August 5, 2005

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by Richard L. Davis & Jan E. Brown

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We must always tell what we see. Above all, and this is more difficult, we must always see what we see. -Charles Peguy

The purpose of the National Research Council (NRC) is to advise the federal government concerning science and technology with the purpose that their policy related research will help the federal government in developing legislation.

The NRC report Advancing the Federal Research Agenda on Violence Against Women http://books.nap.edu/catalog/10849.htm notes on page 6:

As a previous National Research Council committee found, the design of prevention and control strategies – programs and services available to victims and offenders that aim to decrease the number of new cases of assault or abusive behavior, reduce the risk of death or disability from violence, and extend life after a violent event – frequently is driven by ideology and stakeholders interests rather than by plausible theories and scientific evidence of causes.

Keeping the Promise

Casey Gwinn, is the chair of the California Attorney General Task Force on Local Criminal Justice Response to Domestic Violence. The task force report is “Keeping the Promise” Victim Safety and Batterer Accountability,” http://www.safestate.org/index.cfm?navID=9 .

The author’s appear to be a well meaning and professional group of people. However, it appears that most have not read the latest NRC report and have decided to ignore or are unaware of the findings in many recent U.S. Department of Justice sponsored studies. In fact it appears the report often ignores the advice of the majority of scholars and researchers, both public and private, concerning contemporary domestic violence intervention.

Many sociologists and criminologists believe that the reason for the differences between policy relevant research findings and policies in place is that often the policy related research is ignored because it disputes the ideological beliefs of so many domestic violence advocates and the “one-size-fits-all” political ideology of so many public policy makers.

The “Keeping the Promise” is a classic example of “one-size-fits-all” ideology trumping research. Although there are a great many people involved in this report, only for matters of simplicity, Gwinn as the chair of the task force should be held accountable for the reports failings.

A letter to the Attorney General for the State of California that is at the front of “Keeping the Promise” claims in part that, “This report should be read as a road map for addressing profound problems in the handling of domestic violence incidents in California.” In reality this report appears to be a roadmap back to many of the failed polices of the 20 th century.

The road map for this report is based on criminalizing all acts of “family conflict” and is predicated on a “one-size-fits-all” ideological paradigm that lacks empirical evidence and is profoundly out of date.

One-Size-Fits-All

A decade ago we were warned in the U.S. Department of Justice (DOJ) sponsored report by Jeffery Fagan, The Criminalization of Domestic Violence: Promises and Limitshttp://www.ncjrs.org/pdffiles/crimdom.pdf, “Assuming that the patriarchy and power relations alone or primary cause of domestic violence leads us toward conclusion that do not consider a full array of explanatory variables from other disciplines.”

Accepting the patriarchy theory as the single or primary reason for domestic violence has caused people to conclude that domestic violence is “violence against women” and that the problem is primarily “men abusing women.” This ideological concept clouds the ability of interveners to understand the complex and multifaceted issue that domestic violence is.

And the “one-size-fits-all” criminal justice approach creates the inability or unwillingness of the majority of domestic violence advocates and public policy makers to understand and distinguish between “battering” and “family conflict.”

The 20 th century “one-size-fits-all” ideological paradigm is the belief that every act of “family conflict” must be criminalized and that all “family conflict” offenders must be treated as “batterers.”

Further, viewing domestic violence only or primarily through the lens of the “patriarchy” causes one to believe that men must be the abusers and women their victims. Ideology has caused the Gwinn report to view the issue of domestic violence myopically rather than holistically.

The author’s of this paper, one a retired law enforcement officer, researcher, author and the Vice President of www.Familynonviolence.org. The other is the founder and executive director of a domestic violence helpline http://www.noexcuse4abuse.org/ agree that helping “battered victims” is an important and laudable goal.

Domestic Violence Is Not Treated The Same As Other Crimes

However, California, similar to all the others states, did not pass a “battering” law. What California and all the other states have done is to criminalize almost all acts of “family conflict” regardless of how minor or serious that conflict is.

In some states only the “fear” that a physical conflict might occur is enough to issue a restraining order. When there is any violation, regardless of context or circumstances, of that restraining order those actions are considered “criminal acts.”

The “any act of family conflict is equal to battering” is the single most important reason for the dramatic leap in the number of females being arrested. If the “Keeping the Promise” report were only relevant to “batterers” it may have been a very good report.

Domestic violence advocates claim, on one hand, that all they want is for the criminal justice system to treat domestic violence the same as all other crimes. On the other hand, what their “one-size-fits-all” intervention has created is a complex and multifaceted intervention process that mixes civil procedures with criminal.

There are now domestic violence policies and procedures that make demands of the criminal justice system that are dramatically different and at times radically at odds with all other criminal justice intervention.

What sets the American criminal justice system apart from many other nations is the historic and time honored belief that everyone must be assumed to be innocent until the facts and evidence in the case will produce a verdict of guilt or innocence. Anyone involved in the criminal justice system understands that majority of contemporary domestic violence training is predicated on the belief that women are the victims and men their abusers.

It is a fact that the vast majority of contemporary domestic violence training teaches criminal justice interveners that the “he” the vast majority of the time will be the primary or dominant aggressor and that the “she” the vast majority of the time will be the victim.

In case there is any confusing about the “he” and “she,” the training in part, wants interveners to understand that the person who is bigger and stronger is most often the offender and that it does not matter who assaulted who first. This ideological and prejudicial training creates a biased implicit association between guilt [men] and innocence [women] http://www.caadv.org/materials.html#beyond.

Battering Behavior

Most researchers agree that a “batterer” is a family member or intimate partner who withpremeditation and malice aforethoughtrepeatedly uses coercion, force or violent physical assaults to manipulate and control the behavior of another family member or intimate partner. Research documents that most “batterers” are dangerous and violent people. Many suffer from anti-personality disorders and “batterers” deserve to be arrested.

Family Conflict

Family conflict most often occurs withoutpremeditation or malice aforethought and involves the use of threats and/or minor physical assault in a specific or isolated disagreement. This behavior is often the result of perceived misbehavior, financial matters, jealously, and animated and vocal disagreements.

What “Keeping the Promise” and California law ignores is that the issuance of restraining orders, mandatory arrest and no-drop-prosecutions, batterer intervention programs, and mandatory health practitioner reports can be positive and productive concerning “battering” behavior and they cam be negative and counter productive concerning “family conflict.”

The Real Domestic Violence Problem

In chapter 1, on page 11, of the introduction under the heading “The Domestic Violence Problem” Gwinn informs the Attorney General that, “National studies show that 85 percent of reported cases of victimization by intimate partners were against women.” The citation that Gwinn provides is DOJ sponsored study, “Extent, Nature, and Consequences of Intimate Partner Violence.” Gwinn certainly should be aware that his claim is false.

If you are reading the internet version of this paper all you have to do is click on this URL

www.ncjrs.org/pdffiles1/nij/181867.pdf and then read pages 13 and 14 to find what the national studies Gwinn cited actually document. The problem appears to be that Gwinn’s “one-size-fits-all” ideology causes him to hide the truth.

Why does Gwinn ignore the fact that the very same report he cites, refutes, not supports, his 85% claim. The real problem may be that Gwinn, similar to many other “one-size-fits-all” ideologists, simply can not or choose not to see whatever data they do not agree with.

In fact what Gwinn’s cited reference of “national studies” actually document is that physical assaults victimization of intimates range from 9 to 30 percent for women and from 13 to 16 percent for men. This not the 85% to 15% differential Gwinn claims they document.

After a token mention that men are at risk for all types of violent victimization, Gwinn does not simply minimize or marginalize male victimization in the rest of the report, Gwinn similar to most “one-size-fits-all” ideologists, simply ignores male victimization as if it is too rare to matter.

These ideologists universally ignore data from the Youth Risk Behavior Surveillance on page 30, that documents 8.8% of girls and 8.9% of boys report that they were hit, slapped or physically hurt on purpose by a boyfriend or girlfriend. The same page also documents that 11.9% of girls and 6.1% of boys were physically forced to have sexual intercourse www.cdc.gov/mmwr/PDF/SS/SS5302.pdf.

Do these ideologists actually believe it is really possible that when boys and girls, at some magical age that determines adulthood, become men and women and then men become the abusers and women their victims?

The Gender Differential

Gwinn ignores the fact that studies, including the National Violence Against Women survey (NVAWS), document that women are significantly more likely than men to report being victimized. Gwinn also ignores that the NVAWS documents that the police are significantly more likely to take a report and to arrest or detain an intimate partner perpetrator when the victim is female.

The gender differential of higher reporting for females holds true for same sex victimization. Between 1993 and 1999 13,740 men reported being victimized by their male intimate partner as compared to 16,900 women who were victimized by their female intimate partner

www.ojp.usdoj.gov/bjs/pub/pdf/ipva99.pdf.

Family violence studies document that women are significantly more likely than men to call the police in response to a partner assault. The General Social Survey (GSS) of Canada documents that women are twice as likely as men to report their victimization to the police

http://www.statcan.ca/english/freepub/85-224-XIE/free.htm.

The NVAWS http://www.ncjrs.org/pdffiles1/nij/183781.pdf document that more than half of all physical assaults by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping and hitting and that 1.3% of women and 0.9% of men are physically assaulted by an intimate partner annually.

The NVAWS documents that 39.0% of women and 24.8% of men report being injured during their most recent physical assault. This survey includes both violent and minor intimate partner assaults.

The GSS statistics document that an estimated 7% of women and 6% of men in current or previous spousal relationship have been victimized. While the Canadian data does document women are victimized more than men it also documents that domestic violence against men occurs at rates similar to most national Family Violence surveys and studies.

Approximately 23% of women and 15% of men claim they were beaten, choked, or threatened by having a gun or knife used against them. Women are more than twice as likely to be injured, three times more likely to fear for their life and more than 6 times more likely to seek medical attention http://www.statcan.ca/english/freepub/85-224-XIE/free.htm.

The NVAWS data indicates that if men and women did report their physical assaults at the same rate for crime surveys similar to the National Crime Victimization Survey (NCVS) more than one of every three intimate partner victims would be a man. The gender differential in these two surveys clearly documents that men are far more reluctant to view and report their victimization as a crime than are women.

A June 2005 Department of Justice (DOJ) report, Family Violence Statistics, documents that family violence accounts for only 11% of all reported and unreported violence and the majority of family violence is simple assault http://www.ojp.usdoj.gov/bjs/abstract/fvs.htm.

The National Crime Victimization Survey http://www.ojp.usdoj.gov/bjs/cvict.htm documents that approximately ½ of 1% of people, both men and women, who answered the survey report that they have been a victim of domestic violence.

The NCVS numbers do not represent that domestic violence is a crime of “epidemic proportions” and hence that data is always ignored by the very same domestic violence advocates who then claim that the 85% figure in the very same survey is absolutely true. Why do domestic violence advocates accept the 85% female victimization NCVS data as fact and then claim the ½ of 1% NCVS data is fiction?

Dating Relationships

Dating relationships are covered by California domestic violence laws. The Youth Risk Behavior Surveillance System (YRBSS) monitors health-risk behaviors among youth and young adults.

In San Diego, in 2003, 9.9% of girls and 12.0% of boys reported that during dating relationships they were hit, slapped or physically hurt on purpose by a boyfriend or girlfriend in the past 12 months.

Also, 10.8% of the girls and 5.9% of the boys in San Diego report there were physically forced to have sexual intercourse. Under California law all those hits, slaps, and sex are all acts of domestic violence.

These California teenagers are not that far removed from the lessons they learn from their parents, regardless of gender. And that lesson is that physical force and economic coercion often works to control the behavior of others. This is not a lesson taught from the outside by the patriarchal hierarchy, it is a lesson taught from inside by the family hierarchy and taught by both parents regardless of gender.

One study documents that a majority of children use physical assaults and coercion to resolve conflicts among siblings. In fact a number of studies reveal that sibling violence is the most common form of family violence in the United States.

Domestic Violence Homicides

Gwinn notes that homicide is the most serious consequence of violence and he notes the number is unacceptably high for women. Again, it appears that it is ideologically incorrect for Gwinn to mention male intimate partner victimization.

The DOJ report Family Violence Statisticshttp://www.ojp.usdoj.gov/bjs/abstract/fvs.htmdocuments that females account for 58% of all family murder victims. Although male victims account for 42% of the deaths “Keeping thePromise” makes no mention of male victimization nor of the male domestic violence murder victims.

Another DOJ report, Violence by Intimateshttp://www.ojp.usdoj.gov/bjs/abstract/vi.htm documents that between 1976 and 1996 of the 20,311 men who were intimate partner murder victims -- 62% were killed by wives, 4% by ex-wives, and 34% by non-marital partners such as girlfriends.

Of the 31,260 women who were intimate partner murder victims – 64% were killed by husbands, 5% by ex-husbands, and 32% by non-marital partners such as boyfriends. Why does the Gwinn report ignore male victimization?

The Federal Bureau of Investigation Supplementary homicide report document that in California between 1990 and 2000 the number of acquaintance murders dropped by 53%, the number of stranger murders dropped by 48% and the number of family murders dropped by 28% http://ojjdp.ncjrs.org/ojstatbb/ezashr/asp/profile.asp.

Perhaps the task force should have explored if there were dramatic arrest and prosecution changes that the state of California made that caused the number of acquaintance and stranger murders to drop at rates far higher than family murders.

Limited Understanding and a Lack of Knowledge

The U.S. Department of Justice sponsored domestic violence studies, most of which are online at http://virlib.ncjrs.org/vict.asp?category=50&subcategory=105 should have been mandatory reading for the task force members before the task force produced a report of its own.

Most troubling of all is that the California Attorney General has two reports that are predominately displayed on his website http://www.safestate.org/index.cfm?navID=9. They are located just slightly down and to the right of the Gwinn report. One is the California Intimate Partner Homicide report. That report is based on the DOJ sponsored study, Analysis of Unexamined Issues in the Intimate Partner Homicide Declinewww.ncjrs.org/pdffiles1/nij/grants/196666.pdf.

The latter report on page 21 concludes:

Our findings imply that the net effect of arrests, convictions, and incarceration is not to reduce female victimization, but to ensnare more women in the criminal justice system net.

Again, if we begin with the premise that much of the intended policy and enhancement in criminal justice system response to domestic violence has been designed with the chief goal of protecting women, then a ‘system backlash’ effect may be taking place. Over the study period arrests for domestic violence of male suspects increased a total of 37% but females arrests increased 446%.

The Gwinn report seems unable or unwilling to connect the dots that clearly connect the dragnet of mandatory arrest and no-drop prosecution with these problems. California laws that demand officers can not or must not ignore the difference in the seriousness of the domestic violence incidents. Almost all acts of “family conflict” are defined by legislative laws as “domestic violence.”

Gwinn, as his term as the City Attorney of the City of San Diego, documents that he believes that the criminal justice system should ignore the dramatic and diverse needs and wants of domestic violence victims and there should prosecute all cases regardless of the circumstances. That is the classic “one-size-fits-all” 20 th century ideology.

The foremost problem with, “Keeping the Promise,” is that it wants to continue with the 20 th century ideological recommendations while ignoring the role of 21 st empirical based research findings in the formulation of criminal justice policy and procedure. And some of the data that warns of this approach is just inches away from the Gwinn report.

Over the next week or so we will address each of the four main sections of “Keeping the Promise” in a series of articles, one at a time, using 21 st century empirical research studies, the majority of which are sponsored by the U. S. Department of Justice.

Research Ignored

Over the last 30 years the criminal justice system has and should continue to play a role concerning criminal domestic violence intervention. There is little question that many lives have been saved and some families have been made safer because of the criminalization of domestic violence.

However, there are some obvious and painful problems with contemporary criminal justice intervention concerning domestic violence policies and practices that are not being addressed. Too often ideological domestic violence advocates and public policy makers ignore important empirically based, policy relevant findings from Department of Justice sponsored studies. And far too often domestic violence advocates and public policy makers do not know these studies exist.

Mandatory

The National Institute of Justice (NIJ) report, Controlling Violence Against Women: A Research Perspective on the 1994 VAWA’s Criminal Justice Impacts should be read by all domestic violence advocates and public policy makers. It can be found online at http://www.ncjrs.org/pdffiles1/nij/197137.pdf.

The above report concludes that: “Above all, they [public policy makers] need to know that their policies and practices will not endanger women [emphasis added]. Unfortunately, there are too few preventive impact evaluations of policies already in place and fewer still that approach methodological standards insuring sound data for shaping policy.”

Gwinn has chosen to ignore the fact that there are no evaluations in place, no methodological standards and no data that can demonstrate that the mandatory domestic violence policies and practices he recommends will not endanger some families. This criminalization of all acts of “family conflict” also ignores that many families seek solutions not sanctions.

Further the above report notes that, “We still have much to learn about differences in offenders and differences in populations of victims to justify advocating one policy over another without qualifications.” This prudent truth is ignored by Gwinn.

Without evaluations in place, lacking methodological standards and without data to document their effectiveness our public policy makers have ignored Department of Justice sponsored studies and have chosen to pass legislation that created, in many states, mandatory reporting procedures, mandatory arrest, and no drop prosecution policies.

Department of Justice sponsored studies document mandatory intervention policies and practices can produce negative effects for some families. Mandatory legal policies and practices have silenced many domestic violence victims and caused others to lose any and all control over their lives and the lives of their children. Perhaps, because so many members of this task force remain ideologically stuck in the 20 th century and not empirically based in the 21 st century research, they have either ignored or are not aware of the many DOJ studies.

Helpful For Some, Harmful For Others

Few people question the fact that the changes in criminal justice polices and practices can save some lives and can make some families safer. However, many recent DOJ studies document mandatory policies, practices and “one-size-fits-all” criminal justice intervention processes have produced some unintended negative consequences for many families.

The report Forgoing Criminal Justice Assistance: The Non-Reporting of New Incidents of Abuse in a Court Sample of Domestic Violence Victims http://www.ncjrs.org/pdffiles1/nij/grants/195667.pdf, documents that rigid mandatory interventions ignore the diversity of the family desires and lack varied programs suited for the diverse characteristics of multi-problem offenders and can cause many victims to ignore the system designed to assist them.

The report above also documents that some victims, after criminal justice intervention, will not report new victimizations because the system provides sanctions and services. This demonstrates that aggressive, one-solution-fits-all criminal justice policies are, in some incidences, not only ineffective, they can prove to be more harmful than helpful to some families.

One-Size-Does-Not-Fit-All

Many feminists and now some feminist organizations agree that “one-size-fits-all” intervention is a 20 th century concept that can harm many families. The Ms Foundation for Women (MsFW) has concluded in its report, Safety & Justice for All: Examining the Relationship between the Women’s Anti-Violence Movement and the Criminal Legal System, http://www.ms.foundation.org/user-assets/PDF/Program/safety_justice.pdf that contemporary public policy makers have in fact, put in place policies and practices that do endanger some victims.

The MsFW has concluded that those who are being endangered most by these policies and practices are the very same victims who need help the most. MsFW believes that our public policy makers should abandon the use of mandatory legal practices such as mandatory reporting, mandatory arrest, and no drop prosecution policies. MsFW also believes that these policies and practices have eroded the rights of many who have been arrested for minor violations and prosecuted against the wishes of the victim.

Ellen Pence, who pioneered the intervention process of arrest, prosecution and treatment, now believes that today’s one-size-fits-all VAWA funded programs are wrong and are not what she intended. Pence knows that those who commit minor acts of “family conflict” or one violent act are not “batterers” http://denver.rockymountainnews.com/news/justice/.

Esta Soler is the founder and president of the Family Violence Prevention Fund (FVPF). She asserts that certainly all violence is wrong regardless of who is the perpetrator. But, Soler claims domestic violence is not one person pushing another person one time because a couple has gotten into an argument. Soler believes that domestic violence occurs when there is an ongoingpattern of fear, intimidation and violent assault.” California law does not.

However, Soler, similar to Gwinn, seems unaware that California law ignores the difference between “battering behavior” and “family conflict.” Regardless of what Soler thinks in California one person pushing another is a domestic violence crime. A push is equal to a pummeling. The Gwinn recommendations also equate a push with a pummeling.

Restraining orders are issued, arrests made, people are prosecuted, people are placed in battering programs, and health practitioners are required by statute law to notify law enforcement without distinguishing the differences between serious and minor incidents because all acts of family conflict have been criminalized. All these interventions ignore the vast diversity of the needs and wishes of family members. The state has become all powerful and righteous.

Why Ignore These NIJ Sponsored Reports

According to the DOJ sponsored report, “Effects of No-Drop Prosecution of Domestic Violence Upon Conviction Rates” http://abstractsdb.ncjrs.org/content/AbstractsDB_Download.asp?page=1:

“Finally, we do not know whether no-drop increases victim safety or places the victims in greater jeopardy. . . Before no-drop is embraced as a desirable policy, we owe it to victims to find out whether they are well-served by taking away their right to decide the extent to which they want to pursue a criminal justice solution to their problem.”

Another DOJ sponsored report that is important concerning legislation and Gwinn ignores is The Exposure Reduction or Backlash? The Effects of Domestic Violence Resources on Intimate Partner Homicide. http://www.ncjrs.org/pdffiles1/nij/grants/186194.pdf.

This above report suggests that:

The results for prosecutor willingness suggest that simply being willing to prosecute cases of protection order violations may aggravate already tumultuous relationships. . . Increases in the willingness of prosecutors’ offices to take cases of protection order violation are associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females.”

Perhaps the above verifies why some victims are hostile to mandatory prosecution.

The National Research Council

At the heart and core of what is wrong with the Gwinn report is that it ignores the following:

The National Research Council (NRC) report notes on page 56 of Advancing the Federal Research Agenda on Violence Against Women http://books.nap.edu/catalog/10849.html notes that researchers and scholars who do not distinguish between violence, abuse, or battering may do more harm than good [emphasis added].

California criminal and civil laws, laws in the majority of the states and in fact federal laws and the entire criminal justice system, ignore these important distinctions.

Conclusion

The Ms. Foundation understands that some contemporary domestic violence policies and practices may have a disproportionate, negative impact on some families. The Ms Foundation for Women’s report suggests that many policies and practices put in place by our public policy makers ignore the fact that many families want, reclamation, rehabilitation, redemption, and restoration, rather than arrest and incarceration. Families want their voices heard not silenced. Families want their needs heeded, not ignored.

Mandatory arrest and no-drop prosecution ignores all of the above. Ironically, while some people proclaim these policies are bringing justice to domestic violence, these policies are stripping both the victims and offenders of the legal rights, that are the very foundation of our justice system, from them. Without a doubt mandatory arrest and no-drop prosecution and the “state knows best” policies have an Orwellian tone to them.

Many mandatory domestic violence policies and practices are eerily similar to mandatory drug policies and practices. In a mystifying and stunning reversal of logic many progressives and liberals who oppose mandatory drug arrests and mandatory sentencing policies and practices do not oppose mandatory domestic violence arrests, policies and practices. Perhaps only they know why.

There are many public policy makers and domestic violence advocates, similar to Gwinn, who are more than willing to take the credit for passing laws that make lives safer for some victims. However, are they willing to take the responsibility for passing legislation that removes due process from both offenders and victims, silences the voices of victims and may endanger the lives of family members? Approximately one in every four domestic violence murders are murder-suicides.

There are many who believe that mandatory domestic violence policies and practices are necessary, because if they save only one life their effort is worthwhile. What these very same people are unwilling or are unable to understand is that this philosophic belief demands that they must also acknowledge that if these same policies and practices take only one life, they may not worth the effort.

Are not the families who may be harmed by mandatory domestic violence policies and practices as worthy of the same compassion and sympathy as those who may be helped? Underserved victims should not have to account for half of the victims to deserve either compassion or services. Underserved victims, at the very least, deserve more than token acknowledgement. Have we decided to cut off the nose of some victims to save the face of the flawed and failing ideological “one-size-fits-all” criminal justice intervention?

Richard L. Davis & Jan E. Brown

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The next article will address the “Domestic Violence Restraining Orders” section of the task force report.

Richard L. Davis (Lt.ret) is the author of Domestic Violence: Fact and Fallacies, an adjunct instructor of criminal justice courses for Quincy College at Plymouth and the VP of www.Familynonviolence.org. He may be reached at rldavis@post.harvard.edu

Jan E. Brown is the Founder and Executive Director of the Domestic Abuse Helpline for Men and Women, a national crisis line that offers support and services to victims of domestic violence. www.noexcuse4abuse.org She may be reached at: help@noexcuse4abuse.org