generalizations difficult are immigration history, degree of acculturation,
religiosity, and available social supports.
122
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Responses to domestic violence cannot be effective without an
understanding of how historical, demographic, and social factors intersect with
Q |
race and ethnicity. Almeida, Woods, Messineo, Font, and Heer (1994) discuss
the importance of recognizing the multiple levels of abuse that men of color
experience outside of the home. It has been posited that African American men
who feel economically and psychologically emasculated by the structural
conditions of a hostile and racist society, may be more likely to engage in risk-
taking behavior to affirm their man-hood (Courtnenay, 1998). W. I. Wilson
(1992) observed the following:
The physical and psychological violence of White America against Black
America which began with Afrikan slavery in America has continued to
this moment in a myriad of forms: wage slavery and peonage; economic
discrimination and warfare; political-economic disenfranchisement; Jim
Crowism; general White hostility and Klan terrorism; lynching; injustice
and “legal lynching,” the raping of Black women and the killing of Black
men by whites which have gone unredressed by the justice system; the
near-condoning and virtual approval of Black-on-Black violence,
differential arrest, criminal indictments and incarceration... segregation;
job, business, professional and labor discrimination; negative stereotyping
and character assassination; housing discrimination; police brutality;
addictive drug importation; poor and inadequate education; inadequate and
often absent health care; inadequate family support, etc.. (p. 7)
Wah (1998), a facilitator of batterers' intervention groups, contends that
racism is a significant factor in the sense of isolation, the humiliation, and the rage
Asian American men experience. One group member explained to Wah that his
father had told him “never to offend White people or. . .share any family secrets
123
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
with them because Whites could not be trusted and might someday use that
information against” him (p. 136). Carillo and Goubaud-Reyna (1998) find the
roots of domestic violence in the Latino male population in European
colonization. Many of these “men have been indoctrinated to believe that they are
inferior and incapable of providing or protecting their families” (p. 58).
Acknowledging these destructive influences without allowing the perpetrators to
use them as an excuse for their abuse of their partners is effective in confronting
abusive men in the group setting. Differences among various racial/ethnic groups
in the prevalence, nature and cultural attitudes toward domestic violence can be
clarified through a study of the history of oppression in these cultures pre- and
post immigration to the U.S. In this country, while Caucasian males and men of
color may feel a sense of entitlement in the family, a white middle-class male
enjoys a sense of privilege outside of the home which the other men generally do
not experience.
As I examine the differences among three racial/ethnic groups—African
American, Asian American, and Latino—and compare them with Caucasians,
distinct themes emerge which are based in the subjectivity developed in
individuals in these cultures as a result of power relationships. These are products
of a combination of culturally specific ways of being and the results of racism.
The latter is particularly evident for African Americans. For this group the theme
jl Rimonte (1991) warns against using culture to justify violence against women.
124
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
is domestic violence embedded in community violence; for Asian Americans it is
shame, guilt, and the desire to protect the image of the community; for the Latino
community it is the concepts of machismo and marianisma that contribute to the
continuation of domestic violence. There is tremendous pressure on the African
American female to support the African American male, because of the violence
he has suffered and continues to suffer. Even when she is victimized by the
male, she is told her responsibility is loyalty to him and the race. The Asian
American female is responsible for maintaining a proper image of the Asian
family even when she is being assaulted by her husband. The Latina “is
considered, traditionally, the fountain of emotional support for the family”
(Carrillo & Rolando Goubaud-Reyna, 1998, p. 60). Her position in the family is
to serve the men.
The primary research focus on racial/ethnic differences in domestic
violence has been in two areas: (a) the relative prevalence of domestic violence
across these groups (Lockhart, 1991; Yoshihama, 1999; Xu, 2001), and (b)
attitudes within different cultures toward domestic violence (Coil, 1998; Hong,
1993; Le, 1998; Misumi, 1999; Nguyen, 1999; Singh, 1999; Warwick, 1997;
Yick, 1997; Yim, 1978). This chapter is a closer look at the relationships
j2 See pages 130-132 for a discussion o f the problematic and contested use o f this term.
I am only looking at batterers. I am not suggesting that ail Latinos subscribe to extreme forms of
patriarchy.
125
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
between race/ethnicity and the characteristics of the suspect and victim, the nature
of the assault, and the criminal justice response to it.
For the purposes of this study there is an obvious convenience in applying
the labels Asian American and Latino to large groups. In Los Angeles County
there are at least 19 culturally distinct Asian American communities and at least
as many distinct Hispanic American communities, and the sample sizes are not
large enough to include significant numbers of any one of these groups, except
perhaps, Mexican-Americans. In addition, the African American community is
highly diverse with differences in family structure, socioeconomic status, life-
■ style, educational level, and occupation. Larger samples of these sub-groups
would reveal significant differences among them (Kantor et. ah, 1994).
There is the common theme of power and control in intimate relationships
throughout all four groups; however, each group has a prevailing distinction.
Violence seems to particularly describe the African American experience, silence
and shame the Asian American experience, and machismo the Latino experience.
There are decidedly many significant differences among the four racial/ethnic
groups studied in this project in the nature of the assaults and the responses to
them. What follows is a look at patterns that delineate the differences; it is not an
attempt to explain cause. It is an attempt to explore relationships and themes
among variables.
1 26
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
African Americans: The Overriding Theme is Violence
Interpersonal violence among blacks is considered a major health problem
(American College of Physicians, 1995, 1998; Mercy, Rosenberg, Powell,
Broome & Roper, 1993; D. Schneider, Greenberg, & Choi, 1992). The primary
source of data on the prevalence and incidence of domestic violence in black
families has been The First National Family Violence Survey (Straus, Gelles, &
Steinmetz, 1980). The authors reported that black husbands had higher rates of
overall and severe violence toward their wives than white husbands did. The rate
of severe wife abuse in black families was 113 per 1,000, while the rate was 3 per
1,000 in white families. Also, black wives were almost twice as likely to engage
in acts of severe violence against their husbands (76 per 1,000) compared with
white wives (41 per 1,000) (Hampton & Gelles, 1994). There were several
studies in the late 1970s and the 1980s that indicated Black women were more
likely to be abused than white women (Cazenave & Straus, 1979; Hampton,
1986; Lockhart, 1991; Lockhart and White, 1989). Lockhart reported a
significant class-linked racial difference in that a larger proportion of middle-class
African American women than of middle-class European American women
reported that they were victims of violence by their husbands.
Violence has been the experience of African Americans from the time of
slavery (Payne & Utsey, 2000; Pierce, 1988; Staples, 1976). Over 300 years of
slavery laid a foundation of family and individual assault, particularly for the
African American male. African American males are disproportionally
127
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
represented among persons arrested for committing violent acts and those
victimized by violence (Greenfeld, 1998). Race-adjusted ratios of African
Americans to Caucasians arrested are approximately 6.7:1 for homicide, 6.3:1 for
rape, 11.7:1 for armed robbery, and 2.9:1 for burglary (Sheley, 1993). In 1998
African Americans represented 13 percent of the general population in the United
States, but accounted for 54% of persons arrested for murder, 55% arrested for
robbery, 36% arrested for aggravated assault, and 32% arrested for assault (U.S.
Department of Justice, 1998). African Americans are also victims of violent
crime at higher rates than Caucasians across all age and income groups
(Rennison, 2001). In addition, more than 90% of the victims of black violence
are other blacks (Gilligan, 1996). Three quarters of the victims of the African
American suspects in this study were African American women.
A large percentage of African American youth are growing up in
neighborhoods where exposure to interpersonal violence is commonplace. They
witness violence, hear about it, are victims of it, and in many cases perpetrate
violence against others (Garbarino, Kostelny, & Dubrow, 1992; Jenkins & Bell,
1997; Kozol, 1995; Lorton & Saltzman, 1993; Uehara, Chalmers, Jenkins, &
Shakoor, 1996). Children’s continuous and chronic exposure to such violence is
associated with greater psychological distress (Hill & Madhere, 1996; Schwab-
Stone, Chen, Greenberger, Silver, Lichtman, & Voyce, 1999; Ceballo, Dahl,
Aretakis, & Ramirez, 2001). This prevalence of interpersonal violence in lower
income African American neighborhoods is considered a major health problem
128
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(American College of Physicians, 1995, 1998; Mercy et ai., 1993; D. Schneider et
al, 1992).
At a community level, one of the destructive consequences of these
conditions is a fear of African American males by other African Americans
which, while practical in terms of self-protection, undermines cohesion and social
stability in lower income African American communities and contributes to the
alienation between middle and lower class African Americans (Madhubuti, 1990;
Oliver, 1989; W. J. Wilson, 1987). At an individual level, prolonged exposure to
community violence has adverse effects on emotional and physical health.
Research strongly suggests that a significant number of African American urban
poor youth are presenting symptoms associated with post- traumatic stress
disorder (PTSD) (Fitzpatrick & Boldizar, 1993; Jenkins & Bell, 1997). The
strong relationship between chronic exposure to racism and poorer indexes of
psychological and somatic well-being among African Americans has been studied
extensively (Jackson, Brown, Williams, Torres, Sellers, & Brown, 1992; Broman,
1997; Harrell, Merritt, & Kalu, 1997; Williams, Jackson, & Anderson, 1997).
African American men are particularly vulnerable to the adverse effects of
racism. The most significant result in the Los Angeles County sample regarding
African American incidents is that these men are significantly more likely to be
gone by the time the police arrive at the scene. This attests to the fact that of the
four major racial/ethnic groups African American males have the most negative
relationship with the criminal justice system. Racism can be seen as chronic
129
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
environmental aggression that serves as a constant reminder of the African
American males’ despised social status and potentially results in feelings of anger,
depression, and anxiety, feelings of subjective distress, lowered levels of life-
satisfaction, and lowered self-esteem (Utsey, Ponterotto, Reynolds, & Cancelli,
2000). Maladaptive coping to these stressors often takes the form of suicide,
displaced hostility or aggression, sexual promiscuity, and substance abuse. One
form of this displaced aggression is the domestic violence perpetrated on African
American women with whom they form sexual partnerships. Carl, a 52 year old
African American male I interviewed at length, when asked why men abuse
women they love, replied, “Fear, insecurity, partly because they’re not able to
express these irritations and disappointments as they go along.” Carl had “date
raped” two women in his younger years. When I asked him if he hated women he
said, “No, I love women.”
“If you do, why would you hurt them?’
“That’s a good question. Well, I guess fear. Fear of losing control, once
you lose control, you feel you’ve lost that woman. Yeah. Trying to control her so
I don’t lose her.” Carl went on to admit, “My first wife was afraid of me. I
never wanted her to be afraid of me. I was scared of my old man, so I knew what
that was.” When Carl assaulted his second wife, the police arrived, “barged” into
his bedroom where he had fallen asleep, and took him into custody. Carl asked
me, “Doesn’t a man have a right to be safe in his own home?”.
130
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Further confirming the violence in African American intimate
relationships are the findings of C. M. West and Rose (2000) that a significant
number of African American youth believe that aggressive behavior is part of
dating. Whereas men tended to perpetrate the most severe aggressive behavior,
their victims agreed that adversarial sexual behavior was part of male-female
relationships. In a study comparing Caucasian and African American women, the
latter were more likely to fight back when physically assaulted (Moss et al.,
1997). However, African American women often minimize their victimization
because they have been socialized to expect it and they tend to perceive
themselves as capable of self-defense (Ammons, 1995; Harrison and Esqueda,
1999).
Domestic Violence History of the Suspect
and Whether He was Gone by the Time the Police Arrived
Table 5a(l) illustrates significant differences among the racial/ethnic
groups on domestic violence history and the presence of the suspect when the
police arrived. Of the five groups, African American suspects were most likely to
be gone. Forty-eight percent of these suspects were not at the location when the
police arrived. They expect harsh treatment by the police, prosecutors and judges;
and in one sense, they make a wise decision to leave the scene, because being
gone on the arrival of the police is strongly but negatively correlated with case
processing (See Chapter 7). It is important to note in row 1, columns 4-6 of Table
5a(l), that African American women are wary about reporting their victimization
131
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
by intimates to the police. The information regarding previous assaults and
whether or not they had been reported (columns 4-6) was obtained from the
victim at the initial police response. As stated earlier, African American women
are tom between the desire to protect themselves and the strong community
pressure to refrain from further strengthening the stereotype of African American
males as violent.
The third column of data in Table 5a(l) shows a dramatic difference in
incidents that were brought to the attention of the police when the victim reported
the assault at the local police station. The rates for African American, Asian
American, and Latina victims is the same, 7%. However, Caucasian reports are
double that at 14% while the rate in the Other category is more than 5 times
greater at 38%. One possible explanation is the significantly higher socio
economic levels of the Other and Caucasian groups. I am assuming that although
the victims in these two groups want the police involved, they do not want a
patrol car at their residence.
Table 5a(l) illustrates the highly significant differences among the five
racial/ethnic groups on this factor. A Pearson Chi-Square test reveals a Chi-
Square of 52.213 and a p < .001. In Chapter 7 we will see that this independent
variable has tremendous impact on criminal processing decisions. Whether or
not a suspect was gone on the arrival of police has much to do with how
experience with and attitudes toward law enforcement differ among racial and
ethnic groups. Black males generally have an adversarial relationship with police.
132
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table §a(1)
Percentage Distributions of Two Suspect Variables ay Race/Ethnicity of the Suspect
Race/Ethnicity
Suspect Gone
When Police Arrived
Yes No N/a None
Suspect's Domestic Violence History
Multiple
Unreported Reported Arrested Arrests
Convictio?
African American 48 45 7 76 15 4 3 1 2
Asian American 21 72 7 54 30 9 4 1 2
Caucasian 30 " 56 14 59 23 10 5 1 2
Latino 41 52 7 50 30 8 4 1 6
Other 13 50 38 44 44 6 6 0 0
Chi-Square
df
P
52
8
<.001
42
24
< .05
U)
u>
Police are more likely to see them as suspects. In fact, the phrase “driving while
black” is a reference to the racial profiling that leads to black males being stopped
and questioned by the police more than males of other racial/ethnic groups.
Mauer and Huling (1995) found that one in three black males between 20 to 29
were in prison or jail or on probation or parole. Black males represented 47% of
all state and federal prisoners in 1996 (Mumola & Beck, 1997). If current levels
of incarceration continue, a black male in the United States has greater than a one
in four (28%) chance of going to prison in his lifetime, while a white male has a
one in twenty-three (4%) chance of serving time (Bonczar & Beck, 1997). Within
predominately African American communities law enforcement officers are
seldom regarded as helpful service providers. There is generally a reluctance to
give abusers over to a system that discriminated against men of color (Nesmith,
2001; Phan, 1998; Sherman, Smith, Schmidt, & Rogan, 1992, 2001).3 3 Help is
usually sought from extended family and religious leaders (L. Evans, Acosta,
Yamamoto & Hurowicz, 1986; Phan, 1998; Singh, 1999 Yoshihama, 1996).
Asian Americans: The Overriding Theme is
Silence, Secrecy, and Shame
Strong cultural forces make Asian American domestic violence the most
hidden, a pattern inherited from the countries of origin. Although attitudes
3 3 The fact that among the women assaulted by an intimate, two-thirds of black women,
but only half o f white women reported the crime to the police, seems to run counter to this belief
(U.S. Department of Justice, 1998).
134
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
regarding domestic violence in Asian countries are changing, it is still generally
regarded as a private matter and suppressed. Increasing democratization and
economic globalization are moving Asian countries to legislate women’s rights,
but there are still deeply embedded reservations about non-traditlonal roles for
women (Plate, 2000). The dowry system and the custom of the father of the
children gaining custody of them after a divorce trap many women in marriages
no matter how violent (Baneijee, 2000).
According to Estelle Chun, a family law specialist at the Asian Pacific
American Legal Center of Southern California, denial is the biggest problem
among Asian Americans—victims and abusers alike. She said women come to
her not as a result of contacting police but because their neighbors alerted
authorities or they ended up in a hospital emergency room. Speaking at Southern
California’s first Asian-Pacific domestic violence conference in Los Angeles’s
Little Tokyo in August 1994 Chun remarked, “They come to our office full of
scars.” Many Asian American perpetrators have great difficulty accepting that
assaulting one’s wife is illegal in the United States (Healey & Smith, 1998). A
good example is one case in this study where a Chinese man in the highest
income category, enraged when his angry wife confronted him about his mistress,
grabbed, kicked, slapped, and scratched her in front of their children. When the
police arrived, the husband repeatedly asked them why they were there, saying,
“This (beating your wife) is allowed in China.” He was arrested on a 273.5 but
135
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
not charged. No reason was given. Traditional Asian attitudes of male superiority
and privilege perpetuate the problem. Two examples of this in the study are:
When a Korean woman objected to her husband buying his mother a new
car, he pushed her, strangled her, and threatened to kill her. Their children
witnessed the assault. He admitted to two previous domestic violence assaults,
one of which had been reported. Although he was arrested on a 273.5, no charge
was filed and no reason given. This family was also in the highest income
category.
A Korean woman wanted her own golf clubs or to be able to use her
husbands. He disabled the phone, pushed her to the floor in front of their child
and struck her head with his boot, leaving multiple injuries. Previous assaults had
been unreported. She was desirous of prosecution. Although he pled not guilty at
first, he pled no contest to a 273.5 charge and was sentenced to 3 years probation,
10 days jail time and 52 weeks of batters’ group which he completed in 3 1 4
months. This family fell into the second highest income category.
Although generalizations can be made, there is much diversity among the
experiences of Asian American women with domestic violence across cultural
groupings, generations, and level of acculturation (Le, 1998; Yick, 2001). One of
the few studies examining this is a comparison among Chinese, Korean,
Vietnamese, and Cambodian adults living in the U.S. (Yoshioka, Dinoia, &
Ullah, 2001). The authors found that Far East Asian respondents were less
accepting of attitudes supporting male privilege and of the use of violence in
136
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
specific situations than were Southeast Asian respondents. Korean respondents
were the ieast likely to support violence in the situations presented.
The Asian American group was not large enough to make comparisons
among sub-groups. As a group, however, it is Asian American women who feel
the most pressure not to report domestic violence and to stay with their abusers.
They are “significantly more patriarchal in their attitudes, identified more with
their ethnic groups, experienced significantly less marital equality, had less social
support, and suffered from more severe battering before seeking help in a shelter”
(Bhaumik, 1988, pp. xiii-xiv). Deeply rooted patriarchal cultural and religious
beliefs create the understanding that men are superior to women. Households in
China and Korea still embrace many elements of the Confucian, male-dominated
family succession system—holding the eldest son in highest esteem to continue
the lineage, perpetuate the family name, inherit the family property and preside
over ancestral rites.
While studies show that Caucasian women who suffer abuse live with it
on average 3 to 5 years, a 1996 study published in the Violence Against Women
Journal found that Indian women in the United States remain in violence
relationships an average of almost 7 years. Women endure because they
believe they have no social standing without their husbands and children.
Because children belong exclusively to the father, in some Asian countries, many
women fear losing their children if they leave their husbands. Firoza Chic Dabby,
137
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
director of the recently formed Asian Pacific Islander Institute reported the
following:
Most victims of family violence report men begging them to stay after a
violent incident. Within Asian relationships, it’s often the opposite. Men
are saying, I can get another wife and the family members are all against a
woman who tries to leave. Often women report fear of losing custody of
children because all the family members support the man, saying that if
she is leaving, if she speaks up, she is not fit to be a mother .. .Not only do
Asian women have little support from other family members when
violence is involved, but often they are confronted with multiple batterers
in an Asian family. (Nesmith, 2001, p. 2)
Although cases of domestic violence reported to mainstream agencies
have shot up since the Simpson case, there has been no noticeable increase at the
Center for the Pacific Asian Family in Los Angeles. The center handles about 500
family law cases a year, and more than half of those involve spousal abuse. The
Center operates the only shelter for battered Asian American and Pacific Islander
women in Los Angeles. Since it opened in 1981, shelter and other support
services for Asian American battered women have followed throughout the
United States.
In 1991 when Maitri was founded in the South Bay area of San Francisco
to provide crisis and ongoing services to South Asian American women, the
community initially resisted the idea of widespread education and public
acknowledgment of the problem. Violence against women has been hidden
behind the thick veil of Asian patriarchal tradition. However, research which
flourished in the 1990s (Furiya, 1993; Healey & Smith, 1998; Hong, 1993;
138
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Misumi, 1999; Song, 1992; Tang, 1994), led to changes in awareness and attitude.
In 1997 the California health department supported a statewide conference on
domestic violence in Asian American communities. On a national level, Members
of the Institute on Domestic Violence in the African American Community, a
national group supported by the Dept, of Health and Human Services (HHS),
provided technical assistance to support efforts of Asian American activists to
organize so that they might impact domestic violence policy and research on a
national level. (Retrieved on Nov. 20, 2001 from the Asian & Pacific Islander
Institute on Domestic Violence website) (Banerjee, 2000).
Tong (1993) places Asian American domestic violence in the context of
“collective racist trauma” and a repressive cultural and political heritage. He
maintains that virtually every Asian American group has experienced
White violence so thoroughly inundating that it functions up to the present
day as a central point of reference for making sense of themselves in
America...For Filipino America, it was the brutal colonial subjugation of
the Philippine Islands at the turn of the century; for Japanese America, the
concentration camps of World War II. For Korean wives of White
American servicemen, it was the alienation and abuse of dysfunctional
post-Korean War interracial marriages. For Vietnamese America, it was
the intervention of the United States in a civil war between the
Vietnamese. And for Chinese America, it was the infamous Anti-Chinese
Movement (1785-1943). (p. 121)
Tong contends that imperial Confucianism and White racist oppression
have contributed to unresolved trauma and internalized violence in Asian
Americans and that this, compounded by the adaptational demands of
immigration have shaped Asian American domestic violence (p. 124). Wright
139
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(1960) and Balaz (1964) have documented how ruling groups of imperial China
exploited Confucian philosophy as a way to control a massive population. Tong
describes how, by the time of the Ch’ing dynasty (AD 1644-1911), the
government and local rulers used the family system for political purposes
(Fairbank & Reischauer, 1960). The Confucian concept of pao-tia, “taking care
of one’s own,” was redefined as ‘local order through mutual responsibility;’ and
the family became the basic unit of political control, keeping family members in
line through moral exhortation and fear of punishment. In effect, resentment or
rage toward the government was deflected or projected onto less powerful family
members and neighbors.
Chinese Americans
Although Chinese Americans are the largest Asian group in the United
States, almost no literature exists on Chinese American domestic violence (Yick,
1997). Social order and family structure in Chinese culture have traditionally
been male-centered (Braun & Chao, 1978), with power, influence, and authority
residing exclusively in adult males. Unquestioned and unconditional obedience
demonstrated respect for this authority. For centuries, patriarchal norms and
distortions of Confucianism led to the exploitation of Chinese women (Gilmartin,
1990; Honig & Hershatter, 1988). One example of the secrecy and shame that
surrounds domestic violence in a Chinese American community is the small
number of cases (15) reported to the San Marino Police Department during 1995-
1998. Only 4 of the 15 were Asian American perpetrators. In the following year
140
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
only one case was reported (California Department of Justice). San Marino
median family incomes were over $ 100,000/year in 1990. In addition,
approximately 50% of the population is Chinese. Chinese community leaders in
San Marino are very concerned that crimes committed by Chinese residents not be
publicized. When the women are battered there is strong cultural pressure to not
report the incidents. According to Crenshaw (1991), in these communities the
pressure tends to restrain women from screaming more than men from assaulting.
A strong element in both perpetrator and victim is a sense of shame, which
cannot be dismissed as trivial (Stanton, 1997). Among Chinese, shame is
experienced as a loss of face in a context of competition and comparison (Her,
1990). A 1989 case in Brooklyn, cited as one of the prime examples of why more
cultural education is necessary, involved a Chinese immigrant who smashed his
wife’s head with a claw hammer because of her alleged adultery. The judge in the
case sparked widespread outrage when he gave the defendant only five years
probation for manslaughter after a cultural defense claimed the attack was
prompted by traditional Chinese values regarding adultery and the shame he felt
over the loss of his manhood (Gibeaut, 1999).
In contrast, Yick (1997) found that a majority of 31 Chinese Americans
she surveyed by phone from the San Gabriel Valley in Los Angeles County
indicated a growing awareness of the problem of domestic violence. They felt
that violence that occurs between family members is a crime (81%), there should
141
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
be more laws to protect domestic violence victims (87%), and that the police
should be contacted if someone sees a man hitting a woman (87%).
Japanese Americans
Although Japan is the last of the industrialized nations to formally
recognize the problem of domestic violence and to enact legislation aimed at
preventing it and protecting its victims, among the Asian countries it is in the
lead. It is leading Asia in spawning economic and social changes that are
undermining patriarchy. Today, Japan is a checkerboard of both lingering
tradition and rapid change as old values still persist in such agricultural areas as
northern Tohoku and new ones are taking root in Tokyo, Osaka and other urban
centers (Watanabe, 1997, p. A8). Increasingly, young women delay marriage or
even refuse to get married because of the long-established expectations that
women alone should raise the children and take care of the housework. An
example of a changing Japan was reported in the Washington Post in July 1997:
A Japanese court has ruled in favor of a 3 3-year-old woman who divorced
her husband after he demanded that every day she cook him breakfast,
press his pants and clean house. The woman worked full time, but the
husband said it was the wife’s job to do all the housework.. .The husband,
a 3 5-year-old public servant, filed a lawsuit demanding that his wife pay
him about $38,000 in damages because she did not live up to her end of
the marriage arrangement.. .The Tokyo District Court. . .rejected the
husband’s demand for damages but did ask the woman to return her
wedding rings and a cash gift of $8,000. . .The case was applauded by
3 4 Shifting values and social structures are gradually empowering women to politically
question the tradition o f male-domination and to press for legislation. Since domestic violence
legislation went into effect in October, 2001, complaints to police have increased 50%, to about
1,500 a month (Magnier, 2002).
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
women’s groups and seen as a sign of the rising resistance among women
to traditional Japanese men who refuse to help with cooking and cleaning
and even expect their wives to draw their baths...
Another example is that although baby boys are still preferred throughout
most of Asia, in Japan, 76% of couples in a 1992 survey said they prefer a girl.
This preference for girls may result from the stronger position of women in the
Japanese household today and a desire for daughters to care for parents in old age.
In 1982 the majority of Japanese couples said they preferred a boy.
One case in this study involving a Japanese couple in their 30s, illustrates
perhaps the growing tendency of Japanese American women to no longer tolerate
abuse from their husbands. The couple had argued about finances. After his wife
went to bed, the husband turned up the volume on the TV. When she objected he
struck her on the head with a kitchen chair and kicked her in the stomach, leaving
multiple bruises. The husband had a previous arrest for domestic violence, and
his wife was desirous of arrest. Although he was arrested for a 273.5, he pled no
contest to a 242 charge, was sentenced to 3 years probation, 8 days jail time and
52 weeks of batterers group, which he completed.
In spite of changes, Japan had no rape-crisis center until 1982-and the
legal definition of domestic violence was last revised in 1907. Misumi (1999)
found that even though a large percentage of his sample (100 U.S. bom Japanese
Americans in the San Francisco Bay Area) knew someone who had experienced
domestic violence or knew an abuser, overall awareness of domestic violence
programs was not high.
143
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Korean Americans
There is a great deal of silence surrounding domestic violence in the
Korean American community. Many see it as a product of American culture
(Banerjee, 2000). The belief that conjugal violence in this community is rare
stands in sharp contrast to the reality. Song (1996) found that 60% of the Korean
immigrant women who responded to her survey experienced wife abuse. More
than half of the women who reported the abuse were subjected to assaults on a
regular basis (24% at least once a week; 37% at least once a month. On March
17, 1992, the Korea Central Daily Newspaper reported that Koreans have the
highest rate of Asian American domestic violence. In 1989 Korean immigrants
committed over 50% of all Asian cases of domestic violence in the city of Los
Angeles, suggesting that the rate of domestic violence among Korean immigrants
is twice that of the Chinese or the Japanese (Korea Times Daily Newspaper, July
9, 1987).
When Hong (1993) began work as a counselor at the Korean Family
Counseling and Legal Advice Center in Los Angeles in 1990 he believed that
domestic violence in the Korean American community was rare. Hong
subsequently interviewed 51 Korean immigrant men who were court-mandated to
attend domestic violence groups in Los Angeles County and found that only 23
(46%) of the court-mandated batterers were reported to the police by their spouses
41% were reported by non-family members, and 6% by their children. In 65%
144
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
of the cases in Hong’s study alcohol use by the perpetrator was a factor. The men
generally expressed their anger at the judicial system and retributive measures
also against the person who notified the police. Hong concluded that although the
men were very resistant to change, the involvement of the criminal justice system
opened closed and isolated family systems to continued outside intervention.
Healy and Smith (1998) reported that one of the victims in their study told
the police officer “that it is Korean culture and custom to their values that wife of
household does not report the physical beatings to the authorities because it is
shameful and embarrassing to her family. Wife must obey her husband at all
times.” That was the main reason why she failed to report the years of abuse to
the police. Also, although she was willing to assist in prosecution and testify in
court, she was reluctant to report the incident because of the language barrier. As
in other Asian American communities the woman understands her subordinate
position, and few report their abusers. A Korean proverb that depicts the shame
and obedience underlying the woman’s status is: If a hen crow, the household
crumbles (Song, 1996, p. 29).
Many Korean American women will only report the incident when the
assault is severe and/or the abuse is long standing. In one case in this study, the
Korean couple who had married in 1992, divorced 13 months later because of the
husband’s severe physical abuse of his wife. However, they later remarried. Both
were arrested for 273.5 in 1995 and received diversion. The husband was arrested
again in March 1996. The study incident occurred in May 1996. Angry because
145
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Ms wife had been talking to her friend on the phone for over a half-hour, the
husband grabbed her hair, turned up the volume on the stereo, “so the next door
neighbor couldn’t hear the commotion,” dragged her around the apartment by
holding onto her hair, and slammed her against the living room wall, causing her
to fall on the floor in extreme pain. She said that during the course of the beating
she was in fear for her life and that of her 4-month-old daughter. Her husband
covered her face with a blanket and strangled her to prevent her from screaming.
He then struck her on her face and upper body with his fists numerous times.
When the officers arrived she was crying and had difficulty breathing. She
showed them a picture of the bruises she suffered during the 1995 attack when
they were both arrested. Afraid for her life and that of her 4-year-old daughter,
the woman told the officer that she was willing to prosecute and to testify against
her husband.
South Asian Americans
According to Donna Edmiston, formerly assistant supervisor of the Los
Angeles city attorney’s Domestic Violence Unit, although precise numbers do not
exist, about 3-4% of the domestic violence cases the Los Angeles city attorney’s
office prosecutes every year involve South Asian and Middle Eastern families.
This is no measure of the prevalence of the violence because abuse in these homes
often goes unreported. South Asian women are taught as children to uphold
family as sacred and accept their status as “secondary and subservient.” South
Asian immigrant women are constrained from seeking help because of cultural
146
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
beliefs that require strict observation of hierarchies and the identity of women as
wives and mothers. Codes of privacy are so absolute that women reporting abuse
are shunned by the community and brandished as traitors to their culture. There is
an understanding that if she leaves an abusive marriage, she brings dishonor to
both families. Muslim women who are victims of domestic violence face more
pressure than victims of any other immigrant group. A 1,400-year-old verse in
the Koran is sometimes used to justify the abuse. It states that If a wife commits
nasooz, literally perversion, or dangerous acts that harm the family, her husband
has the right to correct or discipline her. Maher Hathout, a Muslim scholar and
spokesman for the Islamic Center of Southern California said that neither the
verse nor the Koran ever condones abuse (Ramirez, 1999).
Hmong immigrants come from a patriarchal society in which domestic
killings were unheard of and domestic abuse caused men to be shunned by
their clans, leaders said. They say the stresses of life in the United States
and the difficulties of assimilation might be at the root of the violence. .
.the rise in domestic violence comes as many Hmong try to preserve their
culture, which includes clan elders and kin mediating in marital disputes.
It’s difficult for Hmong to balance integration with tradition (Powell,
2000).
Clinical progress relies on clients being able to feel comfortable and safe
enough to express the feelings that underlie destructive behaviors. Because this is
difficult for Asian clients, particularly in a group setting, facilitators of Asian
batterers groups use a non-confrontive, Socratic method that relies on analogies,
metaphors, and parables. There are Asian cultural barriers against speaking
openly in a group, which reduce the effectiveness of the group process.
147
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Individual counseling is often used to help avoid humiliating men whose culture
places a high value on peer acceptance. The counselors in programs with Asian
immigrants agreed that the men could not participate effectively in the standard
Duluth-style intervention because many of them are averse to group work and
abhor confrontation (Yick, 1997).
Latino Males: The Theme is Machismo
The use of the term “machismo” is problematic and contested. Latino
scholars (Baca Zinn, 1992; Mirande, 1979) have criticized the term’s use because
it tends to reinforce a negative stereotype. Latino perpetrators of domestic
violence will describe el macho as violent, arrogant, powerful, stubborn, a
womanizer, and one who makes decisions on his own without consulting anyone
(Carrillo and Goubaud-Reyna, 1998). Ironically, these men have accepted and
internalized a distortion of ancient teachings which valued dignity, respect, trust,
and love and directed a young man to an honorable and balanced manhood. Tello
(1998) writes that this distortion is a result of colonialization.
Patriarchy Is a shared belief among many Latino immigrants, especially
among domestic violence offenders (Mirande & Enriques, 1979). Latino
populations are heterogeneous, and patriarchal notions among Latino men vary
with age, class, and socioeconomic status. However, the woman easily becomes
objectified. Perpetrators of abuse share the belief that women are subservient to
men, that the women’s position in the family is to serve the men (Carillo et al.,
1998; Sinclair, 1990). For them, Hispanic women are expected to be gentle,
148
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
docile, submissive, and timid. Their role as wife and mother is to take
responsibility for the house and the education and religious training of the
children (Langer, 1969). A Chicana who has become too “Westernized” and
rejects male domination is a “treacherous woman.”
In his work with undocumented Mexican workers, M. Pena (1991)
concludes that in addition to legitimizing the oppression of women, Mexican
folklore plays an ideological role In class conflict. He maintains that these
immigrant workers have neither class consciousness nor the political means to
end their exploitation, and have not developed a discourse to contest the
established order. A sexist ideology of machismo serves the interests of the ruling
class by imposing cultural limits on a consciousness of class oppression. As a
signifying system unique to working-class male culture, the folklore of machismo
symbolically merges class and gender by ideologically displacing the point of
conflict from the public domain of class oppression to the private domain of male-
female relations. This machismo derives its power from the specific conditions
that have historically shaped Mexican culture—extreme economic exploitation,
deprivation, and alienation (Baca Zinn, 1992). Baca Zinn ties male dominance in
Chicano culture to these structural conditions of political and economic
oppression. Exhibiting “machismo” is a way of feeling capable and powerful in a
world that denies these men other opportunities. However, she cautions that
labeling and stereotyping behavior as reflection of “machismo” can also be a form
of social control. Mirande (1979), Baca Zinn (1992), and Hondagneu-Sotelo
149
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(1992) challenge a cultural explanation of gender relations in ethnic families by
considering the structural, economic and political, and social factors which shape
relative resources and thus, family relations. Hondagneu-Sotelo acknowledges
that Chicano families retain elements of traditional culture; however she
maintains they are not characterized by extreme forms of patriarchy. Tello
(1998) and Carrillo and Goubaud-Reyna (1998) describe the multigenerational
process of internalized oppression that has resulted in the negative connotations of
machismo.
A study of domestic violence cases tried in a rural, non-Indian Mexican
village in the nineteenth century provides evidence of law as a significant factor
in the construction of patriarchy and gender. In Namiquipa, Chihuahua in the
1850s a liberal nationalist program was implemented in part to encourage
capitalist economic development. As a result women received limited
empowerment, but remained subjugated. One aspect of the program was a
criminalization of domestic violence. Cases of marital abuse brought before the
authorities demonstrated the conflict between men and women regarding
domestic authority. Men’s right to have control of the economic resources, to be
adulterous yet have sole access to their wives’ sexuality, to demand wives’
domestic service, and to use violence in the disciplining of children were
challenged. However, by the 1910s the patriarchal absolutism of Porfirio Diaz
regime prevailed (Alonso, 1995).
150
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In late-colonial and early-republican Arequipa, Peru’s largest provincial
city, wives sought protection from neighbors and local officials, challenging the
right of the church and state to define and enforce limits of proper marital conduct
for women. The right to leave abusive husbands was prohibited by husbands and
civil and religious authorities. Petitions against wife beating were seldom
successful (Chambers, 1999).
In-depth interviews of men in three Peruvian cities depicted a pattern of
male aggression that revealed the contradiction between a marriage of mutual
reciprocity and solidarity and a culture that values male authority and the
importance of associations among men. Fuller (2001) found that incidents of
domestic violence were generally associated with three issues: control of
household finances, control of a partner’s liberty, and the man’s perception of his
partner’s willingness to fulfil her domestic duties. The men justify the violence
because she does not comply with his expectations or she complains when he
does not comply with his obligations. Although they acknowledge that their
partners have a right to expect them to be responsible and faithful, they resist any
challenge to their dominance or exercise of authority. It is particularly shaming to
the man if the woman confronts his authority over her in front of his friends or
family members. The violence is explained as venting anger or as a strategy to
restore order and put a woman in her place when she has questioned his
supremacy.
151
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Natera (1997) found that responses to a household survey in the southern
area of Mexico City suggested that chronic drunkenness and jealousy on the part
of the husband were frequently contributing factors in incidents of domestic
violence. She suggested that the role of jealousy in the relationship between
drinking and violence should be studied, since it was a strong predictor of both
violent acts and threats. A notable pattern that emerged in the Los Angeles
County crime report narratives is that Latino male suspects were more often
motivated by suspicion that their partner was unfaithful than men in any of the
other racial/ethnic groups. The Latino perpetrators are more often certain their
partners are unfaithful, that there is a “Sancho” in the picture.
The following examples of Latino jealousy leading to domestic violence
were taken from the narratives of the sample crime reports. Except as otherwise
noted, alcohol was not a factor:
A 24-year-old suspect asked his girlfriend if she had sex with any of his
friends. When she said “No,” he called her a “bitch, whore,” then began pushing
and shoving her. He backhanded her across the face and punched her in the nose,
leaving multiple injuries. He was sentenced to 3 years probation, 10 days jail
time, and anger management classes, which he completed.
Another incident, which did involve alcohol, occurred when a 28 year old
Latino came home drunk and accused his wife of being unfaithful. He began
punching her in front of the children, punched a hole in the living room window,
and tore the curtains. He was not arrested because his wife was non-desirous.
152
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Two 18 year-olds had been dating for 4 months. The male strangled and
threatened to kill his girlfriend if she saw other men. There was no sign of injury
and no witness. The reason given for no arrest is that the victim did not want Mm
to be arrested.
A 36-year-old male and a 23-year-old female, had been dating for five
months. The woman was 4 months pregnant. He broke into his girlfriend’s
house, accused her of cheating on him, and strangled her. There had been prior
incidents that were not reported. At this point the victim was desirous of arrest.
He was arrested, pled guilty to a 243 charge, and was sentenced to 3 years
probation, 2 days jail time, 3 days of community service, and 52 weeks of
batterers group, which he never completed. There is an outstanding bench
warrant for his arrest.
A 19-year-old husband accused his 17-year old wife of having an affair
with their neighbor. He came home sullen but wouldn’t talk to his wife. When
she tried to get him to talk to her, he pushed her away gently. She elbowed him
and he punched her in the head repeatedly, leaving multiple bruises which were
photograph. Although the wife did not want him arrested, he was; however, he
was not charged. There was no reason given.
A drunken 24-year-old husband accused his wife with having sex with
another man at church. He grabbed his wife’s face, pushed her onto the bed, sat
on her, and pulled her hair. He then took a knife and told his wife to stab him.
He was not arrested nor charged because his wife was non-desirous.
153
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
A jealous 51-year-old husband arrived home, grabbed Ms wife’s hair,
threw her to the ground, dragged her, jumped on her, sat on her, punched her in
the face, and strangled her. When their 16-year-old son tried to help his mother,
the father pushed him away twice. The man has physically assaulted his wife for
19 years, fifteen to twenty times in the previous three years. Prior incidents were
not reported. Disposition of this case is unknown.
This case involved an unmarried cohabiting couple in their thirties with
children in common. The jealous male argued with the female, yelled at her,
scratched her several times, hit her with a chair, leaving multiple bruises, and
threatened to kill her as he headed toward the kitchen to get a knife. The victim
wanted him to be arrested. He pled guilty to a 273.5 charge, was sentenced to
three years probation, 20 days jail time, 3 days of community service, and 52
weeks of batterers group, which he completed.
A drunken and jealous suspect pushed his girlfriend’s 19-year-old
daughter and threatened her and her mother with a metal bat. He broke an
aquarium with the bat, poured gasoline on the carpet, turned on a heater, and left.
Previous incidents unreported. A year prior to this incident the suspect had
attempted suicide. His girlfriend had him hospitalized. One or two years prior to
that he had punched her in the face. That incident was not reported. He was not
arrested in this incident because the victim was non-desirous.
In this case, the woman was the perpetrator. The couple in their 20s with
two daughters under 4, had been cohabiting for 3 years. The woman, intoxicated
154
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
and jealous, grabbed her boyfriend’s hair, then punched and scratched him on the
neck and upper torso. He told police that Ms girlfriend has struck him many
times, and that he is afraid for himself and their daughters. He was very desirous
that she be arrested. She resisted wildly when arrested. She pled guilty to a 273.5
charge and was sentenced to three years probation, 15 days of jail time, 15 days of
community service, 52 weeks of AA meetings and 52 weeks of batterers group,
which she completed.
Jealousy was a primary motivator where Latinos were the perpetrators.
However, at other times they reacted violently when their sexual advances were
rejected, or they became upset because there was no dinner or they didn’t like
what was prepared, or “the house is dirty.” There are numerous examples in the
police/sheriffs narratives of the sense of entitlement and the belief that if he is
upset he can hit her, or if she is upset with him, he can hit her. A group
mandated Latino male I interviewed at length in 1993 in connection with another
study related that he beat his wife because she tried to arouse Mm when she found
Mm on the kitchen floor drunk. He said she should have left Mm there.
My experience interviewing these men and conducting batterer’s groups
has been that the Latina victims are unsuccessfully trying to rehabilitate their
partners. The victims seem to be trapped, afraid, beaten when they try to express
their concerns about their partners behavior, and unable to escape the relationship
or the incident. A national domestic violence hotline operator in Texas I
interviewed on July 8, 2001 said one problem with attempting to help Latinas who
155
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
are victims is that they are “completely blackmailed.” The perpetrators threaten
to leave them if they go to counseling. “No one will want you.” They often
threaten to kill one of the children or a pet. She said the women meet and fall in
love with a nice guy then find themselves living with a tyrant/captor as the
violence escalates. When frustrated family members call the hotline for advice
they are advised to “tell everyone” about the abuse—people at work, at school,
neighbors, friends and extended family to break through the denial. She
compared the problem victims have to an addiction. There are women who have
been separated from their batterers for years who will call for help so they don’t
initiate contact with the men again. There is usually a long-term history of
domestic violence with an overriding theme of an emotionally weak man trying to
control his partner under the guise of machismo. It must be noted here that the
crime report narratives in the Los Angeles County sample are not sufficiently
detailed to confirm these observations or to indicate if they are distinctive to
Latinos or typical of all groups.
However, in this sample incidents often occur when the suspect comes
home after drinking or using and assaults or starts an argument with his partner or
when she is vocal with the suspect about his drinking/drug use. Also in Chapter 7,
alcohol use prior to the arrest are shown to be predictors of arrest and cases being
156
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
sent to the prosecutor. The Latino perpetrators in this study had the highest rate
of alcohol use (Table 5a(2)).3 5
Table 5a(2)
Percentage Distribution of Race/Ethnicity by Use of Alcohol/Drugs Prior to the Incident
Suspect _____ V ictim ____________ Totals
Race/Ethnicity
Was Using Was Not Using Was Using Was Not
Using
African-American 13 87 6 94 100
Asian-American 8 92 6 94 100
Caucasian 25 75 1 1 89 100
Latino 28 72 6 94 100
Other 100 1 1 89 100
Totals 23 77 7 93 100
C hi-Square
df
P
33
4
<.001
7
4
0.137
Alcohol Use
Suspects’ alcohol and drug use was surprisingly low in this Los Angeles
County sample compared to previous reports in the literature. This may be due to
under reporting by the officers; however, California Penal Code 13730 stipulates
that “The report shall include at least all of the following:
3 5 Alcohol abuse has been associated with Latino populations in the United States
(Goulding, Burnham, Benjamin, & Wells, 1993; Marin & Marin, 1991).
157
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(1) A notation of whether the officer or officers who responded to the domestic
violence call observed any signs that the alleged abuser was under the influence
of alcohol or a controlled substance." Appendix I is a copy of the entire code.
Research results vary widely with regard to alcohol as a factor in domestic
violence incidents, ranging from 50-75%. Rates of alcohol abuse in the general
U.S. population are estimated at 10-13% (Maiden 1995) with most studies
indicating that alcohol is a factor in 2/3 to % of domestic violence incidents.
Gelles (1997) suggests that “Perhaps as many as half the instances of violence and
abuse involve some alcohol or drugs—a very strong association” (p. 10). Also, he
notes (1993) that if alcohol and drugs are linked to violence, it is through a
complex interaction of individual, situational, and social factors. Fals-Stewart
(2003) found that men who have a predisposition for physical abuse toward their
female partners and who drink alcohol are more likely to be violent on the days
they drink alcohol.
In this study only 24% of the suspects had been drinking or using a
controlled substance. There were significant differences In suspects’ drinking
among the five racial categories; however the differences in victim’s drinking
were non-significant. Table 5a(2) lends support to what is generally known about
alcohol abuse among various racial/ethnic groups. My study data support
158
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
recognized higher levels of alcohol consumption among Latino males and
Caucasians and lower levels of alcohol use among African American and Asian
American males prior to a domestic assault.
Neff, Holamon, and Schluter (1995) found that among African American
couples, self and spousal drinking patterns appear less relevant in a domestic
violence incident than they are for Caucasians and Latinos. They suggest that
blacks may be more prone to divorce when drinking leads to violence since “the
high prevalence of reported violence among formerly married females (Blacks in
particular) at least suggests.. .that violence may be a major factor underlying
likelihood of divorce” (p. 19). They also found that women married to Mexican-
American men who drank frequently had greater odds of being the victims of
domestic violence than those married to abstainers. Also, whereas Latino males
were more likely to be under the influence of alcohol and their victims were not,
with Caucasian couples, the victim was also often drinking.
Table 5a(3) shows a significant difference among the racial/ethnic groups
where both suspect and victim were under the influence. Generally, Latino and
Caucasian males and Caucasian females had a higher rate of alcohol use than the
other categories. With regard to Latino males, the crime report narratives
indicate that, where alcohol is a factor, the arguments leading to assault are about
36
Marin and Marin, (1991), in a study comparing alcohol consumption among African-
Americans, Caucasians, and Latinos prior to a domestic assault, reported that Mexican-American
and Puerto Rican men are particularly at risk for alcohol related problems.
159
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5a(3)
Both Suspect and Victim U nder the Influence by Race/ethnicity and Nature of Relationship
African American Asian American Caucasian Latino
_ n % ______ n % __________ n %__________ n %
Nature of Relationship
Married 1 50 2 100 8 38 4 25
Unmarried, cohabiting 1 50 9 43 7 44
Separated 1 6
Dating, nocohabitants 3 14 3 19
Form er dating relationship_____________________________________________________ 1 _______ 5_________ 1 ______ 6
Totals 2 2 21 16
Total Cases Where Race/ethnicity
Is the Same 86 98 236 420
Percentage of Total Cases Where Both
Under the Influence 2 2 9 4
the suspect’s jealousy, his dissatisfaction with the victim’s housekeeping or
attempts by the victim to address the suspect’s alcohol abuse.
A Latino police officer I interviewed expressed his frustration with a
stereotyping of Latino perpetrators:
I hate it when they say, “Well, that’s the Mexican or Latin culture that the
man is controlling or the man does this. It’s never been acceptable in any
culture that I’ve known. I know that there is nothing that my wife could
do to me that would get me mad enough that I would hit her. I just know.
I don’t care if she was with another man, I don’t care if she burned down
the house, there is nothing she could do that would make me hit her. All
the Latin homes I go to the husband is invariably sitting in the background
not saying anything, and it’s the wife who comes up, and we have to talk
to her about something her son has done, or something going on in the
family or the neighborhood. I hear that a lot, that it’s part of the culture.
So you see a lot of strong Latinas?
160
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
I don’t know if it’s that they are strong, I just think that it’s something they
have to do. Because it’s their family. I don’t think it’s so much that
they’re strong; I just think they’re taking responsibility. I think it’s more
that the husband is sitting in the background with a beer in his hand; I
don’t know whether he doesn’t care, . . .1 think that’s what it is. He just
doesn’t want to be bothered. So the wife has to do it. Because she loves
her kids, and if it’s her son in jail, or he is doing something wrong,
somebody has to talk to us, so it’s going to be her.
I’ve noticed in my data, if the Latino husband is drunk, the wife
usually isn’t; but with Caucasian couples, if the man is drunk or
drinking the woman is also drinking (See Tables 5a(2 and 3)). I get the
impression that most Latinas are not into drinking.
I would agree. Most of the calls I go on, that’s the case. They are sober,
and it’s the husband who is drinking and she is the one cleaning up after
him.
According to K. G. Kaufman (1995), among the Mexican population,
“machismo drinking” is a strong sign of masculinity and a mechanism for coping
with economic frustrations and the stress of everyday life. Hector Ayala,
professor of psychology at the University of Mexico, explained that Mexico’s
“typical” problem drinkers tend to be “episodic, explosive drinkers,” whose
binges are sometimes followed by traffic accidents, family violence and arrests
for various crimes. In fact, Mexico has a higher percentage of abstainers than
does North America, but the country has a “significant proportion” of people with
problems stemming from isolated drinking episodes.
Alcohol abuse is particularly problematic among Mexican-Americans, the
largest Latino group in Los Angeles County. Community leaders regard the
problem as “very, very severe” and “a problem much greater than anyone can
imagine" (Solis cited in Nazario, 1999). Nearly a quarter of Mexican-American
161
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
men are considered heavy, problem drinkers, a higher proportion than any other
ethnic group surveyed nationally. More than one-third of these men surveyed
said drinking had led to at least one of a dozen alcohol-related problems such as
drunk driving, domestic violence, and termination of employment (Nazario,
1999). According to Ray Chavira, National Board Member, Latino Council on
Alcohol and Tobacco, “mixing beer and machismo is a far greater personal and
social disaster for people of Mexican ancestry, because we are also descendants of
North American Indians, southern and mixed-blooded, whose genes still can’t
handle the white man’s firewater” (Chavira, 2000). In Los Angeles, cirrhosis of
the liver kills Mexican American men at double the rate of white and black men
(Nazario, 1999).
According to Healy and Smith (1998), domestic violence counselors
report a cultural gap between young Latinos and older Latinos. The former group
are considered to be less family-oriented, more dependant on male friends who
portray positive ties with women as weakness, and more interested in not getting
caught than in ending the violence. With them, the original meaning of
m ach ism o, he who tenderly cares for his family, has been replaced by power and
control of a partner as an expression of manhood. In the Los Angeles County
sample the Latinos under thirty-five were 3.4 times as likely as those 35 and over
to be cohabiting. The young Latinos in my battering intervention groups tend to
see not being married to their partner as a way of being in control in the
relationship. Another highly significant finding in this sample (p < .001) is that
162
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
whereas fewer than l A of the men in dating relationships were drinking at the time
of the incident, more than 1/3 of those who were married or unmarried cohabiting
were drinking.
Jasinski (1998) found that these younger Hispanic men were more likely
to batter their female partners than older Hispanic men. This was confirmed in
the Los Angeles County sample. Table 5b shows there was a dramatic difference
in the suspect’s age among the five racial/ethnic categories. Latinos appear to
perpetrate domestic violence when they are relatively young, with the rates
declining substantially as the men age. A similar result was found for African
American males and men in the Other category; however, they appear to continue
longer than the Latinos. The Asian American and Caucasian perpetrators tended
to be older as we see in columns 5 and 6 of the table.
In my lengthy interviews with batterers, Joe, a Mexican American man,
expressed the contrasts among himself at 25:
She had to answer to everything she did, to me. I felt I couldn’t trust her.
I had a big thing with trust...I just, I don’t know man, I was just so, got
sick in the head... drove her out of my life. I guess I just drove her crazy
with my need to control her. I would become angry with her, and then the
mental abuse would come in, and I’d play head games with her...I was
intimidated. She was a very nice looking girl, and I was just afraid to lose
her. . .1 don’t know how or where it began. It’s a fear. It’s gotta be fear.
I’m very insecure. I’m afraid of failure.
and in mid-treatment for his heroin addiction:
It’s a very hard thing, letting go. Everything I tried to let go has claw
marks on it. . .Coming into recovery, it’s been taught to me, explained to
me. . .people, places, things, I’m just powerless. Over situations. At first
it was kinda like I didn’t want to accept it. You know I wrestled with it.
163
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 6b
Race/Ethnicity
Younger
than 25 25-34 35-44 45-54 55-65
Older
than 66 Total*
African-American 18 35 33 12 3 0 100
Asian-American 8 32 36 17 6 1 100
Caucasian 10 38 34 13 5 1 100
Latino . 26 45 22 5 2 0 100
Other 19 31 25 25 0 0 100
Chi-Square 92
df 20
< .001
When I asked Joe, “What finally brings abusive men to change?” He
replied: It’s the insanity part of it. Happenin over and over. This ain’t
getting any better. You feel bad, and you’re tired of feeling bad. Just the
insanity. And the courts. I was court sent into recovery. It took a judge to
get me there. I started stealing to support my habit. Heroin, and a full
blown alcoholic. They gave me a deal. Prison or recovery.
At 43, Joe Is an addictions counselor; he speaks to groups about domestic
violence, facilitates a group for batterers, and is interested in promoting Violence
Anonymous as a tool for helping men who batter. However, although he hasn’t
re-offended, he is still unsure of his ability to let go of the need to control.
One focus used with Latino males in a batterers' intervention group is the
distortion of the concept of ‘machismo,’ “challenging ownership of the partner,
countering excuses for battering based on cultural practices and discussing and
learning to understand the clients’ complex family ties” (Healey & Smith, 1998,
p. 9). “My father exemplifies the machismo thing in our culture. Being a man
came first in my family” (Ramos, 1994).
A common belief is that domestic violence, while unfortunate, is
acceptable in certain cultures. Comas-Diaz (1987) maintains that in Latino
families authority and prestige are male prerogatives. The men are expected to be
strong, dominant, aggressive, authoritarian, and brave. The father has the most
power in the family and the sons have more power and privilege than the
daughters do. Traditionally, sex roles have been rigidly defined. The
father/husband is to be accorded respect in spite of less than respectful behaviors
(Comas-Diaz, 1987; Lum, 1992). Welland-Akong (1999) found through 12 in-
165
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
depth interviews with Spanish speaking Mexican immigrant men who were court
ordered to domestic violence treatment that the men strongly emphasized rigid
male gender roles that influenced their behavior. Their childhood experiences of
a violent family environment also supported social learning theory. Most of the
men underwent psychological trauma as children and met criteria for alcohol
abuse or dependence. They responded to an empathic and respectful approach by
the group facilitator.
An interesting development is the growing number of voluntary Latino
men’s groups, circulos de hombres, based on Aztec traditions, in places such as
Los Angeles, Orange County, San Francisco, Albuquerque, and San Antonio. The
hope is to define machismo in positive terms—a strength that honors and respects
all family members—as opposed to arrogant rule (Mena, 2000). These groups
are part of the recognition that the issues of domestic violence and children
growing up without fathers won’t be resolved without the widespread
involvement of men.
Cohabitation, Marriage, Children and Pregnancy
Partner assaults occur most frequently in cohabiting relationships, perhaps
because expectations are high while perceived security is low. According to Waite
(1999), cohabiting couples are about twice as likely to report physical violence in
national surveys as are married couples. Little was known about heterosexual
cohabitation prior to the late 1980s, and direct measures of cohabitation did not
appear in the national population surveys until the 1990s (Casper & Cohen, 2000).
166
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
There are few apparent racial/ethnic differences in the rate of cohabitation among
African Americans, Caucasians, and Latinos. However, research on other
patterns in cohabitation, marriage, and pregnancy suggest that cohabitation is
more an alternative to marriage for black and mainland Puerto Rican women and
more a precursor to marriage for Caucasian women (Loomis & Landale 1994;
Raley 1996). Recent data show that 45% of white and black and 40% of Latinas
ages 19-44 have cohabited (Bumpass & Lu, 1999). In the Los Angeles County
sample cohabitation was highly correlated with the age of the perpetrator, which
in turn was highly correlated with the severity of the assault.
There are significant differences in marriage rates among the racial/ethnic
groups in the Los Angeles County sample of domestic violence cases. Table
5c(l) shows that African American perpetrators were less likely to be married to
the victim and more likely to have formerly dated than Asian American,
Caucasian, and Latino perpetrators. The low marriage rates for African
American couples have been widely documented (e.g., Lichter, McLaughlin,
LeClerc, Kephart, & Landry, 1992; Mare & Winship 1991; Raley 1996). Because
marriage is the key feature of the Asian American family, this group is the least
likely to live together without marriage and the most likely to uphold the “old-
fashioned” structure of family life (Younge, 2000). A significantly greater
percentage (62%) of the Asian American couples in the Los Angeles County
sample was married.
167
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5c(1)
Percentage Distribution of Relationship Between Suspect and Victim by
Suspect's Race/Ethnicity
M arried Unmarried Separated Divorced Dating Formerly Totals
Race/Ethnicity Cohabiting Dated
African-American 27 31 9 13 20 100
Asian-American 61 16 7 3 5 8 100
Caucasian 34 25 17 7 9 8 100
Latino 32 39 6 3 8 12 100
Other 44 25 6 6 6 13 100
Chi-Square 99
df 20
p < .001
The results of a cross-tabulation of the children in common variable by
suspect’s race/ethnicity are illustrated in Table 5c(2)„ Caucasian couples were the
least likely to have children in common. This variable was a strong predictor that
the case would be sent to the prosecutor. Thirty-seven (4%) of the women in the
sample were pregnant at the time of the incident. Eleven percent of the African
American women were pregnant, whereas only 1, 3, and 4% of the Asian
American, Caucasian, and Latinas were pregnant. The risk of abuse to women
and thus injury to babies increases dramatically during pregnancy; an estimated
25-40% of all battered women are assaulted during pregnancy (Horn, 1992).
168
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5c{2)
Percentage Distribution o f Children in Common
by Race/Ethnicity o f the Suspect
Race/Ethnicity
Children in
Common
Victim
Pregnant
Children &
Pregnant
African-American 51 9 2
Asian-American 54 1
Caucasian 41 3 1
Latino 63 3 1
Other 69
Chi-Square
df
P
44
12
< .001
A Florida Task Force on Domestic Violence found that there were more babies
bom with birth defects as a result of pregnant mothers being battered than from all
of the diseases and illnesses pregnant women are immunized against combined
(Gettleman, 1992). In Chapter 8 we will see that if the victim was pregnant there
was a high likelihood of conviction. This was one of the few factors that
increased the chance that an African American male would be sentenced.
In Los Angeles, The Center for the Prevention of Domestic Violence
primarily serves the growing Latino population with counseling sessions often
169
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
focusing on cultural factors that can play a role in spousal abuse. Over 90% of
the men who take part in the program annually are Latino. Most shelters in Los
Angeles County have Spanish-speaking staff members. The Chicana Service
Action Center, El Rescate Sericios Legales (Emergency Funds and legal services),
and Proteccion Legal Semmenina are additional resources. With the Latino
population expanding in the East and the Midwest many communities that
previously had little need for Spanish speaking counselors, are searching for
individuals who can speak the language and address the cultural issues.
Princeton, New Jersey is an example of this change. The Police Department has
hired two local organizations, the Mercer County Hispanic Association (MECHA)
and Cover House to provide Latinos with information about domestic violence
(Michaud, 1996). In southern California and elsewhere throughout the nation
there are organizations and facilities addressing domestic violence among Latinos
too numerous to mention.
How do the Racial/Ethnic Groups Compare on Characteristics
of the Assault, Victim Desire for Arrest, and Criminal Justice Processing?
As might be expected, the nature of the assault is a strong predictor of
criminal justice processing. Tables 5d(l-2) contains information about the
relationships among race/ethnicity and the type and severity of the assault. The
data are clear in showing that the Caucasian and the Other group are significantly
less likely to have inflicted a physical injury, in particular a head/neck injury, to
have left multiple signs of injury, and in general to have inflicted the most severe
170
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
injuries. Latino males were high on the severity of physical abuse scale. Along
with African American males, they were the most likely to inflict a head or neck
injury. African American males had the highest percentages of punching,
Table 5df1)
Percentage Distribution of Characteristics of the Assault by Suspect’ s Race/Ethnicity
Race/Ethnicity
Physical
Injury
Head/neck
Injury
Grabbed/Pushed Slapped
Shoved/Dragged
Punched Visible
Sign
M ultiple
Signs
African-American 83 61 38 9 37 23 30
Asian-American 82 58 55 20 21 19 39
Caucasian 77 49 51 9 21 22 23
Latino 88 63 54 19 36 20 35
Other 75 38 31 6 19 6 19
C hi-Square 18 21 13 19 27 21
df 4 8 4 4 4 8
P
<.01 <.01 <.05 <.01 <.001 <.01
strangling, and damaging property during the incident. Latino males and Asian
American males were more likely to leave multiple bruises, lacerations, etc.. All
of the g values in Table 5d(l) are strong: punching (p < .001); physical injury,
head/neck injury, slap, multiple signs of injury (p < .01), and in Table 5d(2),
severity of assault (j> < .001).
171
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5d(2)
Percentage Distribution of Severity of Assault by Suspect's Race/Ethnicity
Race/
Ethnicity
Severity of Physical Assault
Least 2 3 4 Most
African
American 17 23 10 30 21
Asian
American 17 13 19 28 23
Caucasian 22 21 18 22 17
Latino 11 23 14 33 18
Other 31 38 13 6 13
Chi-Square
df
P
41.859
16
< .001
Significant differences among the racial/ethnic groups also appeared in
certain non-physical violations. A particularly large difference in stalking
incidents is shown in Table 5e where only 6% of the Latino suspects
stalked/harassed their victims while the other groups ranged from 11-19%. I
have no ready explanation for this disparity. Also in Table 5e we see that African
American and Asian American males were the most likely to threaten to kill their
172
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
victims with Latinos following close behind. Although a chi-square test on this
variable was not significant, we will see in Chapter 7 that threatening to kill the
Table 5e. Percentage Distribution of Two Non-physical Violations by Suspecfs Race/Ethnicity
Non-physical Was the Victim
Injury Stalked/Harassed
Race/Ethnicity
Did Suspect Threaten the Victim
Yes Terrorist/Threat No
African-American 45 11 1 1 12 77
Asian-American 37 11 14 12 73
Caucasian 45 14 13 9 77
Latino 34 6 10 10 80
Other 50 19 13 6 81
Chi-Square 12 16 5
df 4 4 8
P
< .05 < .01 0.793
victim is a significant predictor of the suspect being convicted. Victims of
African American suspects more often reported being afraid of their abusers than
victims of Asian American, Caucasians, or Latinos did. This was evident in the
narrative portions of the crime reports.
In Chapter 7 we will see that severity of the physical assault, threatening
to kill the victim, and a history of domestic violence are significant predictors of
victim’s desire for arrest and that victim’s desire is a highly significant predictor
173
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5f
Race/Ethnicity Arrest
Report
Only No Unknown Totals
African-American 47 6 25 12 100
Asian-American 42 9 36 13 100
Caucasian 45 14 29 12 100
Latina 56 6 27 11 100
Other 50 13 31 6 100
Chi-Square
df
P
45
20
< .01
of ail four stages of case processing. Latino males were more likely than any of
the other groups to have physically assaulted their partner and inflicted an injury
to the head or neck of the victim. Latino males also have a high rate of threatening
to kill their victim (Table 5e, column 4). We will also see that four of the factors
on which Latino males show high levels, domestic violence history, severity of
physical assault, threatening to kill the victim, and disabling the phone are
significant predictors of victim’s desire for arrest; and that victim’s desire is a
highly significant predictor of all four stages of case processing.
Of the five victim groups, Latinas were the most likely to desire the arrest
of the perpetrator (Table 5f, column 1). Whether the victim wanted an arrest or
only a report filed was significantly different according to race/ethnicity of the
174
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
victim as shown in Table 5f. Although criminal justice agents are encouraged to
give less importance to a victim’s desire for arrest, the results presented in
Chapter 7 will show that it remains one of the most significant predictors of all
four stages of case processing. Because of its importance and the differences
among groups, further research is indicated regarding the relevant dynamics.
A particularly interesting result is that although Asian American women
were least likely to want arrest, Asian American males had the highest rates at all
four stages of case processing (Table 5g). Possible explanations for the apparent
contradiction are that if the suspect was present when the police arrived, was
married to his victim, and had inflicted multiple bruises, there was a greater
likelihood of arrest. Asian American suspects were high on all of these three
variables.
The fact that the Latinas were most likely to want their abuser arrested is
particularly interesting in that Latinas are thought to be spiritually superior to
men, in part because they are able to endure the abuse of men (Comas-Dias,
1987). This is not as much a contradiction as it appears when it noted that the
Latina victims also had the highest percentage of unreported victimization of
domestic violence (49%). By the time the police arrived, these women may have
reached their limit. There is a stereotypical portrayal of women of Mexican
descent as passive and relatively tolerant of abuse. Torres (1991) found that
Anglo-American women perceived more incidents to be abusive than did their
175
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 5g
Arrest
Dual
Arrest Sent to Prosecutor Charges Filed
Defendant
Sentenced
Race/Ethnicity Yes No Unknown Yes No Yes No
African-American 41 4 58 14 28 35 65 20 80
Asian-American 58 6 67 24 9 42 58 31 69
Caucasian 36 7 51 27 22 25 75 18 83
Latin© 54 2 68 19 15 38 62 26 74
Other 31 0 44 36 19 31 69 6 94
Totals 48 4 61 22 18 34 66 23 77
Chi-Square
df
P
42
8
<.001
34
8
<.001
16
4
<.01
14
8
<.10
- j
O N
Mexican American counterparts. Psychological aggression was also perceived to
be less abusive by Mexican-American women. Torres concluded that Hispanic
cultural values about gender roles shaped Mexican American women’s definitions
of domestic violence. Jacques (1982) reported that many Latinas believe that
their husbands have a right to hit them.
When Latina domestic violence victims residing in a shelter for battered
women were interviewed about how they perceived their culture as a contributing
factor to staying in the abusive relationship, they spoke of the conflict created by
family pressure on the woman to stay, in addition to a general cultural
unacceptability of leaving an abusive relationship. These women are often
burdened not only by language differences and discrimination, but also by limited
mobility due to larger families, less personal income, and more binding marital
norms (Gondolf, Fisher, & McFerron, 1990). Latinas who practice Catholicism
may not see divorce as an option (Lum, 1992). When these women seek help
from the Catholic church, priests often advise them to be patient with their
husbands and work things out (Goulding & Wells, 1990).
In examining how culture shapes the experiences and understandings of 50
immigrant Mexican women in San Diego County, CA, Warwick (1997) found
that the women experienced a sense of injustice in ongoing abuse, particularly if
they perceived themselves to have upheld their marital role obligations. A notion
of “self-improvement” and a concern for their children’s well-being motivated
them to resist the abuse and consider ending the marriage.
177
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Hass, M. A. Dutton, and Orloff (2000) Interviewed 280 undocumented and
recently documented Latinas. Participants reported being in the U.S. for an
average of 5.1 years. 60% experienced dominance/isolation-type psychological
abuse, and 40.7% emotional/verbal type abuse from an intimate partner. Of those
reporting 49.3% had experienced physical abuse and 11.4% sexual abuse. The
physically and /or sexually abused women experience more threats, such as
threats to kill her or harm children and other family members, take her money, or
report her to the Immigration and Naturalization Services (INS). Wiist (1998)
assessed the severity of intimate male partner abuse to Hispanic pregnant women
receiving prenatal care at an urban public health department. Of the 329 subjects,
30% had been threatened with death, 18% had been threatened with a knife or a
gun, 80% had been shaken or otherwise roughly handled, 71% pushed or shoved,
and 64% slapped in the face and head.
Santiago and Morash (1995) used data from a 1991/92 study of Latino
family life to assess knowledge and use of existing domestic violence programs.
The 173 women surveyed revealed that strong cultural barriers prevent them from
taking advantage of these resources and the medical and legal help available to
them. Fifty percent of those who did access these resources felt little help was
provided. Consequently, Latinas often rely on informal support networks.
Jean Jordan of the Yolo County Sexual Assault and Domestic Violence
Center (CA) said:
178
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
We hold domestic violence support groups for the Latina population, but
that’s not an acceptable activity in that culture so we sell those groups
differently...When we go out to a migrant farm camp and talk about
support groups we call them a woman’s social group. We might call them
a sewing group or something else... .Or we’ll say we’re going to talk about
immigration issues and everybody will show up. But if you say you’re
going to do a presentation on domestic violence, no one will come because
it’s not acceptable in their culture. (Stanton, 1997)
Criminal Justice Processing
In this study there were highly significant differences at all 4 stages of
criminal justice processing among the various relationship categories. Table 5h,
rows 1-2, show a strong correlation between case processing and married and
cohabiting suspects. Although it declines at the sentencing stage, it is still
significant at the .01 level.
Crosstabulations of criminal justice processing by race/ethnicity of the
suspect, except for sentencing, were highly significant as shown in Table 5f.
Dual arrests were more common for Asian American and Caucasian couples. One
possible explanation is that Caucasian females were more likely to be using
alcohol or drugs (illicit drugs or prescribed anti-depressants) than Latinas or
Asian American and African American females. Although crosstabulations of
reason given for no arrest by race of suspect or victim yielded no significant
results, “Victim not credible,” “minor injury,” “victim non-desirous,
uncooperative,” and “mutual battery, neither desirous” were much more common
in the police narratives when the victim was Caucasian.
179
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table Sh
Relationship Arrest
One Two None
Sent to
Prosecutor
Charges
Filed
Sentenced Group
Completed
Married 58 3 38 61 38 25 16
Unmarried,Cohabiting 54 7 39 67 39 29 13
Separated 32 2 66 59 24 14 2
Divorced 13 3 85 36 8 5 5 ■
Dating 37 2 61 50 26 14 5
Formerly Dated 25 3 72 48 25 17 4
Chi-Square 95 51 30 25 29
df 10 10 5 10 5
P
< ,001 < .001 < .001 < .01 < .001
00
o
The Asian American males and Latino males had the highest rates in all
four categories. The most likely explanation is that these two groups had the
highest severity of assault rates (Table 5d(2)) and the highest rates of being on the
scene when the police arrived (Table 5a(l)). These two factors are significant
predictors at all stages of case processing as will be shown in Chapter 7.
The battered women’s movement in this country has been criticized for
neglecting the experiences of women of color (Asbury, 1999: hooks, 1984; Lorde,
1984; Mohanty, 1991; Yoshihama, 1996). Often in the research literature, the
race/ethnicity of the women studied may not be mentioned, only Caucasian
women are studied, or women of color are not included in proportion to their
number in the population. Hampton and Gelles (1994) noted that there have been
few systematic studies of family violence based on representative samples of a
single city, state, or the entire country that include a sample of minority families
of sufficient size for analysis. This study does include sufficiently large samples
of minority incidents to enable comparisons among groups. There is little
domestic violence research that has looked at Latinos and Asian Americans, in
particular regarding actual incidents and how they were processed through the
criminal justice system. Because there are significant differences, data regarding
racial/ethnic factors can be used to address and reduce domestic violence by
informing victims, criminal justice agents, and group facilitators. Table 5 1
illustrates most of the differences among these four groups that have been
discussed previously.
181
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 5i
Percentage Comparisons Among Five Racial/Ethnic Groups With the Highest Percentage
in Each Category in Bold
African-American Asian-American Caucasian Latino Other
Age 34 38 37 31 36
Income 36,300 41,900 47,400 30,800 57,500
Married 27 62 34 32 44
Cohabiting 31 16 25 40 25
Child in Common 5 1 54 41 63 69
Victim Pregnant
Domestic Violence History
9 1 3 4 0
Reported 9 16 18 20 13
Unreported 15 30 23 30 44
Alcohol Use 13 8 25 28 0
Head/Neck Injury 61 57 49 63 38
Punch 37 21 21 36 19
Slap 9 20 9 19 6
Multiple Signs of Injury 30 39 23 35 19
Stalk/Harass 1 1 1 1 14 6 19
Gone 48 21 30 41 13
Victim Desired Arrest 47 42 45 56 50
Arrest 41 58 39 54 31
Sent to Prosecutor 58 67 51 65 54
Charge Filed 35 42 25 38 31
Sentenced 20 31 18 26 6
Completed Batterers Group
* None ordered.
6 19 8 12 0*
182
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
At the local level, one problem has been the difficulty obtaining criminal
justice statistics reflecting the rate of domestic violence by precinct because the
figures would give a rough picture of racial/ethnic patterns, given the degree of
racial segregation in Los Angeles. The reasons given were that domestic violence
advocates were concerned that figures reflecting of the extent of domestic
violence in minority communities might be misinterpreted and publicized to
undermine long-term efforts to force the LAPD to treat domestic violence as a
serious problem. By 2001 this concern about revealing differences among
racial/ethnic groups did not appear to be a concern. There seems to be an
increased awareness that the more we know about the problem, the more
effectively we can respond.
Often leaders in communities, particularly those with a high percentage of
Asian Americans, are afraid that the data would unfairly represent these groups as
particularly violent, reinforcing stereotypes. “There are few published reports on
domestic violence among Asian Americans, in part because community
organizers say funders have been hesitant to grant money for research because of
the prevailing stereotype of Asian Americans as the ‘model minority’” (J. E.
Watson, 2000). There may also be resistance when advocates attempt to provide
services to battered women of color.
It is clear that that distinctions can be made according to race/ethnicity of
the parties involved in domestic violence incidents. In this study, significant
differences were found among the four groups in the following areas: in the
183
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
nature of the relationship between suspect and victim and whether or not they had
children common, suspect’s age and domestic violence history, the form of
violence used and a measure of severity of assault, whether alcohol/drug use was
a factor, whether the suspect was gone by the time the police arrived at the scene,
whether the victim wanted the suspect arrested, and how the police/sheriff s
deputies and prosecutors responded.
Fortunately, interest in meeting the needs of people of color is improving
the services available. State recipients of Family Violence Prevention funds are
required to develop a plan “to address the needs of underserved populations,
including populations underserved because of ethnic, racial, cultural, language
diversity, or geographic isolation” (42 U.S.C. 10402(a)(C) (2000)). In
California, women’s shelters do not receive funding or grants unless they
regularly offer their volunteers training in cultural and religious diversity
(Stanton, 1997). This study strengthens many previous research findings and
provides improved clarity, particularly with respect to criminal justice processing
of these incidents. However, because these racial/ethnic categories are broad and
do not allow for the multiple diversity within them, definitive conclusions await
further research. As larger samples of these racial/ethnic sub-groups are studied,
a greater understanding can lead not only to appropriate and effective criminal
justice response, but also to clinical treatment.
184
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 6
MONEY AND GENDER
Money
As might be expected, there are substantial and significant differences
across income categories on numerous variables and according to the gender of
the perpetrator. The tables accompanying the first part of this chapter illustrate
significant income differences in the Los Angeles County sample with respect to
the nature of the relationship between suspect and victim, children, the nature and
severity of the physical assault and the weapon used, the nature of the non
physical violation, alcohol use prior to the incident, whether the suspect was gone
when the police arrived, and criminal justice case processing.
The primary research finding regarding income and domestic violence has
been that the prevalence and severity of physical abuse is inversely correlated
with income. One possible explanation for this inverse relationship is that the
greater the income level, the more physical abuse is replaced by emotional,
verbal, and economic abuse. Also, it is important to note that the apparent lower
incidence of physical abuse in “upscale” communities is in part due to low
reporting rates (Sigler, 1989). More homes in affluent areas are separated by a
distance so that neighbors are not as likely to be aware of marital conflict or
abuse.
Several other factors are likely to influence the reporting rate. Such
factors my include, but are not limited to the following: Lower socioeconomic
185
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
status victims avail themselves of criminal justice and social welfare services
while higher socioeconomic status individuals are able to afford private attorneys
and therapy or are more likely to turn to doctors or the clergy (Pamas, 1967;
Westly, 1970; Healy & Smith, 1998). There is a greater stigma attached to calling
the police in a domestic violence incident among higher socioeconomic status
individuals. In Table 6a (column 3, rows 4-5) we see that there was a
significantly greater percentage of incidents reported at the police station.
Table 6a
Percentage Distribution of S usp ects' Income Categories
No Yes N/a Totals
Income Categories
Less Than $20,000 50 40 10 100
$20,000-$29,999 54 42 4 100
$30,000-$39,999 58 33 9 100
$40,000-$54,999 56 31 13 100
$55,000 and Greater 60 26 14 100
Totals 56 35 9 100
Chi-Square 25 with 8 df; p < .01.
186
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Concerns over career, image, and confidentiality may influence these
decisions (Buzawa & Buzawa, 1996b; Weitzman, 2000). The victims are usually
deeply embarrassed, are less likely to be believed and are faulted more than their
lower income sisters for staying in an abusive relationship. When clients or
patients exhibit middle class appearance and demeanor legal and mental health
professionals are less likely to suspect and inquire about domestic violence
(Weitzman, 2000). Table 6a (columns 1-2) also indicates that higher income
suspects are less likely to be gone when the police arrive. The most probable
explanations of this is that because their experience with the police is generally
positive or neutral and they don’t see themselves as criminals, they don’t believe
they will be arrested. At higher income levels there is a greater tendency for a
batterer to believe he will not suffer penal consequences because of his education,
profession, or economic standing. He relies on the cultural myth that such men do
not abuse their wives.
Consistent with other findings in the literature (Hotaling & Sugarman,
1990; McKendy, 1997; Rodgers, 1994), in the Los Angeles County sample the
higher income suspects were less likely to assault their victims physically. When
a physical assault occurred, it was less severe; also, the weapons used were
different. Tables 6 (b-d) focus on the physical assaults. All three categories
shown—the occurrence of a physical injury and its severity (Table 6b), the type of
physical injury (Table 6c), and the weapon used (Table 6d)-are significant at the
P < .001 level.
187
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Percentage Distribution of Suspects' Income Categories by
V^ether the Victim iP tiy s!c?sil!y l^njyrsd sin ci Ho^f Sovorsly’
Physical Injury ________ Severity of Injury
Income Categories Yes No Least 2 3 4 Most
Less Than $20,000 90 10 10 18 23 36 13
$20,000429,999 91 9 8 22 15 33 22
$30,000439,999 85 15 13 22 16 31 19
$40,000454,999 77 23 23 23 8 29 18
$55,000 and > 76 24 22 19 24 17 18
Totals 85 15 14 21 16 30 19
Chi-Square
df
P
24
4
< .001
45
16
< .001
Table 6c
Head/Neck
Injury
Choked/
Smothered Punched
Income Categories
Less Than $20,000 64 8 49
$20,000429,999 69 5 40
$30,000439,999 58 12 31
$40,000454,999 56 15 24
$55,000 and Greater 43 13 13
Totals 59 13 31
Chi-Square 25 3 37
df 4 4 4
P
< .001 0.615 < .001
18:
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 6d
Percentage Distribution of Suspects' Income Categories by Primary Weapon Used
None Hand Fist Feet/Legs
Blunt
Object Knife Gun Vehicle Cord/Rope
Multiple
Body
Pails
Income Categories
Less Than $20,000 8 21 41 3 5 5 3 3 0 10
$20,000-$29,999 8 36 29 4 8 2 0 0 0 12
$30,000-$39,999 13 43 21 2 . 8 3 1 0 0 10
$40,000454,999 20 41 20 2 5 2 1 2 2 7
$55,000 and Greater 23 54 9 1 5 2 0 1 0 6
Totals 14 41 23 2 7 2 1 1 10
Chi-Square 95 with 40 df; p < .001.
OO
When we look at specific types of physical injury in Table 6c, we see that
lower income men are more likely to inflict a head or neck injury and to punch
their victims (p < .001). It is interesting to note in the same table, however, that
there is no significant difference in strangulation assaults. At lower income
levels, the suspect is more likely to use a knife, gun, or blunt object and more
likely to kick his victim or assault her with multiple parts of his body (Table 6d).
The results of this study lend some support to previous findings that as
income level increases, physical abuse is replaced by emotional, verbal, and
economic abuse which are rarely defined as criminal acts but are no less
destructive (M. A. Dutton, 1992; Follingstad, Rutledge, Berg, Hause, & Polek,
1990; Walker, 1993; Weitzman, 2000). At higher income levels the suspect was
more likely to commit a non-physical violation (Table 6e) such as stalking or
otherwise harassing his victim (Table 6e), for example, by calling her 10 or 20
times a day. In Chapter 7 we will see that non-physical violations such as
violating a restraining order or threatening to kill the victim are significant
predictors of a victim’s desire for arrest.
Because the rates and severity of physical assaults are different, arrest
rates and the percentage of cases sent to the prosecutor decline as income
increases. Table 6f illustrates these results. As we can see from the last four
columns of Table 6f, the charges filed and sentencing rates are not significantly
different.
190
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 6e
Percentage Distribution of Suspects' income Categories by Whether There Was a
Non-physical injury and the Victim Was Stalked or Otherwise Harassed
Non-Physical Injury Victim Stalked/Harassed
Yes No Yes N © Totals
income Categories
Less Than $20,000 23 77 16 84 100
$20,000-$29,999 35 65 3 97 100
$30,000-$39,999 40 60 9 91 100
$40,000454,999 47 53 12 88 100
$55,000 and Greater 47 53 13 87 100
Totals 40 60 9 9 1
Chi-Square 13 17
df 4 4
P
<.01 <.01
191
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 6f
Percentage Distributions of Income Categories by Case Processing
Arrest Sent to Prosecutor Charge Filed Sentenced
Income Categories
None One Two No Yes Unknown No Yes No Yes
Less Than $20,000 59 39 2 23 59 18 74 26 88 12
$20,000-$29,999 42 56 2 18 67 16 61 39 73 27
$30,000-$39,999 47 48 5 23 62 15 67 33 77 23
$40,000-$S4,999 55 38 7 30 55 15 70 30 78 22
$55,000 and Above 51 46 3 13 51 35 71 29 81 19
Totals 48 48 4 21 61 18 67 33 77 23
Chi-Square
df
P
19
8
< .05
41
8
< .001
6
4
0.195
5
4
0.271
If we collapse income into two categories as shown in Table 6g, using
$55,000 and $70,000 as cutoff points, we see that case processing changes in
significance. The bottom of Table 6g lends some support to long-standing
suspects escape being charged, and if charged, sentenced.
Table 6g
Percentage Distributions of Median Family Income by Criminal Justice Processing
Income
Arrest Sent to Charges Sentenced
Prosecutor Filed
Yes No
Less Than $55,000/year 51 49 61 35 23
Equal to or Greater Than $55,000/year 49 51 51 29 19
Chi-Square 0.402 32 1 1
df 2 2 1 2
P
0.818 < .001 0.233 0.528
Arrest Sent to
Prosecutor
Charges
Filed
Sentenced
Yes No
Less Than $70,000/year 53 47 62 34 24
Equal to or Greater Than $70,000/year 45 55 46 20 11
Chi-Square 2 47 6 6
df 2 2 1 2
P
0.361 < .001 <05 <.05
193
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Another result of interest is that there was a significant difference (2 <
.001) in the number of weeks of batterers’ intervention group mandated across
income categories. In an attempt to limit discretion in the sentencing of 273.5
offenders, the California legislature prescribed 52 weeks of batterers’ intervention
group, effective as of January 1996. For the Los Angeles Comity sample, during
the years 1996-1998 11% of the defendants in the two higher income categories
($40,000 and greater) received fewer than 52 weeks while only 2% of the
defendants in the three lower income categories (Less than $40,000) did. Table
6h focuses only on those cases that resulted in a 273.5 conviction and covers all
four years of the study. Column 1 of the table illustrates that there was no
significant difference on a 273.5 charge across income categories. Columns 2-4
also show no significant difference according to probationary period. However,
we see in columns 5-10 that defendants in income categories $40,000 and above
are significantly less likely to be mandated a year of group. Here, a possible
explanation is that judges are averse to sentencing a middle or upper-middle class
defendant to a lengthy period of group, perhaps believing his time is more
valuable and/or it would take a shorter period for these defendants to “get it.”
Karyn Sinunu, the assistant district attorney in Santa Clara County
California in charge of the domestic violence unit, said prosecutors don’t treat
wealthy defendants any differently than they do poor ones. She did concede that
money enables a defendant to insure that every possible angle and circumstance,
e.g., negative information about the victim, is brought to the attention of the
194
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 6h
Percentage Distribution of Suspects' Income Categories by 273.5 Conviction, Years of Probation
and Weeks of Batterers" Group Treatment Ordered
273,5 Years of Probation Weeks of Group
Conviction 1 2 3 None 10 20 26 32 52
Income Categories
Less Than $20,000 5 100 100
$20,000-$29,999 13 6 94 2 2 96
$30,000439,999 9 6 9 85 2 98
$40,000454,999 7 11 11 78 8 8 8 8 68
$55,000 and Greater 13 13 31 56 11 11 78
Totals 10 5 12 83 2 1 1 4 2 90
Chi-Square 7 13 127
df 4 8 20
p 0.163 0.112 < .001
V O
prosecutor’s office. Given this information, prosecutors often decide there is little
chance of winning the case (Guido & Rafferty 1999). Esterbrook (1999) claims
that for serious crimes, prosecutors come down equally hard on everybody, but
for lesser crimes where higher income perpetrators are charged, the cases are
dismissed more often. Virtually all domestic violence crimes are presented as
lesser crimes, as misdemeanors. Janet Bowermaster, a California Western School
of Law professor in San Diego, noted that there are other profound differences in
the way poor and rich suspects move through the justice system (Guido &
Rafferty 1999). Office hearings or bargaining sessions with prosecutors, although
common and perhaps unavoidable, give an opportunity for an upper class
defendant to make a case for having his case dismissed or reduced. Much
happens off the books in a prosecutor’s office where there is no judge or jury
involved and no public record. It appears that the records can’t be tracked as
easily for upper-end perpetrators and decision making on those cases is less
available to public scrutiny.
In this study their were four other significant differences among the five
income categories in characteristics of the parties involved; these can be observed
in Tables 6(i-k). Table 6i illustrates differences in preliminary hearing results.
We see in columns 1-3, in the $55,000 and above income category, there is
evidence, most likely, of legal advice, with 71% of the cases having the charge
dismissed and only 17% of these defendants pleading no contest and 4 % pleading
guilty.
196
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table Si
Percentage Distribution of Suspects* Income Categories by Result of Preliminary Hearing
Referred to
No Contest Charge Held to Probation Found Civil Totals
______________________ Plea Guilty Plea Dismissed Answer Department Not Guilty Compromise____________
Income Categories
Less Than $20,000 50 25 25 100
$20,000-$29,999 26 45 24 2 2 100
$30,000439,999 25 22 45 4 3 1 100
$40,000454,999 50 4 43 4 100
$55,000 and Greater 17 4 71 4 4 109
Totals 29 22 42 4 2 1 1 100
Chi-Square 46 with 24 degrees of freedom; p < .01
Within this category suspect and victim are more likely to be married and least
likely to have dated in the past (Table 6j). Also, as income increases, the suspect
is less likely to be drinking or using drags prior to the incident (Table 6k).
198
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 6j
Percentage Distribution of Suspects' Income Categories by Relationship Between Suspect and Victim
and Children in Common
Income Categories
Married
Unmarried
Cohabiting Separated Divorced Dating
Formerly
Dating None Yes
Victim
Pregnant
Pregnant &
Children
Less Than $20,000 26 28 15 5 16 10 42 52 6 0
$20,000-429,999 33 44 3 2 8 10 31 63 6 0
$30,000-$39,999 38 34 9 4 5 10 40 56 4 0
$40,000-404,999 33 22 15 7 11 12 51 43 5 1
$06,000 and Greater 47 17 16 5 8 7 47 53 0 0
Totals 37 33 9 4 8 10 40 56 4 0
Chi-Square 74 29
df 20 12
P
< .001 < .01
V O
VO
Table 6k
Percentage Distribution of Suspects' Income Catgories
Income Categories
Yes No Totals
Less Than $20,000 23 77 100
$20,000-$29,999 30 70 100
$30,000-$39,999 23 77 100
$40,000-954,999 23 77 100
$55,000 and Greater 16 84 100
Totals 24 76 100
Chi-Square 11 with 4 df; p < .05
Public Accounts of Domestic Violence at Higher Income Levels
For the most part, accounts of high income perpetrators of domestic
violence are rare. An exception to this is the difficulty that celebrities who are
accused of domestic violence have in escaping media attention. This is
particularly true since the Simpson trial. Sports figures, actors, singers, and
musicians receive widespread publicity when they are accused. Soul singer James
Brown was arrested three times in the 1990s for physically assaulting his wife.
Each time his wife dropped the charges. Motley Crue Drummer, Tommy Lee was
arrested for abusing a live in girl friend and also his wife. Vance Johnson, former
200
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
pro-football star and admitted wife beater acknowledged that domestic violence is
widespread in sports. He reported that many former teammates and athletes of his
acquaintance resent him for speaking out on the subject. “They’ve shunned me
and turned their backs on me,” he said. “A number of football players I know are
abusive, and others don’t want to hear anything about it. A lot of guys brag about
how much control over women they have. Believe me, it’s a lot deeper than the
papers say” (Edes, 1997).
On June 15, 1999 Monique Brown, wife of ex-football hero and movie
star Jim Brown, accused her husband of assaulting her. She told police that her
husband had threatened to “snap her neck.” She also said that Brown had
assaulted her on previous occasions, strangling her, giving her a black eye, and
threatening her with a spear. Several days later Monique Brown recanted,
claiming she fabricated the story because she wanted to punish her husband
because she suspected he was having an affair with another woman. She also
said she was suffering from premenstrual syndrome when she decided to call the
police. The prosecutor later told jurors that Monique Brown suffered from
battered woman’s syndrome and was a virtual prisoner in her husband’s home
(Morin, 1999). Prosecution a n d defense lawyers portrayed Monique Brown as a
deeply disturbed woman. Jim Brown was convicted, not of threatening his wife,
but of vandalizing her car (smashing it with a shovel). Brown chose a 6-month
jail sentence, suspended while he appealed the conviction, saying he would serve
201
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Ms term with “dignity and pride” rather than be scarred with “a domestic violence
stigma” (Banks, 2000). On March 13, 2002 Brown was remanded to custody to
serve the 18-month sentence. There are continuing news accounts of domestic
violence perpetrated by celebrities. Reports of domestic abuse by college and
professional athletes are particularly common.
There are very few studies of domestic violence in the marriage and dating
relationships of the affluent and well educated. One of the first widely publicized
examples of domestic violence in a situation of affluence was the story of
Charlotte and John Fedders. In 1985 Charlotte Fedders, wife of the Securities and
Exchange Commission Chief of Enforcement in WasWngton, D.C., went public
with allegations that her husband of 17 years had abused her throughout their
marriage, breaking her eardrum at one point. The story appeared on the front
page of the Wall Street Journal on February 25, 1985 and later was featured on
the cover of the April 1986 edition of Washington magazine. In a letter to
President Regan Charlotte Fedders wrote, “ I don’t understand. . .how a man can
enforce one set of laws and abuse another” (Knight and Churchville, 1985). John
Fedders, who claimed that his wife provoked the abuse and lacked compassion
(Duggan 1987a), resigned from his position and returned to private practice.j7
3 7 John Fedders made $160,000 a year in private practice before becoming a top SEC
attorney in 1980 (Duggan, 1987c).
202
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
On October 16, 1987 a Montgomery County divorce court official held
both parties equally responsible for the end of the marriage, awarded 25% of the
proceeds of Charlotte’s book, Shattered Dreams (1987), to John Fedders and
reduced his monthly alimony payments by one-third. Domestic Relations Master
John S. Mclnemey wrote, “There is no -question that the plaintiff suffered physical
abuse, but that, in and of itself, was not what brought about the estrangement of
the parties” (Duggan, 1987b). On February 1, 1988 a Montgomery County3 8
Circuit Court Judge, James S. McAuliffe, acting on Charlotte Fedders’ appeal of
the Mclnemey decision, wrote, “The legal fault lies with John Fedders, clearly
and unequivocally. What he did was as classic a case of cruelty of treatment as
one is likely to find” (Duggan, 1988).3 9 Although the Fedders case received
much publicity, Cynthia Anderson, head of the Montgomery County, Maryland
Spouse Abuse Center, stated that it was a classic example of the hundreds of
complaints she oversaw every year (Herbers, 1986). In wealthy Marin County
California, Alison McKenzie, interim program coordinator for Marin Abused
Women’s Services, said she sees “wealthy” victims who have to choose to go on
welfare with their children to escape abusive homes (DeFao, Brown, & Stanton,
1997). The personal accounts of Fedders (1987), Hennekens (1991), and Weldon
(1999) also contribute to an understanding of domestic abuse in affluent
marriages.
' ,s Montgomery County Maryland is one o f the highest income counties in the U.S.
203
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Weitzman’s 1998 dissertation on domestic violence in “upscale”
marriages and her subsequent book (2000) confirm the personal accounts of
Fedders, Hennekens, and Weldon and reveal much about the nature and
dynamics of marital abuse in situations of affluence. In her interviews with
battered women in “upscale” marriages on Chicago’s affluent North Shore,
Weitzman found that the men had a sense of entitlement and felt they were above
the law. If their demands weren’t met, they would become enraged. She claims
that healthcare professionals often ignore the signs of domestic violence and
criminal justice agents treat it lightly. Although they live in affluence, these
victims may have no personal economic resources, they are made to feel
responsible for the abuse, and they feel a sense of shame that prevents them from
seeking help. At higher income levels there is a greater tendency for a batterer to
believe he will not suffer penal consequences because of his education,
profession, or economic standing. He relies on the cultural myth that such men do
not abuse their wives. The victims are usually deeply embarrassed, are less likely
to be believed and are faulted more than their lower income sisters for staying in
an abusive relationship.
Ironically, although most research confirms substantially more criminally
defined domestic violence as socioeconomic status decreases, researchers
(Buzawa, Hotaling, & Klein, 1998; Gamer & Fagan, 1997; Gelles, 1974; Sherman
3 9 Fedders was never criminally charged with assaulting his wife.
204
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
et al., 1992; Straus & Gelles, 1990; Thistlewaite, 1999; Thistlewaite et al., 1998)
have suggested that criminal justice intervention may deter batterers who have a
greater economic and social investment in society while those classified as high
risk may be relatively impervious to similar interventions. Straus (1993) noted
that the larger group of “less serious” batterers who are more involved in the
dominant social and economic structure might be more deterred by criminal
justice intervention because of the social stigma and possible threat to their
employment. Court mandated batterers in the Beverly Hills group are very vocal
about not wanting to go to jail again. In my experience as a batterers’ intervention
group facilitator, I have found that men at higher income levels have more
difficulty revealing a negative side of themselves and are less comfortable taking
responsibility for their abusive behavior. They are more likely to try to impress
other members in the group with information about their celebrity, income, and/or
the beauty of their wives/girlfriends.
Although these men may be more deterred by arrest and incarceration, they
appear to be less motivated to change for reasons of self-development. In
contrast, there is a strong sense In the lower income level groups that the men feel
they are wasting their lives, are tired of criminal activity and/or long-term
alcohol/drug use. These expressions are not evident at the beginning of their
group attendance; however, the year-long process of listening to the other men,
speaking about their own situations, and the “education” regarding domestic
violence, has a positive effect.
205
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Overall, the income difference was modest with regard to criminal justice
case processing. We will see in Chapter 7 that the income level of the suspect
was not a significant predictor at any stage of case processing. As demonstrated
at the beginning of this Chapter, the most plausible explanation for this is that at
higher income levels there was more likelihood of a non-physical violation; and
when a physical assault did occur, it was less severe. In Chapter 5 I demonstrated
that men of color had higher rates of case processing than Caucasians, largely due
to higher severity of assault rates. It appears that this variable also significantly
influenced case processing where income level was considered.
Gender
Gender is another important axis of inequality that distinguishes acts of
domestic violence. In this part of the chapter I draw comparisons between the
incidents perpetrated by males and those where a female was the suspect. I look
at the importance of investigating the gender imbalance of domestic violence and
address the significant differences between the two groups in domestic violence
history, nature and severity of the assault. The terms family violence and
domestic violence obscure the imbalance of victimization. Women are typically
victims of domestic violence, not perpetrators. They are more seriously injured
than men and experience abuse over longer periods of time. According to the
January 2003 issue of the American Journal of Preventive Medicine, annual
health-care costs are significantly higher for women who are victims of domestic
violence (Preidt, 2003). Although studies indicate that women assault men no
206
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
less often than men assault women (Straus, 1989), men’s violence against women
is more severe, women are more likely to be seriously injured (Langhinrichsen-
Rohling, Neidig, & Thom, 1995), men are less likely to be afraid of their female
partners (Jacobson, Gottman, Waltz, Rushko, Babcock, and Holtzworth-Munroe,
1994), and perhaps 75-95% of the women arrested for domestic violence are
actually defending themselves (Buzawa & Buzawa, 1990; M. E. Martin, 1997;
Straus, 1989; Zorza, 1994).
Much of the research on women as perpetrators of domestic violence has
focused on the imbalance of victimization and the contextual difference of the
assaults by women and by men. A joint study by the N il and the Centers for
Disease Control and Prevention (Tjaden & Thoennes, 1998), and data from the
National Crime Victimization Survey (Bachman & Saltzman, 1995) reveal that
women are significantly more likely than men to be victimized by their intimate
partners. They usually have experienced substantial physical and verbal abuse
from their partners (Britton, 2000). Percentages vary; however studies generally
have shown that women represent less than 10% of domestic violence
perpetrators (Hooper, 1996 (5 to 10%); Pagelow, 1992 and Dobash and Dobash,
1992 (5%); Browne, 1987 (6%)). In this Los Angeles County sample, 9% of the
perpetrators are women. The Milwaukee, Colorado Springs, and Charlotte
replication studies found women were arrested in 9, 11, and 18% of the cases
respectively (Zorza, 1994). These figures are high, particularly in Charlotte.
Zorza suggests that inadequate attempts were made to determine the primary
207
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
aggressor in these cities. A 1999 report on arrests for domestic violence in
California indicated that the percentage of women arrested for domestic violence
had increased from 6% in 1988 to 16.5% in 1998 (Strack, 2003).
Currently, many police departments provide training to enable officers to
determine who has committed the crime and who has acted in self-defense.
Officers are instructed to avoid arresting both parties. When the Los Angeles
Police Department provided direction and training to arrest only the primary
aggressor, dual arrests declined and the number of women arrested was reduced
by one third. During a roll call one evening when I was a DART volunteer in
West Los Angeles, the officers and I watched a video demonstration of the arrest
of a husband, even though he received the only visible injury. In this Los Angeles
sample eight percent of the arrests were dual arrests.4 0 None of these led to
charges being filed. One explanation for dual arrests, which occur more
frequently in upper income cases, is an officer’s concern of being sued in civil
court for wrongful arrest where departments follow mandatory arrest guidelines
(Martin, 1997). However, the fear of such suit has been greatly exaggerated
(Inciardi, 1996).
Although there were no significant differences between male and female
suspects in age, race/ethnicity, alcohol/drug use prior to the incident, arrest,
4 0 A 1993 report on arrest and prosecution o f domestic violence incidents in San Diego
noted that police academy training reduced dual arrests to less than 3% o f the total arrests (Gwinn
& O'Dell, 1993).
208
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
prosecution, or sentencing rates, there were in several other variables. As might
be expected, the domestic violence histories of the male and female suspects
differed significantly. In Table 61 we see that the male victims reported
considerably less prior victimization (j> < .01). This may be due in part to the
derision men experience when they admit to having been assaulted by a woman.
Although the prior arrest rates are similar, male suspects had 4 times the past
conviction rates for domestic violence offenses.
In general, female suspects of domestic violence often have long histories
of victimization and may use a weapon to equalize the force or threat used by
their partners (S. L. Miller, 2001). Whereas 26% of the female suspects in the
Los Angeles County sample used a weapon, only 8% of the men did. Most
Table 6 1
Whether the Suspect Was Gone On the Arrival of Po!i<
No Yes N/a Totals
income Categories
Less Than $20,000 50 40 10 100
$20,000-129,999 54 42 4 100
$30,000-$39,999 58 33 9 100
$40,000-$54,999 56 31 13 100
$55,000 and Greater 60 26 14 100
Totals 56 35 9 100
Chi-Square 25.467 with 8 df; p < .01
2 0 9
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
women who purchase handguns do so primarily for protection (Wintemute,
Wright, & Drake, 2003 press release). A University of California, Davis, study
based on a 5-year follow-up of 28,181 women who purchased handguns in
California in 1991, found that handgun ownership for women is associated with
an increase in their risk for intimate partner homicide. Ironically, the handgun
ownership provided no protection against homicide.
In a pilot study of female perpetrators of domestic violence, C. J. Watson
(2000) found through 1 -hour interviews with eight women who had been arrested
for spousal violence and court-mandated to attend 52 weeks of batterers group,
that all had been victims of domestic violence in current or prior adult
relationships. Also, all had either witnessed or been victims of domestic violence
during their childhood. In addition, the women had sustained greater injuries than
they had inflicted on their male partners.
Consistent with prior research, Table 6m demonstrates a significant
difference in the severity of the physical assaults inflicted by the male and female
suspects in the study. Twenty percent of the cases where a male was the suspect
were rated as most severe while only 6% of the cases where a female was the
suspect were rated similarly. Table 6n illustrates several significant differences in
the types of injuries inflicted by men and by women. The men were 4 times more
likely to disable the phone to prevent the victim from calling police and were 3.7
times more likely to threaten to kill the victim or her loved ones.
210
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 6m
Percentage Distribution of Suspect's Gender by Characteristics of the Assault
Bitten/Scratched/ Phone Threat Terrorist
________________________________________Cut/Spit A t_______Disabled_________ Threat
Males 6.00 8 11 11
Females 27.00 2 18 3
Chi-Square 48.39 4.34 8.305
df 1.00 1 2
p <.001 <.05 <.05
Table 6n
Percentage Distribution of Suspect's Gender by Severity of the Physical Assault
Least Severe_______ 2____________3________4 4.00 Most Severe
Males 16 23 14 27 27.00 20
Females 17 14 22 41 41.00 6
Chi-Square 18.743 with 4 df; p < .01
211
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
It is not surprising that women were more likely to bite or scratch men
whereas men were much more likely to strangle women. Strangulation, which
occurred in more than 13% (138 cases) of the Los Angeles County sample, is a
common assault by men. I recall one batterers’ intervention group member
saying, “I didn’t hit her; I only choked her.” Choke-slamming, gabbing her by the
neck and slamming her against the wall, is not uncommon. Because there is often
no visible or minimal visible injury, many criminal justice agents treat this as a
minor assault, no more serious than a slap in the face (McClane & Strack, 1996).
Because few people understand the seriousness of this assault, most strangulation
victims do not receive medical attention. However, strangulation can cause
internal injuries which could result in death within 36 hours or a carotid artery
dissection resulting in a stroke (Malek, Higashida, Phatouros, & Halbach, 1999).
Table 6o clarifies several major differences between the cases where there was a
strangulation and those where there was not. Strangulation is a more passionate
assault; and in this study 86% of these assaults occurred where the couple was
cohabiting or currently dating. We see also that the victim was more desirous of
arrest when she was strangled. Table 6o (Case Processing) demonstrates that
police officers, detectives, and prosecutors regarded these cases as being more
serious. Table 6p compares strangulation cases to all cases.
2 1 2
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
Table 60
Percentage Comparisons of Strangulation and Non-strangulation Cases
Relationship Victim's Desire for Arrest
Unmarried Formerly Report
Married Cohabiting Separated Divorced Dating Dating Yes No Only Unknown
Victim Strangled 37 38 7 1 11 6 66 21 5 8
Victim Not Strangled 35 30 10 5 8 12 47 29 10 14
Chi-Square
df
P
12.767
5
< .05
18.069
5
< .01
Arrest Sent to Prosecutor Charge Filed Sentenced
None One Two No Yes Unknown No Yes No Yes
Victim Not Strangled 51 45 4 24 58 18 68 32 79 21
Victim Strangled 34 61 5 11 72 17 56 44 68 32
Chi-Square
df
P
14.472
2
< .01
13.039
2
< .01
6.784
1
< .01
7.535
2
<.05
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
to
Table 6p
Percentage Comparisons Between Strangulation Cases (138) and Total Cases (1040)
Married or Children Suspect Had a There was A Child
Unmarried in Victim History of a Witness Witnessed
Cohabiting Common Pregnant Domestic Violence to the Assault the Assault
Strang ulatior
fotal
41
Victim
Wanted an Suspect Victim also Case sent t Charge Suspect
Arrest Arrested Arrested Prosecutoi Filed Sentenced
Strangulation
Cases 66 66 5 73
Total
Cases
Websdale (1999) claims there is little evidence that women who kill men
in intimate situations engage in a history of battering them. In 24 of the cases
studied where women had killed men, 19 were in self-defense. Whereas a
majority of men who kill their partners do so at or soon after separation, only 16
percent o f the women in his study were in the process of leaving the relationship.
In 20 out of the 24 cases, the men had been violent. In four of those, the woman
had physically defended herself in the past. The estimated 4,500 women
incarcerated nationwide for killing their abusers are older and better educated than
other female inmates. “They have few if any prior offenses, most were married at
the time of their crime, and they more often are white” (Leovy, 2001, p. 1).
A decrease in domestic homicides over the past 25 years has benefited
men disproportionately. According to national crime data released in October
2001, there has been a 60% decline overall since the late 1970s (Leovy, 2001).
However, although the number of women killed by their husbands/partners or
former partners declined 25% since the mid-1970s, the number of men killed by
their wives declined by 70%. Perhaps the most salient explanation for the sharp
decline in women killing their spouses/partners is structural. Women’s increasing
financial freedom has provided them with a greater ability to escape from abusive
relationships. The divorce rate rose sharply during this period. Changing mores
have resulted in shorter-term relationships that are less likely to result in murder.
Leonard conducted in-depth interviews and surveys with 45 women in one
California prison and found that “despite a clear lack of criminal or violent
215
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
histories, the overwhelming majority of women who are held responsible for the
death of abusive men receive first- or second-degree murder convictions and
serve long, harsh sentences” and that “their trials featured little or no evidence of
the severe abuse inflicted on them” (Leonard, 1997, Abstract). In the spring of
2000 I accompanied a colleague to the California Institution for Women In
Frontera where he and Leonard co-facilitated a bi-monthly group for women
incarcerated for killing their partners. Although the possibility of parole was
slim, these women hoped for eventual release. In April 2002 California Governor
Gray Davis agreed to grant parole to a woman who said she killed her husband
because he abused her. The California parole commissioners had approved her
release after she had served 19 years. Shortly after his election as governor, Davis
had pledged that no murderer would be released during his tenure. This approval
of parole was only the second out of 85 capital cases that had come before Davis.
Governors asked to parole battered women who kill are faced with political
pressures from those who support a “tough-on-crime” stance on one side and
advocates for battered women on the other.
In domestic violence situations women are more seriously injured and
more than twice as likely to be killed as men. They are more likely than men to
be afraid of their abusers and to experience abuse over longer periods of time.
When they stay in abusive relationships they tend to minimize the abuse, feel
responsible for the problem, lack financial resources or fear social isolation or
reprisals. When they leave or attempt to leave an abusive relationship their risk of
216
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
being assaulted escalates. In addition, women are much more likely to admit that
they assaulted their partner. Men, even when faced with irrefutable evidence, will
deny, minimize, or blame their partners (S. L. Miller, 2001). Table 6q strongly
suggests that this was the case in the Los Angeles County sample. Here also, in
my experience as a group, facilitator, the women readily admit what they did while
the men usually deny, minimize, and/or blame their partners, at least initially.
Women arrested for domestic violence are often acting in self-defense. Many
men in the groups have been socialized to believe that there is nothing wrong with
slapping their “woman” around if she “gets out of line.” Although the doctrine of
marital chastisement is publicly repudiated, it remains deeply entrenched.
Table 6q
Pereentge Distribution of Suspecfs Admission of Guilt to Police Officer
by Gender of Suspect
Yes No
Mate 20 80
Female 45 55
Chi-Square 30.122 with 1 df; p < .001.
In this chapter we saw that for the Los Angeles County sample, in addition
to the fact that females were 9% of the sample, the significant suspect gender
differences in domestic violence were in past history, severity and type of assault,
217
Totals
100
100
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
and the willingness to admit to having inflicted the assault. There were no
significant differences between male and female suspects in case processing, age,
race/ethnicity, or alcohol/drug use prior to the incident. However, we noted in
Chapter 5 that alcohol/drug use did vary significantly between suspect and victim.
The empirical results of the study cannot demonstrate the primary difference—
that this violence takes place within a context of inequality between men and
women and must be interpreted in the context of the power differential in male-
female relationships.
218
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 7
MULTIVARIATE ANALYSIS
In this section I examine what variables are most predictive of victim’s
desire that the suspect be arrested and whether the suspect will be arrested, the
case be sent to the prosecutor, a charge filed, and the defendant sentenced. I use
logistic regression to predict the estimated probability that an event will occur and
to assess the relative impact of selected independent variables. The dependent
variables are binary and exhaustive. The independent variables are both
categorical and quantitative. All of the independent variables included in the
model, except for severity of assault, are dummy coded with 1 representing the
condition and 0 representing absence of the condition.
For each of the five dependent variables—victim’s desire for arrest, arrest,
case sent to prosecutor, charge filed, defendant sentenced—I conducted a series of
logistic regression models whereby independent variables were successively
added to the model. This enabled an assessment of changes in direction,
magnitude, and significance of the relationships between independent variables
and the dependent variable when other variables are taken into account. In the
five models presented in this chapter, most of the variables that did not
significantly predict the outcome were discarded from the model. Income
categories, for example, were not significant predictors. When the difference in
variance explained between two models was negligible, I chose the reduced
model. In Tables 7(a-e), the magnitude of each coefficient (b is the natural log
219
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
odds ratio for the independent variable) can be compared to determine which of
the independent variables in the equation, except for severity of the assault, has
the greatest impact on the dependent variable. The farther the odds ratio from 1,
the more influential the predictor.
Much attention has been given to the importance of the victim’s
cooperation in case processing from arrest through sentencing (Coker, 2001;
Nylen & Heimer, 1999; Vilhauer, 2000). Also there is a large body of literature
which would suggest that police officers and prosecutors are moving away from
considering victim’s desire and cooperation as a factor in their decision making
(Gwinn & O’Dell, 1993; Hanna, 1996; Jones, 2000; Kent, 2001; McCormick,
1999; Sargeant, 1994). However, in this Los Angeles sample, victim’s desire for
arrest was a significant predictor at all four stages of criminal processing at the
.001 level. See Tables 7(b-e).
In Table 7a, we see that the nature of the assault is the strongest predictor of
whether the victim wanted the suspect to be arrested, with the severity of the
physical assault and whether the suspect threatened to kill the victim or disabled
the phone significant at the .001 level. Previous assaults, whether reported or not,
were also strong predictors of the victim’s desire for arrest (p < .001). A prior
arrest or conviction for domestic violence was significant at the .01 level. With
respect to the race/ethnicity of the victim, African American victims and those in
the Other category were not significant independent variables in the model. There
was no significant difference between African American victims and Caucasian
220
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 7a
Coefficients From Logistic Regresson of Victim's Desire for Arrest
on Selected Independent Variables
Assault Variables
Severity of Physical Assault 0.357
Non-physical Assault Variables
Suspect Threatened to Kill Victim 1.003
Suspect Violated a Restraining Order 1.652
Suspect Disabled the Phone 1.068
Suspect's Domestic Violence History
According to victim, previous assault(s) unreported 0.796
According to victim, previous assault(s) reported 1.37
Prior domestic violence arrest 1.282
Prior domestic violence conviction 1.344
Victim's Race/Ethnicity
Caucasian (referent)
African-American 0.375
Asian-American -0.49 *
Latina 0.343 * *
Other -0.52
Year of Incident
1995 (referent) ----------
1996 0.282
1997 0.195
1998 -0.05
*p < .10 **p < .05 **‘p < .01 ****p < .001
Chi-Square 198 with 15 degrees of freedom; p < .001
2 2 1
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
victims with respect to desire for arrest, whereas Asian American victims were
significantly less likely than Caucasian victims while Latinas were significantly
more likely to desire arrest than Caucasian victims.
As we can see in Table 7a, the year the incident occurred was not a
significant predictor. Victims were more likely to desire arrest when suspects
threatened to kill them, disabled the phone, or violated a restraining order. Notice
in Tables 7a and 7b how some of these non-physical aspects are strongly
correlated with victim’s desire for arrest but not with actual arrest. Except for a
threat to kill, we will see in Tables 7(a-e) that these are not significant predictors
of case processing except indirectly through victim’s desire for arrest. In the
California Penal Code, a “Traumatic condition” is liberally defined in 273.5 as “a
condition of the body, such as a wound or external or internal injury, whether of a
minor or serious nature, caused by a physical force.” Victims of physical assault
and emotional abuse agree that the latter is more damaging, more traumatic.
Forms of non-physical assault such as stalking, threatening to kill, violating a
restraining order, or disabling the phone to prevent the victim from calling for
help are more pervasive forms of control than physical abuse. The idea that
another threatens to take your life, invades a space legally prohibited, or prevents
you from calling for help instills a greater fear. There is an intensity of anguish
that is not measured by bruises, broken bones, black eyes or other evidence of
physical injury (Avakame, 1999; M. A. Dutton, 1992; P. Evans, 1996; Jacobson
and Gottman, 1998; St. Joan, 1997).
222
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
T a b le 7b
C o e ffic ie n ts From L o g istic Regression o f Arrest o n Selected
Independent Variables
Suspect Variables
Race/Ettinicity
Caucasian (referent)
African-American
Asian-American
Latino
Other
Domestic Violence History
According to victim, previous assault(s)
unreported
Prior Conviction for Domestic Violence
Other Suspect Variables
Gone when police arrived
Used Alcohol/Drugs Prior to Assault
Confessed to Police
Severity of Physical Assault
Victim's Desire for Arrest
Year of Incident
1995 (referent)
1996
1997
1998
*p < .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 198 with 15 degrees of freedom; p < .001
0.533
0.858 * * *
0.437 *
-0.604
0.718 * * *
1.622 * * *
-2.385 * * * *
0.624 * * *
0.465 * *
0.621 * * * *
2.095 * * * *
-0.304
0.293
- 0.022
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
It Is Interesting to note that In spite of the negative effects of domestic
violence on children described in Chapter 1, and the wealth of literature
substantiating the damage to children (Jaffe, 1990; Kent, 2001; S. M. Murphy,
1999; Quirion, Lennett, Lund, & Tuck, 1997; Rosenbaum, 1998), whether the
suspect and victim had a child(ren) in common or whether a child witnessed the
assault had no significant effect on victims desire for arrest (Table 7a) and
minimal impact for criminal justice case processing (Tables 7(b-e)). Vilhauer
(2000) discusses some of the difficulties that women with children have in leaving
an abusive relationship. The most common reason mentioned is economic
dependence. In addition, often victims fear losing custody through separation or
divorce or to child protective services if they report abuse.4 1 The woman often
believes that it is more important for the children to have a father in the home.
She may also be afraid that if she leaves without the children, her husband may
turn his abuse against them. The suspect, victim, and criminal justice agents all
appear to discount the negative impact of domestic violence on children and are
unaware or minimally aware of the research in this area.
Looking at Table 7b we see that victim’s desire for arrest, the severity of
the physical assault, and the presence of the suspect when the police arrive are the
strongest predictors of arrest (p < .001). A prior domestic violence conviction
and suspect’s use of alcohol/drugs prior to the incident are less significant but still
41
In California and in many other states, when a child witnesses a domestic violence
incident, the officer is required to file a report with the Department o f Child Services.
224
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
strong predictors (g < .01). As might be expected, if the suspect confessed to the
responding police officer, arrest was more likely (p<.05). Asian American
suspects were more likely to be arrested (g < .05), even though Asian American
victims were least likely to want an arrest (see Table 7a). This may in part be
explained by the fact that Asian American assaults on the severity scale were
comparable to those by Latinos. In addition, the Asian American suspects were
more likely to be present when the police arrived and to confess. They were also
higher than Latinos in prior domestic violence history.
With regard to predictors of whether or not a case will be sent to the
prosecutor, we see in Table 7c that independent variables not related to the
suspect or the assault come into play at this stage. Except for severity of assault,
suspect’s alcohol/drug use (which declines in significance), being gone on arrival,
and victim’s desire for arrest, we have a different set of predictors. Children in
common, cases handled by the Sheriffs Dept., and 1996-1997 incidents are more
likely to be sent, significant at the .01 level. Police officers responding to the call
make the arrest decision. The detectives at the station decide whether or not to
send the case to the prosecutor. The prosecutor makes both the charging and
conviction decision. Because none of these cases resulted in a jury trial, those
defendants who were sentenced either pled guilty or no contest through a plea-
225
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 7c
Coefficients From Logistic R e g r e s s i o n o f Case S e n t
t o Prosecutor on Selected Independent Variables
Severity of Assault
Children in Common
Suspect Variables
Used Alcohol/Drugs Prior to the Assault
Gone when police arrived
Victim's Desire for Arrest
Arresting Agency
El Monte (referent)
Sheriffs Departm ent
Arcadia Police D epartm ent
Year of Incident
1995 (referent)
1996
1997
1998
0.641
0.653
0.526 **
-1.106 *** *
2.331 *** *
1.171
-0.389
1.062 * * *
0.992 ***
0.45
*p < .1 0 **p < .05 ***p < .01 ****p < .001
Chi-Square 282 with 10 deg rees of freedom; p < .001
226
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
bargain. We will see that the new legislation had the greatest impact on the
decisions of law enforcement.
Table 7d shows that suspect’s race/ethnicity and domestic violence history
reappear as predictors of whether or not a charge will be filed. Severity of the
assault and victim’s desire for arrest remain strong at the .001 level. Although the
Arcadia detectives were less likely to send cases to the prosecutor, Arcadia cases
are more likely to be charged than the others (j) < .001). This may be the result of
cooperation between the police department and the prosecutor’s office, so that the
detectives are aware of which cases will be followed through by the prosecutor.
Another possibility is that the Arcadia Police collect more substantial evidence for
the prosecutor to make a case. A Latino suspect, the fact that there were prior
unreported assaults or assault(s) reported but no arrest, or there was a prior
conviction, and the Sheriffs Dept, as arresting agency were predictors at the .01
level. GOA was also significant at this level, but an indicator that the suspect
was less likely to be charged. A prior domestic violence conviction, and an
incident that occurred in 1998 were significant at the .05 level. Children in
common retained some significance, however much less at this stage of criminal
justice processing. African American and Asian American suspects were more
likely to have charges filed against them than Caucasians, but the significance
was minimal.
227
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 7d
Coefficients From Logistic Regression of Charged Cases on
Selected Independent Variables
Suspect Variables
Race/Ethnicity
C aucasian (referent)
African-American
Asian-American
Latino
Other
Gone when police arrived
Domestic Violence History
According to victim, previous assault(s)
unreported
According to victim, previous assault(s)
reported
Prior Domestic Violence Conviction
Severity of Assault
Children in Common
Victim Desired Arrest
Arresting Agency
El Monte (referent)
Arcadia Police Department
Sheriffs Department
Year of Incident
1995 (referent)
1996
1997
1998
*p < .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 244 with 16 degrees of freedom; p < .001
228
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
0.526 *
0.602 *
0.735 * * *
0.989
-0.604 * * * *
0.529 * * *
0.82 * * *
0.998 * *
0.398 * * **
0.31 *
1.769 * * **
1.375 * * **
0.659 * * *
-0.08
0.369
0.542 * *
Table 7e
Coefficients From Logistic Regression of Defendants Sentenced on
Selected Independent Variables
Suspect Variables
Race/Ethnicity
C aucasian (referent)
African-American 0.295
Asian-Am erican 0.61 *
Latino 0.421 *
Other -4.387
Gone when police arrived -0.681 ****
Domestic Violence History
According to victim , previous assau lt(s)
unreported
According to victim , previous assau lt(s)
reported
Prior D om estic V iolence Conviction
Assault Variables
Severity of A ssault 0.312****
S u sp ec t T hreatened to Kill Victim 0.558 **
Victim Variables
Victim Pregnant
Victim D esired Arrest
Arresting Agency
El Monte (referent)
Arcadia 0.913 ****
Sheriff's D epartm ent 0.084
Year of Incident
1.232 ***
1.659 ****
0.397 *
0.6 8 9 **
0.771 *
1995 (referent)----------------------------------------------------------------
1996 0.398
1997 0.423
1998 0.43
*p < .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 183 with 17 d eg re es of freedom ; p < .001
229
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In Table 7e we see that the strongest factors that determine sentencing are
severity of the assault, victim’s desire for arrest, Arcadia as the arresting agency,
and suspect gone (negative). Although children in common drops out of the
equation, if a victim was pregnant the suspect is more likely to be sentenced (j) <
.01). For the first time a terrorist threat appears as a factor (g < .05). Also at the
.05 level is a previous report of domestic violence. Marginally significant at the
.10 level are race/ethnicity with Asian Americans and Latinos more likely to be
sentenced, and prior unreported domestic violence or a prior conviction.
At this stage, the year of the incident drops out of the equation. The year
the incident occurred is not a significant predictor of victim’s desire for arrest and
is of minor or no significance in case processing, indicating that the impact of
California’s domestic violence reform legislation in the mid-1900s has been
modest, and that the conviction rate does not appear to have increased
significantly. Proponents of the new legislation hoped that it would increase the
arrest and conviction rate in domestic violence cases. Logistic regressions were
run separately for the pre-reform period (1995) and the post-reform period (1996-
1998). Looking at predictors of arrest, when only the year the incident occurred is
considered, as we see in Table 7f(l) shows that in 1996 there was an increase in
arrest which peaked in 1997 then declined in 1998. Again, cases were more likely
to be sent to the prosecutor post-legislation (Table 7f(l)). We see that 1996-1997
incidents were significant at the .001 level; however, again in 1998, there was a
decline. Charges were filed significantly more often in 1997-1998 (g < .05).
230
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 7f(1)
Year Arrest Sent to Prosecutor Charge Filed Sentenced
1996 0.308 * 1.17 * * ** -0.034 0.379 *
1997 0.62 * * * 1.145 * * * * 0.411 * * 0.459 *
1998 0.416 * * 0.604 * * * 0.399 " 0.405 *
*p< .10 *‘p < .05 * ‘*p < .01 * * * * p < , .001
Chi-Square 11 37 10 5
df 3 3 3 3
P
<.05 <.001 <.05 0.175
Table 7f(2)
Coefficients From Logistic Regression of Criminal Justice Case Processing on Year of Incident
Year Arrest Sent to Prosecutor Charge Filed Sentenced
1995 (referent)
1996-1998 0.435 ' 0.93 0.251 0.411 * *
*p<1
Chi-Square
df
P
*p < .05 **‘p < .01 *p <.001
1
<.01
28
1
<.001
2
1
0.118
5
1
<.05
231
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Defendant sentencing peaked for 1997 incidents, then declined in 1998. When
other independent variables are added as in Tables 7(a-e), the year of the incident
loses its significance as a predictor of arrest (See Table 7b). It retains significance
as a predictor of whether or not the case was sent to the prosecutor in 1996 and in
1997 (p < .01; see Table 7c).
The fact that an incident occurred in 1998 was a significant predictor that
a charge would be filed (g < .05; Table 7d). The regression model in Table 7e
shows that year was not a predictor of sentencing. However, when only year of
incident is considered at the sentencing stage (Table 7f(l)), there was a small
increase in 1996 which peaked in 1997 then declined in 1998. There is definitely
a criminal justice response to the new legislation; however it is modest and
appears to decline with the passage of time. The greatest change has been in the
fact that bail for a 273.5 arrest is now $50,000; for a conviction, probation is
three years, and the suspect is mandated to 52 weeks of batterers’ intervention.
In Table 7f(2) where the years 1996-1998 are collapsed into a single category,
arrest (p < .01), sent to prosecutor (g < .001), and sentenced (g < .05).
This study suggests that victim’s desire for arrest continues to be a
significant predictor of criminal justice processing In spite of efforts to minimize
this factor. As might be expected, the severity of the physical assault and the
presence of a terrorist threat were highly significant predictors of victim’s desire
for arrest, as was a history of abuse. We also saw that factors such as stalking,
violating a restraining order, and disabling the phone were also significant
232
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
predictors of victim’s desire for arrest. Although it might be expected that Asian
American victims would be the least desirous of arrest, the fact that Latinas were
the most desirous was somewhat surprising. However, as explained earlier, this is
highly correlated with severity of physical assault and alcohol use by the
perpetrator. It is interesting that these two categories of perpetrators, Asian
American and Latino, were significantly more likely to have their cases followed
through the system. It is unfortunate that whether the suspect and victim had a
child(ren) in common or whether a child witnessed the assault had no significant
effect on victim’s desire for arrest (Table 7a) and minimal impact for criminal
justice case processing (Tables 7(b-e)). The impact of domestic violence on these
children is discounted.
With regard to criminal justice case processing the results are mixed. The
failure to follow through when the suspect is gone on arrival appears to be a
weakness in the system. To the credit of law enforcement, the new legislation
had the greatest impact on their decision making. At the prosecution level in this
sample there are many unknowns. The most striking result, however, is the fact
that only 347 (56%) of the 625 cases sent to the prosecutor had charges filed. Of
these, one third (117 cases) failed to result in a conviction. As noted above, the
conviction rate for domestic violence incidents does not appear to have increased
significantly as a result of California’s domestic violence reform legislation in the
mid-1900s. However, for those perpetrators who are convicted, sentencing is
more stringent and more than 2/3 of the defendants sentenced to batterers
233
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
intervention group completed the group. The fact that in nearly 80% of the cases
the perpetrator was not held accountable is strongest evidence that criminalization
continues to meet with substantial resistance.
234
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 8
DO CHILDREN MATTER?
In this chapter I review literature on the effects of exposure to domestic
violence on children and policy when children are exposed. I then look at
whether children in the family, victim pregnant, and a child witnessing the
incident are predictors of victim’s desire for arrest or case processing. In
approximately 50% of domestic violence relationships where there are children
the children are also being abused directly (Fields, 1994; Haddix, 1996; Roy,
1988). Walker (1989) suggests a connection between battering and incest, where
both forms of abuse are motivated by the desire to control. Even when there is no
direct physical abuse of the child, h/she is traumatized by witnessing the violence.
In fact, marital discord is the strongest predictor of children’s behavioral problems
(Emery, 1989).
The majority of children in violent homes, as many as 87% (K. J. Wilson,
1997) to 90% (Hughes, 1992), witness the abuse. Usually victimization is thought
of as being physically or sexually assaulted and/or having one’s property stolen or
destroyed; however, children are victimized in multiple ways when they are
exposed to domestic violence (Levine, 1994). Children may be the only witness
to the abuse and are increasingly calling the police or a neighbor for help. In San
Diego, domestic violence education in schools has resulted in a significant
increase in 911 calls from children witnessing the violence. In 1988, children
made 31% of the 911 calls received in the San Diego City Attorney’s Domestic
235
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Violence Unit (Gwinn & O’Dell, 1993). In the batterers’ intervention groups I
facilitate and in presentations on domestic violence in educational settings I use
audiotape recordings of two San Diego children calling 911. One is of a 6 year-
old girl; the other is of a 9 year-old boy. The conversations of these children with
the police dispatchers have a profound and disturbing effect on those who hear the
tapes.
The most severe and long lasting victimization of children in these homes
is the emotional abuse they suffer. Whether or not they are physically abused, as
witnesses of their mother being beaten and/or threatened and seeing the aftermath
of the physical abuse of a parent, they are at high risk for short and long-term
emotional and behavioral problems (Edleson,1999; Rabin, 1995). Infants and
toddlers may be the most vulnerable (Fisher, 1999; Garbarino, 1999). Often
women are assaulted when they are pregnant (Amaro, Fried, Cabral, &
Zuckerman, 1990; Gelles, 1988; Hillard, 1985; McFarlane, Parker, Soeken, &
Bullock, 1992), with one in every six pregnant women assaulted by their partner
(McFarlane et al., 1992). The abuse may result in a miscarriage, premature birth,
or permanent injury.
Some batterers may not intentionally strike their children, but they will
recklessly disregard the safety of the children who are caught in the crossfire.
One example, is a December 2000 incident that began in Los Angeles County and
ended in Orange County. The case resulted in the arrest and sentencing of the
perpetrator to 5 years in state prison. Carl Wayne Chavez, 24, of Los Angeles
236
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
argued with Ms estranged girlfriend when he came to her home in Los Angeles
County to pick up their 2-year-old daughter. Enraged, he grabbed his ex-
girlfriend by the hair and slammed her head repeatedly against the dashboard of
his BMW as he drove wildly with the 2-year-old girl unsecured and crying in the
car. At one point during the ensuing police chase Chavez grabbed his daughter by
the leg and dangled her out of the car window. Chavez pled guilty to felony
charges of kidnapping, domestic violence, child abuse, methamphetamine
possession, evading the police, and driving recklessly. The woman’s nose was
broken during the beating; however “The little girl was unharmed” (Hardesty,
2000, p. 1). It is not known what part the child abuse and drug possession
contributed to the sentence.
A positive attachment to a care-giver, usually accomplished during the
first year after birth, is crucial for a child. When a mother is being battered this
process is disrupted or denied (Edleson, 1999). Battered women are prone to
depression, anxiety, and substance abuse, thus more likely to neglect the
emotional and physical needs of their children (Levine, 1994). Older children are
at risk for behavioral problems including depression, anxiety, and violence toward
peers. Alcohol and drug abuse, running away, suicide attempts, and assaultive
behavior are not uncommon (Gelles & Straus, 1988; Roy, 1988). When the
criminal justice system fails to end the abuse in a family, cMldren may resort to
murder to protect their mothers. The Hazelden Foundation reports that sixty-three
percent of men between the ages of eleven and twenty who are doing time for
237
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
homicide, were convicted of killing their mothers’ batterers (Buel, 1998). Often
young men and women, imitating their father, turn on their battered mother,
physically and verbally abusing her. They learn that it is okay to use violence to
get what you want (Buel, 1998). Usually the girls in violent homes tend to
become more passive and depressed while boys become more hostile and
aggressive. Males are significantly more likely to become batterers and females
are more likely to be battered in their adult relationships (Hilton, 1993; Kalmuss,
1984; Star, 1978; Straus, Gelles, & Steinmetz, 1980). Eighty to ninety per cent of
those incarcerated in our prisons witnessed domestic violence in their homes
(Roy, 1988; Tomkins, Mohamed, Steinman, Macolini, Kenning, & Afrank, 1994).
Another way that children matter is that as research substantiating the
negative effects of domestic violence on children accumulates, more legislatures
are defining a child witnessing domestic violence as a form of child abuse. The
impact on children who witness domestic violence was not addressed in the
research literature until the 1980s (Fantuzzo & Mohr, 1999), and the federal
government did not officially recognize child exposure to domestic violence as a
problem until 1984 (Barnett, Miller-Perrin, & Perrin, 1997). California courts
have recognized that exposure to domestic violence is harmful to children since
1986. California is one of several states that have increased the possible penalty
for batterers who commit the abuse in front of children. Cal Pen Code § 1170.76
(2001) became effective June 1, 1998. However, prosecutors seldom use this
provision.
238
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
§ 1170.76. Minor’s witnessing offense in certain cases of domestic
violence as aggravation
The fact that a defendant who commits or attempts to commit a violation
of Section 243.4, 245, 273.5, or 273.55, is or has been a member of the
household of a minor or of the victim of the offense, or the defendant is a
marital or blood relative of the minor or the victim, or the defendant or the
victim is the natural parent, adoptive parent, stepparent, or foster parent of
the minor, and the offense contemporaneously occurred in the presence
of, or was witnessed by, the minor shall be considered a circumstance in
aggravation of the crime in imposing a term under subdivision (b) of
Section 1170.
In Oregon, “if a child living in the household witnesses domestic attack,
the crime is automatically bumped from a misdemeanor to a felony” (Beggs,
1998, p. 1). As a condition of the batterer’s probation, the Miami-Dade Domestic
Violence Court has a requirement of group counseling for children who witnessed
violence (Tsai, 2000). In Dade County Florida and Honolulu, Hawaii, court
programs provide counseling for child witnesses of domestic violence (Impact of
Domestic Violence, 1994).
Various measures used to safeguard the interests of children in domestic
violence situations include guardians ad litem to represent children, consideration
of domestic violence history in determining orders of protection for children and
deciding visitation and custody issues, and ultimately, criminalizing the exposure
of children to violence (S. M. Murphy, 1999; Stone & Fialk, 1997). Minnesota is
one of numerous states that have a “domestic violence prevention curriculum” for
elementary school grades (Davidson 1994; Trepiccione 2001). The California
Legislature amended the Education Code in 2001 to require that “schoolsites
receiving funds pursuant to (Title 1, Division 1, Part 19, Chapter 2, Article 3.6 of
239
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the Education Code) accomplish “age-appropriate instruction in domestic
violence prevention, dating violence prevention, and interpersonal violence
prevention” in grades 8-12. The legislative intent is clear; however it will be
difficult to fully implement this program, particularly under current budget
restrictions. The goal is to prevent domestic violence and alleviate its effects on
children’s lives (Winick, 2000). Research to identify the impact of these changes
in legislation relating to domestic violence and children is desirable.
When cases involving child abuse or neglect appear in court, the court can
order parents to complete treatment as a condition of regaining custody of their
children. Studies indicate that court-ordered parents were more likely to complete
treatment than parents voluntarily receiving treatment. The research supports the
effectiveness of court oversight of such treatment for parents who would be
otherwise unlikely to participate voluntarily (Lederman & Malik, 1999). The
judge in most states has the power to remove the batterer from the home, grant
temporary custody of the children to the victim, require the batterer to pay child
support, determine the conditions of visitation, prohibit him from having
interaction with the victim, and to require him to attend counseling.
At times child protective agencies remove children from their battered
mother’s care and charge her with failure to protect (Davidson, 1994; Goelman,
1996; Melner, 1998; Miccio, 2002). “Failure to protect” is used to target women.
Men are rarely charged with “failure to protect” their children when they beat
their mothers. Also, if a woman leaves the batterer and is unable to provide for
240
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
her children, she may be accused of neglect (Davidson, 1994). Her children could
be taken from her in either of these situations. Although case law considers both
parents responsible, it is the mothers who are primarily penalized (Trepiccione,
2001). In an August 2000 case in New York City a mother was separated from
her two preschool children for 9 weeks after she reported to the police that her
husband had pushed her violently to the floor during an argument. Although she
separated from her husband, she was accused of child neglect for “engaging in
domestic violence” (Glaberson, 2002).
Because many battered women remain in abusive situation and have
difficulty caring for their children in the midst of ongoing abuse (Schecter &
Edleson, 1999), it appears desirable to coordinate child protection and domestic
violence programs. It Is telling that research proposed by Scordato (2002) to
study the impact of domestic violence on children witnesses from the perspective
of the female victim failed because of the absence of a reliable sample due to the
“sensitive nature of the subject.” There is a need for closer collaboration to Insure
that the children are protected and the mother Is provided with support
(Trepiccione, 2001). The earlier the intervention, the greater benefit to women
and their children (Fisher, 1999). Financial dependence, particularly when there
are children, is the reason many women give for remaining. Victims of domestic
violence are frequently concerned about the possible loss of financial support,
believe that their children need their father in the home, or that their children will
be adversely affected by the presence of law enforcement. In many instances,
241
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
women only recognize the need to leave the relationship when the children are
threatened or assaulted physically or sexually (Noone, 2000).
Given the evidence that children are abused and neglected if their mother
is a victim of domestic, and the abuse is transgenerational, the fact that the
children variables in victims’ desire for arrest are non-significant as a predictor as
shown in Chapter 7, Table 7a might suggest that the victims are not aware of the
extent of the harm to children, or they are, but are afraid to leave in spite of that
knowledge. Table 8a also shows that if a victim is pregnant, she tends to have
less desire for arrest. If we look at Tables 8(b-e) we see in Table 8b that the three
children variables are not significant predictors of arrest. However, Table 8c
would indicate that the arresting agency detectives consider the case significantly
more prosecutable (p < .05) if the couple had children in common; and in Table
8d we see that the prosecutors are more confident (p < .05) of conviction if the
victim is pregnant. A pregnant victim is a strong predictor of sentencing as is
shown in Tables 7e and 8e (p < .01). However, as Tables 8(b-e) show, at no
stage of criminal justice processing is a child witness significant.
The profound and complex effect of domestic violence on children is
becoming a greater topic of interest and research. More longitudinal research is
needed to assess long-term impact on children, with emphasis on what factors
contribute to a child’s resilience in the presence of domestic violence.
242
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 8a
Coefficients From Logistic Regresson of Victim's Desire for Arrest on
on Selected Independent Variables
Assault Variables
Severity of Physical Assault
Non-physical Assault Variables
Suspect Threatened to Kill Victim
Suspect Violated a Restraining Order
Suspect Disabled the Phone
Suspect's Domestic Violence History
According to victim, previous assault(s) unreported
According to victim, previous assault(s) reported
Prior domestic violence arrest
Prior domestic violence conviction
Victim's Race/Ethnicity
Caucasian (referent) ------
African-American 0.386
Asian-American -0.557 **
Latina 0.307 *
Other -0.567
Children Variables
Children in Common 0.138
Victim Pregnant -0.569
Child witnessed the incident 0.237
Year of Incident
1995 (referent)-------------------------------------------------------------- --------
1996 0.303
1997 0.268
1998 -0.05
*p < .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 180 with 18 degrees of freedom; p < .001
0.308 ****
0.981 ****
1.808 ***
1 049 ****
0.737 ****
1.311 ****
1.323 ***
1.339 ***
243
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 8b
Coefficients From Logistic Regression of Arrest on Selected
Independent Variables
Suspect Variables
Race/Ethnicity
Caucasian (referent)
African-American
Asian-American
Latino
Other
Domestic Violence History
According to victim, previous assault(s)
unreported
Prior Conviction for D om estic Violence
Other Suspect Variables
Gone when police arrived
Used Alcohol/Drugs Prior to Assault
C onfessed to Police
Severity of Physical Assault
Victim's Desire for Arrest
Children Variables
Children in Common
Victim Pregnant
Child W itnessed the Incident
Arresting Agency
El Monte (referent)
Sheriffs Department
Arcadia
Year of Incident
1995 (referent)
1996
1997
1998
0.532
0.838
0.386
-0.588
0.705 ***
1.625 ***
-2.439 ****
0.625 ***
0.422 *
0.623 ****
2.132 ****
0.141
0.649
0.07
-0.093
-0.019
-0.324
0.271
-0.018
*p < .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 413 with 21 d egrees of freedom; p < .001
244
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
T a b le 8 c
Coefficients From Logistic R e g r e s s io n of Case Sent to Prosecutor on
Selected Independent V a r ia b le s
Severity of Assault
Suspect Variables
Used Alcohol/Drugs Prior to the Assault
Gone when police arrived
Victim's Desire for Arrest
Children Variables
Children in Common
Victim Pregnant
Child Witnessed the Incident
Arresting Agency
El Monte (referent)
Sheriffs Department
Arcadia Police Department
Year of Incident
1995 (referent)
1996
1997
1998
0.636
0.638 **
-1.125 ****
2.35
0.652 **
0.863
0.052
1.235
-0.322
1.26
1.069
0.493
*p<10 **p<.05 ***p<01 ****p<.001
Chi-Square 289 with 20 degrees of freedom; p < .001
2 4 5
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 8d
Coefficients From Logistic Regression of Charged C ases
on Selected Independent Variables
Suspect Variables
Race/Ethnicity
Caucasian (referent)
African-American
Asian-American
Latino
Other
0.56 *
0.804 * *
0.758 * * *
0.873
Other Suspect Variables
Gone when police arrived
Used Alcohol/Drugs Prior to the Incident
Domestic Violence History
According to victim, previous assault(s)
unreported
" " to victim, previous assault(s) reported
Prior Domestic Violence Conviction
Severity of Assault
Victim Desired Arrest
Children Variables
-0.615 * * *
0.49 * *
0.552 * * *
0.844 ***
0.983 **
0.403 * * * *
1.86 * * * *
Children in Common
Victim Pregnant
Child Witnessed the Incident
0.306
1.045
-0.322
Arresting Agency
Year of Incident
El Monte (referent)
Sheriffs Department
Arcadia Police Department
0.684 ***
1.388 * * * *
1995 (referent)
1996
1997
1998
*p < .10 * * p * * p < .05 ***p < .01 ****p < .001
Chi-Square 260 with 18 degrees of freedom; p < .001
-0.156
0.38
0.517 * *
246
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 8e
Coefficients From Logistic Regression of Defendants Sentenced on _
on Selected Independent Variables
Suspect Variables
Race/Ethnicity
Caucasian (referent)---------------------------------------------------------- -----------
African-American 0.313
Asian-American 0.594 *
Latino 0.412 *
Other -4.349
G on e w hen p o lice arrived -0.701 ***
D o m estic V iolen ce History
According to victim, previous assault(s) unreported 0.414 **
According to victim, previous assault(s) reported 0.699 **
Prior Dom estic Violence Conviction 0.764 *
A ssa u lt V ariables
Severity of Assault 0.32***
S uspect Threatened to Kill Victim 0.565 * *
Victim D esired Arrest 1.674 ***
Children V ariables
Children in Common 0.197
Victim Pregnant 1.159 ***
Child w itnessed the incident -0.031
Arresting A gen cy
El Monte (referent) -----------
Sheriff's Department 0.113
Arcadia 0.997
Year o f Incident
< .10 **p < .05 ***p < .01 ****p < .001
Chi-Square 187 with 19 d egrees of freedom; p < .001
1995 (referent) -----------
1996 0.386
1997 0.452
1998 0.443
__
247
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
A qualitative study assessing the attitudes and roles of criminal justice agents
regarding children in domestic violence situations would highlight problem areas
that could be addressed in training sessions. These young victims are truly the
most helpless.
2 4 8
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER 9
DISCUSSION
My focus has been on one county in California and on a particular time-
period. Although research supports that arrest and subsequent prosecution and
batterers intervention groups are effective in reducing recidivism, evidence from
this study confirms that the resistance to criminalization of domestic violence
results in poor enforcement of the law. I have explored a number of factors that
limit enforcement.
There are still strong elements regarding male/female relationships that
make the criminalization of domestic violence difficult to enforce. Resistance
continues on multiple levels. Those that I have addressed include, but are not
limited to the following:
Societal Beliefs/Attitudes Toward Domestic Violence
1. Female subordination
2. Women and children are the property of men
3. A man has a right to chastise his wife
4. Men’s and women’s interests have been assumed to be congruent
5. Historical bias and discrimination in the criminal justice system because of the
belief of the sanctity, inviolability, and privacy of the family
6. A reluctance to treat perpetrators of domestic violence as criminals
7. Continued belief that the victim must have done something to provoke the
attack (pushed his buttons)
249
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
There is surprisingly little attention paid to the connection between family
violence, street crime, and substance abuse. This is in large part due to the
artificial split between what is considered private and what is considered public.
This split continues to undermine efforts to address domestic violence. The
identification of something as private or personal has defined it as being outside
of the political or public arena. This has precluded the analysis of “personal”
problems, such as domestic violence, as con-sequences of social and political
structures and impacting the larger society.
Perpetrators
Perpetrators feel entitled to use force to maintain control of their partner.
Domestic violence is a way of doing masculinity, of asserting and enforcing their
dominance. According to K. G. Kaufman (1995), particularly for those men who
have doubts about their masculinity or a negative self-image, “violence against
women can become a means of trying to affirm their personal power in the
language of our sex-gender system” (p. 40). These men have the expectation that
their partner should and will defer to them.
Examples of this from the crime report narratives are:
The 19-year-old suspect and the 18-year-old victim are living together.
He pushed, punched, and struck her on head. He pled guilty in court and was
sentenced to 3 years probation but did not finish the group. There is an
outstanding warrant for his arrest. He told the responding officer that he hit her
“Because she’s my wife.”
250
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The 39-year-old suspect and the 37-year-old victim are married with
children. The suspect was drunk and wanted sex “because that’s what married
people do.” When the victim refused he pushed her to the ground, sat on her, and
choked her with both hands for about a minute. He then locked her in the
bedroom and pulled the phone out of the wall. He had hit her about 15 times in
the 14 years they were married. Previous assaults had not been reported. He was
arrested but not charged.
The 34-year-old suspect told his 32-year-old wife to go to the store for
milk. She sat on the couch. He punched her on the head and upper body about 10
times, saying “I’m the man of the house.” When their son intervened he kicked
his son and told him he would kill the victim if police were called. He hit his son
with an aquarium and a table. Previous assaults on his wife had not been
reported. He was arrested and sentenced to 52 weeks of batterers’ intervention
group, which he completed.
The narrative portions of the crime reports confirm that perpetrators will
almost always deny the assault. They usually minimize the abuse, justify their
actions by blaming the victim on the basis of common understandings of what it
means to be a man and the man in the home, and refuse to accept responsibility.
Victims
Victims continue to underreport. They minimize the severity of the assault
and often blame themselves, making excuses for the perpetrator. They are afraid,
dependent on the abuser, embarrassed, and ashamed. They often recant and are
251
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
otherwise uncooperative. It is not uncommon for them to plead for mercy for
Mm. Their behavior exhibits traits of female gender socialization such as
passivity, dependence, forgiveness, and accepting responsibility for relationship
failure. They have Internalized gender roles and feel powerless.
Examples of victim-resistance from the narratives are:
The 31-year-oId suspect and the 40-year-old victim are married with
children. Both are doctors. He punched his wife while they were arguing over
finances. She begged the detective not to send the case to the prosecutor. The
suspect confessed. A 243 charge was filed. He pled no contest in court, but was
not sentenced.
The suspect and victim are in their early thirties and unmarried. She did
say they had a fight but would not say how the injury occurred. She said, “I’m
Ok. I’m bad. That’s why I have a hurt eye.” They had argued in the car. When
they came home the victim decided to go for a walk to calm down. The suspect
grabbed her arm and hit her in the face. He was arrested and sentenced to 52
weeks, which he completed.
The suspect and victim, 23- and 22-years-old respectively, are dating and
argued in the car. He pushed her out of the car and dragged her 8-10 feet. She
sustained multiple injuries. There were two independent witnesses who saw the
incident. However, the victim sent the detective a three page letter recanting.
Although the suspect was arrested, he was not charged.
252
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Criminal Justice Agents
Criminal justice agents in general are reluctant to treat perpetrators of
intimate assault as criminals. There is an overriding belief that domestic abuse is
not a serious crime, that it is a private matter, that the victim must have provoked
the attack. The system tends to not respond as vigorously to domestic violence
incidents as it does for other violent crimes in spite of the fact that domestic
violence extracts a far greater toll on the social fabric than any other violent
crime. There is a widespread belief that there is no effective way to protect or
otherwise help the victims if they choose to remain with their abusers. Although
there is a diversity of perceptions among criminal justice agents about what is
effective, at each level the victim’s wishes are given considerable weight in the
decision to arrest, file charges, and dismiss the case. The focus is on one incident
rather than the ongoing abuse. Study results show that in those cases where there
was a history of domestic violence and the severity of the assault was greater than
three, 30% of the perpetrators were not arrested, 47% were not charged, and 61%
were not sentenced. The police and prosecutors use the victim’s wishes to excuse
inaction, and they appear to discount the impact on children in the home. Half of
the couples in the sample had children in common, and children witnessed 34% of
the assaults. In more than 50% of the cases where there were children in common
a history of domestic violence was noted in the crime report. The perpetrator in
only 9% of these couples where there was a history of domestic violence
253
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
completed a 52 week batterers intervention program. In addition, there is strong
resistance to providing records for research purposes.
Law Enforcement
In 1984 the U.S. Attorney General’s Task Force on Family Violence
identified the failure of law enforcement to arrest for crimes of domestic violence
as one of the most serious obstacles to curtailing the epidemic of domestic abuse
plaguing the country. This study shows the police, particularly the detectives,
generally taking the assaults seriously. However, one method of evidence
gathering that has proved successful elsewhere, that of audio/videotaping the
victim’s initial statement, was not used. The use of audio/video taping to record
the victim’s spontaneous statements and the police officer’s testimony provide
sufficient evidence to prosecute (Gwinn & O’Dell, 1993; Klein & Orloff, 1993).
This compelling evidence increases the chances that a charge will be filed when a
victim refuses to cooperate. When defendants realize the strength of the case
against them, many plead guilty to reduced charges.
Law enforcement departments tend to ignore or impose light discipline on
employees who commit acts of domestic violence; they also continue to make
dual arrests where no charge is filed. When the suspect is gone on arrival, cases
are rarely pursued.4 2 Examples from the narratives of police not arresting follow:
4 2 The Omaha, Nebraska replication o f the Minneapolis experiment found that when an
offender was gone on arrival he scored lower on both prevalence and frequency of repeat offences
when an arrest warrant was issued (Dunford, Huizinga, & Elliott, 1990).
254
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
A married couple with children in common argue. He is 53 and she is 45.
There have been previous assaults, but they were not reported. The husband
became angry with his wife over how she had treated Ms mother and struck her
about the body repeatedly with a golf club. The hospital where she was treated
reported the incident to the police. He was not arrested; the reason given was
“victim non-desirous.”
The suspect and victim are in their mid-twenties, had lived together in the
past, and had a child in common. The suspect had attacked the victim about 10
times in the past. He wanted to resume the relationship, but the victim did not.
The suspect grabbed, choked, punched and threatened the victim, saying, “I hope
you die.” Suspect’s brother was a witness to the assault. The victim was desirous
of arrest and prosecution. No reason was given for non-arrest, prosecution.
A drunken and jealous suspect pushed his girlfriend’s 19-year-old
daughter and threatened her and her mother with a metal bat. He broke an
aquarium with the bat, poured gasoline on the carpet, turned on a heater, and left.
Previous incidents unreported. Cohabiting couple. One to 2 years prior to this
incident the suspect attempted suicide. His girlfriend had him hospitalized. A
year or two prior to that he had punched her in the face. That incident was not
reported. He was not arrested in this incident because the victim was non-
desirous.
In one case in the study, the suspect, upset over the breakup of the
relationship, called the victim over 30 times on the day police were called. He
255
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
told the victim, “If I can’t have yon, then nobody can. I’ll kill you.” Hie officer
threatened to arrest the suspect who has a long rap sheet, but did not. The suspect
has a history of arrests for assault with a deadly weapon, strong-arm robbery,
possession and sale of drags, and annoying phone calls. The victim was advised
to get a restraining order.
In this case the couple are married with children. The husband punched
his wife in the head, leaving bruises. Their child witnessed the assault. The
woman is confused and fearful. She seems to have no power in the relationship.
She tries to reason with her husband who calls her “a cheap whore” and throws
food at her. The officer tried to dissuade the victim from pursing prosecution.
Prosecutors
Many prosecutors still give reluctant victim-witnesses control over their
cases, dismiss or reduce a large percentage of charges, and undercharge cases by
filing many felony crimes as misdemeanors. Since so few domestic violence
incidents come to the attention of law enforcement, it would seem that in those
where the suspect has a history of domestic violence, a firmer response would be
warranted. This is not occurring. There were 43 men who had one or more prior
domestic convictions. Only 16 or 37% of these were convicted for the current
incident. California courts have recognized that exposure to domestic violence is
harmful to children since 1986. California is one of several states that have
increased the possible penalty for batterers who commit the abuse in front of
256
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
children. Cal Pen Code § 1170.76 (2001) became effective June 1, 1998.
However, prosecutors seldom use this provision.
Examples from the narratives of failure to prosecute:
In this case the couple have been married for a year. The victim lives in
Mexico. The husband punched his wife several times about the head, neck and
shoulders leaving multiple signs of injury. Although the prosecutor had the police
report and hospital records, no charge was filed because the victim was non-
desirous and returning to Mexico.
The suspect, victim, and suspect’s 9-year-old son are living together.
There were previous incidents, but they were not reported. The couple was
arguing in front of the child because the victim was pregnant but did not want to
get an abortion. Both were drinking. The victim punched the suspect, then the
suspect began pushing the victim around the living room. The victim hit her head
on the TV and sustained multiple injuries. Although the suspect was arrested,
there was no charge filed because the prosecutor recorded this as a mutual battery.
One incident particularly stood out because it was noted on the
supplemental report of the case that the deputy district attorney issued a rejection
(declined to file a charge) because the “victim on Prozac/ psychological
problems.” The couple were married, both 40-years-old.
A 1997 incident involving a 23-year-old Latino and a 20-year-old
Caucasian female, cohabiting: There had been prior, unreported domestic assaults
upon the victim. The suspect was angry because his girlfriend had too much to
257
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
drink and wanted to leave a party early. Saying, “Why did you have to take it to
the limit?” he punched the victim in the face, cutting and breaking her nose;
stitches were required. A family member witnessed the incident and there was a
hospital record and photographs as evidence. However, there was no arrest
because the victim was non-desirous stating she is dependent on the suspect who
was gone on arrival of the police and fled to Salinas. The case was sent to the
prosecutor who did not file charges citing that the victim was non-desirous.
A 1996 incident involving an Asian American married couple in their 30s
with children in common: Both had been drinking. The suspect pushed the
victim, punched her in the head, and scratched her leaving multiple visible
injuries which were photographed. There was no witness to the assault. The
neighbor who called the police said that the husband frequently assaulted his wife.
The victim claimed that the injuries were accidental or self-inflicted. The
prosecutor wrote, “As much as Fd like to file charges,” there is insufficient
evidence without the victim’s testimony.”
This incident involved a married couple with no children in common. The
suspect has been assaulting the victim for 17 years. Both had been drinking at
this time. Although the victim sustained multiple visible injuries and had two
broken ribs, she was not desirous of prosecution. The deputy DA declined to file
charges, noting that the victim was drunk and that she lies.
The relationship of a 20-year cohabiting couple with five children in
common had been deteriorating for several months. The victim was afraid of the
258
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
suspect. On this day she and the suspect were arguing over a fan and clothes.
The victim grabbed the car keys. In an attempt to get them back, the suspect
grabbed the victim’s forearm leaving a large deep bruise which was photographed
for evidence. The couple’s 8-year-old daughter witnessed the incident and told
her parents to “stop acting like children.” The deputy district attorney cited
insufficient evidence as the reason that no charge was filed.
There was a history of unreported domestic violence in the relationship of
a 25-year cohabiting couple with children. The suspect had threatened to kill the
victim in the past. The victim wanted out of the relationship but was still living
with the suspect. The suspect became angry because the victim was visiting their
daughter and was not at home. He punched the victim when she returned and
dragged her by the hair, causing visible injury. Their daughter witnessed the
incident and called police. The victim was desirous of prosecution. A warrant
was issued for the suspect’s arrest, and a misdemeanor 273.5 charge was filed.
The suspect was represented by a public defender, pled not guilty, and insisted on
a jury trial. The charge was dismissed 2 months and 5 days after it was filed.
A married couple with children in common argued when the victim
refused to give her husband, who had been drinking, a quarter. He punched her in
the head. Although he beat her “all the time,” and she was afraid of him, she
wanted him to be prosecuted. He pled not guilty to a 242 charge, which was
dismissed. No reason was given other than “People unable to proceed.”
259
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Judges
This study found that judges are resistant to or ignore sentencing
guidelines, particularly with higher income defendants. The literature is replete
with examples of judges minimizing the seriousness of domestic violence
(Capurso, 1999; J. Ford et ai, 1995; Epstein, 1999). There was substantial
evidence in my Los Angeles sample that judges used discretion in sentencing. In
over 40% of those cases where the defendant was sentenced lesser sentences were
assured in the plea bargaining process during prosecution. However, as noted in
Chapter 6, there was a significant difference (j> < .001) in the number of weeks of
batterers’ intervention group mandated across income categories. For the Los
Angeles County sample, during the years 1996-1998 for those defendants charged
with penal code 273.5, 11% of the defendants in the two higher income categories
($40,000 and greater) received fewer than 52 weeks while only 2% of the
defendants in the three lower income categories (Less than $40,000) did.
In the 1970s judges appeared to share the consensus of prosecutors that the
most effective response to domestic violence was not prosecution of an offender.
They have been more likely than other professionals, except for police, to
consider spousal abuse as grounds for divorce rather than as a criminal offense.
In 1995 when California State Senator Hayden introduced the bill to eliminate
diversion programs for convicted batterers, two judges’ groups supported
legislation in the Assembly that would enable the defendant to avoid a criminal
260
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
record (Ainsworth, 1995). Throughout the past 3 decades judges have tended to
minimize domestic violence cases and disproportionately acted to dismiss them.
The analyses indicate that the implementation of recent changes in
domestic violence legislation has had marginal and limited impact. As was
discussed at the end of Chapter 7, there appeared to be a positive effect, which
began to decline during the fourth year of the study. When incidents that
occurred during the years 1996-1998 are compared with those that occurred
during 1995 as a referent (Table 9a(l)), there is a strong statistical difference in
increase in arrest and cases sent to the prosecutor indicating that law enforcement
is taking domestic violence more seriously. The difference in charges filed is
non-significant. Convictions definitely increase, but not as strongly as arrests and
cases sent to the prosecutor. In Table 9a(2) when I compare 1996, 1997, 1997
individually to 1995, there is a peak in increase for the 1997 incidents in all four
categories—arrest, sent to prosecutor, charge filed, and conviction (represented by
“sentenced”). For incidents in the final year of the study, 1998, the statistical
significance diminishes except for charge filed.
It appears that as the flurry of media attention and pressure to adhere to
new legislation fades, enforcement declines. At the time of this writing (2003)
the West LAPD DART program is no longer funded, nor is the STOP program in
the Sheriff’s Department. These were successful programs to assist victims after
the assault. In addition, batterers’ intervention group facilitators are seeing
declining enrollments. The failure of the criminal justice system to hold
261
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 9a(1)
Coefficients From Logistic Regression of Criminal Justice Case Processing on Year of Incident
Year Arrest Sent to Prosecutor Charge Filed Sentenced
1996-1998 0.435 *“ 0.93 * * * * 0.251 0.411 ’
*p < .1 **p < .05 *** p < .01 ****p < .001
Chi-Square 8 28 2 5
df 1 1 1 1
P
<.01 <.001 0.118 <.05
Table 9a(2)
Coefficients From Logistic Regression of Criminal Justice Case Processing on Year of Incident
Year Arrest Sent to Prosecutor Charge Filed Sentenced
1995 (referent)
-------- --------
1996 0.308 * 1.17 * * ** -0.034 0.379 ’
1997 0.62 * * * 1.145 * * * * 0.411 * * 0.459 '
1998 0.416 ** 0.604 * * * 0.399 * * 0.405 '
*p < .10 **p < .05 ***p < .01 **"p < .001
Chi-Square 11 37 10 5
df 3 3 3 3
P
<05 <.001 <.05 0.175
2 6 2
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
perpetrators of domestic violence criminally responsible is primarily due to the
use of victim’s desire not to arrest and prosecute as a reason for inaction. Even
though the California legislature had responded to victim advocates and
strengthened state laws that criminalized domestic violence and limited the
discretion of criminal justice agents, victim’s desire that the suspect not be
prosecuted was a primary reason given for the fact that more than 75% of the
cases fell through the cracks. Victim’s desire not to arrest/prosecute is still being
used as the scapegoat for inaction. The problem at the state (government) level is
not victim’s reluctance, but the use of this to fail to act to protect women and
children.
The federal government has been slow in acting on behalf of victims of
domestic violence. A federal Office of Domestic Violence established in 1979
was closed in 1981. Although Congress passed the Domestic Violence
Prevention and Treatment Act in the mid-1980s, the Reagan administration
refused to allocate the funds necessary to Implement its provisions. After
assessing the failure of state legal structures to provide adequate relief to victims,
both houses of Congress finally passed the Violence Against Women Act
(VAWA) in 1994. It took 4 years of conflict and contention, and at least fourteen
versions and numerous changes which restricted the usefulness of the law in
domestic violence situations.
While battered women’s voices have become part of feminist
consciousness, they are largely muted in narrative jurisprudence. The lived
263
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
experiences of victims are all but invisible in the practice of domestic violence
law. Victims5 stories become lost in the criminal justice process with its focus on
discrete incidents. As the history of the distress and anguish experienced by the
victim becomes irrelevant and inadmissible in the legal process, the crime loses
its horror; the breadth and depth of the problem are ignored—and filing a criminal
charge seems excessive.
Racial/Ethnic Differences
This study's analysis of racial/ethnic factors in domestic violence adds
considerably to the literature, particularly for Latino and Asian subgroups.
Domestic violence presents uniquely according to race/ethnicity. Much of the
response according to race/ethnicity to date has been based on speculation and
theorizing from anecdotal evidence and stereotypical prejudices. How best to
treat these cases, criminally and clinically, must be informed by quantitative
analyses such as this one. Because both perpetrators a n d victims differ
significantly according to race/ethnicity, research and clinical treatment would
benefit from increased awareness of the differences among women of color in
domestic violence situations.
The empirical results regarding race/ethnicity revealed that the three non-
Caucasian groups (African American, Asian American, Latino) have significantly
higher rates of criminal justice processing at all four stages (arrest, sent to
prosecutor, charge filed, sentenced). However the difference appears to be due
primarily to the greater severity of assaults inflicted by African American, Asian
264
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
American, and Latino suspects. It is possible that police officers are more vigilant
in seeing the extent of injury in these cases. Because I only have the police
narrative I have no way of knowing If the reports of injury are embellished for
people of color. My general impression is that the officers write very professional
reports. Often when I worked with them they would ask me to read their reports.
Report writing is a part of police work that is necessary. It is not a part of the job
that officers relish. Another factor that a Chinese male in one of my groups
mentioned is that “Asian women are small and would be injured more easily than
the other women.”
Table 9b provides an overview of racial/ethnic group high and low
percentages on 21 variables. Caucasian suspects had the highest score in the
number of prior domestic violence incidents reported, yet the lowest scores in
arrest, the proportion of cases being sent to the prosecutor, and charges filed.
African American suspects had the highest scores on victim pregnant, punching
the victim, and being gone when the police arrived. They had the lowest scores
in marriage, previous domestic violence history, and completing a mandated
batterers’ intervention group. These scores are not surprising given what is
265
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Table 9b
Racial/ethnic high and low percentages on 21 variables
High Scores:
African-American
Asian-American
Caucasian
Latino
Other
Victim pregnant, punched, suspect gone on arrival of police
Age, married, slap, m ultiple signs of injury, all four stages of criminal justice
processing, completed batterers' group
Prior domestic violence reported
Cohabiting, alcohol use, head/neck injury, victim desired arrest
Income, child in common, stalk/harass, previous domestic violence history
unreported
Low Scores:
African-American Mamed, previous domestic violence history, completed batterers' group
Asian-American Cohabiting, victim pregnant, victim desired arrest, suspect gone on
on arrival of police
Caucasian Child in common, arrest, sent to prosecutor, charge filed
Latino Age, income, stalk/harass
Other Victim pregnant, alcohol use, head/neck injury, punch, slap
generally known about the violence in the African American community, the
mistrust of the criminal justice system, and the tenuous relationships between
African American men and women in sexual relationships. The study data
indicate that African American group members respond to a facilitator’s
awareness of racial prejudice and discrimination resulting in the difficulty these
men have with trust. The lower income men in this category frame their beliefs
266
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
regarding the male role in terms of survival in “the hood” where violence is
regarded as necessary for survival. In this sense, their use of violence in intimate
relations compares with that of men in the military or In law enforcement. A
focus on separating the “hood” mentality (Individual survival) from relationship
and family survival is an effective strategy with these men.
Asian American suspects were highest in age, being married, slapping
their victim, leaving multiple signs of injury, all four stages of case processing,
and completing the mandated batterers5 intervention group. They were lowest in
cohabiting, victim pregnant, victim desiring arrest, and being gone on the arrival
of police. These scores support what is generally known about the more
traditional relationships and attitudes that Asian Americans hold as compared to
the other three racial/ethnic groups (African American, Caucasian, and Latino).
Approaches with the Asian American population must address the secrecy and
shame that shrouds domestic violence. The fact that the Asian American men
were generally older than the perpetrators in the other racial/ethnic groups may
support previous studies that found Asian American men who adhere to more
rigid gender roles tend to resort more to domestic violence (Hong, 1993). Their
greater presence when the police arrived also supports the theory that these men
do not regard the assaults as criminal behavior.
Latino suspects had the highest scores in cohabiting, alcohol use, head/neck
injuries, and victim desiring arrest. They had the lowest scores in age, income,
and stalking/harassing the victim (See Table 9b). The strong connection between
267
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
alcohol use, machismo, and domestic violence for Latinos lends support to the
findings of Welland-Akong (1999). That study was a qualitative analysis of 12
Mexican immigrant men who were court ordered to domestic violence treatment.
All 12 strongly emphasized the presence of alcohol abuse and strong rigid male
gender roles. Also, in accord with her study, my experience with Latino
perpetrators is that they respond to a respectful and empathic approach. There is a
need to focus with these men on alcohol abuse, male gender roles, parenting,
ethnic and gender discrimination, and how domestic violence is justified within
the spiritual framework of group members. Latino clients in the intervention
groups that I facilitate initially don’t seem to appreciate that they cannot be good
fathers if they abuse the mothers of their children. Also, because these men are
generally younger when they perpetrate domestic violence, prevention efforts
need to begin earlier.
Income Analyses
Income analyses showed that higher income suspects are more likely to be
present when the police arrive, but less likely to inflict a physical injury,
particularly a head/neck injury or to punch their victims. When they do physically
assault the victim the severity of assault is generally less. Case processing, other
than at the law enforcement level, showed significant results only when the
sample was divided at the $70,000 median family income level. Here cases being
sent to the prosecutor, filings, and convictions were significantly lower for those
in the $70,000 and above category. The results of a preliminary hearing were also
268
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
significantly different according to income level with guilty pleas being inversely
correlated with income and charge dismissed positively correlated with income.
For those suspects who were convicted of a 273.5 domestic violence charge,
judges appeared to use some discretion according to the income level of the
defendant with number of years- of probation and number of weeks of batterers’
group being inversely related to income level. Because most Caucasian suspects
fall through the cracks and are not mandated to batterers’ intervention groups
according to how the criminal justice system operates now, mandatory
intervention groups for both Caucasian suspects and victims if the police are
called to the scene would be particularly helpful.
Gender comparisons were most apparent in the fact that 91% of the
suspects were male. Also, female suspects inflicted less severe injuries and were
more likely to admit to the assault. The harm to children in situations of domestic
violence was noted along with the negligible impact that children involved had on
case processing decisions and victim’s desire for arrest. Domestic violence and
child abuse have been treated as separate criminal and legal issues. There is a
need for programs that address these issues simultaneously.
Strengths of the Study
The primary strengths of this study are that it uses quantitative and
qualitative analyses to provide new information about the continuing resistance to
the criminalization of domestic violence. In fact, most incidents fall through the
criminal justice cracks; in my study over 75% of the incidents did not result in
269
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
sentencing. This is particularly disastrous for the most helpless victims, the
children.
Because the data in this study include a broad age and income range and
the cases were obtained from several law enforcement agencies and prosecuted by
different prosecutors, the generalizability of the results is increased. In addition,
the empirical results are supported and clarified by the interview narratives and a
discussion of socio-cultural context. The study adds to what is known about the
differences and similarities among the major racial/ethnic groups regarding
domestic violence. Prior to this study there was very limited data on child
witnesses to domestic violence and how the victim and criminal justice agents
respond where children are present. The study results provide additional
information to legislators, criminal justice agents, and those individuals who work
with victims and perpetrators in clinical settings.
Limitations of the Study
The empirical results were based on information obtained from crime
reports and court dockets. Both sources provide limited information. Suspect’s
occupation and level of education would have contributed to a stronger socio
economic analysis. However, this information was not available from the two
data sources. In addition, prosecutors’ records were not available. According to
Sherman (1998) prosecutors have repeatedly refused to allow careful testing of
their effectiveness. It is likely that these would have contributed valuable
information and insight into those cases referred for prosecution, particularly
270
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
regarding case rejection and dismissal. The 4-year study period was chosen not
only to assess criminal processing in response to changes in legislation, but also to
explore recidivism during the 3-6 year period following the incident. One aspect
of recidivism that has been studied in the literature is re-arrest for domestic
violence. Although I obtained criminal history (rap sheet) information on all
1040 suspects through the end of 2001, it was provided too late to be included. In
addition to providing re-arrest information, the criminal histories would have
provided verification on arrests and convictions prior to the incident examined in
this study. They also give the occupation of the defendant. I intend to add the
600 additional LAPD cases and the criminal histories in the next phase of this
project.
Children
My concern is that not enough research and media attention is paid to the
majority of cases of domestic violence, particularly where children are involved.
I have suggested mandatory counseling for all family members when police are
called. A primary objection to this proposal by many victim advocates is that it
would be tantamount to blaming and punishing the victim. I contend that as long
as most incidents are not reported, as long as criminal justice agents are reluctant
to arrest, prosecute, and sentence perpetrators, and as long as they rely heavily on
the victim’s wishes, there must be a focus on prevention and on educating and
supporting victims after assaults come to the attention of law enforcement. In a
multi-site evaluation of batterer intervention programs Gondolf (1998)
271
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Interviewed 278 women whose partners were enrolled In a program. The majority
of the women did not feel that they needed services although they had been
severely and extensively abused In the past. Without the Involvement of the
victim who decides to remain with her abuser, the programs have limited effect.
The problem Is systemic. The men are not highly motivated to change long
standing patterns of violent behavior. Their continuing with the same partner is
comparable to a drug addict keeping the same company. Recovery is extremely
difficult under these circumstances. The children of these parents remain
unprotected.
Mandatory, state supported domestic violence education at the middle and
high school level, at least, may have a positive effect on future violence. In
addition to education through the public schools, public service announcements
on the radio or television or on billboards can be used to increase public
awareness of the prevalence and seriousness of domestic violence. Research by I.
A. West (2002) confirmed the importance of studying the responses of various
racial/ethnic groups to domestic violence public service campaigns to improve
their effectiveness.
Victim Issues
A controversial issue in domestic violence is that of the responsibility of
the victim for the abuse. Any reference to this has most victim advocates crying
that this is “blaming the victim.” However, a primary factor in the continuation of
domestic violence is the victim’s acceptance of the abuse. If the police are not
272
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
called or if the victim is not desirous of arrest, the criminalization of domestic
violence has minimal impact. Even when there is an arrest, as the data show, the
victim’s wishes are given weight in the decision to file charges and to dismiss the
case. Victims are offered free counseling and support; however, few take
advantage of these resources. Publicly supported aid to battered women is more
readily available to women who are willing to leave the relationship, in part
because of the belief that there is no effective way to help these women if they
remain with their abusers. Another strong belief is that arrest and prosecution
cannot protect the victim if she stays in the relationship.
Outreach efforts to change the prevalence of victim reticence are
increasing in most states. California and other states have provisions to mandate
counseling for victims who refuse to testify in court. The California Code has a
provision, added to the Code of Civil Procedure in 1991, for mandating
attendance at “a victims’ support group meeting for up to 72 hours [Cal. Civ.
Proc. Code 1219 ].
In a finding of contempt for a victim of domestic violence who refuses to
testify, the court shall not incarcerate the victim, but may require the
victim to attend up to 72 hours of a domestic violence program for victims
or require the victim to perform up to 72 hours of appropriate community
service, provided that in a subsequent finding of contempt for refusing to
testify arising out of the same case, the court shall have the option of
incarceration pursuant to subdivision (a).
Under provisions for the determination of custody decisions California
law stipulates that “The court may require parents or any other party involved in a
custody or visitation dispute, and the minor child, to participate in outpatient
273
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
counseling. . .for not more than one year. . In part, this requirement is
provisional on the history of domestic violence, as defined in Section 6211 of the
Penal Code, within the previous five years involving the parents, the child, or any
other party seeking custody or visitation rights and the child (See California
Family Code 3190). A program in Orange County California now requires that
women attend 16 sessions of domestic violence counseling before they can have a
restraining order removed by the court.
Weitzman (2000) interviewed women who demonstrated the importance
of outside support. More than half of the participants wished that someone had
labeled their husband’s behavior as abuse or been supportive during difficult
periods. Eighty-six percent saw that once their isolation was broken, they began
to see a way out of the abuse.
somebody that I trusted to be there, to tell me truthfully what was going
on, to give me more...to talk me through that. Sally says: ‘I wish
someone would have told me to leave him, walk away, and that was if. .
.Yolande found it immeasurably helpful when her therapist finally
acknowledged the abuse and : ...he said, ‘Get out. Get out now. He’s
going to hurt you...If you can’t get out for you, get out for your child.’. .
.And then I literally (left and) got home (to my family). . .Talk. Talk to
other people, talk to therapists, talk to the girl who works next to you at
work, so that you understand that what you’re living through isn’t normal
(p. 155).
Victims want the violence to stop. They believe that the batterer has a
problem controlling his anger (Walker, 1985), or “If only he would stop drinking,
he wouldn’t be violent.” When the criminal justice system becomes involved
there is the hope that the arrest/incarceration/group intervention will stop the
274
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
violence. They often want the criminal justice system to “do something” to end
the abuse. However, there is a limit to what the criminal justice system can
accomplish if agents continue to fail to arrest, charge, and sentence batterers when
the victims are resistant.
Interventions are needed to educate the woman that:
1. in most cases the abuse becomes more frequent and more severe, the
perpetrator does not stop unless the woman commits herself to leaving the
relationship if the abuse continues or the law holds him accountable.
2. with each assault she becomes weaker, and the perpetrator loses more
respect for her
3. long term damage to the children is well documented
4. the relationship bond under conditions of abuse is destructive to all
parties involved, including the perpetrator
5. her situation is far from unique, she has viable options, and there is
support
If the victim cannot end the abuse within the context of the relationship,
she needs help to escape it. Programs are available to help the woman:
1. break her isolation
2. tell her story to listeners who will be sympathetic and not judgmental
3. recognize what constitutes abuse and normalize common traumatic
4. become aware of the consequences of the abuse to herself and her children
5. become re-aware that she has options gain insight into her internal conflict and
resistance to change
275
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
6. regain a sense of personal power to begin to break this addictive and
destructive bond
If the victim fails to take advantage of these programs the state may
intervene and mandate participation to protect the children. Such state
intervention is decidedly paternalistic. With strong opposition to mandatory,
arrest and prosecution of the batterer, in part because they “re-victimize” the
victim (L. Mills, 1999), the widespread use of such state power seems unlikely in
the near future. Since perpetrators, victims, and criminal justice agents tend to
minimize the extent of the harm, further research into the possibility and
effectiveness of mandated counseling for all domestic violence victims is
indicated. Brandt (2002) analyzed the client records of 295 battered women who
utilized the services of a non-shelter, community-based, domestic violence
intervention program in an urban Ohio city and found statistically significant
differences among subgroup membership according to personal and
environmental characteristics and increased safety at case closure. Such studies
inform victim advocates how to improve the effectiveness of these programs.
Another significant factor in freeing victims of domestic violence is the
financial independence of the victim. Weissman (2001, p. 1159) defines real and
immediate relief as the ability to “get a protection order that gives her exclusive
use of the home, custody of her children, child support, and the sole set of keys to
the family car.” Cole and Buel (2000) review the nature of the problem of
ensuring safety and financial security for battered women and their children.
276
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
The underreporting of domestic violence makes calculating the cost to
individuals, families, organizations, and businesses difficult. Women fail to
report for a number of reasons. Some actually are unaware they are being abused
(M. A. Dutton, 1992). It is difficult for women to accept that they are in an
abusive relationship, even more difficult to report their partners to the police.
There is the denial, minimizing, self-blame, and shame. They are afraid of
reprisal and/or don’t want the perpetrator to get into trouble with the law. Victims
are most likely to be receptive to help and desirous of prosecution shortly after an
acute battering incident. When they do call for help, they still usually have mixed
feelings toward their abuser. They may want an arrest, but then write to the judge
and/or prosecutor for leniency or to deny their original statement. Research
suggests that women whose partners are enrolled in a batterer’s intervention
group are likely to have a false sense of security (Busch & Robertson, 1994); for
this reason alone, it is important for victims to be receiving support services while
the perpetrator is in the intervention group. Leaving an abusive relationship is
usually a long process, seldom linear; and leaving does not necessarily guarantee
safety (Jacobson, Gottman, Gortner, Bums, & Shortt, 1996). Abuse may escalate
when a woman initiates a separation. Her risk of being murdered is greatest after
separation (Heise, 2000).
Financial Cost to Society
Domestic violence is a public harm. Although the most insidious
consequences are lives damaged, there are also tremendous financial costs to
277
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
society. Increased absenteeism, lost productivity, Increased threats and actual
assaults on the job, and health care costs that are attributable to domestic violence
comprise an estimated annual cost to employers of $3 billion to $5 billion
annually (Gemignani, 2000). Abusive husbands or boyfriends commit
approximately 13,000 incidents of domestic violence in the workplace every year
(Melconian, 2001). Approximately 5% of U.S. businesses have domestic
violence policies (Corporate Alliance to End Partner Violence). A 1998 General
Accounting Office report said that between l A and l A of domestic violence victims
have lost a job because of the violence. Between 35% and 56% of employed
battered women have been harassed by their abusers at work (Schafer, 2001).
According to a recent study by the U.S. Government Accounting Office, between
33% and 46% of battered women report that at some point in their relationship
their abusers had prevented them from working (Melconian, 2001).
Research on how various criminal control activities such as arrest,
prosecution, and sentencing are affected by legal, psychological, and social
characteristics of individuals is increasing (Liska, Markowitz, Whaley, & Bellair,
1999). My focus on race/ethnicity and class differences In the nature and
prosecution of domestic violence reveals distinct issues and factors impacting the
complexity of universal treatment of domestic violence. It closes current gaps in
the literature and contributes to improved criminal justice intervention strategies
and social services for diverse sections of a population and the development of
greater screening initiatives utilized by clinicians to recognize abuse. Whatever
278
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
the culture, domestic violence is still about power and control, and perpetrators
using whatever excuses they can to blame the victims for the abuse.
Recommendations
Table 9c lists the recommendations tied to this study.
T able 9c
Study Recommendations
Recommendation Findings From This Study
Intervention whenever children are involved. Neither the victim nor the
responding officers, the
prosecutor, nor the judge
appear to take the harm done
to children seriously.
Mandatory counseling for all parties involved. Most of the incidents are not
reported, criminal justice
agents are reluctant to arrest,
prosecute, and sentence
perpetrators, and they
continue to rely heavily on
the victim’s wishes.
Mandatory prosecution when children
are involved and there is a history of
domestic violence.
Half of the couples in
the sample had children in
common, and children
witnessed 34% of the
assaults. In more than 50%
of the cases where there were
children in common, a
history of domestic violence
was noted in the crime report.
The perpetrator in only 9% of
these cases completed a 52
279
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
week batterers intervention
program.
The use of video or at least audiotaping
of the victim’s statement to the responding
officers.
Future research on the suspect and victim
should be conducted simultaneously.
The compelling evidence
would reduce the chance that
a charge would not be filed
due to victim’s refusal to
cooperate.
The problem is systemic.
Part of the variability in
variability in incidents lies in
the couple dynamic.
The criminal justice system should follow
through in those cases where perpetrators are
gone on arrival.
Being gone on arrival is a
significant negative predictor
of criminal justice processing
Prevention efforts need to be earlier, particularly
for Latinos.
Most criminal domestic
violence incidents occur
during late adolescence
through young adulthood.
Latino groups need to focus on the problem
of alcohol in relationships and the
corruption of machismo.
Here high rates of alcoholism
are tied to machismo which is
used to justify abuse and
control.
More attention at the prosecution level is
needed to determine the primary
aggressor when there are dual arrests.
Domestic violence and child abuse have been
treated as separate criminal and legal issues.
There is a need for programs that address
these issues simultaneously.
The cases are dropped when
both parties are arrested.
The harm to children in
situations of domestic
violence was noted along
with the negligible impact
that children involved had on
280
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
processing decisions and
victim's desire for arrest.
Mandatory, continuing, state supported
domestic violence education at the middle
and high school level, at least.
This is needed to combat the
culture of resistance to
criminalization and the
continued acceptance of
domestic violence doc
umented in this study.
Mandatory counseling for victims. With the failure of the
criminal justice system to
prosecute and women’s
continued acceptance of
abuse there is little chance of
change.
Periodic review of criminal justice practice Continued substantial
is necessary, particularly in the prosecution discretion, particularly in
of these cases. the prosecutor's office, due
to failure to appreciate the
seriousness of domestic
violence and the ability of the
criminal justice system to
make a difference.
The Problem Still
Decades of research consistently support the criminalization of domestic
violence. However, increasing penalties without the certainty of full prosecution
has minimal deterrent effect on deviant behavior. Clark (1987) indicates that the
likelihood of apprehension and conviction in domestic violence cases could be
nearly 100%. Given that the highest estimate of reported domestic violence is
281
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
20% and less than 25% of those cases result in sentencing, there is a need for
greater efforts to address the majority of cases, those that fall through the cracks.
Political and social policy impact how battered women apprise their
situation, whether they remain silent or seek assistance. When victims fail to
report abuse they do so because of perceived losses and perceived lack of support.
Men who chronically abuse their partners seldom seek help. When they are
forced to by the criminal justice system, sustained, long-term interventions are
required. Judges are still sentencing defendants with anger problems to 8 or 12-
week sessions when such short-term programs are ineffective. Even with a 52
week program, it may take half of the sessions to overcome strong resistance to
change. In spite of the progress made during the last quarter of the 20th century,
most participants involved—victims, perpetrators, and criminal justice agents—
minimize the severity of the problem and its impact on society. The criminal
justice response to domestic violence is plagued by a cultural history of
minimizing and dismissing family violence and violence against women. A belief
exists that prosecution is disproportionate to the seriousness of the crime.
Blatant sexist attitudes and expressions have been removed from penal
codes. The laws to protect women and children exist. There is a public
perception that the state is committed to ending domestic violence. Yet, in reality,
there is limited institutional accountability. The state continues to condone acts of
violence by failing to arrest, charge, and sentence perpetrators. The federal
government has taken the lead and states have complied by changing the penal
282
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
codes to reflect a commitment to curbing domestic violence. In practice at the
local level most cases are disregarded. Periodic review of criminal justice
practice is necessary.
No major social change follows an uninterrupted linear path. When long
standing accepted societal attitudes and practices, such as how? women should be
and are treated, are questioned and attacked, there is continual resistance which
obstructs change in complex and unforeseeable ways. The reeducation of victims,
perpetrators, the general public, and agents of criminal justice is long and
circuitous, involving significant structural changes. The continuing debates about
domestic violence as a private or a public concern, the relative effectiveness of
criminal or therapeutic responses, how to protect and strengthen victim, how to
protect the rights of defendants and insure due process, what relevance does
domestic violence have in legal decisions regarding divorce, child custody and
visitation—these at times appear irresolvable. Gender bias is still a serious
problem in state and local criminal and civil justice systems. Our ways of
understanding the matter are clouded by centuries of firmly held beliefs.
Foucault replaces the revolutionary paradigm of the past with one that is
personal and localized. It is not appealing to those who expect great movement in
a short time. However, it is, with a focus on personal responsibility and on the
manageable at the micro level, in a sense, more realistic. There is no one unified
force or social construct that explains the problem of domestic violence, or the
283
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
fact that even with more than 30 years of public attention to the problem we are
only marginally closer to a solution.
Foucault (1988) offered hope:
My optimism would consist...in saying that so many things can be
changed, fragile as they are, bound up more with circumstances than
necessities, more arbitrary than self-evident, more a matter of complex,
but temporary, historical circumstances than with inevitable
anthropological constructs... ” (p. 156)
Societal response to domestic violence is evidenced in multiple local struggles,
the results of which affect broader structures. The parts of the system change;
and, in time, the system changes. Informed and directed change requires inquiry.
A sociological perspective takes a personal problem such as domestic violence
and examines it as a public issue upon which public policy can have an impact.
The founders of sociology envisioned that it would influence and guide change in
very practical matters. For sociological studies to be more than descriptive, for
them to impact social policy, they must contribute to an existing body of
cumulative knowledge which explains how the world works, why, and how it can
be changed. Awareness of the multiple resistances to problem solutions will
lead to improved alternative strategies.
284
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
BIBLIOGRAPHY
Acikalin, T. D. (2000). Debunking the dichotomy of nonintervention:
The role of the state in regulating domestic violence. Tulane Law Review. 74,
1045.
Aichroth, D. A. (1996). Interview.
Ainsworth, B. (1995, March 22). Strange bedfellows back domestic
violence bill. The Recorder, p.3.
Allard, S. A. (1991). Rethinking battered woman syndrome: A black
feminist perspective.” UCLA Women’s Law Journal.
Allen, F. A. (1964). The borderland of the criminal law: Problems of
"socializing" criminal justice. In The borderland of criminal justice; Essays in
law and criminology. Chicago: University of Chicago Press.
Allen, F. A. (1974). The crimes of politics: Political dimensions of
criminal justice. Cambridge: Harvard University Press.
Almeida, R., Woods, R., Messineo, T., Font, R. J., & Heer, C. (1994).
Violence in the lives of the racially and sexually different: A public and private
dilemma. Journal of Feminist Family Therapy. 5(3-4), 9-126.
Alonso, A. M. (1995). Rationalizing patriarchy: Gender, domestic
violence, and law in Mexico.” Identities: Global Studies in Culture and Power.
2(1-2), 29-47.
Amaro, H., Fried, L. E., Cabral, H. & Zuckerman, B. (1990). Violence
during pregnancy and substance abuse. American Journal of Public Health.
80(5), 575-579.
American College of Physicians. (1995). Preventing firearm violence: A
public health imperative. Annals of Internal Medicine. 122(4) 311-313.
American College of Physicians. (1998). Firearm injury prevention.
Annals of Internal Medicine. 128(3) 236-241.
Ammons, L. L. (1995). Mules, madonnas, babies, bathwater, racial
imagery and stereotypes: African-American woman and the battered woman
syndrome. Wisconsin Law Review. 5, 1003.
285
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Asbury, J. (1999). What do we know now about spouse abuse and child
sexual abuse in families of color in the United States? In R. L. Hampton (Ed.),
Family violence. (2n d ed., pp.148-167). Thousand Oaks, CA: Sage.
Avakame, E. F. (1999). Intergenerational transmission of violence, self-
control, and conjugal violence: A comparative analysis of physical violence and
psychological aggression. Violence and Abuse Abstracts, 5(2).
Baca Zinn, M. (1992). Chicano men and masculinity. In M. S. Kimmel
& M. A. Messner (Eds.), Men’s lives (2n d ed.). New York: MacMillan.
Bachman, R., & Saltzman, L. E. (1995). Violence Against Women:
Estimates From the Redesigned Survey. Special Report, NCI 154348.
Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics.
Balaz, E. (1964). Chinese civilization and bureaucracy: Variations on a
theme. New Haven, CT: Yale University Press.
Balos, B., & Trotsky, I. (1988). Enforcement of the domestic abuse act in
Minnesota: A preliminary study. Law And Inequality, 6(83-125).
Baneqee, N. (Nov. 30, 2000). Fighting back against domestic violence:
Asian American women organize to break the silence. AsianWeek.
Bard, M., & Sangrey, D. (1979). The crime victim’s book. New York:
Basic Books.
Bardach, E. (1977). The implementation game: What happens after a bill
becomes law. Cambridge, MA: MIT Press.
Barnett, O. W., & LaViolette, A. D. (1993). ft could happen to anyone.
Newbury Park: Sage Publications.
Barnett, O. W., Miller-Perrin, C. L., & Perrin, R. D. (1997). Family
violence across the lifespan: An introduction. Thousand Oaks, CA: Sage
Publications.
Beggs, C. E. (June 4, 1998). Oregon boosts penalty for abuse if it
happens in front of children. Chicago Daily Law Bulletin, p. 1.
Belknap, J. (1995). Law enforcement officers’ attitudes about the
appropriate responses to woman battering. International Review of Victimology.
4, 47-62.
286
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Berk, R. A., & Newton, P. (1985). Does arrest really deter wife battery?
an effort to replicate the findings of the Minneapolis spouse abuse experiment.
American Sociological Review. 50, 253-262.
Bernstein, R. J. (1994). Foucault: critique as a philosophical ethos. In
M. Kelly (Ed.), Critique and power: Recasting the Foucault/Habermas debate.
Cambridge, MA: The MIT Press.
Bhaumik, M. (1988). A study of wife abuse in two cultures: The
American and the Asian American. Unpublished doctoral dissertation, University
of Southern California.
Bigomia, L. (2000). Part two: Domestic violence: Alternatives to
traditional criminal prosecution of spousal abuse. Journal of Contemporary Legal
Issues, 11, 57.
Blum, H. P. (1982). Psychoanalytic reflections on the ‘beaten wife
syndrome.' In M. Kirkpatrick (Ed.), Women’s sexual experiences: exploration of
the dark continent. New York: Plenum.
Blumberg, A. S. (1979). Criminal justice: Issues and ironies (2n d ed).
New York: Franklin Watts.
Bonczar, T. P., & Beck, A. J. (1997). Lifetime likelihood of going to
state or federal prison. Washington, DC: U.S. Department of Justice.
Bowker, L. H. (1983). Beating wife-beating. Lexington, MA: Lexington.
Boxall, B., & Muir, F. M. (July 11, 1994). Prosecutors taking harder line
toward spouse abuse violence. Los Angeles Times, Al.
Brandt, J. C. (2002). Towards an empirical typology of battered women:
differentiating subgroups and service outcomes of female survivors of domestic
violence_ (Doctoral dissertation, The Ohio State University, 2002) Dissertation
Abstracts International. 63, 362.
Braun, J. C., & Chao, H. M. (1978). Attitudes toward women; a
comparison of Asian-born Chinese and American Caucasias. Psychology of
Women Quarterly. 2(3), 195-201.
Brenneke, A. (1992). Civil rights for battered women: Axiomatic and
ignored. Law & Inequality. 11. 1.59.
287
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Britton, D. M. (2000). Feminism in criminology: engendering the
outlaw. The Annals of The American Academy of Political and Social Science.
571, 57.
Broman, C. L. (1997). Race-related factors and life satisfaction among
African-Americans. Journal of Black Psychology. 23, 36-49.
Browne, A. (1987). When battered women kill. New York: Free Press.
Buel, S. M. (1988). Mandatory arrest for domestic violence. Harvard
Women’s Law Journal. 11, 213+.
Buel, S. M. (1998). Family violence and the health care system:
Recommendations for more effective interventions. Houston Law Review. 35,
109.
Bumpass, L. L., & Lu, H. (1999). Trends in cohabitation and
implications for children’s family contexts in the U.S.. CDE Work. Pap. No. 98-
15. Cent. Demography Ecol., Univ. Wisconsin, Madison.
Busch, R., & Robertson, N. (1994). Ain’t no mountain high enough (to
keep me from getting to you), an analysis of the Hamilton abuse intervention pilot
project. In J. Stubbs (Ed.), Women, Male Violence & Law. 50.
Buzawa, E. S., Austin,T. L., & Buzawa, C. G. (1995). Responding to
crimes of violence against women: Gender differences versus organizational
imperatives. Crime and Delinquency. 41(4), 443-466.
Buzawa, E. S., Hotaling, G., & Klein, A. (1998). The response to
domestic violence in a model court: Some initial findings and implications.
Behavioral Sciences and the Law. 16,1-22.
Buzawa, E. S., & Buzawa, C. G. (1990). Domestic violence: The criminal
justice response. Newbury Park, CA: Sage.
Buzawa, E. S., & Buzawa, C. G. (Ed.). (1996a). Do arrests and restraining
orders work? Thousand Oaks, CA: Sage.
Buzawa, E. S., & Buzawa, C. G. (1996b). Domestic violence: The
criminal justice response (2n d ed.). Thousand Oaks, CA: Sage.
288
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Cahn, N. R. (1991). Civil images of battered women: The impact of
domestic violence on child custody decisions. Vanderbilt Law Review, 44 1041,
1046.
California Department of Justice. Office of the Attorney General.
Criminal Justice Statistics Center. Domestic Violence-Related Calls for
Assistance, 1986-2000. Los Angeles County.
Capurso, T. J. (1999). How judges judge: theories on judicial decision
making. University of Baltimore School of Law. The Law Forum. Summer/Fall,
1999.
Carlson, C., & Nidey, F. J. (1995). Mandatory penalties, victim
cooperation, and the judicial processing of domestic abuse assault cases. Crime &
Delinquency, 41(1), 132-149.
Carrillo, R., & Goubaud-Reyna, R. (1998). Clinical treatment of Latino
domestic violence offenders. In R. Carrillo & J. Tello (Eds.), Family violence
and men of color (pp. 53-73). New York: Springer Publishing Company.
Carrillo, R., & Tello, J. (Ed.). (1998). Family violence and men of color:
Healing the wounded male spirit. New York: Springer Publishing Company.
Cascardi, M., O'Leary, K. D., & Schlee, K. A. (2000). Co-occurrence and
correlates of posttraumatic stress disorder and major depression in physically
abused women. Violence and Abuse Abstracts, 6(1).
Casper, L.M., & Cohen, P. N. (2000). How does POSSLQ measure up?
Historical estimates of cohabitation. Demography, 37(2), 237.
Cazenave, N., & Straus, M. A. (1979). Race, class network
embeddedness and family violence: A search for potent support systems. Journal
of Comparative Family Studies, 10, 281-299.
Ceballo, R., Dahl, T. A., Aretakis, M. T., & Ramirez, C. (2001). Inner-
city children’s exposure to violence: how much do parents know?^ Journal of
Marriage and Family, 63(4), 927-940.
Chambers, S. C. (1999). "To the company of a man like my husband, no
law can compel me:" The limits of sanctions against wife beating in Arequipa,
Peru. Journal of Women’s History, 11(1), 31-52.
2 8 9
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Chaney, C. K., & Saltzstein, G. (1998). Democratic control and
bureaucratic responsiveness; the police and domestic violence. American Journal
of Political Science. 42(3), 745 (24).
Chavira, R. (Nov. 1, 2000). Beer and machismo. Los Angeles Times,
Home Edition. SECTION: Metro; Part B; Page 8; Letters Desk
Clark, N. L. (1987). Crime begins at home: Let’s stop punishing victims
and perpetuating violence. William & Mary Law Review. 28, 263.
Coil, K. M. (1998). Perceived Latino cultural contributors to staying in
abusive relationships. (Master in Social Work dissertation, California State
University Long Beach, 1998) Masters Abstracts International. 37, 0125.
Coker, D. (2001). Crime control and feminist law reform in domestic
violence law: a critical review. Buffalo Criminal Law Review. 4, 801.
Cole, P., & Buel, S. M. (2000). Safety and financial security for battered
women: Necessary steps for transitioning from welfare to work. Georgetown
Journal on Poverty Law & Policy, 7, 307.
Comas-Diaz, L. (1987). Feminist therapy with Hispanic women: Myth
or reality? Women and Therapy, 6(4), 39-60.
Connell, R. W. (1987). Gender and Power. Cambridge: Polity.
Coukos, P. (1998). Outlawing domestic violence. Civil Rights Journal.
3(1), 29.
Courtnenay, W. H. (1998). College men’s health: An overview and a call
to action. Journal of American College Health. 46, 279-290.
Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity
polictics, and violence against women of color. Stanford Law Review, 43,1241.
Crowley, J. E., Sigler, R. T., & Johnson, I. M. (1990). Variations across
agency types in perceptions of seriousness of family abuse. Journal of Criminal
Justice. 18(6), 519-531.
Dahrendorf, R. (1958). Out of utopia: Toward a reorientation of
sociological analysis. American Journal of Sociology. 64, 115.
290
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Dakis, L. (1995). Dade county's domestic violence plan: An integrated
approach. Trial, 31(2).
Davidson, H. (1994). The impact Of Domestic Violence On Children, A
Report To The President Qf The American Bar Association.
Davis, K. C. (1969). Discretionary justice: A preliminary inquiry. Baton
Rouge: Louisiana State University Press.
Davis, R. C., & Smith, B. (1995). Domestic violence reforms: empty
promises or filled expectations? (Special Issue: Regarding Violence Against
Women). Crime and Delinquency. 41(4), 541-552.
Davis, R. C., Lurigio, A., & Skogan, W. (Eds.). (1997). Victims of crime:
Problems, policies, and programs (2d ed). Thousand Oaks, CA: Sage.
Davis, R. C., Smith, B. E., & Stanton, S. (February 23, 1997). For many
abuse victim, fear, sense of isolation block exit. Sacramento Bee.
Del Valle, T. (May 1, 1997). Legal community must address domestic
violence in urban areas. New York Law Review. Law Day 1997. Puerto Rican
Bar Association.
Dobash, R. E., & Dobash, R. P. (1979). Violence against wives: A case
against the patriarchy. New York: Free Press.
Dobash, R. E., & Dobash, R. P. (1992). Women, violence, and social
change. London: Routledge.
Dolan, R. (1987). Practices and attitudes toward domestic violence.
Journal of Police Science and Administration. 14(3), 187-192.
Duggan, P. (Sept. 17, 1987a). Fedders says wife provoked abuse, lacked
compassion. The Washington Post. Final Edition.
Duggan, P. (Oct. 17,1987b). Fedders wins share of ex-wife’s book;
decree also reduces former SEC official’s alimony payments. The Washington
Post, Final Edition.
Duggan, P. (Dec. 9, 1987c). Fedders wants to end alimony. Former SEC
official says he can’t pay $500 monthly. The Washington Post. Final Edition.
291
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Duggan, P. (Feb. 2,1988). Fedders loses share of book by ex-wife,
Montgomery judge blames him for abuse. The Washington Post.
Dunford F. W., Huizinga, D. & Elliott, D. S. (1990). The role of arrest in
domestic assault: the Omaha police experiment. Criminology, 28(1), 183.
Durham, G. L. (1998). The domestic violence dilemma: How our varied
and ineffective responses reflect our conflict views of the problem. Southern
California Law Review. 71, 64.
Dutton, D. (1987). The criminal justice response to wife assault. Law
And Human Behavior, 11, 189-206.
Dutton, D. (1988). The domestic assault of women: Psychological and
criminal justice perspectives. Boston: Allyn & Bacon.
Dutton, D. with Golant, S. K. (1995). The batterer: A psychological
profile. New York: Basic Books.
Dutton, D. (1998). A scale for measuring propensity of abusiveness.
Journal of Family Violence. 10(2), 203.
Dutton, M. A. (1992). Assessment and treatment of post-traumatic stress
disorder among battered women. In Empowering and healing the battered
woman: A model for assessment and intervention. New York: Springer.
Easterbrook, G. (April 26,1999). Run on sentencing: How the affluent
got an exemption in the war on crime. The New Republic.
Edleson, J. L. (1999). Children's witnessing of adult domestic violence.
Journal of Interpersonal Violence. 14, pp. 839-871.
Edwards, S. M. (1989). Policing domestic violence: women, the law, and
the state. Newbury Park: Sage.
Edwards, S. M. (2000). Reducing domestic violence.. .what works? Use
of the criminal law. Crime Reduction Research Series. University of
Buckingham.
Emery, R. E. (1989). Family violence. American Psychologist. 44. 321-
328.
2 9 2
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Epstein, D. (1999). Effective intervention in domestic violence cases:
Rethinking the roles of prosecutors, judges, and the court system. Yale Journal of
Law & Feminism, 3(4).
Evans, L., Acosta, F., Yamamoto, J., & Hurwicz, M. (1986). Patient
requests: Correlates and therapeutic implications for Hispanic, Black, and
Caucasian patients. Journal of Clinical Psychology. 42(1), 213-221.
Evans, P. (1996). The verbally abusive relationship: how to recognize it
and how to respond (Expanded 2nd Edition). Holbrook, MA: Adams Media
Corporation.
Fagan, J. (1989). Cessation from family violence: deterrence and
dissuasion. In L. Ohlin & M. Tonry (Eds.), Family violence. Vol. 11 of Crime
and Justice: Annual Review of Research. Chicago: University of Chicago Press.
Fagan, J. (1990). Contributions of research to criminal justice policy on
wife assault. In D. J. Besharov (Ed.), Family violence: research and public
policy issues. Washington, D.C.: The Aei Press.
Fagan, J. (1996). The criminalization of domestic violence: promises and
limits. NIJ Research Report.
Fagan, J., Friedman, E., Wexler S., & Lewis, V. (2000). National Family
Violence Evaluation. Final Report (Vol. 1). San Francisco: Ursa Institute.
Fairbank, J.K., & Reischauer, E. (1960). East Asia: The great tradition.
Boston: Houghton Mifflin.
Fals-Stewart, W. (2003). The occurrence of partner physical aggression
on days of alcohol consumption: A longitudinal diary study. Journal of
Consulting and Clinical Psychology. 71(1), 41-52.
Fantuzzo, J. W., & Mohr, W. K. (1999). Prevalence and effects of child
exposure to domestic violence. Future of Children. 9, 21.
Fedders, C. O., & Elliott, L. (1987). Shattered dreams: The story of
Charlotte Fedders. New York: Harper & Row.
Ferraro, K. J., & Pope, L. (1993). Irreconcilable differences: Battered
women, police, and the law. In Z. Hilton (Ed.), Legal responses to wife assault:
Current trends and evaluation. Newbury Park: Sage.
293
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Field, J. K., & Cook, K. G. (1994). “But he never hit the kids:" Domestic
Violence as Family Abuse. Michigan Bar Journal. 73, 922.
Field, M., & Field, H. (1973). Marital violence and the criminal process:
Neither justice nor peace. Social Service Review. 47(2). 221-240.
Fields, M. D. (1994). The impact of spouse abuse on children and its
relevance in custody and visitation decisions in New York state. Cornell Journal
of Law & Public Policy. 3, 221.
Fineman, M., & Mykitiuk, R. (Eds.). (1994). The public nature of private
violence: The discovery of domestic abuse. New York: Routledge.
Fiorello, J. L. (2002). A qualitative study of women who leave abusive
relationships. (Psy.D. dissertation, Alliant International University, 2002)
Dissertation Abstracts International, 62(12B). 5961.
Fisher, D. (1999). Preventing childhood trauma resulting from exposure
to domestic violence. Preventing School Failure. 44(1), 25-7.
Fitzpatrick, K. M., & Boldizar, J. P. (1993). The prevalence and
consequences of exposure to violence among African-American youth. Journal of
the American Academy of Child Adolescent Psychiatry, 32, 424-430.
Follingstad, D.R., Rutledge, L. L., Berg, B. J., Hause, E. S., & Polek, D. S.
(1990). The role of emotional abuse in physically abusive relationships. Journal
of Violence. 5(2), 107-120.
Ford, D. A. (1983). Wife battery and criminal justice: A study of victim
decision-making. Family Relations. 32, 463-475.
Ford, D. A. (1987). The impact of police officers' attitudes victims on
the disinclination to arrest wife beaters. Paper presented at the Third National
Conference for Family Violence Researchers. University of New Hampshire,
Durham.
Ford, D. A. (1993). The Indianapolis domestic violence prosecution
Experiment. Final Report. Grant 86— IJ—CX-0012 to the National Institute of
Justice Indianapolis, IN: Indiana University.
Ford, J., Rompf, E. L., Fargher, T., Weisenfluh, S. (1995). Case outcomes
in domestic violence court: Influence of judges. Psychological Reports, 77, 587-
594.
294
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Forell, C. (1991). Stopping the violence: Mandatory arrest and police tort
liability for failure to assist battered women. Berkeley Women’s Law Journal. 6,
215-221.
Foucault, M. (1970). The order of things: An archeology of the human
sciences. New York: Random House.
Foucault, M. (1979). Interview with Lucette Finas. In M. Morris & P.
Patton (Eds.), Michel Foucault: Power, truth and strategy. Sydney: Feral
Publications.
Foucault, M. (1984). The Foucault reader (1st ed.). P. Rabinow (Ed.).
New York: Pantheon Books.
Foucault, M. (1986). The care of the self. (R. Hurley, Trans.). New
York: Pantheon.
Foucault, M. (1988). Politics, philosophy, culture: interviews and other
writings. 1977-1984. L. D. Kritzman (Ed.). (A. Sheridan and others, Trans.).
New York: Routledge.
Foucault, M. (1994). Ethics: Subjectivity and truth. P. Rabinow (Ed.).
(R. Hurley et ah, Trans.) New York: The New Press.
Foucault, M. (1995). Discipline and punish. (Second Vintage Books
Edition). (A. Sheridan, Trans.). New York: Random House.
Frohmann, L. (1991). Discrediting victims’ allegations of sexual assault:
Prosecutorial accounts of case rejections. Social Problems. 38(2), 213-227.
Fuller, N. (2001). She made me go out of my mind: Marital violence
from the male point of view. Development. 44 (3), 25-29.
Furiya, L. (Oct. 4, 1993). Asian American women's shelters seek to
empower victims of domestic violence," Los Angeles Japanese Daily. P. 1.
Fyfe, J. J., Klinger, D. A., & Flavin, J. M. (1997). Differential police
treatment of male-on-female spousal violence. Criminology. 35(3), 455-473.
2 9 5
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Garbarino, J., Kostelny, K., & Dubrow, N. (1992). Children in dangerous
environments: coping with the consequences of community violence. San
Francisco: Jossey Bass Publishers.
Garbarino, I. (1999). Lost boys: Why our sons turn violent and how we
can save them. New York: Free Press.
Gamer, J., Fagan, J., & Maxwell, C. (1995). Published findings from the
spouse assault replication program: A critical review. Journal of Quantitative
Criminology. 11(1), pp. 3-28.
Gamer, J., & Fagan, J. (1997). Victims of domestic violence. In R. C.
Davis, A. Lurigio, & W. Skogan. (Eds.), Victims of crime: Problems, policies,
and programs (2d ed.). Thousand Oaks, CA: Sage.
Gavison, R. (1992). Feminism and the public/private distinction.
Stanford Law Review. 45, 1.
Gelles, R. J. (1974). The violent home: A study of physical aggression
between husbands and wives. Beverly Hills: Sage Publications.
Gelles, R. J. (1988). Violence and pregnancy: are women at greater risk
of abuse? Journal of Marriage and the Family, 50(3), 841-847.
Gelles, R. J., & Straus, M. A. (1988). Intimate violence: The causes and
consequesces of abuse in the American family. New York: Simon & Schuster.
Gelles, R. J. (1993). Alcohol and drugs are associated with violence—
they are not its cause. In R. J. Gelles & D. R. Loseke (Ed.), Current
controversies on family violence.
Gelles, R. J. (1993). Constraints against domestic violence: How well do
they work? American Behavioral Scientist, 36(5), 575-586.
Gelles, R. J., & Loseke, D. R. (Eds.). (1993). Current controversies on
family violence. Newbury Park, CA: Sage Publications.
Gelles, R. J. (1995). Domestic Violence Factoids. Minnesota Center
Against Violence and Abuse.
Gelles, R. J. (1997). Intimate violence in families (3rd ed.). Thousand
Oaks, CA: Sage.
296
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Gemignani, J. (2000). Missed opportunities in the fight against domestic
violence. Business & Health. 18(9), 29-35.
Gibeaut, 1. (1999). Troubling translations; cultural defense tactic raises
issues of fairness. ABA Journal 85, 93.
Gilligan, J. (1996). Violence: Our deadly epidemic and its causes. New
York: Grosset/Putnam.
Gilmartin, C. (1990). Violence against women in contemporary China.
In J. N. LIpman & S. Harrell (Ed.), Violence in China: Essays in culture and
counterculture. New York: State University of New York Press.
Glaberson, W. (March 5, 2002). Judge rebukes city officials for
removing children from homes of battered women. The New York Times. Late
Edition - Final. Section B; Page 3; Column 1; Metropolitan Desk.
Goelman, D. (May 13, 1996). Seeing the crime but not the criminal.
Legal Times. Section: After Hours; Books, Arts, Leisure.
Goldner, V., Penn, P., Sheinberg, M., & Walker, G. (1990). Love and
violence: gender paradoxes in volatile attachments. Family Process, 29(4).
Gondolf, E. W., Fisher, E., & McFerron, R. (1990). The help-seeking
behavior of battered women: A preliminary analysis of 6,000 shelter interviews.
In E. Viano (Ed.), The victimology handbook: Research, treatment, and public
policy (pp. 113-128). New York: Garland.
Gondolf, E. W. (1998). Service barriers for battered women with male
partners in batterer programs. In Multi-Site Evaluation of Batterer Intervention
Systems. A 30-Month Follow-Up of Court-Mandated Batterers in Four Cities.
Indiana University of Pennsylvania. Mid-Atlantic addiction Training Institute.
Gondolf, E. W. (2001). How batterer program participants avoid re
assault. Violence Against Women, 6 (11), 1204-1222.
Gordon, L. (1989). Heroes of their own lives: The politics and history of
family violence. London: Virago.
Gordon, L. (1993). Women’s agency, social control, and the construction
of ‘rights’ by battered women. In S. Fisher & K. Davis (Ed.), Negotiating at the
margins. New Brunswick, NJ: Rutgers University Press.
297
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Goulding, J. M., Bumam, M. A., Benjamin, B., & Wells, K. B. (1993). Risk
factors for secondary depression among Mexican Americans and Non-Hispanic
Whites: Alcohol use, alcohol dependence, and reasons for drinking. The Journal
of Nervous and Mental Disease, 181, pp. 166-175.
Goulding, J.M ,& Wells, K. B. (1990). Social support and use of mental
health services by Mexican Americans and non-Hispanic Whites. Basic and
Applied Social Psychology, 11, 443-458.
Greenfeld, L. A. (1998). Violence by intimates: analysis of data on
crimes by current or former spouses, boyfriends, and girlfriends. Washington,
B.C.: Bureau of Justice Statistics.
Guido, M., & Rafferty, C. (Sept. 28,1999). A matter of money, race
background of batterers. San Jose Mercury News, p. 1 A, Morning Final
Edition.
Gwinn, C. G., J.D., & O’Dell, Sgt. A. (1993). Domestic violence and
child abuse: stopping the violence: The role of the police officer and the
prosecutor. Western State University Law Review, 20, 1501-1521.
Hagan, J. R. (2001). Can we lose the battle and still win the war?: The
fight against domestic violence after the death of title III of the violence against
women act, DePaul Law Review. 50. 919.
Haddix, A. (1996). Unseen victims: acknowledging the effects of
domestic violence on children through statutory termination of parental rights.
California Law Review. 84, 757.
Hammond, K. M. (1996). Domestic violence victims’ perceptions of
their situation: a cross-cultural study of African American. Latina and Euro-
American women. (M.S.N. dissertation, California State University, Long
Beach, 1996). 6080. Masters Abstracts International. 35, no. 03, (1996): 0709.
Hampton, R. L. (1986). Family violence and homicides in the Black
community: are they linked? In U.S. Department of Health and Human Services,
Report of the Secretary’s Task Force on Black and Minority Health (pp. 69-97).
Washington, DC: Government Printing Office.
Hampton, R. L., & Gelles, R. J. (1994). Violence toward Black women in
a nationally representative sample of Black families. Journal of Comparative
Family Studies, 28(6), 105-119.
298
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Hanna, C. (1996). No right to choose: mandated victim participation in
domestic violence prosecutions. Harvard Law Review, 109 , 1849, 1863.
Hanna, C. (1998). The paradox of hope: the crime and punishment of
domestic violence. William and Mary Law Review. 39(5), 1505-1584.
Hardesty, G. (December 22, 2000). Driver gets 5 years for car chase,
abuse. The Orange County Register.
Harrell, J. P., Merritt, M. M., & Kalu, J. (1997). Racism, stress, and
disease. In R. L. Jones (Ed.), Handbook of tests and measurements for Black
populations. Volume 1. Hampton, VA: Cobb & Henry.
Harrison, L. A., & Esqueda, C. W. (1999). Negative effects of victim
provocation, resistance and race on domestic violence attributions. Poster
Presented at the American Psychological Society Meeting. Denver, Colorado.
Hart, W.J., Ashcroft, J., Burgess, A., Flanagan, N., Meese, C., Milton, C.,
Narramore, C., Ortega, R., & Seward, F. (1984). Attorney General’s Task Force
on Family Vioence. Washington, DC: U.S. Department of Justice.
Hartman, J. L. (1998). Beyond the gatekeepers: court professionals’
responses to municipal domestic violence cases in an urban area. (Doctoral
dissertation, University of Cincinnati, 1998) Dissertation Abstracts International,
60, 2235.
Hass, G. A., Dutton, M. A., & Orloff, L. E. (2000). Lifetime prevalence
of violence against Latina immigrants: Legal and policy implications.
International Review of Victimology, 7(1-3), 93-113.
Healy, K. M., & Smith, C. (1998). Batterer intervention: Program
approaches and criminal justice strategies. Issues and Practices in Criminal
Justice. February, 1998. Washington, D.C.: National Institute of Justice.
Heise, L., Ellsberg, M., & Gottemoeller, M. (1999). Ending violence
against women. Journal of Population Reports. 27(4).
Hendricks, J. S. (1998). Women and the promise of equal citizenship.
Texas Journal of Women & the Law, 8, 51.
Hennekens , C. A. (1991). Healing your life: Recovery from domestic
abuse. Chippewa Falls, WI: ProWriting Services and Press.
299
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Her, E. H. (1990). A phenomenonological explication of shame in a
shame culture: A cross-cultural perspective (China, Taiwan). (Doctoral
dissertation, Southern Illinois University at Carbondale, 1990). Dissertation
Abstracts international. 52, 1571.
Herbers, J. (Dec. 14, 1986). Many immigrants now bypass cities for
suburb. New York Times.
Hill, H.M., & Madhere, S. (1996). Exposure to community violence and
African American children: a multidimensional model of risks and resources.
Journal of Community Psychology. 24, 26-43.
Hillard, P. (1985). Physical abuse in pregnancy. Obstetrics &
Gynecology. 6. 185-190.
Hilton, Z. (1993). Legal responses to wife assault. Newbury Park: Sage.
Hirschel, J.D., Hutchison, I. W., Dean, C. W., Kelley, J. J., & Pesackis, C.
E. (1991). Charlotte Spouse Assault Replication Project: Final Report.
Washington, DC: National Institute of Justice.
Hoctor, M. M. (1997). Comment: domestic violence as a crime against
the state: The need for mandatory arrest in California. California Law Review,
85, 643.
Homant, R. J., & Kennedy, D. B. (1985). Police perceptions of spouse
abuse: A comparison of male and female officers. Journal of Criminal Justice.
13(1), 29-47.
Hondagneu-Sotelo, P. (1992). Overcoming patriarchal constraints: The
reconstruction of gender relations among Mexican immigrant women and men.
Gender & Society. 6(3), 393-415.
Hong, I. J. (1993). Male batterers: An ecosystemic analysis of conjugal
violence in the Korean immigrant family. (Doctoral dissertation, Fuller
Theological Seminary, Pasadena, California, 1993). Dissertation Abstracts
International.
Honig, E., & Hershatter, G. (1988). Personal voices: Chinese women in
the 1980s. Stanford, CA: Stanford University Press.
300
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
hooks, b. (1984). Feminist theory: From margin to center. Boston: South
End.
Hooper, M. (1996). When domestic violence diversion is no longer an
option: What to do with the female offender. Berkeley Women's Law Journal.
6, 168-181.
Hotaling, G. T., & Sugarman, D. B. (1990). Prevention of wife assault.
In R. T. Ammerman & M. Hersen (Eds.), Treatment of family violence: A
sourcebook (pp. 385-405). New York: John Wiley & Sons.
Hughes, H. M. (Aug. 1992). Impact of spouse abuse on children of
battered women: Implications for practice. Violence Update, p. 1.
Inciardi, J. A. (1996). Examining the justice process: A Reader. Fort
Worth, Texas: Harcourt Brace College Publishers.
Jackson, J. S, Brown, T., N., Williams, D. R., Torres, M., Sellers, S. L., &
Brown, K. (1992). Racism And the physical and mental health status of African-
Americans: A thirteen year national panel study. Ann Arbor, Michigan:
University of Michigan, Institute for Social Research.
Jacobson, N., Gottman, J., Waltz, R., Rushe, R., Babcock, J., &
Holtzworth-Munroe, A. (1994). Affect, verbal content, and psycho-physiology
in the arguments of couples with a violent husband. Journal of Consulting and
Clinical Psychology. 62, 9982-9988.
Jacobson, N. S., Gottman, J., Gortner, E., Bems, S., & Shortt, J.W.
(1996). Psychological factors in the longitudinal course of battering: When do the
couples split up? When does the abuse decrease? Violence and Victims, 11(4),
371-392.
Jacobson, N., & Gottman, J. (1998). When men batter women: New
insights into ending abusive relationships. New York: Simon and Schuster.
Jacques, K. N. (1982). Perceptions and coping behaviors of Anglo-
American and Mexican immigrant battered women: A comparative study.
Dissertation Abstracts International, 42, 4933B.
Jaffe, P., Wolfe, D. A., & Wilson, S. K. (1990). Children of battered
women. Newbury Park: Sage.
3 0 1
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Jasinski, J. L., & Williams, L. M. (Eds.). (1998). Partner violence: A
comprehensive review of 20 years of research. Thousand Oaks, CA: Sage
Publications.
Jenkins, E. J., & Bell, C. C. (1997). Exposure and response to community
violence among children and adolescents. In J. D. Osofosky (Ed.), Children in a
violent society. New York: The Guilford Press.
Johnson, I. M., Sigler, R. T., & Crowley, J. (1994). Domestic violence: A
comparative study of perceptions and attitudes toward domestic abuse cases
among social service and criminal justice professionals. Journal of Criminal
Justice, 22(3), 237-248.
Jones, R. (2000). Guardianship for coercively controlled battered
women: Breaking the control of the abuser. Georgetown Law Journal. 88, 605.
Kalmuss, D. (1984). The intergenerational transmission of marital
aggression. Journal of Marriage and the Family. 46(1), 11-19.
Kaufman, K. G., Jasinski, J. L., & Aldarondo, E. (1994). Sociocultural
status and incidence of marital violence in Hispanic families. Violence and
Victims, 9(3), 207-222.
Kaufman, K. G. (1995). Alcohol and Spouse Abuse: Ethnic Differences.
University of New Hampshire (mimeo).
Kemp, A., Green, B. L., Hovanitz, C., & Rawlings, E. I. (1995).
Incidence and correlates of posttraumatic stress disorder in battered women:
Shelter and community samples. Journal of Interpersonal Violence, 10(1). 43.
Kent, L. A. (2001). Addressing the impact of domestic violence on
children: Alternatives to laws criminalizing the commission of domestic violence
in the presence of a child. Wisconsin Law Review. 1337.
Klein, C. F., & Orloff, L. E. (Summer, 1993). Providing legal protection
for battered women: an analysis of state statutes and case law. Hofstra Law
Review, 21, 801.
Kozol, J. (1995). Amazing Grace (1st ed.). New York: Crown.
Landenburger, K. (1989). A process of entrapment in and recovery from
an abusive relationship. Issues in Mental Health Nursing, 10, 209-227.
302
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Langan, P., & limes, C. (1986). Preventing domestic violence against
women. Bureau of Justice Statistics. Washington, DC: US Dept, of Justice.
Langer, T. S. (1969). Psychophysiological symptoms and the status of
women in two Mexican communities. In K. Vytautas (Ed.), Comparative
Perspectives on Social Problems. Boston: Little, Brown.
Langhinrichsen-Rohling, J., Neidig, P., & Thom, G. (1995). Violence in
marriages: Gender differences in levels of current violence and past abuse.
Journal of Family Violence, 19, 159-176.
LaViolette, A. December 17, 1996 Interview.
Le, P. B. (1998). Attitudes of older adult Vietnamese toward domestic
violence. (Masters thesis, California State University, Long Beach, 1998).
Masters Abstracts International. 37 (01), 0129.
Lederman, C. S., & Malik, N. M. (1999). Family violence: A report on
the state of the research. The Florida Bar Journal. 73(11), 58-62.
Lemon, N. K. D. (1999). The legal system's response to children exposed
to domestic violence. Future of Children. 9(3), 67-83.
Leovy, J. (Oct. 29, 2001). Frequency of domestic homicide falls. Los
Angeles Times. Home Edition. California; Part 2; Page 1; Metro Desk.
Lerman, L. G. (1981). Prosecution of spouse abuse: Innovations in
criminal justice response. Washington, D.C.: Center for Women Policy Studies.
Lerman, L. G. (1986). Prosecution of wife beaters: Institutional obstacles
and innovations. In M. Lystad (Ed.), Violence in the home: Interdisciplinary
perspectives. New York: Brunner/Mazel.
Levine, D. (1994). Children in violent homes: Effects & responses.
Florida Bar Journal, 68, 62, 63.
Lichter, D. T., McLaughlin, D., LeClere, F., Kephart, G., & Landry, D.
(1992). Race and the retreat from marriage: A shortage of marriageable men?
American Sociological Review, 57, 781-99.
Linsky, L. A. (1995). Use of domestic violence history evidence in the
criminal prosecution: A common sense approach. Pace Law Review. 16, 73+.
303
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Liska, A., Markowitz, F. E., Whaley, R. B., & Bellair, P. (1999).
Modeling the relationship between the criminal justice and mental health systems.
The American Journal of Sociology, 104(6).
Locke, L. M., & Richman, C. L. (1999). Attitudes toward domestic
violence:
Race and gender issues. Sex Roles: A Journal of Research, 40(3-4), 227.
Lockhart, L. L., & White, B. W. (1989). Understanding marital violence
in the Black community. Journal of Interpersonal Violence, 4(4), 421-436.
Lockhart, L. L. (1991). Spousal violence: A cross-racial perspective. In
R. L. Hampton (Ed), Black family violence: Current research and theory (pp. 95-
102). Lexington, MA: Lexington Books.
Loomis, L. S., & Landale, N. S. (1994). Nonmarital cohabitation and
childbearing among Black and White American women. Journal of Marriage and
the Family, 56, 949-962.
Lopata, H. Z. (1993). The interweave of public and private: Women’s
challenge to American society. Journal of Marriage and the Family. 55(1), 176.
Lorde, A. (1984). Sister outsider. Freedom, CA: Crossing.
Lorton, R. P., & Saltzman, W. (1993). Children’s exposure to community
violence: following a path from concern to research to action. Psychiatry, 56,
55-65.
Loseke, D. R. (1991). Changing the boundaries of crime: The battered
women’s social movement and the definition of wife abuse as criminal activity.
Criminal Justice Review, 16(2), 249-262.
Lum, D. (1992). Social work practice and people of color: A process-
stage approach. Pine Grove, CA: Brooks/Cole.
MacManus, S. A., & Van Hightower, N. R. (1989). Limits of state
constitutional guarantees: Lessons from efforts to implement domestic violence
policies. Public Administration Review. 49(3), 269-277.
Madhubuti, H. (1990). Black men: Obsolete, single and dangerous.
Chicago: Third World Press.
3 0 4
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Maiden, P. R. (Aug. 1995). The impact of alcoholism treatment on the
reduction of domestic violence. Paper presented at the 37th International
Congress on Alcohol and Drug Dependence. San Diego. CA.
Malek, A. M., Higashida, R. T., Phatouros, C. C., & Halbach, Y. V.
(1999). A strangled wife, (carotid artery dissection from attempted strangulation)
(Case Report). The Lancet 353(9161), 1324.
Marcus, I. (1988). "Reframing 'domestic violence': terrorism in the home.
In M. A. Fineman & R. Mykitiuk (Ed.), The public nature of private violence.
Mare, R. D., & Winship, C. (1991). Socioeconomic change and the
decline of marriage for Blacks and Whites. In C. Jencks & P. E. Peterson (Eds.),
The urban underclass (pp. 175-202). Washington DC: Urban.
Marin, G., & Marin, B. V. (1991). Research with Hispanic populations.
Newbury Park: Sage Publications.
Martin, D. (1976). Battered wives. San Francisco: Glide Publications.
Martin, M. E. (1997). Double your trouble. Journal of Family Violence.
712(2), 139-157.
Martineau, P. (Sept. 1, 1995). Assembly approves bills aimed at reducing
domestic violence. Los Angeles: Metropolitan News-Enterprise.
Maschke, K. J. (Ed .). (1997). The legal response to violence against
women. New York: Garland Publishing, Inc.
Mauer, M., & Ruling, T. (1995). Young Black Americans and the
criminal justice system: Five years later. Washington, DC: The Sentencing
Project.
McClane, G. (Dr.), & Strack, G. B. (1996). Documentation, investigation
& prosecution of choking & strangulation cases. Presentation at the International
Conference on Family Violence, San Diego.
McCormick, T. (1999). Convicting domestic violence abusers when the
victim remains silent. 6 YU Journal of Public Law, 13,427.
3 0 5
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
McFarlane, J., Parker, B., Soeken, K., & Bullock, L. (1992). Assessing
abuse during pregnancy: Severity and frequency of injuries and associated entry
into prenatal care. Journal of the American Medical Association, 267(23), 3176-
3178.
McGuire, L. A. (2001). Criminal prosecution of domestic violence.
Violence against women online resources. Minneapolis: MINCAVA Minnesota
Center Against Violence & Abuse.
McKendy, J. P. (1997). The class politics of domestic violence. Journal
of Sociology and Social Welfare, 24(3), 135-155.
Meeka, P. 1996. Interview.
Melconian, L. J. (July 11, 2001). One small step to help women flee
violence. The Boston Herald. Section: EDITORIAL; Pg. 025.
Melner, A. R. (1998). Rights of abused mothers vs. best interest of
abused children: courts’ termination of battered women’s parental rights due to
failure to protect their children from abuse. Southern California Review of Law
& Women’s Studies, 7, 299, 303.
Mena, J. (Dec. 12, 2000). Creating the new macho man; To the men in
these Latino discussion groups, machismo is about strength, love, family and
respect. Los Angeles Times. Home Edition. Southern California Living, Part E,
P. 1.
Mercy, J. A., Rosenberg, M. L., Powell, K. E., Broome, C. V., & Roper,
W. L. (1993). Public health policy for preventing violence. Health Affairs. 13,
7-29.
Merry, S. E. (1995). Gender violence and legally engendered selves.
Identities. 2(1-2), 49-73.
Merlin, P., & Mohr, P. B. (2000). Incidence and correlates of
posttraumatic stress disorder in Australian victims of domestic violence. Journal
of Family Violence. 15(4), 411.
Messner, M. (1993). "Changing men" and feminist politics in the United
States. Theory and Society.. 22, 723-737.
306
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Miccio, G. K. (2000). Notes from the underground: Battered women, the
state, and conceptions of accountability. Harvard Women’s Law Journal 23,
133.
Miccio, G. K. (2002). Male violence - state silence: These and other
tragedies of the 20th century. The Journal of Gender. Race, & Justice. 339.
Michaud, T. B. (1996). The Princeton experience. The Police Chief,
63(2), 55.
Mill, J. S. (1912). On liberty; representative government; the subjection
of women/ Three essays by John Stuart Mill with an introduction by Millicent
Garrett Fawcett. New York: Oxford University Press.
Miller, F. W., & Remington, F. J. (Eds.). (1969). Prosecution: The
decision to charge a suspect with a crime. Boston: Little, Brown.
Miller, S. L. (2001). The paradox of women arrested for domestic
violence: Criminal justice professionals and service providers respond. Violence
Against Women. 7(12), 1339-1376.
Mills, C. W. (1959). The sociological imagination. New York: Oxford
University Press.
Mills, L. G. (September, 1996). On the other side of silence: affective
lawyering for intimate abuse. Cornell Law Review. 81, pp. 1225-1265.
Mills, L. G. (1998). Mandatory arrest and prosecution policies for
domestic violence: A critical literature review and the case for more research to
test victim empowerment approaches. Criminal Justice and Behavior. 25(3), 306-
318.
Mills, L. G. (1999). Killing her softly: Intimate abuse and the violence of
state intervention. Harvard Law Review. 113, 550.
Mirande, A. (1979). A reinterpretation of male dominance in the Chicano
family. Family Coordinator. 28(4), 473-497.
Mirande, A., & Enriquez, E. (1979). La Chicana: The Mexican-American
woman. Chicago: University of Chicago Press.
Misner, R. L. (1996). Recasting posecutorial discretion. The Journal of
Criminal Law and Criminology. 86(3), 717-777.
307
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Misumi, T. (1999). The awareness of domestic violence among Japanese
Americans in the bay area. (Master of Arts dissertation, San Jose State
University, 1999). Masters Abstracts International, 37, no. 05 (1999): p. 1374.
Mohanty, C.T. (1991). Under western eyes: feminist scholarship and
colonial discourse. In C.T. Mohanty, A. Russo, and L. Torres (Eds.). Third
world women and the politics of feminism. Bloomington: Indiana University
Press.
Momjian, J. (1997). Review of selected 1996 California legislation:
Family: Fighting the domestic violence battle. Pacific Law Journal, 28, 847.
Mumola, C., & Beck, A. J. (1997). Lifetime likelihood of young to state
or federal prison. Washington, DC: U.S. Department of Justice.
Murphy, S. M. (1999) Guardians ad litem: The guardian angels of our
children in domestic violence court. Loyola University Chicago Law Journal. 30,
281.
Murphy, C. M., & O'Leary, K. D. (1989). Psychological agression
predicts physical aggression in early marriage. Journal of Consulting and
Clinical Psychology, 57(5), 579-583.
Murphy, C. M., Musser, P. H., & Maton, K. I. (1998). Coordinated
community intervention for domestic abusers: Intervention system involvement
and criminal recidivism. Journal of Family Violence, 13(3).
Natera, G. R., Tiburcio, M. S., & Villatoro, J. V. (1997). Marital violence
and its relationship to excessive drinking in Mexico. Federal Legal Publications,
Inc.
Nazario, S. (April 16,1999). California and the west; expanded drug
treatment plans sought for Mexican American men; services: State senate panel
asks for $1.25 million to help prevent alcohol abuse. Los Angeles Times. Home
Edition SECTION: Part A; Page 3; Metro Desk.
Neff, J., Holamon, A. B., & Schluter, T. D. (1995). Spousal violence
among Anglos, Blacks and Mexican Americans: The role of demographic
variables, psychosocial predictors and alcohol consumption. Journal of Family
Violence, 10(1), 1-22.
308
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Nesmith, C. (Aug 3, 2001). Safety strategies against abuse must reflect
culture. Women’s Enews.
Nguyen, L. U. (1999). A cross-cultural comparison of young adults’
perceptions of spousal violence. (Doctoral dissertation, University of Maryland,
College Park, 1999). Dissertation Abstracts International, 60, no. 05B : p. 2357.
Noone, D. C. (2000). Perspectives of battered women regarding the
criminal justice system. (Doctoral dissertation, University of Maryland at
Baltimore, 2000). Dissertation Abstracts International, 0373. DAI, 61, no. 12A
(2000): p. 4949.
Nylen, L., & Heimer, G. (1999). Sweden’s response to domestic
violence. The FBI Law Enforcement Bulletin, 68(11), 19.
Ohlin, L. E., & Remington, F. J. (Eds.). (1993). Discretion in criminal
justice: The tension between individualization and uniformity. Albany: State
University of New York Press.
Oki, D. T. (1996). Interview.
Oliver, W. (1989). Black males and social problems: prevention through
Affocentric socialization. Journal of Black Studies, 20.
Pagelow, M. D. (1981). Woman battering: Victims and their experiences.
Beverly Hills, CA: Sage.
Pagelow, M. D. (1992). Adult victims of domestic violence: Battered
women. Journal of Interpersonal Violence, 7, 87-120.
Pamas, R. I. (1967). The police response to the domestic disturbance.
Wisconsin Law Review. 2, 914-960.
Pamas, R. I. (1970). Judicial response to intra-family violence.
Minnesota Law Review, 54, 585-644.
Pamas, R. I. (1973). Prosecutorial and judicial handling of family
violence. Criminal Law Bulletin, 9, 733-769.
Pamas, R. I. (1978). Relevance of criminal law to interspousal violence.
In J. M. Eekelaar & S. N. Katz (Eds.), Family violence: An international
interdisciplinary study. Toronto: Butterworths.
309
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Pamas, R. I. (1993). Criminal justice response to domestic violence. In
L. E. Ohlin & F. J. Remington (Eds.), Discretion in criminal justice: The
tension between individualization and uniformity. Albany: State University of
New York Press.
Payne, Y., & Utsey, S. O. (2000). Psychological impacts of racism in a
clinical versus normal sample of African American men. Journal of African
American Men, 5(3), 57-72.
Pena, M. (1991). Class, gender & machismo: The ‘trecherous-woman’
folklore of Mexican male workers. Gender & Society, 5(1), 30.
Pena, M. J. (2001). The role of appellate courts in domestic violence
cases and the prospect of a new partner abuse cause of action. Review of
Litigation. 20, 503.
Petrik, N. D., Olson, R. E. P., & Subotnik, L. S. (1994). Powerlessness
and the need to control: The male abuser’s dilemma. Journal of Interpersonal
Violence, 9(2), 278-285.
Phan, H. T. (1998). Effect of acculturation on the responses of
Vietnamese women toward domestic violence. (Master of Social Work
dissertation, California State University, Long Beach, 1998), 6080. Masters
Abstracts International. 37, no. 01, (1998): 0132.
Pierce, C. M. (1988). A profile of the American Negro. Princeton, NJ:
D. Van Nostrand.
Pizzey, E. (1974). Scream quietly or the neighbors will hear. Baltimore:
Penguin.
Plate, Tom. (Jan. 11, 2000). Asia rethinks women’s rights. The Plain
Dealer. FINAL / ALL. SECTION: EDITORIALS & FORUM; Pg. 9B.
Poulin, A. B. (1997). Prosecutorial discretion and selective prosecution:
Enforcing protection after United States v. Armstrong. American Criminal Law
Review. 34(3), 1071-1125.
Powell, J. (Dec. 7, 2000). Help is nearby, Hmong leaders advise. Star
Tribune (Minneapolis, MN). Metro Edition. SECTION: NEWS; Pg. IB.
Preidt, R. (Jan. 22, 2003). Domestic violence victims see doctor more
often. Health Scout News. Health Scout Network.
310
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Pressman, B. M„, Cameron, G., & Rothery, M. R. (Eds.). (1984).
Intervening with assaulted women: Current theory, research, and practice.
Hillsdale, NJ: Erlbaum Associates.
Quarm, D., & Schwartz, M. (1985). Domestic violence in criminal court:
An examination of new legislation in Ohio. Women and Politics, 4(3), 29-46.
Quirion, P., Lennett, J., Lund, K., & Tuck, C. (1997). Commentary:
protecting children exposed to domestic violence in contested custody and
visitation litigation. The Boston Public Interest Law Journal, 6, 501.
Rabin, B. E. (1995). Violence against mothers equals violence against
children: Understanding the connections. Albany Law Review. 58, 1109, 1112-
14.
Rabinow, P. (Ed). (1984). The Foucault reader. New York: Pantheon.
Raley, R. K. (1996). A shortage of marriageable men? A note on the
role of cohabitation in Black-White differences in marriage rates. American
Sociological Review. 61, 973-83.
Ramirez, M. (April 12, 1999). Sanctuary, at last. Los Angeles Times.
Ramos, G. (Jan. 17, 1994). Machismo keeps too many from facing aids
facts. Los Angeles Times. Home Edition. SECTION: Metro; Part B; Page 3;
Column 1; Metro Desk .
Rebovich, D. J. (1996). Prosecution response to domestic violence:
Results of a survey of large jurisdictions. In E. S. Buzawa & C. G. Buzawa
(Eds.), Do arrests and restraining orders work? Newbury Park, CA: Sage
Publications.
Register, E. (1993). Feminism and recovering from battering: Working
with the individual woman. In M. Hansen & M. Harway (Eds.), Battering and
family therapy: A feminist perspective. Newbury Park: Sage Publications.
Remington, F. J. (1993). The decision to charge, the decision to convict
on a plea of guilty, and the impact of sentence structure on prosecution practices.
In L. E. Ohlin and F. J. Remington (Eds.), Discretion in criminal justice: The
tension between individualization and uniformity. Albany: State University of
New York Press.
311
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Rennison, C. (2001). Violent victimization and race, 1993-1998. Bureau
of Justice Statistics Special Report. March 2001, NCI 176354.
Rhode, D. L. (1997). Speaking of sex: The denial of gender inequality.
Cambridge, MA: Harvard University Press.
Rimonte, N. (1991). A question of culture: Cultural approval of violence
against women in the Pacific-Asian community and the cultural defense.
Stanford Law Review, 43, 1311-1326.
Robbins, K. (1999). No-drop prosecution of domestic violence: Just good
policy, or equal protection mandate? Stanford Law Review, 52, 205.
Rodgers, K. (1994). Wife assault in Canada. Canadian Social Trends.
Autumn, 1994, no. 34, 2.
Rosenbaum, M. D. (1998). To break the shell without scrambling the
egg: An empirical analysis of the Impact of intervention into violent families.
Stanford Law & Policy Review, 9, 409.
Rovner-Pieczenik, R. (1976). Labeling in an organizational context:
Adjudicating felony cases in an urban court. In M. P. Golden. (Ed.), The
research experience , 447-64. Itasca, 1 1 1 .: Peacock.
Roy, M. (1988). Children in the crossfire: Violence in the home-How
does it affect our children? Deerfield Beach, Fla.: Health Communications.
Ryan, R. M. (1998). Prosecution strategies in domestic violence felonies:
An exploratory study. (Doctoral dissertation, University of Nebraska at Omaha,
1998). Dissertation Abstracts International, 59, no. 08A, (1998): 3219.
Sakoutis, S. S. (1998). The art of judging domestic battery cases:
Adjudicating crimes occurring in the context of relationships. (Doctoral
dissertation, University of Illinois at Chicago, 1998). Dissertation Abstracts
International, 59, no. 04A, (1998): 1343.
San Jose (CA) Police Department General orders (on Domestic Violence).
1986.
Sanders, A. (1988). Personal violence and public order: The prosecution
of "domestic” violence in England and Wales. International Journal of Sociology
and Law. 16, 359-382.
312
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Santiago, A. M., & Morash, M. (1995). In J. A. Garber, & R. S. Turner
(Eds.), Gender in Urban Research. Thousand Oaks, CA: Sage Publications.
Sargeant, G. (1994). Lawmakers, cops, courts, and family violence:
Some progress. Trial. 30(12), 95-98.
Sayers, M., & Edleson, J. L., (1992). The combined effects of coordinated
criminal justice intervention in woman abuse. Journal Of Interpersonal Violence.
7, 490-502.
Schafer, S. (July 25, 2001). When violence at home comes to work. The
Washington Post. Final Edition. Section: Financial; Pg. E01.
Schechter, S. (1982). Women and male violence: The visions and
struggles of the battered women’s movement. Boston: South End Press.
Scheff, T. (1966). Being mentally ill: A sociological theory. Chicago:
Aldine Publishing Company.
Schmidt, J., & Steury, E. H. (1989). Prosecutorial discretion in filing
charges in domestic violence cases. Criminology, 27(3), 487-510.
Schneider, D., Greenberg, M. R., & Choi, D. (1992). Violence as a public
health priority for Black Americans. Journal of the National Medical Association,
84(10), 843-848.
Schneider, E. M. (1994). Making reconceptualization of violence against
women real. Albany Law Review. 58, 1245.
Schwab-Stone, M., Chen, C., Greenberger, E., Silver, D., Lichtman, J., &
Voyce, C. (1999). No safe haven: II. The effects of violence exposure on urban
youth. Journal of the American Academy of Child and Adolescent Psychiatry.
38, 359-367.
Scordato, M. M. (2002). The impact of domestic violence on children
witnesses from the perspective of the female battered victim. (Master o f Social
Work Thesis, California State University, Long Beach, 2002). 6080. Masters
Abstracts International, 40, no. 06 (2002): p. 1426.
Senate Hearing. 1991. Women: Victims of the system. Hearing before
the Senate Committee on the Judiciary, 102d Congress.
313
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Shalness, N. (1979). Vulnerability to masochism: Masochism as a
process. American Journal of Psychotherapy, 33(2), 174-189.
Sheley, J. F. (1993). Structural influences on the problem of race, crime,
and criminal justice discrimination. Tulane Law Review, 67, 2273.
Sheptycki, J.W.E. (1993). innovations in policing domestic violence.
Brookfield, VT: Ashgate.
Sherman, L. W., Principal Investigator. (1998). Preventing crime: What
works, what doesn’t, what’s promising. A Report to the United States Congress.
Prepared for the National Institute of Justice. Washington, D.C.
Sherman, L. W., & Berk, R. A. (1984). The specific deterrent effects of
arrest for domestic assault. American Sociological Review. 49, 261-72.
Sherman, L. W., & Smith, D. A., with Schmidt, J. D., & Rogan, D. P.
(1992). Crime, punishment, and stake in conformity: Legal and informal control
of domestic violence. American Sociological Review. 57(October), 680-690.
Sigler, R. T. (1989). Domestic violence in context: An assessment of
community attitudes. Lexington, MA: Lexington Books.
Simon, L. (1995). A therapeutic jurisprudence approach to the legal
processing of domestic violence cases. Psychology., Pubic Policy, & Law. 43,
69.
Sinclair, H. (1990). An accountable/advocacy batterer intervention
program. San Rafael, CA: Manalive.
Singh, N. P. (1999). Addressing the under-utilization of domestic
violence services by South Asian battered women in the Yuba City area (Women
Victims, California). (Psy.D. dissertation, California School of Professional
Psychology—Berkeley/Alameda, 1999).
Snell, J.E., Rosenwald, R. J., & Robey, A. (1964). The wifebeater’s wife:
A study of family interaction. Archives of General Psychiatry. 2, 107-112.
Song, Y. I. (1992). Battered Korean women in urban United States. In S.
Furto, R. Biswas, D.K. Chung, K. Murase, and F. Ross-Sheriff (Eds.), Social
work practice with Asian Americans. Newbury Park, CA: Sage.
3 1 4
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Song, Y. I. (1996). Battered women in Korean immigrant families: The
silent scream. New York: Garland Publishing, Inc.
Sousa, C. A. (1999). Teen dating violence: The hidden epidemic.
Family and Conciliation Courts Review of AFCC, 37, 356.
St. Joan, J. (1997). Law and literature: sex, sense, and sensibility:
Trespassing into the culture of domestic abuse. Harvard Women’s Law Journal,
20, 263.
Stalans, L. J., & Finn, M. A. (1995). How novice and experienced
officers interpret wife assaults: normative and efficiency frames. Law and
Society Review. 29(2), 287-321.
Stall, B. (Oct. 6, 1995). Law stiffened for first-time wife beaters. Los
Angeles Times. Home Edition. SECTION: Part A; Page 3; Metro Desk.
Stanko, E. (1989). Missing the mark? Policing battering. In J. Hanmer,
J. Radford, & E. A. Stanko (Eds.), Women, policing, and male violence. London
and New York: Routledge.
Stanko, E. (1990). Everyday violence. London: Pandora.
Stanton, S. (Sept. 28, 1997). Cultural walls shielding family violence are
crumbling. The Sacramento Bee.
Staples, R. (1976). Race and family violence: The internal colonialism
perspectives. In L. Gary, & L. Browns (Eds.), Crime and its impact on the Black
community. Washington, D.C.: Howard University Press.
Star, B. (1978). Comparing battered and nonbattered women.
Victimology. 3(1-2), 32-44.
Stark, E. (1995). Symposium on reconceptualizing violence against
women by intimate partners: critical issues: Re-presenting woman battering: From
battered woman syndrome to coercive control. Albany Law Review, 58, 973.
Stelnman, M. (1990) Lowering recidivism among men who batter
women. Journal Of Police Science And Administration, 17, 124-32.
Steinmetz, S. K. (1987). Family violence: Past, present, and future. In
M. B. Suddman, & S. K. Steinmetz (Eds.), Handbook of marriage and the family.
New York: Plenum Press.
315
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Stevenson, G. B. (1997). Federal antiviolence and abuse legislation:
Toward elimination of disparate justice for women and children. Willamette
Law Review, 33, 848.
Stone, A. E., & Fialk, R. J. (1997). Recent development, criminalizing the
exposure of children to family violence: Breaking the cycle of abuse. Harvard
Women’s Law Journal. 20, 205.
Struck, G. B. (February 14, 2003). “She hit me, too" identifying the
primary aggressor: Prosecutor’s perspective. SafeNet Talk,
www.safeneterie.org.
Straus, M. A. (1989). Physical assaults by wives: a major social problem.
In R. J. Gelles, & D. R. Loseke (Eds.), Current controversies on family violence.
Straus, M. A. (1993). Identifying offenders in criminal justice research
on domestic assault. American Behavioral Scientist. 36(5), 587.
Straus, M. A., Gelles, R. J., & Steinmetz, S. K. (1980). Behind closed
doors: Violence in the American family. New York: Anchor/Doubleday.
Straus, M. A., & Gelles, R. J. (Eds.). (1990). Physical violence in
American families. New Brunswick, N.J.: Transaction.
Street, A. E., & Arias, I. (2001). Psychological abuse and posttraumatic
stress disorder in battered women: Examining the roles of shame and guilt.
Violence and Victims. 16, 65-79.
Stuntz, W. J. (1997). The uneasy relationship between criminal procedure
and criminal justice. Yale Law Journal, 107(1), 1-76.
Tang, C.S. (1994). Prevelence of spouse aggression in Hong Kong.
Journal of Family Violence. 9(4), 347-356.
Tang, C. S. (1997). Psychological impact of wife abuse: Experiences of
Chinese women and their children. Journal of Interpersonal Violence. 12(3),
479.
Tello, J. (1998). The noble man searching for balance. In R. Carrillo, &
J. Tello (Eds.), Family violence and men of color (pp. 31-52). New York:
Springer Publishing Company.
316
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Thistlewaite, A. B., Wooldredge, J., & Gibbs, D. (1998). Severity of
dispositions and domestic violence recidivism. Crime and Delinquency, 44(3),
388-394.
Thistlewaite, A. B. (1999). Reconsidering domestic violence recidivism:
The impact of court dispositions and stake in conformity. (Doctoral dissertation,
University of Cincinnati, 1999). Dissertation Abstracts International. 60, no.
09A(1999): p. 3537.
Tjaden, P., & Thoennes, N. (1998). Prevalence, incidence, and
consequences of violence against women: Findings from the national violence
against women survey. Washington, D.C.: National Institute of Justice and
Centers for Disease Control and Prevention.
Tjaden, P. (2001). Extent and nature of intimate partner violence as
measured by the national violence against women survey. Loyola Law Review.
47(1), 41-57.
Tolman, R. M., & Weisz, A. (1995). Coordinated community
intervention for domestic violence: The effects of arrest and prosecution on
recidivism of woman abuse perpetrators. Crime And Delinquency, 41(4).
Tomkins, A. J., Mohamed, S., Steinman, M., Macolini, R. M., Kenning,
M. K., & Afrank, J. (1994). The plight of children who witness woman
battering: Psychological knowledge and policy implications. Law and
Psychology Review, 18, 137,19051 words.
Tong, B. R. (1993). Asian-American domestic violence: A critical
psychohistorical perspective. In R. Carrillo, & J. (Eds.), Family violence and
men of color: Healing the wounded male spirit (pp. 114-127). New York:
Springer Publishing Company.
Torres, S. (1991). A comparison of wife abuse between two cultures:
Perceptions, attitudes, nature, and extent. Issues in Mental Health Nursing,
12(1), 113-131.
Trepiccione, M. A. (2001). At the crossroads of law and social science: Is
charging a battered mother with failure to protect her child an acceptable solution
when her child witnesses domestic violence? Fordham Law Review, 69(4),
1487-522.
Trible, P. (1984). Texts of terror: Literary-feminist readings of biblical
narratives. Philadelphia: Fortress Press.
317
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Tsai, B. (2000). Note: The trend toward specialized domestic violence
courts: Improvements on an effective innovation. Fordham Law Review, 68,
1285.
Uehara, E., Chalmers, D., Jenkins, E. J., & Shakoor, B. (1996). Youth
encounters with violence: Results from the Chicago Mental Health Council’s
violence prevention screening project. Journal of Black Studies. 26, 768-781.
U.S. Department of Justice. 1998. Violence by intimates: Analysis of
data on crimes by current or former spouses, boyfriends, and girlfriends.
Washington, D.C., U.S. Government Printing Office.
Ursel, E. J. (1994). The Winnipeg family violence court. Statistics
Canada. 14(12), 1-15.
Utsey, S. O., Ponterotto, J. G., Reynolds, A. L., & Cancel!!, A. A. (2000).
Racial discrimination, coping, life satisfaction, and self-esteem among African-
Americans. Journal of Counseling and Development. 78, 72-80.
Vilhauer, J. March 22, 1996 Interview.
Vilhauer, J. (2000). Understanding the victim: A guide to aid in the
prosecution of domestic violence. Fordham Urban Law Journal. 27, 953.
Wah, L. M. (1998). Asian men and violence. In R. Carrillo, & J. Tello
(Eds.), Family violence and men of color: Healing the wounded male spirit (pp.
128-146). New York: Springer Publishing Company.
Walker, L. E. (1978). Battered women and learned helplessness.
Victimology. 2(3-4), 525-534.
Walker, L. E. (1979). The battered woman. New York: Harper & Row.
Walker, L E. (1985). Psychological impact of the criminalization of
domestic violence on victims. Victimology: An International Journal, 10, 281-
300.
Walker, L. E. (1989). Terrifying love: Why battered women kill and
how society responds. New York: Harper and Row.
3 1 8
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Walker, L. E. (1993). The battered woman syndrome is a psychological
consequence of abuse. In R. J. Gelles, & D. R. Loseke (Eds.), Current
controversies on family violence.
Wallace, B. (Oct. 8, 1999). S.F.’s D.A. has weak record in cases of
domestic violence. The San Francisco Chronicle.
Wangberg, K. G. (1991). Reducing case attrition in domestic violence
cases: A prosecutor’s perspective. The Prosecutor. Winter 1991.
Wanless, M. (1996). Mandatory arrest: A step toward eradicating
domestic violence, but is it enough? University of Illinois Law Review, 1996(2),
533-587.
Warren, C. A B. (1982). The court of last resort: Mental illness and the
law. Chicago: University of Chicago Press.
Warwick, N. W. (1997). Patterns of diversity and forms of interpretation:
A cultural analysis of immigrant Mexican women who have been battered.
(Doctoral dissertation, University of California, Los Angeles, 1997). 0031.
Dissertation Abstracts IntemationaL 57, no. 11 A, (1997): 4807.
Watanabe, T. (July 23, 1997). The heir is no longer apparent. Los
Angeles Times. Section A l, A8.
Watson, C. J. (2000). Female perpetrators of domestic violence: A pilot
study. (Psy.D. dissertation, United States International University, 2000). 0239.
Dissertation Abstracts International. 61, no. 09B (2000): p. 5011.
Watson, J E. (Nov. 2, 2000). Asian domestic abuse cited Boston-area
survey shows serious problem. The Boston Globe. Third Edition. Section:
Metro/Region; Pg. B7.
Websdale, N. (1992). Female suffrage, male violence, and law
enforcement in Lane County, Oregon, 1853 to 1960: An ascending analysis of
power, (focus on resistance, rights, and justice). Social Justice. 19(3), 82-107.
Websdale, N. (1999). Understanding domestic homicide. Boston:
Northeastern University Press.
Weissman, D. M. (2001). Gender-based violence as judicial anomaly:
Between "the truly national and the truly local.” Boston College Law Review.
42, 1081.
319
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Weltzman, S. (1998). Upscale violence: The lived experience of
domestic abuse among upper socioeconomic status women. (Doctor of Social
Work dissertation, Loyola University of Chicago, 1998). 0112. Dissertation
Abstracts International. 59, no. 09A: 3650.
Weitzman, S. (2000). “Not to people like us”: Hidden abuse in upscale
marriages. New York: Basic Books.
Weldon, M. (1999). 1 closed my eves: Revelations of a battered woman.
Center City, Minn: Hazelden.
Welland-Akong, C. G. (1999). A qualitative analysis of cultural
treatment components for Mexican male perpetrators of partner abuse. (Psy.D.
dissertation, California School of Professional Psychology - San Diego, 1999).
0379. Dissertation Abstracts International, 60, no. 06B (1999): p. 2967.
West, C. M., & Rose, S. (2000). Dating aggression among low income
African American youth: An examination of gender differences and antagonistic
beliefs. Violence Against Women. 6(5), 470.
West, J. A. (2002). Public service advertising in the 21st century:
Exploration of unintended effects of domestic violence campaigns. (Doctoral
dissertation, The University of Wisconsin, Madison, 2002). 0262. Dissertation
Abstracts International, 63, no. 04A (2002): p. 1174.
West, R. (1993). Legitimating the illegitimate: A comment on "beyond
rape." Columbia Law Review. 93,1442.
Westley, W. (1970). Violence and the police: A sociological study of
law, custom, and morality. Cambridge: MIT Press.
Westlund, A. C. (1999). Pre-modem and modem power: Foucault and
the case of domestic violence. Signs, 24(4), 1045.
Wiist, W. H., & McFarlane, J. (1998). Severity of spousal and intimate
partner abuse to pregnant Hispanic women. Journal of Health Care for the Poor
and Underserved. 9 (3), 248-261.
Williams, D. R., Yu, Y., Jackson, J., & Anderson, N. (1997). Racial
differences in physical and mental health: Socioeconomic status, stress, and
discrimination. Journal of Health Psychology. 2, 335-351.
320
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Wills, D. (1997). Mandatory prosecution in domestic violence cases:
Domestic violence: The case for aggressive prosecution. UCLA Women’s Law
Journal, 7, 173.
Wilson, K. J. (1997). When violence begins at home. Alameda, CA:
Hunter House Publishers.
Wilson, W. J. (1987). The truly disadvantaged: The inner city, the
underclass, and public policy. Chicago: University of Chicago Press.
Winick, B. J. (2000). Applying the law therapeutically in domestic
violence cases. University of Missouri at Kansas City Law Review. 69,
33.
Wintemute, G. J., Wright, M. A., & Drake, C. M. (2003). Increased risk
of intimate partner homicide among California women who purchased handguns.
Annals of Emergency Medicine. 41(2), 281-283.
Winton, R. (April 13, 1999). Reinstatement of domestic violence court
may be sought. Los Angeles Times. Metro; Part B; p. 1.
Wolfgang, M.E. (1968). Studies in homicide. New York: Harper &
Row.
Worden, A. P. (2000). The changing boundaries of the criminal justice
system: Redefining the problem and the response in domestic violence. Boundary
Changes in Criminal Justice Organizations. Criminal Justice.
Wright, A. F. (Ed.). (1960). The Confucian persuasion. Palo Alto, CA:
Stanford University Press.
Xu, X. (2001). Domestic violence against women in China: Prevalence,
risk factors and health outcomes. (Doctoral dissertation, The Johns Hopkins
University, 2001). 0098. Dissertation Abstracts International. 62. no. 026(2001):
p. 788.
Yick, A. (1997). Chinese Americans’ perceptions of and experiences
with domestic violence and factors related to their psychological well-being.
(Doctoral dissertation, University of California, Los Angeles, 1997). Dissertation
Abstracts International. 59, no. 02A (1997): 0620.
321
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Yick, A. (2001). Feminist theory and status inconsistency theory:
Application to domestic violence in Chinese immigrant families. Violence
Against Women. 7 (5), 545-562.
Yim, S. B. (1978). Korean battered wives: A sociological and
psychological analysis of conjugal violence in Korean immigrant families. In H.
Sunoo and D. Kim (Eds.), Korean women. Memphis, TN: Association of Korean
Christian Scholars in North America.
Yoshihama, M. (1996). Domestic violence against women of Japanese
descent: Understanding the socio-cutural context. (Doctoral dissertation,
University of California, Los Angeles, 1996). 0031. Dissertation Abstracts
International, 57, no. 06A, (1996): 2678.
Yoshihama, M. (1999). Domestic violence against women of Japanese
descent in Los Angeles. Violence Against Women 5 (8), 869-897.
Yoshihama, M. (2000). Reinterpreting strength and safety in a socio
cultural context: Dynamics of domestic violence and experiences of women of
Japanese descent. (Women Abuse and Child Protection: A Tumultuous Marriage).
Children and Youth Services Review, 22(3-4), 207-229.
Yoshioka, M. R., Dinoia, J., & Ullah, K. (2001). Attitudes toward marital
violence: An examination of four Asian communities. Violence Against Women,
7(8), 900-926.
Younge, G. (2000). Asians fly the flag for traditional family life: Survey
reveals changing role of marriage and underlines ethnic diversity. The Guardian
(London). Guardian Home Pages, p. 5.
Zimring, F. E. (1987). Legal perspectives on family violence. California
Law Review, 75, 521.
Zorza, J. (1992). The criminal law of misdemeanor domestic violence,
1970-1990. Journal of Criminal Law and Criminology, 83(1), 46-72.
Zorza, J. (1994). Must we stop arresting batterers?: Analysis and policy
implications of new police domestic violence studies. New England Law Review,
28,
929.
3 2 2
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX A. DOMESTIC VIOLENCE DEFINED IN THE
CALIFORNIA FAMILY CODE.
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright 2002 LEXIS Law Publishing, a division of Reed Elsevier Inc.
All Rights Reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2002
SUPPLEMENT (2001 SESSION) *** INCLUDING URGENCY
LEGISLATION THROUGH 2002 REG. SESS. CH. 33,4/26/02 AND 2001-2002
3RD EXTRA SESS. CH. 3XXX, 4/25/02
FAMILY CODE
DIVISION 10. Prevention of Domestic Violence
PART 1. Short Title and Definitions
GO TO CODE ARCHIVE DIRECTORY FOR THIS
JURISDICTION
CalFam Code §6211 (2001)
§ 6211. "Domestic violence"
"Domestic violence" is abuse perpetrated against any of the following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant, as defined in Section 6209.
(c) A person with whom the respondent is having or has had a dating or
engagement relationship.
(d) A person with whom the respondent has had a child, where the presumption
applies that the male parent is the father of the child of the female parent under
the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division
12).
(e) A child of a party or a child who is the subject of an action under the
Uniform Parentage Act, where the presumption applies that the male parent is the
father of the child to be protected.
323
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(f) Any other person related by consanguinity or affinity within the second
degree.
HISTORY:
Added Stats 1993 ch219 § 154 (AB 1500).
NOTES:
HISTORICAL DERIVATION:
(a) Former Fam C §§ 70, 5501 as enacted Stats 1992 ch 162 § 10.
(b) Former CC § 7020, as added Stats 1979 ch 795 § 5, amended Stats 1980 ch
1158 §3, Stats 1982 ch 439 § 1, Stats 1983 ch 234 § 3, Stats 1988 ch 271 § 3,
Stats 1990 ch 935 § 2, Stats 1992 ch 1136 § 4.
(c) Former CCP § 542, as added Stats 1979 ch 795 § 10, amended Stats 1980 ch
1158 § 6, Stats 1984 ch 1163 § 3, Stats 1990 ch 752 § 2.
(d) Former Ev C § 1037.7, as added Stats 1986 ch 854 § 1, amended Stats 1992
chl63 §71.
OFFICIAL COMMENT:
LAW REVISION COMMISSION COMMENTS:
1993-Subdivisions (a)-{d) and (f) of Section 6211 continue without substantive
change and broaden former Code of Civil Procedure Section 542(b). In
subdivision (c), the reference to an ongoing dating or engagement relationship has
been added. This
is drawn from the definition of domestic violence in Penal Code Section 13700. In
subdivision (f), the reference to any "adult" person related by consanguinity or
affinity has been omitted. This is consistent with the addition of children in
subdivision (e).
Subdivision (e) is drawn from former Civil Code Section 7020 and eliminates
any implication that children are not covered by this statute. Former Civil Code
Section 7020 authorized restraining orders to protect children who are the subject
of a proceeding
pursuant to the Uniform Parentage Act. The former Domestic Violence Protection
Act protected "cohabitants" but did not specifically mention children. See former
Code Civ. Proc. § 542(b)-(c). Subdivision (e) continues the protection explicit in
the former Uniform Parentage Act and extends it explicitly to include a child of a
party to the proceeding in which the orders are sought. See Section 6221
(application of division).
Where a child has been declared a dependent of the juvenile court, that court
may issue orders to protect the child from violence pursuant to the Welfare and
Institutions Code. See, e.g., Welf. & Inst. Code §§ 213.5 (ex parte orders during
pendency of proceeding to declare child a dependent), 304 (juvenile court
324
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
authority to issue protective orders sua sponte). See also Section 6221(b) (nothing
in this division affects the jurisdiction of the juvenile court).
See Sections 6320 (ex parte order enjoining harassment, threats, and violence),
6321 (ex parte order excluding party from dwelling), 6340 (orders that may be
issued after notice and hearing); see also Sections 6203 ("abuse" defined), 6205
("affinity" defined), 6209 ("cohabitant" and "former cohabitant” defined); Welf.
& Inst. Code § 213.5 (issuance of restraining order during pendency of
proceeding to determine minor dependent).
For provisions adopting this definition by reference, see Sections 3064
(limitation on ex parte order granting or modifying custody order), 3113 (separate
meetings with court appointed investigator), 3181 (separate meetings with
mediator), 3192 (separate meetings with counselor appointed in custody
proceeding); Code Civ. Proc. §§ 128 (contempt powers of court), 1219
(punishment for contempt); Evid. Code §§ 1037.7 (victim-counselor privilege),
1107 (admissibility of expert witness testimony regarding battered women's
syndrome); Penal Code §§ 273.6 (penalty for violation of protective order), 977
(appearance in misdemeanors), 1377 (compromise of misdemeanors).
For other domestic violence provisions, see, e.g., Penal Code §§ 136.2 (penalty
for intimidation of witness), 273.83 (individuals subject to prosecution by district
attorney's "spousal abuser" unit), 277 (penalty for child abduction), 653m (penalty
for annoying telephone calls), 853.6 (citation and release not automatically
available for misdemeanor violation of order to prevent domestic violence),
1000.6 (diversion of misdemeanant to counseling), 12028.5 (confiscating
weapons at scene of domestic violence), 13700 (law enforcement response to
domestic violence); Welf. & Inst. Code § 18291 ("domestic violence" defined for
purposes of the Domestic Violence Centers Act).
CROSS REFERENCES:
"Domestic violence": Fam C § 6211.
Emergency protective order for person in danger of abuse: Fam C §§ 6250 et
seq.
Temporary restraining order against abuse: Fam C §§ 6300, 6301.
Contempt powers respecting conduct of proceedings: CCP § 128.
Insuring victims of domestic violence: Ins C § 10144.
Appearance where accused is charged with misdemeanor offense involving
domestic violence: Pen C § 977.
Prohibition against compromise of offense for which person injured has remedy
by civil action: Pen C § 1377.
"Child abuse": Pen C § 11165.6.
Prohibition against referral of cases involving domestic violence to community
conflict resolution program: Pen C § 14152.
COLLATERAL REFERENCES:
325
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Witkin Summary (9th ed) Husband & Wife §§ 29, 30, 36A, 36F; Parent & Child
§23 IE.
Cal Jur 3d (Rev) Family Law §§ 1182, 1183.
Rutter Cal Prac Guide, Family Law §§ 5:38 et seq.
LAW REVIEW ARTICLES:
Second degree felony-murder rule and child abuse in California: 13 J Juvenile
L 1.
NOTES OF DECISIONS
A trial court had no jurisdiction to issue a restraining order under the Domestic
Violence Prevention Act (Fam. Code, § 6200 et seq.) to a woman who lived in the
same house as the man she sought to restrain but who had no romantic or close
relationship
with him. The man and woman did not live together as a group with a common
goal, and so could not be described as a social unit living together. The parties
were not cohabitants within the meaning of Faun. Code, §§ 6209, subd. (b) and
6211, as they did not regularly reside in the same household. Further, they lived
together wholly by happenstance, and were not even acquainted with each other
before they sublet rooms in the same house. Although the Act clearly has a broad
protective purpose, both in its stated intent and in the breadth of the persons
protected, there is nothing in the Act to indicate a legislative intent to cover the
type of residential arrangement that existed between these parties. O'Kane v
Irvine (1996, 1st Dist) 47 Cal App 4th 207, 54 Cal Rptr 2d 549.
For purposes of the Domestic Violence Prevention Act (DVPA), a "dating
relationship," as used in Fam C § 6211(c), refers to a serious courtship. It is a
social relationship between two individuals who have or have had a reciprocally
amorous and
increasingly exclusive interest in one another, and shared expectation of the
growth of that mutual interest, that has endured for such a length of time and
stimulated such frequent interactions that the relationship cannot be deemed to
have been casual.
However, a finding that the DVPA is inapplicable to a given instance of
harassment or abuse does not leave the victim without a remedy, since he or she
can seek a temporary restraining order and injunction under CCP § 527.6. Oriola
v Thaler (2000,1st
Dist) 84 Cal App 4th 397, 100 Cal Rptr 2d 822.
Copyright© 2002, LEXIS-NEXIS®, a division of Reed Elsevier Inc. All Rights
Reserved.
3 2 6
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX B. CALIFORNIA PENAL CODE 273.5
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright 1999 LEXIS Law Publishing, a division of Reed Elsevier Inc.
All rights reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2000
SUPPLEMENT (1999 SESSION) *** INCLUDING URGENCY
LEGISLATION THROUGH 2000 REG. SESS. CH. 329, 9/7/00
PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes
Against Public Decency and Good Morals
CHAPTER 2. Abandonment and Neglect of Children
Cal Pen Code § 273.5 (2000)
§ 273.5. Infliction of injury on spouse, cohabitee or parent of child; Conditions of
probation
(a) Any person who willfully inflicts upon a person who is his or her spouse,
former spouse, cohabitant, former cohabitant, or the mother or father of his or her
child, corporal injury resulting in a traumatic condition, is guilty of a felony, and
upon conviction thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one year, or by a
fine of up to six thousand dollars ($ 6,000) or by both that fine and imprisonment.
(b) Holding oneself out to be the husband or wife of the person with whom one
is cohabiting is not necessary to constitute cohabitation as the term is used in this
section.
(c) As used in this section, "traumatic condition" means a condition of the body,
such as a wound or external or internal injury, whether of a minor or serious
nature, caused by a physical force.
(d) For the purpose of this section, a person shall be considered the father or
mother of another person's child if the alleged male parent is presumed the natural
father under Sections 7611 and 7612 of the Family Code.
(e) Any person convicted of violating this section for acts occurring within
seven years of a previous conviction under subdivision (a), or subdivision (d) of
327
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by
imprisonment in a county jail for not more than one year, or by imprisonment in
the state prison for two, four, or five years, or by both imprisonment and a fine of
up to ten thousand dollars ($ 10,000).
(f) If probation is granted to any person convicted under subdivision (a), the
court shall impose probation consistent with the provisions of Section 1203.097.
(g) If probation is granted, or the execution or imposition of a sentence is
suspended, for any defendant convicted under subdivision (a) who has been
convicted of any prior offense specified in subdivision (e), the court shall impose
one of the following conditions of probation:
(1) If the defendant has suffered one prior conviction within the previous seven
years for a violation of any offense specified in subdivision (e), it shall be a
condition thereof, in addition to the provisions contained in Section 1203.097, that
he or she be imprisoned in a county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions within the
previous seven years for a violation of any offense specified in subdivision (e), it
shall be a condition of probation, in addition to the provisions contained in
Section 1203.097, that
he or she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of good cause, may find that the mandatory
imprisonment required by this subdivision shall not be imposed and shall state on
the record its reasons for finding good cause.
(h) If probation is granted upon conviction of a violation of subdivision (a), the
conditions of probation may include, consistent with the terms of probation
imposed pursuant to Section 1203.97, in lieu of a fine, one or both of the
following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a
maximum of five thousand dollars ($ 5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling
and other reasonable expenses that the court finds are the direct result of the
defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or
pay restitution as a condition of probation under this subdivision, the court shall
328
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
make a determination of the defendant's ability to pay. In no event shall any order
to make
payments to a battered women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or court-ordered child support.
Where the injury to a married person is caused in whole or in part by the criminal
acts of his or her spouse in violation of this section, the community property may
not be used to discharge the liability of the offending spouse for restitution to the
injured spouse, required by Section 1203.04, as operative on or before August 2,
1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse
and dependents, required by this section, until all separate property of the
offending spouse is exhausted.
HISTORY:
Added Stats 1977 ch912 §3. Amended Stats 1980 ch 1117 § 3.
Amended Stats 1985 ch 563 § 1; Stats 1987 ch 415 § 2; Stats 1988 ch 576 § 1,
effective August 25, 1988; Stats 1990 ch 680 § 1, (AB 2632); Stats 1992 ch 163 §
104 (AB 2641), operative January 1,1994 (ch 184 prevails), ch 183 § 1 (SB
1545), ch 184 § 3 (AB 2439); Stats 1993 ch 219 §216.4 (AB 1500); Stats 1st Ex
Sess 1993-94 ch 28 § 2 (AB 93 X),
effective November 30,1994; Stats 1996 ch 1075 § 15 (SB 1444), ch 1077 § 16
(AB 2898); Stats 1999 ch 660 § 2 (SB 563), ch 662 § 9.5 (SB 218).
NOTES:
AMENDMENTS:
1980 Amendment:
Added "for 2, 3 or 4 years" in subd (a).
1985 Amendment:
Added subd (c).
1987 Amendment:
Added (1) ", or by a fine of up to six thousand dollars ($ 6,000) or by both" at
the end of subd (a); and (2) subd (d).
1988 Amendment:
(1) Added "or any person who willfully inflicts upon any person who is the
mother or father of his or her child," before "corporal Injury" in subd (a); (2)
added subd (d); (3) redesignated former subd (d) to be subd (e); and (4) added
subds (f) and (g).
329
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
1990 Amendment:
Substituted "participation in a batterer's treatment program" for "supervised
counseling" the first time it appears and for "counseling" the second time it
appears in subd (e).
1992 Amendment:
(1) Substituted "a" for "the" before "county jail" in subds (a), (f) and (g); (2)
substituted "program," for "programs" after "batterer's treatment" both times it
appears in subd (g); and (3) added subd (h).
1993 Amendment:
Substituted "Sections 7611 and 7612 of the Family Code" for "Section 7004 of
the Civil Code" in subd (d).
1994 Amendment:
(1) Deleted "of the opposite sex" after "upon any person" in subd (a); (2)
substituted ", as specified in Section 1203.097" for "unless, considering all of the
facts and circumstances, the court finds participation in a batterer's treatment
program
inappropriate for the defendant" in subd (e); (3) added "pursuant to Section
1230.097" at the end of the first sentence of subds (f) and (g); (4) deleted "or a
participation in a batterer's treatment program, or both the mandatory minimum
imprisonment and
participation in a batterer's treatment program," after "minimum imprisonment,"
in the second sentence of subds (f) and (g); and (5) substituted "five thousand
dollars ($ 5,000), pursuant to Section 1203.097" for "one thousand dollars ($
1,000)" in subd (h)(1).
1996 Amendment:
Added "as operative on or before August 2, 1995, or Section 1202.4," in the last
paragraph. (As amended Stats 1996 ch 1077, compared to the section as it read
prior to 1996. This section was also amended by an earlier chapter, ch 1075. See
Gov C § 9605.)
1999 Amendment:
(1) Amended subd (a) by (a) substituting "a person who is his or her spouse,
former spouse, cohabitant, former cohabitant, or" for "his or her spouse, or any
person who willfully inflicts upon any person with whom he or she is cohabiting,
or any person
who willfully inflicts upon any person who is the"; and (b) adding "that fine and
imprisonment" at the end of the subdivision; (2) substituted subds (e)-(g) for
former subds (e)-(g) which read: "(e) In any case in which a person is convicted
of violating this
330
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
section and probation is granted, the court shall require participation in a batterer’ s
treatment program as a condition of probation, as specified in Section 1203.097.
"(f) If probation is granted, or the execution or imposition of a sentence is
suspended, for any person convicted under subdivision (a) who previously has
been convicted under subdivision (a) for an offense that occurred within seven
years of the offense of the second conviction, It shall be a condition thereof that
he or she be imprisoned In a county jail for not less than 96 hours and that he or
she participate in, for no less than one year, and successfully complete, a batterer's
treatment program, as designated by the court pursuant to Section 1203.097.
However, the court, upon a showing of good cause, may find that the mandatory
minimum imprisonment, as required by this subdivision, shall not be imposed and
grant probation or the suspension of the execution or imposition of a sentence.
"(g) If probation is granted, or the execution or imposition of a sentence is
suspended, for any person convicted under subdivision (a) who previously has
been convicted of two or more violations of subdivision (a) for offenses that
occurred within seven years of the most recent conviction, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less than 30 days and
that he or she participate in for no less than one year, and successfully complete, a
batterer's treatment program as designated by the court pursuant to Section
1203.097. However, the court, upon a showing of good cause, may
find that the mandatory minimum imprisonment, as required by this subdivision,
shall not be imposed and grant probation or the suspension of the execution or
imposition of a sentence."; and (3) added ", consistent with the terms of probation
imposed pursuant to Section 1203.97," in the introductory clause of subd (h).
NOTE-
Stats 1990 ch 680 provides:
SEC. 2. This act does not constitute a change in, but is declaratory of, existing
law.
OFFICIAL COMMENT:
LAW REVISION COMMISSION COMMENTS:
1993- Subdivision (d) of Section 273.5 is amended to substitute a reference to
the Family Code provisions that replaced former Civil Code Section 7004.
CROSS REFERENCES:
"Assault": Pen C § 240.
"Battery": Pen C § 242.
Sexual Battery: Pen C § 243.4.
"Rape": Pen C § 261.
"Rape of spouse": Pen C § 262.
Essence of rape: Pen C § 263.
331
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Domestic Violence Protection Act: CCP §§ 540 et seq.
COLLATERAL REFERENCES:
Witkin & Epstein, Criminal Law (2d ed) §§ 251, 432, 773.
Witkin Summary (9th ed) Constitutional Law § 664; Husband & Wife § 28.
Cal Jur 3d (Rev) Criminal Law §§ 614 et seq.
California Judges Benchguide S216: Mandatory criminal jury instructions. Cal
Center Jud Edu & Research No. 11.
FORMS:
Suggested form is set out below, following Notes of Decisions.
LAW REVIEW ARTICLES:
Interspouse action for tort arising before marriage. 39 ABAJ 503.
Domestic violence as a crime against the state: the need for mandatory arrest
in California. 85 Cal LR 643.
The battered woman: When a woman's "place" is in the courts. 10 Crim
Justice J 273.
The domestic violence dilemma: how our ineffective and varied responses
reflect our conflicted views of the problem. 71SCLR 641.
To break the shell without scrambling the egg: an empirical analysis of the
impact of intervention into violent families. 9Stanford Law & Policy Rev 409.
ANNOTATIONS:
What constitutes offense of "sexual battery". 87 ALR3d 1250.
1. In General
2. Constitutionality
3. Elements of Offense
1.
NOTES OF DECISIONS
In General the term "traumatic condition" is a technical one whose
meaning is not within the knowledge of jurors as a matter of law. People v Bums
(1948) 88 CA2d 867, 200 P2d 134.
In a prosecution for robbery and for wife-beating, where the defendant
was found not guilty of robbery and guilty of the included offense of simple
assault on the count of wife-beating, the acquittal of robbery did not require an
acquittal of assault, under prior section, since the counts were separate and stated
distinct offenses and the disposition of one had no bearing on the verdict with
respect to the other. People v Van Os (1950) 96 CA2d 204, 214 P2d 554.
332
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In a prosecution for inflicting corporal punishment or injury on a child
resulting in a traumatic condition, in violation of Pen. Code, § 273d, the trial court
properly instructed the jury in accordance with Pen. Code, § 7, subd. 1, that the
word wilfully "implies simply a purpose or willingness to commit the act or make
the omission in question." In such a prosecution there need not be found a
deliberate intent to cause a traumatic condition, but only the more general intent
to inflict upon a child any cruel or inhuman corporal punishment or injury.
People v Atkins (1975) 53 CA3d 348, 125 Cal Rptr 855.
The special relationships of persons of the opposite sex in intimate
relationships provide a rational distinction with a substantial relation to the
purposes of Pen. Code, § 273.5 (spouse beating) and therefore justify the greater
protection provided such persons in the form of the lesser standard of violence
(that which results in a "traumatic condition") which will support a felony
conviction under Pen. Code, § 273.5, as opposed to the "serious bodily injury"
required for felony battery (Pen. Code, § 243, subd. (d)) or the use of "force likely
to produce great bodily injury" that is an element of felony assault (Pen. Code, §
245, subd. (a)). People v Gutierrez (1985, 2d Dist) 171 Cal App 3d 944, 217 Cal
Rptr 616.
Because cohabiting partners, whether married or not, are in a high risk
category for domestic violence and the nature of such violence often precludes a
simple arrest under general battery statutes (either because a responding officer
does not observe an attack or because the injuries inflicted are not so serious as to
amount to "serious bodily injury" as defined in Pen. Code, § 243, subd. (e)(5)),
Pen. Code, § 273.5 (violence against spouse or cohabitating meretricious partner),
properly provides an officer with a basis for arrest that is specific to the unique
problems of spousal violence. People v Gutierrez (1985, 2d Dist) 171 Cal App 3d
944, 217 Cal Rptr 616.
The Law Enforcement Response to Domestic Violence Act (Pen. Code, §
13700 et seq.) and Pen. Code, § 273.5 (infliction of corporal Injury on cohabitant),
promote the same goal-the protection of persons from violence committed by
their domestic partners or others with whom they have a significant relationship.
Section 273.5 expanded the scope of Pen. Code, § 273d (wife beating), by
removing the requirement that the parties be married. People v Ballard (1988,1st
Dist) 203 Cal App3d 311,249 Cal Rptr 806.
Defendant's motion to suppress evidence obtained during police officers'
entry of Ms home without a warrant in order to arrest him was properly denied,
where information imparted to the officers and their observations were sufficient
to establish probable cause to believe that defendant had committed a violation of
333
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Pen. Code, § 273.5 (infliction of corporal injury on a spouse). One officer testified
that when he arrived at the residence he found the victim crying uncontrollably;
he observed redness about her face and nose, and she informed him that
defendant, her husband, had hit her a few times in the face and that
her neck and nose were sore. Section 273.5 is violated when the defendant inflicts
even "minor" injury; unlike other felonies that require serious or great bodily
injury, the Legislature has clothed persons of the opposite sex in intimate
relationships with
greater protection by requiring less harm to be inflicted before the offense is
committed. People v Wilkins (1993, 3rd Dist) 14Cal App 4th 761, 17 Cal Rptr 2d
743.
The prosecutor could properly charge defendant with, and he could be
properly convicted of numerous violations of, Pen. Code, § 273.5 (infliction of
injury on cohabitant of opposite sex), even though only two victims were
involved. Section 273.5 is not a continuous course of conduct offense that
precludes a separate charge for each act of violence. People v Healy (1993, 2d
Dist) 14 Cal App 4th 1137,18 Cal Rptr 2d 274.
Since Pen. Code, § 273.5 (abuse of cohabitant of opposite sex), applies to
"corporal injury resulting in a traumatic condition," and a "traumatic condition" is
defined in the statute as "a condition of the body, such as a wound or external or
internal injury, whether of a minor or serious nature, caused by a physical force, a
defendant who inflicts only "minor" injury violates the statute. By contrast, felony
battery requires "serious bodily injury" (Pen. Code, § 243, subd. (d)) and felony
assault requires "force likely to produce great bodily injury" (Pen. Code, § 245,
subd. (a)). Pen. Code, § 273.5, requires a lesser showing of harm so officers can
intervene more expeditiously in domestic disputes. In other words, the Legislature
has clothed persons of the opposite sex in intimate relationships with greater
protection by requiring less harm to be inflicted before the
offense is committed. People v Silva (1994, 5th Dist) 27 Cal App 4th 1160, 33
Cal Rptr 2d 181.
In a prosecution for infliction of corporal injury in violation of Pen C §
273.5, the trial court erred in applying the statute, where the defendant was
charged with inflicting a corporal injury on a woman who was pregnant with his
unborn child. Pen C § 273.5 does not apply to the prospective parents of unborn
children. Pen C § 273.5, in defining "mother," excludes pregnant women.
Although the statute does not define "child," the Legislature has defined "minor,"
to which the term "child" under Pen C § 273d has been judicially construed to be
synonymous with "child," and such definition excludes a fetus. People v Ward
(1998, 4th Dist) 62 Cal App 4th 122, 72 Cal Rptr 2d 531.
334
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In a prosecution of defendant for infliction of corporal punishment
resulting in a traumatic condition on the mother of his children, the trial court did
not err when it instructed the jury that infliction of corporal injury on the mother
of one's children is a
general intent crime. That is, spousal injury is not a specific intent crime that
requires both a general intent to use force against the spouse and a further specific
intent that the force will result in a traumatic condition. Section 273.5(a) uses no
other language of intent than the word "willfully," specifying only that the act
done result in a "traumatic condition." Consequently, itsterms come within the
general rule that statutes proscribing willful behavior are general intent crimes.
People v Thurston (1999, 4th Dist) 71 Cal App 4th 1050, 84 Cal Rptr 2d 221,
1053.
In a prosecution for willful infliction of corporal injury on a cohabitant
(Penal C § 273.5(a)), the trial court erred in failing to instruct the jury sua sponte
regarding the defense of accident. The trial court has a duty to instruct sua sponte
regarding a defense only if it appears that the defendant is relying on such a
defense, or if there is substantial evidence supportive of such a defense and the
defense is not inconsistent with the defendant's theory of the case. Here, there was
substantial evidence that the victim's injuries were caused by an accident and that
defense counsel relied on the defense of accident in his argument to the jury. The
trial court compounded the error and bypassed an opportunity to cure it when it
responded to the jury's inquiry seeking a clarification of the instructions. It was
apparent that the jurors were experiencing difficulty with the court's instructions
concerning the willful intent required in order to convict appellant in light of the
evidence that the victim was injured in an accident, but the trial court did not offer
the jury any assistance, having merely reread several instructions already given,
told the jury to use its common sense, and concluded by stating, "That is as far as
I can go." People v Gonzales (1999, 2nd Dist) 74Cal App 4th 382, 389, 88 Cal
Rptr 2d 111.
In a prosecution for assault with a deadly weapon, corporal injury on a
spouse, false imprisonment, and possession of methamphetamine in which
defendant's prison sentence was suspended under W & IC § 3051 for
commitment of defendant to the California Rehabilitation Center to treat his drug
addition, the trial court erred in refusing to modify defendant's sentence following
rejection of defendant from CRC. There is no statutory or administrative mandate
that the previously imposed judgment be in full force and effect upon the
defendant's rejection from CRC. W & I C § 3053 requires only that the defendant
be returned to the court in which the case originated for such further proceedings
on the criminal charges as that court may deem warranted. Thus, the trial court
had jurisdiction to mitigate, but not to increase, defendant's sentence. People v
Nubia (1999,1st Dist) 74 Cal App 4th 719, 725, 728, 88 Cal Rptr 2d 265.
335
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
In a prosecution of defendant for inflicting corporal injury resulting in
traumatic injury to Ms wife (Penal C § 273.5(a)), the trial court did not err in
failing to sua sponte instruct the jury that the spousal abuse crime requires
specific intent. Contrary to defendant's contention that § 273.5 is a specific intent
crime because it requires a general intent to use force against the spouse and a
further specific intent that the force will result in a traumatic injury, a defendant
may be found guilty of § 273.5(a) if he willfully used force against his spouse,
even if he did not specifically intend to cause the traumatic injury. People v
Campbell (1999, 4th Dist) 76 Cal App 4th 305, 308, 90 Cal Rptr 2d 315.
2. Constitutionality
Pen. Code, § 273d, making it a crime for a husband to inflict corporal
punishment on Ms wife, is not unconstitutionally vague. People v Cameron
(1975) 53 CA3d 786, 126 Cal Rptr 44.
The punishment imposed by Pen. Code, § 273d, making it a crime for a
husband to inflict corporal punishment on Ms wife, is not unconstitutionally cruel
and unusual. People v Cameron (1975) 53 CA3d 786, 126 Cal Rptr 44. Pen.
Code, § 273d, making it a crime for a husband to inflict corporal injury on Ms
wife, does not violate equal protection requirements in applying only to married
men who assault their wives and not to unmarried men who assault their
paramours nor to wives who assault their husbands. People v Cameron (1975) 53
CA3d 786, 126 Cal Rptr 44.
The terms "cruel and inhuman corporal pumshment," as used in Pen.
Code, § 273d, making it a crime for any person to willfully inflict on a child any
cruel or inhuman corporal punishment, are not unconstitutionally vague. People v
Thomas (1976)
65 CA3d 854, 135 Cal Rptr 644.
Pen. Code, § 273.5, prohibiting infliction of corporal injury resulting in
traumatic condition upon a spouse or other person with whom a defendant
cohabits, is a proper exercise of the Legislature's judgment, made in response to
the social facts of increasing numbers of meretricious relationsMps, violent
encounters between mates, and the special needs for protection of recently
separated spouses from vindictive violence. That the statute singles out spousal
and meretricious cohabitation relationsMps for special protection does not violate
constitutional guarantees of equal protection by its failure to include separated
meretricious partners or divorced spouses. People v Gutierrez (1985, 2d Dist) 171
Cal App 3d 944, 217 Cal Rptr 616.
3 3 6
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Pen. Code, § 273.5 (infliction of corporal injury on cohabitant) was not
void for vagueness as applied to a defendant who had attacked the woman with
whom he had "lived together In one bed" for two years. The term "cohabit" has a
settled meaning that is clear under the law of the state. Thus, the statute afforded
notice to defendant that his conduct was proscribed, and there was a clear
standard for law enforcement officials and for the courts to apply. People v
Ballard (1988,1st Dist) 203 Cal App 3d 311, 249 Cal Rptr 806.
273.5 (Inflicting corporal injury on cohabitant), is not void for vagueness,
even though It does not comprehensively define what constitutes "cohabiting." In
light of its use in other statutes and case law, "cohabiting" means an unrelated
man and woman living together in a substantial relationship-one manifested,
minimally, by permanence and sexual or amorous intimacy. That definition
accords with the common, broad understanding of "cohabiting" except for the
limitation, implied from the man-woman
restriction on the face of the statute, that the couple must be unrelated and living
in sexual or amorous intimacy. This definition gives sufficiently definite warning
to the offender and guidelines for law enforcement to satisfy the state and federal
Constitutions. People v Holifield (1988, 1st Dist) 205 Cal App 3d 993, 252 Cal
Rptr 729.
Defendant, who was convicted of spousal abuse (Pen. Code, § 273.5), was
not denied equal protection, although the statute only proscribes abuse against a
cohabitant of the opposite sex. Since abuse of a same-sex cohabitant is criminal
under general statutes proscribing assault and battery, the added penalty for
violating § 273.5 is within the Legislature's discretion to distinguish punishment
for particular crimes, provided the Legislature has a rational basis for the
classification. Wives as an object of abuse by their spouses are a class distinctly
set apart by the conditions under which their abuse customarily occurs. Women
are usually less able to defend themselves against male cohabitants, and women in
Gpposite-sex relationships comprise the largest single category of domestic abuse
victims. Faced with this situation, it would not have been unreasonable for the
Legislature, in enacting § 273.5, to conclude that men and women in opposite-sex
relationships face a particular risk of domestic violence. Although persons in
same-sex relationships may also face similar dangers, the Legislature's omission
of
same-sex relationships does not render § 273.5 so irrational or invidiously
discriminatory as to be unconstitutional. People v Silva (1994, 5th Dist) 27 Cal
App 4th 1160, 33 Cal Rptr 2d 181.
Application of Pen. Code, § 1270.1, which requires a court to give the
prosecutor two court days' notice prior to considering a defendant's request for
release on his or her own recognizance (OR), to a person arrested for a
337
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
misdemeanor violation of Pen. Code, § 273.5 (battery on a cohabitant), does not
violate constitutional guarantees to equal protection of the law. There is a rational
basis for treating cohabitant batterers differently. The overriding purpose of
Pen. Code, § 273.5, is to deter domestic violence. Since enacting its
predecessor statute in 1945, the Legislature has continually broadened the
scope of this protection. The evolution of this statute reflects a developing
awareness of the human factors that lead to domestic violence. The
Legislature’s enactments reflect a societal determination that domestic
violence, once viewed as a purely private m atter in which the state was
reluctant to Interfere, will no longer be tolerated. Victim and batterer in
domestic violence situations have a special relationship, with the victim often
particularly vulnerable. Hence, it is reasonable for the Legislature to require a
notice provision for an OR motion in this circumstance. Dant v Superior Court
(1998, 1st Dist) 61 Cal App 4th 380, 71 Cal Rptr 2d 546.
3. Elements of Offense
Where the evidence did not show clearly that the defendant was either
innocent or guilty of the offense of inflicting a traumatic injury upon his wife, it
was prejudicial error to refuse his proffered instruction on the included offense of
simple assault. People v Bums (1948) 88 CA2d 867, 200 P2d 134.
Since the term "traumatic condition" pertains not to the evidence but to a
principle of law relating to the offense charged, an instmction defining such term
should be given by the court on its own motion and the omission of such
instruction is prejudicial error. People v Bums (1948) 88 CA2d 867,200 P2d 134.
In a prosecution for wife-beating, the court did not commit prejudicial
error in instructing the jury that simple assault was a lesser and included offense
in the crime of wife-beating in view of the definitions of those offenses in former
statute, since the jury may not have believed that the altercation between the
parties resulted in a traumatic injury to the complaining witness though they may
have believed the defendant had ability, and did attempt, to commit a violent
assault on her person. People v Van Os (1950) 96 CA2d 204, 214 P2d 554.
Implied findings necessary to sustain conviction of husband for offense of
wilfully inflicting on his wife corporal Injury resulting in traumatic condition are
that defendant and complaining witness were husband and wife, that he wilfully
inflicted corporal injury on her, and that corporal injury thus inflicted resulted in
traumatic condition. People v Mitchell (1957) 155 CA2d 665, 318 P2d 157.
Injuries inflicted by defendant on his 15-year-old stepdaughter by repeated
blows of his fists causing the victim's eye to be swollen, and her lip cut and
338
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
swollen, were injuries resulting in a "traumatic condition” within the meaning of
the Pen. Code, § 273d, making it a crime to inflict any cmel or inhuman corporal
punishment on a child resulting in a traumatic condition. People v Thomas (1976)
65 CA3d 854, 135 Cal Rptr 644.
Injury resulting in a traumatic condition differentiates the crime of spouse
beating (Pen. Code, § 273.5) from the lesser included offenses of simply assault
(Pen. Code, §§ 240; 241, subd. (a)) and misdemeanor battery (Pen. Code, §§ 242;
243, subd. (a)). People v Gutierrez (1985, 2d Dist) 171 Cal App 3d 944, 217 Cal
Rptr 616.
In a prosecution for forcible rape (Pen. Code, § 261, subd. (a)(2)) and
forcible genital penetration by a foreign object (Pen. Code, § 289, subd. (a)), the
trial court properly permitted the prosecution to impeach defendant with a prior
conviction for inflicting corporal injury on a spouse or cohabitant (Pen. Code, §
273.5), since that offense involves moral turpitude. To violate Pen. Code, § 273.5,
the assailant must injure a person of the opposite sex with whom the assailant is
involved in a special
relationship that involves stability and safety. For that reason, the victim may be
especially vulnerable. To join in, and thus necessarily be aware of, that special
relationship, and then to violate it willfully and with an intent to injure,
necessarily connotes the general readiness to do evil that defines moral turpitude.
People v Rodriguez (1992, 6th Dist) 5 Cal App 4th 1398, 7 Cal Rptr 2d 495.
The evidence was insufficient to sustain defendant's conviction of
infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), where,
although defendant slapped his wife several times, there was no evidence of even
a minor injury sufficient to satisfy the statutory definition of "corporal injury
resulting in a traumatic condition." The soreness and tenderness the wife had
experienced were not sufficient to constitute a traumatic condition, and the statute
requires injury from a traumatic condition, even though the injury may be minor.
The wife's emotional upset after the incident was insufficient to elevate the crime
from simple battery to a violation of Pen. Code, § 273.5. People v Abrego (1993,
4th Dist) 21 Cal App 4th 133, 25 Cal Rptr 2d 736.
Pursuant to Pen. Code, § 273.5, which proscribes abuse against a
cohabiting person of the opposite sex, "cohabiting" means an unrelated man and
woman living together in a substantial relationship, i.e., one manifested,
minimally, by permanence and sexual or amorous intimacy. People v Silva (1994,
5th Dist) 27 Cal App 4th 1160,33 Cal Rptr 2d 181.
In a prosecution for inflicting corporal injury on the mother of defendant's
children in violation of Pen. Code, § 273.5, subd. (a), the testimony of the victim,
339
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
that defendant was the father of her three children and that she received welfare
when defendant was absent from the home, constituted substantial evidence that
defendant was the father of her children within the meaning of the statute.
Although Pen. Code, § 273.5, subd. (a), provides that a person shall be considered
the father if he is presumed the natural father under Fam. Code, §§ 7611 and
7612, the statute does not require that parentage be established by resort to the
presumptions. Any substantial evidence that establishes the victim as the mother
or father of the defendant's child is sufficient to sustain a conviction. Pen. Code, §
273.5, was intended to protect persons of the opposite sex who live in "intimate"
and "significant relationships" without marriage, while the Uniform Parentage
Act, of which the presumptions are a part, was enacted to eliminate the legal
distinction between legitimate and illegitimate children. The domestic violent
deterrent behind Pen. Code, § 273.5, does not require such distinctions to come
into play, and no purpose is served by requiring the prosecution to establish in
every case that the defendant is the presumed natural father under Fam. Code, §§
7611 and 7612. People v Vega (1995, 5th Dist) 33 Cal App 4th 706, 39 Cal Rptr
2d 479.
Under Pen. Code, § 273.5, providing that any person who willfully inflicts
upon any person with whom he is cohabiting, or who is the mother of his child,
corporal injury resulting in a traumatic condition, is guilty of a felony, an
attempted injury upon a cohabitant does not require a "traumatic condition."
People v Kinsey (1995, 2nd Dist) 40 Cal App 4th 1621, 47 Cal Rptr 2d 769.
Defendant's conviction of attempted injury upon a cohabitant (Pen. Code,
§§ 664,273.5, subd. (a)), was supported by sufficient evidence. The jury could
conclude that defendant intended to cause a "traumatic condition. The Legislature
has clothed persons of the opposite sex in intimate relationships with greater
protection by requiring less harm to be inflicted before the offense is committed.
A "traumatic condition" is "a wound or external or internal injury, whether of a
minor or serious nature, caused by a physical force." The victim, eight and one-
half months pregnant, was especially vulnerable to such "external or internal
injury." A jury could have reasonably concluded that defendant, who shoved the
victim hard, yelled, screamed, and cursed at her, tried for an hour to "get at her,"
and kept reaching toward her, swiping or swinging at her with his hand, intended
to cause her external or internal injury. People v Kinsey (1995, 2nd Dist) 40 Cal
App 4th 1621,47 Cal Rptr 2d 769.
In a prosecution for attempted injury upon a cohabitant (Pen. Code, §§
664, 273.5, subd. (a)), the instructions did not fail to inform the jury an attempted
violation required proof of an intent to cause a traumatic condition. The trial court
instructed the jury that to be guilty of a violation of Pen. Code, § 273.5, a person
must willfully inflict upon his cohabitant bodily injury resulting in a traumatic
340
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
condition (CALJIC No. 9.35 (1989 re-rev.)). Concerning the crime of attempt, the
trial court instructed the jury "there must exist a union or joint operation of act or
conduct and a certain specific intent in the mind of the perpetrator. Unless such
specific intent exists the crime to which it relates is not committed. The crime of
attempted Pen. Code § 273.5 [subd. a], requires the specific intent to inflict bodily
injury resulting in a traumatic condition upon the person as described" (CALJIC
No. 3.31 (1992 rev.)). Fairly considered, a reasonable juror would have
understood the trial court's instructions to mean an intent to cause traumatic
condition was a necessary element of attempted Pen. Code, § 273.5, subd. (a). If
defendant desired a clarification of the fine distinction between an intent to inflict
bodily injury and an intent to cause a traumatic condition (which is an "external or
internal injury of a minor nature") it was his duty to request such a clarification.
People v Kinsey (1995,2nd Dist) 40 Cal App 4th 1621,47 Cal Rptr 2d 769.
For purposes of liability under Pen. Code, § 273.5 (inflicting corporal
punishment on cohabitant, spouse, or parent of child), a defendant may cohabit
simultaneously with two or more people at different locations if he or she
maintains substantial ongoing
relationships with each and lives with each for significant periods. Thus, there
was sufficient evidence in a criminal prosecution to support the jury’s finding that
defendant was cohabiting with the victim at the time of the subject incidents,
whether or not he
was simultaneously cohabiting with one or more other women. Although the trial
court erred in leaving to the jury the essentially legal question of whether there
could in fact be simultaneous cohabitation, there was no possible prejudice in this
case. The trial court provided a proper definition of cohabitation, taken from
CALJIC No. 9.35 and based on applicable precedent. If the jury determined that
simultaneous cohabitation could not exist, its convictions indicated it did not
believe the defense evidence and concluded instead that defendant was cohabiting
exclusively with the victim at the time of the disputed incidents. If the jury
concluded that simultaneous cohabitation could exist, the jury's conviction may
have stood on the correct legal conclusion that a person may simultaneously
cohabit with two or more individuals at different locations. There was sufficient
evidence that defendant continued to live with the victim during the alleged
incidents, although not exclusively, and that he maintained a substantial
relationship with her even after he started new relationships with others. People v
Moore (1996, 1st Dist) 44 Cal App 4th 1323, 52 Cal Rptr 2d 25.
Defendant was properly convicted of battering the mother of his child
(Pen. Code, § 273.5), even though their parental rights to that child had been
terminated before commission of the offense. The termination of parental rights
alters the continuing legal
341
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
relationship of a biological parent and child, but does not, and cannot, alter the
biological fact of a defendant's paternity of that child. Termination of parental
rights only affects the legal status and continuing relationship of parent and child.
The statutory language does not require a continuing parent-child relationship in
order for its prohibition to apply. It requires nothing more than the historical fact
of paternity to justify punishing a man for battering the mother of his child. This
is consistent with the general purpose of this law to deter domestic violence and
the specific purpose of the 1988 amendment to protect persons whose past
Intimate relationship resulted in the birth of a child. People v Mora (1996, 1 st
Dist) 51 Cal App 4th 1349, 59 Cal Rptr 2d 801.
In a prosecution of defendant for infliction of corporal punishment
resulting in a traumatic condition on the mother of his children, the trial court was
not required to give an instruction that the perpetrator had a separate intent to
bring about the injury. People v Thurston (1999, 4th Dist) 71 Cal App 4th 1050,
84 Cal Rptr 2d 221, 1055.
Penal Code § 273.5, which criminalizes the "willful infliction" of corporal
injury on a cohabitant, was not violated where the victim's injuries resulted from
her attempt to escape rather than from the battery. The history of the statute
supported the inference that the Legislature intended to define a crime in which
the corporal injury results from a direct application of force by the defendant upon
the victim. People v Jackson (2000, 2nd Dist) 77 Cal App 4th 574, 91 Cal Rptr 2d
805.
SUGGESTED FORMS
ALLEGATION CHARGING INFLICTION OF INJURY ON SPOUSE,
COHABITEE OR PARENT OF CHILD
[Insert general form of complaint (see Penal C §740)]
— , being duly sworn, states on information and belief that the defendant did, in
th e [City o f or Judicial District], County o f , State of California,
on or about [date], commit a felony, that is:---- did wilfully inflict corporal
Injury resulting in a traumatic condition upon , who is [ (his or her)
spouse or a person with whom (he or she) was cohabiting or the----
(mother or father)
other parent o f (his or her) child].
Copyright© 2001, LEXIS-NEXIS®, a division of Reed Elsevier Inc. All Rights
Reserved.
342
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX C. DOMESTIC VIOLENCE INCIDENT FLOW CHART
911 Call) Victim reports at station Officers witness incident] Police car flagged
[Officers respond and subsequently file a complaint report
No arrest'5
Primary aggressor arrested] Dual arrest Suspect GOA** Suspect present
Incident report sent to detectives
Case sent to prosecutor [Not sent/Case closed
Charges filed, Warrant issued if suspect not in custody] [Not filed/Case closed
Charges dismissed/Case closed Plea/Trial*** Found innocent/Case closed
Guilty or No Contest Plea] [Found Guilty
Sentencing
Probation/Jail Term Completed Not completed
Case closed
* Reasons given for non arrest or non prosecution:
Non-criminal
Minor injury
Victim non-desirous
Unable to contact victim
Unable to determine primary aggressor-Mutual battery, neither desirous
Insufficient evidence
Referred to a prosecutor’s office hearing
None
**Gone on arrival of police
***No cases in this study went to trial.
343
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX D. NEWS ARTICLE ANNOUNCING APPROVAL TO
ALLOW POLICE TO MAKE WARRANTLESS ARRESTS IN DOMESTIC
VIOLENCE CASES
Copyright 1996 Metropolitan News Company
Metropolitan News-Enterprise; Capitol News Service March 26, 1996,
Tuesday
SECTION: Pg. 11
LENGTH: 432 words
HEADLINE: Assembly Approves Bill to Allow Police to Make Warrantless
Arrests in Domestic Violence Cases
BYLINE: Staff Writer DATELINE: SACRAMENTO
(CAPITOL)
BODY: Legislation that would allow law enforcement officers to make arrests for
domestic violence incidents they do not witness cleared the Assembly yesterday
with a 55-3 vote.
The author of the legislation, Assemblywoman Barbara Alby, R-Sacramento, said
police officers should be given the extra authority because domestic violence
often poses life-threatening danger to victims and their children.
Her bill, AB 2116, would allow police to make warrantless arrests in cases
involving assault or battery upon the perpetrator's spouse, the parent of his or her
child or a person with whom he or she is living.
Police would be required to have "reasonable cause to believe that the person to
be arrested has committed the assault or battery, whether or not it has in fact been
committed."
Under current law, a police officer cannot make an arrest for a misdemeanor
unless he or she has witnessed the crime.
However, officers may make arrests in cases where they have reasonable cause to
believe a domestic violence protective order has been violated.
Also, in misdemeanor domestic violence cases not witnessed by a police officer,
the victim may make a citizen's arrest of the abuser.
Assemblyman Phil Isenberg, D-Sacramento, said Alby's bill "runs afoul of 200
years of law" by proposing to give police the authority to make arrests for
misdemeanors they don't see.
344
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Isenberg urged his colleagues to vote against the bill despite its "political
popularity" In an election year.
But Isenberg's criticism was answered by a former judge, a law professor and a
former sheriff who each said the bill would not put too much power in the hands
of law enforcement officers.
Assemblyman James Rogan, R-Glendale, a former Glendale Municipal Court
judge, said that while he has noticed a recent rush of anti-crime bills seemingly
Influenced by election-year politics, "I do not believe this is one of those bills."
Rogan said Alby's bill is "a narrowly carved exception [to current law on
warrantless arrests] that fits within constitutional law."
Assemblywoman Sheila Kuehl, D-Los Angeles, a professor at Loyola Law School
and the University of California at Los Angeles, also spoke in favor of AB 2116,
as did Assemblyman Richard Rainey, R-Walnut Creek, a former sheriff.
The bill, which was sent to the state Senate for further debate, is sponsored by the
California Peace Officers' Association and has been endorsed by the Doris Tate
Crime Victims Bureau.
The American Civil Liberties Union and the defense bar group California
Attorneys for Criminal Justice are opposed to AB 2116.
LOAD-DATE: March 26, 1996
Copyright© 2001, LEXIS-NEXIS®, a division of Reed Elsevier Inc. All Rights
Reserved.
345
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX E. CALIFORNIA PENAL CODE PROVISION FOR THE
TRAINING OF PEACE OFFICERS RESPONDING TO DOMESTIC
VIOLENCE COMPLAINTS.
DEERING’ S CALIFORNIA CODES ANNOTATED
Copyright 2002 LEXIS Law Publishing, a division of Reed Elsevier Inc.
All Rights Reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2002
SUPPLEMENT (2001 SESSION) *** INCLUDING URGENCY
LEGISLATION THROUGH 2002 REG. SESS. CH. 33, 4/26/02 AND 2001-2002
3RD EXTRA SESS. CH. 3XXX, 4/25/02
PENAL CODE
PART 4. Prevention of Crimes and Apprehension of Criminals
TITLE 4. Standards of Training of Local Law Enforcement Officers
CHAPTER 1. Commission on Peace Officer Standards and Training
ARTICLE 2. Field Services and Standards for Recruitment and Training
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
Cal Pen Code § 13519 (2001)
§ 13519. Training course for handling domestic violence complaints
(a) The commission shall implement by January 1,1986, a course or courses of
instruction for the training of law enforcement officers in California in the
handling of domestic violence complaints and also shall develop guidelines for
law enforcement
response to domestic violence. The course or courses of instruction and the
guidelines shall stress enforcement of criminal laws in domestic violence
situations, availability of civil remedies and community resources, and protection
of the victim. Where
appropriate, the training presenters shall include domestic violence experts with
expertise in the delivery of direct services to victims of domestic violence,
including utilizing the staff of shelters for battered women in the presentation of
training.
(b) As used in this section, "law enforcement officer" means any officer or
employee of a local police department or sheriffs office, any peace officer of the
346
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Department of Parks and Recreation, as defined in subdivision (I) of Section
830.2, any peace officer of the University of California Police Department, as
defined in subdivision (b) of Section 830.2, any peace officer of the California
State University Police Departments, as defined in subdivision (c) of Section
830.2, a peace officer, as defined in subdivision (d) of Section 830.31, or a peace
officer as defined in subdivisions (a) and (b) of Section 830.32.
(c) The course of basic training for law enforcement officers shall, no later than
January 1, 1986, include adequate instruction in the procedures and techniques
described below:
(1) The provisions set forth in Title 5 (commencing with Section 13700)
relating to response, enforcement of court orders, and data collection.
(2) The legal duties imposed on police officers to make arrests and offer
protection and assistance including guidelines for making felony and
misdemeanor arrests.
(3) Techniques for handling incidents of domestic violence that minimize the
likelihood of injury to the officer and that promote the safety of the victim.
(4) The nature and extent of domestic violence.
(5) The signs of domestic violence.
(6) The legal rights of, and remedies available to, victims of domestic violence.
(7) The use of an arrest by a private person in a domestic violence situation.
(8) Documentation, report writing, and evidence collection.
(9) Domestic violence diversion as provided in Chapter 2.6 (commencing with
Section 1000.6) of Title 6 of Part 2.
(10) Tenancy issues and domestic violence.
(11) The impact on children of law enforcement intervention in domestic
violence.
(12) The services and facilities available to victims and batterers.
(13) The use and applications of this code in domestic violence situations.
347
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(14) Verification and enforcement of temporary restraining orders when (A) the
suspect is present and (B) the suspect has fled.
(15) Verification and enforcement of stay-away orders.
(16) Cite and release policies.
(17) Emergency assistance to victims and how to assist victims in pursuing
criminal justice options.
(d) The guidelines developed by the commission shall also incorporate the
foregoing factors.
(e)(1) All law enforcement officers who have received their basic training
before January 1, 1986, shall participate in supplementary training on domestic
violence subjects, as prescribed and certified by the commission.
(2) Except as provided in paragraph (3), the training specified in paragraph (1)
shall be completed no later than January 1, 1989.
(3)(A) The training for peace officers of the Department of Parks and
Recreation, as defined in subdivision (g) of Section 830.2, shall be completed no
later than January 1, 1992.
(B) The training for peace officers of the University of California Police
Department and the California State University Police Departments, as defined in
Section 830.2, shall be completed no later than January 1, 1993.
(C) The training for peace officers employed by a housing authority, as defined
in subdivision (d) of Section 830.31, shall be completed no later than January 1,
1995.
(4) Local law enforcement agencies are encouraged to include, as a part of their
advanced officer training program, periodic updates and training on domestic
violence. The commission shall assist where possible.
(f)(1) The course of instruction, the learning and performance objectives, the
standards for the training, and the guidelines shall be developed by the
commission in consultation with appropriate groups and individuals having an
interest and expertise in the field
of domestic violence. The groups and individuals shall include, but shall not be
limited to, the following: one representative each from the California Peace
348
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Officers' Association, the Peace Officers' Research Association of California, the
State Bar of
California, the California Women Lawyers' Association, and the State
Commission on the Status of Women; two representatives from the commission;
two representatives from the California Alliance Against Domestic Violence; two
peace officers, recommended by the commission, who are experienced in the
provision of domestic violence training; and two domestic violence experts,
recommended by the California Alliance Against Domestic Violence, who are
experienced in the provision of direct services to victims of domestic violence. At
least one of the persons selected shall be a former victim of domestic violence.
(2) The commission, in consultation with these groups and individuals, shall
review existing training programs to determine in what ways domestic violence
training might be included as a part of ongoing programs.
(g) Each law enforcement officer below the rank of supervisor who is assigned
to patrol duties and would normally respond to domestic violence calls or
incidents of domestic violence shall complete, every two years, an updated course
of instruction on
domestic violence that is developed according to the standards and guidelines
developed pursuant to subdivision (d). The instruction required pursuant to this
subdivision shall be funded from existing resources available for the training
required pursuant to this section. It is the intent of the Legislature not to increase
the annual training costs of local government entities.
HISTORY:
Added Stats 1984 ch 1609 § 2. Amended Stats 1985 ch 281 § 1, effective July
26, 1985; Stats 1989 ch 850 § 3; Stats 1991 ch 912 § 1 (SB 421).
Amended Stats 1993 ch 1098 § 8 (AB 1268); Stats 1995 ch 965 § 1 (SB 132);
Stats 1998 ch 606 § 13 (SB 1880), ch 701 § 1 (AB 2172).
Amended Stats 1999 ch 659 § 4 (SB 355).
NOTES:
AMENDMENTS:
1985 Amendment:
Substituted "Title 6 " for "Title 5" in subd (b)(8).
1989 Amendment:
Added (1) "or any peace officer of the Department of Parks and Recreation, as
defined in subdivision (h) of Section 830.2" in the second paragraph of subd (a);
and (2) ”; except for peace officers of the Department of Parks and Recreation, as
defined in subdivision (h) of Section 830.2, whose training shall be completed no
later than January 1, 1992." in subd (c).
1991 Amendment:
349
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(1) Amended the second paragraph in subd (a) by substituting (a) a comma for
"or" after "sheriffs office"; and (b) "subdivision (g) of Section 830.2, any peace
officer of the University of California Police Department, as defined in
subdivision (c) of Section
830.2, or any peace officer of the California State University Police Departments,
as defined in subdivision (d)" for "subdivision (h)”; (2) designated the former first
paragraph in subd (c) to be subd (c)(1); (3) deleted the former second sentence of
subd (c)(1)
which read: "This training shall be completed no later than January 1, 1989;
except for peace officers of the Department of Parks and Recreation, as defined
in subdivision (h) of Section 830.2, whose training shall be completed no later
than January 1, 1992.";
and (4) added subds (c)(2) and (c)(3).
1993 Amendment:
(1) Amended the second paragraph of subd (a) by (a) deleting "or" after
"Section 830.2," the second time it appears; and (b) adding ", or a peace officer,
as defined in subdivision (d) of Section 830.31"; (2) redesignated former subd
(c)(3) to be subd
(c)(3)(A); (3) substituted the period for ", and" at the end of subd (c)(3)(A); (4)
added subdivision designation (c)(3)(B); and (5) added subd (c)(3)(C).
1995 Amendment:
(1) Added subdivision designation (c)(4); (2) added "a" before "part of' in subd
(c)(4); and (3) substituted subd (e) for former subd (e) which read: "(e) Forty
thousand dollars ($ 40,000) is appropriated from the Peace Officers Training Fund
in augmentation of Item 8120-001-268 of the Budget Act of 1984, to support the
travel, per diem, and associated costs for convening the necessary experts."
1998 Amendment:
(1) Made changes in subdivision designations and amended existing
designations in the text of subd (b) to conform; and (2) added subd (c)(5).
EDITOR’S NOTES:
For legislative findings and declarations, see the 1984 Note preceding Pen C §
13700.
COLLATERAL REFERENCES: Witkin Summary (9th ed) Husband & Wife §
28.
3 5 0
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX F. PROVISIONS REGARDING DOMESTIC VIOLENCE
ARRESTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2001 by Matthew Bender & Company, one of the LEXIS
Publishing companies. All rights reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2001 SUPPLEMENT
(2000 SESSION) *** INCLUDING URGENCY LEGISLATION THROUGH
2001 REG. SESS. CH.2, 3/1/01 AND 2001 1ST EX. SESS. CH. 4X, 2/1/01
PENAL CODE
PART 2. Criminal Procedure
TITLE 3. Additional Provisions Regarding Criminal Procedure
CHAPTER 5. Arrest, by Whom and How Made
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
Cal Pen Code § 836 (2001)
§ 836. Arrests by peace officers with or without warrants; Informing of citizen's
arrest right on domestic violence call; Warrantless arrests for domestic violence
(a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to
the authority granted to him or her by Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of
the following circumstances occur:
(1) The officer has probable cause to believe that the person to be arrested has
committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in the officer's
presence.
(3) The officer has probable cause to believe that the person to be arrested has
committed a felony, whether or not a felony, in fact, has been committed.
(b) Any time a peace officer is called out on a domestic violence call, it shall be
mandatory that the officer make a good faith effort to inform the victim of his or
her right to make a citizen's arrest. This information shall include advising the
victim how to safely execute the arrest.
351
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(c)(1) When a peace officer is responding to a call alleging a violation of a
domestic violence protective or restraining order issued under the Family Code,
Section 527.6 of the Code of Civil Procedure, Section 213.5 of the Welfare and
Institutions Code, Section 136.2 of this code, or paragraph (2) of subdivision (a)
of Section 1203.097 of this code, or of a domestic violence protective or
restraining order issued by the court of another
state, tribe, or territory and the peace officer has probable cause to believe that the
person against whom the order is issued has notice of the order and has committed
an act in violation of the order, the officer shall, consistent with subdivision (b) of
Section 13701, make a lawful arrest of the person without a warrant and take that
person into custody whether or not the violation occurred in the presence of the
arresting officer. The officer shall, as soon as possible after the arrest, confirm
with the appropriate authorities or the Domestic Violence Protection Order
Registry maintained pursuant to Section 6380 of the Family Code that a true copy
of the protective order has been registered, unless the victim provides the officer
with a copy of the protective order.
(2) The person against whom a protective order has been issued shall be deemed
to have notice of the order if the victim presents to the officer proof of service of
the order, the officer confirms with the appropriate authorities that a true copy of
the proof of service is on file, or the person against whom the protective order was
issued was
present at the protective order hearing or was informed by a peace officer of the
contents of the protective order.
(3) In situations where mutual protective orders have been issued under
Division 10 (commencing with Section 6200) of the Family Code, liability for
arrest under this subdivision applies only to those persons who are reasonably
believed to have been the primary aggressor. In those situations, prior to making
an arrest under this
subdivision, the peace officer shall make reasonable efforts to identify, and may
arrest, the primary aggressor involved in the incident. The primary aggressor is
the person determined to be the most significant, rather than the first, aggressor.
In identifying the primary aggressor, an officer shall consider (A) the intent of the
law to protect
victims of domestic violence from continuing abuse, (B) the threats creating fear
of physical injury, (C) the history of domestic violence between the persons
involved, and (D) whether either person involved acted in self-defense.
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect commits an
assault or battery upon a current or former spouse, fiance, fiancee, a current or
former cohabitant as defined in Section 6209 of the Family Code, a person with
352
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
whom the suspect currently is having or has previously had an engagement or
dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243,
a person with whom the suspect has parented a child, or is presumed to have
parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), a child of the suspect, a child
whose parentage by the suspect is the subject of an action under the Uniform
Parentage Act, a child of a person in one of the above categories, or any other
person related to the suspect by consanguinity or affinity within the second
degree, a peace officer may arrest the suspect without a w arrant where both of
the following circumstances apply:
(1) The peace officer has probable cause to believe that the person to be arrested
has committed the assault or battery, whether or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause arises to
believe that the person to be arrested has committed the assault or battery,
whether or not it has in fact been committed.
(e) In addition to the authority to make an arrest without a warrant pursuant to
paragraphs (1) and (3) of subdivision (a), a peace officer may, without a warrant,
arrest a person for a violation of Section 12025 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to be arrested has
committed the violation of Section 12025.
(2) The violation of Section 12025 occurred within an airport, as defined in
Section 21013 of the Public Utilities Code, in an area to which access is
controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause arises to
believe that the person to be arrested has committed the violation of Section
12025.
HISTORY:
Enacted Stats 1872. Amended Stats 1957 ch 2147 § 2; Stats 1968 ch 1222 § 59;
Stats 1992 ch 555 § 1 (AB 2336); Stats 1993 ch 995 § 1 (AB 1850); Stats 1994 ch
1269 § 60 (AB 2208); Stats 1996 ch 131 § 1 (AB 2116), ch 1140 § 3.5 (AB
2231); Stats 1998 ch 182 § 1 (SB 1470), ch 224 § 1 (AB 247), ch 699 § 2.3 (AB
1767).
Amended Stats 1999 ch 661 § 10 (AB 825), ch 662 § 13 (SB 218).
Amended Stats 2000 ch 47 § 1 (AB 2003).
NOTES:
353
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
AMENDMENTS:
1957 Amendment:
Prior to 1957 the section read: "A peace-officer may make an arrest In
obedience to a warrant delivered to him, or may, without a warrant, arrest a
person: "1. For a public offense committed or attempted in his presence. "2.
When a person arrested has committed a felony, although not in his presence. ”3.
When a felony has in fact been committed, and he has reasonable cause for
believing the person arrested to
have committed it. "4. On a charge made, upon a reasonable cause, of the
commission of a felony by the party arrested. "5. At night, when there is
reasonable cause to believe that he has committed a felony."
1957 Amendment amended the section to read as at present except for the
following amendments.
1968 Amendment:
Added ", pursuant to the authority granted him by the provisions of Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2," in the introductory clause.
1992 Amendment:
Substituted the section for the former section which read: "A peace officer may
make an arrest in obedience to a warrant, or may, pursuant to the authority
granted him by the provisions of Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2, without a warrant, arrest a person:
"(1) Whenever he has reasonable cause to believe that the person to be arrested
has committed a public offense in his presence.
"(2) When a person arrested has committed a felony, although not in his
presence.
"(3) Whenever he has reasonable cause to believe that the person to be arrested
has committed a felony, whether or not a felony has in fact been committed."
1993 Amendment:
Added subd (c).
1994 Amendment:
Substituted "Division 10 (commencing with Section 6200)" for "Section 2035,
2045, 5530, 5550, 5650, 7710, 7720, or 7750 of the Family Code" wherever it
appears in the first sentence of subds (c)(1) and (c)(3).
1996 Amendment:
(1) Substituted "domestic violence protective or restraining order issued under
the Family Code, Section 527.6 of the Code of Civil Procedure, Section 213.5 of
the Welfare and Institutions Code, or Section 136.2 of this code, or of a domestic
violence protective or restraining order issued by the court of another state, tribe,
or territory" for "protective order issued under Division 10 (commencing with
Section 6200) of the Family Code or Section 136.2 of this code," in the first
sentence of subd (c)(1); (2) amended the second sentence in subd (c)(1) by (a)
adding "or the Domestic Violence Protective Order Registry pursuant to Section
354
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
6380 of the Family Code"; and (b) substituted "registered" for "filed'' after "order
has been"; and (3) added subd (d). (As amended Stats 1996 ch
1140, compared to the section as it read prior to 1996. This section was also
amended by an earlier chapter, ch 131. See Gov C § 9605.)
1998 Amendment:
(1) Substituted "probable" for "reasonable" wherever it appears in subds (a) and
(d); (2) added "paragraph (2) of subdivision (a) of Section 1203.097 of this code,
or" in subd (c)(1); (3) substituted the introductory clause of subd (d) for the
former introductory clause which read: "Notwithstanding paragraph 1 of
subdivision (a), if a person commits an assault or battery upon his or her spouse,
upon a person with whom he or she is cohabitating, or upon the parent of his or
her child, a peace officer may arrest the person without a warrant where both of
the following circumstances apply:"; and (4) added subd (e).
2000 Amendment:
Substituted "or dating relationship, as defined in paragraph (10) of subdivision
(f) of Section 243" for "relationship" in the introductory clause of subd (d).
HISTORICAL DERIVATION:
(a) Criminal Practice Act §§ 134, 136 (Stats 1851 ch 29 §§ 134, 136).
(b) Stats 1850 ch 119 §§ 135,137.
(c) NY Code Crim Proc §§ 168,177.
CROSS REFERENCES:
"Public offense": Pen C § 15.
"Felony": Pen C § 17.
Punishment for officer's refusal to arrest: Pen C § 142.
Justifiable homicide in making arrest: Pen C §§ 196, 197.
Person who executes warrant: Pen C § 816.
"Peace officers": Pen C §§ 830 et seq.
Arrest under warrant, duty of officer: Pen C § 848.
Arrest without warrant, duty of officer: Pen C § 849.
COLLATERAL REFERENCES:
Witkin & Epstein, Criminal Law (2d ed) §§ 1901, 1907, 1923,1924, 1928,
1932, 1933, 1936, 1963, 2412.
Witkin Summary (9th ed) Torts §§ 384 et seq.
Cal Jur 3d (Rev) Criminal Law §§ 2457, 2462-2465, 2467, 2479, 2495, 2564;
Delinquent and Dependent Children § 103.
LAW REVIEW ARTICLES:
Prosecution problems: arrest and search-the exclusionary rule. 53 ABAJ 694.
Search without warrant as incident to lawful arrest. 18 Cal LR 673.
Unreasonable search and seizure in California. 38 Cal LR 498.
355
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Law of arrest. 39 Cal LR 96, 99.
Refusing to arrest on citizen's charges. 39 Cal LR 103.
Exclusion of evidence obtained by illegal searches. 43 Cal LR 565.
Search and seizure. 45 Cal LR 50.
Police practices and the law: from arrest to release or charge. 50 Cal LR 11.
Domestic violence as a crime against the state: the need for mandatory arrest
in California. 85 Cal LR 643.
Domestic Violence: a history of arrest policies and a survey of modem laws.
28 Family LQ 509.
Arrest prior to extradition of fugitives from justice of another state. 17 Hast LJ
767.
Stop and frisk in California. 18 Hast LJ 623.
Civil liability for illegal arrests and confinements in California. 19 Hast LJ
974.
Searches of the person incident to traffic arrests: State and federal approaches.
26 Hast LJ 536.
Ignorance as factor in criminal law enforcement. 5 LA Bar B 110.
Lawless enforcement of law. 6 LA Bar B 191, 223.
"Improbable cause" for arrest. 38 LA Bar B 311.
Lawless enforcement of law. 9 SCLR 14.
Legal and reasonable search and seizure. 14 SCLR 359.
Constitutional basis of mle forbidding use of illegally seized evidence. 15
SCLR 60.
Search and seizure in California. 15 SCLR 139.
Right of officer to arrest for misdemeanor without warrant. 25 SCLR 449.
Acts constituting false imprisonment. 27 SCLR 483.
"Reasonable cause" to arrest without a warrant. 29 SCLR 129.
Reasonable cause for arrest based on information from anonymous informer.
33 SCLR 208.
Stop and frisk: dilemma for the courts. 41 SCLR 161.
Nonusable amounts of marijuana; reasonable or probable cause to arrest. 6
Southwestern U LR 227.
Concept of "reasonable cause for belief" on part of arresting officer. 32 St BJ
607.
Exclusionary mle. 9 Stan LR 515.
Apprehension of juveniles. 10 Stan LR 477.
Justification for use of force in criminal law. 13 Stan LR 566.
Nonarrest automobile stops-Unconstitutional seizures of the person. 25 Stan
LR 865.
"Reasonable cause" to arrest without a warrant. 3 UCLA LR 55.
Cafran case: interpretation and operation of exclusionary rule in California. 4
UCLA LR 252.
Enforcement techniques as to homosexual offenses. 13 UCLA LR 686.
356
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX G: CONDITIONS OF PROBATION FOR CRIME OF
DOMESTIC VIOLENCE.
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2001 by Matthew Bender & Company, one of the LEXIS
Publishing companies. All rights reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2001 SUPPLEMENT
(2000 SESSION) *** INCLUDING URGENCY LEGISLATION THROUGH
2001 REG. SESS. CH.2, 3/1/01 AND 2001 1ST EX. SESS. CH. 4X, 2/1/01
PENAL CODE
PART 2. Criminal Procedure
TITLE 8. Judgment and Execution
CHAPTER 1. The Judgment
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
Cal Pen Code § 1203.097 (2001)
§ 1203.097. Conditions of probation for crime of domestic violence
(a) If a person is granted probation for a crime in which the victim is a person
defined in Section 6211 of the Family Code, the terms of probation shall include
all of the following:
(1) A minimum period of probation of 36 months, which may include a
period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from further acts of
violence, threats, stalking, sexual abuse, and harassment, and, if appropriate,
containing residence exclusion or stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the defendant has
not already been booked.
(5) A minimum payment by the defendant of two hundred dollars ($ 200) to
be disbursed as specified in this paragraph. If, after a hearing in court on the
record, the court finds that the defendant does not have the ability to pay, the
court may reduce or waive this fee.
357
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
One-third of the moneys deposited with the county treasurer pursuant to this
section shall be retained by counties and deposited in the domestic violence
programs special fund created pursuant to Section 18305 of the Welfare and
Institutions Code, to be expended for the purposes of Chapter 5 (commencing
with Section 18290) of Part 6
of Division 9 of the Welfare and Institutions Code. The remainder shall be
transferred, once a month, to the Controller for deposit in equal amounts in the
Domestic Violence Restraining Order Reimbursement Fund and in the Domestic -
Violence Training and Education Fund, which are hereby created, in an amount
equal to two-thirds of funds collected during the preceding month. Moneys
deposited into these funds to this section shall be available upon appropriation by
the Legislature and shall be distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order Reimbursement Fund
shall be distributed to local law enforcement or other criminal justice agencies for
state-mandated local costs resulting from the notification requirements set forth in
subdivision (a) of Section 6385 of the Family Code, based on the annual
notification from the Department of Justice of the number of restraining orders
issued and registered in the state domestic violence restraining order registry
maintained by the Department of Justice, for the development and maintenance of
the domestic violence restraining order data bank system.
(B) Funds from the Domestic Violence Training and Education Fund shall
support a statewide training and education program to increase public awareness
of domestic violence and to improve the scope and quality of services provided to
the victims of domestic violence. Grants to support this program shall be awarded
on a competitive basis and be administered by the State Department of Health
Services, in consultation with the statewide domestic violence coalition, which is
eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in subdivision
(c), or if none is available, another appropriate counseling program
designated by the court, for a period not less than one year with periodic
progress reports by the program to the court every three months or less and
weekly sessions of a minimum of two hours class time duration.
(7) (A) (i) The court shall order the defendant to comply with all probation
requirements, including the requirements to attend counseling, keep all
program appointments, and pay program fees based upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted until all
reasonable fees due to the counseling program have been paid in full, but in
358
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
no case shall probation be extended beyond the term provided in subdivision
(a) of Section 1203.1. If the court finds that the defendant does not have the
ability to pay the fees based on the
defendant’s changed circumstances, the court may reduce or waive the fees.
(B) Upon request by the batterer's program, the court shall provide the
defendant's arrest report, prior incidents of violence, and treatment history
to the program.
(8) The court also shall order the defendant to perform a specified amount
of appropriate community service, as designated by the court. The defendant
shall present the court with proof of completion of community service and
the court shall determine if the community service has been satisfactorily
completed. If sufficient staff and resources are available, the community
service shall be performed under the jurisdiction of the local agency
overseeing a community service program.
(9) If the program finds that the defendant is unsuitable, the program shall
immediately contact the probation department or the court. The probation
department or court shall either recalendar the case for hearing or refer the
defendant to an appropriate alternative batterer's program.
(10) (A) Upon recommendation of the program, a court shall require a
defendant to participate in additional sessions throughout the probationary
period, unless it finds that it is not in the interests of justice to do so, states its
reasons on the record, and enters them into the minutes. In deciding whether
the defendant would benefit from more sessions, the court shall consider
whether any of the following conditions exist:
(i) The defendant has been violence free for a minimum of six months.
(1 1 ) The defendant has cooperated and participated in the batterer's program.
(iii) The defendant demonstrates an understanding of and practices positive
conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that dehumanize the
victim or puts at risk the victim's safety, including, but not limited to, molesting,
stalking, striking, attacking, threatening, sexually assaulting, or battering the
victim.
359
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(v) The defendant demonstrates an understanding that the use of coercion or
violent behavior to maintain dominance is unacceptable in an intimate
relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii) The defendant has complied with applicable requirements under paragraph
(6) of subdivision (c) or subparagraph (C) to receive alcohol counseling, drag
counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for the abusive
behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the terms of the
protective order, including any new acts of violence or failure to comply with the
program requirements, to the court, the prosecutor, and, if formal probation has
been ordered, to the probation department. The probationer shall file proof of
enrollment in a batterer's program with the court within 30 days of
conviction.
(C) Concurrent with other requirements under this section, in addition to, and
not in lieu of, the batterer's program, and unless prohibited by the referring court,
the probation department or the court may make provisions for a defendant to use
his or her resources to enroll in a chemical dependency program or to enter
voluntarily a licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to provide alcohol or
drug services to receive program participation credit, as determined by the court.
The probation department shall document evidence of this hospital or residential
treatment participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine, but not in lieu of
the fund payment required under paragraph (5), one or more of the following
requirements:
(A) That the defendant make payments to a battered women's shelter, up to a
maximum of five thousand dollars ($ 5,000).
(B) That the defendant reimburse the victim for reasonable expenses that the
court finds are the direct result of the defendant's offense.
For any order to pay a fine, to make payments to a battered women's shelter, or
to pay restitution as a condition of probation under this subdivision, the court shall
make a determination of the defendant's ability to pay. Determination of a
360
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
defendant's ability to pay may include Ms or her future earning capacity. A
defendant shall bear the burden of demonstrating lack of Ms or her ability to pay.
Express findings by the court as to the factors bearing on the amount of the fine
shall not be required. In no event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of the defendant to pay
direct restitution to the victim or court-ordered child support. When the injury to a
married person is caused in whole or in part by the criminal acts of his or her
spouse in violation of this section, the community property shall not be used to
discharge the liability of the offending spouse for restitution to the injured spouse,
as required by Section 1203.04, as operative on or before August 2, 1995, or
Section 1202.4, or to a shelter for costs with regard to the injured spouse, until all
separate property of
the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the probation
department that the defendant is performing unsatisfactorily in the assigned
program, is not benefiting from counseling, or has engaged in criminal
conduct, upon request of the probation officer, the prosecuting attorney, or
on its own motion, the court, as a priority calendar item, shall hold a hearing
to determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the defendant
against the former or a new victim while on probation and noncompliance
with any other specific condition of probation. If the court finds that the
defendant is not performing satisfactorily in the assigned program, is not
benefiting from the program, has not complied with a condition of probation,
or has engaged in criminal conduct, the court shall terminate the defendant's
participation in the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which the victim
is a person defined in Section 6211 of the Family Code, in addition to the
terms specified in subdivision (a), all of the following shall apply:
(1) The probation departm ent shall make an investigation and take into
consideration the defendant’s age, medical history, employment and service
records, educational background, community and family ties, prior incidents
of violence, police report, treatment history, if any, demonstrable motivation,
and other mitigating factors in determining which batterer's program would
be appropriate for the defendant. This information shall be provided to the
batterer's program If it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the court.
361
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(2) The court shall advise the defendant that the failure to report to the probation
department for the initial investigation, as directed by the court, or the failure to
enroll in a specified program, as directed by the court or the probation
department, shall result in possible further incarceration. The court, in the
interests of justice, may relieve the defendant from the prohibition set forth in this
subdivision based upon the defendant's mistake or excusable neglect. Application
for this relief shall be filed within 20 court days of the missed deadline. This time
limitation may not be extended. A copy of any application for relief shall be
served on the office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program, the
probation department shall conduct an initial assessment of the defendant,
including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim desires to
participate.
(I) Assessment of the future probability of the defendant committing
murder.
(4) The probation department shall attempt to notify the victim regarding
the requirements for the defendant's participation in the batterer's program,
as well as regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an abuser
will not be violent.
(c) The court or the probation department shall refer defendants only to
batterer's programs that follow standards outlined in paragraph (1), which may
include, but are not limited to, lectures, classes, group discussions, and
362
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
counseling. The probation department shall design and implement an approval
and renewal process for batterer's programs and shall solicit input from criminal
justice agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be to stop domestic
violence. A batterer's program shall consist of the following components:
(A) Strategies to hold the defendant accountable for the violence in a
relationship, Including, but not limited to, providing the defendant with a written
statement that the defendant shall be held accountable for acts or threats of
domestic violence.
(B) A requirement that the defendant participate in ongoing same-gender group
sessions.
(C) An initial intake that provides written definitions to the defendant of
physical, emotional, sexual, economic, and verbal abuse, and the techniques for
stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for the
defendant's participation in the intervention program as well as regarding
available victim resources. The victim also shall be informed that attendance in
any program does not guarantee that an abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of chemical
influence.
(F) Educational programming that examines, at a minimum, gender roles,
socialization, the nature of violence, the dynamics of power and control, and the
effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family counseling, or
both.
(H) Procedures that give the program the right to assess whether or not the
defendant would benefit from the program andto refuse to enroll the defendant if
it is determined that the defendant would not benefit from the program, so long as
the refusal is not because of the defendant's inability to pay. If possible, the
program shall suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific knowledge
regarding, but not limited to, spousal abuse, child abuse, sexual abuse, substance
363
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
abuse, the dynamics of violence and abuse, the law, and procedures of the legal
system.
(J) Program staff who are encouraged to utilize the expertise, training, and
assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written agreement with the
program, which shall include an outline of the contents of the program, the
attendance requirements, the requirement to attend group sessions free of
chemical influence, and a statement that the defendant may be removed from the
program if it is determined that the defendant is not benefiting from the program
or is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality statement prohibiting
disclosure of any information obtained through participating in the program or
during group sessions regarding other participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or probation department
prior to permitting the defendant to enroll in the program. The written referral
shall state the number of minimum sessions required by the court.
(0) Procedures for submitting to the probation department all of the following
uniform written responses:
(1) Proof of enrollment, to be submitted to the court and the probation
department and to include the fee determined to be charged to the defendant,
based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee payment history, and
program compliance.
(iii) Final evaluation that includes the program's evaluation of the defendant’ s
progress, using the criteria set forth in paragraph (4) of subdivision (a) and
recommendation for either successful or unsuccessful termination or continuation
in the program.
(P) A sliding fee schedule based on the defendant's ability to pay. The batterer's
program shall develop and utilize a sliding fee scale that recognizes both the
defendant's ability to pay and the necessity of programs to meet overhead
expenses. An indigent defendant may negotiate a deferred payment schedule, but
shall pay a nominal fee,
364
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
if the defendant has the ability to pay the nominal fee. Upon a hearing and a
finding by the court that the defendant does not have the financial ability to pay
the nominal fee, the court shall waive this fee. The payment of the fee shall be
made a condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term of probation
unless the program sets other conditions. The acceptance policies shall be in
accordance with the scaled fee system.
(2) The court shall refer persons only to batterer's programs that have been
approved by the probation department pursuant to paragraph (5). The probation
department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided that the
applicant is in substantial compliance with applicable laws and regulations and an
urgent need for approval exists. A provisional approval shall be considered an
authorization to provide services and shall not be considered a vested right.
(B) If the probation department determines that a program is not in compliance
with standards set by the department, the department shall provide written notice
of the noncompliant areas to the program. The program shall submit a written
plan of corrections within 14 days from the date of the written notice on
noncompliance. A
plan of correction shall include, but not be limited to, a description of each
corrective action and timeframe for implementation. The department shall review
and approve all or any part of the plan of correction and notify the program of
approval or disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the department
shall consider whether to revoke or suspend approval and, upon revoking or
suspending approval, shall have the option to cease referrals of defendants under
this section.
(3) No program, regardless of its source of funding, shall be approved unless it
meets all of the following standards:
(A) The establishment of guidelines and criteria for education services,
including standards of services that may include lectures, classes, and group
discussions.
(B) Supervision of the defendant for the purpose of evaluating the person's
progress in the program.
(C) Adequate reporting requirements to ensure that all persons who, after being
ordered to attend and complete a program, may be identified for either failure to
365
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
enroll In, or failure to successfully complete, the program or for the successful
completion of the program as ordered. The program shall notify the court and the
probation department
In writing within the period of time and In the manner specified by the court of
any person who falls to complete the program. Notification shall be given if the
program determines that the defendant Is performing unsatisfactorily or If the
defendant is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or counseling,
and no program may condition a defendant’s enrollment on participation by
the victim,
(4) In making referrals of indigent defendants to approved batterer's programs,
the probation department shall apportion these referrals evenly among the
approved programs.
(5) The probation department shall have the sole authority to approve a
batterer's program for probation. The program shall be required to obtain only one
approval but shall renew that approval annually.
(A) The procedure for the approval of a new or existing program shall include
all of the following:
(i) The completion of a written application containing necessary and pertinent
information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate administrative
and operational capability to operate a batterer's treatment program. The program
shall provide documentation to prove that the program has conducted batterer's
programs for at least one year prior to application. This requirement may be
waived under subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a session to
determine that the program adheres to applicable statutes and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to exceed two
hundred fifty dollars ($ 250) and for approval renewal not to exceed two hundred
fifty dollars ($ 250) every year in an amount sufficient to cover its cost in
administering the approval process under this section. No fee shall be charged for
the approval of local governmental entities.
366
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(C) The probation department has the sole authority to approve the issuance,
denial, suspension, or revocation of approval and to cease new enrollments or
referrals to a batterer's program under this section. The probation department
shall review information relative to a program's performance or failure to adhere
to standards, or both. The probation department may suspend or revoke any
approval issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on grounds
established by probation, including, but not limited to, either of the following:
(i) Violation of this section by any person holding approval or by a program
employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the approval.
(6) For defendants who are chronic users or serious abusers of drugs or alcohol,
standard components in the program shall include concurrent counseling for
substance abuse and violent behavior, and in appropriate cases, detoxification and
abstinence from the abused substance.
(7) The program shall conduct an exit conference that assesses the defendant's
progress during his or her participation in the batterer's program.
HISTORY:
Added Stats 1st Ex Sess 1993-94 ch 28 § 4 (AB 93 X), effective November 30,
1994. Amended Stats 1995 ch 641 § 3 (SB 169); Stats 1996 ch 1077 § 20 (AB
2898); Stats 1997 ch 134 § 3 (AB 273); Stats 1998 ch 707 § 3 (SB 1682); Stats
1999 ch 83 § 151 (SB 966).
NOTES:
AMENDMENTS:
1995 Amendment:
In addition to redesignating subdivisions, (1) added "containing" in subd (a)(2);
(2) substituted subd (a)(4) for the former subd (d) which read: "(d) Successful
completion of a batterer's program, as defined in Sections 1000.93,1000.94,
and 1000.95, or if none is available, another appropriate counseling program
designated by the court, for a period not less than one year with periodic
progress reports by the program to the court every three months or less and
weekly sessions of a minimum of one and one-half hours classtime duration.
The counseling program shall immediately report any violation of the terms of the
protective order to the court, the prosecutor, and, if formal probation has been
ordered, to the probation department. The probationer shall file proof of
367
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
enrollment in a batterer’s program with the court within 30 days of enrollment.";
(3) substituted "paragraph" for "subdivision" in the first sentence of the first
paragraph of subd (a)(5); (4) amended the last sentence of subd (a)(5)(B) by (a)
adding "awarded on a competitive basis and be"; and (b) substituting ", in
consultation with the statewide domestic violence coalition, which is eligible to
receive funding under this section" for "and be awarded on a competitive basis";
(5) added subds (a)(6)-(a)(10); (6) substituted "paragraph 5" for "subdivision (e)"
in subd (a)(ll); and (7) added subds (a)(12), (b), and (c).
1996 Amendment:
Amended the last paragraph of subd (a)(l 1) by adding (1) the second, third, and
fourth sentences; and (2) "as operative on or before August 2, 1995, or Section
1202.4," in the last sentence.
1997 Amendment:
(1) Redesignated former subd (a)(7)(A) to be subd (a)(7)(A)(i); and (2) added
subd (a)(7)(A)(ii).
NOTE-
Stats 1995 ch 641 provides:
SECTION 1. The Legislature finds and declares the following:
(a) Domestic violence is a serious and widespread crime. Between two and four
million American women are beaten annually by their husbands or boyfriends;
1,400 women are killed each year by current or former husbands or boyfriends;
domestic violence is the second leading cause of injury to women aged 15 to 44
years.
(b) Until recently, domestic violence has not received sufficient priority in
public policy concerning crime and public safety. According to an analysis of
state statistics, about two-thirds of those arrested for felony spousal abuse
were prosecuted, with 80 percent of those cases treated as misdemeanors.
(c) Domestic violence has long-term effects that are disastrous for social policy
and threatens the stability of the family and negatively impacts all family
members, especially children, who learn that violence is an acceptable way to
cope with stress or problems. Boys who grow up seeing their mothers beaten are
more likely to become batterers themselves; girls who grow up in the same
circumstances are more likely to become abused women.
(d) Diversion programs for perpetrators of domestic violence, while worthwhile
in intention and sometimes effective, are inadequate to address domestic violence
as a serous crime.
(e) Therefore, the Legislature finds it important to treat domestic violence as a
serious crime.
368
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
COLLATERAL REFERENCES:
ATTORNEY GENERAL'S OPINIONS:
The 200 dollar fee paid by a person granted probation for a crime of domestic
violence does not constitute a "fine, penalty, or forfeiture" to which penalty
assessment provisions apply. 81 Op Atty Gen Cal 131.
3 6 9
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX H. METROPOLITAN NEWS-ENTERPRISE ARTICLE ON
FUNDING FOR DOMESTIC VIOLENCE COURTS
Metropolitan. News-Enterprise; Capitol News Service June 20, 2000,
Tuesday
SECTION: Pg. 1
LENGTH: 854 words
HEADLINE: Lawmakers Kill Proposed Funding for Domestic Violence Courts
BYLINE: By SCOTT C. SMITH, Staff Writer
BODY: State lawmakers have killed three proposals to fund domestic violence
courts.
Sen. Hilda Solis, author of one of the bills, told the MetNews yesterday a Judicial
Council study on the topic didn't make any findings whether such courts were
worthwhile, but only provided a description of the various models already
operating, leaving legislators with no rationale for providing more money.
Solis, an El Monte Democrat, and two other San Gabriel Valley lawmakers
proposed bills to support such specialized courts in the midst of prolonged
controversy over the temporary closure of the dedicated courtroom at the Citrus
Courthouse.
After winning approval by the judiciary committees of the respective houses, the
three bills were all placed on "suspense file," to be revisited during budget
appropriations and balanced against other spending priorities. Scott M. Gordon,
chair of the county's Domestic Violence Council expressed dismay that the
momentum generated early on had been lost.
"It changed very, very quickly from going very fast down the track to an abrupt
stop," he said.
He said the challenge has been that there are several different models of domestic
violence courts, and a single model may not be applicable statewide since county
courts differ so radically In size.
370
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Darby Mangen, president of the San Gabriel Valley/Whittier chapter of the
National Organization for Women, said the fate of the bills left her feeling
disillusioned.
Mangen's NOW group co-sponsored the Solis bill, but Mangen only learned of its
fate yesterday.
She blasted lawmakers as "penny-wise and pound-foolish," contending that
domestic violence courts would save money in the long run by providing the same
kind of intensive follow-up with perpetrators that has brought widespread
recognition to drug courts.
The courts often involve having a single judge handle all domestic violence cases,
which advocates say ensures consistency in sentencing and sensitivity to victims.
Much of a domestic violence court judge's time is taken up by tracking batterers
as they proceed through a mandated one-year program of anger management
counseling.
Advocates say that seeing the same judge at their monthly updates ensures that
batterers take the program seriously.
The other bills that have died were authored by Assembly members Martin
Gallegos, D-Baldwin Park, and Robert Pacheco, R-Walnut.
Solis' bill would have appropriated $ 10 million for a 3-year pilot project and set
up a 12-member statewide task force on domestic violence courts.
Gallegos' bill would have put up $ 15 million, and Pacheco's $ 3.6 million. Both
died in the Assembly Appropriations Committee, aides for the two lawmakers
confirmed yesterday.
Solis' bill, SB 1340, was amended May 25 by the Senate Appropriations
Committee, which stripped all but $ 100,000 of the funding by a 13-0 vote.
"It got severely amended down to a study bill," Solis said yesterday, referring to
changes that reduced her bill to one requiring that the Judicial Council conduct a
study on the efficacy of domestic violence courts and report back to lawmakers in
2004.
The senator, who has authored several other domestic violence bills, said there
was interest on the part of the advocacy community to try to put back in some of
the language on the task force, so that advocates could provide input in the next
study.
371
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Asked whether advocates participated in the first study, Solis would only say,
"My sense is it was done by the Judicial Council."
Solis said she would seek amendments In the next few weeks to beef up what
remains of her bill.
Senate Appropriations Committee Chair Patrick Johnston, D-Stockton, who
offered the May 25 amendment, was in meetings yesterday. But an aide who did
not wish to be named said the committee did not have any information to indicate
whether domestic
violence courts were effective, giving it no basis for expanding the program.
Legislation by Assemblywoman Sheila Kuehl, D-Santa Monica, adopted in 1998,
directed the Judicial Council to conduct such a study, but it was late getting
completed and Appropriations committee members apparently had not seen it
when they voted.
The study, authored by Julia Weber and Dag MacLeod of the Administrative
Office of the Courts, was presented at a Los Angeles conference on Family
Violence and the Courts May 18 and 19.
It provides a description of the 39 domestic violence courts in California, but
stops short of making recommendations.
Solis said the Judicial Council study "isn't that glowing." She said it would have
made no difference whether the committees had it in hand or not, since it didn't
make any case for domestic violence courts.
According to Johnston's aide, Solis’ staff had informed the chairman the awaited
study didn't provide the kind of information needed because the Judicial Council
hadn't been given enough money to do anything more than compile data on
existing courts.
Supporters and opponents of bills typically testify on bills when they are
presented to the Appropriations Committee, but Solis waived presentation on May
22, Johnston's aide said.
372
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX I. DOMESTIC VIOLENCE CALLS AND REPORTS
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright 2002 LEXIS Law Publishing, a division of Reed Elsevier
Inc.
All Rights Reserved.
*** THIS SECTION IS CURRENT THROUGH THE 2002
SUPPLEMENT (2001 SESSION) *** INCLUDING URGENCY
LEGISLATION THROUGH 2002 REG. SESS. CH. 33, 4/26/02 AND 2001-2002
3rd EXTRA SESS. CH. 3XXX, 4/25/02
PENAL CODE
PART 4. Prevention of Crimes and Apprehension of Criminals
TITLE 5. Law Enforcement Response to Domestic Violence
CHAPTER 4. Data Collection
GO TO CODE ARCHIVE DIRECTORY FOR THIS
JURISDICTION
Cal Pen Code § 13730 (2001)
§ 13730. Recording of domestic violence-related calls; Reports; Incident report
forms
(a) Each law enforcement agency shall develop a system, by January 1,1986,
for recording all domestic violence-related calls for assistance made to the
department including whether weapons are involved. All domestic violence-
related calls for
assistance shall be supported with a written incident report, as described in
subdivision (c), identifying the domestic violence incident. Monthly, the total
number of domestic violence calls received and the numbers of those cases
involving weapons shall
be compiled by each law enforcement agency and submitted to the Attorney
General.
(b) The Attorney General shall report annually to the Governor, the Legislature,
and the public the total number of domestic violence-related calls received by
California law enforcement agencies, the number of cases involving weapons, and
a breakdown of calls received by agency, city, and county.
373
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
(c) Each law enforcement agency shall develop an incident report form that
includes a domestic violence identification code by January 1, 1986. In all
incidents of domestic violence, a report shall be written and shall be identified on
the face of the report as a domestic violence incident. The report shall include at
least all of the following:
(1) A notation of whether the officer or officers who responded to the domestic
violence call observed any signs that the alleged abuser was under the influence
of alcohol or a controlled substance.
(2) A notation of whether the officer or officers who responded to the domestic
violence call determined if any law enforcement agency had previously responded
to a domestic violence call at the same address involving the same alleged
abuser or victim.
(3) A notation of whether the officer or officers who responded to the domestic
violence call found it necessary, for the. protection of the peace officer or other
persons present, to inquire of the victim, the alleged abuser, or both, whether a
firearm
or other deadly weapon was present at the location, and, if there is an inquiry,
whether that inquiry disclosed the presence of a firearm or other deadly weapon.
Any firearm or other deadly weapon discovered by an officer at the scene of a
domestic violence incident shall be subject to confiscation pursuant to Section
12028.5.
HISTORY:
Added Stats 1984 ch 1609 § 3.
Amended Stats 1993 ch 1230 § 2 (AB 2250); Stats 1995 ch 965 § 2 (SB 132).
Amended Stats 2001 ch 483 § 1 (AB 469).
NOTES:
AMENDMENTS:
1993 Amendment:
(1) Amended subd (a) by (a) adding the second sentence; and (b) substituting
"those" for "such" before "cases involving" in the third sentence; and (2) deleted
the comma after "the public" in subd (b).
1995 Amendment:
Amended subd subd (c) by (1) deleting "thus" after "and shall be" in the second
sentence; and (2) adding the last sentence.
374
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

PDF

Impression formation and attraction in computer -mediated communication

PDF

Domestic violence in the South Asian immigrant community

PDF

Angels for sale: The history of prostitution in Los Angeles, 1880--1940

PDF

Anti-gay violence in the city of West Hollywood

PDF

Filial expectations and social exchange patterns among older Taiwanese parents and their adult children

PDF

Dissonance in the population -environment movement over the politics of immigration: Shifting paradigms of discourse vis -a -vis individual rights and societal goals

PDF

"Holding back": Negotiating a glass ceiling on women's strength

PDF

Domestic violence in Korean immigrant families

PDF

In and out of marriage: A study of the multiply divorced

PDF

A cultural -ecological analysis of educational aspirations and satisfaction of educational opportunities of Asian -Americans and Hispanics: Understanding the interaction of race and class, paren...

PDF

A media literate generation? Adolescents as active, critical viewers: A cultural studies perspective

PDF

A tragic case of childhood obesity: Recommendations for public policy

PDF

Interfaith family process and the negotiation of identity and difference

PDF

Exploring the facilitators and barriers affecting the way women report sex crimes

PDF

Capital and punishment: The privatization of prisons in America

PDF

Emotion regulation as a mediator between family-of-origin aggression and marital aggression

PDF

Assimilation and ethnicity: Adaptation patterns and ethnic identity of Armenian -Americans in central California

PDF

Family -based risk and protective mechanisms for youth at -risk of gang joining

PDF

Bad boy rebounds and rare air: Masculinity in televised sport media, young adult male audiences and the search for authenticity in postmodern America

PDF

In church with my ancestors: The changing shape of religious memory in the Republic of Armenia and the North American diaspora

Asset Metadata

Creator Viehe, Mary Ella (author)

Core Title Criminal justice response to domestic violence: A closer look at Los Angeles County, 1995--1998

School Graduate School

Degree Doctor of Philosophy

Degree Program Sociology

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,sociology, criminology and penology,sociology, individual and family studies

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Biblarz, Timothy (committee chair), Brekke, John (committee member), Messner, Michael A. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-498081

Unique identifier UC11340207

Identifier 3133348.pdf (filename),usctheses-c16-498081 (legacy record id)

Legacy Identifier 3133348.pdf

Dmrecord 498081

Document Type Dissertation

Rights Viehe, Mary Ella

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA