By Shannon Green
This paper overviews the current state of domestic violence policy and advocates for the passage of H. CON. RES. 72 “Time To Heal Act” expressing the sense of Congress that child safety is the first priority of custody and visitation adjudications, and that State courts should improve adjudications of custody where family violence is alleged.
Through the establishment of the Violence Against Women’s Act (VAWA) and each subsequent reauthorization, our country has made observable legislative progress in domestic violence policy and legislation. Nevertheless, the policy approaches to domestic and gender-based violence have yielded minimal results in violence reduction over the last thirty years, (Hopkins, Koss, & Bachar, 2004; Meier, 2018). Legislative progress has not been mirrored by a marked decrease in violence for the families and individuals affected by domestic violence. Though the intention with this legislation was to reduce violence and fear in the target audience and increase a sense of social safety, disturbingly, nearly 700 children have been murdered by their abusive fathers in the last ten years, (Control, 2003; The 115th Congress, 2018). Those child fatalities do not include deaths related to neglect or indirectly linked to abuse and fail to account for adults murdered in DV homicides. Furthermore, domestic violence disproportionately affects mothers who share children with their abusers (Meier, 2018; Shalansky, Ericksen, & Henderson, 1999). Experts believe that abusers are aware that mothers have far more to risk if they separate from their abusive partners and as a result behave more violently.
Mandatory arrest policies and no-drop policies, as well as the widespread implementation of protection orders (23 P.A.C.S.A. 6101-6122 & 435 Pa. Super. 405, 645 A.2d 1363) are a few policies along with VAWA that have attempted to stem the tide of homicide and domestic violence. Regrettably, not only have these efforts failed to initiate the decrease in criminal violence that was intended, in many cases they have backfired, leaving victims in more dangerous situations, (O’Neal, Tellis, & Spohn, 2014). “Battered women engage these [criminal and civil justice] systems because they offer the promise of safety and accountability – but too often, the promise is illusory,” (Goodmark, 2004, p. 35). Moreover, “research confirms that a child’s risk of abuse increases after a perpetrator of domestic violence separates from a domestic partner, even when the perpetrator has not previously abused the child,” (The 115th Congress, 2018).
The field of social work addresses domestic and gender-based violence through service and advocacy. While service is an indispensable component of the social work field, advocating for policy change may be more effective long term. One goal of such policy change would be to lessen the number of victims to serve, a second to better serve the victims already in need. The current policy of protection orders and their effectiveness will be addressed, (The Women’s Law Project, 2013). Subsequently, this paper will propose more effective legislative and policy answers to the issues of domestic and gender-based violence. Time to Heal, the policy proposed, will first address the implementation of H.Con.Res. 72, (The 115th Congress, 2018) and secondly, a policy proposal on mandatory prosecution and maximum sentencing will be offered.
For the purpose of this paper, a definition of terms is necessary. Batterers and abusers will be used herein to refer to perpetrators of domestic and gender-based violence. The term domestic violence is used purposefully to include both partner abuse and abuse of children; men and women can be perpetrators of domestic violence. Gender-based violence refers to any violence perpetrated as a result of gender whether sexual in nature or otherwise, this violence predominately manifests as male-on-female violence. A protective parent is defined as a parent who is taking actions to protect their child(ren) from an abusive party.
Goals and Objectives
Central in policy and legislation of protection orders is an intention to address domestic violence successfully and efficiently. Prior to the existence of protection orders, victims were without judicial recourse at the hands of their abusers, unless there was a criminal conviction. While victims could leave an abusive party, they would have to do so without any jointly owned resources, and with no guarantee that the perpetrator would not follow them. “Civil protection orders provide victims with a quicker, more comprehensive, less difficult to obtain a form of protection than that which is available in the criminal system. While these orders are intended to prevent victims from further violence than to punish perpetrators, the orders are enforceable through civil and criminal contempt, and in most states, violation of a civil protection order is a misdemeanor offense,” (Goodmark, 2004, pp. 10–11), not likely to result in incarceration. When protection orders were developed the goal was to be able to protect victims who were being abused but in a more timely matter than offered by the criminal justice system as Attorney Goodmark explained.
The PFA Act is designed to provide immediate protection for victims of domestic violence that is preventive in nature through provisions that enable courts to respond quickly and flexibly. Commw. v. Snell, 1999 PA Super. 185, 737 A.2d 1232; Snyder v. Snyder, 427 Pa. Super. 494, 629 A.2d 977 (1993). The PFA Act authorizes the court to issue a PFA order that includes a wide variety of relief to protect the plaintiff from abuse. In fact, a PFA order provides broader relief than a criminal stay away order and may, therefore, be appropriate in cases in which criminal charges have been brought and a stay-away order has been issued by the criminal court, (The Women’s Law Project, 2013, p. 12, emphasis mine).
Additionally, there was hope that these protection orders would assist victims whose abuse had not risen to the level of physical violence.
Benefits and Services
Protection orders provide a service in domestic violence cases where there are no criminal charges. When a protection order is issued a victim can be granted the sole right to the shared residence. Rarely, although legally permissible, judges can order alimony, child support, and mandate access to the property such as vehicles within a protection order. Almost universally relief will include an order for the abuser to surrender firearms. Finally, if the order is violated by the abuser criminal charges will be filed against him or her, although as previously cited, those charges are usually misdemeanors, unlikely to result in incarceration.
Eligibility Criteria and Target Population
There is not a nationwide standard for protection order eligibility. Some states with more liberal statutes simply require the victim to testify they are afraid for their physical safety or that of their children. Other states require an act of violence to have occurred. However, it should be of note that protection orders for children against biological parents are difficult to come by in most jurisdictions and usually require an extreme level of violence or criminal charges. Courts are less likely to interrupt the civil legal process of custody law through a protection order (The 115th Congress, 2018).
It is of some debate as to whether or not courts are protecting the right people with these orders. Courts are slow to understand non-physical abuse and often disregard statements of fear. This is particularly concerning because abusive relationships often do not escalate to physical violence until the victim leaves. When the victim attempts to leave their abuser the violence can be homicidal in its severity. Courts can view these orders as reactionary measures, rather than precautionary measures effective at preventing violence and protecting vulnerable populations. Furthermore, “only about 20% of the approximately two million victims of domestic violence in the United States each year seek such orders,” (Goodmark, 2004, p. 11), giving adequate concern about whether or not this policy is reaching its intended population.
This is even more of a concern when it comes to children in domestically abusive families. To the extent that these orders were designed to protect vulnerable minors, they are not meeting the needs of that population (Goodmark, 2004). When protection orders are issued for children it is important to understand that they are a civil document that can be overruled by subsequent custody filings in many jurisdictions (Meier, 2018). Disappointingly, judges view mothers filing protection petitions on behalf of the children with intense suspicion. They are severely questioned and even threatened by judges not to use the filings to further their custodial goals, (Goodmark, 2004; Meier, 2018). Failing to address the co-occurrence of child and partner abuse has shortchanged families trying to end the cycle of violence, (Pennell & Burford, 2000). Moreover, if a parent has been violent towards a child and a protection order is issued the duration of the order is usually brief, 3 months is typical. Typically, within protection orders, the judge will make an overt statement desiring to reunify the child with the abusive biological parent once the protection period has passed. Conversely, a woman who does not share children with the abusive party can receive a protection order of three to four years, in some more lenient jurisdictions, protection orders can be ordered for the lifetime of the victim.
Service Delivery
Typically to obtain a protection order a victim will contact a local domestic violence agency or visit a victim-witness office located in their county courthouse. This is a lengthy multi-step process. If the police have been called to an incident at the home the following sequence of events will likely unfold. The police will make a referral to the county DV agency. They will also simultaneously make a referral to Children and Youth Services if there are children in the home. Both CYS and the DV agency will contact the victim. If the victim refuses services from the DV agency their involvement ceases and no protection petition will be filed. CYS will conduct its own investigation into the safety of the children. While the CYS agency can encourage the victim to seek a protection order the agency has no power to petition for a protection order for any party. If the victim still does not want assistance CYS has the power to remove the children from the victim if the protective parent does not prevent further violence from happening in the home.
Conversely, either following a police referral or of their own volition a victim and DV agency can connect to acquire an order of protection. The agency will do an intake interview, help the victim to prepare a petition for protection from abuse, or refer the victim to a subsequent agency or attorney who prepares the petition. There will be an initial court date usually within 24 hours of the petition being filed at which an advocate can accompany the victim if he/she so desires. During the first court appearance, a preliminary decision will be made by the judge regarding whether an emergency order of protection should be entered until a formal hearing where the accused is present can be scheduled. The victim will go through three or four contacts with service providers, in-person and over the phone prior to the emergency hearing, often within a 24-hour period. Some petitions are not viewed as worthy of emergency protection and they will remain unprotected until a full hearing can be conducted, which can take up to two weeks to occur.
Following the emergency hearing, there will be another hearing where the accused will have the opportunity to be present. They have the right to defend themselves against a protection order, voluntarily agree to the order, or file a counter-petition claiming they need protection from the original petitioner. If children are involved the court must make a ruling at both hearings regarding custody of any children shared by both parties. Even when these orders are entered they can be appealed for a full trial. Usually, the most pressing matter of debate, if the parties involved are cohabitating, is who will remain at the shared residence. Sometimes one party will leave voluntarily, if that does not happen the judge will make a ruling on who remains at the residence for the duration of the order. It is important to remember that these are civil orders, similar in nature to enter into a contract with another party. While a violation of a protection order can be charged criminally, these charges are rarely handled seriously, and victims frequently say protection orders are “really just a piece of paper.”
Financing of Protection Orders
Any government responsibility for the financing of protection orders is a hinge on whether or not the victim goes through an attorney to file the petition or a county’s domestic violence or victim-witness office. To some extent, judges who hear the cases cost the taxpayers money but it is not argued that issuance of protection orders has resulted in a demand for additional judges. Agencies can appoint a representative, an attorney, and an advocate, to the victim at no charge. The funding for agencies who provide attorneys largely comes through the Violence Against Women’s Act. Within VAWA there is a specific segment of funding designated for civil legal assistance for victims, $45 million annually for years 2016 to present, (National Network to End Domestic Violence, 2019). However, the victim also could file the petition themselves without an attorney, only use an advocate to file the petition, or hire a private attorney. In those instances, federal and state funding sources are not accessed. A cursory evaluation of the allocated amounts for civil legal representation for victims reveals that it would not be possible to fund attorneys nationwide to address the considerable numbers of victims who need to be served given that 20% of all victims file petitions and not all of them have access to these services. There are privately funded grants that agencies apply for to provide pro bono attorneys to assist with protection order petitions.
Proposed Social Policy
Time to Heal touches the two most dominant aspects of the domestic violence crisis. This policy addresses existing pending legislation H.Con.Res 72 and the vast under prosecution and minimal sanctioning that plague domestic violence cases. H.Con.Res.72 has several essential key policy components fundamental in the Time to Heal policy. In custody cases where any type of domestic, gender-based, child abuse or child sexual abuse is alleged H.Con.Res. 72 would prevent any custodial rulings prior to the full investigation into the allegations by abuse experts. If this legislation were passed and implemented it would require courts to have trained domestic violence experts to handle custody cases where abuse is alleged. These experts currently do not exist in the court system. When abuse is alleged currently there is no legislation or policy that prevents a judge from making a custodial ruling or granting alleged perpetrators custody. In fact, the outcome of this policy vacuum has been that 74% of the time accused batterers win their custody petitions, (Meier 2018). A legislative policy such as H.Con.Res. 72 could give essential time to heal for protective parents and children while an ongoing investigation was pending and assure that domestic violence experts were attending to the matter.
This two-pronged policy approach is a necessity because domestic abuse co-occurs with several social work concerns: child safety, homelessness, poverty, and mental health. Moreover, because of the frequency at which civil custody litigation is used by perpetrators to control their victims, it is essential to address domestic abuse in custody court. H.Con.Res. 72 is a major step forward in this regard. However, it is only one piece of the requisite civil litigation. It could be argued that making sure custody isn’t given to abusive parties should be our first legal and policy priority. Policy advocates should also address other civil legal matters as policy windows present themselves.
The second prong of Time to Heal addresses criminal behavior. While H.Con.Res 72 is an impressive step forward in custody law, it will be limited in its benefit if criminal law does not take comparative steps forward. The implementation of mandatory arrest and no-drop policies have attempted to correct the glaring miscarriage of justice common in domestic violence cases. Unfortunately, seasoned police officers and prosecutors have not implemented the policies as they were intended. In jurisdictions where mandatory arrest policies are in place, victims are routinely arrested along with perpetrators. Prosecutors become discouraged by victims’ requests to drop charges, refusals to testify or hesitancy in responding to subpoenas. As a result, prosecutors often find ways around “no-drop policies” or disregard them altogether. Criminal courts need an overhaul to their policies. Just as H.Con.Res. 72 declares that once an accusation of abuse occurs all other proceedings cease until the allegations of abuse are investigated. Proceeding with domestic violence charges must take precedence over prosecutorial hesitation, victim cooperation, or reluctant policing. Every crime of domestic or gender-based violence must be prosecuted, and if the defendant is found guilty mandatory maximum sentencing needs to be applied.
One of the unfortunate habits in DV cases is dropping some or most of the more significant charges, rape, aggravated assault, attempted homicide to secure a guilty plea from a defendant. By dropping the more serious offenses the perpetrator pleas to a much lesser sentence and does little or no jail time. The prosecution has secured their guilty plea and the case is closed. Time to Heal stands against this practice. Each crime that the accused perpetrator is charged with will proceed through trial or a plea, charges will not be dismissed in an effort to enter a lesser plea. There are two purposes for this policy. First victims experienced these assaults in their entirety whether or not the prosecutor can prove them in court. By dismissing charges in order to negotiate a plea deal a victim can feel like the prosecutor or judge is saying, what happened to you really didn’t matter, or we don’t believe all of those things happened to you. Secondly, by keeping all of the charges in play, even if found not guilty of some of them the defendant will be sanctioned more severely. Severe sanctioning of abusers is the only statistically valid practice that has effectively reduced domestically violent crime, (Hennessy, 2014).
At first glance, this policy can seem unnecessarily harsh. However, the “failure of three decades of legal reform to change prevalence rates in any significant way suggests that we need to explore alternative, even risky, approaches to the problem of intimate violence,” (Hopkins et al., 2004, p. 310). It can also appear to put extra burdens on the police to investigative and to burden already overworked prosecutors. These are not unfounded criticisms. Extra work will be required of the police to investigate and find supporting evidence when victims are reluctant or unable to testify. Prosecutors will have to handle more cases and handle those cases more thoroughly than the common practice of pleading them down or dismissal. However, the gains this arm of the policy grants society far outweigh the costs. Both prosecutors, police, and judicial proceedings are overwhelmed by cases involving domestic and gender-based violence, in part, this is a burden they have created for themselves. Failure to adequately sanction perpetrators during their first violent offense leaves them free to commit further acts of violence. Furthermore, if Time to Heal were to be fully implemented in civil and criminal judicial branches over time there would be a statistically significant decrease in police calls for domestic disputes and domestic violence criminal cases, (Goldstein, 2014; Hennessy, 2014). One abuser can collect an average of 115 victims over a lifespan even just 5 years incarcerated could substantially reduce that number.
One unaddressed component in domestic violence policy is the prevention of asset seizure or liquidation. A victim’s rights to the shared property of the couple are unprotected by domestic violence policy. Abusers seize important legal documents preventing the victim from executing necessary societal functions like obtaining employment. Documents such as birth certificates, legal identification cards, driver’s licenses, social security cards of both the victim and the children need to be protected by domestic violence policy. These documents are essential for obtaining employment or registering children for school. Batterers will use their possession of such documents to maintain their power over a victim, blocking their participation in society. Perpetrators also seize bank accounts draining their contents, jewelry, family heirlooms, and vehicles to maintain their control. These are additional areas of policy growth.
There is only one area of the law where violence is so readily tolerated: gender-based or domestic violence. Violent crimes against strangers are treated with severity by police and prosecutors. If a victim of random violence would request the charges be dropped prosecutors would be compelled by their offices to move forward regardless of victim cooperation. The underlying policy belief is that perpetrators of random violence are threats to society and it’s the state’s responsibility to maintain safe societal order. However, victims of random violence are dramatically fewer in number annually (National Coalition of Domestic Violence, n.d.). This presents a challenge to the existing policy actions of prosecutors and judges, who is the largest threat to society’s safety, the batterer, or the perpetrator of random violence? Likewise, in stark contrast to victims of domestic violence, victims of random/stranger violence are not inundating our medical systems, mental health systems, welfare systems, housing assistance, and other support programs comparable rates.
Theoretically, a contributing factor to the under prosecution of domestic violence could be made our judicial system’s hyper-focus on drug prosecution. That focus over the last 30–40 years has left the judicial system without adequate resources to address domestic and gender-based violent crime. The focus of the war on drugs and the subsequent analogous efforts have led to the mass incarceration of drug consumers, purchasers, and addicts. The prison population is flooded with low-level drug users who have never committed a violent crime. Dismantling the criminal systems that move drugs through our country is a worthy purpose, disappointingly that has not been the outcome of these policies.
If the current judicial mindset was reversed from a punitive focus on drug use to a similarly stringent intolerance of violence there could hypothetically be a noteworthy shift in our prison population. Addicted persons who are in need of treatment could be sentenced to well-regulated recovery programs or offered probation and their own efforts to reform – a sentence frequently given to batterers. With a focus on removing violent persons from our society, there could be a measurable improvement in joblessness, homelessness, poverty, health care expenses, mental health treatment, and eventually, police dispatch would foreseeably see a reduction (Goldstein, 2014). Addicts need treatment, research has shown it produces the best outcomes instead they are incarcerated. Batterers need sanctions that are beneficial to the victim, research has shown that probation and treatment produce no statistical decrease in future violence incidents, (McGinn, Taylor, McColgan, & Lagdon, 2015; McMahon & Dick, 2011; Nason-Clark & Fisher-Townsend, 2015).
The judicial and legislative branches of the government have long focused on policy-related issues that fail to relieve the financial burdens of the nation. Child abuse alone costs an estimated 124 billion annually, (The 115th Congress, 2018). Domestic violence perpetrators have a less than 8 in 1000 chance of being incarcerated for any length of time (Department of Justice, 2017). For fiduciary demonstration, it may be helpful to know that incarcerating all 1000 DV perpetrators would cost around 45 million per year, a $123,955,000,000 savings annually. That number still fails to take into account that incarcerated abusers are unable to accumulate more victims during their incarceration. The need for victims’ services could decrease over time, a figure difficult to estimate without further research and policy implementation.
In 2017, 1720 children died from abuse and neglect in the United States, of those children “eighty percent (80.1%) of child fatalities involved parents acting alone, together, or with other individuals,” (U.S. Department of Health & Human Services, 2017) less than 20% of the child fatalities did not include parental involvement. This number includes children who died for preventable reasons and those who were murdered. In the 30 states where domestic violence was documented as a risk of harm in the child’s life, 926 children were documented as being at heightened risk for violence because of domestic violence in the home. Presuming an equal distribution of fatalities among children per state and including the two U.S. territories that were measured 33.07 children died on average in each state. In the 30 states measuring domestic violence 30.86 out of their allotted 33.07 children died in conjunction with documented domestic violence. Domestic violence puts children at unnecessary heightened risk of violence and death. Moreover, a woman has a greater risk of being killed at the hands of an intimate partner than getting cancer, malaria, or be maimed altogether, (Control, 2003; National Coalition of Domestic Violence, n.d.).
Literature Review
In research of domestic violence policy, a few topics dominate. A brief discussion of the most mitigating subjects will follow. Research habitually documents that the judicial system is both reluctant to help victims of intimate partner violence and that it minimizes the violence at every turn. “Women acknowledged that if the justice system had been responsive to their needs and arrested their abusers or forced them to stay away; they would not have needed to leave their homes. This predicament is exacerbated by the failure of society to adequately meet the needs of victims of domestic violence,” (Balos, 2004, p. 100). Victims report judges attacking their credibility, denying or scorning their allegations, minimizing the violence they experienced, deeming domestic violence irrelevant in family court, dismissing charges altogether, and sentencing offenders so minimally victims experience no personal benefit or reprieve.
Also, the legal system will be largely useless for the untold numbers of women for whom physical abuse is a secondary issue, if indeed it is an issue at all. Moreover, by elevating physical violence over the other facets of a battered woman’s experience, the legal system sets the standard by which the stories of battered women are judged. If there is no assault, she is not a victim, regardless of how debilitating her experience has been, how complete her isolation, or how horrific the emotional abuse she has suffered. And by creating this kind of myopia about the nature of domestic violence, the legal system does battered women a grave injustice, (Goodmark, 2004, p. 30).
Research studies found that “the court minimized the violent acts and found some amount of violence acceptable. Ultimately the person responsible for that violence is not held accountable,” (Balos, 2004, p. 88) by the judicial system.
The courts and judges are not the only judicial parties who are failing to support victims. Prosecutors habitually do not pursue criminal charges relating to domestic or gender-violence incidences even when the case against the perpetrator is substantial (Department of Justice, 2017; Goldstein, 2014). Similarly, to avoid trial prosecutors plead cases down to minimal sentences without engaging the victim in this process or asking for their consent. “The salient point for the purposes of this discussion is simply to note that when battered women turn to the legal system for assistance, they may find themselves deprived of the ability to make crucially important decisions about their safety and well-being,” (Goodmark, 2004, p. 32). Prosecutors are not required to get the consent of a victim prior to dismissing charges or in plea bargains, however, trauma-informed experts have found that doing so can often be healing to all parties, perpetrator, and victim, (Goodmark, 2004). “Existing legal responses to family violence provide incomplete redress for survivors,” (Hopkins et al., 2004, p. 290). The restitution that is sought by a victim of domestic violence could be any number of things but is disregarded in current judicial practices and policies, (Goodmark, 2004; Sauber & O’Brien, 2017).
Police have also misused their authority in a punitive manner toward victims ostensibly due to prejudice or frustration with being sent to the same homes repetitively for domestic disputes. False arrests of victims have devastating consequences most significantly, the possibility of losing custody of their children as a result of being accused of a violent crime. Conversely, violence by males toward their family members is widely tolerated and excused.
In dealing with cases of domestic violence, not only is some amount of violence permitted but also the privacy of the home will not be lightly invaded by the courts…it is the husband’s privacy and right of control is protected. The failure by the courts to intervene leaves the target of the violence, the wife, without recourse and with little security…Thus, behind the rubric of privacy male abusive behavior is protected, and the state’s failure to intervene supports his control, (Balos, 2004, pp. 88–89).
Furthermore, when forced to give victims legal relief the abuse suffered by females at the hands of the legal system can be an additional traumatic event,
While many judges treat battered women seeking assistance with dignity and respect, ‘in some cases judges’ responses amounted to secondary victimization.’ Of particular concern to battered women and their advocates is the perception that judges doubt battered women’s honesty and question their motives for seeking protection, particularly when children are involved. Even when the system reaches the right conclusion, it often damages the dignity of battered women along the way, (Goodmark, 2004, pp. 32–33).
When adequate redress is given and a victim is still traumatized by the court’s involvement the need for healing increases substantially. The court is in a power-over position with the victim, in a parallel way to their abuser’s power-over position, when that position is used negligently and causes additional emotional harm policymakers must advocate for substantial changes. Time to Heal removes the power over the position in criminal and civil court by mandating the process, eliminating discretionary decisions by legal authorities that have failed to benefit victims.
Retaliatory legal abuse and the support of male power and privilege are also dominant subjects in domestic violence policy literature. “The reasoning in these [judge’s] decisions reveals that the reluctance to intervene in domestic situations confirms that some amount of violence in the private sphere of the home has been found to be acceptable by the courts. It also shows the courts’ willingness to minimize the violence and to protect the privacy of the husband and the marital home over the safety of the wife [and children],” (Balos, 2004, p. 79, emphasis mine). Male power returns continually to the subject of domestic violence as criminal actions are dismissed at a rate unheard of when violence is perpetrated on strangers. Literature indicates that female victims are routinely distrusted higher rates than their abusers when the perpetrator is male (Balos, 2004; Goodmark, 2004; Nason-Clark & Fisher-Townsend, 2015). Judges’ rulings frequently cite an unwillingness to intervene in private matters in a manner that is detrimental to the victim. The “value placed on privacy has been used to protect the more powerful dominant party at the expense of the subordinate party,” (Balos, 2004, p. 80) reaffirming that male power and privilege will be maintained.
It should not be ignored that the majority of judges in the U.S. are men and that victims already feel vulnerable and disadvantaged prior to entering the courtroom. “Battered women who seek the assistance of the legal system do so because the system holds out the promise that it can stop the abuse and keep them and their children safe. Instead, what many women find is that the legal system itself becomes the batterer’s forum for terrorizing his victim, and judges and others often give him the tools to perpetuate the abuse,” (Goodmark, 2004, p. 33).
Legal abuse has become a rampant new form of violence as civil legislation has progressed. Abusers have become knowledgeable about the court system and now take full advantage of their “rights” to summon the victim to court continuously. “A study of the Massachusetts courts found that batterers regularly file multiple, harassing or retaliatory motions; make false allegations against their victims in court; manipulate the court system to avoid child support, and use parallel actions in various courts and jurisdictions to gain an advantage. Judges assist in trivializing the violence,” (Goodmark, 2004, p. 34, emphasis mine). Perpetrators who had little involvement with children prior to the termination of the relationship will file punishing custody petitions demanding full or half time custody. Judges disregard previous violent incidents and view children as property to be split evenly, reasoning that by ruling 50/50 custody they have done the fair thing (Meier, 2018). Instead, they have been negligent in their rulings by requiring the children to be unsupervised with a violent perpetrator and ordering additional contact for an abused party with their perpetrator, (Goodmark, 2004). Furthermore, judges blatantly ignore the Istanbul Convention’s protections for victims of gender-based violence with the rulings by requiring contact and even mediation, (Feresin, Folla, Lapierre, & Romito, 2018). These matters are not seen as relevant in custody court, hence the desperate need for H.Con.Res. 72.
Counselors working with batterers have amassed an impressive catalog of justifications for factoring a batterer’s violence towards his partner into custody determinations. Such justifications include the batterer’s tendency towards authoritarianism, under involvement, neglect, and irresponsibility as a parent; the batterer’s undermining of the mother, both overtly and through his use of violence against her; his self-centeredness; and his manipulativeness. Batterers, directly and indirectly, interfere with their victims’ parenting and use children as weapons post-separation. Studies estimate that in 30-60% of homes where an abuser is battering his partner, he is battering the children as well. Rates of sexual abuse of children and incest are also higher among batterers than other men. While each batterer’s parenting style is different, ‘one cannot say that any batterer is a fully responsible parent. Whether or not it is the batterer’s intention, exposing children to domestic violence has multiple negative effects on them, including inherently damaging their relationships with their mother,’ (Goodmark, 2004, pp. 12–13).
Male power and legal abuse is further substantiated as “batterers become more savvy about the legal system, the race to the courthouse to file for a civil protection order has become more common,” (Goodmark, 2004, p. 24). Both rulings on custody matters favoring batterers and protection from abuse orders protecting batterers block victims’ abilities to access services from domestic violence agencies. Agencies cannot serve both parties in an action, a fact known by abusers and cunning manipulation of the system which functions to maintain the power the batterer would have lost once the relationship was terminated and hinder the victim’s support network.
There is a perceived bond between judges, legal actors, and perpetrators inherent in their dominant positions that deters victims from seeking legal support. It is also evidenced in bizarre and punitive rulings issued by judges. “In a recent Pennsylvania case [petitioning for protection], the judge went a step further, denying the mother’s request for a Protection From Abuse Order on behalf of her children (a remedy permitted under Pennsylvania’s statute) but removing her children and immediately placing them in foster care,” (Goodmark, 2004, p. 27). Instead of dismissing the petition as was the judge’s right, this judge used this petition to punish the mother and affirm his power. Legal abuse is not an activity engaged in only by the batterers but also by a system functioning in an abusive manner. “The failure of the system, in turn, may bolster the notion that physical intimate violence against women is not a serious crime,” (Hopkins et al., 2004, p. 298).
For review, the salient components discussed in the literature thus far are the reluctance by the judicial authorities to help, the minimization of domestic and gender-based violence by the courts, the reaffirmation of the power and privilege of men, and legal abuse. Other important components in domestic violence literature are the pervasiveness of poverty and homelessness, the continuation and escalation of violence post-relationship, the detrimental effects on children exposed to domestic violence, unhelpful legal remedies, and custody petitions. Given that the later subjects have been briefly discussed throughout the paper we will move on to solution-oriented policy discussion.
Throughout literature, a few obstacles continually present themselves in victims’ lives. Batterers are unsanctioned for domestic violence and predominately unreformed by intervention programs. Victims’ loss of financial support, homes, jobs, and resources increase their poverty level and duration. The courts’ treatment of their abuse is not substantial, credited, and unbeneficial to them. Losing their personal agency by involving the police and judicial systems can cause more harm than good.
Through the implementation of Time to Heal victims can be assured that the judicial system is finally behaving as designed. Both civil and criminal matters will address and prosecute abuse, their children will not be surrendered to an abusive party as a matter of due course. Once batterers are issued maximum sentences, victims will be granted a reprieve from the violence a peaceful window of time with which to rebuild their lives. There are many more issues that need to be addressed with domestic violence policy advocacy. However, even a two-armed approach is sufficiently difficult to craft successfully. As each policy step is taken forward successfully hopefully additional advocacy opportunities will present themselves.
Political Windows
In the recent past, the issue of gender-based violence has dominated the political and public landscape. The movement of #MeToo pushed the prevalence of sexual violence into the media. Attention toward the issue magnified, placing intense pressure on public actors to address the rampant abuse of power particularly sexual power over women. Politicians, actors, and agencies adopted no-tolerance policies and encouraged victims to come forward. While the issue of intimate partner violence has received considerably less attention there has been some overlap. As a result, an opportunistic window has presented itself to address gender and domestic violence on a broad scale without political routine or national crisis. As the legislative hearing for the reauthorization of VAWA demonstrated, there is bipartisan support to enact policy change and further protections. The national mood is an influential factor in the openness of this particular policy window.
The national attitude toward gender and domestic violence has shifted, contributing to a greater intolerance of this type of violence and creating a random problem window. But it is of note that the election of Trump and his disposition toward women has contributed further to this political window. Moreover, the highly divisive hearings and accusations during the appointment of Brett Kavanaugh to The Supreme Court have coalesced to cement this issue in the center of the public’s focus. It seems as though the issue of gender-based violence is not going away anytime soon however historically windows are known for closing quickly, now is the time to act.
Streams:
The problem stream most formative in this policy is the national perception of government responsibility. There has been ever-increasing pressure for the government to become a leader in the change of how violence against women and children is addressed. The policy stream has a preponderance of experts on this issue. There is abundant research to inform this policy-making opportunity alluding to the desire of private citizens to address domestic and gender-based violence. Institutions previously ignored or tolerated by government actors are now being sought out for their expertise on how policies should change. Thankfully well-prepared agencies and advocates have valuable suggestions on how to improve domestic and gender-based violence policies and legislative practices. The political stream is the most dominant of the streams enumerated by Kingdon. Other influential factors are group and social pressure to address violence against women and children; legislative turnover; and the current administration’s leadership.
Political and Economic Philosophies
This policy is a humanitarian liberal approach. The focus in that aspect of liberalism on human nature being rational, interdependent, and altruistic fits well within the aspects of the proposed social policy. Furthermore, the belief that the government is well-positioned to assist its citizens in meeting basic needs and maximizing civic participation are address through the mandatory maximum sentencing which allows victims more time to heal and participate fully in society. Moreover, H.Con.Res. 72 is designed to meet the basic human need of safety and security as declared fundamental at the origin of our nation. The policy does not assume that the victim is inherently responsible for being in an abusive relationship, nor does it place the responsibility for exiting that relationship solely on the victim’s shoulders. Both of those perspectives are more liberal and less classical or conservative.
This proposed policy solution that eliminates the interaction of the perpetrator with the abuse victim and children for an extended period of time focuses on providing supportive assistance in the short term. While neither H.Con.Res.72, nor mandatory maximum sentencing directly put financial resources into the target audience’s pocket, both provisions allow the affected population a greater opportunity to heal and create their own stable set of resources on which to draw. Time to Heal policies relies upon the victim to seize the opportunity that the abuser’s absence from her life creates and use that time to establish her own economic stability, in a similar fashion to classical economic theory. Conversely, the insistence within Time to Heal that the government uses its resources more effectively and in a broader manner to create the time to heal for the victim is more Keyensian in its approach. This is a mixed framework, some of the responsibility economically will be a government-led redistribution of resources, for example, the goal will be to spend less overall fiscal resources on victim support, or problems related to domestic violence over the long term by spending more on incarceration, policing, and prosecution in the short term. However, there is no mention of redistribution to the victim or inherent restructuring economically within this framework. There is an underlying belief, less obviously stated previously, that the correction of the miscarriage of justices in gender-based and domestic violence will function in some way to correct the economic standing of the affected individuals.
Furthermore, while this policy does not directly address poverty-related problems its implementation will address some of these inequalities. This policy approach is centered around allowing the target audience to fully participate in a society free from fear. Sometimes individuals are limited by constraints placed upon them by outside actors (in this case abusive perpetrators) from fully participating in market economies. The number of jobs lost and missed wages by victims totals over $ 700 billion annually (Control, 2003).
Human Rights
Human rights are a hotly debated topic. What does someone really have the right to? Our Declaration of Independence begins with statements about our forefathers declaring their rights were being violated. The United Nations has its statement on rights, but little authority to enforce that document on participating nations. Similarly, the Istanbul Convention stated that nations within the European Union were not to use mediation between parties in cases where any type of abuse is present. Those instructions go largely ignored by attorneys and judges well aware of the statute, (Feresin et al., 2018). Despite how legislatively effective the application of human rights is to judicial practice, policy advocates and social workers have inherent in their code of ethics the responsibility to maintain these rights.
Time to Heal is a major step forward in multiple areas of concern for human rights. The UN Declaration states that all human beings should enjoy freedom speech, belief, and freedom from fear. Time to Heal gives victims the opportunity to not be afraid, knowing that their abusers have been incarcerated. This policy levels the judicial playing field between men and women, assuring that the allegations women bring forward will be taken seriously. Every person has the right to life, liberty, and the security of their personhood when abusers go without proper criminal sanctions victims fail to have security in their person, and in many cases lose their lives. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” (United Nations, 1948), victims experience this treatment every day in their relationships, freedom from this inhumane treatment is offered through Time to Heal. Time to Heal recognizes that each person should be treated equally in the judicial system, that every person should be treated as a full human being worthy of dignity before the law and is entitled to engage the legal system without discrimination. Furthermore, it protects alleged perpetrators by assuring that they will only be charged with crimes they committed, that they will be presumed innocent, have the right to the trial and their sentences will be commensurate with current statutes for the crimes they committed. Time to Heal protects the family unit, prevents arbitrary interference from abusive perpetrators in one’s own home, and upholds a person’s dignity and honor as worthy of respect within the courtroom. It recognizes that “motherhood and childhood are entitled to special care and assistance,” (United Nations, 1948) and that children deserve the same social security as adult members of society. Finally, “everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society,” (United Nations, 1948). By limiting the freedom of violent perpetrators society is securing the free and full development of victims.
Conclusion
Policy change is not an exact science, but well-informed theories and research can guide decision-makers in directions that would produce the best results. Domestic Violence and Gender-based Violence have run rampant throughout history, and the present-day legal remunerations are not producing marked improvement. Society deserves to be free from violent offenders who are resistant to reform. Victims deserve fair justice that serves their interests and to have a voice in judicial settings. Children should never be needlessly placed at additional risk of harm, especially not due to antiquated notions of male rights and privilege. This policy reform, Time to Heal, has the real opportunity to alter the course of our future, as we reduce the number of domestic violence victims and better protect children from needless violence. There have been communities on smaller scales that have altered their course successfully by changing the seriousness with which they handle domestic violence cases (Goldstein, 2014). It is time for our nation to follow suit.
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Engaged Sociology 