"If we were asked to design a system for making sure that children’s basic needs were met, we would probably come up with something quite similar to the two-parent ideal. Such a design, in theory, would not only ensure that children had access to the time and money of two adults, it also would provide a system of checks and balances that promoted quality parenting. The fact that both parents have a biological connection to the child would increase the likelihood that the parents would identify with the child and be willing to sacrifice for that child, and it would reduce the likelihood that either parent would abuse the child." -- Sara McLanahan and Gary Sandefur, Growing Up With a Single Parent (Harvard, 1994)
At first glance, prevention of domestic violence seems like a laudable goal to which nobody could possibly object. The problems of women being beaten by abusive men is all too real and protection is needed. Any sane person is against wife battering. The Violence Against Women Act (VAWA) is a law which was well intentioned and passed easily in 1994. It was then renewed in 2000 and 2005.
The 2011 renewal didn't complete until 2013 and was more controversial. Partially it was because of being mixed up with the same-sex marriage debate. VAWA legislation ended up with significant changes. Provisions are now gender-neutral even though the name is still “Violence Against Women”, and does finally address battered men as well as LGBT couples. (See Wikipedia among other sources.) But other problems are not addressed.
There are problems and injustices with the domestic violence legislation as it exists today in most states:
- It deals primarily with men vs women violence, and largely ignored women vs men violence. (However, now that is improved at least in theory in VAWA 2013.)
- A person accused of domestic violence is considered guilty until proven innocent, in a reversal of normal principals of justice.
- Definitions of "abuse" are sometimes so broad that nearly anybody can be accused of it.
- Most importantly, fraudulent claims of domestic violence are common and unpunished in many states. It is a favored divorce tactic in many states.
- Provocation of spousal abuse by a women is encouraged by these laws. Often, a wife will deliberately provoke a husband to slap her in hopes of gaining a very favorable divorce settlement.
- Divorce is often a cause of spousal abuse – particularly if infidelity is involved -- rather than an escape from it.
- Spousal abuse and child abuse are sometimes considered to be closely related, products of violent men. But in fact, spousal abuse is a very different problem from child abuse. Legal solutions to spousal abuse might actually increase child abuse in some cases.
Let's look at each of these in turn:
1. Battered Men
Though men are physically larger and stronger than women on average, many exceptions exist; verbal and psychological abuse is possible; and a women armed with a weapon can easily dominate an unarmed man. Statistically, about 75% of victims are women and 25% are men. Hopefully the gender-neutral language of VAWA 2013 will improve justice for that 25%.
2. Guilty until proven innocent
In most states, as soon as a women complains to the police or a court about domestic violence, a protection order is issued, and the police will come to remove the man from the home. This makes sense – the woman's life could be in danger, and getting actual proof of that could take time. But in many states, then it is up to the man to prove that he was not really abusive, and be allowed to come back to his home and his children. Sometimes that could take months or even years, even if the man is completely innocent and the charges were just a ruse for the wife to start a divorce and get custody. (A new documentary by Janks Morton on this subject has the title "Guilty Until Proven Innocent"; I haven't had the chance to see it yet.)
3. What is Abuse?
A strict definition of exactly what is "abuse" or "domestic violence" is hard to formulate. Overly exact definitions such as physical striking with a certain amount of force don't work well because other kinds of behavior could be abusive as well, depending on the circumstances and the repetition of it. Therefore, many people (and courts) have very broad definitions, so as to try to protect as many victims as possible. For example, this family violence prevention center has a very long list including things like "Does your partner check your e-mail" and "Does your partner call you names" as well as more obvious things such as "Does your partner hit you?" and concludes "If your answer is "yes" to any of these questions, you are in an abusive relationship". Offering services to lots of women is fine – but prosecuting lots of men whom women consider to be "abusive" by some very broad definition is not. Even if eventually the charges of domestic violence are dis-proven, often the man will completely loose all custody of his children by the time it is all finished. Certainly protection of battered women is necessary and the problem is real – but it should be fair to everybody concerned and all facts need to be investigated carefully.
4. Fraudulent claims of abuse
The worst problem part of our domestic violence laws is the easiest to fix. In many states, women who are thinking about starting a divorce – for whatever reason – are encouraged to begin by filing for a Restraining Order (aka Protection From Abuse order) against their husband, based on claims that he has been abusing her or might be threatening to abuse her. In most states, little or no proof is needed at that point, just a woman's statement is enough, so there need not be any truth at all to the statement. The police will come, perhaps give the man 20 minutes to collect his things, and then he is removed from his home and prevented from seeing his children or even talking to his wife. He might spend a night or two in jail, or be able to stay with a friend or relative or in a motel. Eventually there will be a hearing for both sides to present evidence. States vary widely on how long that time is; it might be just 10 days but it might be months. Also, states vary on how the hearings are conducted. Stephen Baskerville cites cases where judges of “kangaroo courts” barely gives the accused man a chance to speak before the sentence is passed that he is forever barred from seeing his children or his wife again. In other states, though, the family-law courts will be able to see that the charges were false, and this will reflect badly on the women in later child-custody litigation. In still other states, the man might be allowed to return home if the charges have been found to be unsupported, but the fact that the woman filed the unfounded charges won't be held against her in any way. It all depends on the state.
In states which don't have punishment for filings of false charges of abuse, lawyers often encourage women to initiate divorces by calling the police and claiming that their husband is abusing them, or by filing for protection. The police come to take him away, and the woman keeps the home and the children. Then the woman files for divorce. The woman is certain to get full custody and generous spousal support if the abuse charges stand. But if the man is cleared of the charges, the woman will probably still get primary custody of the children just because they are used to living at home with her by that time and might be alienated from their father who had been taken away by the police. The woman will have had a lot of time to engage in parental alienation to turn the kids against the father whom she raised charges against. If a woman was truly battered by an abusive husband, she deserves the full protection of the law – but all too often "domestic violence" is just a legal maneuver by a woman who wants to get rid of her husband to make room for a boyfriend. This falls under state law, not VAWA.
Stephen Baskerville shows in his book Taken Into Custody, by quoting many lawyers: “Open perjury is readily acknowledged in family law circles. … Bar associations and even courts themselves regularly sponsor seminars counseling mothers on how to fabricate abuse accusation. 'The number of women attending the seminars who smugly – indeed boastfully – announced that they had already sworn out false or grossly exaggerated domestic violence claims against their hapless husband, and the device worked!'”
The flood of false claims of domestic violence is not only is extremely unfair to the men who are charged, but also it detracts attention and resources from those women or children who are truly abused.
The massive fraud of false domestic violence claims is by far the biggest problem with current domestic violence laws, but also the easiest to fix. Some states already have laws to discourage and punish the filing of unfounded charges – all states should do so.
A new Facebook group DV Fraud Resistance discusses the problem of false Domestic Violence charges.
5. Provocation of violence and marital infidelity
In addition to completely false changes, another common divorce tactic is for the women to deliberately provoke an unwanted husband to slap her. If she was having an affair and insults her husband with it, that makes it easy to provoke violence. Nobody should ever use violence in domestic disputes, but shouldn't the circumstances be considered? Baskerville even cites cases where the women struck the man first, then the man struck back, and the man was punished while the woman was not. The man's reaction makes the spousal abuse real and the man will be quickly tossed out of his home and will pay large sums of money for the rest of his life. Domestic violence of men against women is never acceptable but considering all women as innocent victims rather than considering the circumstances is unfair.
6. No-Fault divorce and spousal abuse
Easy No-Fault divorce is sometimes defended on the grounds that it allows an easy escape from domestic violence situations. But this is nonsense. First, divorce on grounds of abuse are not that hard to do; it should not be "No-Fault" if there is genuine abuse and real fault. Many battered-women shelters and public services stand ready to assist battered woman with the legal expenses if necessary. Secondly, the worst domestic violence often occurs during or after a divorce, not before it. There are a few men who beat innocent wives for no reason; but there are a lot more men who might hit wives under extreme stress conditions. Though sometimes divorce is a solution for people to escape from abusive spouses, sometimes it could instead be a trigger to start violence which didn't exist before.
An uncomfortable question must be asked: why is it that adultery and divorce are always considered as “nobody's fault” but spousal abuse of men against women is always considered as 100% the fault of the perpetrator and 0% the fault of the victim? This is a problem of our divorce laws more than our DV laws, but still it does show the anti-male bias in our family law system.
7. Spousal abuse and child abuse are unrelated problems
The stereotype is that the same violent men beat both wives and children. We sometimes use the words “domestic violence” to generically refer to both spousal abuse and child abuse. Some VAWA supporter even claim that by preventing violence against women, abuse of children will be prevented as well. But the more complicated reality is child abuse is quite unrelated to spousal abuse. Statistics about perpetrators are totally different: spousal abuse is committed by men 75% of the time, whereas child abuse is committed by men only 40% of the time; and those men who commit it are more likely to be boyfriends of the mother or step fathers than biological fathers. Spousal abuse is a matter of out-of-control violence, whereas child abuse is often sexual deviance. In other words, spousal abuse and child abuse are two separate issues and need separate solutions.
In general the presence of a biological father greatly helps to avoid child abuse by others. Child abuse is 33 times more likely to happen in homes without the biological father, often at the hands of stepparents.
As Baskerville states “it is clear that the child abuse explosion has coincided with with the divorce revolution and the rise in single-parent homes. In the seven years between two federal studies, 1986-1993, physical abuse of children was found to have nearly doubled, sexual abuse apparently more than doubled.” And later “it is still clear from the figures they report that it is not fathers but mothers – overwhelmingly single mothers - who are by far the most likely to injure and kill their children.”
Here is an article about the problem of fraudulent child abuse charges which is similar to the problem of fraudulent spousal abuse changes.
To repeat, the agenda of Father's rights groups is not to defend wife batterers or to deny that spousal abuse is real. We do not want to deny the reality of the suffering of abuse. The point is to have gender neutrality in the application of these laws. Spousal abuse prevention should be to protect the women and sometimes men who really need it, not just another dirty trick of dishonest divorce lawyers. Child abuse can be reduced by reducing our divorce rate and by giving fathers a greater share of custody when divorce is unavoidable.
Book review of Taken into Custody, by Stephen Baskerville