Social and Legal History of Intimate Partner Violence

1. Social and Legal History of Intimate Partner Violence Module Two Johnna L. Pike, JD Doctoral Student School of Sociology School of Law University at Buffalo

2. Violence Against Women & Children • Social Problem which has been supported throughout the world's history by customs, practices, laws and social conditions. • Legitimatization of male authority over & ownership of family members • Desire of males to maintain positions of control • Parental rights to use any method of child rearing • Perception of the family as a private institution

3. Historic Legacy of Violence • Ancient societies began to institutionalize the patriarchal family as an arm of state power: • First written law, Code of Hammurabi, provided husbands/fathers authority over the family. • Code of Paterfamilias (Roman Law) established the right to sell, denounce, banish, punish and execute women and children at the behest of males.

4. Historic Legacy of Violence • During the Middle Ages, violence was integrated into societies' moral codes: • Canon law reinforces traditional views of women as inferior and easily to sin or to cause men to sin • Rules of marriage operationalized the process of disciplining wives.

5. Early Anglo-American Law • State sanctioned violence based upon traditional notions of marriage, women, children and social control: • Legal code adopted moral justifications for violence • Women and children were viewed as chattel similar to an ox or a cow in which the owner was entitled to do as he pleased with his property.

6. Justifications for the Use of Violence Against Women and Children • Husbands/Fathers were responsible for controlling the behavior of family members • Private punishment was less disruptive to society • Supported by legal precedent and norms

7. Restricting IPV • Common Law responses continued but statutes began to delineate how and when a husband could beat his wife: • The "Rule of Thumb" adopted which permitted beatings with a stick that were no thicker than the circumference of the man's thumb. • PA statute prohibited wife beating after 10:00 PM each night and all day on Sundays • In 1871, Alabama and Massachusetts became the first states to rescind wife beating.

8. Industrialization • Brought a societal and legal shift in focus toward child abuse and away from IPV: • Conflict between preserving the private family unit and protecting women and children • Child abuse provided a rational purpose for imposing social control into the family • Emphasis on individual deviance and the failings of mothers in raising their children

9. Theoretical Perspectives • Violence between spouses and towards children recognized as a problem by industrialization era, but not as a crime. Viewed from a: • Political perspective = issue regarding relations of power and authority between men and women • Medical perspective = individual illness or deviance

10. Psychological or Social Remedies • Organizations addressing issues of child abuse formed: • Societies for the Prevention of Cruelty to Children formed in response to case of Mary Ellen who was beaten by her caretakers • Federal and State Children's Bureau • Juvenile, family/domestic relations courts created: • First juvenile court (1899) formed with the emphasis on treatment • First family court formed in Buffalo, NY (1911)

11. State Intervention Sanctioned by the Court • In Prince v. Massachusetts (1944), the U.S. Supreme Court confirmed the right of States to intervene in family relationships. • Despite court ruling, criminal statues addressing IPV and child abuse were infrequently enforced. • Societal attitudes continued to be resistant to change

12. Battered Child Syndrome • The writings of Dr. Henry Kempe and others (1960s) brought significant professional and public awareness to child abuse and served as a catalyst for change in how issue was addressed: • Coining the concept "battered child syndrome" which gave rise to the current child protection systems including mandated reporting laws • Government assumed and have continued a proactive approach in addressing child welfare

13. Shelter Movement • It would not be until the 1970s with the emergence of the shelter movement that societal attitudes toward IPV began to change: • arose out of battered women's stories • Chiswick Women's Aid in England opened the first shelter for victims of IPV(1971). • The first American Shelter was opened in St. Paul Minnesota in 1979. • Shelter movement would evolve into the Battered Women's Movement.

14. Battered Women's Movement(BWM) • BWM solidifed by a small study conducted in an affluent county in Maryland which illustrated the prevalence and severity of the problem of IPV • Philosophical framework developed as an issue of gender subordination • Political and Legal System became tools for change

15. Legal Response to IPV During Earlier Stages of BWM • NYS Courts: • Prior to 1977, Family Court had primary jurisdiction of family cases unless judge transferred to criminal court. • Art. 8 of FCA (1977) gave victims the right to seek relief in either Family or Criminal Court • Victims were allotted 72 hours to decide on a court • Police response was primarily to separate and to mediate

16. Objectives of Legal Reforms • Strengthen criminal sanctions in order to deter violence • Foster perpetrator accountability • Expand the available civil remedies • Provision of legal assistance for battered women • Create legislation derived from the experiences of battered women

17. Why Responses to IPV Changed • To Pivotal Events: • Mid 1970s: IPV victims began suing police departments for failing to act on their behalf • In 1984, the US Attorney General's Task Force on Family Violence published a report stating that arrest was a preferred response to IPV incidents

18. Legal Developments at Federal Level: 1970s -1980s • Federal Child Abuse and Prevention Act (CAPTA) of 1974: emphasized the investigation and tracking of child abuse. • Child neglect defined as an act or a failure to act which presents an imminent risk of serious harm to the child. • The Adoption Assistance and Child Welfare Act (AACWA) of 1980: focused on family preservation and reunification. • Reasonable Efforts to return children to their home. • In 1984, the Family Violence Prevention and Treatment Act was amended and attached to CAPTA.

19. Legal Developments in the Criminal Justice System: 1970s - 1980s • Developments meant to bring attention to IPV as a crime and not solely a social problem: • Wives permitted to bring criminal actions for injuries perpetrated by husbands • Warrantless probable cause arrest laws passed • Violations of protection orders designed to have criminal sanctions

20. Legal Developments in the Civil Justice System: 1970s - 1980s • Changes in the Civil System meant to expand the definition of IPV and the available options: • civil protection order laws implemented as part of divorce, separation and/or custody proceedings • expansion of relief (i.e. property use, restitution...) • application beyond married couples (i.e. divorced partners) • best interests of the child standard adopted • impact of IPV to be considered as a factor in custody and visitation determinations (N.Y.S. DRL sec. 240(1))

21. Violence Against Women Act of 1994 (VAWA) • One of the most significant pieces of Federal Legislation addressing IPV: • IPV not merely a "private matter" but an issue of public safety and gender discrimination. • Addressed issues related victim services, criminal justice intervention efforts, civil rights and police training. • Aim was to expand federal criminal jurisdiction and to create an incentive for state and local governments to adopt uniform legislation.

22. State Reforms in Response to VAWA • Many states adopted provisions in accordance with VAWA: • Prevention became the focus of efforts • NYS passed Family Protection and Domestic Violence Act (1994) requiring mandatory arrest. • Problems with mutual arrest laws addressed by primary aggressor laws and self-defense laws. • NYS passed primary aggressor law in 1998. • Firearm provisions adopted which prohibited possession and/or required forfeitures

23. Adoption and Safe Families Act (AFSA) of 1997 • Federal response to the large number of children who were spending years in foster care as well as to select cases in which children were killed upon their return home. • Changes adopted to the reasonable efforts requirement, time period for reunification efforts and the need to consider the presence of IPV in the home.

24. Adoption and Safe Families Act (AFSA) of 1997 • Implications for Victims of IPV: • If timelines implemented to rigidly could result in termination of non-offending parent's ties to children. • Interpretation of reasonable efforts provision has resulted in a trend towards increased parental liability of the non-offending parent for failure to protect. • NYS Adoption and Families Act of 1999 requires courts to consider the presence of IPV in placement determinations.

25. Pivotal Legal Issues • Batterers use of violence to achieve power and control over their partners and children. • The increase in the severity of violence when batterers' control is challenged • Batterers often endanger their children • Accepted discipline techniques for children which increases likelihood and provides justification for many batterers in hitting their partners. • Battered women and their children are frequently economically dependent on the batterers • IPV as well as its remedies are costly • Consequences of IPV must be substantial for batterers to cease their behavior

26. Keeping Children and Families Safe Act of 2003(P.L. 108-36) • Limited version of Children who Witness Domestic Violence Act included in legislation: • grants to assist children who have been exposed to IPV • grants provided for cross-training on child welfare and IPV issues • provide funds for community based programs • Issue: funding provision requirement of 130 million