Women, Intimate Partner Violence, and the Law
The U.S. anti-domestic violence movement (then known as the battered women’s movement) of the 1970s identified the legal system’s failure to intervene to protect women subjected to abuse as a major contributing factor to intimate partner violence. In response, the movement conceived of, introduced, and fought for changes to the legal system designed to ensure that women would be protected. These changes included laws creating protection orders (civil restraining orders keeping people who committed acts of abuse away from their partners) and mandatory arrest laws, which required police to make an arrest whenever they had probable cause to do so. Over the last forty years, protection orders have expanded to include additional provisions, including custody, visitation, economic support, property distribution, and pets. The criminal system’s response to intimate partner violence has become more robust, with jurisdictions increasing prosecution rates and creating new crimes to address the issue. Protection for victims of violence spread to other areas of the law as well, most notably in family law cases, with legislatures adding domestic violence as grounds for divorce and courts being required to consider evidence of violence in determining who should have custody of children.
These changes to law and policy raise an obvious question: did they work? Did people subjected to abuse become safer as a result of the build-up of a legal regime around intimate partner violence? That question continues to be debated in the United States, with a number of scholars arguing (often for very different reasons) that neither the criminal nor the civil legal system is meeting the needs of victims of violence.
The United States is not the only country grappling with these questions. Indeed, given that the U.S. has exported its law and policy on domestic violence throughout the world, many countries are now asking how effective that response has been. In her new book, Women, Intimate Partner Violence, and the Law, Australian law professor Heather Douglas questions the utility of domestic violence law and policy in Australia. Over a period of two to three years, Douglas interviewed sixty-five women from in and around Brisbane, Australia’s third-largest city, about their experiences with police, judges, child protection, and the family court system. Douglas only interviewed heterosexual women, a limitation she acknowledges. Those interviews revealed women’s “accumulation of negative experiences over time, in different parts of the legal system” (249).
Douglas begins by unpacking two key concepts: abuse and law. Douglas notes that while discussions of intimate partner violence often focus on physical abuse, non-physical abuse and coercive control (the limitation of a person’s liberty through fear, isolation, coercion, and violence) were often the most destructive forms of abuse the women in her study encountered. Douglas explains that many forms of non-physical abuse and coercive control, including emotional abuse, economic abuse, abuse related to parenting and abuse related to immigration status, are not punishable by Australian law (the same is true in the United States).
Douglas also highlights the breadth of the legal response to intimate partner violence. She writes, “[l]aw includes interactions with child protection workers, police, lawyers, and judicial decision-makers. It encapsulates engagement with child protection services (CPS), civil protection orders, the family law systems, criminal processes, and immigration law via the visa system. It also includes victim assistance, private contracts and leases, defamation, equity, and civil disputes with banks” (63). The benefit of looking at women’s experiences with the legal system over time is the ability to see the different ways that women become enmeshed in the system and how difficult it is to extricate oneself altogether, particularly when former partners use that system to continue their abuse. Alex, for example, had been in court 31 times in the six months before Douglas first interviewed her: for protective orders, appeals of protection orders, as a witness in the criminal case for her partner’s breach of the protection order, custody, civil actions brought by her partner because of debt, and defamation. Alex said, “[h]is purpose is to keep me engaged by going to court…it’s the only way he has access to me” (65).
Douglas begins her examination of the legal system with child protection. The intersection of intimate partner violence and child maltreatment has long been recognized as fraught, with child protection professionals holding women accountable for their partners’ violence and failing to see the protective actions women take. Child protective services became involved with about half of the women with children in Douglas’ study. In some cases, women contacted child protection for support and help addressing the violence that they did not receive. 14 per cent of the women had their children removed during the study period; only half had their children returned before the study ended. Children were sometimes removed because of calls made by their abusive partners; women reported feeling that child protection took their partners’ allegations more seriously than women’s calls for help. And as in the United States, women and children of color were disproportionately targeted by the child protection system. Of the four Aboriginal and Torres Strait Islander (ATSI) women with children in Douglas’ study, three had their children removed (and the fourth feared removal). As one ATSI woman, Jarrah, explained, “[m]y kids do not go anywhere near [CPS]….Unless I’m dead” (108).
In the United States, around half of the victims of intimate partner violence report their experiences to law enforcement. By contrast, most of the women in Douglas’ study contacted police for assistance, with the notable exception of ATSI women, whose historically negative interactions with police made them skeptical that police would be helpful. The women in Douglas’ study who did seek assistance from the police experienced those interventions as a mixed bag. Some had positive experiences with police. Others were ambivalent about those interactions. Some Australian women were charged with criminal offenses related to intimate partner violence despite their own victimization (a significant problem in the United States as well). Over time, even those who believed that police would help often became disappointed with the police response. Women reported that police did not understand intimate partner violence, particularly when that violence was not physical. They felt that intimate partner violence was not taken as seriously as other crimes. Police did not believe them, refused to enforce their protection orders, aligned with their partners, and refrained from intervening when children were involved. Susan explained, “[t]hey [abusers] need to be held accountable, and it’s not happening. I cannot put it down to anything else, other than the failure of police…just being completely inept and lazy, and not being trained on what constitutes domestic violence….They’re not actually doing their job….They cannot turn you away, but that’s what they’ve done” (129). Susan ultimately became so “disenchanted” (131) with police that she stopped reporting her partner’s breaches of her protection order. Only about half of the women Douglas surveyed were able to identify even one positive experience with the police.
Access to justice in cases involving intimate partner violence often depends on zealous legal representation. As in the United States, state-funded legal services lawyers are available to represent low-income people in Australia—and as in the United States, those resources are often scarce. Women in Australia had difficulty securing legal assistance and were forced to either go without a lawyer or incur substantial debts paying private counsel. The lack of low- or no-cost lawyers for people subjected to abuse enabled their partners to revictimize them using the legal system, and created pressure for them to agree to unfair and unsafe settlements rather than fight alone or go into further debt paying high-priced lawyers. Douglas’ interviews with women over time show just how expensive legal representation can be. Women reported paying tens of thousands of dollars in legal fees (156-57). Douglas highlights the link between abuse of the legal system and women’s debt, arguing that systems abuse constitutes a form of economic abuse, trapping women in poverty (166).
As James Ptacek argued in Battered Women in the Courtroom: The Power of Judicial Responses, how judges interact with women subjected to abuse has a profound impact on those women’s perceptions of justice. Douglas documents a similar phenomenon in the Australian family law courts. When court feels like “a safe place,” women feel heard and protected (210). When it doesn’t, women described feeling revictimized by judges’ treatment of them, believing that judges did not understand intimate partner violence, particularly when that violence was not physical; aligned with their abusers; discounted their abuse; allowed their partners to take over proceedings by being unprepared; and prioritized fathers’ rights over mothers’ safety (a phenomenon documented by Joan Meier in the United States). As Frieda explains, “[i] just came out and said like, ‘This is a joke. Why are we in this court that’s a joke?…Why is this in a court where judges can say whatever they like and there doesn’t seem to be any clear process?” (191). And because the judges hearing their cases changed over time, few of the judges they saw understood the entire history of the case, leading them to make life-changing decisions based on incomplete information. In Lisa’s case, “the third different judge on the [protection order application]—he was like—he’s saying here that ‘he’s not going to do this stuff to you anymore and he seems like a nice gentleman and a man of his word’ and all this sort of stuff. I’m just standing there looking at him like, shaking my head” (196). As a result, some women reported avoiding the family courts altogether.
Much of the legal system’s response to intimate partner violence—arrest, divorce, protection orders–is premised on the belief that separation makes people safer. But, as Martha Mahoney argued three decades ago, separation does not make women safer—in fact, it can give rise to additional violence. Douglas’ subjects concurred that separation didn’t always make them safer initially and didn’t make them safer over time. Four years after separating from her partner, Anna reported, “I’ve had to change my number so many times. My appearance. These last 4 years I’ve changed my hair, I’ve lost weight, put on weight, changed my routine of going places….I’ve blocked all his friends and family. I’ve changed my number for the 50 millionth time because of the harassment. I’ve had to change everything. I’ve had to change my locks just to be sure. I sleep with a knife under my bed” (225). Douglas challenges the idea of separation as static, documenting how the women she interviewed moved in and out of various types of relationships with their partners over time. Douglas notes that there is no such thing as true separation for people who share a child in common, particularly when courts stress the importance of co-parenting.
Is there hope for the legal response to intimate partner violence? Some argue that changing the law is the answer. Some advocates in Australia, the UK and the United States contend that criminalizing coercive control would both raise awareness of and provide punishment for the non-physical but destructive abuse that the law currently does not capture. But there are reasons to be concerned about further criminalization as a response to inadequacies in the system, both because of the ineffectiveness of the criminal legal response generally and because of the real possibility that greater numbers of women and people of color will face incarceration as a result (256). The women in Douglas’ study believe that focusing on system actors would improve their experiences with the system, suggesting increased training for police, judges, and others. Douglas adds a few additional proposals (women’s police stations, online courts, integrated legal systems that share information) and stresses the importance of ensuring that women’s experiences are at the center of policymaking. My own skepticism about the utility of the legal system and the limits of training are well-documented; Douglas is more optimistic about the ability of legal system actors to change, particularly if shored up by structures conducive to good decision-making (more time, better risk assessment tools, more resources).
Douglas’ book makes several important contributions to the ongoing discussion of the efficacy of the legal system’s response to intimate partner violence. The greatest contribution, though, is the benefit of seeing women’s relationships to the legal system over time. What is missing from snapshot studies of people’s experiences with the legal system is a sense of the way law fails over and over again, and how each failure increasingly destabilizes people subjected to abuse, undermining their confidence in the system and emboldening their partners. Douglas’s book shows us what it is like to go back to court time after time after time, each time hoping for a different response, each time being disappointed.
Leigh Goodmark, Marjorie Cook Professor of Law and Co-Director, Clinical Law Program, University of Maryland Francis King Carey School of Law