Nobody supports domestic violence, but addressing the problem with flawed laws is not the answer to the problem. California’s spousal battery law — section 273.5 of the Penal Code — exemplifies the flawed notion that the criminal justice system can be used to attack a social problem. Here are five significant flaws embodied in 273.5 PC.
1. Unequal treatment of abuse victims
If a man punches his sister on the chin and knocks her down, he commits the crime of battery in violation of 242 PC. The battery is a misdemeanor. Assuming the punch causes no serious injury, the maximum sentence is 6 months.
If the same man slaps his wife, causing just the mildest pain, he commits the crime of spousal battery in violation of 273.5 PC. The spousal battery can be charged as a felony. The maximum sentence is 4 years.
Why is slapping your spouse a more serious crime than punching your sibling? It shouldn’t be. The first flaw with 273.5 PC is that it makes no sense.
2. Unwanted arrests
Another flaw with 273.5 PC is its relationship to a California law that encourages the police to make arrests in domestic violence cases if they have probable cause to do so. “Probable cause” simply means that a spouse tells the officer that his or her spouse inflicted pain or injury and the officer believes the accusation is probably true. A reddening of the skin might bolster the officer’s belief but even that evidence is not required to establish probable cause.
Several years ago, a spouse would call the police during an angry quarrel and expect the officer to calm her husband down by driving him around the block and giving him a scolding. Now the police are likely to make an arrest even if the spouse who called the police does not want an arrest to be made. The law makes a bad situation worse by encouraging the police to make unwanted felony arrests that further damage distressed relationships.
3. False accusations
Making spousal battery a more serious crime than other batteries provides a weapon to people in a relationship. Any person protected by 273.5 PC — not just spouses, but current and former cohabitants, co-parents, and people who are in a current or former dating relationship with the accused — can turn a domestic disagreement into a felony charge by calling the police and making a false report. “My former boyfriend twisted my arm and it still hurts” is all a former lover needs to say to provoke a felony arrest.
Victims do not often make a false battery accusation against a stranger. People in a domestic relationship too commonly make false accusations because they know the trouble they can cause. Making spousal abuse a felony encourages false accusations by raising the stakes. A parent who wants to gain an advantage in a custody proceeding or a vindictive ex-lover who seeks revenge after a breakup can easily get what they want by making false accusations that lead to felony charges.
4. Felony charges that are disproportionate to harm
Any injury, no matter how slight, can lead to a felony charge under 273.5 PC. Felonies have serious consequences. A pending felony charge can make it difficult to obtain professional licenses or to secure certain kinds of employment. A felony conviction can affect civil liberties, including the right to vote and to possess firearms. No person accused of causing a trivial injury should face such severe consequences simply because the alleged victim is a current or former spouse or lover.
5. Misuse of the criminal justice system
False accusations of domestic violence are a serious problem, but not all accusations are false. Some people in a relationship do better than their partners. Those people often grew up in an abusive environment, watching one parent abuse the other. They need to “unlearn” those patterns of behavior.
Jail, fines, and criminal records do not break the cycle of violence. If anything, they make angry people angrier. The criminal justice system does not have the right tools or resources to prevent domestic violence.
Treatment programs, including anger management classes, therapy, and domestic violence counseling can change lives. The treatment gets at the root of domestic violence. The criminal justice system addresses the symptoms and more often than not makes the problem worse. Nobody comes out of prison less abusive than they were before they were locked up.