Domestic Violence and the Law: Theory, Policy & Practice

Saint Louis University Public Law Review
Volume XXIII, Issue 1
October 3, 2003

Symposium Information

Thank you to everyone who made the symposium such a success!!! If you have any questions regarding the symposium, please feel free to contact the Managing/Symposium Editor, John M. Challis. (challisj@slu.edu), or by phone in the Public Law Review office at (314) 977-3937.

Issue Abstract

In an effort to better educate lawyers and law students on the far-reaching effects of domestic violence on all areas of the law, preeminent scholars in domestic violence from across the nation were brought together to discuss the impact of this national epidemic. Nationally renowned scholars in the field of domestic violence, politicians, and policy makers discussed how the law responds to this problem. Practitioners and clinicians will discuss the impact of domestic violence on the practice of law. These scholars will have their works published alongside student written works to constitute Volume XXIII, Issue 1 of the Saint Louis University Public Law Review, with publication anticipated in March of 2004.

Authors and Abstracts

Professor Beverly Balos
Professor Balos is a Clinical Professor of Law at the University of Minnesota School of Law. Professor Balos is recognized for her work in the areas of violence against women, domestic violence and feminist jurisprudence. She teaches civil practice clinic, domestic abuse prosecution clinic, and the law and violence against women course and clinic. Professor Balos was the inaugural holder of the Vaughan G. Papke Clinical Professorship in Law Chair from 1997-99. Professor Balos is the author of Law and Violence Against Women: Cases and Materials on Systems of Oppression (1994) (with Mary Louise Fellows).

Professor Balos will be writing an article entitled "A Man's Home is his Castle: How the Law Shelters Domestic Violence and Sexual Harassment." 

This article demonstrates the parallels between current judicial treatment of sexual harassment in housing and the historical treatment of domestic violence by the courts. The doctrine of privacy, although central to preserving the sanctity of the home, has been applied only selectively. In the nineteenth century, courts protected males in their homes from governmental intrusion, even when they abused their intimate partners. In contemporary judicial decisions, however, courts have not protected the privacy of female tenants in their homes when their landlords intrude and sexually harass them. Rather the courts have preferred to protect the private property of the landlord who makes an exchange of sex for shelter a part of the rental transaction. 

In domestic violence cases, the struggle has been to reveal the violence behind the curtain of privacy and encourage state intervention for the protection of the victim, at the expense of the privacy of the abuser. In the sexual harassment in housing context, the struggle also is to reveal the violence behind the curtain of privacy but with a divergent result. It is to encourage state intervention so that the right of privacy of the tenant is validated at the expense of control of the landlord. An examination of who are the targets of sexual harassment in housing and the jurisprudential standards applied leads to the conclusion that the protection of a zone of privacy expands and contracts depending upon the economic, social, and political power of the person claiming protection.
 
The article describes a case undertaken by the University of Minnesota Law School Civil Practice Clinic to demonstrate the individual and systemic obstacles in litigating a claim of sexual harassment in housing. Each client brings their own individual experience to their claim. Yet each also faces the obstacle of inadequate affordable housing and structural class, gender and race inequalities that create and support a category of women who are targeted for sexual harassment in their homes. While recognizing that the courts have limited the usefulness of these suits by requiring severe or pervasive harassment before there is a recoverable harm, this article also argues that even if courts were more sympathetic to this kind of litigation, private lawsuits would still be an inadequate response to sexual harassment in housing because an individualized remedy will not sufficiently challenge the systemic inequalities of class, gender, and race, which simultaneously sustain sexual harassment in housing. 

Professor Mary Beck
Professor Beck is a Clinical Professor of Law and Director of the Domestic Violence Clinic at the University of Missouri Columbia School of Law.  Her work experience has included private law practice and consulting in adoption, medical malpractice and health care law; faculty member and faculty administrator in two schools of nursing; and nurse practitioner. She has worked extensively in clemency initiations; drafting and lobbying Missouri legislation affecting abused women, children and families; domestic violence research and grantsmanship. She teaches the Family Violence Clinic; Advocacy, Family Violence and Public Policy; and Client Interviewing and Counseling.

Professor Beck authored an article entitled: "Spotlight: Response to Violence Against Women at Missouri University at Columbia."

The University of Missouri is a land grant institution in the heart of Missouri dedicated to serving its community.  It has 33,674 people working and studying on its campus.  Its history, size and location position it both with the need to advance the safety of women on campus and with unique opportunities to advance such safety for women throughout Missouri. An ad hoc Intra University Council on Violence Against Women meets monthly with interested faculty, staff, and students developing targeted plans.  Domestic violence research, teaching, and service occur in numerous departments and some are grant supported.  The Law School Family Violence Program engages in widespread service including interdisciplinary teaching and projects;  has participated in a statewide collaborative project advocating clemency for battered women with all the other law schools in Missouri; and maintains aggressive legislative and investigative agendas to advance the interests of abused women and children.

Professor Leigh Goodmark
Professor Goodmark is an Assistant Professor of Law at the University of Baltimore School of Law.  Prior to joining the faculty, Professor Goodmark directed the Children and Domestic Violence Project at the American Bar Association's Center on Children and the Law.  Professor Goodmark previously taught in the Families and the Law Clinic at the Catholic University of America. She has also practiced family law in the District of Columbia at Bread for the City and Zacchaeus Free Clinic, and was the recipient of a Skadden Arps Fellowship.

Professor Goodmark has authored an article that will be published entitled: "Law is the Answer?  Do We Know That for Sure?: Questioning the Efficacy of Legal Interventions for Battered Women."

Over the last thirty years, battered women's advocates have worked diligently to ensure that domestic violence was treated seriously by police and prosecutors and to create legal tools to assist battered women in the civil legal system.  This article asks whether those tools hurt battered women more than they help, pointing out a number of problems the legal system creates for battered women and advocating that lawyers look critically at the system and for options beyond the system when counseling clients.

Professor Zelda Harris
Professor Harris is a Clinical Professor of Law and Director of the Domestic Violence Clinic at the University of Arizona School of Law.  Professor Harris graduated from Washington University in St. Louis with her J.D. in 1991 and thereafter began working at Land of Lincoln Legal Assistance Foundation before becoming a lecturer at Northwestern University School of Law.  Professor Harris joined the Arizona College of Law in the Fall of 1998 to teach in the clinical programs.  Professor Harris was active in leadership roles in numerous public service organizations concerned with family and health issues in Illinois, and is a recognized teacher in trial advocacy. 

Professor Harris has authored an article entitled: "The Predicament of the Immigrant Victim/Defendant "VAWA Diversion" and Other Considerations in Support of Battered Women."

The struggle to combat domestic violence has sustained a modern feminist movement that began over thirty years ago. The push to prioritize domestic violence on the feminist agenda has yielded far-reaching and tangible results in a relatively short period. The passage of the Violence Against Women Act of 1994 and the Battered Immigrant Women Protection Act of 2000 is a testament to this fact. VAWA and VAWA II are a culmination of efforts and collaborations made between and across members of the feminist and civil rights movement. However, as the fanfare over the collective rewards fades, serious concerns remain concerning the impact of the policies and laws on non-white women who have been subjected to historical oppression based on race or national origin. Unfortunately, poor women of color have been left to bear the expense and debts owed from waging a war against gender inequality.

One example of the damage is the effect of mandatory misdemeanor domestic violence prosecution policies on women who have immigrated to the United States with abusive U.S. citizen or legal permanent resident spouses. The mandatory policies, lobbied for by anti-domestic violence advocates, have effectively disabled immigrant women from securing the personal freedom needed to gain the very safety for themselves and their children that the movement promised.

This essay seeks to shed light on some of the unintended consequences of mandatory prosecution policies as gleaned from my experience representing battered women in the Domestic Violence Law Clinic in Tucson, Arizona. Tucson is located in close proximity to the border of Mexico. Consequently, many of the clients served by the Clinic are recent immigrants from Mexico and other Latin American countries.

Professor Quince Hopkins 
Professor Hopkins is an Assistant Professor of Law at Washington and Lee School of Law. Professor Hopkins has worked in many different areas, including at the House of Ruth Domestic Violence Legal Clinic in Baltimore and Southern Arizona Legal Aid, Inc., in Tucson, Arizona. Professor Hopkins previously taught at the University of Maryland Law School and the University of Arizona Law School before coming to Washington and Lee University in 1999. Professor Hopkins teaches a seminal in Ethical Issues in Family Law, an Advanced Family Law Seminar, Basic Family Law, and a seminar in Radical Legal Thought.

Professor Hopkins has authored an article entitled: "Applying Restorative Justice to Ongoing Intimate Violence: Problems and Possibilities."

The prevalence of domestic violence is now well documented. While Western historical accounts of domestic violence intervention efforts focus primarily on events of the last few decades, women and men have in fact been working to eradicate intimate abuse for over 2000 years. The first known tort-like remedy for domestic violence was enacted over two millennia ago, in 200 B.C.E. The first criminal prohibition against all domestic battering (other than in self-defense) was established in the Puritan's Bodies of Liberties of 1641. One can indeed observe an increasingly global concerted effort during the latter part of the 20th century and continuing into the new millennium that was perhaps not present in these prior reform movements. Although these more recent efforts may seem substantial, there is only minimal evidence that these reforms actually lowered prevalence rates of family violence in any significant way. In 1993, intimate partners perpetrated approximately 29 percent of reported violent assaults against women. Women reported an additional 9 percent by another relative, meaning almost 40 percent of all reported violent assaults against women result from family violence.

It is now evident that existing legal responses to family violence provide incomplete redress for survivors. In order to permanently reduce the prevalence of this problem, and to provide survivors with comprehensive remedies, advocates must continue to press for novel legal reforms in the hope that the right combination of legal interventions will someday be achieved that will finally reduce the prevalence of this public health problem and at the same time meet the needs of individual victims. One such possibility is applying restorative justice to family violence. The possibilities and limits of such an approach are the focus of this article. Part II explains the concepts underlying, and models implementing restorative justice. Part III assesses feminist critiques of the application of restorative justice to intimate violence, identifies them as primarily empirical ones, and describes the preliminary empirical results of one program implementing a restorative justice response to domestic violence

Professor Andrew King-Ries
Professor King-Ries is a Visiting Assistant Professor of Law at the University of Montana School of Law where he teaches classes in Criminal Law, Criminal Procedure as well as Domestic Violence Law. Prior to joining the faculty at the University of Montana, Professor King-Ries prosecuted felony domestic violence cases for eight years in the King County Prosecutor's Office in Seattle, Washington. Professor King-Ries also served as a staff attorney for the United States Court of Appeals for the Eighth Circuit in St. Louis, Missouri, and as a speechwriter for former Secretary of Education Lauro Cavazos. 

Professor King-Ries has authored an article entitled: "True to Character: Honoring the Intellectual Foundations of the Character Evidence Rule in Domestic Violence Prosecutions."

This article calls for a new rule allowing the admission of prior acts of abuse within the context of a current domestic violence prosecution. This article seeks to ground the need to change the character evidence ban for domestic violence prosecutions in reasons that have nothing to do with making the prosecution easier. Historically, changes that make prosecution of particular types of cases easier are morally suspect and tend to reflect the will of powerful majorities as opposed to proper advances in the law. The difficulty lies in the fact that rules, protections, and civil liberties are jettisoned in order to combat a specific evil, yet the reasons for that tactic are not connected to the traditional rationale supporting the rules, protections, and civil liberties. 

This article proposes a specific evidence rule in the domestic violence context which would admit evidence of the defendant's character as it relates to battering and would allow that evidence to be used substantively in a prosecution for domestic violence. The argument here grounds the need for a new rule regarding admissibility of prior bad acts in domestic violence cases in the very rationale which supports the general ban on character evidence. It is the position of this paper that the rationale supporting the current rule actually calls for a rule change in the domestic violence context and supports such a change, thereby preserving the ideals behind the original rule.

Professor Kit Kinports
Professor Kinports is a Professor of Law at the University of Illinois College of Law. Before joining the faculty, Professor Kinports clerked for Judge Abner J. Mikva of the U.S. Court of Appeals for the District of Columbia and for Justice Harry A. Blackmun of the U.S. Supreme Court. Since 1993, Professor Kinports has held a joint appointment in the University's Women Studies Program. Professor Kinports teaches criminal law, criminal procedure, and a seminar on feminism and the law. While at the law school, she has also supervised an externship program in conjunction with the Illinois Clemency Project for Battered Women, and has helped to coordinate a program in which law students provide assistance to battered women seeking orders of protection. 

Professor Kinports has authored an article entitled: "So Much Activity, So Little Change: A Reply to the Critics of Battered Women's Self-Defense."

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been nine years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America," nine years since Congress enacted legislation haled as "a milestone ... truly a turning point in the national effort to break the cycle" of violence, and almost twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The Burning Bed supposedly "left an indelible mark upon society's collective consciousness." Despite these and numerous other "milestones" and "wake-up calls," domestic violence continues to be a seemingly intractable problem in this country. Substantial numbers of women are still beaten by their husbands and boyfriends every day, and many of them die as a result. A much smaller number of women strike back and kill their abusers, but it is these cases - and the self-defense issues they raise - that seem to receive a disproportionate share of the attention.

The most troublesome self-defense questions arise, of course, in cases involving nonconfrontational killings - where the woman struck back before or after a beating, or, most controversially, when her abuser was asleep. Although statistically most killings do not fall into this category, they raise the most difficult questions and have generated the most interest. Can a woman who kills under these circumstances legitimately argue that she acted in self-defense - that, pursuant to the prevailing definition of the defense, she honestly and reasonably believed she was in imminent danger of death or serious bodily harm? A number of critics contend that she cannot, and it is my purpose here to evaluate the various arguments they have advanced.
 

Professor Catherine Klein 
Professor Klein is an Associate Professor of Law and Supervising Attorney of the Families and the Law Clinic at Catholic University of America School of Law. Professor Klein joined the law faculty at Catholic University in 1981. Since joining the CUA faculty, Professor Klein has spearheaded the domestic violence program. Professor Klein was the director of the first law school clinical program in the United States that was designed to address the issue of domestic violence. The majority of Professor Klein's teaching and professional activities focus on addressing the critically important problem of domestic violence. Professor Klein has published numerous articles on the legal responses to domestic violence. 

Professor Klein has authored an article entitled: "Deconstructing Teresa O'Brien: A Role Play for Domestic Violence Clinics."

In this article, we will present and examine the role play that we have used with our students. We will provide the actual text of the role play, with an explanatory narrative about how we integrated the role play into our classroom component. We will outline the reading assignments and pre-class preparation that we require. Finally, we will suggest ways that this role play can be adapted for clinical programs in other jurisdictions or in countries with other legal systems. 
 

Professor Melanie Randall
Professor Randall holds the Scotiabank Professorship with the Centre for Research on Violence Against Women and Children, at the University of Western Ontario. Her current teaching and research interests are in the areas of sex discrimination and legal theory. Her publications include articles on the issue of women's autonomy rights, and on sexual violence in women's lives, including state accountability for responding to and remedying this violence, particularly through law. Professor Randall will be writing for the Public Law Review, but will not be attending the symposium due to prior commitments.

Professor Randall has authored an article entitled: :Intimate Abuse, Women's Resistance and the Construction of "Ideal Victims:" (Mis)Representations of Domestic Violence in Law."

In this paper Professor Randall argues that the use of the "battered woman syndrome" in law represents a double-edged sword. To the extent that it captures the psychological dimensions and harms inflicted by violence in an intimate relationship, the "syndrome" has provided critical evidentiary supporting the self-defense claims of battered women who kill their violent partners. But to the extent it explains the difficulties battered women have leaving their violent partners in terms of a purported psychological incapacity, and lacks an acknowledgment of the powerful social forces which inhibit women's very opportunities for "leaving," the "syndrome" is a profoundly inadequate conceptualization. Given that there are more effective strategies for educating courts about the contexts and effects of intimate violence, I argue that the use of the "battered woman syndrome" ought ultimately be abandoned in the legal arena.

In the same way that the "battered woman syndrome" is an inadequate and distorted conceptualization of intimate violence in women's lives, there is a distinct impression - backed up by an academic literature on the subject -- that many assaulted women are "uncooperative victims" in relation to the criminal justice system's processing of domestic violence cases. Some researchers, and, more prominently, many Crown attorneys, prosecutors and judges, express frustration with women who refuse to participate in the prosecution of domestic violence cases, recant while testifying, or otherwise impede the criminal prosecution of domestic violence cases. But the idea that "uncooperative victims" are part of the problem in legal responses to domestic violence, represents a failure to grasp the dynamics and impact of domestic violence in women's lives. Moreover, it rests on an undisturbed assumption that the women who have experienced violence in their intimate relationships, should be invested in - and therefore "cooperate" with -- the strategy of criminalization, in support of the state's pursuit of this strategy.

Publication Information

In addition to the symposium, all presenters will have their works published in the Saint Louis University Public Law Review alongside student staff members from the Public Law Review.   The Public Law Review is an academic legal journal published by students of Saint Louis University School of Law devoted to discourse in issues of public concern.  The Public Law Review has a circulation throughout North America and around the world.  Recent issues of the Public Law Review have focused on the American criminal jury system, integrity in police conduct, and children's rights under international law.  The first issue of the 2003-2004 academic year will be devoted to a presentation of papers cultivated through the domestic violence symposium. 

If you have any questions regarding this symposium or issue of the Public Law Review, please feel free to contact the Managing/Symposium Editor, John M. Challis(challisj@slu.edu), or by phone in the Public Law Review office at (314) 977-3937.

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