Blogs from October, 2014

News coverage of domestic violence has increased sharply this year as advocacy groups have persuaded the NFL and other organizations to publicize the issue. Nobody condones or excuses family abuse, nor does any reasonable person condemn attempts to raise public awareness.

At the same time, it is important to maintain a balanced perspective on all criminal justice issues, including crimes that are committed within a family. The growing public hysteria that surrounds these offenses has given birth to five myths about the defense of criminal accusations that carry the “DV” label.

Myth 1:  All accusations of domestic violence are true

Unfortunately, most studies and news stories concerning DV assume that every claim of victimization is true. Self-reports of DV are not necessarily reliable. The sad fact is that some accusations of abuse are false.

Untrue accusations of abuse, sexual assault, and other forms of physical abuse against family members are made for a number of reasons. When divorcing spouses are embroiled in a custody dispute, making a false accusation of child abuse can influence the court to deny custody to the accused spouse. When one spouse cheats on another, a vindictive spouse might “get even” by making a false accusation of domestic battery. A child might claim to have been abused to avoid parental rules or discipline.

After an individual has entered the criminal justice system on a charge of DV, the threat to make a new accusation can be an instrument of control. When a spouse knows that a simple telephone call can result in the revocation of bail or probation, the threat to make that call can be a form of blackmail. In too many cases, the attempt to “empower” victims has empowered individuals to ruin the lives of family members by making false claims of victimization.

Myth 2:  Harsh punishment deters domestic violence

In his book Violence and Nonviolence, Dr. Barry Gan writes that punishment “is counterproductive as an effort to reduce violence.” While politicians and judges often claim that harsh punishment deters violent crime, statistics demonstrate that the severity of punishment has little impact on the likelihood that an offender will commit another violent crime.

Severe punishment fosters the kind of anger that fuels abuse. In most cases, treatment programs and counseling are a more useful response to DV than jail or prison sentences. Learning anger management techniques is more beneficial for abusers than learning to serve time in prison. Locking people up does not help them overcome the patterns of abuse they learned while growing up in an abusive family. Cycles of abuse can only be overcome by helping abusers recognize and overcome the source of their anger.

Myth 3:  All crimes of domestic violence are equally serious

Any act of actual or threatened violence against a spouse or family member is statistically classified as DV. When you see figures about the percentage of families that have experienced DV, you need to understand that not all of those families have been exposed to the same degree of harm.

Surveys of domestic violence usually classify a spouse as a victim if the other spouse has threatened violence, even if no physical violence ever occurs. Some studies classify “psychological aggression” as an act of DV. Those studies leave it to the person responding to survey questions to decide that strong language or a raised voice constitutes psychological aggression. While heated arguments in a family are not ideal, they are quite common. Threats of physical violence are never appropriate, but it is misleading to treat a threat of violence as equivalent to an act of violence.

Some crimes that are classified as DV, including a sexual assault or an aggravated battery committed against a family member, are very serious. Other crimes, such as a mild shove that might be charged as disorderly conduct, are considerably less serious. Yet all crimes that get a “DV” label are cited as proof that domestic violence is a widespread and growing concern. A more nuanced approach is needed to understand the true nature of these crimes.

Myth 4:  Mandatory arrest laws are a solution to domestic violence

A number of states have implemented mandatory arrest laws for allegations of abuse. When the police in those states respond to a report of DV, they have no choice but to make an arrest if they believe evidence exists that the alleged offense has occurred. Many states have softened their mandatory arrest laws because the police frequently arrested both spouses after encountering evidence that each spouse had behaved violently toward the other. That was not the outcome that politicians anticipated when they enacted mandatory arrest laws.

Mandatory arrest laws cause problems when a spouse calls the police with the hope that an officer’s presence will have a calming effect on the other spouse. When a police officer makes an arrest against the wishes of the spouse who called the police, that spouse will be less likely to seek police intervention in the future. Mandatory arrest laws remove discretion from experienced officers who understand that an arrest is not the best way to resolve every domestic dispute. When neither the spouse who called the police nor the officer who responds to the call considers an arrest to be necessary, society is not well served by laws that force the officer to make an arrest.

Myth 5:  Domestic violence attorneys are scumbags

The Constitution that American soldiers have fought and died to protect for more than two centuries guarantees every person accused of a crime the right to counsel. Innocent people are falsely accused of crimes every day. The right to a jury trial, to the presumption of innocence, to prove beyond a reasonable doubt, and to representation by an attorney are all designed to assure that false accusations do not result in wrongful convictions.

Lawyers who defend individuals charged with crimes of domestic violence are actually defending the Constitution. They make sure that the criminal justice system operates as it is intended to function. They help innocent defendants avoid conviction and they work to assure that convicted defendants receive reasonable outcomes. While criminal defense attorneys do not condone domestic violence, neither do they condone the attitude that the right to a vigorous defense depends upon how society feels about the crime that has been charged.