September 30 2005
There is a widespread belief that the justice system in the United States did not begin to address the problem of domestic violence until quite recently. In fact, the very first laws in colonial-era America forbade wifebeating. The "Body of Liberties" adopted by the Massachusetts Bay colonists in 1641 stated, "Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defense upon her assault." Wife-beaters could be punished with fines or whipping, and could also be subjected to public "shaming" in church or expelled from the congregation.
Much attention has been drawn to the fact that in the 19th century, rulings by two appellate courts in the U.S., one in Mississippi and two in North Carolina (the last of them in 1868), held that a husband was allowed to use force toward his wife "in moderation." However, even the judges who issued those opinions recognized that they were outside the mainstream of judicial opinion for their time, and by the mid-1870s these courts also agreed that "the husband has no right to chastise his wife." (However, the judges still expressed a preference for non-intervention when "no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband." The feminist historian Elizabeth Pleck found in her research that 19th-century municipal courts "invariably accepted a woman's claim of physical abuse and took some action," which could range from a reprimand to a stay in jail to monetary compensation for the victim. While there were no specific domestic violence laws, domestic assaults could be and were prosecuted under assault and battery statutes. At the turn of the century, state legislation in Maryland, Delaware, and Oregon introduced flogging as a penalty for wife abusers. A similar federal law was considered by the U.S. Congress (though ultimately rejected) in 1906 -- nearly nine decades before the passage of the first federal law dealing with domestic violence, the Violence Against Women Act.
At the same time, there is no denying that the treatment of domestic violence by police and the courts for much of our history was very flawed. In many cases, district attorneys did not want to prosecute domestic violence cases because it was felt that putting the family wage-earner in jail would leave the wife and children destitute; as a result, the police were reluctant to arrest abusers as well.
Ironically, in the 1960s and 1970s, it was considered "progressive" to treat domestic violence as a family problem rather than a criminal matter; at the time, coercive law enforcements in general were unpopular and many offenses against the public order were decriminalized. Thus, a 1967 police manual said that "in dealing with family disputes, the power of arrest should be exercised only as a last resort." The American Bar Association took this position as well; its 1973 guidelines recommended that at least in urban areas, "the resolution of conflict such as that which occurs between husband and wife" should be conducted by the police "without reliance upon criminal assault or disorderly conduct statutes." Conflict mediation was regarded as the primary police function in what was then called domestic disputes.
Only a few years later, however, the rise of feminism and the battered women's movement began to change prevailing attitudes toward domestic violence. The publication of landmark books such as Battered Wives by Del Martin drew attention to the plight of women in abusive marriages. The first large-scale studies on family violence, such as the 1975 National Family Violence Survey conducted by psychologists Murray A. Straus of the University of New Hampshire and Richard Gelles of the University of Rhode Island, found that battering was not just a matter of a few drunken bums beating up their wives or girlfriends but a fairly widespread problem, occurring in as many as 16 percent of American families every year. Straus and Gelles reported that two million women every year were battered by their spouses or partners, or experienced "severe" violence (defined as anything more violent than pushing, grabbing, or slapping -- anything from punching or kicking to hitting with an object, choking, or using a weapon). While the surveys found an equally high rate of spousal violence by women, these findings did not elicit similar concern; female violence toward men was generally seen as far less dangerous and was commonly presumed to involve self-defense.
In the 1970s, the first shelters and crisis hotlines for battered women opened in the United States. Around the same time, there was a shift toward a more law enforcement-oriented approach to domestic violence. As commentator Cara Feinberg wrote in The American Prospect, "feminist activists began to see the law not only as an important tool for protecting victims but as a way to define domestic violence as a legitimate social problem." Several class-action lawsuits were filed challenging the failure of police to protect victims of domestic violence. In 1984, the case of Tracey Thurman, a Connecticut woman who filed a lawsuit after the police failed to intervene while she was repeatedly stabbed by her husband, reached the U.S. Supreme Court; Thurman won $2.3 million in compensatory damages. This award served as a wake-up call for many jurisdictions.
By that time, most states had already empowered police officers to make warrantless arrests in misdemeanor domestic assaults they had not witnessed themselves, even if the victim did not sign a complaint. This reform was applauded by most law enforcement personnel and family violence experts as an essential tool in combating domestic violence. In subsequent years, it was followed by a shift toward mandatory arrest upon probable cause to believe that domestic violence had occurred, and in many jurisdictions to the practice of prosecuting domestic violence cases even against the wishes of the victim.
Historically, legal protection for domestic violence victims in the United States has been uneven, varying greatly from place to place and from period to period. However, the best available research suggests that by the late 1980s men who assaulted their wives and girlfriends were not treated any more leniently than perpetrators in non-family assaults.
Kathleen Ferraro, a women's studies and criminology professor at Arizona State University who identifies herself as a "scholar/activist/survivor of male violence," analyzed the handling of violent offenses in Maricopa County, Arizona in 1987-88, expecting to find preferential treatment for batterers. However, she actually discovered that most assaults of any kind were either not prosecuted or prosecuted as misdemeanors. Among felony cases, domestic assaults were less likely to be dismissed than nondomestic ones. Only 11 percent of the defendants received any prison time at all, but the victim-offender relationship had no effect on the length of the sentence. An earlier study in Ohio came to a similar conclusion.
Nonetheless, concerns about the level of domestic violence and the still-inadequate and uncoordinated response to the problem led to a push for federal legislation to address violence against women. In 1994, the murders of Nicole Brown Simpson and Ron Goldman, and the arrest of retired celebrity athlete and convicted wife abuser O.J. Simpson on murder charges, dramatically raised public awareness of domestic abuse. That year, Congress passed the Violence Against Women Act as part of an omnibus crime bill. VAWA was reauthorized and expanded in 2000. Meanwhile, both in response to VAWA and on their own initiative, most states and many jurisdictions across the U.S. strengthened their domestic violence legislation.
Whether these efforts are paying off is often difficult to determine, since studies on the prevalence of domestic violence are often complicated by different definitions and measurements. According to data from the Bureau of Justice Statistics, the rate of non-fatal intimate violence in the United States dropped by nearly half between 1993 and 2001. The rates of domestic murders, too, have declined, though for some demographic groups such as African-American women the rates of murder victimization by intimates have stabilized in recent years after dropping sharply in the late 1970s and 1980s.
Domestic violence remains a serious and tragic problem. In recent years, there has been some debate about its true scope and prevalence. Some critics have accused anti-domestic violence activists of using inflated figures and drastically overstating the problem; in turn, many feminists have accused these critics of colluding in a backlash against battered women. There is no doubt that some widely used statistics -- e.g. claims that battering causes more injuries to women than automobile accidents, rapes, and muggings combined, or that up to a 35 percent of women's emergency room visits are due to domestic violence -- are false (data from the Centers for Disease Control and the Bureau of Justice Statistics suggest that the real figure is less than 2 percent). Nonetheless, the fact remains that serious, ongoing physical violence is estimated to exist in 2-3 percent of marriages in the United States. Every year, about 1,200 women and 500 men in this country die at the hand of a spouse or partner, and some 200,000 women and 40,000 men seek emergency room help due to domestic violence. Critiques of inflated statistics are entirely appropriate, but they should never be used to minimize or trivialize the real issue.
In the meantime, on the other side of the coin, there have been charges of overzealous prosecution, abridgements of the civil rights of defendants, and an overburdening of the criminal justice system by trivial cases that would be best resolved through non-criminal means such as mediation. One criticism is that the legal and public policy response to domestic violence has focused too exclusively on the typical scenario of male batterer and female victim, to the detriment of male victims and victims in same-sex relationships (as well as female abusers who receive no assistance in overcoming their behavior problems).
In the 2004 book, Insult to Injury: Rethinking Our Responses to Intimate Abuse, Linda G. Mills, a professor of law and social work at New York University, makes an argument for a more holistic and integrated approach that would emphasize violence prevention and helping couples overcome mutual destructive dynamics in their relationships. This does not preclude "conventional" legal intervention, but any one-size-fits-all policy in an area as complex and fraught with unintended consequences as family abuse is bound to fail some of its intended beneficiaries. Dr. Mills is one of a number of feminist advocates for battered women who, in recent years, have urged a new look at the issues involved in domestic violence, law, and public policy.