What Do The Police And Courts Think Of The Domestic Violence Laws? by Charles E. Corry, Ph.D.

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Necessity is the plea for every infringement of human freedom. It it is the argument of tyrants; it is the creed of slaves.

William Pitt in a speech to the British House of Commons, 1783


 

Index

The view at the federal level

The views of the United States Supreme Court

American Bar Association report

State and local views

Canadian study of RCMP attitudes

Retiring Massachusetts judge reveals that restraining orders are huge problem

Judges are afraid to release fathers

Massachusetts Supreme Judicial Court gave a glimmer of hope

Summary of police and court attitudes


 

The view at the federal level

The views of the United States Supreme Court

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Every year Chief Justice William Rehnquist makes the same complaint in his year-end report about the two-pronged mischief that Congress creates when it federalizes criminal activity, including domestic violence laws.

The mischief is created in two ways: First, the Federal laws invariably duplicate state and local efforts. In, and of itself that wastes limited tax resources. Second, Congress inflicts harm on the federal judicial system by imposing these new burdens while failing to appropriate necessary funds and confirm new judges to cover the additional work.

The Democratic Party uses excuses for such superfluous legislation as a desire to limit domestic violence or impose gun controls.

The Republican Party has its own agenda, desiring to limit drug use or crack down on juvenile crime. These are areas that are best handled at the local level according to Rehnquist.

The Chief Justice has correctly, and repeatedly pointed out to legislators that a continuation of current trends threatens the very nature of the republic. The Constitution did not contemplate, nor sanction, the endless expansion of federal authority. Additionally, laws such as the Violence Against Women Act (VAWA) and related U.S. Code are of dubious constitutionality as witness the Emerson case.

In the January 24, 2000, issue of U. S. News, on p. 12 John Leo wrote:

"The Violence Against Women Act slipped into law in 1994 without most members of Congress quite knowing what they were passing. We have Andrea Dworkin's word on this. Dworkin is surely a contender for the North American title of most overwrought, man-hating feminist. She told the New Republic at the time that the only possible explanation for the bill's popularity in the Senate was the 'senators don't understand the meaning of the legislation that they pass.' In plain English, she seemed to mean that Congress was naively institutionalizing the radical view of domestic violence as antifemale terrorism by a relentless oppressor class — men.

The same congressional innocence blurred the federalism issue that brought the Violence Against Women Act to the Supreme Court and ultimate defeat. The act turned many rapes and much domestic violence into federal civil rights violations. It gave federal courts jurisdiction in domestic violence cases, allowing plaintiffs to sue in federal as well as state courts on the same complaints. Chief Justice William Rehnquist raised the issue of federal overreach at the time, arguing that Congress was increasingly inclined to federalize offenses for symbolic reasons.

In passing the legislation, Congress cited its all-purpose excuse for overriding or duplicating states' jurisdiction, the commerce clause of the Constitution. Congress said that violence against women has a significant effect on the economy, particularly by impeding women's travel and employment. Feminist lobbyists claimed an annual loss of up to $5 billion because of male-on-female domestic violence. But if this is right, why couldn't Congress cite the cost of all violence directed at females (41 percent of the annual cost) as well as all the violence directed at males (59 percent)? Surely all violence, not just the 'gender based' variety, has an economic effect.

The obvious is true: The commerce clause is an all-purpose pretext for dubious federal legislation. Nobody can say with a straight face that 'gender based' violence involves interstate commerce. The Supreme Court should strike the law down, and it probably will."

Since this was first written the US Supreme Court has found portions of VAWA unconstitutional and it is hoped that future tests of this draconian and discriminator law will also be struck down. However, Congress has now passed, and President Clinton signed, the even more draconian VAWA II, hiding it as part of the Sexual Trafficking Victims Protection Act, H.R. 3244.

American Bar Association report

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The Chief Justice's complaints are echoed in an American Bar Association report entitled The Federalization of Criminal Law released in February, 1999. The panel that produced the report was led by former Attorney General Edwin Meese III, known during his tenure in that position as being tough on crime.

The report warns against the "misguided, unnecessary, and harmful tendency" of lawmakers trying to show they are tough on crime. The panel points out that the penchant for federalizing crimes that had long been dealt with by the states and local jurisdictions runs counter to the nation's historic reluctance to concentrate broad powers in a national police force. The panel also points out the same concerns for the federal courts that Chief Justice Rehnquist has repeatedly expressed.

"Enactment of each new federal crime bestows new federal investigative power on federal agencies, broadening their power to intrude into individual lives," the report said. "Expansion of federal jurisdiction also creates the opportunity for greater collection of data at the federal level in an era when various databases are computerized and linked." Such actions pose grave dangers to individual freedom.

The report noted that 40% of all federal criminal laws that had been enacted since the Civil War were passed since 1970. In the previous congressional term more than 1,000 bills dealing with federal criminal statutes had been introduced through July.

The task force found so many federal criminal statutes now exist that: "...there is no conveniently accessible, complete list of federal crimes."

The report's authors also expressed concerns that increased federal responsibility in the criminal arena might confuse and discourage local law enforcement efforts. "In light of federal assumption of jurisdiction, some state entities may hesitate in pursuing the conduct in question," the report states. "Such hesitation or withdrawal by local law enforcement would undermine the primary role played by state law enforcement."

The authors also point out that: "Increased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concern Americans [e.g., domestic violence], because in practice federal law enforcement can only reach a small percent of such activity."

They also note that despite the huge increase of financing for federal anti-crime efforts, 95% of all prosecutions are still handled by state and local authorities, as we think they should be.

If funding is provided at the federal level, then taxpayers will be reluctant to also fund the same operations at the local and state level, and local law enforcement and courts ultimately suffer. The net result is less enforcement of the law.

Ignorance of the law cannot be held as an excuse for not obeying a law but even the lawmakers do not know what laws exist in our era. As a sad result, laws often overlap and contradict one another. When it comes to rules and regulations of the government, understanding is often beyond mortal ken.

Yet the feminist agenda depends heavily on ever more federal laws such as the Violence Against Women Act (VAWA) and successive legislation.

We do not think more laws are the answer to the problem of domestic violence and neither do high federal officials.

In fact, more federal laws seem extremely likely to make the problems worse.

 

State and local views

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The current domestic violence laws add immensely to the load on police departments and the courts. Family disturbance calls are the largest single category of calls received by most police departments each year, accounting for about 30% of all calls.

Yet responding to such calls are among the least glamorous and prestigious tasks police engage in, and occasionally among the most dangerous. About 7% of police officers killed on duty, and roughly 13% of officer assaults, are associated with domestic violence calls.

Few officers receive medals or promotions because they are effective in handling domestic violence calls. And most officers have stories of how women have attacked them when they tried to arrest the male at the scene.

For the view from the squad car of such incidents see Fred Reed's War On The Home Front.

As a result, police were historically reluctant to get involved in treatment or prevention. In many cases they did not even respond promptly to the call, hoping the dispute would settle itself before they got there.

Current laws are partly a response to that reluctance and mandate both a response, and an arrest in most cases, and charges cannot be dropped after the parties cool off.

It is our position that the pendulum has swung too far and a more balanced approach is necessary. Certainly a prompt response by the police is required, but "must arrest" and "no drop" leave the officer no room for common sense, as examined below.

Women authors have been investigating the reaction of prosecutors, judges, and police and constables intimately involved in the Prohibition-style war against "domestic violence" and their findings on the reaction of these institutions to mandatory arrest, "no drop" prosecutions, and the denial of civil rights are of great interest.

In her article in the April, 1998, issue of Reason magazine, Cathy Young quotes:

"...Christopher Pagan, who was until recently a prosecutor in Hamilton County, Ohio, estimates that due to a 1994 state law requiring police on a domestic call either to make an arrest or to file a report explaining why no arrest was made, 'domestics' went from 10 percent to 40 percent of his docket. But, he suggests, that doesn't mean actual abusers were coming to his attention more often. 'We started getting a lot of push-and-shoves,' says Pagan, ' or even yelling matches. In the past, police officers would intervene and separate the parties to let them cool off. Now those cases end up in criminal courts. It's exacerbating tensions between the parties, and it's turning law-abiding middle-class citizens into criminals.'

Many police officers agree — though all of those who were willing to discuss their misgivings asked that their names not be used, given the charged nature of the subject and their criticism of official policy. 'We need domestic violence law but we need common sense, too,' says a veteran small-town policeman in New Jersey. The officer stresses that he doesn't miss the days when a woman could be bruised or bloodied and you couldn't arrest the man unless she was willing to risk enraging him further by signing a complaint. But today, he says, the law has gone to the other extreme: Sometimes the wife's begging, 'Don't arrest him, the kids are here,' and you have to arrest.'

It's not just male officers who chafe at having their hands tied. A woman I'll call Sally Gilmore, a sergeant on the nearly all-male police force of a working-class New Jersey town, feels that mandatory arrest rules often force cops to act against their better judgment. She recalls responding to a quarrel between a woman and her ex-boyfriend, who had come over to pick up his things. After being told that he couldn't be arrested for shouting at her, the woman suddenly 'remembered' that he had also hit her and pointed to a bruise on her leg. 'I asked, When did this happen?' and she said, ' Just now,' says Gilmore. ' Well, this bruise was days old. He said he didn't hit her. I basically knew she was lying, but I had no choice.' "

In her article in the summer 1997 issue of Women's Quarterly, Sally Satel, M.D. noted that:

"...the paternalistic intrusiveness that characterizes so much of feminist domestic violence policy frequently has the unintended consequence of harming the very women it was meant to protect. Judge William S. Cannon, who has handled thousands of domestic violence cases through South Bay (San Diego) Family Court, finds that 'about eighty percent of the couples we see in court end up staying together.' Nonetheless, the California legislature has made it mandatory for judges to issue a restraining order separating the parties in all domestic violence cases. 'It's ridiculous,' the judge says of this mandatory separation, 'each situation is different.' Sometimes a woman doesn't want the separation, particularly if the threat from her husband is mild. 'If the woman feels relatively safe, she might well rather have her kids' father home with the family,' Judge Cannon says. In California, however, this option is no longer open to women. As Judge Cannon says, 'We treat women as brainless individuals who are unable to make choices. If a woman wants a restraining order, she can ask us for it.' "

Judge Cannon's remarks would fit Colorado law equally well. Do women really want a maternal Big Sister making critical life choices for them and not giving them any voice in the matter?

Satel also quotes a prosecutor:

"...from Southern California, who preferred not to be identified, told me that many of the women he refers to treatment reject his advice. 'They're influenced by the prevailing view in the advocate community that tells them they don't need help. Meanwhile, I'm accused of blaming the victim,' the prosecutor says. Some of these women return to husbands who injure or even kill them, when a therapist might have helped them find the strength to stay away. Others end up doing the killing themselves, a tragedy that has happened 'more than once on my watch,' the prosecutor said. The defense attorneys then claim that the wife is 'a victim of battered woman syndrome. They'll say the system failed her because she was never referred for professional help.' "

We do not presently know of any direct testimony on the issue of domestic abuse and violence laws by Colorado courts or police.

In the meantime, we find increasing evidence of widespread and unchecked police corruption. In Denver, an officer is indicted for felony perjury after obtaining a no-knock search warrant that leads to the death of an innocent man. Special Weapons Assault Teams (SWAT) are deemed a necessity by every police force, and pictures abound of such teams performing military-style assaults. Yet when called upon to deliver, as at Columbine High School, their performance is ludicrous. Other men are shot multiple times with little justification, evidence appears to be fabricated or disappears, and officers lie seemingly routinely.

At the time of the O. J. Simpson trial, which began the current witch hunt against domestic violence, it seemed bizarre that a jury could conclude that officers of the law had conspired to frame an innocent man. To the informed citizen today, and virtually every member of a minority group, the idea of an "honest cop" is an oxymoron.

Compounding the problems are courts that are barricaded from citizens. Armed guards search all citizens, often multiple times, with the temerity to approach the court. Citizen's property deemed dangerous is seized, and the judges obey no law but their own.

The preceding article by Eric Pettersen of Colorado Springs gives an excellent picture of what is happening to the police and the public's reaction. His article is based on the war on drugs but is equally applicable to domestic violence, false allegations of child abuse, rape, and a host of other ways radical feminists have corrupted the laws for their ideological goals.

Though usually not stated publicly, according to the August 28, 2000, issue of the Denver Post (p. B1) the sheriff of San Miguel County, Bill Masters, has stated that "...the war on drugs is ludicrous, the criminal justice system is a farce and the law-making arm of government has run amok."

Sheriff Masters is now on his fifth term in office and was re-elected in 1998 with 80% of the vote. Crime in his county is also far below the national average. That is attributed by the sheriff to the fact that his deputies "...didn't have to spend half their time chasing after drug dealers." Nor does he "...allow them to spend time on 'touchy-feely' extra programs such as drug education in schools." Pitkin County Sheriff Bob Braudis also publicly shares the views of Sheriff Masters, stating that "...If you have a drug problem you should go to the doctor, not to jail."

As well the war on domestic violence is ludicrous. Lets fix the problem, not the blame.


 

Canadian study of RCMP attitudes

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The most extensive study of the reaction of police to current domestic violence laws that we are aware of is a Canadian study by Theresa Petkau. During 1995-96, she made a qualitative evaluation of in-service wife assault sensitivity training provided to front-line police officers. The stakeholder perspective sought was that of patrol constables. In summary she found that:

"For the most part, [Canadian] constables uniformly regarded rigid black-and-white policies dictating mandatory charge and arrest as an ineffective response to wife assault insofar as the policies purportedly thwarted a sensitive response to wife assault calls, first, by overlooking individual dynamics within each family, second. by ignoring wishes of the parties involved, and, third, by disallowing possibly more effective approaches. As well, officers criticized these policies on the basis that they (1) deterred women non-supportive of charges from seeking help. (2) in some cases, negatively impacted upon the family unit as well as the accused by burdening already stressed families and leading, in many cases to their breakdown, (3) acted as a powerful tool in the hands of vindictive women, (4) gave rise to charges which officers considered unwarranted, and (5) resulted in unnecessary substantial costs to the criminal justice system in general and the police in particular. Officers also directed criticisms at the wife assault charge and arrest policies for negating their helping role, hindering their investigative role, violating their keen sense of justice, forcing a compromise of their sense of ethics and fairness, thwarting professional development of intuitiveness, contributing to the move towards rote policing, and serving as yet another example of administration's tacit sanctioning of policy violations (by virtue of staffing levels supposedly insufficient to allow for unabridged adherence to policies).

At a workshop on family conflict in Calgary on September 27, 1998, Ms. Petkau elaborated further on her findings. During the study she was allowed to ride with patrol constables to respond to family violence calls.

Almost without exception, she found calls for assistance in family violence involve nothing more than to cater to participants in mutually-destructive combat in which the parties are virtually always equally at fault.

She asked one of the 43 patrol officers whom she interviewed during that time whether he had ever encountered any truly battered women. Surely there had to have been some that he had seen over the many years he had been involved in that type of work. He responded by starting to count on his fingers and then said: "Yes, there were two."

In short, her summary of the police constables reactions supports every allegation of abuse of the Colorado domestic violence laws that we have encountered.


 

Retiring Massachusetts judge reveals that restraining orders are huge problem

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April 2, 2001

© 2001 The Massachusetts News

One-third of all restraining orders are used merely for leverage in divorce cases, a retiring judge in Bristol County Probate Court, Malcolm Jones, revealed last year.

There's a real need for a law against this misuse of the court system, Judge Jones told the New Bedford Standard Times.

The newspaper wrote, "If there is one area of the entire process he openly questions, it is the matter of 209As – restraining orders." It quoted him as saying,

"It's a necessary law, but it's an abused one. I've seen it used too many times as leverage in divorce cases, not for women in imminent fear of physical danger. One third of them are not legitimate, merely used as an 'I'll fix you.' Don't forget, once a 209A order is in place, if a defendant violates it, he's now got a criminal case he's looking at."

Judges are afraid to release fathers

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The judges of Massachusetts are afraid to release a man if he has been charged with domestic violence. They know that the Boston Globe will excoriate any judge if a woman is later injured or murdered.

One judge, Bonnie H. MacLeod, says she heard a judge say at a conference, "When in doubt, throw him out."

She told Massachusetts Lawyers Weekly in 1997 that while not all judges adhere to the same line of thinking, some trial court judges do feel that if they are going to make an error, it is better to err on the side of issuing the order.

Walpole family lawyer Marilynne R. Bryant told the paper that restraining orders are "issued liberally and are easy to get."

Attorney Paul W. Patten of Fall River said they are "issued like candy." He continued:

"It's a rare case that they won't be issued as long as somebody says the magic word, 'I've been hit' or 'I've been threatened.' Unless that person has three heads or something really incredible like that, a District Court judge is going to issue them."

Massachusetts Supreme Judicial Court gave a glimmer of hope

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The Lawyers Weekly story was written because of two new cases where the [Massachusetts] Supreme Judicial Court had reversed the lower courts. The paper said: "District Court and Probate Court judges have long been accused of 'rubber stamping' 209A requests, which, once issued, are entered into a registry at the Department of Probation and are very difficult to have expunged."

But the paper said that while the SJC opinion was "encouraging" to defense attorneys, they believed it would "not necessarily result in trial judges being more reluctant" to issue restraining orders.

Taunton attorney James H. Fagan, who is also a state Representative, said:

"While it's a positive sign that the court has acknowledged a problem, to suggest that these two cases would [cause] the pendulum to swing back to a fairer or more neutral position would be overly optimistic. ... I had a judge once say, 'Who cares if she lied on the affidavit? If she comes in and says she's frightened today, that's all I have to hear."

Fagan added that even though the [Massachusetts] Supreme Judicial Court opinion was welcome, the average person would not be able to afford to appeal a decision. In addition to that, it would probably be over a year before an appeal would be heard.

He also put some reality into the discussion by noting that the courts are greatly overloaded.

"All too often, given the busy and crowded docket the District Court judges face, a 209A request is a collateral emergency shoved on them in an already very busy, full day. As judges watch someone like me representing someone with four witnesses to controvert what was said in an affidavit, the judge looks at that and cannot help but think how much time this will take when he has a courtroom of people with criminal problems already scheduled for trial."

But the Newell case did not represent a busy judge in a hurry. It represented a conscious decision after many days of testimony. It also took the judge over six weeks to make his decision and to complete a few blanks on a court form.


 

Summary of police and court attitudes

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The feminist ideology is no more effective in lowering domestic violence or abuse in other countries than it is in the United States. But the evidence that families are destroyed by such laws is pervasive wherever they have been enacted.

Sally Satel points out that "...the implicit goal of feminist treatment and legal response is to separate women from their abusive partners [always the male in feminist eyes] — no matter what the circumstances, and no matter how fervently the women wish otherwise." Erin Pizzey, who pioneered shelters for battered women, describes this as the planned destruction of the family.

Can families, or civilization, survive if feminists achieve their goals? We think not!

Dramatic evidence for the failure of the current laws in Colorado is in a front-page story in the October 24, 1999, Denver Post on repeat abusers. After more than a decade of ever-harsher laws that have failed to solve, or even define the problem, the only response seems to be to call for even more draconian laws. And the Colorado legislature seems happy to oblige.

As the above review shows, police, prosecutors, and judges who have looked at the problem of domestic violence do not feel the current laws or therapy can be made to work. Harsher laws would only compound the problems. Such views start with the Chief Justice of the United States Supreme Court, a panel chaired by former Attorney General Edwin Meese III, and continue down through all levels of the legal system.


 
The feminist approach of blaming men and the patriarchy has been tried and has failed.
Now we need to fix the problem, not the blame.

 

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Last modified 10/7/16