Rhetorical Statistics And Domestic Violence Law by John P. Rooney, J.D.

Used with permission of the author

Originally published in Lang, P., ed., The Law vs. The People, 2000.

The paper has been reformatted and slightly edited to conform with site standards.

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This paper discusses the effect of false or misleading statistics on the law of domestic violence. Semiotics deals with communicative action. The communicative action here is the mass dissemination of unfounded statistics.

Some journalists and feminists have led the public to believe that many men and almost no women are physically abusive towards their mates (McNeely and Robinson-Simpson, 1987). The truth of the matter is that women hit their mates as often as men do, (Gelles and Straus, 1988; George, 1994).

If legislators and judges had known the truth, they might not have favored the changes they have made in the law (Brott, 1994). However, these changes in law and practice might be desirable even if they would not have happened without the mass deception of the public (Weiss and Young, 1996). From a lawyer's point of view the most regrettable change is that procedural due process has gone out the window. All accusations are believed and sweeping orders are granted ex parte (Young, 1998).

The publicists have succeeded in altering public opinion so that juries are too willing to acquit female killers and governors are too willing to pardon them (Young, 1997). This effect may also be rather regrettable but it does not affect nearly so many people as the trashing of due process does.

Another semiotical angle is the dramatization of truthful statistics. For example, for a few years mate-to-mate homicides were running at about 2,100 per year, 1,400 dead women, 700 dead men. This was presented as: “Every day in this country four women are killed by men who say they loved them.” No mention is made of the two men killed every day by women who had said they loved the men they later killed.

The Justice Department began keeping track of murder by intimates in 1976. For that year 1,357 men were killed and 1,600 women, 46% men, 54% women. The figures for 1996 were 516 male victims and 1,326 women, 28% men, 72% women (Greenfeld, 1998, p. 37). These 1,842 murders are about 9% of all murders in the United States. Over the years, men and black women are getting killed less frequently.

In recent years, we have survey results for violence by intimates including rape, assault and murder. Compilers conclude that 1.4 out of 1,000 men are so victimized and 7.5 out of 1,000 women (Greenfeld, 1998, p. 37). That is to say, 15% of such victims are men and 84% women. The number of female victims of intimate violence has been declining. According to the data for hospital emergency departments (Greenfeld, 1998, p. v): “women are about 84% of those seeking hospital treatment for an intentional injury caused by an intimate assailant,” so the injury percentages are the same as the crime percentages. In contrast to 7.5 women out of 1,000 being attacked by intimates, 13.7 were attacked by friends or acquaintances, and 11.8 by strangers, (Greenfeld, 1998, p. 38). Beware your friends!

A rhetorical favorite was to say that every fifteen seconds a women is beaten. The source is Straus and others (1980) who say men are slightly more often, 1.8 million females and 2.1 million males per year. To arrive at once every 15 seconds requires one to include shoves and pushes that are not “battering” in common parlance (Cose, 1995, p. 232).

Another fallacious statistic was to say that only 5% of the noticeable victims of domestic violence were men whereas the true proportion exceeds 15%. It was also popular to say that spouse abuse was more common than auto accidents. During 1992 there were almost 90 million visits to hospital emergency rooms (Advance Data 245). About 32 million of the ER visits in 1992 were injury-related. About 1.5 million of these were injuries from intentional violence. And out of these fewer than one-quarter million, less than 1%, were attributed to domestic violence, 243,000 composed of 204,000 injured women and 39,000 injured men. In comparison, two million people went to the hospital for auto accidents (Women's Freedom Network Press Release, August 29, 1997). This contradicts the feminist claim that domestic violence injures more people than auto accidents. To put this matter in perspective, “Nearly 4.5 million dog bites occur annually sending 334,000 victims to hospital emergency rooms.” (Lindsey Tanner, Associated Press, January 11, 1998). She attributed her data to the Center for Injury Research & Control at the University of Pittsburgh (See also Cook, 1997, p. 125).

About 25 years ago the National Organization for Women undertook a campaign to revolutionize the law of domestic violence (Straus and others, 1980, p. 11). To accomplish this goal some professional feminists have been willing to prevaricate. For example, they repeatedly proclaim that 95% of the time men are the assailants in inter-spousal violence. But social science investigators conclude that men and women are equally guilty of violence. Fiebert has complied an annotated bibliography of more than 120 studies of the relative rates of violence. And official statistics indicate that men injured by their mates account for 16% of intimate injuries treated by Emergency Departments and 16% of criminal assaults. These feminists say when women strike it is always in self-defense but in interviews violent women seldom claim that they acted in self-defense (Thomas, 1993, p. 186) . Unfortunately, feminist rhetoric has persuaded Congress to enact the Violence Against Women Act (VAWA) and to pay feminist civil servants more than $1 billion dollars per year to try to prove something that is not so: That men have a monopoly on domestic violence (Daniels p 74).

One very successful component of this campaign was the selling of the Battered Woman Syndrome. Lesbian activist Del Martin wrote her version in 1976. A few years later Lenore Walker described a pattern for battered women. Her own research data does not support her hypothetical cycle of build-up, incident and apology (Faigman, 1986).

Lenore Walker became a professional witness to inform the jury how a battered spouse's mind might work. Her “expert” opinions have been discredited but her expert testimony is no longer needed. Juries no longer have to be educated on the subject. The syndrome is now common knowledge even if the diagnosis is wrong (Lemon, 1996, p. 16).

Meanwhile a serious scientist, Suzanne Steinmetz, reported on The Battered Husband Syndrome (Steinmetz, 1978). But battered husbands did not make for titillating journalism.

Under the old law, to kill a sleeping man, even a wife-beater, was homicide. Physical cruelty was grounds for divorce but not a license to kill. Initially the battered woman was pictured as physically beaten and cowed (But see Maguigan, 1991). Subsequently the phrase, or its application was broadened to include women who hit back, or often hit first. Next, its principal exponent Lenore Walker called some women psychologically battered (Young, 1998). Then it became possible for a homicidal woman to claim that a previous mate had mistreated her, so she had a right to kill a new mate. Lenore Walker even spoke up for a woman who had hired a hit man.

The Battered Woman Syndrome is not used merely to reduce murder to manslaughter. It is used as a defense to get an acquittal or a pardon, sometimes for admittedly violent women (Weiss, 1996, p. 45).

In the not so olden days, many people erroneously thought that a husband had some limited right to strike his wife. In this country mate-beating was outlawed in 1642 (Pleck, 1989, p. 22). However, if the police were called to the scene of a domestic disturbance, they could not arrest anyone unless they observed an attack. Even if they did see an attack, the police preferred not to arrest anyone but to smooth things over (James, 1994).

Even if prosecutions began, the victims were able to drop charges and often did. Moreover, the doctrine of inter-spousal immunity prevented the victim from bringing a civil action against the attacker (Lemon, 1996, p. 5) .

Men who complained of being hit were ridiculed (George, 1994). In the new dispensation, police are empowered to arrest without a warrant and without observing an attack and, indeed, have some explaining to do if they do not arrest someone at the scene of a domestic commotion (Lemon, 1996, p. 12).

The victim may not drop charges (Lemon, 1996, p. 14).

Domestic violence may be punished more severely than other violence and tort actions may no longer be barred (Lebowitz, 1996).

However, sometimes police will now arrest women if the male seems injured. In Los Angeles there are more than 30 counseling groups for women who batter (Johnson, 1996).

Restraining orders

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Under the old rules, people, even men, had a right to a hearing before being ordered not to go home after work. At the hearing, both spouses might be ordered not to bother each other (Lemon, 1996, p. 6). Judges felt comfortable with such orders because they did not know that the defendant was the sole offender and they felt that neither spouse could complain of being ordered not to hit the other.

The new practice is for men to be enjoined without notice or a hearing (Young, 1998). Judges are inhibited, and sometimes prohibited from issuing mutual restraining orders (Lemon, 1996, p. 7). The authorities assist women in getting ex parte orders and the police are encouraged to arrest the husband. In addition, a man who does attack his mate will be subjected to double penalties, one for disobeying the order, a second for the misdemeanor of domestic violence.

Under the old law, a husband could not be guilty of rape if marriage constituted a general consent to sex (Lemon, 1996, p. 11). Legally a husband could be liable for assault and the sex angle was beside the point. Under the new law, a separated husband can be guilty of rape and even a non-separated husband can be most places. However, rape by a husband may not be punished as severely as non-marital rape (Lemon, 1996, p. 11-12).

Divorce law changed over the past 30 years and so did the law with respect to unwed fathers. It used to be that fathers almost never got custody and inter-spousal violence was not legally relevant. Unwed fathers did not even get visitation. Lately fathers occasionally get partial or general custody (Bahr, 1994). Mothers may accuse fathers of violence in order to reduce or eliminate fathers' visitation rights (Lemon, 1996, p. 9). Violence can also be adduced as an excuse for the mother to leave town without leaving a forwarding address (Lemon, 1996, p. 7). If the mother cannot be located child support cannot be reduced and child custody cannot be modified. Fathers' groups favor joint custody. Their opponents want even abusive women to have sole custody.

In conclusion, Fiebert's compilation shows that men and women are equally violent, Greenfeld's (1998) official report collects the true statistics about murder and other criminal assaults. Other official reports, called Advance Data, provide an accurate survey of Emergency Department visits.

There is no longer any reason to believe the fallacious feminist statistics.

John P. Rooney is an Emeritus Professor of Law at the Thomas M. Cooley Law School in Lansing, Michigan.

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