Developments in the
Law Affecting Women Law Day 1988 (Click Here to view entire document in PDF format) | |
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VIOLENCE AGAINST WOMEN
By Barbara Mulé
Suzanne has just discussed with you the problem of sexual harassment in the workplace; unfortunately this problem is not limited to the employment area but confronts women in various aspects of their lives. This part of the presentation will focus on the issue of violence against women, including domestic abuse and pornography. I plan to highlight new approaches being used in New York as well as in other states to try to diminish the incidents of violence and to ensure full protection for women. Recently much attention has been focused on the issue of domestic violence. It is estimated that over two million American women are severely beaten each year and almost four thousand are killed by either a spouse or live-in partner. The severity of the problem in New York has prompted the introduction of legislation which would amend the penal law to include the crime of domestic abuse. Despite the severity of the problem, however, there appears a hesitancy or unwillingness in the law enforcement and judicial communities to confront the problem. This is most likely due to misconceptions of the nature and effect of the violence. The Women and the Courts Task Force Report recognized the problem of judicial personnel being underinformed about the nature of domestic violence, and hopefully through the implementation of the Report's recommendations, more information will be available to ensure that "traditional" avenues of redress, such as criminal prosecutions and orders of protection, are fully and properly utilized. "It is estimated that over two million American women are severely beaten each year and almost four thousand are killed by either a spouse or live-in partner."Because women have usually found the "traditional" avenues of redress unavailing, new approaches are being utilized to combat domestic violence. These approaches include damage suits brought against the batterers as well as against police officers and municipalities. In a number of states, either pursuant to statute or under common law principles, a battered spouse can sue her husband for damages in tort. In New York, pursuant to General Obligations Law § 3:313, this option is available to battered women. More common apparently, are actions brought against police officers for failure to arrest or for failure to respond to domestic violence calls. Because the Court is familiar with these type of tort actions, as it was faced with the issues in both Bruno v Cotid and Sorichetti v City of New York, I will not discuss them here. Rather, I would like to discuss the constitutional challenges being brought, predominantly in Federal court with pendent state claims. These actions challenge police policies which treat domestic violence incidents differently from other assault cases as a denial of equal protection. The most well known case involving such a challenge is Thurman v City of Torrington. In that case, the Federal District Court for the District of Connecticut, on a motion to dismiss, determined that plaintiff's complaint, alleging that the Torrington Police Department's policy which consistently afforded lesser protection to victims of spousal abuse by failing to respond to calls for assistance constituted a denial of equal protection, stated a cause of action. Although all of the reported cases raising such challenges have been decided at the pleadings stage, the likelihood of success at trial appears viable under Supreme Court precedents. The harder cases will arise when a non arrest policy is not premised on an openly gender-based classification as in Thurman but instead is based on a strongly gender neutral policy such as not responding because to do so would be an interference in family privacy. In light of the recent attention given to New York's equal protection clause, such an issue might confront the Court in the near future. "because of the many roadblocks encountered in working through the law enforcement and judicial systems, some victims of domestic violence resort to killing their batterers to end the violence."Despite the avenues of redress available to battered women, because of the many roadblocks encountered in working through the law enforcement and judicial systems, some victims of domestic violence resort to killing their batterers to end the violence. A study by the Superintendent of the Women's Division of the Cook County Department of Corrections found that 40% of women in the prison system, convicted of murder or manslaughter, were women who had killed their abusing male partner. Because of the unique circumstances that lead a woman to resort to such violence, the battered woman defendant raises new issues for the courts. One such issue is the defenses or justifications available to the criminal defendant. Although the justification of self-defense is available in those cases where a woman kills her batterer during an incident of violence, such defense is normally not available when the woman kills the batterer after the violence has subsided. Because of the inappropriateness of the traditional self-defense justification in many battering/killing situations, advocates have turned to reliance upon the "battered wife syndrome" as a justification for the women's actions. "Battered wife syndrome" is the term used to describe the pattern or cycle of abuse which lead women to the violent act of killing their spouses. The syndrome involves a decrease in the woman's self-esteem, an emotional dependence on the male and a type of "learned" helplessness, which force the woman to view killing the batterer as the only means to end the violent relationship. Though "battered wife syndrome" has been getting greater recognition in the feminist and scientific community, there is disagreement among the state courts as to whether expert testimony on the syndrome should be admissible in court because it is disputed whether the subject matter is beyond the knowledge of the jury and whether the state of the science is sufficiently developed. Further, there is disagreement as to whether such evidence is relevant to a self-defense justification. To date, the high courts of Washington, D.C., Ohio and Wyoming have rejected the admissibility of such testimony, while the high courts of Maine, Georgia, Washington and New Jersey have held it admissible. Further disagreement appears as to whether exclusion of such testimony where admissible is harmless or reversible error. Research has revealed only one reported New York case which specifically dealt with the issue of the admissibility of expert testimony on "battered wife syndrome". That case is People v Torres, a 1985 case from Supreme Court, Bronx County. In Torres, the court held that expert testimony on "battered wife syndrome" was admissible because it was central to the justification defense of self-defense, substantially bearing on the defendant's state of mind. In so holding, the court determined that the evidence would serve to dispel ordinary lay perceptions that a woman who remains in a battering relationship is free to leave. Further, the court found that the theory underlying "battered wife syndrome" has passed the experimental stage and has gained a substantial enough scientific acceptance. Although the admissibility of such evidence is within the sound discretion of the trial court, because this Court may nonetheless be faced with the issue, as it was in People v Henson dealing with the admissibility of expert testimony on "battered child syndrome", I would like to point out some of the problems with use of the syndrome. First, it is commonly used in connection with a self-defense justification where the woman kills the batterer after the violence has subsided. Some commentators view such use as diluting the justification of self-defense, improperly turning it into one of excuse. Second, use of the "syndrome" testimony continues to stereotype women as weak and vulnerable, and thus sets them apart as a special class of defendants. To those feminists who believe that true equality will not occur until all distinctions between the sexes are removed, the reliance on any "syndrome" highlights differences which can only impede the progress of women. Therefore, some commentators recommend that a defense of diminished mental capacity or temporary insanity be used instead. Although the theory underlying "battered wife syndrome" is not without its problems, even if not admissible at trial, it provides the courts and law enforcement officials a deeper understanding of battered women and battered women who kill. Such an understanding is necessary to ensure women full protection under the law. "To some feminists and commentators, the root of the problem of violence against women ... is pornography..."I would now like to turn to pornography. To some feminists and commentators, the root of the problem of violence against women, including domestic violence, is pornography because such material depicts women in a manner that enforces notions that they are subordinate and subservient to men. This subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home and battery and rape on the streets. These advocates believe that violence against women will continue, despite available legal remedies, such as rape prosecutions and the issuing of protective orders, as long as pornography remains protected speech. Accordingly, anti-pornography statutes and ordinances have been proposed and/or enacted in a number of localities around the country, including Indianapolis, Minneapolis, Los Angeles and Suffolk County, New York. Such legislation seeks to eliminate pornography by classifying it as a systematic practice of exploitation and subordination based on sex which differentially harms women and thus constitutes a per se violation of their civil rights. The model legislation, drafted by Katherine MacKinnon and Andrea Dworkin, prohibits a person from trafficking in pornography, coercing others into performing in pornographic works or forcing pornography on another. Further, anyone injured by someone who has seen or read pornography would have a cause of action against the maker or seller. Pornography under the legislation is broadly defined as the "graphic sexually explicit subordination of women, whether in pictures or words." Because these statutes and ordinances do not conform to the obscenity standard established by the Supreme Court in Miller v California, the statutes have little chance of withstanding a constitutional attack, as was demonstrated in American Booksellers Association v Hudnut. In Hudnut, the Seventh Circuit struck down the Indianapolis ordinance on the ground that it was an impermissible content based restriction on speech. The Supreme Court affirmed the Seventh Circuit decision without opinion. Despite this setback, it appears that the anti-pornography advocates are continuing in their endeavor to eliminate pornography. Their approach appears to be based upon a refusal to utilize obscenity law to attack pornography, viewing such doctrine as utterly unresponsive to the harms posed to women by obscene materials; to these advocates, obscenity law focuses on abstract moral issues of sexuality whereas anti-pornography measures focus on power relationships and gender equality. These feminists potentially have much to gain if they are successful in persuading jurists of this difference between obscenity and anti-pornography. However, their success appears unlikely. The anti-pornography movement has spurred lively debate within the feminist community, between those feminists who seek to eliminate all pornography and those who view the ordinances as a form of censorship which perpetuates traditional, stereotypical views of women and their sexuality. The leading opponents of the anti-pornography ordinances are a group called Women Against Censorship. These women find social value in pornography, because it flouts conventional mores and conveys messages to society that sexuality need not be tied to reproduction, men or domesticity; such messages provide women a greater opportunity to gain equality. Further, to these advocates, the ordinances rest upon traditional, stereotypical views disapproving of sex and denying a woman's sexuality, and result in treating women as a special class. Such treatment echoes the protectionist legislation of the past, which provided women no significant benefits but greatly impeded their progress. Most importantly, the ordinances are viewed as overinclusive and tending to lead to self-censorship because they seek to curb much sexually explicit speech that can be reasonably perceived as neither sexist nor violent. To overcome the consequences of pornography, these women advocate an invigorated enforcement of already existing laws penalizing coercion, sexual harassment, assault, rape and economic exploitation and urge enactment of new laws to ensure job safety for women who choose to work in the pornography industry. If these women prevail, the court in the future may be faced with the pornography issue not through anti-pornography legislation but rather through the enforcement of more general laws. In conclusion, violence against women is prevalent in our society and is now beginning to receive the recognition necessary to work towards its elimination. With greater information available to the law enforcement and judicial communities, a reduction in the number of incidents can be achieved. Thank you. [VIOLENCE AGAINST WOMEN continued on next page]
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 The Historical Society of the Courts of the State of New York | |
