brief history of vawa and the restraining order

8/6/2019 Brief History of VAWA and the Restraining Order

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Brief History of VAWA and the Restraining Order

Domestic violence has existed throughout recorded history. However, brutality

has no place in a civilized culture. The evolution of our laws culminated intolegislation clarifying that battery against one's household members would nolonger be tolerated. One method of extending protection to women seeking toescape abusive relationships is the restraining order, which grants a civilremedy (no abuse) ordering the batterer to stay away from his victim. Theinitial "temporary" restraining order is liberally granted for probable cause for aperiod of up to 10 days until a hearing can be held to determine it's validity.The "permanent" hearing determines, by preponderance of the evidence, ifthe defendant has committed behavior such as assault, battery, or otherdisturbing behavior which now goes under the title of "stalking".

Violation of the restraining order is punishable by criminal sanctions if theabuser continues his confrontational behavior. By ordering a batterer tovacate the premises and avoid contact with the victim, an intermediary step isprovided for women seeking to escape abusive relationships who don't desireto pursue criminal charges or put their former intimate partner in jail. Mindful ofthe tragedies which frequently accompanied domestic violence, our civilizedculture has decided that preventing potentially deadly confrontations betweenformer intimates outweighs the inconvenience to the batterer seeking to forcea former partner to remain in a relationship with him.

As abuse prevention laws were vigorously enforced by law enforcementofficials, the traditional avenues open to batterers to maintain control of theirvictims began to slam shut. Some batterers successfully completed treatmentin court-ordered batterer's intervention programs. However, not all treatmentwas successful. The recidivism rate of batterer's who don't acknowledge theirbattering behavior is particularly high. As observed by David Adams, ClinicalDirector of EMERGE (the first counseling program in the nation for batteringmen):

"Often, men who abuse are well-liked and highly regarded in theircommunities ... and peers. They appear to be rational, well-adjusted, andeven sensitive, and to have positive social relationships. In fact, these menuse physical and psychological abuse as a means of privately controllingrelationships with their partners, on whom they actually often have apathological dependence.


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"The typical abuser's reaction to the legal system is that the system is unfair tobe publicly embarrassed and put out of his home. Abusers tend to minimizetheir abusive behavior, tend to consider their actions as not abusive, and thinkthat private actions are not properly the subject of scrutiny. Alternatively,abusers may concede violence, but divert attention to a partner's problems as

a way of justifying the violence. In the narcissism characteristic of abusers,these men are rarely able to see the partner's perspective on the relationship,often shifting responsibility for the abuse to the victim."(Gender Bias Study of theSupreme Judicial Court of Massachusetts, 1989, p. 83)

Traditionally, family violence was not taken seriously by the courts. Prior to thelate seventies, most states did not have statutes providing civil relief forwomen seeking protection from abuse, and domestic violence cases did notreceive serious attention from the criminal justice community. Instead,domestic violence was considered a "family" matter to be "worked out" by the

parties involved. Women who were victims of family violence were oftenblamed for their predicament and denied the protection of the courts . (GenderBias Study of the Supreme Judicial Court, Mass.1989, p. 79).

Beginning in the late seventies, advocates for battered women weresuccessful in convincing lawmakers that victims of domestic violence wereentitled to government protection. In 1978, Massachusetts passed an abuseprevention act that allowed victims of domestic violence to obtain a civil orderprotecting them from their abusers. However, society was slow to change it'simage of the battered women. Police personnel, judges, and even the victims

own support network tended to view domestic violence as a trivial offense.Judges and juries expect more corroboration of physical injuries in domesticviolence than in other serious crimes. Sentences in domestic violence caseswere generally lower than in cases of other serious crimes. Orders were oftennot enforced, giving the batterer the impression that the law didn't take hiscriminal acts seriously.

"The tendency to doubt the testimony of domestic violence victims and to"blame" them for their predicament no only hampers the court's ability toprovide victims with the protection they deserve, it also has a chilling effect on

victims' willingness to seek relief."(Gender Bias Study of the Supreme Judicial Court,Mass. 1989, p. 80).

As public awareness increased, the legislature passed stricter laws enforcingviolations of restraining orders which eventually culminated in the Violence

Against Women Act of 1994 (VAWA) which created extensive anti-abuselegislation, defined stalking laws, encouraged police and court personnel


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training for those states which did not already have programs in place, andgave women a federal cause of action for crimes motivated by gender. In spiteof these improvements, even today "many women who flee violence areforced to return to their abusers because of inadequate shelter or lack ofmoney. Even if they leave their abusers to go to a shelter, they often return

home because the isolation from familiar surroundings, friends, andneighborhood resources makes them feel even more vulnerable." (Congressionalfindings, VAWA proposed 1999 amendments, H.R. 357, Title II, s. 402 (5)).

Currently, the Violence Against Women Act of 1999 is working its way throughCongress. It defines broader classifications of abuse to be applied by thestates, increases the penalties for interstate stalking, mandates greaterprotection for children of battered women who witness abuse, prohibitsemployers from discriminating against battered women who lose time fromwork to seek a restraining orders against an abuser, and extend VAWA'sprotection to traditionally under served communities such as immigrantbattered women and elderly battered women. One way which the proposedlegislation will increase protection to battered women is it's broad sweepingdefinition of abuse.

" 'Abuse' means the occurrence of one or more of the following acts by a current or former household orfamily member, intimate partner, or caretaker: (a) Attempting to cause or causing another person bodilyinjury, physical harm, substantialemotionaldistress, psychologicaltrauma, rape, sexual assault, orinvoluntary sexual intercourse; (b) Engaginginacourse ofconductorrepeatedlycommittingactstowardanotherperson,including followingthe person withoutproperauthorityandundercircumstancesthatplace the personinreasonable fearofbodilyinjuryorphysicalharm; (c) subjecting another person to

false imprisonment or kidnapping; (d) attemptingto cause orcausing damage to propertyso astointimidate orattemptto controlthe behaviorofanotherperson." [italics mine](Congressional findings,

VAWA proposed 1999 amendments, H.R. 357, Title II, s. 422 (1)).

This refinement of the definition of abuse includes behavior such as"following" or "controlling" which courts have traditionally been reluctant togrant protection. These refinements will hopefully allow the courts greaterleeway in affording protection to the victims of domestic violence.

What the proposed revisions don'tdescribe is the disturbing trend amongstFather's Rights groups and the battering community at large to teach men

how to violate restraining orders legallyby skirting existing definitions ofassault and battery. Instead of sending the victim a threatening letter,thebatterer is taught to disguise his message as a "complaint" to a court orstate administrative agency where the victim will be forced to lose a dayout of work to confront her batterer.The "message" is not considered aviolation of a restraining order, and judges or agency administrators willshrug apathetically when the victim tells them this is the 10th or 12th such


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hearing she has been forced to defend in 6 months and vacuously tell her "hehas a right to redress his grievances."

Nor do police take it seriously when the batterer encourages third parties totelephone the victims friends, or contact them directly, to "discuss" how

"unreasonable" the victim is being by attempting to escape the batterer.

Since the batterer relays the message through an intermediary to a friend andcarefully avoids asking the friend to pass a message along to the victim, third-party contact provisions are not violated and the victim is without recourseeven though the batterer may have coverts repeatedly telephone her familyand friends, thereby diminishing her support network. In those "comparativelyrare" cases where the violating conduct involves that of a third party, someproof of the defendant's intent is required. In such instances, where the issueis raised whether the defendant directed or acquiesced in the conduct of the

third party, the Commonwealth must prove that the defendant intended the actthat resulted in the violation. In this case, the Court ruled that the evidencewas sufficient to warrant such a finding, based on the evidence that thedefendant knew of the order, was in a car driven by his son, other routes wereavailable, and that the victim had direct eye contact with the defendant whilethe car was purposefully driven to within three feet of her in a threateningmanner. (Commonwealth v. Delaney, 425 Mass. 587 (1997)).

Stalking is essentially psychological warfare in the battle for control. (SpecialistsSayStalkers are Driven by a Need to Control,Terry Wilson, Chicago Tribune, Feb. 23, 1992). It is

a pattern of multifaceted conduct intentionally targeted at a specific personthat terrorizes the victim. Minimal contact with a former abusive partner maytrigger substantial emotional distress. Batterer-stalkers who know their victimsoften use familiar gestures to provoke a particular response or fear. (Lenore E.Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Public Policy,

324).

This harm was acknowledged in the case ofCommonwealthv.Thompsonwhere the defendant attempted to argue to the MassachusettsCourt of Appeals that the "no contact" provision in his estranged girlfriends

abuse prevention order violated his constitutional right to free speech. "Whenan expressive activity produces "special harms distinct from theircommunicative impact, such [activity is] entitled to no constitutionalprotection." (Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244 (1984)).Speech that places the victim in reasonable apprehension of imminent seriousphysical harm is conduct equivalent to the crime of assault and accordingly isunprotected by the First Amendment. (Commonwealth v. Robicheau, 654 N.E.2d 1196,


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421 Mass 176, 182-183 (1995)). The harm created by contact from an abuser -- theinability of the victim to escape the abusive relationship fully and the fearcreated by the abuser's continuing presence -- is distinct from and unrelatedto any message the abuser might be seeking to send. While an abuser has aright to speak his mind freely in any number of forums, he has no right to seek

out and contact the victim of his abuse, forcing that victim to endure hisunwanted and destructive presence in her life -- no matter how harmless orimportant the message he seeks to deliver. When offensive, or even harmfulspeech takes place in a public forum and is directed to no single person,anyone who wishes not to listen may walk away ... [however] when an abusersingles out the victim of his abuse (as judicially determined) and directsunwanted communications to that person, the victim cannot walk away." (Commonwealth v. Thompson (699 N.E. 2d 847, 1998, 45 Mass.App.Ct. 523, 525 (1998)).

brief history of vawa and the restraining order

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