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History of American social policy against domestic violence

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History of American social policy against domestic violence
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Le Baron, Corinne Marie
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75 leaves : ; 29 cm

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Family violence -- United States ( lcsh )
Women -- Social conditions -- United States ( lcsh )
Family violence -- Law and legislation -- United States ( lcsh )
Family violence ( fast )
Family violence -- Law and legislation ( fast )
Social policy ( fast )
Women -- Social conditions ( fast )
Social policy -- United States ( lcsh )
United States ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 73-75).
General Note:
Department of Humanities and Social Sciences
Statement of Responsibility:
by Corinne Marie Le Baron.

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|University of Colorado Denver
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ocm40274473
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LD1190.L65 1998m .L43 ( lcc )

Full Text
HISTORY OF AMERICAN SOCIAL POLIC,Y AGAINST DOMESTIC VIOLENCE
by
Corinne Marie Le Baron
B.A., Fordham University, 1991
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of requirements for the degree of
Master of Social Sciences
1998


This thesis for the Master of Social Science
degree by
Corinne Marie Le Baron
has been approved
by


Le Baron, Corinne Marie (MSS., Social Sciences)
History of American Social Policy Against Domestic Violence
Thesis directed by Professor Jana Everett
ABSTRACT
This thesis reviews the historical development of public policy against domestic
violence in America from colonial times to the 1990s. It examines which polices have been
successful and which have failed, as well as the social conditions that shaped specific
responses to domestic violence or the lack of responses.
Domestic violence has been around since before the founding of the United States,
but it did not truly begin to reach the forefront of public concern until the 1970s. This fact in
itself is significant. Different views taken towards domestic violence have affected the
forming of policy, including competing definitions of the problem and possible solutions.
Historically, social policy on domestic violence has been shaped by male
experiences, excluding the voices of those most victimized: women. Strong beliefs in the
traditional family and womens place within it, have worked to condone domestic violence.
Only pressure and hard work by women have brought domestic violence into the realm of
public discussion. Women, especially feminists and the battered womens movement, have
made great strides in creating.a new vision of the world where violence against women in the
home is not acceptable. This has resulted in a new look being taken at social policies and
new laws being enacted to protect victims of domestic violence.
Policies have broadened to include not just medical and legal aspects of domestic
violence but to more directly address the issue of the overall patriarchal society and womens
place within it. But even among women there continues to be differing opinions as to which
approaches are most helpful to victims. This paper will examine the different ways in which
this problem has been approached and what effects these approaches have had as well as
asking why it has taken so long for domestic violence to be taken seriously as a social
problem.
This abstract accurately represents the content of the candidates thesis. I recommend its
publication.
Signed


CONTENTS
CHAPTER
1. INTRODUCTION TO DOMESTIC VIOLENCE...............................1
Responses to Domestic Violence...............................2
Purpose of the Study.........................................3
Organization of the Thesis....a.............................4
2. PURITAN NEW ENGLAND (1630s-1680s).............................6
3. TEMPERANCE MOVEMENT (1830-1870)................................11
4. ANTI-CRUELTY SOCIETIES AND PROGRESSIVE REFORMS
1874-1930s)...................................................17
Societies for the Prevention of Cruelty to Children....... 17
Social Purity Movement......................................19
Womens Organizations.......................................20
Whipping Post Legislation...................................22
Progressive Reforms.........................................23
5. THE INFLUENCE OF PSYCHIATRY ON POLICY AND PRACTICES
(1940s-1950s)............................................... 26
Freuds Influence...........................................26
6. THE BATTERED WOMENS MOVEMENT (1960s-1970s)..................31
Shelters For Battered Women.................................32
Federal Hearings on Domestic Violence.......................34
Federal Legislation.........................................36
Lawsuits....................................................36
The Law Enforcement Assistance and Administration Initiatives.... 37
Criminal Justice Reform
39


7. LAW AND ORDER RESPONSE (1980s)................................41
The Criminal Justice System.................................42
Mandatory Arrest............................................43
Minneapolis Experiment..............................44
Thurman v. Torrington.............................. 46
Criticism of Mandatory Arrest...................... 47
U.S. Attorney Generals Task Force on Family Violence..... 49
Legislation.................................................49
8. FOCUS ON VICTIMS (1990's)......................................52
The Violence Against Women Act of 1994......................54
Provisions and Funding..............................55
Title II- Interstate Enforcement................... 58
Title III- Civil Rights for Women.................. 60
Criticisms........................................ 63
9. CONCLUSION.....................................................67
WORKS CITED
71


CHAPTER ONE
INTRODUCTION TO DOMESTIC VIOLENCE
Domestic violence has a long history in the United States. The first laws against
wife-beating date back to 1641 and the Puritans of Colonial Massachusetts. Although this
social problem has been dealt with in many ways over hundreds of years, it is still occurring
in epidemic proportions today.
Domestic violence refers to any act of vioFence/abuse or threatened act of violence-
physical, mental, emotional, and/or sexual against an intimate (someone with whom the
victim has been married, lived, or had an intimate relationship). These acts and threats of
violence are used as a method of coercion, control, intimidation or punishment. Although
both men and women can be abused by an intimate, in this paper victims will be referred to
as female and perpetrators as male, since this is true in the vast majority of cases. Data
published by the U.S. Department of Justice reveals that the rate of violence committed by
intimates was ten times greater for females than males with over two-thirds of violent
victimizations against women being committed by someone known to them (Bachman, 1994,
p.1). Research done by the National Coalition on Domestic Violence (NCDV) also supports
this stating that in the United States, a woman is more likely to be assaulted, injured, raped,
or killed by a male partner than any other assailant (Premo, 1994, p.25).
A report generated through a conference sponsored by the American Medical
Association (AMA), American Bar Association (ABA), and the U.S. Department of Justice
(1996, p.2) on family violence has found that, "acts of domestic violence which take place
within the confines of the family violate our cultural expectations that home is the one place
most persons in our society can be truly safe." Due to the very fact that domestic violence
takes place between intimate partners rather than strangers and that women are usually the
targets of the abuse makes domestic violence an incredibly unique and difficult crime to deal
with. As Linda Gordon writes, "The basis of wife-beating is male dominance- not superior
physical strength or violent temperament but social, economic, political, and psychological
power... wife beating is the chronic battering of a person who for that reason cannot
effectively resist" (Okin, 1989, p.152). The many power issues involved in domestic violence
crimes reveal why the problem has not ever been adequately addressed throughout the
years. But the following statistics demand that more serious, intense action be taken.
Domestic violence is believed to be the most common yet least reported crime in the
nation. According to the NCDV, nearly four million women are beaten annually by their
husband or boyfriend, causing 3,000 to 4,000 women to die each year due to the abuse
(Premo, 1994, p.25). The AMA, ABA, and Department of Justice (1996, p.2) report found
that in 1991 at least 21,000 domestic violence crimes against women were reported each
week. These domestic violence crimes are generally not a one time occurrence. The Urban
Institute (1993, p.12) has found that domestic abuse is usually repetitive and increases in
frequency and severity over time. This results in domestic violence being the largest single
cause of injury among women seen at hospital emergency rooms- more than auto accidents,
muggings, and rapes combined (Urban Institute, 1995-1996, p.1).
1


Children within the home are seriously affected by domestic abuse. The NCDV
states that in homes where domestic violence occurs, children are abused at a rate 1500
percent higher than the national average; and more than half of all homeless women and
their children are victims of domestic violence, forced to live on the streets in order to escape
the violence of their own homes (Premo, 1994, p.25). The AMA, ABA, Department of Justice
(1996, p:3) report concurs with these findings, adding that eighty-seven percent of children in
homes with domestic violence witness the abuse contributing to the fact that, "delinquency
and significant emotional disability are far more prevalent among children from violent homes
than among children from non-violent homes."
Leaving an abusive situation is often not an easy option for a battered woman. The
NCDV reports that women who leave an abusive partner and then return are at a seventy-
five percent greater risk of being killed by their batterer than a woman who never leaves
(Premo, 1994, p.25). Victims often have no support systems and are dependent on their
abuse for economic survival. Many lack the educational or work experience necessary for
them to adequately support themselves and their children.
The NCDV also reports that currently the space in shelters for battered women is so
limited that for every one woman accepted into a shelter, two women and their children are
turned away; the numbers often increase in urban areas with five to seven women being
turned away for every two women given shelter (Premo, 1994, p.25). If a battered woman
succeeds in getting into a shelter, she still has many issues to overcome in order to rebuild
her life. These include the basic, practical needs such as housing, food, clothing, medical
care, child care, etc. and the psychological scars induced through years of abuse.
The abuse often continues even after a victim has reached out for help. The AMA,
ABA, and Department of Justice (1996, p.4) report states that,
even as they try to seek help, many are physically and psycho-
logically assaulted by their abusers in their continuing effort to
maintain control; either through escalating- and potentially fatal-
physical violence meted out as punishment for challenging the
batterer's authority or by the use of emotional coercion or threats.
Domestic violence not only takes its personal toll on victims but it also has a strong
effect on the workplace. According to the Bureau of National Affairs, in 1990, violence
against women cost the U.S. economy three to five billion dollars in productivity with
additional costs incurred through emergency care (Premo, 1994, p.25).
Responses to Domestic Violence
Until recently domestic violence was not dealt with seriously in the U.S. It has
historically been considered a personal or private matter- not due the attention of outside
criminal intervention or policy makers. It has been able to flourish because of society's denial
or outright rejection of the existence and extent of the problem. Violence against women
within the family has been afforded special protection although the same crime committed on
the street by a stranger would lead to criminal prosecution.
2


A huge obstacle facing women dealing with domestic violence has been the lack of a
response from all parts of the criminal justice system. Women are often treated with ridicule,
disbelief, or even blamed for provoking the violence. Crimes against women are treated less
seriously than other crimes. Police, prosecutors, and judges have historically treated
domestic violence as a personal problem, with police officers even refusing to arrest a violent
male partner. Julie Goldscheid and Susan Kraham (1995, p.506) of The National
Organization for Women's Legal Defense and Education Fund (NOWLDEF) report that,
State criminal and civil statutes and gender-biased administration of
justice in some state courts often deny adequate remedies to victims
of gender-motivated violence. In states throughout the country police,
prosecutors, judges, and juries routinely subject female victims of rape,
assault and domestic violence to e wide range of unfair and degrading
treatment that contribute to the low rate of conviction that character-
izes these crimes.
State laws often reveal obvious gender bias. In some states a man who rapes his
wife is subject to lesser penalties than if he rapes a stranger, while in other states he may be
completely immune from prosecution (Goldscheid & Kraham, 1995, p.506). Several states
have statutes exempting co-habitants and dating companions from rape laws (Goldscheid &
Kraham, 1995, p.506).
Purpose of the Study
Although the first law against domestic violence was enacted in 1641, it took almost
three hundred years until 1994 for the first piece of federal legislation to address this
problem. A report by the Senate Judiciary Committee on Violence Against Women in 1994
found that,
Women in America suffer all of the crimes that plague the nation-
muggings, car thefts, and burglaries to name a few. But there are
also some crimes, including rape and family violence, that dispro-
portionately burden women. Violence against women reflects as
much a failure of our nation's collective willingness to confront the
problem as it does the failure of our nation's laws and regulations.
Both our resolve and our laws must change if women are to lead
free and equal lives (McCuen, 1994, p.68).
This thesis will focus on the historical evolution of social policy regarding domestic violence in
the United States from colonial times up to the 1994 Violence Against Women Act. Taking a
historical-comparative approach it will examine specific policies, or the lack of policies, the
social conditions that motivated these responses, and the success or failure of policies in
aiding victims of domestic violence in different time periods.
Domestic violence has been around since before the founding of the United States,
but it did not truly reach the forefront of public concern until the 1970's. This fact in itself is
significant. Different views taken towards domestic violence have affected the forming of
policy, including competing definitions of the problem and possible solutions. The timeliness
3


and urgency of this social problem is evident as the scope and prevalence of domestic
violence continue to emerge through such public events as the O.J. Simpson trial.
Historically social policy on domestic violence has been shaped by male
experiences, excluding the voice of those most victimized- women. Only pressure and hard
work by women has brought domestic violence into the realm of public discussion. Patricia
Gagne (1996, p.83) writes, "To bring about social change, a movement must create an
alternate vision of the world." Women, especially the feminist and battered women's
movement, have made great strides in creating a vision of the world where violence against
women in the home is not acceptable. This has resulted in a new look being taken at social
policies including new laws being enacted to protect victims of domestic violence.
Policies have broadened to include, not ju^t the practical medical and legal aspects
of domestic violence, but to more directly address the issue of the overall patriarchal society
and women's place within it. But even amongst women there continues to be differing
opinions as to which approaches are most helpful to victims. This paper will examine the
different ways in which this problem has been approached and what effects these
approaches have had as well as asking why it has taken so long for this problem to be
addressed seriously. Even though great advances have been made in social policy, the
reality of the application and continued support of current policies still poses many questions
and by no means has any total solution been reached.
Organization of the Thesis
This thesis will review the historical development of public policy against domestic
violence from colonial times to the 1990's. It will examine what has been successful, what
has failed and what needs to be done in the future.
Chapter Two will look at Puritan New England from approximately 1630-1680. The
Puritans of Colonial Massachusetts enacted the first laws anywhere in the world against wife-
beating and "unnatural severity" to children. The Puritans hoped to set an example of
religious devotion for the rest of the world and based their laws on their religious principle of
preserving the family. For almost two centuries after 1680, family violence was met with
indifference and tolerance. Chapter Three picks up with the1830's through 1870. The
Temperance Movement and Society's For the Prevention of Cruelty to Children brought the
issue of domestic violence back into the public realm. Women's right's issues also began to
emerge during this period.
Chapter Four examines the late 1800's through the early 1900's. Prohibition and the
Depression brought out Progressive reformers who blamed poverty for crimes and
advocated for domestic relations courts and rehabilitation for offenders. The beliefs and
writings of Freud greatly influenced the attitude toward domestic violence taken in the late
1930's through the 1950's. Chapter Five focuses on the psychiatric approach taken towards
domestic violence, which often viewed the woman as the cause of domestic violence rather
than its victim.
Chapter Six reveals the "rediscovery" of domestic violence in the 1960's and 1970's.
The rise of feminism and the women's movement brought real changes in attitudes as well
as policy to the issue of domestic violence. The conservative backlash of the Reagan/Bush
4


years attempted to undo a lot of the progress made during the activism of the preceding
decades. Chapter Seven will examine the backlash, as well as the strides that were made
such as mandatory arrest policies, the Minneapolis Experiment and theThurman v.
Torrington case.
Chapter Eight looks at the current situation regarding public policy and domestic
violence in the 1990's, including the first piece of federal legislation ever passed against
domestic violence, the Violence Against Women Act of 1994. This ground breaking piece of
legislation encompasses all types and aspects of violence against women, including rape,
stalking, and domestic violence. Its section concerning Civil Rights For Women- Title III has
been controversial with cases currently in the courts questioning its constitutionality.
In conclusion this paper will look at the similarities and differences of policies from
1640 up through the present. Questions such as "What factors shaped domestic policy?"
"What are the intention/ perspectives of advocates for domestic violence policy?" and "What
was the opposition to domestic violence policy?" will be applied to each historical period to
bring out underlying patterns in the enactment as well as the failure to enact social policies
against domestic violence.
5


CHAPTER TWO
PURITAN NEW ENGLAND (1630'S- 1680'S)
The Puritans of Colonial Massachusetts enacted the first laws anywhere in the
world against wife-beating and "unnatural severity" to children in 1641 (Pleck, 1987, p.6). The
Puritans began coming to America from England in 1630 to escape religious persecution and
find the freedom to worship as they wished. They were deeply religious and hoped to set an
example of religious devotion for the rest of the world. Their primary focus was the family,
which was where the young learned their values. Family violence threatened this sacred
institution which in turn threatened the social and political stability of the Puritan settlement.
Elizabeth Pleck (1987, p.17) writes, "An institution so necessary to the Puritan mission could
not become a sanctuary for cruelty and violence; family violence was 'wicked carriage'-
assaultive and sinful behavior- that threatened the individuals and the communities standing
before God."
Puritans believed that in order to receive God's protection they had to be avid
punishers of sin. Any disturbance within the family was considered a failure to achieve
domestic peace and thus an affront to God. This view of the family along with the Puritans
advanced humanitarian ideas on the rights of women and children brought with them from
England, led to the development of the concept of family violence as a public concern.
Cotton Maher, a Puritan religious leader said, "a man to beat his wife was as bad
as any Sacriledge. Any such a Rascal were better buried alive, than show his Head among
his Neighbors any more" (Pleck, 1987, p.18). Another Puritan minister declared that the
wife-beating man, "shames his profession of Christianity, he breaks the Divine law, he
dishonours God and himself too" (Pleck, 1987, p.18).
Puritans regulated family violence through the community, church, and state,
maintaining that neighbors and the church had a duty to control family life. They drafted a
criminal code that reflected their religious principles. Outside intervention was considered
disruptive, but invasive behavior could be justified if it was used to restore order to the family
unit. Neighbors, church courts, and civil and criminal courts were encouraged to get involved
with regulating and punishing sinners. Although the Puritans acted against family violence in
ways without parallel in Western history, they intervened only in the most severe cases of
abuse, choosing to preserve the male-dominated family over the rights of the individual.
Protecting the victim by removing her from an abusive situation was rare. As E. Wayne Carp
(1991, p.207) explains,
The family not the individual was in fact the fundamental unit of
society; moreover individualism whether in religious, social, or
economic matters was a punishable offense. In practice this
meant that, on the one hand, the state routinely intervened in
"private" family affairs such as spouse abuse and child neglect
and on the other, individual family members desires were sub-
ordinated to the greater good of the family.
6


The major protection offered to victims of domestic violence in Puritan times was
the pressure exerted by family members and neighbors. A turbulent family dishonored the
institution of the family and an abusive husband disgraced himself in the eyes of his
neighbors. Neighborly watching generated the threat of public shame and encouraged at
least the appearance of domestic tranquillity.
The small, dense villages of Puritan Massachusetts made it easy for neighbors
to keep aware of what was going on next door. Neighbors often quickly informed the local
minister of any abuse they heard or saw. The minister would then visit the family in question
and issue a warning. This along with pressure from the community, including visits from
praying neighbors, often prevented further episodes of violence. If another report was made
to the minister, the church court became involved. Church courts were limited to dealing only
with their own members. Accusations of family violence reaching church courts were rare,
averaging only about a few dozen per year (Pleck, 1987, p.20).
The purpose of the church court was to shame and disgrace the sinful abusive
party in front of the community. The church elders would investigate the complaint, looking
for two witnesses to testify before the entire congregation. The accused was allowed to
respond to any charges. The goal was not to determine innocence or guilt but to extract a
confession of sin from the accused in hope of securing the salvation of his wayward soul.
The church congregation decided whether or not to accept the confession. If a confession
was not accepted, the minister would decide on a punishment. The court session ended with
a sermon chastising the sinner.
The preservation of the family, not the actual punishment of the abuser, was the most
important outcome of church courts. The Puritan household consisted of a family hierarchy
with the husband/father as the generous leader and the wife and daughters accepting their
place as subordinate. Although the Puritans generally disapproved of men using violence
within the family, they were often suspicious of any woman who complained of abuse. Wives
were often at risk when they complained of abuse, or even when a neighbor reported it. The
threat of being found a witch was very real to women in Puritan times. In court husbands
would often blame bruises found on their wives on secret witchcraft practices (Pleck, 1987,
p.19). The fear of witchcraft, as well as a woman's subordinate position, were very strong
pressures for women to just accept the man's abusive behavior as part of family life. In the
case of accused wife-beater Lemuel Phelps, his wife was forced to confess that she had,
"transgressed the rules and duties of a wife towards her husband in some of my past conduct
in assuming too much authority over him and controlling him in civil and religious matters"
(Pleck, 1987, p.21).
The English stockholders in the investment company backing the Massachusetts
Colony demanded that the Puritans write a constitution including a criminal and civil code.
Originally the colony had to follow English law, but due to the English Civil War in 1640 the
colonies were virtually left alone. England had subscribed to the long time view that the
patriarch of a family had the right to use force against women and children. This was
justified by the Old Testament which explained and condoned such violence on the basis of
the woman being "the source of all evil" (Buzawa & Buzawa, 1990, p.23). The
Massachusetts Body of Liberties took advantage of this lack of English supervision to revise
these laws and draft a constitution reflecting their religious principles, including a provision
against wife-beating. It read, "Every married woeman shall be free from bodilie correction or
stripes by her husband, unlesse it be in his owne defence upon her assault" (Pleck, 1987,
7


p.21). This represented the first U.S. reform against family violence. A few years later
husband beating was also added. Most Puritan laws were based on biblical laws or English
custom but this is not true of their laws against wife-beating. The exact origin of these laws
is still unclear.
For most assaults between family members the most common sentence was a
fine, a whipping or both. The abusive spouse was quickly restored to the family afterwards.
The disgrace of punishment in front of family and neighbors was considered a serious
enough deterrent to prevent it from happening again. Repeat offenders had to post a bond
of surety or go to jail. If a bond was posted and violence continued in the household, the
bond was forfeited.
Although wife-beating was illegal, prosecution was rare as the Puritan courts still
placed family preservation ahead of the physical protection of victims. Eve S. and Carl G.
Buzawa (1990, p.24) write, "The effects of the laws were largely symbolic, defining
acceptable conduct, and not often enforced by the public flogging or the other more
draconian criminal justice punishments then in vogue." Marriage was not thought of as a
sacrament but as a civil contract between two parties, but courts were reluctant to separate
wives from husbands. Couples were urged to stay together and divorce was very infrequent.
Courts even sometimes forced runaway wives to return to their abusive husbands. Fewer
than forty full divorces were granted in Massachusetts Bay Colony from 1639 to 1692 (Pleck,
1987, p.23). In no instance was a divorce granted solely on account of cruelty- it had to be
combined with other grounds, such as adultery and neglect of family.
All divorce petitioners citing cruelty in 18th Century Massachusetts Bay Colony
were women. But the courts seemed to believe that nagging wives provoked their husbands
into beating them, so the petitioning wife had to prove that she had "acted dutifully" and had
not given her husband "provocation." The majority of women could not produce enough
evidence and were unsuccessful in their bid for a divorce. Twenty-three petitions for divorce
on grounds of cruelty were brought by women between 1692 and 1789; nine lead to a legal
separation with no right to remarry, three resulted in separation by mutual consent, six were
dismissed due to lack of evidence, and five were unresolved (Pleck, 1987, p.23).
Although the Puritans included Biblical and humanitarian beliefs in their legal
code, their reinforcement of hierarchical relationships in the family and society is obvious.
The courts occasionally allowed a husband to physically punish a wife at home, but the
reverse was never true for women. The husband was unquestionably the ranking figure in
the Puritan household. The Puritan laws against family violence reflected their belief that
outside intervention had a place in the family as long as it was not excessive and did not
disrupt the natural hierarchy. Although laws were enacted against family violence, it doesn't
seem that they were enforced. Between 1633-1802, only 23 cases of wife-husband beating,
assault between masters and servants or incest went through the Plymouth court; wife-
beating made up the majority of cases relating to family violence in the courts of Puritan
Plymouth, but there were still extremely few (Pleck, 1987, p.23).
Many factors lead to the seeming disappearance of domestic violence cases. In
the 1670's many domestic social changes were taking place in the Puritan Colonies. Non-
church going immigrants began to make up a large segment of the population. As the
settlement began to become more heterogeneous, the public began to question the state's
responsibility to enforce morality. Neighbors exhibited a growing reluctance to get involved in
8


disputes between husbands and wives unless the peace of the entire neighborhood was
threatened.
This influx of diverse people into a once homogeneous community, as well as a
spiritual crisis being experienced by the younger generation of Puritans, contributed to the
development of secular attitudes. This resulted in the breakdown of the Christian morality
that had brought together the interests of family, state, and church. The church's role in
punishing moral offenders diminished. Buzawa and Buzawa (1990, p.24) write that since
domestic violence laws were, "primarily based on religion, determining the appropriateness of
conduct suitable in the 'eyes of the Lord' became even more problematic as society became
more secularized." There were many changes in moral laws, including the permitting of
single individuals to live alone rather than being forced to reside with a family and a decrease
in the prosecution of infanticide and fornicators, ^y the end of the Eighteenth Century many
churches had abolished their courts altogether.
The importance of prosecuting crimes within the home disappeared, as the state
began to focus on crimes of violence by strangers and property crimes. Doubts about the
role of the state in family or private matters contributed to an abating interest in family
violence. Disturbances within the home were no longer considered a threat to the stability of
the community. The institution of the family became a private one, separate from public life.
Pleck (1987, p.33) writes,
Laws not only prescribe punishment for crimes, they also function
as a guide to the community's moral principles. The purpose of the
Puritan laws against family violence was less to punish abusers than
to define the boundaries between the saint and the sinner, demon-
strate to each other and to God a vigilance against sin and to shore
up proper authority in the household and in society.
But as a more pluralistic, less religious community replaced the early Puritans the power of
the state to define these boundaries and enforce morality was questioned. The original
campaign to control immoral behavior changed into a view of tolerance and indifference.
This was extended as the legal system began to reflect the teachings of liberal philosophers
such as John Locke, who strongly advocated for a society that should restrict its concerns to
the maintenance of "public order" and give up trying to regulate "private order" and eliminate
"private vice" (Buzawa & Buzawa, 1990, p.24).
Inattention to the problem of domestic violence lasted from about 1680-1850.
During this period earlier laws condemning domestic violence often remained on the books
but were unlikely to be enforced. Carp (1991, p.213) writes that as the American family
came to be, "depicted as a refuge from the cutthroat world of commerce and increasingly
isolated from public affairs, domestic violence became even further sealed off from
community surveillance; the idealization of family privacy made state intervention appear
even more problematic, disruptive and unnatural." During this period the courts also
supported the well recognized custom of moderate chastisement or "rule of thumb" which
said that a husband could beat his wife with "a rod not thicker than his thumb" (Buzawa &
Buzawa, 1990, p.24).
9


The Puritan's religious beliefs provided the basis for their laws and responses
towards wife-beating. Preserving peace within the family and community under the eyes of
God, was their main concern, rather than the safety and rights of the victim. Originally the
Puritans allowed intervention into violent families as a way to preserve them and prevent
sinful behavior, but later the family became a private domain and intervention was seen as
undesirable and an affront to the family structure.
Advocates for anti-wife beating laws included religious figures and neighbors
who felt they needed to prevent sin and save the family in order to remain in God's good
graces. But even the advocates often sided with the opposition when it came to reinforcing
the hierarchical relationships in the family and society. Most people did not argue against a
man physically punishing his wife at home as long as it was not in "excess." Although
specific laws were enacted, prosecution was rare because it disturbed the traditional family
arrangement. The Puritans chose to preserve the male-dominated family over protecting
individual women victims.
10


CHAPTER THREE
TEMPERANCE MOVEMENT (1830- 1870)
Although the Temperance Movement was the first U.S. reform campaign to publicly
discuss the cruel realities of domestic violence, it viewed violence in the home as an harmful
consequence of alcohol rather than as its own unique social problem (Pleck, 1987, p.49).
Reform focused on prohibiting the sale of liquor instead of advocating for direct aid to victims.
Nineteenth Century Temperance advocates assumed that there was a fundamental
correlation between alcoholism and wife-beating. Most naively believed that excessive
drinking was the cause of domestic violence rather than a precipitating factor or a convenient
excuse. This false assumption continues to be prevalent even today. But current research
continues to disprove this belief. Linda Gordon (1988, p.264) writes, "There is
anthropological evidence that liquor in itself does not cause aggressive behavior or even
loosen inhibitions against it. In different societies the conventional drunken behavior varies
widely suggesting that drunken behavior is in itself learned." Theresa M. Zubretsky and
Karla M. Digirolamo write,
The majority (76%) of physically abusive incidents, occur in the absence
of alcohol use, and there is no evidence to suggest that alcohol use or
dependence is linked to other forms of coercive behavior that are part of
the pattern of domestic violence. Economic control, sexual violence, and
intimidation, for example, are often part of a batterer's ongoing pattern of
abuse, with little or no identifiable connection to his use of or dependence
on alcohol (Roberts, 1996, p.223).
But drinking, though not the cause, does indirectly contribute to family violence such as a
husband spending money on liquor instead of to support the family, as well as male drinking
companions urging each other to put their wives in their "proper place."
Drunkenness was a common part of life during the 19th Century. Many men and
women drank regularly, especially members of the working class, as shops and factories
customarily furnished their workers with daily rations of rum and gin during breaks, as well as
to celebrate the completion of a project, the week, or a holiday (Pleck, 1987, p.50). Pleck
(1987, p.51) offers several theories often given as to why alcohol was such a major part of
people's lifestyle: 1 .)the success ethic of the 19th Century led to increased stress, 2.)the
decline in the enforcement of religious morality reduced the moral pressures put on people
not to drink, 3.)the migration of men to new frontier areas meant they were away from the
social pressures to control alcohol such as family and friends, 4.)the overabundance of corn
on the Western frontier encouraged the production of cheap whiskey.
The Temperance Movement did not focus on the effect of drunkenness on the family
initially. Almost thirty years passed between the founding of the first formal U.S. Temperance
Society in 1808 and earnest temperance rhetoric about family violence. Small instances of
family violence slowly began to show up in temperance propaganda; in 1813 a temperance
11


speech first acknowledged the "trembling family," while in the 1830's pictures of the "suffering
wife" began to appear, and in 1835 the first drawings of family violence in the U.S.- a drunken
husband lifting a chair to bludgeon his wife and children- appeared in The Pennsylvania New
Jersey Almanac (Pleck, 1987, p.51).
Activists of this period, including women, usually defined the home as private but
also stressed that women had domestic authority, calling the family women's special domain.
Many writers and scholars of the time declared that men no longer ruled the household.
Carp (1991, p.208) writes,
Americans by the 1830's were defining the family not as a
microcosm of the larger society but as a private retreat, a
sanctuary from the aggressive materialism and competitive
spirit of commerce and government. As the family's economic
self-sufficiency diminished, child rearing and emotional support
for family members became its major function.
This division of the world into two spheres presented female values as modesty, self-
sacrifice, and piety and promoted the "ideology of domesticity" which professed that women
had the power to reform the morals of their fathers, husbands, sons and brothers (Pleck,
1987, p.52)
The Temperance Movement began as a male-dominated society but thousands of
women entered the movement in the 1830's and 1840s. Although women's power was
supposed to be limited to the private realm of the home, many women feeling a moral duty to
promote reform, became involved with temperance as well as with other public charitable
organizations. Their public involvement was justified by a woman's sense of religious and
family responsibility. Activism had been focused strictly on temperance but women started to
bring in other issues affecting them such as domestic violence. The domestic ideology of the
Temperance Movement viewed women as the purer sex, deserving a life free from fear and
cruelty. Women argued that abuse within the family violated domestic values and devastated
a women's virtue. They claimed that the public did not realize the extent of women's
suffering because family violence was hidden from their view.
Victorian sexual attitudes were evident in many of the Temperance Movement's
positions. Certain issues such as incest, rape, and prostitution were rarely discussed. Pleck
(1987, p.53) writes of this time,
The ideal woman of the early 19th Century was expected to be sex-
ually pure and lacking in passion and governed more by the rational
faculties. However male sexuality was considered essentially brutish.
Although man required his "animal passions" he also needed to keep
them under control. Indeed, the ability to keep sexual impulses in
check was seen as the ultimate moral act. Lustful indulgence in sex
and alcohol were thought to neutralize the small amount of self-
control men possessed. The concept of male brutishness, referring to
both sexuality and violence, was divided along class lines. The middle
and upper classes were theoretically self-policing; the lower classes
were not.
12


Beliefs in male brutishness and female purity were the basis for the plight of the wife of a
drunk. Many argued that men, were not brutish by nature but that alcohol made them this
way. But the drunk was portrayed as a brute, while his wife and children were the victims of
his drunkenness.
Until the 1850's men and women temperance reformers believed that drunkard's
could be reformed by their wives appealing to their sense of family responsibility. But many
of the newly involved women saw that this was not working and began to take a much more
revolutionary approach to family violence. They argued that wives had a moral duty to
divorce their drunk husbands. Divorce was an extremely radical proposal, presenting a
conflict between the traditional male-dominated family and a woman's right to autonomy and
personal safety. These new feminist activists advpcated for the radical notion that the
emancipation of women was more important than the preservation of the family. It was
preferable for a woman and child to live alone than to put up with a drunk husband. The
survival of the drunk's family often depended on a woman's right to custody of her children,
her earnings and divorce.
In the earlier years of temperance reform, women's activities were limited to listening
to the male leaders and maybe some fundraising. Women saw that the tactics used by male
temperance reformers were not working. They became convinced that passing legislation
would be the most effective solution and began to take on some political activities such as
lobbying and petitioning for laws prohibiting the sale of alcohol, establishing dry districts, and
imposing saloon closings on Sundays. Most men in the Temperance Movement felt that the
women should not become so directly involved in politics, leading to a split between men and
women within the movement. Many of the women were unhappy with their less than equal
treatment and left the Temperance Movement in order to start their own, focusing on issues
such as legislation to grant divorces on the grounds of drunkenness and to secure the right
of the wife of a drunk to her own earnings.
In the 1850's women's split from the earlier temperance reform coincided with new
ideas regarding women's rights- the belief that women like men possess inalienable rights.
Following the 1848 meeting in Seneca Falls, N.Y. which resulted in a manifesto on these
inalienable rights entitled "The Declaration of Human Sentiments," womens inalienable rights
became immeshed with temperance reform. Divorce became a main issue, championed by
Amelia Bloomer, an advocate for temperance reform and women's rights who started the first
temperance journal edited by a woman "Lily" in 1849. At this time it was easier to obtain a
divorce for drunkenness than cruelty so "Lily" focused on gaining divorces for a drunkard's
wife (Pleck, 1987. p.55).
By the 1850's, nineteen states granted divorce for cruelty, mainly in the South and
Midwest, but typically a divorce would be granted only for desertion not cruelty so it is not
surprising to find that a request for a divorce due to cruelty was almost always requested by a
woman (Pleck, 1987, p.55-56). Divorce on the grounds of cruelty varied widely. There was a
wide range of definitions of cruelty and even states with a more liberal definition would often
grant divorces only to women that the judges decided fit the ideal of a "good woman"-
submissive, chaste, and protective of their children.
In 1852, Elizabeth Cady Stanton and Susan B. Anthony founded the New York State
Women's Temperance Society. They fought to free women from drunk husbands but they
13


also used their platform to discuss other issues of married life that others had feared to
speak of in public. They used the issue of temperance which women had been strongly
involved with, to bring women together, to and focus their enthusiasm and anger on their own
vulnerability and dependence on abusive men.
Stanton and Anthony were the first to publicly denounce the rape of a wife within
marriage and question a husband's right to demand sex from his wife (Pleck, 1987, p.58).
They attacked the view that it was a wife's duty to sacrifice for and submit to her husband.
They proclaimed that a woman deserved a right to life and happiness equal to that of any
man.
Stanton and Anthony argued that male judges and state legislators actually
perpetuated drunkenness and the suffering of woipen by regulating marriage in the man's
favor. They worked towards enacting divorce laws. Stanton said ,"Let no woman remain in
the relation of wife with a confirmed drunkard" (Pleck, 1987, p.57). They petitioned the state
government to modify laws affecting marriage and the custody of children so that a drunk
husband could have no claims. Women married to drunkards were encouraged to have no
sex so that children would not be brought into the situation. The issue of suffrage began to
enter into their rhetoric, as Stanton and Anthony argued that women could use their vote to
prevent the sale of liquor.
In the summer of 1852, women temperance activists secured 28,000 womens
signatures on a petition demanding that the state legislature ban the sale of alcohol. State
lawmakers criticized the women as "unwomanly" for being involved in this political act. Male
temperance activists also continued to criticize women reformers for including women's
rights in their platform. Stanton pointed out the hypocrisy of those who were working to aid
the wives of drunkards but would not support the idea of women's rights. Even the majority
within the women's temperance movement did. not agree with the radical views of Stanton
and Anthony, so the two women left the Temperance Movement to focus on women's rights.
Divorce, which was their most radical idea, was put aside for awhile as their focus
turned to the passage of married women's property rights legislation. The wife of a drunk
was compelled to support herself and the children since her drunk husband squandered
away their money on liquor, yet by law a husband could seize a wife's earnings and sell
property at will. A husband who was separated from his wife had the right to appoint a
guardian for children other than his wife. Stanton and Anthony worked to pass legislation
that would grant wives the right to their own earnings and control over property.
In 1855 and 1856, a few New York state legislators introduced new divorce bills,
granting divorce on grounds of cruelty, desertion, and drunkenness, responding to pressure
from wealthy constituents concerned about several cases of cruelty by husbands to
daughters of wealthy landowners (Pleck, 1987, p.60). The public view saw divorce as un-
Christian and viewed women who asked for a divorce as adulterous, so this bill did not
generate much support. Pleck (1987, p.61) writes, "Divorce not only challenged the
institution of marriage but also permitted women to remarry. It appeared to offer divorced
women too much opportunity for a normal sex-life." Stanton and Anthony received less
opposition to married women's property rights because compared to divorce they could be
viewed as merely offering aid to deserving women who wanted to support themselves and
their children without giving them the right to an autonomous life.
14


In 1860 Stanton and Anthony engaged in direct action in support of a battered
woman for the first time. A sister of a U.S. senator- who had kidnapped her daughter and
fled from her abusive husband, a Massachusetts legislator, found a safe place to stay
through Stanton and Anthony (Pleck, 1987, p.61). Pleck (1987, p.61) writes that the
desperation of this woman convinced Stanton and Anthony that, wives were nothing more
than slaves who had to flee the institution of marriage because the law did not treat them
justly."
Although most women activists continued to believe that the issue of divorce was too
controversial, in 1860 at a New York convention Stanton introduced ten resolutions designed
to gain support for another version of a divorce bill to be reintroduced in the New York State
legislature the following term. Stanton argued that divorce ought to be a private matter
unregulated by church and state. She insisted tha,t married women were in bondage as
much as a slave and that religious custom and the government worked together to make
women the property of their husbands. The dignity of womanhood, she argued was
destroyed within the institution of marriage (Pleck, 1987, p.61).
Stanton expanded her arguments for the granting of divorce to encompass insanity,
desertion, cruel behavior, and incompatibility as well as drunkenness. She argued that
marriage should be a simple contract easily dissolvable. The majority of women's rights
supporters continued to oppose Stanton's ideas, afraid that she was too radical and not
wanting to jeopardize the more moderate factions of the movement. Many of her critics
argued that her beliefs were a threat to the institution of the family and Christian marriage
and would result in social instability. Despite this lack of support Stanton continued to
advocate for divorce reform.
Some women sought to aid the wives of drunks and other abused women by calling
for more strictly enforced criminal laws against perpetrators. Amelia Bloomer argued that
women should be persuaded to press criminal charges against their abusive husbands. But
neither Stanton nor Anthony focused in on this issue. Two states passed laws establishing
wife-beating as a misdemeanor, Tennessee in 1850 and Georgia in 1857 (Pleck, 1987,
P-63).
At this time the issue of wife-beating was gaining support in England, with the
passing of legislation and the establishment of new programs for victims. The term "wife-
beating" was first used in England in 1856 during a campaign for divorce reform (Pleck,
1987, p.63). These English style measures did not take hold in the U.S. for quite some time.
It was not until just after the Civil War that the Victorian taboo on discussions of sexuality
began to give way to public discussions of issues like sex, prostitution, and abuse in
marriage. The popular press began to print stories on sensational divorces, scandalous
courtroom trials, and crimes of passion.
Between 1868 and 1870, Stanton and Anthony actively wrote, spoke and
demonstrated on behalf of women who were victims of violence or sexual exploitation. They
specifically got involved in the case of Albert MacFarland, a wife-beater who murdered his
ex-wife's fiancee, demanding his conviction (Pleck, 1987, p.21). The liberal atmosphere
during the period following the Civil War made people more willing to engage in controversial
causes.
15


But the 1870's brought a more conservative climate. The Comstock Law in 1873
banned the dissemination through the mail of birth control information and pornography,
helping to bring to an end the brief period of discussion on such topics as rape and incest.
Many liberal divorce laws enacted during the mid -1800's were repealed, branded as
obscene and advocating free love. By 1875 even Stanton had stopped mentioning the abuse
of women and children although she still favored liberalized divorce and denounced male
domination in the family. More conservative women's activists avoided advocating for
divorce but began to turn more towards criminal punishment for the violent man.
Alcohol as the main focus of the Temperance Movement led to renewed interest in
wife-beating. But rather than giving direct aid to victims, advocates chose to champion the
prohibition of alcohol as a solution. Even when women were involved in the movement,
Victorian sexual attitudes kept them from discussing certain women's issues that they found
important.
Women advocates during this period began to expand their struggle to include other
women's issues such as divorce and women's property rights, specifically through the work
of Elizabeth Cady Stanton and Susan B. Anthony. But the opposition continued to use the
traditional family to argue successfully against divorce, as well as against women even being
involved in any public undertakings.
Wife-beating was still not taken seriously as a social problem in its own right,
although women activists began to focus more on the unequal treatment of women within a
patriarchal system.
16


CHAPTER FOUR
ANTI-CRUELTY SOCIETIES AND PROGRESSIVE REFORM
(1874- 1930'S)
During the late 1800s to early 1900s, there grew more public acceptance of outside
intervention into domestic life in order to protect those most vulnerable. The Civil War had
increased the public consciousness about pain and suffering and as Pleck (1987, p.79)
writes, "in many domains of sexuality and family life, once considered private and sealed off
from public view, outside agencies now claimed the right, the duty, even the sacred obligation
to intercede." Many different agencies developed during this period, attempting to help those
they considered less fortunate.
Child abuse tended to be the main focus of these agencies, as helping abused
children was generally supported by all. Where in the past, groups attempting to break the
privacy surrounding the family had met with resistance, agencies focusing on child cruelty
could avoid this. The leaders of these groups represented themselves as protectors of
children and the family. As Pleck (1987, p.76) writes, "[they] rarely spoke about the nature of
the family but instead dwelled on the importance of rescuing children from a future life of
crime...[they] did not regard child cruelty as a family problem but as an instance of
exploitation and faulty moral character that occurred in public as well as in the home."
Although the child cruelty agencies focused mainly on children, once they broke
through the privacy of the family, the abuse suffered by wives became evident. Women also
gained support in this roundabout way. Feminist activists also attempted to help women
escape from violent situations and gain equality within their marriages, as well as in the
greater society. But, despite the general acceptance of outside intervention, these women
continued to be criticized for breaking up the family.
Prohibition and the Depression also played important roles in shaping responses to
domestic violence. The anti-sexual attitude of this Victorian period, kept "social purity,"
especially control of the brutish man, a strong influence. Economic hardships due to the
depression led to rising social dependency and disorder. A large crime wave that began
following the Civil War frightened many, leading to stronger actions being taken against
criminals. But often the response to this upheaval in society was to blame minorities,
especially immigrants, and enforce tough criminal sanctions and child protection policies
unfairly against them. "Traditional life" as many had known, with its traditional roles for men
and women, was visibly coming apart.
Societies For The Prevention of Cruelty to Children
In 1874, the first society in the world dedicated to protecting children from cruelty was
created in response to the abuse of one young girl named Mary Ellen (Pleck, 1987, p.69).
This lead to a national movement, including the establishment of thirty-four Societies for the
17


Prevention of Cruelty to Children by the end of the decade. These society's were based on
the American Society for the Prevention of Cruelty to Animals (ASPCA) founded in 1868-
years before the creation of any groups to help women or children. Pleck (1987, p.79)
argues that this was not because animals were more important than women and children but
because helping women and children meant interfering with the family. But it is still evidence
of women's low place in society.
The child-cruelty societies did not attack the family, instead they supported traditional
values and did not look to the structure of the family as part of the problem. Workers in
these societies would often side with parents over removing a child from an abusive situation
to display their support of parental authority in the family. Pleck (1987, p.76) writes that
agency workers, advocated a good wholesome flogging for disobedient children," but still
wanted to protect children from, "undue parental severity." The societies did attempt to pass
and enforce legislation against child cruelty but their talk was often much stronger than their
actions. Children were rarely removed from abusive families and parents were rarely
prosecuted for child abuse.
In the latter part of the 19th Century, fear arose concerning what the middle classes
termed an uncontrollable crime wave, fueled by more immigrants with very different cultural
backgrounds coming to the U.S. (Buzawa & Buzawa, 1990, p.24). A negative reaction to a
new urbanism and immigrants led to class, ethnic, and cultural characteristics playing a large
role in child cruelty cases. Cruelty to children was often thought to be the depravity of lesser
classes and cultures who needed to be re-taught and brought up to an "American standard."
Pleck (1987, p.70) writes, "A wealthy urban elite was fearful of social disorder and dismayed
by the poverty .disease, and lawlessness of urban life. They blamed the immigrant, largely
Catholic and poor, and hoped to rescue their children from a life of pauperism, drink, and
petty thievery."
Initially child-protection agencies tried to avoid getting involved with conflicts between
husbands and wives, but their clients were mainly desperate mothers who were turning to
agency workers with their own stories of abuse. Mothers were expected not to have any
concerns separate from their children's, and the ideal that only a peaceful home was a
proper place for kids led many child reformers to get involved with wife-beating. But child-
protection workers also had stereotypes of what a "deserving wife" was. Any woman who
departed from the norm, such as single mothers or mothers who drank, were not thought to
be worthy of aid.
Laws against family violence did exist at this time, usually based on some sort of
standard as to what was "excessive" violence (Gordon, 1988, p.255-256). But public
discussion of wife-beating was still considered taboo and so these laws were rarely enforced.
Many reformers of the 19th century argued that the standards set were unacceptable- no
violence within the family should be tolerated. Family reformers proposed to do away with
physical violence in marriage completely.
Women would attempt to get help from child cruelty agencies without directly
challenging male authority. They generally did not feel that they had a "right" to a marriage
free from violence. Often when trying to obtain help, a woman first had to present evidence
of a child's mistreatment before anyone would listen to complaints of her own abuse. Men
would often reply to a wife's complaints of abuse with their own complaints of dirty
housekeeping and neglectful mothering, in order to reinstate their authority.
18


As social possibilities began to change, especially with the Depression, women
began to assert a right- that they had an entitlement to protection from violence in their
complaints (Gordon, 1988, p.258). Changes such as women earning their own wages,
remarriage allowed after divorce, birth limitations, and aid to single mothers, led women to
believe that it was possible for them to escape from violence in marriage. Gordon (1988,
p.60) writes that,
The growth of a wage labor economy bringing unemployment,
transience, and dispersal of kinfolk, lessened womens sense
of entitlement to support from their husbands but allowed them
to insist on their physical integrity. It is a reasonable hypothesis
that the Depression, by the leveling impact of widespread un-
employment actually encouraged women regarding the possibilities
of independence.
From 1874-1910, child protection agencies were a part of the general charity
organizations and moral reform movement, generally staffed by volunteer or untrained labor.
In the 1920's these agencies were taken over by professional social workers and regulated
heavily by the state. The Depression meant that social problems such as family violence
were extremely de-emphasized in favor of focusing on economic hardships. The emphasis
on alcohol as the cause of family violence was replaced with an emphasis on poverty,
unemployment and illness. Social workers claimed that an overall weakening of the family
was taking place and old feminist arguments against drunk brutal men were unscientific and
moralistic. Environmental factors such as mental stress, lack of education, or lack of mental
hygiene were said to cause marital violence. There was a sympathy for the unemployed
suffering husband and blame was often placed on the woman who was held responsible for
the overall well being of the family.
Treatments that were preferred during this period were reconciliation and economic
aid. It was thought that family violence was caused by extra-familial events and outside aid
was the solution. But as Gordon (1988, p.23) writes, relief alone was not the solution.
Poverty alone doesn't cause domestic violence; after all most poor children are neither
abused nor neglected."
Social Purity Movement
A movement for "social purity" which began in New York City in the 1830's, hoping to
rescue prostitutes and reshape the sexual conduct of men, became even stronger in the late
1800's. It expanded to include issues such as raising the age of consent for statutory rape,
sex education in schools, prison reform, anti-pornography, homes for wayward girls," and
working to help victims of sexual abuse within marriage. Many women activists became
involved including Susan B. Anthony and Elizabeth Cady Stanton.
Male reformers had long blamed prostitutes for corrupting innocent young men, but
female reformers used the prostitute as a symbol of the powerlessness of women, blaming
prostitution on male sexual greed. Pleck (1987, p.90) writes, "Reformers sought to abolish
prostitution entirely. They also believed in converting males to the female sexual standard
19


theoretically higher and purer so that prostitution and other types of male vice would be
completely eliminated."
Feminists and social purity reformers took on the cause of sexual abuse within
marriage. They attacked the idea that it was a wife's duty to submit to intercourse with her
husband as well as arguing against excessive sex, disregard for a woman's pleasure and
intercourse when the husband was intoxicated or had a venereal disease. Victoria Woodhull,
an outspoken defender of free love said, "the marriage law is the most damnable social evil
bill- the most consummate outrage on women that was ever conceived. Those who are
called prostitutes are free women sexually compared to the poor wife, They are at liberty to
at least refuse, but she knows no such escape" (Pleck, 1987, p.91). There was much
opposition, which again blamed the movement for breaking up the family. As Susan Moller
Okin (1989, p.42) writes, "traditional marriage has,been invoked to argue against both the
legal recognition of rape within marriage and the provision of shelters for battered women."
The "traditional marriage" granted a husband complete control over his wife.
The anti-sexual attitude of the Victorian Period was as big an influence on the social
purity campaign as concern over the physical safety of women. Social purity reformers
shared with the Temperance reformers the view that males were not naturally brutish and
could control their sexual aggression. However, since men were seen as the sexual initiators
and women as passive objects, women's freedom was seen mainly in the right to refuse
intercourse. Although some of the complaints about male sexuality sound rather puritanical
today, women had real reasons for finding sexual intercourse painful- frequent childbirth
tears muscles, sickness, venereal diseases and gynecological and urinary tract infections
(Pleck, 1987, p.92).
Most rape laws of this time did not specify whether a husband could be charged with
raping his wife. It was not until the twentieth century that laws began to exempt husbands
from prosecution for marital rape, but no husband in Nineteenth Century America was ever
prosecuted on the charge (Pleck, 1987, p.94). Wives could bring suit for divorce on grounds
of sexual brutality in many states but the legality of marital rape was rarely discussed.
Since sexual purity was such a sensitive subject, adult women seen as having an
upstanding moral character were recruited to work for the cause. Perpetrators were to be
focused on as much as the victim in their efforts. They actively supported outside
intervention in the family and did not simply rely on moral appeals for self-control. These
reformers still faced criticism that they were disrupting the family.
Women's Organizations
The Protective Agency for Women and Children was founded in Chicago in 1885. It
was the first and most important organized effort to aid battered women in Nineteenth
Century America. Started by women from Chicago's Moral Education Society and The
Chicago Women's Club, it included many wives of lakefront millionaires lending respectability
to the agency.
Membership was limited to women, with half of the officers coming from the
Women's Club and the other half recruited from city and suburban women's organizations.
20


Most officers were wealthy, bringing in funds with them. Most other funds were small gifts
from individual women.
The agency offered legal aid and personal assistance to victims as well as
monitoring courtrooms to see that women victims were treated fairly. There was also a
shelter operated by the Women's Club of Chicago where victims could stay for up to four
weeks and get assistance in securing property held in their husband's name. Social purity
ideas which viewed women as the natural protectors of other women and children provided
the justification for hese activities.
In order to protect itself from criticisms of breaking up the family, the agency
originally discouraged divorce. But by the third year, women agents as well as many clients
began to question marriage, claiming that these wpre not true marriages but, "a falsity and a
shame because of the violence, cruelty or immorality occurring within them (Pleck, 1987,
P-97).
Pleck (1987, p.97) writes, "generally when the public becomes frightened by the
rapidity of social change, it looks to the traditional family (or an idealized image of the home)
to provide security and continuity with the past." This was true of the critics of the Protection
Agency, many of them women, who thought that suffrage, divorce, and direct aid to abused
women would destroy the traditional family. The Protection Agency continued to aid women
despite constant opposition.
Eleven years after its founding the Protection Agency merged with a larger, better
funded and predominantly male organization- The Bureau of Justice, which offered legal aid
to the poor of both sexes. The Protection Agency maintained its autonomy within the bureau
keeping exclusive jurisdiction over cases affecting women and children. The agency became
more involved in providing legal assistance to abused women hoping to obtain divorces.
In 1905 the Bureau/Protection Agency joined with The Legal Aid Society of Chicago.
In the agreement of the merger the Protection Agency continued to maintain its autonomy,
the president of the Protection Agency became vice-president of Legal Aid, and half of the
board of directors had to be women. But by 1912, information about the Protection's
Agency's work had disappeared from the annual report of Chicago Legal Aid (Pleck, 1987,
p.98). By the 1920's, the official policy of Legal Aid was to discourage divorce and seek
marital reconciliation.
The Women's Christian Temperance Union (WCTU) was founded as a very different
type of women's organization in 1874. Social purity was the main force behind this agency
with reformers working to strengthen the traditional family by forcing men to realize their
responsibility to protect females. This new temperance movement differed from the early
one of the 1800's, emphasizing a mother's influence over her sons, rather than a wife's duty
to reform her drunk husband. Reformers encouraged women to rise up against those who
sold their men liquor and persuade husbands and sons to take a pledge of sobriety.
The main concern of the WCTU was to elevate men and return them to their proper
place of authority within the family. They believed that marriage was not of equals but
headed by an honorable husband with a passive, subordinate wife at his side. They believed
that a woman's place was in the home and she should not attempt to leave it, no matter how
violent the situation. They argued that anything that, "breaks down the home hurts women
21


the most because a woman was dependent on the family for her happiness" (Pleck, 1987,
p.100). Because of these views, the WCTU was rarely criticized for being unwomanly or
immodest.
WCTU rhetoric claimed that the woman's enemy was the saloon keeper who sold
her male family members the liquor that made them so violent. So instead of encouraging
the courts to allow a woman to sue her husband for damages, the WCTU fought to allow the
wife to sue the saloon keeper who served her husband.
In 1873, New York and Arkansas became the first states to pass laws giving the
injured party the right to sue a saloon keeper or owner for damages caused from an assault
committed by an intoxicated person. Eventually twenty states enacted similar laws. But
usually in order to receive damages, the wife had Jo have notified the saloon keeper not to
serve alcohol to her husband prior to the incident.
Whipping Post Legislation
Lucy Stone, a suffragist, became interested in crimes against women, saying in
1879, "beaten horses and dogs received more protection than bruised and battered wives"
(Pleck, 1987, p.102). She introduced legislation in the Massachusetts State Legislature in
1879,1883, and 1891, which gave an assaulted wife the right to apply to a neighborhood
police court for legal separation, an order requiring her husband to pay support for her and
her children and the award of child custody (Pleck, 1987, p.103). Stone based this bill on
similar legislation passed in England written by the prominent English suffragist Francis
Power Cobbe (Pleck, 1987, p.103). Stone was criticized for attempting to break up the family
and was unsuccessful in getting any of this legislation passed.
After failing to pass a bill offering protection to battered women, Stone began to favor
punishment of the abuser rather than the protection of victims. A friend of Stone's who was a
Massachusetts State Representative sponsored a bill in 1885 to punish wife-beaters with the
whipping post (Pleck, 1987, p.108). Stone supported this bill and organized women to lobby
for its passage. She wrote favorably of the bill in her magazine The Women's Journal,
arguing that an abusive husband did not fear a month in jail or a fine but would fear the pain
and humiliation of a public whipping. The Whipping Post Bill passed the Massachusetts
House ninety-six to twenty-four, but lost by a wide margin in the Senate (Pleck, 1987, p.108).
The whipping post campaign continued feeding on fears of violent crimes and brutish
impulses, demanding that the state punish crimes against morality. This campaign also
focused on controlling the lower classes, as did the anti-cruelty societies of the same period.
Flogging perpetrators was more appealing to the legislators, as well as to the public, than
offering aid to battered women. It would not break up the family, as the husband could return
home after his whipping. No one seemed to take into account what might happen in the
home after the man returned humiliated and angry. Supporters of the whipping post rarely
mentioned women's rights.
Between 1876-1906, a movement was led by eminent, wealthy, mostly male
Republican lawyers, judges, DA's, and other law enforcement officials in support of punishing
wife-beaters with the whipping post. This campaign lead to the passage of laws in only three
states, Maryland in 1882, Delaware in 1901, and Oregon in 1905. Many other states tried to
22


pass legislation but tailed. Much of the opposition to public whippings was headed by
religious groups, especially the Quakers. Although these criminal sanctions existed in these
three states, the whipping post was infrequently imposed as punishment, far more often on
minorities or other groups without social power (Buzawa & Buzawa, 1990, p.25).
During this time the number of criminals was growing, and faith in the success of the
prison system was waning. Many reformers argued that prisons actually helped to
perpetuate crime by imprisoning men in a hostile atmosphere. In 1885 a study of the
effectiveness of whipping as a punishment for domestic violence was undertaken by the
American Bar Association. A committee consisting of three prominent lawyers published a
report in 1886 claiming that the whipping post would deter wife-beating and other crime.
Pleck (1987, p.112) writes, "At a time of national economic depression, rising militance of
U.S. workers, desperation of the unemployed- the,specter of a permanent criminal class
haunted the committee." The lawyers considered deterrence the most important outcome of
whipping but also said that a painful punishment was appropriate because the abuser had
imposed pain on his victim.
This report was presented at the ABA's annual meeting. The opposition to the
whipping post argued that society was permitted to impose a punishment to protect itself
from repetition of a crime but not to gratify feelings of revenge and retaliation (Pleck, 2987,
p.114). Opponents claimed that the state was needlessly and maliciously causing a man
pain with the whipping post. There was also the practical objection that whipping would not
deter crime since cruel punishment and torture had been used for thousands of years and
had not eliminated criminal wrongdoing. An original resolution of the ABA in favor of the
whipping post was tabled by a vote of sixty-three to twenty-eight following the arguments of
the opposition (Pleck, 1987, p.115).
Following the results of the ABA's report, only Delaware and Oregon passed
whipping post laws although attempts were made throughout the nation. These laws, as well
as any support for the whipping post quickly faded. A movement to end capital punishment
was revived in 1911, also denouncing the whipping post as uncivilized. The use of the .
whipping post as a sanction for crime was abolished in the states where it existed by 1952.
Unfortunately, while the whipping post remained at the center of public debate, no alternative
solutions were offered and little action was taken to aid battered women. Although the
whipping post campaign raised the issue of domestic violence in a public forum, it resulted in
no real gains on behalf of battered women.
Progressive Reforms
The whipping post campaign ended at about the same time that the Victorian
rhetoric about male brutishness and female purity began to loose influence. Social reformers
of the 1920's became less interested in denouncing and punishing immoral men and more
focused on attacking the social conditions believed to cause crime. The Depression lead to
the brutish drunk becoming the pitiable, unemployed, suffering alcoholic. Domestic violence
was looked at as a domestic dispute needing the counseling of family courts rather than as a
violation of criminal law.
Family/Domestic Relations courts became the prevalent response to domestic
violence in the early 20th Century. The basic goal of these courts was to decriminalize family
violence, offering a curative rather than a punitive approach. The Judge of Philadelphia's
23


Court of Domestic Relations often refused to issue a warrant for the arrest of an abusive
husband because, "warrants involve usually a bond and a bond involves the husband or wife
lying in jail in a filthy cell overnight for an offense which is not really a crime; it is a matter of
laziness or shiftlessness or indifference or incapacity or negligence or mental or physical
deficiency on the part of the husband" (Pleck, 1987, p.137). Outside factors such as poverty,
unemployment, and stress were often accepted as excuses for a husband's violent behavior.
The official policy of family courts was to regard each spouse as equally at fault and
urge reconciliation. The procedures of the court were designed to discourage separations
and divorce whenever possible. Keeping the couple together was seen as necessary to keep
the home a happy and comfortable place to raise children.
Caseworkers became involved when a wqman complained of domestic violence,
attempting to meet with both the man and woman and often visiting the home to ascertain
what kind of housekeeper the woman was. Caseworkers were most often women and
although many felt compassion for the abused women, they were expected to enforce
agency policy. Judges warned caseworkers against encouraging a wife to separate
because, "if she thought she would be upheld in such a step she would be much less likely to
put up with her husband" (Pleck, 1987, p.139).
Despite the policy of family reconciliation, a few domestic courts granted divorce.
The Legal Aid Society of New York City would handle divorce cases for poor women with
children, as long as they fit the definition of a "worthy" woman. But most legal aid societies
refused to help indigent clients seeking divorce. The Detroit Bureau of Legal Aid referred
women to private attorneys insisting that divorce was a luxury that should be paid for (Pleck,
1987, p.141).
Since divorces were so hard to obtain, many abused women turned to the alternative
of a legal separation and a judicial order requiring a husband to pay support. In these cases
the burden often fell on the woman since judges would look at a wife's morality when
deciding on support, and it was the wife's responsibility to bring another case before the court
if a husband failed to pay court support. The amount of support a woman received was
rarely adequate to live on and not always enforced. Unemployed, ill, alcoholic, or disabled
men were not expected to pay and many healthy men chose not to pay out of spite.
Although support was usually not as much help to an abused woman as she needed,
by just attempting to offer support judgments, the family court acknowledged that a mother
and children living on their own constituted a viable family unit which had not been true in the
past. It permitted women the freedom to live separately from their husband without having to
be committed to some sort of institution or put back under the control of a male family
member.
But these family courts were less interested in women's rights than in protecting the
nuclear family. Women most often shouldered the blame and responsibility of a violent
household. Men were responsible if they failed to provide for the family or drank too much,
but most family violence problems were attributed to a woman's shortcomings.
Reconciliation meant restoring a husband's authority in the home by urging wives to become
more subservient and compliant, while forgiving and dealing with their poor husband's faults.
The use of the criminal justice system to combat domestic violence had also virtually
disappeared, further limiting an abused woman's options.
24


During this period, typical stereotypes towards the place of men and women in
society shaped attitudes towards domestic violence. The traditional family again played a
major role and groups claiming to want to aid battered women and abused children would not
step on traditional values and refused to attack or break up families, despite the violence
occurring within them.
If a battered woman wanted to obtain help she had to be "deserving"- fit the
stereotype of a pure woman, and never attack male authority. She was helped not because
she herself was a victim but because the family needed to be preserved. Family/Domestic
Courts worked to protect the family often urging women to be more subservient. Even the
use of the whipping post as a punishment for wife-beating was often supported because it
meant that the batterer could return home afterwards and the family would not be broken up.
Women's organizations began to address individual women victims and the issues
facing them, but still had to take steps to protect themselves from attacks blaming them for
breaking up the family. The WCTU actually supported the hierarchical structure of the family,
proclaiming they wanted to put the man back in his rightful place at the head of the family.
The Depression was a major factor in the treatment of battered women. Family
violence was de-emphasized as sympathy was turned to the poor, unemployed husband.
Violence within the home was blamed on poverty, unemployment, and illness. Fear of
increased crime rates and a new urbanism, lead to prejudicial attitudes towards immigrants
of different races and cultures. Any action taken against family violence was generally
directed towards these minorities.
25


CHAPTER FIVE
THE INFLUENCE OF PSYCHIATRY ON POLICY AND PRACTICES
(1940'S- 1950'S)
Prior to the late 1920's, psychoanalytic theory had little impact on psychiatry in the
United States. Domestic Relations Courts used canstitutional or inheritance based
diagnostic categories when dealing with wife-beaters. The standard diagnosis for both the
perpetrator and the victim was mental retardation or feeblemindedness combined with
schizophrenia and dementia (Pleck, 1987, p.145). Violence was thought to be hereditary and
particularly common among immigrants and vagrants. This pre-Freudian psychiatry
acknowledged that abuse took place but it usually condemned both the victim and
perpetrator as social and even genetic inferiors.
The standard social work manual of this time, listed these causes of marital conflict
for women: excessive dependence, the need to suffer, rejection of femininity, sex response,
interfering relatives, cultural differences, and economic factors (Gordon, 1988, p.282). Four
of the seven listed refer to women's faults, three to outside pressures, and none to men's
faults. Women were condemned for excessive dependence, but they were also condemned
for seeking employment or other situations that would lead to greater independence.
Caseworkers frequently offered contradictory analyses, deepening a woman's
double-bind. Gordon (1988, p.283) gives the example of a caseworker accepting the
necessity for marital separation at times but telling clients that being single was most
undesirable for children as well as adult women. A caseworker might support or even aid a
woman in securing a separation, but then would also expect the woman to feel guilty and
suffer for her decision.
Freud's Influence
By the 1930's, social work was completely enveloped by Freud's theories,
determining the manner in which victims and perpetrators of family violence were treated.
Psychoanalytic theory rejected genetic determinism and believed that humans could
overcome any problem with self-understanding. A new sexual way of looking at domestic
violence was introduced undermining the notions of child/female innocence and purity.
Rhetoric about the "brutish criminal" and his helpless victim disappeared. But rather than
using these new theories to free women from their limited, submissive role, they were used
to further oppress women. Psychoanalysis resurrected the older more mysoginistic images
of the seductive daughter, the nagging wife, and the lying hysteric. Pleck (1987, p.146)
writes that Freud's theories, "furnished new ideas that undercut the moral outrage that family
violence reform needs to flourish."
26


In 1895 and 1896 Freud began listening to female patients who recounted incidents
of family violence in their pasts. He was the first psychiatrist to take these stories of violence
seriously. Jeffrey Masson (1984, p.9) writes,
Freud's female patients had the courage to face what had hap-
pened to them in their childhood- often this included violent
scenes of rape by a father- and to communicate their trauma to
Freud, no doubt hesitating to believe their own memories and re-
luctant to remember the deep shame and hurt they had felt.
Freud listened and understood and gave them permission to re-
member and speak of these terrible events. Freud did not think
they were fantasies.
Based on these patients, Freud introduced his seduction theory in a paper in 1896. He
stated that hysterical symptoms such as double vision, seizures, paralysis, sudden blindness
or throbbing abdominal pain were caused by the patient's early childhood experiences of
violent sexual trauma (Pleck, 1987, p.151). This theory revealed that sexual molestation and
abuse were common occurrences and that people suffered long lasting scars from childhood
abuse.
But Freud's discovery was met by total silence from his peers. After his presentation
he was warned to never publish these ideas or it would damage his reputation and ruin his
career. Despite this, Freud published "The Aetiology of Hysteria," supporting his seduction
theory. But this resulted in the emotional and intellectual isolation of Freud from the rest of
the psychiatric community. Masson (1984, p.137) writes, "in accepting the reality of
seduction, in believing his patients, Freud was at odds with the entire climate of German
medical thinking."
In 1897, Freud renounced his seduction theory, stating that he no longer believed
that his patient's dreams of abuse represented childhood memories but instead were the
patient's repressed fantasies. Freud wrote,
Almost all of my women patients told me that they had been
seduced by their fathers. I am driven to recognize in the end
that these reports were untrue and so came to understand that
the hysterical symptoms are derived from fantasies and not
from real occurrences (Pleck, 1987, p.151).
Freud's renunciation of his seduction theory was a major turning point in
psychoanalysis, contributing greatly to the decline of interest in family violence (Carp, 1991,
p.215). It sent out a clear message that women and children who bring charges of rape and
sexual molestation cannot be believed, resulting in the minimization of the extent of child
abuse. Women and children had not actually suffered abuse but were expressing their
sexual fantasies. It suggested that child abuse was infrequent and that victims of abuse
were not seriously affected later in life. As a result of Freud's renunciation of his seduction
theory, therapists in clinical training were cautioned not to inquire about a patient's past
abuse and if they learned of it to doubt it's truth. Female victims of incest were labeled as
seductive when young girls but called frigid when they reached womanhood. These beliefs
became standard in the 1940s and 1950's, as Betty Friedan wrote,
27


Freud was accepted so quickly and completely at the end of
the forties that for over a decade no one even questioned the
race of the educated woman back to the home...After the De-
pression, after the war, Freudian psychology became an all
embracing American ideology, a new religion... Freudian and
pseudo-Freudian theories settled everywhere, like fine volcanic
ash (Appignanesi & Forrester, 1992, p.456).
Psychiatrists began to assist judges in deciding whether offenders were mentally
competent to stand trial. An American Bar Association report in 1936, advised judges to
order a psychiatric examination of victims because of the "well known psychiatric finding that
women and children often lie about rape" (Pleck, 1987, p.156). The noted legal scholar John
Henry Wigmore, who wrote the standard legal textbooks of the day repeated the ABA
findings, advising that the victim was often the "innocent man" (Pleck, 1987, p.156).
Although psychiatrists seemed to be working together with the criminal justice system, the
two approaches were often at odds. The law held individuals accountable for their actions
while psychiatry promoted the idea that humans were governed by urges and drives of which
they were not always aware.
Although Freud did break through Victorian beliefs to uncover the sexual feelings of
women and children, he did not use it positively but rather to continue the subjugation of
women and children. His renunciation of the seduction theory lead to the theory of the
Oedipus complex which supported the belief that a child fantasized sexual desires about the
parent of the opposite sex. Masson (1984, p.112) writes, "Earlier he (Freud) had recognized
the aggressive acts of parents against their children-for seduction was an act of violence.
Now Freud had a new insight, that children had aggressive impulses against their parents."
Once Freud came to these beliefs he refused to listen to anyone who disagreed with him.
Some researchers argue that Freud changed his mind about the seduction theory
because his woman patients were usually from wealthy, high society families. By believing
the women's cries of sexual abuse he would be alienating the wealthy men of these families.
Masson (1984, p. xxxiv) argues that,
It was a comforting view for society, for Freud's interpretation-
that the sexual violence that so affected the lives of his women
patients was nothing but fantasy- posed no threat to the exist-
ing social order. Therapists could thus remain on the side of the
successful and the powerful rather than on the miserable victims
of family violence.
Masson continues to point out that Freud's colleagues who criticized his findings never
directly and scientifically showed that Freud's seduction theory was false. They just treated
his theories as well as Freud personally with disgust, until he changed his views. Masson
(1984, p. xxxiii) writes, "It was my conviction that what Freud had uncovered in 1896, became
such a liability that he literally had to banish it from his consciousness"( Masson, 1984,p.
xxxiv). Masson concludes, "I gradually came to see Freud's abandonment of the seduction
hypothesis as a failure of courage."
Helene Deutsch worked closely with Freud founding and promoting the theory that
masochism is a central element in the psychology of normal women. This theory became
28


the dominant psychiatric explanation for the victimization of women. Deutsch claimed that
masochism is instinctual in women beginning when she was a little girl and notices that she
lacks a penis. The girl mistakenly concludes that her clitoris is what is left after someone cut
off her penis. She first angrily accuses her father, but the rage disappears and instead she
realizes that she wants her father to rape and impregnate her. The young girl's masochistic
fantasies generated by her penis like clitoris are now turned inward to produce pain and also
bring her sexual pleasure. The theory also claims that without this combination of violence,
pain, and desire the little girl would be unwilling to undergo the normal pain of childbirth later
in life. Deutsch (1944, p.276) wrote,
In one of her functions woman must have a certain amount of
masochism if she is to be adjusted to reality. This is the re-
productive function: from beginning to the end, even where it
most serves the purpose of pleasure, it requires toleration of
considerable pain...Women's entire psychological preparation
for the sexual and reproductive functions is connected with
masochistic ideas.
There was some opposition to Freud and Deutsch's theories about women. In 1933,
Karen Homey, who had broken away from Freudianism due to its faulty view of women,
offered a rebuttal to Deutsch's view of women and masochism. Horney rejected Freud's
view of penis envy in women so considered any theory based on it false. She argued that
masochism was abnormal in women and should not be encouraged. She argued that
masochism was based in misogyny which lead women to suffer feelings of weakness, a
helplessness, an inferior self-image, and of being exploited. She called the belief in female
masochism, "a fixed ideology about womanhood that served to reconcile women to their
subordination and plant in them the belief that masochism represents a fulfillment they crave
or an ideal for which it is commendable and desirable to strive (Pleck, 1987, p.160).
Unfortunately, Deutsch's arguments won over Homey's, becoming an integral part of
psychiatry and social work. Deutsch's theories were more acceptable for a period went he
male ability to produce had been threatened due to the depression and its aftermath.
Deutsch's arguments offered men the comfort that they were still dominant and in control
despite their economic difficulties. Her ideas had a large and direct impact on psychiatric
practice. Social workers, influenced by Deutsch's theories believed that women secretly
enjoyed the pain that men inflicted on them and that some women unconsciously sought
men who abused them or outright lied about abuse. Deutsch wrote (1944, p.256) "rape
fantasies are variants of the seduction fantasies so familiar to us in the lying accounts of
hysterical patients," and, many fantastic stories are produced by the masochistic yearnings
of these women." Women were called frigid and blamed for being unable to examine their
own complicity in their marital problems. Masochism was used to explain why abused
women stayed in violent relationships.
In the late 1960's and 1970's many of Freud's theories began to come under intense
scrutinization. The dominant feminist stance within the women's movement was one of
hostility and condemnation of Freud, pointing to Freudian therapy and theory as major factors
in the oppression of women. Other feminist writers such as Juliet Mitchell and Nancy
Chodorow, while acknowledging that Freud was indeed sexist, believe Freud's work is
valuable in showing how girls develop psychologically in a male dominated society. The
debate on Freud continues, even into the present day.
29


Social work and psychology defined domestic violence during this period. Freud's
influence was immense, leading to blame being placed on the woman victim. Those who
tried to advocate on behalf of women by going against Freud's teachings were quickly
dismissed.
The family was again at the center of opposition to aiding battered women. In order
to avoid violence women had to accept their position as women, which meant being
subservient to men.
*
30


CHAPTER SIX
THE BATTERED WOMEN'S MOVEMENT (1960'S- 1970'S)
Any discussion of domestic violence had generally remained private before the
1960's. The Journal of Marriage and the Family, a scholarly journal on family sociology had
no articles on family violence from its founding in 1*939 until 1969, and there were no
newspaper stories on family violence until 1974 (Pleck, 1987, p.182). The rebirth of public
and professional interest in domestic violence in the early 1960's was based on the
"discovery" of child abuse by pediatric radiologists studying x-rays of children who had
suffered head fractures. In 1962, C. Henry Kempe published his landmark work, "The
Battered Child Syndrome," in the Journal of the AMA (Carp, 1991, p.217). In this piece
Kempe provided a medical model that saw the perpetrator as a patient who was caught up in
a cycle of violence, beginning with his own abuse at the hands of his parents. By giving the
"sick role" to abusive parents, he provided hope for a possible cure as well as reducing
individual responsibility, blame, stigma, and decriminalizing child.
Between 1963 and 1967, every state passed a child abuse reporting bill mandating
that doctors report suspected cases of child abuse, culminating with the unanimous passage
of the Child Abuse Prevention and Treatment Act by Congress in 1973 (Carp, 1991, p.218).
Despite the great public interest in child abuse, wife-beating was not "rediscovered" until the
mid-1970's. Younger women who had been involved in the Civil Rights, Anti-War, and New
Left Movements became disillusioned with their treatment within these groups. They were
still treated as subordinates despite the supposed "liberal attitudes" of the men involved.
Many women left to establish their own smaller, local womens groups. This new Women's
Movement wanted to validate the importance of their feminist ideals as well as aid victims.
Pleck (1987, p.183) writes that," the rebirth of feminism was necessary for the 'rediscovery1 of
wife-beating."
Through "consciousness raising," women shared their personal experiences with
one another, gaining a larger understanding of women's condition through them. Many of
these women had similar personal narratives involving abuse by a partner. By finding that
other women had lived through similar experiences, they did not feel so alone and also
began to realize the extent of the problem. Quite a few feminist spokeswomen recounted
their own stories of violence including Betty Friedan, a founder of NOW, Betty Warrior, a
founder of Cell 16, and Andrea Dworkin a radical feminist writer (Pleck, 1987, p.183). Too
often though these personal accounts were seen as a "coming of age" story rather than a
story of abuse.
Feminist's first major issues included abortion in the 1960's and rape in the 1970's.
At a 1971 speakout about rape, the emphasis was placed on women's sexuality being
exploited and used to serve the dominant male. The Anti-Rape Movement's ideology and
methods were adopted by the Battered Women's Movement, providing a model of social
services and victim advocacy. The Anti-Rape Movement also became directly involved with
31


battered women by organizing conferences on domestic violence and advocating for
increased protection for battered women. Both movements saw misogyny, psychoanalytic
belief, public apathy, and police practices as common enemies. Rape and domestic violence
were still often considered taboo subjects which feminists began to change by speaking of
them publicly. Victims of both rape and domestic violence were made to feel guilty for
provoking attacks and often did not report or press charges.
The NOW Task Force on Battered Women was established in 1973 by Nancy Kirk-
Gormley, a divorced mom of two who had left an abusive marriage after ten years. This self-
help group emphasized that women should learn self-defense and prosecute their
perpetrator as well as getting a divorce as a long-term solution. Women from the task force
would accompany battered women to court as well as advocating for the reform of police
practices and legal aid for women. Ironically, unlike past situations, modern feminists did not
have to argue for a wife's right to leave her abusive husband. Now feminists were asked the
question why does a battered woman remained in a violent marriage.
Police practices were the first to be criticized as their failure could be easily
documented. Police reports of "domestic disturbance calls" provided the first evidence of the
extent of domestic violence (Pleck, 1987, p.186). Law enforcement used arrest only as a last
resort, preferring to mediate or refer victims to family court or social agencies for counseling.
In 1974, two University of Michigan students documented the lack of responsiveness of the
police and courts in Washtenaw County, Michigan, where the dominant view towards
domestic violence could be summed up by one police officer who said, "if you're married
there is nothing that we can do," (Pleck, 1987, p.186). They also found that the police tended
to follow the "stitch rule" which only allowed for an abusive husband to be arrested if his wife
had received a certain number of stitches.
Another study of the Kansas City and Detroit Police Departments in 1977, revealed
that rates of domestic violence were strongly related to subsequent acts of homicide; police
had been called repeatedly to the scenes of most domestic homicides and ineffective police
responses to pre-homicidal assaults directly contributed to the high toll of such crimes; the
study suggested reforming police responses through the training of officers for effective
intervention (Buzawa & Buzawa, 1992, p.x).
Shelters For Battered Women
America first learned about emergency shelters for victims through an English
activist named Erin Pizzey who developed the idea of temporary housing for battered
women. She along with other women activists established Chiswick, a neighborhood center
and safe place'for homeless women in England. Pizzey found that many of those coming to
the shelter had been abused by their partner. Local shelters were quickly established
throughout England.
Dozens of Americans visited England's shelters shortly after their founding, leading
to articles about them in MS Magazine and Newsweek. This was followed by a brief media
blitz on the subject of domestic violence, spurring the growth of the Battered Women's
Movement in the U.S. The media tended to view domestic violence as something new and
titillating involving both sex and violence. Battered women were often portrayed as the
helpless victim of a vicious brute, pictured with blackened eyes and bruised faces.
32


In 1974, Women's Advocates in St. Paul, Minnesota, became the first shelter
established in the United States. Initially, members of a women's consciousness raising
group took battered women into their own homes until they could afford to rent a one room
apartment to use as a shelter. But they were eventually evicted due to all of the activity. The
group worked to secure pledges for a loan to buy a three story, five-bedroom house which
could hold twelve women and their children.
The shelter was run as a collective, dividing administrative duties among paid staff
and volunteers. The collective was opposed to hiring staff based on professional credentials.
The average length of stay was ten days, during which residents had access to support
groups, counseling, lawyers, representatives from welfare agencies, and childcare. Any
violent behavior was prohibited, including spanking children. Women were encouraged to
make their own decisions, even if this meant going back to an abusive partner. Pleck (1987,
p.190) writes that, "advocates sought to support this decision and encourage women to keep
in touch with the shelter and continue weekly support group."
The number of shelters grew rapidly, most following the model of Women's
Advocates. Shelters legitimized the issue of domestic violence, the logic being that there
must be a problem if shelters exist and large numbers of women are going to them. Staff
and residents became activist groups working towards better treatment for battered women
and lobbying for legislation. By 1976, the first state laws concerning domestic violence were
passed including funding for shelters and improved reporting procedures. By 1980 all but six
states had enacted similar laws and women's coalitions had lobbied to eliminate the marital
exemption to rape.
By 1977, most shelters received some sort of Federal money, mainly through the
National Job Training Programs, which employed some of the staff at half of all shelters
(Pleck, 1987, p.190). In 1978 Florida began the innovative five dollar tax on marriage
licenses, providing $600,000 a year for shelters (Pleck, 1987, p.190). Sixteen other states
also adopted this plan. The single largest source of funds came from the Social Security
Administration Program for temporary housing of neglected and abused kids (Pleck, 1987,
p.190).
Treatment services for batterers were first established in 1975, usually through a
shelter or social service agency. Preservation of the family was no longer the main goal but
was still looked at as a possibility. The perpetrator was generally seen as the cause of the
problem and counselors attempted to teach him to become non-violent.
Feminist influence in shelters began to diminish towards the late 1970s. More
radical shelters, often including lesbian staff frequently did not last (Pleck, 1987, p.191).
Many surviving shelters turned from self-help organizations into social agencies, preferring to
hire social welfare professionals over feminist activists. This resulted in a less homelike
atmosphere and more of a clinical, bureaucratic, psycho-therapeutic approach. Shelters
remain crucial to helping battered women escape their violent situations and even today the
demand often exceeds the supply.
33


Federal Hearings on Domestic Violence
In July 1977, the first White House meeting on domestic violence took place. It was
a brief meeting of battered women, service providers, and federal personnel. Activists made
sure that the focus of the meeting remained specifically on battered women and was not
diverted to other such issues as alcohol and drug abuse or child abuse.
No concrete decisions or action were taken by the government at this time, but within
six months, in January of 1978, the U.S. Commission on Civil Rights held full hearings to
consider whether battered women were receiving equal protection under the law. The focus
of this meeting was on legal protection but it also served a s a springboard for federal
legislation to fund shelters. Written and oral statements were given by medical, legal, and
social agencies. Dobash and Dobash (1992, p.139) write of the hearings,
The Commission's basis for studying the problems of battered women
came from its statutory mandate to study and collect information re-
garding the denial of equal protection of the laws on the basis of sex and
in particular in the administration of justice. The agenda included law
enforcement and justice, support for shelters and social services, causes
and treatment of wife-beating, and the federal role."
The hearings lasted for two days and included an audience of over six hundred from
all over the U.S. Activists gave presentations as well as directly answering the
Commissioners questions. A seven hundred page document containing the presentations as
well as a long list of shelters, state statutes, and proposed federal legislation was put
together following the hearings.
Especially impressive about these hearings was the Commissioners support of the
widespread view of the women activists that this was an equal rights issue and that women
are not treated equally. Del Martin, a well- known feminist activist, gave the opening
presentation, touching on some controversial issues. She said,
I deliberately called my book Battered Wives to focus on marriage
as the institutional source and setting in which violence is initiated
and carried out...domestic violence cannot be understood without
examining the institution of marriage itself as the context in which
the violence takes place (Dobash & Dobash, 1992, p.131).
Martin argued that domestic violence was not a simple problem between individuals, but
involved wider issues such as power, the history of marriage, attitudes towards women, sex
role stereotyping, acceptance of violence, and the role of helping organizations including law
enforcement (Dobash & Dobash, 1992, p.131). In the past someone who pressed these
issues would be deemed to radical and not taken seriously. Now in 1977, she was invited to
speak before a government hearing.
There was controversy and debate during the hearings, including criticism of police,
prosecutors and judges for ineffective responses to domestic violence and pressure on the
federal government to fund shelters. But fear of federal funding and the effects it would have
on the running of shelters was also expressed. Activists feared they would be pushed out
and research and professionals would take over with a different agenda. Research itself was
34


questioned; What type of research to do as well as whether to spend funds on research or
direct services to victims.
Battered women activists and professionals described many accounts of inadequate
criminal justice responses to domestic violence situations and also proposed various
solutions. While most advocates were pushing for civil law measures to confront domestic
violence, some activists were arguing for criminal sanctions. Marjory Fields, an attorney from
Brooklyn Legal Services, a U.S. government funded free legal service for the poor, proposed
that violence against women should be treated as a crime, batterers arrested and
prosecuted, and systematic discrimination against women ended immediately. She argued
that this would send a strong message that violence against women was unacceptable in
U.S. society (Dobash & Dobash, 1992, p.150).
Most criminal justice representatives at these hearings acknowledged that there was
a problem but did not support criminal sanctions. One major reason for this was the view of
many police officials that domestic disturbances posed great physical danger to officers,
some arguing that these situations were the most lethal to police. Dobash and Dobash
(1992, p.152) argue that this is a widespread misconception that other studies have refuted,
also noting that, "Even if this were true, it would be an extraordinary rationale for not
intervening."
Solutions preferred by law enforcement included police dispute resolution, civil legal
remedies, criminal court diversions, mediation and counseling. Battered women, legal
advocates, and members of the battered women's movement rejected such solutions as
inadequate and ineffective.
The attention paid to the issue of battered husbands reveals that not everyone
supported the underlying view of woman's unequal treatment. Researcher Murray Straus
presented a written report to the committee claiming that husbands were battered just as
often as wives (Dobash & Dobash, 1992, p.134). But he did not orally present his arguments
to the entire audience, which meant that there was no debate, questions or criticisms of his
findings. His views were entered into the public record with no critique as to the validity of his
statements. The press gave considerable coverage to the issue of battered husbands
although it was a small part of the hearings.
Treatment for violent men was discussed as well as what government departments
could provide for battered women. Direct assistance to victims through state or federal
agencies was sparse at this time consisting mainly of The Comprehensive Employment and
Training Act (CETA) which enabled the employment of refuge workers for one year and the
Legal Services Corporation that provided legal aid to battered women.
Ultimately the hearings were considered successful, although just the beginning.
Dobash and Dobash (1992, p.136) write,
Commissioners heard evidence and considered written submissions
illustrating beyond a doubt that in the USA battered women were treated
unequally before the law. The hearings legitimized the needs of battered
women as a matter of national concern and an arena for public policy and
provided the opportunity for activists to take the first steps towards forming
the National Coalition Against Domestic Violence.
35


Federal Legislation
Immediately preceding the Civil Rights Committee hearings, two separate and
differing bills were introduced in the House and the Senate meant to provide funding for
shelters. The Domestic Violence Prevention and Treatment Act was introduced in the
House of Representatives by Republican Newton Steers and Democrat Lindy Boggs and in
the Senate by Democrats Edward Kennedy and Wendell Anderson. This bill supported the
familiar research and demonstration program within the Department of Health, Education,
and Welfare (HEW) which is now the department of Health and Human services (HHS). It
focused on providing jobs and funds for professionals in the social, psychological, and
medical professions to develop and conduct programs for battered women and for
academics to do research.
The Family Violence Prevention and Treatment Act was introduced in the House by
Democrat Barbara Mikulski. This bill differed from the first in its approach to responses and
funding of social problems. Mikulski's bill proposed community based action through the
creation of a National center for Community Action Against Family Violence within ACTION,
the federal agency incorporating the Peace Corps and its home based equivalent VISTA.
Mikulski believed that this approach would better incorporate the grassroots community
already involved with aiding battered women. Dobash and Dobash (1992, p.137) explain
Mikulski's approach as envisioning,
a response developed by members of a community, including battered
women, advocates, and activists, developing programs to suit local con-
ditions and needs. The community approach did not exclude the use of
those with professional training, but the overall program was not conceived
as one shaped by the orientations of psychologists, social workers, or
lawyers nor staffed primarily by them. Funding would be more oriented to
services than to expensive clinical salaries or research.
Neither of these bills passed. A bill integrating ideas from both the Steers-Boggs and
Mikulski bills was reintroduced but failed in the House by a margin of only four votes in May
1978. During this same session The Child Abuse Prevention and Treatment Act passed
easily. The 1979-80 session of Congress saw similar bills introduced and fail, despite the
personal endorsement of then President Jimmy Carter. The growing backlash of
conservatism evident in the 1980's made passing domestic violence bills even more difficult
than before.
Lawsuits
Class action lawsuits brought on behalf of battered women against police
departments were strong motivators of changes in policies and procedures of extremely
reluctant law enforcement agencies. These lawsuits raised public awareness, publicized
institutional forms of injustice, led to changes in state laws and set precedents for police
response all across the country.
36


In December 1976, the case of Bruno v. Codd was filed against the New York City
Police Department. The Litigation Coalition for Battered Women filed the case on behalf of
twelve women who had called police when physically attacked by their partner and received
no response. One of the plaintiffs told of one occasion where the police witnessed her
husband attempting to strangle her and still would not arrest him. The New York City Police
and courts were charged with gross failure to comply with New York State laws.
On June 26,1978, almost two years after this case was filed, the New York City
Police Department settled out of court, not admitting guilt but agreeing to change their
procedures. They would now arrest men who commit felonious assaults, misdemeanors,
violations of family court protection orders, send officers to every call from a battered woman,
assist women in receiving medical help and pursue men who had left the scene of an
assault. ,
A similar case against the Oakland Police Department, Scott v. Hart was also settled
out of court under similar stipulations. These two cases stimulated change in police
departments across the country. Lawyers in the Bruno case stated,
The impact of the police agreement is being felt all across the
country. Police departments in Chicago and New Haven when
threatened with lawsuits modeled after Bruno, agreed to adopt
policies similar to those achieved in New York (Dobash & Dobash,
1992, p.166).
Another lawsuit in 1977, had an impact on how battered women were treated under
the law. In State v. Wanrow, the Supreme Court of Washington held that a woman
defendant's right to equal protection under the law in a murder trial was violated by
instructions that require a woman's conduct be measured against that of a reasonable man
finding himself in the same situation. This was a landmark decision that acknowledged that
the use of commensurate force and the perception of imminent violence might be different
for a woman. The court found that a woman defendant is entitled to have the jury consider
her actions under this "reasonable woman" standard. Martin (1981, p.271) writes, "The
battered wife, who lives with persistent and cumulative terror may act more quickly and take
harsher measure in protecting her life and bodily safety." This ruling was especially helpful to
battered women accused of murdering their abusive husbands.
The Law Enforcement and Administration Initiatives (LEAA1
The Law Enforcement Assistance and Administration Initiatives (LEAA) was
established by Congress in 1968, as a funding branch of the U.S. Department of Justice. It's
goal was to centralize and professionalize the widely dispersed and unevenly developed local
criminal justice systems throughout the country. It provided community groups working with
victims, such as battered women's groups, with a specific organization for introducing
innovative and experimental policies and practices into local criminal justice systems.
Dobash and Dobash (1992, p.177) explain LEAA's function as,
Congress mandated LEAA to focus on the role of the Criminal
Justice System in preventing and controlling violent and abusive
37


behavior in the home using a comprehensive approach including
social service agencies and community based groups.
The LEAA was oriented towards improving the efficiency of the criminal justice
system and supporting victims as a means to secure more effective witness participation in
order to increase rates of prosecution and conviction. Since many victims/witnesses in
domestic violence cases were reluctant to press charges or testify, offering them extra
support might be the factor, which encouraged them to follow through with the case. By
1979, the LEAA had established about two hundred and twenty victim/witness assistance
programs, mostly located in prosecution offices (Dobash & Dobash, 1992, p.176). Most
money was given by the LEAA to the states, which then distributed it to local governments
and organizations (Pleck, 1987, p.194).
In 1977, the LEAA established a Family Violence Program as part of the
Victim/Assistance Program. Through matching grants, local governments were to improve
their criminal justice responses to victims and witnesses, paying special attention to victims
of the "sensitive crimes," of rape, domestic violence, and child abuse, which were seldom
reported and difficult to prosecute. These local programs were encourage to use a
comprehensive approach to domestic violence involving public, private, and grassroots
organizations. Dobash and Dobash (1992, p.176) write,
LEAA programs provided one important means for feminist lawyers
and activists within the movement to gain entry into an often reluc-
tant justice system as a means of implementing new laws, policies,
and practices.
Through the late 1970s, the LEAA Family Violence Program supported twenty-eight
local projects, two grants to major medical centers working on the sexual abuse of children,
and three national level projects: 1 .)Police Executive Research Forum which examined the
police role in domestic violence, 2.)American Home Economic Association which developed
family violence educational information focusing on prevention, 3.)The Center for Women's
Policy Studies, which provided technical assistance to family violence programs and created
a national newsletter- RESPONSE.
Pleck points out some of the criticisms of the LEAA. She argues that the LEAA
preferred to support shelters run by the Salvation Army or United Fund rather than feminist
sponsored shelters (Pleck, 1987, p.194). She also writes that the LEAA was more
concerned with supporting the criminal justice departments rather than the victims, often
saving resources by discouraging victims from bringing a complaint and sending batterers to
counseling rather than into court (Pleck, 1987, p.194). Dobash and Dobash also write about
the LEAA's attempts to reduce costs but don't necessarily view it as a criticism. They write
that,
Police courts could not handle the volume of crime they were
encountering, prosecutors could not process all of their cases,
and it was impossible to clear out court calendars. One answer
to this backlog was to keep some of the offenders out of the crim-
inal justice process by diverting them out of the system at an early
stage. Crisis intervention and diversion were techniques for achiev-
ing this goal. Diversion was not seen as a failure of police work but
38


as a means of improving it by eliminating those cases seen as less
serious (Dobash & Dobash, 1992, p.176).
The LEAA closed in 1981, and was replaced by the National Institute of Justice (NIJ).
Dobash and Dobash (1992, p.205) write that despite any criticism, "the legacy of the LEAA
supported initiatives and the work of the NIJ cannot be underestimated."
Criminal Justice Reform
Using lawsuits and research reports as an impetus, activists pushed for innovative
reform throughout the criminal justice system. The initial period of reform lasted from 1976
to the early 1980's, with much pressure being plaqed on law enforcement by feminist groups.
Buzawa and Buzawa (1992, p.ix) point out that the Feminist Movement not only advocated
for changes in specific procedures but challenged the entire ideology underlying the criminal
justice establishment, which was based on a male dominated patriarchal command structure
and reinforced the patriarchal hierarchy of Western Society through actions and inactions
that support violence that "puts women in their place."
One major focus of reform was the improvement of protection orders. The 1976
Pennsylvania Protection From Abuse Act served as one of the first model forms of
legislation. This act defined abuse as, "bodily injury, serious bodily injury, fear of serious
bodily injury, and sexual abuse of minor children," (Dobash & Dobash, 1992, p.167). It also
provided protection for cohabitants not just married couples. Changes made to overcome
past ineffective enforcement and delay to the victim include: allowing justices to act when the
court is closed, immediately notifying police of the issuance of an injunction, permitting
emergency injunctions prior to a full hearing which must be held within ten days of the
issuance of the order, and abuse needs to be proven based on a preponderance of the
evidence, rather than beyond a reasonable doubt. The forms of relief offered by a protective
order could include consent agreements directed at the cessation of violence, granting
possession of the residence to the victim and/or excluding the perpetrator and decisions
regarding custody and visitation rights pertaining to children. Breaking the provisions of a
protective order could result in arrest, fines and/or jail time (Dobash & Dobash, 1990, p.168).
Other reforms within the criminal justice system included new arrest policies
including mandatory arrest and greater assistance to victims by police and courts. Mandated
training of law enforcement personnel attempted to change the attitudes as well as actions of
members of the criminal justice system. Although most developments were not always
welcome by law enforcement agencies ,by the end of the 1970's, there were signs that some
members of the police establishment were beginning to treat domestic violence as a serious
problem (Dobash, 1992, p.170).
An Office of Domestic Violence was created by the Carter Administration in the
Department of Health and Human Services. It offered regional and technical assistance to
service programs to assist providers in solving funding and operational problems. This office
was short lived as Reagan came into power in the 1980's and disbanded it. But another
agency, the National Clearinghouse on Domestic Violence was set up to disseminate
information on issues affecting programs giving aid to victims of domestic violence and is still
active today.
39


The 1960's and 1970's were conducive to new programs against domestic violence
due to the overall atmosphere of social reform. The belief that the government should
protect minority rights was evident in the Civil Rights Movement and the rebirth of the
Women's Movement. The growth of women's education and employment also lead to
greater involvement and activism in social issues. The increasing number of professional
women in government and the criminal justice system lead to greater attention being paid to
the issue of domestic violence. Pressure by victims themselves played a major role in
getting domestic violence taken seriously as a social issue.
During the 1970's feminist researchers began to formulate an explanation for the
causes of domestic violence. Dobash and Dobash provided the major feminist analysis of
domestic violence in 1979, arguing that marriage was an institution based on the
subordination of women and wife beating was an extension of male domination and control;
the patriarchal family allowed violence against wives and children as long as it did not go too
far; communities, social institutions and police tolerated domestic violence; domestic violence
was normal not pathological, the husband was merely living up to cultural expectations to be
beat a provocative wife (Pleck, 1987, p.192). Other feminists such as Martin, attributed
domestic violence to a husband's belief that his wife was his property (Pleck, 1987, p.193).
Although there were those that criticized these views, the political climate of the 1970's
allowed them to enjoy much greater mainstream acceptance than in the past.
The 1970's was also a decade of increasing criminal justice measures, including
more police and prisons as well as more community forms of policing and sanctioning. This
atmosphere lead to domestic violence entering the realm of public policy as a law and order
issue resulting in the enactment of many criminal justice policies invoking broader practices
to deal with battered woman. Dobash and Dobash (1992, p.175) write, "in an era with a
strong progressive ethos, expansion and alteration of criminal justice was construed as an
attempt to create and distribute improved services and improved justice to offenders and
victims alike."
40


CHAPTER SEVEN
LAW AND ORDER RESPONSES (1980'S)
The pressure from political action groups, research, and policy prescriptions that
took place in the 1970's, cleared the pathway for a period of reform and experimentation
regarding the issue of domestic violence in the 1980's. Feminist groups continued to put
pressure on federal, local, and state governments to strengthen policies and allocate funds
for programs serving battered women. The strong belief in psychoanalysis as the cure to all
women's problems had faded and the myth of theJiappy family as well as many stereotypical
attitudes regarding women's place in society had been shattered. Domestic violence was
finally beginning to be taken seriously as a social issue in its own right.
But also at this time, partially in response to the strides made by women, there was a
growing conservatism sweeping the country. Dobash and Dobash (1992, p.139) explain that
this included,
a criticism of state provisions of social services in favor of the market
economy and monetaristic social policy under laissez-faire capitalism;
a move to a neo-liberal form of state; a revival of fundamentalist religious
thinking and vigorous attempts to introduce this into political decision
making and a growing backlash against the notion of equal opportunities
and the women's movement.
Conservatives were afraid because marriage and family relations were going through
major changes and once again feminism and anything associated with it was being charged
with attempting to break up the family. The "New Right" was an especially strong force
working in opposition to the women's movement. This group was made up of a coalition of
conservative fundamentalist Protestant ministers, born-again Christians, anti-abortion
Catholics, Mormons, and Orthodox Jews, who came together originally in the early 1970's in
opposition to Roe v. Wade (Pleck, 1987, p. 196). This group became even stronger in the
1980's, with rhetoric about the.breakdown of the U.S. family and their support of households
where men worked and supported the family while women stayed at home. They argued that
"privacy" protected the family from outside intervention and hoped to restore the family as an
institution outside of the public realm. Domestic violence and any legislation concerning it,
was identified with feminism, which to the New Right meant an attack on motherhood, the
family, and Christian values.
Despite the Conservatism of the 1980's, made all the more powerful with the election
of conservative president Ronald Reagan, the women's movement did achieve many
successes.
41


The Criminal Justice System
In the 1980's domestic violenqe became a law and order issue as the criminal justice
system became the main focus of change, emphasizing the use of law enforcement in
solving social problems through punishment and the fear of such punishment as a deterrent.
Activists and policy makers worked to change the manner in which the police, prosecutors
and judges dealt with cases of domestic violence.
In the past primary attention was placed on violent crimes committed by strangers.
Police and the courts had traditionally viewed domestic violence as a "domestic incident" that
should be dealt with within the privacy of the family without outside criminal justice
intervention. Police would often refuse to even respond to domestic violence calls and when
they did, failed to arrest violent offenders or mediate between parties. Dobash and Dobash
(1992, p.164) argue that, "police have an aversion to mediation in a man-woman conflict as
well as to interaction with a lone woman."
Prosecutors have been reported to be unresponsive to domestic violence cases,
unwilling to prosecute or take them seriously at all. Battered women are often unaware of
how the judicial process works and lack of guidance and support from police, prosecutors
and judges makes it even more confusing and frightening.
Research, lawsuits, and grassroots activism during this decade forced the criminal
justice system to take violence within the family seriously, including a growth in legal
responses to domestic violence and an increase in incarceration for perpetrators. Mandatory
arrest policies and no-drop policies (a victim cannot withdraw charges once the prosecution
process is under way) are two of the main ways that state laws and department policies were
altered. By 1987, thirty states had altered their laws to allow misdemeanor arrests based on
probable cause, six states statutorily mandated arrest for domestic violence assaults, seven
mandated arrest for violation of a restraining order, and many cities had also adopted
presumptive or mandatory arrest policies (Hilton, 1993, p.98). In 1983, only seventeen states
provided protection orders but by 1990, forty-eight states had enacted or revamped
injunctions (Dobash and Dobash, 1992, p.168). Those advocating the use of the criminal
justice system and such policies against domestic violence argued that, "The embrace of
mandatory and presumptive arrest policies reflect a conviction that discretionary policies
result in failure to protect the victim and thus essentially condone male violence (Hilton, 1993,
P-98).
Although progress had been made, there was continued resistance by law
enforcement as well as frustration on the part of many battered women's activists and others
who argued that the criminal justice system did not adequately address the issue of domestic
violence and should not be the main focus of attention. N. Zoe Hilton writes in Legal
Responses to Wife Assault (1993, p.98),
the focus on police response has failed to account fully for the contextual
realities of both policing and battering and the underlying irreconcilable dif-
ferences between battered women and the law. This absence occludes the
complex inter-connections among police response, lawyers, child support
courts, family members, child protective services, women, men, and
children, and the layers of power they represent.
42


Hilton argues that the larger societal issues surrounding violence against women, including
sexism, racism, and poverty, are being overlooked when criminal justice sanctions are used
as the main response to domestic violence.
Most battered women's activists recognized the need for changes within the criminal
justice system. As lawyer Jessica Goldman (Bruno, 1994, p.81) states, "Arrest and
punishment send a valuable message: battering is against the law and perpetrators will be
punished." But activists also acknowledged that real change needed to take place in the
male dominated patriarchal command structures inherent in society, including the criminal
justice system. The battered women's movement hoped to challenge the prime tenet of the
underlying ideology of the criminal justice system,which as explained by Buzawa and Buzawa
(1992, p.ix) is to, "reinforce the patriarchal hierarchy of western society- even by inaction,
condoning violence that puts women in their place."
Although the criminal justice system is an important and necessary component of
policy it does not always address the broader issues. Jeffrey Fagan writes in "Contributions
of Research to Criminal Justice Policy on Wife Assault," (Besharov, 1990, p.72) "The
emphasis on sanction of offenders through arrests and prosecution places a greater
premium on individual explanations than on other sources of explanation." During the 1980's
most funding and support for domestic violence was directed towards agencies involved with
criminal justice. Much of this was due to the power of the New Right which would support
tough measures on crime but refused to support other approaches that went against what
they believed to be "tradition."
By adhering to the law and order view of domestic violence, policy makers enacted
some positive reforms but failed to take into account the whole picture. But changes in the
criminal justice system had wide reaching effects as no other societal institution as the
criminal justice system's power and ability to protect victims and force batterers to face the
consequences of their actions (Bruno, 1994, p.83).
Mandatory Arrest
One area in which activists have been very successful in changing law enforcement
policy towards domestic violence has been that of implementing mandatory arrest polices.
Although these policies vary widely in extent and in their form of implementation, they work to
classify domestic violence as a crime as well as to ensure that some form of action is taken
by law enforcement. Past research shows that police did not arrest men who battered their
wives even when the victims were in serious danger or asked officers to arrest (Ferraro,
1989, p.61). In fact early findings revealed that the closer the relationship between the victim
and the batterer, the less likely police were to arrest.
Law enforcement's reasoning for their non-response included their beliefs that: a
man's home is his castle, some cultures accept wife battering, arresting the man will harm
the family economically, marital problems are private matters, and domestic violence cases
are a waste of time and money. The reluctance of the police to invade the "sanctity of the
family" had kept them from dealing effectively with domestic violence. This traditional
approach often kept women trapped in abusive relationships. Bruno argues in Violence
Against Women (1994, p.92) that all of the justifications used to absolve police of
43


responsibility for domestic violence cases can be seen as unjustifiable neglect; the lives of
victims of domestic violence should not be sacrificed for the convenience of the legal system.
The battered women's movement fought to force law enforcement to change their
policies and take an active role in stopping domestic violence. Civil suits, legislation, and
policy initiatives were used to challenge police inaction. Five major reasons were given for
advocating mandatory arrest policies: 1.) control police behavior, 2.) immediate protection
from current violence, 3.) reduce overall incidence of domestic violence both directly and by
sending a clear message that it is unacceptable, 4.) making battering the only crime in which
police discretion is removed acknowledges a special social interest in redressing the legacy
of discriminatory treatment of women by law enforcement, 5.) a "re-distributive function" in
that police service has been hoarded by others and now should be available to women on an
egalitarian basis (Stark.1993, p. 661). ,
Police calls for domestic violence are greater than that for murder, rape, and all other
forms of aggravated assault (Bruno, 1994, p.84). The intent of mandatory arrest policies is to
treat domestic violence as a crime and give the officer a standard procedure to follow in
these types of cases. Officers are supposed to arrest batterers regardless of other
characteristics of the situation or people involved. This can counteract officer's backgrounds
and ideological beliefs about battered women, privacy, gender roles, etc., by giving them a
set policy to follow.
Previously officers could not arrest for misdemeanor assaults between unmarried
people unless the assault was observed by an officer, an arrest warrant had been issued, or
a citizen signed a complaint. Changes were made for domestic violence cases because
most assaults against significant others occur in private settings and fall in the misdemeanor
category. Without expanded arrest powers, police could not arrest batterers unless the
assault is felonious or witnessed by the officer.
Much research and many court cases that took place in the 1980's were used to
support mandatory arrest policies. The Minneapolis Experiment found that arrest was the
best response by police in domestic violence situations, while a Justice Department report in
1986 stated that women who report violence in the home to police substantially reduce their
risk of being abused again. Court cases such as Thurman v. Torrington, were successful in
holding individual police officers, their departments, and even prosecutors accountable for
their failure to protect the rights of victims of domestic violence. The courts have tended to
agree that certain law enforcement policies such as mediation or avoidance of arrest, do not
provide victims of domestic violence with the same protection given to victims who do not
know or live with their attackers.
Minneapolis Experiment
The Minneapolis Experiment was widely used by policy makers and activists to
support changes in the criminal justice system, specifically in support of mandatory arrest
policies. The study was conducted by Lawrence Sherman and Richard Berk and funded by
the National Institute of Justice. The results were published in a series of articles in the
American Sociological Review" beginning in 1983.
44


Sherman and Berk compared the results of three police responses to domestic
violence calls: 1.) arrest 2.)separation of the couple/ offender leaving the scene 3.) advice/
informal mediation. The responses were used in random order with a six month follow up of
official and victim reports of renewed violence (Dobash and Dobash, 1992, p.xiii). The
findings suggested that arrest was significantly superior in deterring future violence relative to
the other two interventions (Hilton, 1993, p.97). Specifically, during the six month follow up
period, women experienced at least one subsequent assault in only 19% of the cases where
the perpetrator was arrested and detained compared to 34% of cases where the offender
was removed and 37% of cases where police offered advice or mediation (Dobash, 1992,
p.200).
Although this study was done on a relatively small scale, it received widespread
attention in academic and police journals as well gs in the mainstream media. Arnold Binder
and James Meeker in, "The Development of Attitudes Towards Spousal Abuse," (Buzawa,
1992, p.129) even refer to the publicity as, "an informational barrage similar to a process
referred to as propaganda in other contexts." The researchers, Lawrence and Berk, pushed
strongly to have their work publicized as did women's groups who favored pro-arrest policies.
Meeker and Binder (Buzawa, 1992, p.129) point out that, the efforts to publicize the article
were almost unprecedented for a scholarly work in the criminal justice field."
The Minneapolis Experiment has been criticized by many despite its widespread use
to change policy. Binder and Meeker (Buzawa, 1992, p.131) consider it a "pilot study" and
write of Sherman and Berk,
One may well be surprised to find a social scientist making a clarion
sales pitch that may effect many lives profoundly when his or her
research produces definitive results that may properly be generalized
to the population in question, but it becomes downright alarming when
important, alternative, plausible hypotheses have not been handled
adequately, when there is almost no knowledge about side effects and
when there is very little generalizability.
The main problems that Buzawa and Buzawa (1992, p.131) find with the study
include: 1 .)Mediation and separation are weak alternatives, 2.)There is no consideration
given to the side effects of arrest on children in the household, employment discrimination,
long-range marital contentment, costs to law enforcement, system capacity, or numerous
other factors, 3.)There were so many factors unique to the Minnesota setting that the study
cannot be generalized to other cities. The Buzawa's (1992, p.133) remind us that, "It must
be emphasized that some scholars have raised serious questions about the design, the
procedures as executed, the statistical analyses, and the broad conclusion of the study."
Following the vast attention received by the Minneapolis Experiment, the National
Institute of Justice funded six replication studies in Atlanta, Georgia, Omaha, Nebraska,
Charlotte, North Carolina, Colorado Springs, Colorado, Dade County, Florida, and
Milwaukee, Wisconsin. None found arrest to be a more effective deterrent than other police
responses (Roberts, 1996, p.90). Albert R. Roberts in Helping Battered Women (1996, p.90)
reports three reasons why: 1 .)The majority of batterers in these studies had prior criminal
records- therefore arrest is neither innovative or unexpected by the lawbreaker. 2. )Violence
was a chronic and common problem among study samples rather than a first time
45


occurrence- therefore it is unrealistic to expect a short-term arrest to have much impact on a
long-term chronically violent relationship. 3. )There was a wide variation among studies in
the amount of time in custody. Roberts (1996, p.90) concludes from these replication studies
that, "arrest alone without formal sanctions of incarceration and fines does not constitute a
strong enough societal stigma among persons with previous arrest histories." But Richard
Berk (Roberts, 1996, p.115), from the Minneapolis Experiment, wrote in his analysis of the
replication studies, "If on legal or ethical grounds arrest is the preferred response, one is not
depriving the community of a superior criminal justice intervention. Put another way, one can
do no better than arresting the offender." These replication studies did not receive close to
the amount of attention achieved by the original study in Minneapolis.
Another criticism of the Minneapolis study and its replications stems from their lack
of attention to the compounding effects of prosecution following arrest. Studies show that
prosecution rarely takes place in domestic violence cases, even after an arrest is made.
Sherman and Berk (Hilton, 1993, p.129) report that in the Minneapolis study only three of the
136 suspects arrested were subsequently fined or incarcerated. In the Milwaukee replication
only 5% of arrestees had charges filed against them; in Charlotte 35% were actually
prosecuted; while in Omaha 64% of arrested suspects were sentenced to fines, probation,
jail or some combination of these (Hilton, 1993, p.130).
There have been other studies that support more vigorous criminal justice
intervention, though not necessarily mandatory arrest policies. Dobash and Dobash (1992,
p.201) offer an analysis of a National Crime Survey with data collected from 1978-1982 that
demonstrates the effectiveness of police intervention. The study compared women who
contacted police after a domestic violence assault and those who did not. The results
revealed that when the police were called it resulted in 62% fewer subsequent assaults. The
Dobashes (1992, p.201) point out that this study also does not take into account prosecution.
The results of the many studies done on pro-arrest policies have differed greatly. It
cannot be known whether contacting the police and arrest on their own acted as the
deterrent to future violence or if other factors such as prosecution and the actions of the
women victims themselves also played a role. But following the widespread publicity of the
Minneapolis Experiment, a policy favoring law enforcement intervention and specifically
arrest became standard among policy makers. The results of a study about 'the harmful
effects of arrest on domestic violence cases would be useful.
Thurman v. Torrinaton
The case of Thurman v. Torrington was another boost for mandatory arrest policies.
On June 25,1985, in a landmark decision, a federal court found the City of Torrington,
Connecticut and twenty-four of its police officers guilty of violating the constitutional rights of
a domestic violence victim by providing her less protection than victims in cases not involving
domestic violence. Earlier cases had also supported equal protection, but the amount of
money awarded in this case drew great attention. Tracey Thurman was awarded 2.3 million
dollars (later reduced to 1.9 million) and her son was awarded an additional 300,000 dollars
for emotional suffering.
Over a period of eight months, Tracey Thurman survived persistent assaults by her
husband, repeatedly notifying the police that he was making threats on her life. The couple
46


separated after Thurman's husband was convicted for "breach of peace" after an assault on
her. Thurman obtained a court order of protection forbidding her husband to assault or
threaten her. Despite the order of protection her husband continued to beat and threaten her
and the police failed to respond to her requests for help. On one occasion, the police officers
sat outside of her house as she was attacked, suffering a broken neck, leaving her paralyzed
(Dobash, 1992, p.198).
The attacks culminated in a brutal stabbing incident. Following this, she sued the
City of Torrington under the Equal Protection Clause of the Fourteenth Amendment, alleging
that the city was responsible for the permanent injuries she had received.
The jury found that the police department was negligent in their handling of
Thurman's complaints. They also found that the department actually had an unwritten policy
of non-enforcement of the law in domestic violence cases, providing less protection to victims
of violence in the home than to other victims. Such disparate treatment created two unequal
classes: one composed of women and children assaulted by a man with whom they share a
family or household and a second composed of persons assaulted by someone with whom
they have no such relationship. The court declared this a "discriminatory administrative"
policy.
The court also ruled that once a police department or other municipal agency enters
into a "special relationship" with a victim based on their specific knowledge of danger,
through, for example a restraining order and/ or sustained police contact, they are legally
liable for subsequent injuries if they fail to respond to calls for help.
The Thurman case can be seen as an example of the power of legal action. Marjory
Fields, Chair of New York's Domestic Violence Commission and Judge of the Family Court of
the State of New York (Dobash, 1992, p.198) said of the effects of Thurman, "local
governments may be held liable for the injuries resulting from a single incident when the
violation of constitutional rights is shown to be caused by official policy, accepted practice,
inadequate training, or negligent supervision."
This case prompted many police departments to enact mandatory arrest policies, to
ensure they reacted properly to domestic violence cases and avoided lawsuits. Buzawa and
Buzawa (1992, p.159) point out that the amount of money involved in the Thurman case was
a great impetus to force police departments to change: in 1984, following the Minneapolis
Experiment 10% of the nation's police organizations had mandatory arrest policies in
domestic violence cases- about the same as it had been for the past five years, but after the
Thurman decision it increased dramatically to 31% nationally.
Criticism of Mandatory Arrest
Although mandatory arrest policies were enacted throughout the United States
during the 1980's, there are still those who argue strongly against them. Some criticism
concerns the effects on victims of domestic violence. Jaffe et al (1986, p.39) write in "The
Impact of Police Charges in Incidents of Wife Abuse, that victims may hesitate to call for
police protection because they don't want their partners to be arrested or they are afraid that
criminal justice intervention will act as a trigger to make the abusive behavior worse. Hilton
(1993, p. 4) argues that mandatory arrest, "may be perceived by women as further dis-
47


empowerment if they have been under control of their violent partners prior to police
intervention." Another decision about the woman's life has been made without asking her
what she wants.
Another unintended negative effect of mandatory arrest on women victims is that
they are often arrested instead of or as well as the perpetrator. If the woman has used
minimal forms of violence in the process of being attacked or even more force while
attempting to defend herself, this is a technical violation of the law and responding police
officers will often arrest her. Dobash and Dobash (1992, p. 199) write, "indiscriminate and
over enforcement of mandatory arrest laws has been used by police officers to express their
rejection of the law and to protest the loss of their discretion in family violence cases. Their
actions are also aimed at convincing those who created these laws that they are
inappropriate and ill-founded." ,
Supporters of pro-arrest policies argue that proper training can help to avoid these
pitfalls. Training should include: the intent of the law, legal clarification emphasizing that
arrest should be for a predominance of violence associated with the primary agressor, victim
and aggressor should be spoken with separately to determine the nature of the violence, and
a woman responding in self defense should not be arrested (Dobash, 1992, p.199).
Another argument against police intervention and arrest in domestic disputes is the
belief that it is particularly dangerous for police officers. It has often been cited as the single
most frequent cause of police deaths (Hilton, 1993, p.65). A 1986 National Institute of
Justice research brief refuted this. FBI statistics from 1982 and the preceding ten years
show that domestic disturbances accounted for only 5.7% of police deaths, lower than deaths
due to burglary, traffic and robbery incidents, and other disturbances (Hilton, 1993, p. 65).
Many police officers were afraid of their liability in false arrest suits under the
mandatory arrest policies. But this has also been proven to be a non-concern. Project
Safeguard (1987, p.1) reports that, "mandatory arrest of porpetrators of domestic violence
poses no additional risk of false arrest suits against individual officers and minimal risk to
local governments." Thomas J. Flanagan, Commanding Officer of the Legal Bureau of the
New York City Police Department (Project Safeguard, 1987, p. 1) states, "Liability in
domestic violence litigation is victim generated. As long as an officer's conduct is within
department guidelines, the officer will not be subject to personal liability."
Others argue that mandatory arrest simply is not effective, mainly pointing to the
replication studies as evidence. In particular the study in Milwaukee which concluded that
arrest may actually escalate the violence of socially marginalized batterers (Roberts, 1996,
P-115).
Despite its detractors and some obvious flaws, mandatory arrest has had some
positive effects on curbing the effects of domestic violence. It works to convey society's
disapproval of this violent crime, and provides women with their equal rights under the law as
well as sending them the message that they are not responsible for the battering and there is
a way out. But arrest needs to be part of a larger response system. A National Institute of
Justice (Hilton,1994, p.4) study states, "Arresting wife assaulters can be effective if and only
if it is part of a system that assesses the offender's risks and needs and provides suitable
treatment as required. Instead of seeking support for arrest or any single intervention, we
48


should now be establishing cooperation between police, courts, treatment programs, and
battered women services to provide effective response to wife assault."
U.S. Attorney General's Task Force on Family Violence
The U.S. Attorney General's Task Force on Family Violence in 1984, was the first
official federal investigation into the issue. The vast array of data presented included
testimony from social science experts, medical and social service professionals, battered
women advocates, and battered women, as well as the results of the Minneapolis
Experiment. The task force found that woman abuse was the major cause of physical injury
to women in the United States and nearly one-third of female homicide victims are killed by a
husband or boyfriend (Buzawa, 1992,144). ,
The task force decided to take a control and criminal justice approach,
recommending that family violence be treated as a criminal activity (Hilton, 1993, p.7). The
final report offered four specific recommendations:
1 .)Organize special units to process family violence cases and whenever
possible use vertical prosecution.
2. )Victim should not be required to sign a formal complaint against the
abuser before the prosecutor files charges unless mandated by state
laws.
3. )Whenever possible prosecutors should not require family violence
victims to testify at a preliminary hearing.
4. ) If the defendant does not remain in custody, when it is consistent with the
needs of the victim, the prosecutor should request the judge to issue an
order restricting the defendant's access to the victim as a condition of
setting bail or releasing the assailant on his own recognizance. If this
condition is violated swift and sure enforcement of the order and
revocation of release are required (Hilton, 1993, p.148).
The task force's recommendations confirm its belief in the crime/law enforcement
approach to domestic violence. They also support the protective function of the prosecution
by working not only to stop immediate violence but also to protect victims from continuing
violence. The final report (Hilton, 1993, p.149) stated that, "each of these recommendations
affirms the state's interests in controlling violence, first by organizing prosecutorial activities
to ensure an effective response to complaints and then by relieving a victim of the
appearance that she is the sole bearer of the charges against her assailant."
Legislation
The Mikulski Bill, first introduced in Chapter Six, originally introduced in the late
1970's continued to be introduced each year but was continually defeated. In 1980, the
opposition to this legislation was lead by two Conservative Republican Senators, Orrin Hatch
49


of Utah and S.l. Hayakawa of California. Most of their support in Congress came from
Republicans and Southern Democrats (Pleck, 1987, p.196). New Right groups across the
country also worked hard to defeat this legislation.
The Moral Majority organized a campaign in all fifty states to inundate senators with
phone calls and telegrams opposing the domestic violence legislation. They also spread
many falsehoods regarding the bill which led to senators receiving letters that claimed that
parents would no longer be able to spank their children and that battered women shelters
made women promise to divorce their husbands before they could enter a shelter (Pleck,
1987, p.197). As Congress drew to a close before the 1980 Presidential election, supporters
of the Mikulski Bill, threatened by a filibuster, decided not to bring it up for a final vote.
Ronald Reagan was elected in November,of 1980, and was very unsupportive of any
federal funding for social issues. Right after he took office in 1981, he closed down the
Office of Domestic Violence which had been created by President Jimmy Carter in 1979.
In the 1983-84 session of Congress, a new approach was taken by the supporters of
domestic violence legislation. Still based on the same philosophy, the Mikulski Bill was
condensed, converted into an amendment and attached to the Child Abuse Prevention and
Treatment Act which was up for renewal after passing easily in 1978. The amendment was
to provide individual states with 65 million dollars over three years for prevention and
services for victims and 27 million dollars each year for police training (Dobash, 1992, p.140).
The House voted 367-31 in favor of the Child Abuse Act but not before radically
transforming the domestic violence amendment to something barely resembling what its
supporters had intended. The Dobashes (1992, p.140) point out the major changes: 1 .)The
emphasis was mainly placed on prevention, with shelters not viewed as preventative, 2.)The
types of organizations eligible for funding was expanded to include religious, charity,
volunteer, drug and alcohol programs and self-help counseling groups, 3.)lt mandated that
shelters do not require a maximum stay, censor mail or telephone calls, or interfere with
reconciliation efforts unless requested to do so (This implies that coercion is used,
perpetuating the negative stereotype of feminists kidnapping wives away from their
husbands) 4.)A definition of the family was used that disqualified co-habitants not legally
married, 5.)Each state was required to provide an eviction procedure for abusers sharing a
residence, 6.)A definition of "related assistance" which may include food, clothing, child care,
counseling, alcohol and drug treatment, and self help treatment to abusers, victims, and
dependents. These new provisions could mean a reduction in the amount available for
grassroots organizations, as well as a transformation of philosophy, policy, and practices.
The battered women's movement which had worked so hard for years to pass the Mikulski
Bill, might be largely excluded from the benefits under the revised amendment.
Pro-life groups also added on an amendment proposing to protect disabled children.
It was influenced by a case in Indiana where the parents of a severely deformed and mentally
retarded baby girl refused to have surgery to prolong her life (Pleck, 1987, p.198).
The bill passed through Congress and although Reagan opposed domestic violence
funding he was a pro-life supporter and signed the Child Abuse Prevention and Treatment
Act, including the Family Violence Prevention and Services Amendment into law in October
of 1984. Besides the specific revisions made in the House, the amount of money
50


appropriated had been greatly reduced to 8.3 million dollars for 1985 and 1986, and 8.5
million dollars each for 1987 and 1988 (Dobash, 1992, p.141).
Although this law addressed the issue of domestic violence with federal funds, it was
achieved not explicitly for women but attached to the more acceptable and popular issue of
child abuse. The real issues such as the violence itself, issues of male domination, power
and control, and men's ultimate responsibility for their behavior ere still left unaddressed. It
was a success in some ways but limited in many others.
Legislation in individual states was more successful than on the federal level. By
1985, over 50% of the states passed statutes funding domestic violence shelters, providing
training to police departments and prosecutors, removing restrictions on warrant-less arrests
for misdemeanor domestic assaults, and developing clear policy guidelines especially
focusing on the criminal justice system (Buzawa, 1992, p.x). These statutes were often
limited only to married couples, no co-habitants.
Issues of privacy, the "traditional family," and women's role in society continued to be
obstructions in the fight against domestic violence in the 1980's. The great strides made by
the women's movement in the previous decade caused a backlash of conservative views to
come to the forefront again. But Pleck (1987, p.200) argues that despite this, "the modern
coalition of social casework, feminism, and law and order proved to be more successful than
any preceding effort. During the 1980's, hundreds of shelters opened, state and federal
funding was secured and new state and federal laws were passed. The Dobashes (1992,
p.145) write, "It is a monument to energy, hard work, increasing political sophistication,
alliance building, and tactics that legislation of any type has been passed within the
conservative agenda of laissez-faire social policies of the 1980's."
51


CHAPTER EIGHT
FOCUS ON VICTIMS (1980'S)
Law and order policies towards domestic violence continued into the 1990s, but a
new focus on the victim also emerged. The election of democratic president Bill Clinton in
1992, lead to new support for issues regarding violence against women. Although Congress
became controlled by a republican majority, many of whom adhered to a New Right and
fundamentalist Christian view of women, the strong anti-crime atmosphere of the 1990s
aided battered women activists in passing anti-violence legislation. Domestic violence also
became a household word through national and state-wide media campaigns to raise
awareness of the issue, as well as through the trial of the century" involving O.J. Simpson,
which kept the publics attention for years.
The criminal justice system remained a major focus in the struggle against domestic
violence. Legislation mandating the training of police personnel on domestic violence issues
was passed throughout the country. Greater assistance was to be given to victims including
the requirement that officers obtain medical treatment for victims and advise them of their
rights, carry and dispense cards providing women with information about possible resources
for gaining assistance and telephone numbers of hotlines, shelters, and social services
(Dobash, 1992, p.169). Law enforcement training also included familiarizing personnel with
current laws such as pro-arrest policies and restraining orders and how best to implement
them.
Beginning in fiscal year 1991, the Federal Office for Victims of Crime in the U.S.
Department of Justice began funding and providing technical assistance to state police
training academies with the purpose of developing and implementing training programs for
state and county law enforcement administrators and officers on the current policies and
procedures for responding to domestic violence incidents (Roberts, 1996, p.89). Each year
a different group of eight to ten states receives a two-year federal training grant to develop
family training courses and related materials.
There has also been a wide focus on the response of prosecutors and judges
throughout this decade. Courts have been influenced through legislation and trainings to
treat domestic violence cases seriously by following through on cases, having sentences
reflect the seriousness of the crime, issuing restraining orders, and taking into account
issues such as child custody and treatment for batterers.
In 1990, several statewide judicial conferences focused on family violence issues
and policies. The National Council of Family and Juvenile Court Judges initiated two
demonstration projects. One was funded by the Department of Justice and concentrated on
improving family court practices with abused women through technical assistance. The other
52


was funded by the Conrad Hilton Foundation and developed training materials for court
personnel such as judges, DA's, and probation officers (Roberts, 1996, p. 98).
In addition to the criminal justice system, the 1990s has produced many community-
wide intervention programs. These often revolve around a city / community wide task force
to provide a well -coordinated response to domestic violence including the police, courts,
victims / witness assistance, social services agencies, mental health, etc. This provides
resources to battered women to address the many intertwining facets of domestic violence.
Many different agencies or committees within these agencies now offer services to battered
women. *
In the early 1990s, there were more than 1250 battered women shelters in the U.S.,
and crisis-oriented services for battered women were provided at thousands of local hospital
emergency rooms, hospital- based trauma centers, community mental health centers, and
pastoral counseling services (Roberts, 1996, p. 10). Many states had enacted special
legislation providing funding for hotlines and shelters. Every state and major metropolitan
area in the country had some sort of crisis-intervention services for battered women and their
children (Roberts, 1996, p.10).
The crisis-intervention services primary focus was to ensure the safety of women
and their children, but throughout the 1990s, following the community-wide approach, they
evolved into much more, providing services such as: twenty-four hour hotlines, safe and
secure emergency shelter, a network of volunteers, welfare and court advocacy, peer
counseling and support groups, information on women's legal rights, referrals to social
service agencies, parenting classes, employment counseling and job placement, housing
assistance, and counseling and referrals for children and batterers.
Funding for most of these programs also increased during the 1990s. A new
amendment to the 1984 Family Violence Prevention and Services Act increased federal
funding for shelters in 1992 and 1993, and also provided funding to state coalitions in 1993
(Roberts, 1996, p. 21).
Many states enacted protective order policies addressing an array of issues from
child custody to housing. Child custody and visitation decisions often create unique problems
for battered women as they are unable to remove themselves from contact with their
batterer. Some state legislation addressed these concerns by promoting the consideration of
domestic violence by those courts charged with determining final custody arrangements.
Criminal legislation for the defense of battered women charged with a crime (such as killing
their abusive spouse) was also addressed in the 1990s.
Legislation providing for the education and training of service providers and future
service providers, especially concerning health care workers, was passed throughout the
country. In the early 1990s, the Pennsylvania Coalition Against Domestic Violence partnered
with the Family Violence Prevention Fund to establish a national public policy agenda for
reform of health care training (Roberts, 1996, p.25). The initiative was overseen by a
national advisory committee of representatives from medical institutions and battered
womens organizations. A model protocol for hospital emergency departments and a training
53


program for health care workers was developed. A media campaign to raise awareness of
domestic violence as a health priority was also implemented.
The issue of housing as it concerns battered women has also been addressed
during the 1990s. The NCDV and the Women and Housing Task Force joined together to
work on the problems faced by many abused women looking for housing. They were
successful in having domestic violence included as a category of homelessness in the
McKinney Act, thereby creating funding for domestic violence shelters and some Section
Eight housing allotted to battered women (Roberts, 1996, p. 25).
*
In 1993, the Family Violence Prevention Fund received a grant from the Ford
Foundation to establish a plan for a multi-year national media campaign directed towards
changing societal attitudes and perceptions towards domestic violence. Consultants were
hired to conduct a national opinion poll. They convened multi-racial focus groups in six U.S.
cities to examine public attitudes and based the media campaigns on the results. Many
state-wide media campaigns were also developed during the 1990s to raise awareness and
provide resources.
In 1994, The Model Domestic Violence Code was drafted through the National
Council of Family and Juvenile Court Judges and introduced by the National Conference of
State Legislators. It has been enacted in all or in part in some jurisdictions throughout the
country. The key provisions seek to upgrade interventions into domestic violence situations
and limit the discretion of individuals within the criminal justice system to make it more
responsive to the safety needs of victims, for example mandatory arrest, mandatory no-
contact orders, restrictions on home detention, deferred prosecutions for batterers,
restrictions on plea bargaining domestic violence cases, and standards for certification of
domestic violence treatment programs.
The Violence Against Women Act of 1994
The Violence Against Women Act of 1994 (VAWA) is a major achievement for
effectively addressing the problem of violence against women. It is the first federal legislation
enacted to protect women from gender-motivated violence. An excerpt from a report by the
Senate Judiciary Committee on Violence Against Women (McCuen, 1994, p.68) reads,
Women in America suffer all of the crimes that plague the
nation muggings, car thefts, and burglaries, to name a few.
But there are also some crimes, including rape and family
violence, that disproportionately burden women. Violence
against women reflects as much a failure of our nations
collective willingness to confront the problem as it does
the failure of our nations laws and regulations. Both our
resolve and our laws must change if women are to lead
free and equal lives.
54


When the Violence Against Women Act was passed as a part of the larger Violent Crime and
Law Enforcement Act or Omnibus Crime Bill in 1994, a large step was taken to ensure
women the freedom and equality they deserve.
In 1990, Senator Joseph Biden (D-Del) first introduced the VAWA into Congress.
Biden had been speaking out against violence against women since 1980, especially
regarding date rape. He told Senate colleagues in 1990, that the VAWA would, change
attitudes and test our assumptions" (Shalit, 1993, p.12). The bill never even made it to the
floor that year.
The VAWA was reintroduced in 1991, by Biden in the Senate and Barbara Boxer in
the House. The Senate Judiciary Committee held hearings and later reported favorably on
the Act to the rest of the Senate. The House referred the Act to five committees: Judiciary,
Public Works and Transportation, Energy and Commerce, Education and Labor, and Interior
and Insular Affairs, all of which eventually reported favorably on the Act.
An unlikely coalition of activists and politicians joined together in support of the
VAWA, although womens groups initially opposed Bidens efforts. The original bill included
only stiffer jail sentences. Many womens groups feared that this was aimed only at black
males (Shalit, 1993, p.14). Womens groups were brought in to consult on the bill, resulting
in a broader response to violence against women being taken.
In 1994, the House and the Senate passed different versions of the larger Crime Bill,
both including the VAWA. The two versions were reconciled and one bill was passed into
law in September 1994. The VAWA received overwhelming support within a bi-partisan
congress, although the larger crime bill was controversial. Democratic Senator Patty Murray
(Shalit, 1993, p.12) explains, There was a strong message sent in the last election that
women and womens issues were not being addressed in Congress. That helps passage of
bills like this.
After four years of lobbying by more than 1,000 coalitions, President Clinton signed
the Omnibus Crime Bill into law on September 13,1994. In March 1995, Clinton appointed
former Iowa Attorney General Bonnie Campbell as the director of the newly established
Office on Violence Against Women in the Department of Justice. Campbell (NCADV, 1995,
p.2) describes her role as, helping the federal government combine tough no-nonsense law
enforcement with outreach programs that will help victims of crime in their fights for justice.
The VAWA sparked the interest of many lawyers and activists. The American Bar
Association focused its 1995 mid-year meeting on the VAWA. Representatives from the
NOW Legal Defense and Education Fund (NOWLDEF) described how to litigate cases under
the VAWA. The NCADV has held discussions with women as far away as New Delhi, India
specifically on the VAWA.
55


Provisions and Funding
The Violence Against Women Act is heralded by Senator Biden (Shaiit, 1993, p.12)
as, the first comprehensive approach to fighting all forms of violence against women,
combining a broad array of needed reforms. Biden alo explains that although legislation will
not eradicate violence against women, it is a first step. The VAWA is intended to respond to
both the underlying attitude that has dismissed violence against women as less serious than
other crimes and to the failure of the criminal justice system to respond to this violence.
The VAWA as part of the Omnibus Crime Bill is broken up into many sections
addressing specific issues. It begins with Subtitle A, Safe Streets for Women and Chapter
One begins by addressing federal penalties for sex crimes. This allows for stiffer penalties
for perpetrators of sex crimes, while specifically stating that repeat offenders are, punishable
by a term of imprisonment up to twice that otherwise authorized (Public Law 103-222,1994,
p.1903). This section also provides for mandatory restitution by the defendant to victims of
violence as well as for authorization for federal victims counselors.
Chapter Two provides for law enforcement and prosecution grants to reduce violent
crimes against women. Chapter Three provides grants to prevent crime and improve the
safety of women within public transportation and parks, including national parks.
Chapter Four federally mandates new evidentiary rules. The victims past sexual
behavior or alleged sexual predisposition is generally inadmissible.
Chapter Five provides assistance to victims of sexual assault including education
and prevention grants to reduce sexual assaults against women, training programs for
workers dealing with offenders, and confidentiality of communications between victims and
their counselors. It also allots grants for the education and prevention of sexual abuse of
runaway, homeless, and street youth, and victims of child abuse.
Subtitle B is entitled Safe Homes for Women." Chapter One establishes the
National Domestic Violence Hotline, an eight hundred number which can refer women to the
resources in their area, as well as providing on the spot counseling.
Chapter Two deals with interstate enforcement including interstate domestic violence
and interstate violation of a protective order. Any person who crosses a state line to commit
an act of domestic violence or forces a spouse or an intimate to cross a state line in an act of
domestic violence shall face prosecution for a federal crime. Protection orders granted in
one state must be granted full faith and credit in all other states. Before the VAWA, if a
woman obtained a protection order in one state and then moved to another to escape her
batterer, the order was not always valid in the new state. The VAWA assures that batterers
who stalk victims from one state to another do not escape prosecution by enabling city and
state prosecutors to proceed on violations of protection orders where conduct occurs outside
of their jurisdiction.
56


Chapter Two also states that a victim shall be notified if a defendant is going to be
released from jail and allowed the opportunity to be heard regarding the danger of his release
to her.
Part U offers grants to encourage arrest policies in domestic violence cases. The
law states, The purpose of this part is to encourage states, Indian tribal governments, and
units of local government to treat domestic violence as a serious violation of criminal law
(Public Law 103-222,1994, p. 1932). These grants are to be used to train workers within the
criminal justice system in pro-arrest and / or mandatory arrest policies as well as in other
areas.
Chapter Four provides grants for battered womens shelters and youth education
about domestic violence.
Chapter Six focuses on community programs on domestic violence. Chapter Seven
adds new amendments to the Family Violence Prevention and Services Act, including a plan
to address the needs of under-served populations due to race, culture, language diversity, or
geographic location.
Chapter Eight mandates confidentiality for abused persons including addresses and
under certain circumstances the victims name. Chapter Nine provides for data and research
on violence against women. The National Research Council at the Academy of Sciences will
create a research agenda, state databases will be improved or created, and the Center for
Disease Control will conduct a study on the number and costs of injuries resulting from
domestic violence.
Chapter Ten deals with domestic violence and child abuse in rural areas. Rural
areas are one of the under-served populations which is being specifically targeted under the
VAWA.
Subtitle C is Civil Rights for Women. This declares violent crimes committed on the
basis of gender to be discriminatory and a violation of federal civil rights. It allows women to
bring a civil suit for a crime of violence motivated by gender. This part of the Act is based
on other civil rights legislation effecting race, religion, etc., such as the Civil Rights Act of
1964.
Subtitle D offers equal justice for women in courts. It provides for education and
training forjudges and court personnel in local, state, and federal courts.
Subtitle E calls for VAWA improvements including: pre-trial detention in sex-offense
cases, increased penalties for sex-offenses against victims below the age of sixteen,
payment of the cost for testing for sexually transmitted diseases, extension, strengthening,
and enforcement of restitution orders including the enforcement through suspension of
federal benefits, national study on campus sexual assault, report on battered womens
syndrome, and other research projects.
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Subtitle F, the National Stalker and Domestic Violence Reduction, authorizes access
to federal criminal information data bases for use in stalking or domestic violence cases, as
well as grants to improve the process of entering data regarding these cases into local, state,
and national crime information data bases.
Subtitle G offers extra protection to battered immigrant women and their children.
The VAWA concludes by urging news media, law enforcement, and other persons to limit
disclosure of rape victims identities without their consent.
Funding authorized for the VAWA totals $6.1 billion dollars over six years (from
1994- 2000). Money from these grants does not go to federal or state bureaucracies, but
directly to local police, prosecutors, judges, and those who run shelters and other support
services for women. Senator Biden has also pointed out that that all of the federal dollars
provided for fighting family violence come from cutting the federal workforce by 272,000
workers, no new taxes were needed and no money will be added to the federal deficit (Biden,
1996, p.27).
The grants were awarded through the Department of Justices Office on Violence
Against Women. This office had the governor of each state designate a state agency to
apply for and administer VAWA funds for their state. STOP (Services, Training, Officers,
Prosecutors) grants of $500,000 were available to states in 1995, to allow that state to begin
to develop a multi-year comprehensive plan to coordinate victim services, law enforcement,
and prosecution efforts. Certain requirements had to be met in order to be eligible for these
grants, such as the entire expense of forensic medical exams for victims of sexual assaults
and domestic violence must be covered as well any fees for bringing charges or obtaining a
protective order. More grants will be made available to states through the year 2000.
Although the funding was approved in 1994, it must still be fought for every year. In
February 1995, the Appropriations Committee considered rescinding the fiscal year 1995
funding for the Domestic Violence Hotline in order to cut the budget, but battered women
community advocates quickly moved into action, preventing this from occurring (NCADV,
1995, p.5). The Republican Congress has indicated that five billion of $190 billion in
proposed cuts over the next five years will come from the Crime Control Trust Fund, but they
have not touched the VAWA yet (NCADV, 1995, p.5). This does not mean that they wont
try. Members of the National Task Force on Violence Against Women succeeded in
preserving nearly all the funds through 1996, and are now working to continue funding
through 2000.
Pamela A. Paziotopoulus, senior attorney at the American Prosecutors Research
Institute (APRI) in the Criminal Prosecution Division and former Assistant State Attorney and
domestic violence coordinator in Cooks County, Illinois, believes that the VAWA is a great
help to prosecutors as well as to victims. She writes, (Paziotopoulus, 1996, p.20) Not only is
the VAWA beneficial to its victims, it provides needed assistance to city and state
prosecutors at a time when domestic violence reporting is on the increase and caseloads are
overwhelming many offices.
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The VAWA offers states and localities help in changing the justice systems
response to family violence. It gives city and state prosecutors more options when
prosecuting a perpetrator, including assistance from the U.S. Attorney Generals Office,
offering some relief from overflowing caseloads. It also alleviates some of the problems
found at local and state levels by creating federal legislation making responses to domestic
violence against women more uniform.
Paziotopoulus (1996, p.25) also points out that in order for the VAWA to be an
effective tool, all criminal justice agencies need to be educated as to the provisions of the
VAWA, as well as developing cooperation and coordination between the federal and state
offices. Bonnie Campbell, the Director of the Violence Against Women Office cautions
(Paziotopoulus, 1996, p. 24) The VAWA does not come with instructions. In order for the
VAWA to be the most effective, local prosecutors must communicate and coordinate with
federal prosecutors, the FBI, and local law enforcement to develop strategies to implement
the VAWA.
Title II- Interstate Enforcement
Title II of the VAWA creates new federal crimes concerning interstate enforcement.
It makes it a federal crime for anyone to travel across a state line with the intent to injure their
spouse or intimate partner and then intentionally commit a crime of violence causing bodily
injury to such person. Penalties are also in effect when the defendant causes his spouse or
intimate partner to cross a state line for this purpose.
Federal penalties are also created for anyone to travel across a state line with the
intent to violate a protection order and subsequently violates that order. Penalties also apply
when the defendant causes the spouse or intimate partner to cross state lines for this
purpose.
The Full Faith and Credit Provision of Title II requires states to enforce protection
orders issued in the courts of another state. This means that whatever the implications of
violating a protection order are in the new state, these apply to the enforcement of the order
from the old state. In addition, if the victim is ineligible for a protective order in the new state
but was eligible in the old state, the new state still must enforce the out of state order. For
example, if the foreign order protects gay and lesbian victims but the new enforcing state
does not allow for such protection, the enforcing state must still enforce the order.
Attorney General Janet Reno (Paziotopoulus, 1996, p.28) declared that the Full Faith
and Credit Provision of Title II, is necessary because victims of domestic abuse frequently
have to flee to another state and batterers often try to come after them. If a protection order
cant follow them, it is worthless. This provision allows victims of domestic violence to
escape their batterers by protecting their right to travel where they want without fear of
abuse.
Prior to the VAWAs Title II, there was no federal crime or penalties for crossing state
lines for the purpose of committing an act of domestic violence. Although stealing livestock
59


and transporting it over state lines, transporting lottery tickets, firearms, and illegally made
dentures have long been federal crimes, the VAWA has only been around for two years.
Before the VAWA, most states did not offer full faith and credit to protection orders
from other states. In order to receive protection in the foreign state the victim had to petition
the court for a new protective order unless the abuse takes place within its boundaries. If a
new order could be granted, because of the due process requirements, the batterer had to
be served public notice regarding upcoming proceedings for the protection order, thus
revealing the victims new whereabouts and placing her in potential danger.
*
The VAWA does not require the victim to register her foreign order with the new
state although there are obvious reasons for doing so. If the victim does choose to register
the order, the new state is not required to inform the respondent with additional notice; this
provides the victim with immediate protection and ensures confidentiality.
States are left to their discretion as how to set up procedures to implement interstate
enforcement. Specific actions taken or recommended include: developing nationwide and
statewide computer registries of protection orders and creating a new uniform court
protection order form specifying that the protection order is good in all states, Washington
D.C., and Indian tribal lands.
Criminal cases have been brought and won under Title II of the VAWA. U.S. v.
Bailey was the first case of an abuser prosecuted under Title II. Christopher Bailey was
charged with one count of interstate domestic violence and one count of kidnapping. In
1994, he had beaten his wife in West Virginia and then over a six day period drove back and
forth between West Virginia, Kentucky, and Ohio, with his wife often tied up in the trunk and
continually beaten. Bailey finally took his wife to the emergency room where he said she had
fallen and hit her head. He was later convicted on both counts, sentenced to life for the
kidnapping and twenty years for interstate domestic violence (Paziotopoulus, 1996, p.23).
In U. S. v. Steele a man beat his girlfriend in Salem, Oregon on July 17,1995, for
several hours, threatening to kill her while holding a knife to her throat. The next morning he
forced her to drive with him to California. When he stopped for gas she tried to escape, but
he drove off with her still hanging from the car door. He was later arrested and convicted of
kidnapping and two counts of interstate domestic violence, and sentenced to eighty-seven
months in prison (Paziotopoulus, 1996, p.23).
U.S. v. Hayes is the first case of interstate violation of a protection order. Patricia
Hayes left her abusive, estranged husband in Ohio. She moved to N.J. and obtained two
protection orders against him. Her husband Wayne Hayes violated these by stalking her to
N.J. and sending her threatening letters. He also threatened her in a letter to a family friend
in Long Island. He was charged with one count of interstate violation of a protection order
and three counts of using the mail to threaten injury to another. Hayes is being held on bail
while the case is pending (Paziotopoulus, 1996, p.23).
The law also applies to women perpetrators. Rita Guzman is charged under
interstate domestic violence in connection with the murder of her husband. She allegedly
60


traveled from her home in N.J. to assist in the murder of her husband in N.Y. Guzman faces
life imprisonment without parole if convicted.
Title III- Civil Rights For Women
Title III, the Civil Rights provision of the VAWA has created the most controversy.
This section of the VAWA is based on the Civil Rights Act of 1964, which applies to racial
and religious discrimination, but does not address gender. These traditional civil rights
remedies against violent crimes have been largely unavailable to victims of gender-based
attacks. Senator Biden (Premo, 1994, p.24) states,
This bill recognizes that violence against women is an
issue of equality as well as an issue of crime prevention.
Every woman has the right to be free from violent attack.
This bill helps to guarantee that. It recognizes for the first
time a civil rights remedy for the victims of crimes
perpetrated because they are women. Long ago we
recognized that hate beatings of blacks or Asians are
violations of rights to be free and equal. We should
guarantee that same protection to victims of attacks who
are victims only because they are women.
Title Ills aim is to consider gender-motivated bias crimes as seriously as other bias
crimes. Victims of such violence are chosen not because of who they are as individuals but
because of their class status- female. Battered women advocate Kristian Miccio (McCuen,
1994, p.80) states, Hate crimes against women because we are women is palpably different
from bias motivated crimes against other classes of individuals. To rape or beat a woman
requires little logistical effort- one need not stalk a particular bar or part of the city to
perpetrate this form of violence. Women are everywhere, including right in the homes of
violent perpetrators.
Acts of violence against women are not random, isolated crimes against someone
who happens to be a woman. The statistics revealing the number of women victims of rape
and domestic violence reveal that women are raped and beaten in their own homes because
they are women. Miccio (McCuen, 1994, p.80-81) continues,
Rape and the threat of violence based on gender robs women
of our freedom and violates our civil rights. It results from
the structural relationship of power, of domination, and of
privlege between men and women in society...Rape is one
of the most powerful tools of domination as it functions and
operates as a means of social control. Rape keeps women in
a secondary status in society by closing doors, limiting options
and opportunities, and denying autonomy and freedom.
Violence and the internalized and constant threat of violence
permeates every aspect of womens lives. The fear of rape
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controls what women wear, where we live, where we work,
and how we behave. Rape and the fear of rape places limits
on our liberty and mobility.
Title III acknowledges these limits put on women by gender-motivated violence as
well as acknowledging that existing civil rights laws did not adequately address this form of
discrimination. By recognizing that gender-motivated violence is discrimination, the federal
government sends an important and powerful message that this form of violence will not be
accepted and that perpetrators will be punished ori the federal level. The federal government
acknowledges that a compelling federal interest exists in protecting the civil rights of women.
Before VAWA was enacted, federal civil rights laws prohibited discrimination in the
workplace, some racially motivated acts of violence, and certain class-based wrong doing by
private groups. But outside of the employment context no federal civil rights law protected
people from gender-motivated discriminatory acts of violence by private individuals although
the most common and damaging form of violence against women is committed by individuals
(Goldscheid and Kraham, 1995, p. 519).
Title III Civil Rights are constitutionally based on the Commerce Clause and Section
Five of the Fourteenth Amendment, as are other civil rights legislation. The federal
government acknowledges that violence against women interferes with interstate commerce,
including such issues as: over fifty percent of rape victims lose or leave their jobs, the threat
of gender-motivated violence deters women from using public transportation after dark and
from taking certain jobs in certain areas or at certain hours, domestic violence, rape, and
sexual assault diminish national productivity and increase medical costs (NOWLDEF, 1996,
p.1). Section Five of the Fourteenth Amendment permits Congress to act to protect civil
rights in the face of inadequate state laws or enforcement. There has been extensive
documentation on the inadequate state laws and enforcement protection for women.
Title III works to create a nationally uniform remedy for victims of violent gender-
motivated crimes. The Act covers cases that do not result in criminal charges, so a woman
could bring a VAWA Civil Rights claim against someone she accused of rape even if a
prosecutor did not pursue criminal charges. If there is a conviction it can be used as proof in
a civil rights case, but as Goldscheid and Kraham (1996, p.509) write, A woman need not
rely for legal relief solely on the criminal justice system, a system in which they lack control,
which frequently shines a spotlight on the victim and in which they cannot obtain civil relief.
The VAWA specifically covers crimes that would be a felony except for the
relationship between the perpetrator and the victim. This allows women to seek civil redress
even if they live in a state that prohibits marital rape prosecutions or civil suits against
husbands for raping their wives, as well as for states that forbid criminal prosecution for
sexual assaults between acquaintances. Defendants may still attempt to use interspousal
immunity laws where they exists (as of Nov. 1994, FL., GA., LA., MA., NV., VT.). But
Goldscheid and Kraham (1995, p.519) claim that, Federal courts will likely reject inter-
spousal immunity defenses as inconsistent with the federal policies underlying the VAWA.
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Under Title II, the burden of proof involves two parts: 1.) proof that a crime of
violence or a felony against a person or piece of property was committed and 2.) proof that
the act was gender-motivated. Under Title III, gender-motivated means that the act of
violence was committed because of gender or on the basis and due at least in part to an
animus based on the victims gender. (Animus is a legal term referring to an assailants
purpose or intent.)
The combination of the totality of circumstances will be used to prove gender-
motivation. Such evidence as epithets, statements, patterns of behavior, use of excessive
force combined with epithets can be used. For example, a woman robbed and raped may
not be able to prove gender-motivation, but a woman robbed and raped by a man making
derogatory comments about women has a better chance.
An example of a case that would have been clear cut under the VAWA involves a
man in Montreal, Canada, who burst into an engineering class with a gun, separated the men
and women, and while screaming such phrases as I hate feminists, shot only the women
(Lu, 1996, p.4).
Goldscheid (Lu, 1996, p.4) writes, First cases tried under the VAWA would probably
have to be the most severe and clear cut before the law could be applied to more
questionable cases. She also cautions that the first women to bring cases under the VAWA
will probably receive lots of unwanted, often negative, media attention.
Women have begun using the Civil Rights Remedy of the VAWA to bring suit against
their abusers. In two cases currently in the courts, the defendants challenged the
constitutionality of the VAWA. In Doe v. Doe a woman sued her husband for damages
following a seventeen year marriage involving a systematic and continual pattern of physical
and mental abuse. Her husbands lawyers challenged the Civil Rights Remedy of the VAWA
as unconstitutional. On June 20,1996, Judge Arterton of the U.S. District Court of
Connecticut ruled that the plaintiff could proceed with her VAWA claim, rejecting the
defendants argument that the Act was unconstitutional. The judge upheld VAWAs Civil
Rights Remedy because he found that gender-based violence has a substantial effect on
interstate commerce (NOWLDEF, 1996, p.1).
Judge Arterton further ruled that, VAWA compliments our state laws by recognizing
our societal interest in ensuring that persons have a civil right to be free from gender-based
violence (NOWLDEF, 1996, p.1). The defendant has sought review from the Second Circuit
Court of Appeals.
In the case of Brzonkala v. Virginia Tech the courts ruling was not so encouraging.
On July 29,1996, Judge Jackson L. Kiser, of the U.S. District Court of the Western District of
Virginia dismissed a VAWA claim based on the brutal gang rape of a woman student by two
fellow student football players.
The Court first found that the case did not provide enough facts to show that the rape
was gender-motivated, but then proceeded to rule that the Civil Rights Remedy was
unconstitutional. It found that Congress had no basis on which to enact the remedy,
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completely ignoring the findings in Doe regarding the Commerce Clause and also ignoring
the shocking record of failure of the states to address gender-motivated crimes as addressed
by the Fourteenth Amendment.
The plaintiffs attorney filed an appeal with the help of NOWLDEF. They argued that
the decision was vulnerable to reversal on a number of grounds and that the constitutionality
of VAWA should be upheld (NOWLDEF, 1996,p.2). The Supreme Court earlier reversed a
ruling by Judge Kiser when he ruled that the Virginia Military Institute (VMI) could remain all-
male without violating the Equal Protection Clause of the Fourteenth Amendment. The
Supreme Court reversed this decision, ruling that $ was unconstitutional.
In February 1997, the Fourth Circuit U.S. Court of Appeals upheld the Violence
Against Women Act, allowing Brzonkala to continue with her civil suit against Virginia Tech
and the two football players. The court also ruled that she can sue the university under a title
of the Education Amendments of 1972, which prohibits schools that accept public money
from practicing sexual discrimination. The court found that a colleges failure to address a
known sexually hostile environment" could qualify as sexual discrimination.
Judges noted in the majority opinion that Virginia Tech never reported Brzonkalas
allegations to the police. They also indicated skepticism that the university took, prompt and
remedial action, once it knew about the incident.
Criticisms
Although the VAWA received overwhelming support within Congress, there are
groups and individuals who have criticized its methods as well as those who criticize its very
purpose. Critics have ranged from mens groups who argue that the Act discriminates
against men to feminist groups who argue that, despite all of its progressive reforms, the
VAWA still does not adequately address violence against women.
Mens groups have criticized the VAWA as giving into feminist agendas and thus
discriminating against males. Frank S. Zepezauer, Secretary of the Mens Defense
Association, a father advocacy group, has been one of the VAWAs most vocal critics. He
argues that the VAWA will spend enormous amounts of money on a vast network of female-
specific government programs that amount to a feminist bureaucracy (Zepezauer, 1996,
p.24). He claims that men are in a worse position than women. He also argues that men
suffer.more violence than women as well as paying more taxes, which will go to support the
VAWA. Zepezauer (1996, p.26) cites a study done by sociologists Murray A. Straus and
Richard J. Gelles which finds that domestic violence is not an epidemic and that, wives
initiate and carry out physical assaults on their partners as often as men do.
Dan Feder, another mens rights advocate agrees with Zepezauer, even going so far
as to blame feminists for violence against women. Feder (McCuen, 1994, p.93) says, When
women were cast down from the pedestal at the behest of feminists, decline of respect for
their gender soon followed. Dont blame patriarchy for the sins of its detractors. Feminists
look around you. If the social perspective is appalling, remember sisters you asked for it.
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Mens rights activists claim that the VAWA will further impoverish" men and will not
help to reduce domestic violence. Zepezauer (1996, p.27) argues that the only way to end
domestic violence, quoting Thomas Sewell who said, the safest place for a woman is with a
husband in an intact marriage. The safest place for children is in a home with a biological
father. And the safest place for citizens- in the inner cities and the suburbs- is in a
neighborhood heavily populated with father present households.
Alice Vachss, who has worked as a sex crime prosecutor for over ten years in New
York City is supportive of the VAWA but offers criticisms of some of its methods. She claims
that despite new legislation and legal criteria concerning violent crimes against women, sex
crimes will continue to be under- prosecuted because of lack of response from prosecutors.
Vachss (1993, p.15) writes,
It is difficult to remember that VAWA would support
legislation that would finance prosecutors- the people
responsible for the current state of affairs. Behind the
numbers there looms a frightening reality. Prosecutors
have virtually unfettered discretion to pick and choose
cases that go to court. What is most dangerous about
that discretion is that it is exercised in the dark, often by
minimally trained law graduates with few systems in place
to protect against bias or stupidity. The public gets to see
only those cases that fall through the cracks.
Vachss argues that police and prosecutors refuse to work on so many sex crime
cases for different reasons, including: prejudice- many victims fail to meet law enforcement
standards for behavior, background, or ethnicity (these prejudices are usually undisclosed,
unacknowledged, and always denied), self-interest- prosecutors run for re-election on their
conviction rates and sex crimes and domestic violence cases are often hard to gain a
conviction on (Vachss, 1993, p.15). So Vachss claims that it would be unproductive to give
money to agencies which have clearly failed to adequately address the problem of violence
against women in the past.
Vachss (1993, p.15) offers some suggestions to improve the effectiveness of the
VAWA: 1.) The re-election of law enforcement leaders should be based on more substantial
criteria than win-loss records, 2.) Congress should review effective state laws and devise a
model penal code for sexual assault containing a requirement that prosecutors give written
reasons co-signed by the elected state or district attorney whenever a complaint of sexual
assault is declined, require each state to adopt this model before it is eligible for any grant
money, 3.)Have the federal government create a criminal computer bank with information on
convicted pedophiles and serial rapists.
Another critic is author Ruth Shalit, who argues that making violent crimes against
women a violation of civil rights is not necessary, enacting stiffer penalties is sufficient. Shalit
(1993, p.14) writes,
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Many of todays activists want to do more than ensure justice
and sensitive treatment for victims. They want to restructure
laws and institutions to reflect the view that rape, far from being
an individual crime, is a social disease afflicting most men. With
a guilt -tripped male Senate falling all over itself to demonstrate
gender-sensitivity, the activists have never had a better chance to
codify this new understanding of sexual violence.
Shalit refers to a Libertarian argument against the VAWA, which criticizes the animus
standard contained in the Civil Rights Remedy for its inquiry into the bigoted thoughts and
motives of an individual. This is seen as an intrusive investigation into an individuals views.
Shalit (1993, p.14) writes, Rather than creating new penalties for bigoted thoughts and bad
motives why not put in place a relatively straightforward remedy of stiffening jail sentences for
rapists.
Brigit Schmidt am Busch is in full support of the VAWAs intent as well as its
categorizing gender-motivated violence as a violation of civil rights. She offers a feminist
critique of the VAWA arguing that certain changes need to be made in the implementation for
it to adequately provide help to the women it is intended to. Schmidt am Busch (1995, p.9)
writes specifically of the Civil Rights Remedy,
Title III of the VAWA is a meaningful attempt to give victims
of domestic violence a remedy for the gender-motivated
element of their injury; however by its definition of crime
of violence and by requiring plaintiffs to prove the gender-
motivation of the violence, Title III will exclude many of the
victims it hopes to assist.
A crime of violence is defined in Title III as, an act or series of acts that would
constitute a felony and would come within the meaning of federal state offenses described in
Section Sixteen of Title Eighteen of the U.S Code, (Schmidt am Busch, 1995, p.9). Schmidt
am Busch points out that the definition fails to effectively address all forms of abuse present
in cases of domestic violence. Many forms of domestic violence do not violate criminal law
based on male standards of determining what behavior constitutes a crime and what doesnt.
Interests protected under law are male interests such as the preservation of the state,
property, life and physical safety, which are inadequate to protect women from more subtle
forms of domestic abuse such as sexual harassment, economic and psychological abuse
(Schmidt am Busch, 1995, p.10). Title III also only addresses felonies, while prosecutors
usually will bring only misdemeanor charges in domestic violence cases.
The burden of proof lies with the victim who must prove that her abuser intentionally
engaged in violent acts because of the victims gender. This largely misses unconscious
forms of violent discrimination against women that is occurring in their own homes. Schmidt
am Busch (1995, p.14) argues that the underlying cause for abusive behavior in intimate
66


relationships is the existing stereotype of women and family. Many men still believe that
women are their property and violence is justified to exercise this control. The intent
standard of Title III would fail to address civil rights violations due to such stereotypes.
Although the VAWA is not perfect and may call for some improvements, it is still a
success of historic proportions in both political and social arenas. It offers a re-evaluation of
the way the nation and the legal system approach violence against women, viewing the
problem comprehensively, not as random individual acts of violence. It attempts to address
the dominant stereotypes regarding women in our society.
The 1990s has seen much support for battered women, although there are still
those who bring up such criticisms as the breakup of the family. The strong influence of the
religious right in Congress, as well as throughout society during this decade has been a
major opposition to causes supporting women.
But the VAWA was a major success. The battered womens movement has
expanded to address more complex issues facing women such as housing, custody and
divorce proceedings, and insurance discrimination against formerly battered women.
Research currently being done on relatively new policies such as mandatory arrest and victim
advocates within the courtroom will show how effective many of these changes have been.
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CHAPTER NINE
CONCLUSION
The concept of and response to family violence has changed throughout the years.
Despite the conflict over public vs. private concerns, domestic violence has always been a
political issue, influenced by the changing political and historical contexts of the times. As
Gordon (1988, p.3) writes, The very definition of what constitutes unacceptable domestic
violence and the appropriate response to it, developed and then varied according to political
moods and the forces of certain political movements. Pleck (1987, p.4) also writes,
Reform against family violence has mainly occurred as a response to social and political
conditions, or social movements, rather than worsening conditions in the home.
The main issue affecting the treatment of domestic violence, evident throughout the
years and still focused on today, despite all of the progress that has been made, is the
traditional family. Whether the argument is about not invading the privacy of the family, or
keeping the hierarchical structure within the family, or not taking domestic violence seriously
because it is a family problem, or any of the religious opposition which comes up and
focuses on the family structure, whenever opposition to domestic violence policies and
responses arise, the breakup of the family is mentioned. Pleck (1987, p.7) writes, The most
consistent barrier to reform against domestic violence has been the Family Ideal- distinct
ideas about family privacy, conjugal and parental rights, and family stability- the family
consists of a two parent household with minor children. The traditional family" can be
traced back as far as the founding of the United States. Chapter One tells of the Puritan
household with its hierarchy of the husband/father as the generous leader and the wife and
daughters accepting their place as subordinate. The preservation of the family was used as
a reason to address domestic violence, but it was also ultimately used to refuse to allow
women to leave abusive situations.
Since the traditional structure of the family has supported the dominance of males,
the changing place of women and children in society is entirely intertwined with response to
domestic violence and the family. Gordon argues that the family, as well as the violence that
occurs within it has been historically and politically constructed. Gordon (1988, p.3) writes,
Family violence arises from family conflicts which are not
only historically influenced but political in themselves, in the
sense of that word having to do with power relations. Family
violence usually arises out of power struggles in which indivi-
duals are contesting real resources and benefits. These contests
arise not only from personal aspirations but also from changing
social norms and conditions... family violence cannot be
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understood outside the context of the overall politics of the
family.
The fear which has arisen during certain periods throughout history, that the meaning
of what the traditional family was supposed to be, was changing have lead to extreme
reactions in society. During periods of social stress, especially economic stress, such as
during the Depression, these fears have tended to escalate. Gordon (1988, p. 3) writes,
anxieties about family life furthermore, have usually expressed socially conservative fears
and the increasing power and autonomy of women and children and the corresponding
decline in male, sometimes rendered as fatherly, control of family members. This was
evident in Chapter Sevens discussion of the New Right and its response to the many
changes made in society during the 1960's and 1970s. Conservatives were afraid because
marriage and the family were going through major changes and so feminism and anything
associated with it were charged with attempting to break up the family.
Concerns about domestic violence have responded to societys anxieties over the
family in general. Periods of inaction and outright silence are as important as periods of
increased attention and response. Gordon (1988, p.2) writes, The ebb and flow pattern of
concern about family violence over the last century suggests that its incidence has not
changed as much as its visibility... it reveals the strength of the cultural image of home life as
a harmonious, loving and supportive environment. In response to this image, the male
dominated society has often attempted to suppress any evidence that the family does not fit
this image, causing further harm to victims.
The myth of the ideal family and inaction regarding domestic violence, are a part of
the larger inequality between the sexes which permeates every aspect of American society.
Gordon (1988, p. viii) writbs, Although the outcomes of family violence are not predictable,
nevertheless, virtually all of it is conditioned in some way by sexual inequality. This doesnt
mean that women are better- cruel, violent women exists- yet the abuse done by women as
much as that done by men, was also a product of the sex/gender order of society.
Womens struggle to break this inequality, especially through feminism, has been the
most important force in promoting changes in the response to domestic violence. Gordon
(1988, p.4) points out that concerns with family violence have grown when feminism was
strong and declined when feminism was weak. Feminists promoted the critique of the
traditional family and the sex roles within it. It was and continues to be, extremely important
that women themselves find an alternate vision of their own reality before the rest of society
will begin to acknowledge it. Gagne (1996, p.84) writes, Battered women groups supplied
places where women themselves could develop alternate ways of seeing reality. Women
saw and began to understand the social forces that shaped their lives."
The problems continually facing feminists, again go back to the family. They have
constantly been criticized for dismantling the traditional family. As in Chapter Three, Elizabeth
Cady Stanton and other women members of the Temperance Movement spoke of a
womans right to divorce and womens property rights. This resulted in their being criticized
for breaking up the traditional family, and even for being involved in public undertakings at all.
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Gagne (1996, p.90) points to the difficulties this has placed on feminist groups working for
change, Women need to infiltrate the system, but also remain ideologically outside the
system they want to appropriate and change. Maintaining this dual role in a society where
women are already thought of as inferior has proven difficult and resulted in breaks within the
feminist movement itself. Many ideas have been deserted or broken down in order to gain
more acceptance from the mainstream. As Pleck (1987, p.199) writes, No social movement
survives the process of community acceptance with all of its radical ideas in tact. The
battered womens cause has been considerably tamed by the coalitions and compromises it
made in order to receive state and federal funding.
*
Chapter Four reveals that any womens groups that were accepted and even
supported did attempt to address the problems within the traditional family at all. Child
Cruelty Societies supported traditional values and did not look to the structure of the family as
part of the problem. As a result many children as well as women suffered. The WCTU
supported social purity and wanted to elevate men and return them to their proper place of
authority within the family. The real enemy was the saloon keeper, who served their
husbands alcohol.
The criticism of feminism for breaking up the family often comes from their support
of outside intervention in domestic violence situations. Critics say that this form of social
control is a violation of a persons civil liberties and invades the privacy of the family. But the
question remains- Who's privacy and liberties are being violated? The conception of liberties
has long been the rights of the individual vs. those of the state. As Gordon (1988, p.294)
points out, in the case of the family, individual rights are attributed to the male head of the
household, writing, These rights function to keep the home as private and inviolable and the
champions of these rights were naturally adult men (particularly with privlege and money)
Such rights did not protect other family members from intra-family violence or oppression.
Gordon (1988, p.294) also argues that interventions into the family are not some
modern intervention thought up by feminists. No family relations have ever been free from
social regulations. For example as Okin (1989, p.129) states, in innumerable ways, the
state determines and enforces the terms of marriages. For hundreds of years common law
deprived women of their legal personhood upon marriage, enforcing rights of husbands to
their wives property and even their wives bodies. Women were also not allowed to divorce
their husbands. So, if the outside intervention stands to reinforce male control, it is not
contested, but when it steps in to take that control and give some control back to the female
it is an invasion of privacy.
Most of the time that social control into families occurs, it is at the request of a family
member, usually a woman or child- the weaker members of the family structure (Gordon,
1988, p.296). Too often, this request for help has not brought the woman what she wanted.
Gordon (1988, p.294) writes, Victims rights were often defined for them in ways they did
not recognize let alone want. Those who intervene, and the systems they represented still
had the power over the victims. Gordon (1988, p.6) continues, As with other activities of the
state, social control of family violence could hardly be expected to be administered fairly in a
society of such great inequalities of power. Yet it is precisely these inequalities that create
such desperate need for the intervention of the welfare state.
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Intervention itself does not seem to be the problem, but what type of intervention and
by whom. As Pleck (1987, p.3) writes, Family violence violates the conditions necessary for
human well-being. The individual has a fundamental right to personal safety and one of the
prime responsibilities of government is to secure that right.
The family has become a less hierarchical institution over the years, with women
gaining a legal identity separate from their husbands. The family is generally no longer
viewed as a kingdom ruled by a man, but as an intimate grouping of individuals bound by
affection and companionship. The wife is not expected to be submissive and more equal
roles between the sexes within most families exist.
But despite these changes, domestic violence still exists. This can be attributed to
many factors, a main one being that inequality between men and women in the greater
society is still rampant. Because of the strides made by women, many men feel threatened
and are looking back to times when men were expected to rule their kingdom- the family. In
response to womens successes there are always backlashes against them. The rising
influence of the religious right, including groups like the Promise Keepers, and the 1994
Congressional elections are a prime example.
Womens lesser place in society makes it hard for them to maintain a family on their
own despite the many positive advances that have been made. Women can easily obtain a
divorce today, unlike in the past, but still have great difficulty in raising children on their own
and often live in poverty (Pleck, 1987, p.201). Support for single mothers needs to be
increased. Despite the change in views of what constitutes a family, single parent families-
especially single mothers- are still looked down upon. The traditional family is still seen as
the ideal, in a system where, although they have gained new rights, women are still
considered second to men.
Pleck (1987, p.203) writes, Efforts to help battered women are only as good as the
living conditions for single mothers and their children... a policy against family violence is only
as far reaching as the alternatives to traditional families it makes available. It is precisely the
family values that contemporary politicians so much affirm that permit, encourage and serve
to maintain domestic violence. The solution to domestic violence is not to appropriate this
vacous rhetoric but to affirm to individual liberty of women and children within the nuclear
family and expand the alternatives to it.
Gordon (1988, p.27) writes, Deviant behavior becomes a social problem when
policy makers perceive it as threatening to social order and generate the widespread
convictions that organized social action is necessary to control it. Domestic violence is now
an official social problem. Many coalitions are working together against it and the system
has passed legislation addressing it. But as Pleck (1987, p.) points out, Some legislation,
whether a temperance bill or constitutional amendment for womens suffrage, always
appears to offer the solution, but, while necessary, never turns out to be the panacea that is
promised.
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Based on my personal experience working with battered women, I would argue that
although legislating policies and laws is nofthe solution, it is an important, integral part of the
struggle to end domestic violence. Laws and policies prohibiting violence against women by
intimates and their enforcement, tells society that this behavior will not be tolerated. But
more and larger issues also need to be addressed such as housing, daycare, womens
wages, etc., to offer a more complete solution to the problem.
Del Martin (1976, p.111) writes, Whatever progress we can claim in legislating
attitudes has resulted from enforcement of new laws, not the laws themselves...when a law
is enforced it eventually becomes a part of the social fabric, a given in the daily lives of
citizens. Only then does the collective change in attitudes have a lasting effect. There has
been a general change in attitude towards womens place in society, but more work needs to
be done. The community response, which has become prominent in the past years is a
good start to addressing the many issues involved with domestic violence and offering
women viable alternatives to an abusive situation.
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