California: Domestic Violence Intervention Accountability
Part V: Law Enforcement’s Response To Health Practitioner
Reports of Domestic Violence

August 23, 2005

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.”

The task force report presents four recommendations to the California Attorney General. 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. This paper addresses the task force reports’ recommendation about law enforcement’s response to health practitioner reports of domestic violence.

As noted in Part I, 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 some “battering” behavior and they can be negative and counter productive concerning “family conflict.”

Empirical Data Not Hunches and Hopes

A 1998 National Research Council study funded by the Carnegie Corporation, the U.S. Department of Health and Human Services, and U.S. Department of Justice clearly documents that to avoid unintended negative consequences scientific research must precede intervention programs concerning mandatory health practitioner intervention and domestic violence. The California assembly has done just the opposite and worse still, this task force and the assembly seems intent on ignoring the negative consequences of that legislation.

The studies report, Violence in Families provides a clear warning to states about the implementation of mandatory reporting laws:

The committee recommends that states initiate evaluations of their current reporting laws addressing family violence to examine whether and how early case detection leads to improved outcomes for the victims or families and promote changes based on sound research. In particular, the committee recommends that states refrain from enacting mandatory reporting laws [emphasis added] for domestic violence until such systems have been tested and evaluated by research.

In dealing with family violence that involves adults, federal and state government agencies should reconsider the nature and role of compulsory reporting policies [emphasis added}.

For reasons not articulated in “Keeping the Promise” the task force seems to have concluded that California legislators apparently know what is best for health care practitioners, law enforcement officials, and the victims of domestic violence.

Look Before You Leap

One of the most widely read college texts concerning domestic violence is, Family Violence: Legal, Medical, and Social Perspectives by Harvey Wallace. One of the reasons it is so popular with colleges is that it recognizes something that the advocates in California, perhaps because of their ideological philosophy ignore. The issue actually is “family violence” and not primarily “violence against women.” In the first paragraph of the preface Wallace warns:

The study of family violence is a complex, multifaceted experience. By its very nature, family violence involves physicians, nurses, psychiatrists, psychologists, family counselors, educators, social workers, attorneys, judges, and law enforcement officials. All professionals have expertise in their own area of specialization. However, they may not understand or appreciate the difficulties experienced by others in their area of interest [emphasis added]. For example, a member of the medical profession may be able to diagnose physical injuries but not understand the complexities of the courtroom.

As the task force notes this section is the most controversial. Perhaps it is the most controversial because it is not a good idea and the recommendations of health care practitioners are ignored. The California assembly seems not to appreciate the difficulties faced by many of the health care practitioners and more importantly their patients.

Leaping Without Looking

Concerning law enforcement’s response to health practitioner reports of domestic violence, Gwinn writes on page 7, of the executive summary:

California’s domestic violence reporting requirement for health practitioners has proven controversial. We did not attempt, however, to decide whether the requirement is a good one [emphasis added].Our focus, instead, was to find out how health practitioners are complying with their reporting obligations, and how law enforcement responds to these reports.

Not exploring that the problem might be with the law and not the professionals attempting to implement the law is the real problem with this task force and California criminal justice system domestic violence intervention. No one knows if the law is good or not and apparently no one is going to take the time and effort to document it efficacy. The first and foremost mission of the task force seems to be, “damn the torpedoes, full speed ahead!”

The fact that Gwinn and the task force members do not understand nor appreciate the difficulties faced by others could not be expressed any more clearly than above. One would expect that the California assembly member who wrote this law would understand, more clearly than others, the dangers involved in leaping before looking.

The authors of this paper do not question that most people involved with California’s domestic violence intervention are well intended. However, good intentions do not always produce good results. Wallace helps us understand why there is so much confusion on page 3:

How does one accurately study or research a phenomenon if a definition cannot be agreed on because the definition of any act both sets limits and focuses research within certain boundaries? The lack of agreement in defining family violence has led to confusion and disarray in attempts to determine factors that cause or contribute to family violence.

Family violence morphed into domestic violence and then into “battering.” Any member of any family, including the majority of the California assembly, should acknowledge that there is a distinct difference between “family violence” and “battering.” The problem is that ideology causes too many people to ignore that reality.

Further, this legislation mandates that the health care practitioners must ignore their medical and ethical obligations of meeting the desires, needs and confidentiality of their patients at the expense of conforming to “the law.”

Autonomy and Confidentiality

In a bit of Orwellian logic and a lack of morality it is suggested that health care practitioners inform the “battered patient” that this report is to be kept confidential by the clinic and cannot be accessed by friends, family, or other third parties without the patient’s consent.

First, while it is technically true that the specific “report” may be kept confidential, the patient is not informed that confidentiality and their autonomy will be ignored by everyone else. The truth is that patient confidentially and personal autonomy will become subservient to “the system.”

Second, while the patient may very well have been injured in an altercation with another family member, that fact standing by itself, does not automatically and absolutely cause that specific family member to be a “battered patient.”

California Mandatory Reporting Law: A Summary

Health care practitioners are “mandated” to report to law enforcement any patient who is “suffering from any wound or other physical injury inflicted upon the person where the injury is the result of assaultive or abusive conduct.”

A fact that seems lost on the assembly members is that most families, do at times push, shove, slap or hit one another. This behavior, while not acceptable, is not considered “battering” anywhere except under mandatory legislation that wittingly or unwittingly, transforms all acts of “family conflict to “battering.”

If a wife slaps a husband, the husband losing his balance, falls and injuries himself, he is now, under California law, a “battered” patient and his wife a “batterer.” To deny that some men and women do hit each other out of jealously, anger or rage is to deny reality and reams of empirical evidence to the contrary.

And Confusion Reigns

Esta Soler is the founder and president of the California non-profit Family Violence Prevention Fund (FVPF). A visit to the FVPF website documents that the FVPF is not really concerned with “family violence” it is concerned with “violence against women.”

One example, of many, is that the FVPF presents advice on how we should respect women and girls. FVPF consistently presents men and boys as the abusers and women and girls only as their victims.

It seems to the authors of this paper that figuratively throwing our sons under the bus to protect our daughters is a rather radical ideological position to present. Oddly, few people in the media question the ideological philosophy of the FVPF.

It is the FVPF website above that links the reader to a summary of this section California law. Soler has claimed, more than once, that while all violence is wrong regardless of who is the perpetrator, all physically assaultive acts are not acts of domestic violence.

Soler contends, domestic violence is not one person pushing another person one time because of jealously or anger. Soler believes that domestic violence occurs when there is an ongoing pattern of fear, intimidation and violent assault.” The authors of this paper agree with Soler, however, California law ignores all three of us.

The difference between the authors of this paper and Soler is that when it comes to implementing legislation Soler’s ideology causes her to ignore what she knows to be wrong. Apparently, ideology triumphs over logic and common sense.

Soler also seems oblivious to the fact that “laws” define domestic violence for the criminal justice system. In the world of the California criminal justice system, domestic violence does not require an ongoing pattern of fear, intimidation and violent assault. Any and all physical assaults regardless of the context of the act must be reported by practitioners.

In fact there is not a single domestic violence law in this nation that matches Soler’s definition of domestic violence. Not a single state has a law that requires an ongoing pattern of fear, intimidation and violent assault. Hence, the confusion and disarray in California and elsewhere in this nation continues.

The Letter of the Law

In the executive summary of the task force report is a letter to the California attorney general that seems to enforce the belief that the law is more important than research, logic or common sense.

Our report includes disturbing examples of agencies that have failed: to respond to domestic violence victims, to enforce the law, to comply with the law, and to work in necessary collaboration.

Perhaps what is most disturbing is the fact that this task force seems to have little to no interest in understanding any of the reason “why” some people are not complying. Perhaps the controversy among so many health care practitioners is that they understand it is a “bad law.” The task for seem unable or unwilling to accept the fact that the reason there may be so much non-compliance is that often the law defies logic and common sense.

Perhaps many medical field practitioners, as do many other scholars and researchers, understand that attempting to “arrest” their way out of the problem is not going to work in California or elsewhere.

Rather than simply strengthening and enforcing the law on the books, perhaps someone, apparently not many members of this task force, need to question what sections of the law seem to be working well, what sections of the law seem not to be working as well, and discover the “whys” concerning those differences.

The definition of insanity is doing the same thing over and over again and expecting different results. Why do the members of the task force avoid recognizing that doing the wrong thing over and over again is not going to make it right.

In their infinite wisdom the California assembly has made it a crime for practitioners not to comply with this law. Lost on these Assembly members is the fact that they are using force and power to control the behavior of a group of people who disagree with them rather than persuasion, reason and common sense. Many domestic violence advocates recognize that style of behavior.

One crystal clear example of the California Assembly members not understanding they have passed a fundamentally flawed law is the fact that it appears that no one in the criminal justice system has yet to arrest a medical practitioner for noncompliance. Perhaps that is a message to the Assembly members that the law is not a good one?

And, thankfully in California many health care practitioners continue to understand the importance of placing patient autonomy and confidentiality before their blind compliance with the letter of this very flawed law.

This particular section of mandated domestic violence intervention, more clearly than the others, documents how the law places itself above reason. In California the law has become triumphant in creating confusion and disarray involving both the victims it intends to serve as well as those who truly want to help victims regardless of age, gender or sexual orientation.

A conclusion that seems to have escaped many members of this task force is that many health care practitioners have failed to enforce or comply with the law because they can clearly recognize that this law can harm some of those it intends to help.

Again, it is a fundamental educational concept to recognize that the only dumb question is the question not asked. The fact that this task force did not think it was necessary to ask the health care practitioners why they were not complying documents that patient consent, confidentiality or autonomy are not a part of the task force agenda.

The next article will be the complete paper including recommendations for change from the authors.

Richard L. Davis & Jan E. Brown

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