Domestic violence

Domestic violence is abusive behavior within an individual in an intimate relationship or within family bonds. It includes wife-beating and, more generally, abuse of an intimate partner, whether married or not, and regardless of sexual orientation, child abuse, sibling abuse, and elder abuse. Nonetheless, when discussed, it most often refers to the violence used to control a wife or girlfriend, perhaps because, statistically, abuse of women by their male partners is the most reported and prevalent of family violence. Notwithstanding this understanding, intimate abuse is one of the most underreported crimes in society. Most statutes that address domestic violence include any single act of physical violence. However, most activists and theorists refer to a pattern of abusive conduct by an intimate designed to control his partner. Some scholars estimate that upwards of 50 percent of all women will be victims of battering during their lifetimes.

Control of an intimate is essential in defining the nature of domestic abuse. It is not uncommon for the batterer to blame his victim for his violence. Some of the most dangerous times for a victim of abuse are when she decides to leave her abuser and during pregnancy. During these times, the abuser loses some, if not all, control over the abused and attempts to regain control through force.

History

In early American history, following English common law and ecclesiastical tenets, women were afforded very few rights. Unmarried women were considered to be under the control of their fathers until marriage. Upon marriage, however, women were subject to the marital unity under the doctrine of coverture, which meant that a wife had no legal identity outside her husband. Some of the effects of these rules included women’s inability to contract or to own property. The legal doctrine of chastisement had the greatest significance to the perpetuation and sanction of physical violence against women. Sir Henry Blackstone, in discussing the rights and responsibilities of husbands vis-a-vis their wives, said of English common law:

The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children.

During the mid-nineteenth century, married women’s property acts, granting women the right to own property, were instituted across the United States and roughly accompanied the abandonment of coverture and the repudiation of chastisement. These changes in status, primarily for white women, came at approximately the same time as change in other forms of social status, namely, slavery. In fact, there is evidence that the emancipation of black slaves assisted in the formal repudiation of chastisement. One of the first cases to renounce chastisement, Fulgham v. State, 46 Ala. 143 (1871), was as much about ensuring that a male emancipated slave did not feel equal to white males as it was about denouncing physical violence against wives. After citing Judge Blackstone for the proposition that ‘‘the authority . . . to chastise’’ was asserted primarily, if not exclusively, by ‘‘the lower rank of the people,’’ the court in Fulgham said:

A rod which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjection to the husband. The husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husband’s slave.

Thus, the complexities of societal violence confronted by those in poverty and by people of color became part of the landscape that permitted the political abandonment of wife-beating. Stereotypes of poverty and race, while fueling change for some women, continue even today to impede protection or redress for others.

Repudiation of chastisement altered social condoning of spousal violence in form, but not in substance. That is, after the abandonment of chastisement, courts continued to enforce male privilege of control in the home, even to the extent of tacit acceptance of violent conduct, through deference to family privacy. This deference reinforced norms of violence in the home through the guise of nonintervention by the state.

Modern History

The beginnings of the modern-day battered woman’s movement in the mid-1970s are generally attributed to the feminist antirape movement of the 1960s and its existing organizational and political structures. Early strategies of the battered women’s movement avoided legal remedies and redress by formal institutions. The law and these institutions were viewed as patriarchal and accommodating to the social structures that permitted intimate violence. Instead, activists established shelters as a means for protection and escape from the abusive relationship and engaged in public awareness campaigns.

In addition to nonlegal means for protection, the movement later began to use the justice system. The focus was to find means of reform that would eliminate, rather than perpetuate, violence in the home. Part of the strategy was to challenge notions of family privacy that denied protection from marital violence.

Activism in domestic violence led to the development of the battered woman syndrome as a judicially recognized description of victim’s responses in abusive relationships. Recognition of this syndrome allows an expert to explain to a jury the mental state of a reasonable person in the defendant’s situation. This kind of testimony is often necessary to support a defense of self in the context of a murder prosecution.

Recent efforts to reform the legal system and its ability to address domestic violence include no-drop prosecution rules, mandatory arrest, and inclusion in hate crime legislation. Some of these efforts are controversial and are as yet not fully tested for efficacy. Activists’ reform efforts, within and outside the legal system, will continue as long as violence within the home exists as a social problem.

Other recent efforts for reform include those within the federal system such as the Violence Against Women Act of 1994, Pub. L. No. 103-322, }} 40001- 40703, 108 Stat. 1902. This legislation includes funding for shelters, encouraging arrest and prosecution, and incentives for prevention through education and support programs. Unfortunately, in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court significantly undercut the ability of this legislation to redefine intimate violence as a public problem rather than merely a matter of private concern. It held that Congress exceeded its authority under the Commerce Clause and section five of the Fourteenth Amendment by creating in the act a federal civil remedy for persons victimized by gender-motivated violence. The Violence Against Women: Civil Rights for Women Act, 42 U.SC.S. } 13981 (2000), was promulgated to allow for a private right of action within the constitutional limits addressed by Morrison.

Resistance by activists to using the legal system for redress was not entirely unfounded. Current areas of concern involve ways in which the legal system is turned against battered women. This includes dependency or failure to protect actions by child welfare authorities against the battered woman for conduct by an abusive partner. When child protection may be the ultimate objective, removing a child from a nonabusing parent may nonetheless be detrimental to the child and may punish an individual for conduct not within her control.

Custody matters in family court are also problematic in abusive situations. Abusers often use children as leverage in maintaining control over their partners. Many judges disregard evidence of spousal abuse in considering the best interests of the child. This approach does not take into account the impact on the child in witnessing abuse of one parent by the other. Joint custody arrangements are routinely imposed, allowing the abuser access to his partner through the child and continuation of physical and emotional abuse. This result is gradually lessening as legislatures and judges include abusive behavior as a factor in the best interests analysis.

ZANITA E. FENTON

References and Further Reading
  • Blackstone, William. Commentaries. 444–445.
  • Dobash, R. Emerson, and Russell Dobash. Violence Against Wives: A Case Against the Patriarchy. New York: Free Press, 1979.
  • Gordon, Linda. Heroes of Their Own Lives: the Politics and History of Family Violence, Boston 1880–1960. New York: Viking Press, 1988.
  • Schechter, Susan. Women and Male Violence: The Visions and Struggles of the Battered Women’s Movement. Cambridge, Mass.: South End Press, 1982.
  • Siegel, Reva B., The Rule of Love: Wife Beating as Prerogative and Privacy, Yale L. J. 105 (1996): 2117.

Cases and Statutes Cited

  • Bradley v. State, 1 Miss. 156 (Miss.1824)
  • Fulgham v. State, 46 Ala. 143 (1871)
  • State v. Kelly, 97 N.J. 178, 478 A.2d 364 (N.J. 1984)
  • United States v. Morrison, 529 U.S. 598 (2000)
  • Wanrow v. State, 88 Wash.2d 221, 559 P.2d 548 (Wash.1977)

See also Equal Protection of Law (XIV); Marital Rape; Rape: Naming Victim; Sex and Criminal Justice

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