Minnesota Attorney on Domestic Violence

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Have there been cases in which the law has failed to protect women who are victims of domestic violence? If so, do you have a specific example you could share?

Let me first say, there are very specific legal definitions of domestic violence, domestic abuse, and the other terms associated with such offenses. That said, I believe that the law certainly does fails people at times, and that generally it can be said that this happens on a regular basis within the legal systems in and around the country. In fact, I have heard many people (especially judges, prosecutors, and defense lawyers) say “[o]ur system of justice is the best system of justice in the world, though not a very good one.” I’m not sure I’m even convinced ours (i.e., the United States) is even “the best,” as there are many European models that incarcerate fewer innocent people while at the same time decreasing recidivism rates of actual offenders and thereby decreasing the overall number of victims of crime within those particular jurisdictions. This of course results in a reduction in the number of victims of domestic violence.

Here are some examples of the law (or the legal system) failing victims (and these are very typical situations):

A person commits an assault against the person’s spouse. Given the stereotype, I’ll use an example of a husband assaulting his wife. The wife is a stay-at-home mom. She reports the assault to the police. The police perform a domestic abuse arrest of the husband. The husband pays his bail bond and is released from jail while the case is pending. He has a court appearance a month later. As part of his bail conditions, he cannot have contact with his wife (or maybe the wife even gets an Order for Protection). He makes contact anyway. He then convinces his wife to ask the court to allow him to have contact and move home because he is very sorry and loves her very much (also he has nowhere else to go and can’t afford to live in a hotel for the next month). The wife agrees and asks the court to allow it, and then (as many judges do) the court so orders.

The wife then starts to feel bad about the charges against her husband because the husband makes her feel guilty by claiming it is all her fault because she called the police. Husband convinces his wife that if she cooperates with the prosecution, he will go to jail or prison, lose his job, not be able to pay the rent or mortgage, and then she will be homeless. Now, true or not, the law allows this to occur (with the only exception being the initial violation of the no-contact order or violating the Order for Protection, although this sort of a violation often goes unnoticed and unreported, and the law does little to stop it from happening).

Thus, the victim has no protection from the law in this situation: where punishing the offender results in an indirect (or collateral) punishment of the victim – usually because the victim is so reliant and dependent upon the offender.

A second way victims get punished is this (though admittedly more controversial):
When a person is a victim, but the victim does not wish to pursue charges against the offender. This is surprisingly common. I will say that I understand some victims are simply too scared to take legal action against the offender (or cooperate with the government in prosecuting the offender). Also, victims can become caught up in a “cycle of violence” where the victim believes abuse is normal, that they should excuse the offender’s conduct, or even that they somehow are to blame for the offender’s conduct. However, assuming a victim is liberated, independent, and autonomous from the offender, shouldn’t the victim be able to make the decision to prosecute and punish the offender? If so, the law does not assist this victim.

Victims have no actual authority to either prosecute a case or have the criminal charges against their spouse dropped or dismissed. Victims can of course voice their opinions, but prosecutors are free to either accept or reject and disregard those opinions completely. Prosecutors even go to the point of coercing an alleged victim’s cooperation by requesting a judge find the victim in contempt of court for not cooperating with the prosecution and then requesting that the judge sentence the victim to jail for the contemptuous act (i.e., for not cooperating with the government prosecutor in trying to convict the victim’s spouse). Imagine: victims going to jail for not helping the government prove a case! It is a sad day when this happens. And as the Rev. Dr. Martin Luther King Jr. stated, “[i]njustice anywhere is a threat to justice everywhere.” Thus, this is an injustice to us all.

Third, many men are victims of domestic violence (DV):

In my experience when this happens, the situations are generally not taken serious by anyone involved in the legal process. These cases are often dismissed as “un-provable” or “unbelievable” because it is assumed “no juror will convict a woman for assaulting a man.” True or not, the law fails to protect men who are DV victims.

When this happens, it is clearly the result of gender-related bias. it is also very insulting to women and their liberation and independence generally within the law and society. It’s as if the law assumes a women is a weaker person than her male counterpart and therefore not able to harm or commit a crime against a male person.

Further, even when it is believed a woman did harm a man, it is often said that the man should have just stood up for himself, defended himself, or dealt with her “as a man.” In fact oftentimes I’ve seen male DV victims shamed by the government and victims’ advocates for “abusing the system,” as if to say because he’s a man, he’s wasting the legal systems resources in seeking relief. Lastly, this scenario within the legal system also clearly ignores the many individuals who do not self identify themselves as either “male” or “female.”

Have there been cases in which the law has failed to convict or penalize the perpetrator? If so, do you have a specific example you could share?
This happens regularly. The reason it happens is because many DV victims are assaulted or abused when they are alone with the offender. When this happens, it the victim’s word against the offender’s word. Often these types of cases are difficult for government prosecutors to prove. When the prosecution determines it will have difficulty proving a case (often occurring prior to trial), the offender in that case is given an exceptionally good plea agreement – or the case is simply dismissed because of the lack of evidence of domestic violence.

There is of course pragmatic and philosophical arguments for why this is a good thing within a system of justice; however, regardless of those reasons, offenders still end up not being penalized when it happens, which of course is a failure within the system. Also DV victims who are caught up in a “cycle of violence” are less likely to cooperate with the government in prosecuting the offender. This is true even though such offenders are often some of the worst (and most violent) of all DV offenders. In fact, it is often these repeat offenders who are the ones responsible in the first place for having created the “cycle of violence” within which the victims is caught up. In this situation, the offender who offends regularly against the same victim will have a better chance of not going unpunished (or punished less severely) than a person who seldom offends. This is truly a grave failure in the law.

In your opinion, do judges give a low or high priority to cases of domestic violence?
I actually think judges give a very high priority to cases involving domestic violence offenses. However, the one exception is when a woman is the offender, and the male is the victim. These cases are usually scoffed at as “silly” or “unprovable” (as explained above).

In your opinion, do judges have a gender bias?
Yes, of course, but then again I believe everyone has a gender bias to some extent. It’s not appropriate, but I think it is still true of everyone. Of course judges are not just made up of men, as there are many judges who identify as female. Regardless, there is still a bias for all judges. How that bias plays out is quite different however depending on the judge. Some men are treated better because they are “the Man of the house” or because “she (the women) had it coming.” But some men are also treated harsher simply because of the stigma of being “an abusive husband” or “an abusive boyfriend.” Thus, two people who commit the same offense and cause the same harm to their victims may often be punished quite differently: the “abusive husband” being punished harshly, and “the guy who just got in a fight with some girl who had it coming” being punished very minimally.

In your opinion, are the regulations created to protect women (i.e. Family Violence Option, Violence Against Women Act, etc.) effective?
I think they certainly do some good (e.g., providing victims certain and specific rights in court and providing resources to assist women who are victims of domestic abuse). Many of these rights, privileges, and resources are located in the Minnesota Domestic Abuse Act, and with it comes specific relief available to victims of domestic violence. But such regulations are, as you said, “created to protect women.” Of course women victims of domestic violence need to be protected, but do they need it more than anyone who is not a woman? Not based on my value judgments they don’t. I recognize women are the primary victims when considering the number of domestic assaults and the gender of the victims. That said, however, the law does a very poor job of protecting anyone else who is not a woman (e.g., finding a DV shelter for a man is not always easy, especially in smaller or more rural communities).

In your opinion, what needs to be done to change the current situation regarding domestic violence (e.g. laws, education, enforcement, etc.)?
Honestly, a systemic change needs to occur. Attitudes and prejudices have to be addressed and changed. I think the best thing to do to protect all victims of domestic violence (including women) is to not focus on “protection for victims,” “punishment for offenders,“ or forcing police to arrest people and intrude on other people’s lives (often resulting in de facto babysitting by the police).

Rather, we should focus on prevention and treatment. The lack of money and financial difficulties facing families cause many arguments between spouses. Arguments often result in incidences of domestic violence. Also people’s poor health and sickness get in the way of them going to school or work, and when they do poorly in school or cannot go to work, the result is against a lack of money and financial difficulties, which then lead to spouses arguing and domestic violence. Given this problem, I think keeping people healthy, increasing employment opportunities, creating avenues for better and cheaper education (both for kids and those who want to attend college), and breaking down gender roles and racial stereotypes within society is key.

Without doing this, the rest is meaningless.