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April 30, 2005

gamecocks and battered women

Don Herzog: April 30, 2005

Cockfighting is a misdemeanor in South Carolina.  So is domestic violence.  The state House Judiciary Committee just approved a bill to make cockfighting a felony.  With sublime timing, they also tabled a bill to enhance the penalties for domestic violence.

State Rep. John Graham Altman (R-Charleston) approved the cockfighting bill:  "I was all for that.  Cockfighting reminds me of the Roman circus, coliseum."  No pagan excesses for him!  And he approved tabling the domestic violence bill:  "I think this bill is probably drafted out of an abundance of ignorance."

TV news reporter Kara Gormley grilled Altman about the juxtaposition of the two bills, and — well, here's the excerpt:

Altman:  "People who compare the two are not very smart and if you don't understand the difference, Ms. Gormley, between trying to ban the savage practice of watching chickens trying to kill each other and protecting people's rights in CDV statutes, I'll never be able to explain it to you in a hundred years, ma'am."

Gormley:  "That's fine if you feel you will never be able to explain it to me, but my question to you is:  does that show that we are valuing a gamecock's life over a woman's life?"

Altman:  "You're really not very bright and I realize you are not accustomed to this, but I'm accustomed to reporters having a better sense of depth of things and your asking this question to me would indicate you can't understand the answer.  To ask the question is to demonstrate an enormous amount of ignorance.  I'm not trying to be rude or hostile, I'm telling you."

Gormley:  "It's rude when you tell someone they are not very bright."

Altman:  "You're not very bright and you'll just have to live with that."

Afterward, the gallant Rep. Altman commented, "I wanted to offend that snippy reporter who come in here on a mission.  She already had the story and she came in with some dumb questions and I don't mind telling people when they ask dumb questions."

South Carolina hovers at or near the top of the national rankings on domestic violence.  Rep. Altman is baffled that any battered woman ever returns to the man who's battered her.  I'd have hoped anyone and everyone, let alone a representative considering legislation, would realize that plenty of those women have no reasonable alternatives.

Earlier this week, the representative rose in the House to express "regret, real regret, and real sorrow over the publicity that this House has gotten in the last week."  He acknowledged that he had "offended a lot of people — and some people I offended who I didn't offend, but they're still offended and I just want to apologize to each and every one.  My intentions were not, never have been, never will be, to paint this institution or any of you in a negative manner....  I'm sorry I caused pain to those to whom I really caused pain, and I'm sorry I caused pain to those who might want to say ouch anyway."  You'll notice the "apology" doesn't retract a word.  Or a vote.

This Yankee says ouch, all the way from up in Michigan.  Not because he wants to.  Down Carolina way, cockfighting's a felony, domestic violence a misdemeanor.  Hmmm.

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Left2Right has an interesting posting on some of the banter (excuse the pun) that went on around the North Carolina's house's adoption of regulations making cockfighting a felony while at the same time tabling a bill increasing the penalties for... [Read More]

Tracked on May 1, 2005 11:03:43 AM

Comments

Posted by: Mark Olson

I think the origin of the phrase, "rule of thumb" derives from a time (12th century?) in English law in which it was legal to "beat your wife with a rod no thicker than your thumb." ... progress is being made, albeit slowly. :-)

Posted by: Mark Olson | Apr 30, 2005 10:46:11 PM


Posted by: Mona

Mark Olson- that "rule of thumb" bit is feminist mythology. It ain't so.

As for making DV a felony, I would strongly oppose that for most incidents characterized as DV. Both men and women -- some of them decent people -- have been known to throw an object, a slap or a punch in the heat of argument. Indeed, I'd guess a lot of people we know, like or love would become felons if every such event were made felonious.

Posted by: Mona | May 1, 2005 12:46:36 AM


Posted by: Glen Raphael

I wish more people would tell reporters they're being stupid when they are, in fact, being stupid.

It would have been nice if the reporter had asked for a specific reason or two why Altman thought this particular CDV bill was wrong-headed. It is, indeed, stupid to assume that tabling a bill is bad based on /one/ of its effects without regard to whether it might have other parts that are badly written or produce negative effects.

If the CDV bill is bad, it's bad for reasons specific to that bill. It's not bad because battered women are less deserving of sympathy than chickens. Putting the question like that demands nothing but the scorn that reporter rightfully received.

Posted by: Glen Raphael | May 1, 2005 12:55:34 AM


Posted by: Josh Jasper

Mona, if the bill had made a certain class or frequency of DV a felony, but hadn't made a single punch or slap a felony, you'd have a point. As it stands, the problem is unsolved, the comparison between cockfighting being a felony and DV not being one is valid, and the representative's atitude towards women seems to be part of the problem.

Oh, and Altman is on tape with some other legislators who got caught making fun of DV against women. Link is here.

Posted by: Josh Jasper | May 1, 2005 12:58:58 AM


Posted by: Mona

Josh, I am reasonably certain that South Carolina has felony categories of assault and battery. A man who commits such crimes agasint a woman he cohabits with should be charged accordingly.

Why we should need a separate DV felony I do not understand.

Posted by: Mona | May 1, 2005 1:10:23 AM


Posted by: Glen Raphael

You can be pretty sure a chicken will never falsely accuse anyone of a crime in order to gain custody or get back at someone they despise for some past slight. You can also be sure the chicken didn't deliberately provoke an incident with the intent of filing charges later.

Looking at the bill, I found this part a bit odd:


TO AMEND SECTION 20-3-10, RELATING TO GROUNDS FOR DIVORCE, SO AS TO FURTHER SPECIFY THAT PHYSICAL CRUELTY INCLUDES PHYSICAL VIOLENCE AND CONDUCT THAT ENDANGERS ONE'S PHYSICAL OR PSYCHOLOGICAL WELL-BEING

So, "conduct that endangers...one's psychological well-being" (ie, insults and mind games) is to be considered a form of "physical cruelty"? Why not just add "and emotional cruelty" rather than redefine "physical" so that it includes non-physical offenses as well?

Posted by: Glen Raphael | May 1, 2005 1:15:35 AM


Posted by: Thomas

The bill has been reintroduced. According to a press report, "Under the new bill:

_ The first conviction on criminal domestic violence is a misdemeanor that can bring up to 30 days in jail and a fine up to $2,500. The current penalty is 30 days in jail or a $500 fine.

_ A second offense is a misdemeanor that brings a minimum of 30 days to a maximum of one year behind bars with up to $5,000 in fines. That's up from the current penalty of 30 days and a $500 fine.

_ A third offense would be a felony with one to five years in prison. That crime now is a misdemeanor with up to three years in prison.
___________________

Our reporter/heroine will continue to have problems with SC law, from the looks of it.

Posted by: Thomas | May 1, 2005 1:17:23 AM


Posted by: neal

I too agree that there must be laws that protect against violence, so why do we need additional laws? Apparantly, here is part of the reason:

Rep. Altman is baffled that any battered woman ever returns to the man who's battered her. I'd have hoped anyone and everyone . . . would realize that plenty of those women have no reasonable alternatives.

So Don, you want to take away the best choice, no even the only choice for DV victims? Do you really mean that?

Posted by: neal | May 1, 2005 1:30:30 AM


Posted by: Mona

Thomas quotes: _ The first conviction on criminal domestic violence is a misdemeanor that can bring up to 30 days in jail and a fine up to $2,500. The current penalty is 30 days in jail or a $500 fine.

And yet, if a man beats a woman within in an inch of her life and leaves her in a coma -- whether it is the first DV incident or not -- one doubts he would merely be charged with a misdeamenor per the DV statute. He can and should be charged with aggravated assault and do some hard time.

Now, let's say we have a couple in troubled times, and he slaps her. She calls the cops. He is fined $2,500. What, that isn't going to hurt her and any kids they might have, too?

Posted by: Mona | May 1, 2005 1:35:20 AM


Posted by: neal

Altman is on tape with some other legislators who got caught making fun of DV against women.

So what? Do you feel the "Violence against Women Act" that Bill Clinton supported was bad just because he was accused of rape and sexual harrassment by multiple women?

Posted by: neal | May 1, 2005 1:40:49 AM


Posted by: Bret

Well, I'll agree that it's silly to make cock fighting a felony.

Posted by: Bret | May 1, 2005 2:37:14 AM


Posted by: Tad Brennan

Mona--

If I understand your 1:10 post, it says that new laws targeting DV are superfluous because physical violence between spouses is already cover by A&B laws, and any spouse who violates those laws "should be charged accordingly".

In your 1:35 you seem to suggest that one reason you dislike the new legislation is that it would impose a fine for a slap.

Isn't a slap covered by A&B? And aren't the penalties for A&B generally higher than a fine?

My concern is that, at least at first glance, it looks like you are arguing that we don't need the new laws because they won't do anything that existing A&B laws don't do, and then saying that the new laws will do something the A&B laws don't do.

In addition, it looks as though you are first saying that domestic battery should result in charges, and in the later instance that bringing charges would be a bad idea.

Not knowing much about these matters, I wonder whether the proponents of the new legislation are responding to the worry that acts which would be routinely prosecuted as A&B if they occur between strangers (one non-related stranger slaps or punches another non-related stranger), are less likely to be prosecuted if the agents are married (or the like). Then the bill's sponsors would be motivated by the thought that there has been an enforcement gap with the old law, that might be remedied by calling the old offense a new name.

Seems a bit misguided to me--if an old law has been erratically or prejudicially enforced, the right answer is to make sure it is enforced in an even-handed way, not create new laws.

But I wonder whether your two posts don't show us a bit of the enforcement gap at work--yes, the wife who slaps her husband *is* committing an A&B (so we don't need a new law), but *surely* she should not be prosecuted for it--that might be bad for the children (so we don't want a new law).

I'm not sure I want a new law, either, but I also think that violence in the house should be treated as just as serious as violence outside (minor siblings aside). The spouse who knows that a blow to their spouse will wind up in a fine or jail time may be more likely to stay their hand (that *is* one of the rationales for punishing crimes, right?)

Posted by: Tad Brennan | May 1, 2005 3:13:15 AM


Posted by: Shag from Brookline

Altman gives new meaning to Chickenhawk.

Posted by: Shag from Brookline | May 1, 2005 6:30:55 AM


Posted by: D.A. Ridgely

Well, at least this isn’t a topic about which I am tempted to suggest we solve everything by cutting taxes and legalizing drugs.

(I do suggest we all use the term CDV instead of DV in this thread. When I read Mona’s “As for making DV a felony...” the first think that came to my mind was David Velleman.)

Okay, so what do we have here? Another “shooting ducks in a barrel” case of the lamentably inept state politician (of course, it always helps if the state is in the south) making a fool of himself on camera – a nice bit of self-inflicted ad hominem grist for the otherwise uncontroversial proposition that of course domestic violence is more serious than cockfighting.

Before moving to my substantive quibbles, I do think on the topic of political public stupidity my own state has a shot at taking the blue ribbon. Many years ago now, one of our U.S. senators was called the dumbest man in the Senate. He actually held a press conference to deny it! (“Very well, Senator. Which of your colleagues, then, is dumber than you are?”)

Anyway, I favor all blood sports such as cockfights, bull fights and fox hunting on the grounds that they upset Peter Singer and his PETA-philiacs. Let’s start a petition to have cockfighting legalized in South Carolina!

Look, domestic violence is a terribly complicated problem. Spouses (usually but not always women) do stay in physically abusive relationships, returning over and over to the abuser, and not only because it is their only perceived option. The psychology of these relationships is very deep and murky and it is very difficult to determine when state intervention is required.

For better or worse, we had until recent decades a cultural attitude that marital privacy was sacrosanct and that what went on behind closed doors was none of the state’s business – an attitude that, by the way, putatively led to some very dubious constitutional law. But the notion of spousal immunity from assault and battery charges is now long gone.

I submit that the problem then was a failure to recognize the fundamentally nonconsensual nature of spousal abuse and to apply the existing laws, both criminal and civil, against abusers. As such, I fail to see why domestic violence constitutes a different category of crime from public assaults, just as I think the notion of “hate” crimes is an absurd genuflection to the elevated legal status of women, racial minorities and homosexuals. As Mona argues, it is difficult to see why additional misdemeanor charges for CDV are required at all.

As for Mr. Brennan’s question to Mona, a slap does count as a battery, but most police would be reluctant to charge and most prosecutors would be reluctant to take such a case to court because most people do not believe that slapping someone once is sufficient cause to have a possible felony conviction imposed on the offender. Well, perhaps having that new, lesser remedy is the answer to Mona’s and my question. Even so, as Mr. Raphael noted, it also carries the potential for abuse by the accuser.

In any case, I think Mr. Herzog might have spared us a bit of his gleeful portrayal of some of the ever-available buffoonery in the state legislatures and focused a bit more on the legal, social and psychological context of this problem.

Posted by: D.A. Ridgely | May 1, 2005 9:09:34 AM


Posted by: john t

When a law receives favorable publicity/coverage in the media it is inevitable that it will be rewritten,reworded,rehashed,and released to an adoring press. How can a legislator go wrong? I've lost track of the various Kiddie Care reincarnations which themselves were extensions on a frequently extended Medicaid program. I read a while ago that of the amorphous heap known as domestic violence,or was it battered women,about one out of thirty involved physical abuse,the rest verbal. I'm not a liberal so it's possible I can't discern the sameness of yelling and cursing as against a left hook but my mossback tendencies say there's a difference. Glen Raphael's 1:15 post seems to indicate that this differnce is not noted by the politicians so perhaps SC is becoming as sophisticated as DC and NY.

Posted by: john t | May 1, 2005 9:13:37 AM


Posted by: Don Herzog

Mr. Ridgely writes,

I think Mr. Herzog might have spared us a bit of his gleeful portrayal of some of the ever-available buffoonery in the state legislatures and focused a bit more on the legal, social and psychological context of this problem.

Well for sure the problem is huge and difficult: thus, in part, my closing "Hmmmm." Looks like the bill on offer, incidentally, would have cast only the third conviction for domestic violence as a felony. But I think there is more here than a particular legislative buffoon and then a separate politically and legally complicated problem. I think the two are tied. I think Rep. Altman's gratuitous rudeness to a journalist -- shall I emphasize that she's a woman? -- with a perfectly sensible question is noteworthy. I think that some of what drives some legislators in this terrain is an ugly mix of ignorance, indifference, and contempt. There are plenty of reasonable answers to her question, along the lines Mona began to sketch. He didn't give her a reasonable answer. I rather doubt he could have.

So Rep. Altman isn't any old legislative buffoon. His buffoonery has a sadly familiar political structure and a political consequence.

Posted by: Don Herzog | May 1, 2005 10:57:56 AM


Posted by: Bernard

It's certainly true that Altman comes out of this looking either incompetent or dirty, but I have to agree with some here that the question looks loaded. The analogy between the two bills just doesn't make sense to me. If women were being organised to tear each other apart while spectators gambled on them I think it's fair to assume that that would be stamped out pretty quickly, while I've yet to see a bill addressing domestic disturbances between male and female chickens. The idea that chicken are more important than women therefore appears to rest on the fact that a bloodsport is being banned outright while the more delicate issue of domestic violence is being addressed less bluntly.

Posted by: Bernard | May 1, 2005 11:36:38 AM


Posted by: Mona

Tad wants to know why I object to DV statutes given that they may be redundant of A/B laws. Well, no, while they should be, they are not.This is an excerpt from a CO lawyer's blog, and his points would apply in virtually every jurisdiction:

A conviction on a charge of domestic violence will probably mean loss of your job if you work in a profession that requires use of firearms, explosives, or other dangerous agents. Such a conviction will probably also deny you a security clearance or financial bond. Medical doctors with such convictions often find they cannot continue to practice medicine.

So, a cop who gets into a fight with his wife that escalates into a slap or two (and the fact is, some women initiate or do, in fact, know how to provoke a man who is not the habitual "wife beater" many think of in the context of DV) is going to lose his job, since federal law does not allow anyone convicted of a DV misdemeanor to be anywhere near a gun.

Many, many decent men (and women) can enter troubled periods in a marriage/relationship in which they behave uncharacteristically. We have gone from one extreme -- respecting the "sanctity" of the home and refusing to consider and violence committed therein -- to the other. Now, any violence that happens there, however comparatively mild and which rises only to a misdemeanor, can go a long way to ruining a man's (usually) life.


(I had included a link to the CO lawyer's site, but typepad would not let me post in that format. It kept rejecting my comment as spam.)

Posted by: Mona | May 1, 2005 11:54:11 AM


Posted by: Don Herzog

Meanwhile, more on a kind of buffoonery that isn't merely an idiosyncratic psychological issue. From the 2/6/98 Charleston Post and Courier:

The S.C. House didn't even need to talk about interracial marriage before voting to delete the ban on it from the state constitution.

The measure, passed by a 99-4 vote, must now be approved in the Senate before it can go to the voters in November. No one took the House floor to argue against the change.

"From the standpoint of history, it will be a lot better for future generations to be able to read that South Carolina saw fit to expunge from its constitution language that may be offensive to individuals or irrelevant," said Rep. Curtis Inabinett, D-Ravenel, lead author of the constitutional amendment.

Four Republicans, John Graham Altman III of Charleston, Dan Cooper of Williamston, Margaret Gamble of West Columbia and Larry Koon of Lexington voted against passage and 20 members of the House skipped the vote.

When the bill was discussed by the Judiciary Committee, Altman argued that the change was being made in the name of political correctness.

Altman also argued that there was no reason to change the state constitution because the provision had already been declared unconstitutional.

Posted by: Don Herzog | May 1, 2005 12:06:30 PM


Posted by: D.A. Ridgely

Well, Mr. Herzog, you may be entirely right about the good Mr. Altman the Third. I still think you're shooting ducks in a barrel and, worse yet, wouldn't be a bit surprised if he didn't slip a few of your choicer comments into his next campaign: "Re-Elect Altman, the man smartypants liberal yankees call ignorant and indifferent!"

Posted by: D.A. Ridgely | May 1, 2005 12:23:38 PM


Posted by: Tad Brennan

Mona--

Then do I take it that a parallel conviction on A/B does not entail those disqualifications?

Why not?

That seems like the irrationality I would clear up first. If there is a reason we don't want cops who have slapped around their husbands or wives, I would think we just don't want them, whether we call it "CDV" or "A/B". If there is any function to the disqualification rule, it should be triggered by substance, not by labels.

Furthermore, I no longer see how this line of thought bears on the original question, namely whether CDV violations should remain misdemeanors, or be treated as felonies.

If it is the "CDV" label that automatically entails the disqualifications, then that problem is already on the books, in the laws as they stand: anyone who commits the misdemeanor offense of CDV will now lose his job, security clearance, medical license, etc. The damage is already done, and no further damage would be done by making it a felony.

Look, it seems to me that we are all just deeply ambivalent about how seriously we want to take domestic violence. If, as Mona says, if CDV is just a trivial foible, something that happens to the best of people, then we should repeal the disqualification laws. If we are serious enough about CDV to have the disqualification laws in place, then we should also be willing to have it classified as a felony, and make sure it is widely reported and prosecuted.

What we have instead is a patchwork of leniency here and severity there, and talk of felony here but no prosecution there. That has got to be the worst combination. (I mean, not just from a criminal justice standpoint--talk to any dog-trainer about how well it works to punish and reward in an inconsistent fashion).

For my money, I would go with the more severe stance all around. The idea that this is just something everyone does now and then strikes me as utterly bizarre (and I have been married almost 20 years). When you argue with your spouse or partner, certain things are just off the table, just not even options. Shooting your spouse is just not even an option for most people--you don't even think about it, but if you did, you would realize that this meant the end of your marriage and a long stretch in jail.

Similar thoughts should apply to hitting your spouse (or "provoking" your spouse to hit you). But I can see how inconsistent and erratic enforcement of laws, and wild yo-yo-ing in our assessment of CDV's gravity, will tend to have exactly the opposite effect, i.e. make the actual violence more of a ploy and gambit in marital strife. I say just take it off the table, completely.

Posted by: Tad Brennan | May 1, 2005 12:25:49 PM


Posted by: Tad Brennan

Mr. Ridgely--

You have stumbled onto it: DH is actually the head of Altman's re-election campaign, and is prepping the field for all of that wonderful anti-yank, anti-liberal campaign literature to come (can invocations of Ft. Sumter be far behind?). Skullduggery doesn't get dug much deeper than this.

Posted by: Tad Brennan | May 1, 2005 12:37:50 PM


Posted by: Mona

Tad writes: If, as Mona says, if CDV is just a trivial foible, something that happens to the best of people, then we should repeal the disqualification laws. If we are serious enough about CDV to have the disqualification laws in place, then we should also be willing to have it classified as a felony, and make sure it is widely reported and prosecuted.

First, I do not think all actions captured by DV statutes are "trivial." I'm reluctant to offer examples I learned in a professional capacity, so I'll use myself as one. There was a brief period in my own marriage in which my ex was coming to terms with some serious truths about himself, and we were in marital extremis. Exactly twice he hit me. The first time after I tossed several ounces of milk in his face (which is an assault).

I/we did not get law enforcement involved, that period in our marriage passed, and about 12 yrs later we divorced. Had he been a police officer, and I had reported him for DV and a misdemeanor conviction ensued, per federal law he would have lost the ability to possess a gun, and hence his livelihood.

In my professional experience, it is not uncommon for people teetering on divorce to engage in relatively mild violence. A female friend of mine, formerly married to a drunk, spent a weekend in jail charged with DV for initiating violence in an attempt to eject hubby from the marital domicile when he was very intoxicated and trying to get at her checkbook. She now has many careers foreclosed to her, and a record.

She works as a direct caregiver of developmentally disabled adults, and is a superb and caring staff -- one of the several who minister to my retarded and semi-autistic adult son. She came close to losing her job when the company discovered this conviction. But she is no more prone to habitual violence than was Mother Teresa.

DV statutes capture too much and do not take into account the vicissitudes of human relationships. I am much more concerned about these realities than the buffoonery of some SC legislator.

Posted by: Mona | May 1, 2005 1:05:26 PM


Posted by: Mona

Libertarian journalist and columnist Cathy Young has frequently criticized DV policies. She once noted that she was an uncharged DV perp back in the day, since she slapped an old boyfriend just prior to a break-up -- and he slapped her back. An excerpt from and link to one of her pieces:

The Violence Against Women Act, passed by Congress in 1994, institutionalized the traditional feminist view of family violence on a federal level, with grants for law enforcement, counseling, and judicial training programs based on the assumption that domestic violence involves male power and control over women and is best stopped by subjecting the perpetrator to the power and control of the state. Like the campaign against pornography, this policy shift represented a strange marriage of radical feminism to law-and-order conservatism.

There were always dissenting voices. Researchers such as Murray Straus of the University of New Hampshire and Richard Gelles of the University of Rhode Island have argued that domestic abuse has complicated dynamics, often involving female as well as male violence. Criminologists such as Lawrence Sherman of the University of Maryland have cautioned that in many situations, mandatory arrest for domestic assault does not lead to a reduction in violence and could even cause it to escalate. Journalists, including myself, have covered cases of men and women who were caught up in the criminal justice system and either labeled as abusers on spurious pretexts or treated as victims when they felt more victimized by the system than by their partners.

Whole thing (with lots of typos) here.

Posted by: Mona | May 1, 2005 1:42:09 PM


Posted by: Don Herzog

On the constitutional fate of the Violence against Women Act, see here.

Posted by: Don Herzog | May 1, 2005 1:49:16 PM


Posted by: Tad Brennan

"a strange marriage of radical feminism to law-and-order conservatism"

Yup--that's me, alright. Radical feminist with anomalous social conservative inclusions in the liberal redistributionist matrix.

I agree that the legal systems approach to CDV as currently constituted is really broken. So broken that, so far as DH's original post goes, it really does not look much better with CDV treated as a misdemeanort, and might not look much worse with it treated as a felony.

The problem there is that the disqualification triggers are set too low in relation to both other parts of the law, and the general societal attitudes.

I also agree that the source of the legal system's difficulty is that human interactions are messy and subjecct to vicissitudes.

But I don't see how the state can get out of the business of protecting its citizens from each others' violence, whether it occurs inside the household or not. I hope we can do it better, but I don't think it helps to suggest that the state get out of it.

Posted by: Tad Brennan | May 1, 2005 1:54:51 PM


Posted by: john t

Mona wins this bout by a unanimous decision,10-0. I notice the linked excerpt was written by the magnificently neutral Ms. Gormley. Dispassionate as I'm sure she is is it possible that some subconscious dispositions may have creeped into the story of her heroism and abuse. Is it only her magnanimity that stops the animal rights activist Mr Altman from being dragged off in chains? Will PETA leap to Altman's defense and start,if you'll forgive the expression,a dog and cat fight between them and the feminists. What does Peter Singer have to say? Yes,DV legislation is a mess,which is what you get when you write legislation based on the screams of pressure group fanatics. Surprise!

Posted by: john t | May 1, 2005 3:42:23 PM


Posted by: DJmatheso

I'm not convinced domestic violence is identical to assault and that this is all p.c. malarky. While the psychology of domestic violence may be murky, spousal abuse can often be indicative of future dangerousness. Much like hate crimes, the reason we can deal with domestic violence differently than "normal" A&B is that the perpetrator may be a time bomb with easily identifiable future targets. This doesn't mean that the punishments necessarily must be more severe; anger management and couples counseling may be more effective responses than prison to certain perpetrators of domestic violence.

Particularly if your penological bent leans towards incapacitation or rehabilitation, there are legitimate reasons to deal with acts of violence differently depending on the respective motives.

Posted by: DJmatheso | May 1, 2005 4:01:44 PM


Posted by: Don Herzog

john t's sniggering "contribution" calls for a reminder. These laws got passed in response to mountains of evidence about cases in which the cops simply didn't respond to calls for help. Or they showed up, found women with black eyes and worse, gave the couple a friendly talking to, and cleared out. Some of those women ended up dying.

Nor is the law's older lack of interest in stepping into domestic arrangements simply a matter of culture, as Mr. Ridgely suggests. There is longstanding public law and political theory on point: for centuries, the law ruled over male heads of households, and they had absolute sovereignty within the household. "A man's home is his castle" is not, originally, the sentiment that they may treat the guy like hell at work, but at home his family dotes on him. It's a jurisdictional principle: the state will not cross the threshold and second-guess male governance. (This view, intriguingly, was formally reaffirmed by the National Assembly in the opening weeks of the French Revolution.) That is part of the story why for centuries marital rape was not legally cognizable as an injury or a crime, and my sense is that that part of the story is more important than the accompanying story that marriage is permanent consent to having sex, so rape is impossible.

None of this is to say that the current legal arrangements are perfect. But it is plain ludicrous for john t to sneer as he does.

Posted by: Don Herzog | May 1, 2005 4:07:33 PM


Posted by: murky

GR writes: "'one's psychological well-being' (ie, insults and mind games) is to be considered a form of'"physical cruelty'? "

Every synapse is sacred.

Posted by: murky | May 1, 2005 4:27:31 PM


Posted by: D.A. Ridgely

Okay, so I watched Gormley’s little piece of ambush journalism, a nice little ratings booster with the standard “60 Minutes” editorial touches that have contributed to CBS’s unblemished record of unbiased, objective reporting and trickled down to the local news wannabes. Still photo of a gamecock, cut to image of battered woman, cut back to chicken. Voiceover juxtaposes these otherwise unrelated issues, then cuts to interview of thick Southern accented (always good for a presumed IQ reduction of around 30 points), pasty and puffy faced Altman ineptly sparring with off-camera, perky, spunky Northern liberal ‘investigative reporter’ Gormley, cut to articulate black woman making thoughtful, substantive comments, cut back to Altman being rude again, et cetera, ad nauseum.

Mr. Herzog sees deep, troubling connections dating back to the French Revolution? (Why stop there? Why not blame it on the Romans for their pater familias law, giving the male head of the household vitae necisque potestas? I see whataboutery, disingenuously edited and portrayed with tediously predictable biases played out in terms of racial, sexual and geographic stereotypes. Ho hum.

Domestic violence is a serious issue. Cockfighting isn’t. If anything, the story trivialized the former in its attempt to shame the legislature by linking it with the latter. Anyone who knows the slightest thing about legislatures knows that there is no rhyme or reason for the order in which proposed bills move through the process. As for being rude to an – Ohmygawd! – female reporter? I think more people should be more rude to more reporters more often. Especially perky reporters.

Posted by: D.A. Ridgely | May 1, 2005 4:29:19 PM


Posted by: murky

Is a DV charge the observing officer's discretion? Or is it less stigmatizing than A&B? Women must tend to be reluctant to press charges of A&B against their spouses, so I can imagine DV laws partly represent a work around that. Anybody know?

Posted by: murky | May 1, 2005 4:32:39 PM


Posted by: Don Herzog

Dear me, Mr. Ridgely, I'm afraid I'm getting lost. Which is it? Is it that Rep. Altman is a buffoon, but that has nothing to do with the underlying issues? Or is it that he isn't a buffoon at all, but behaved admirably?

Posted by: Don Herzog | May 1, 2005 4:44:43 PM


Posted by: D.A. Ridgely

Oh, he's probably a buffoon, Mr. Herzog. But he isn't the only one who failed to behave admirably, now is he?

Posted by: D.A. Ridgely | May 1, 2005 5:01:07 PM


Posted by: Perseus

So I guess the idea behind DV laws (which benefit mainly women) is to replace the bad old paternal rule of the husband with the enlightened paternalism of the state. And here I was laboring under the false assumption that feminists wanted women to be strong and independent when in fact they want to exchange one form of dependence for another.

Posted by: Perseus | May 1, 2005 5:18:01 PM


Posted by: john t

Don H I majored in sneering and sniggering in college so you can see I haven't wasted my time. Although I have never thought enough of it to single it out I have detected some college level 101 S&S in in a few posts of yours perhaps even in this one,I'm sure you'll improve with practice. Between sniggers and sneers there were a few points made but you'll have to fish them out for yourself,hint,DAR touches on one of them. Apropos of the French Revolution,it's the 21st century and whatever happened in days of yore is no excuse for overeaction today. You may consider doing a typically witty post on the sow broadcasting from the radio program that's sweeping the USA,Air America,the one where a shooting of the President was simulated. That would be a real hoot,laughs being where you find them.

Posted by: john t | May 1, 2005 5:50:35 PM


Posted by: Will

"the gallant Rep. Altman ..."
"I think Rep. Altman's gratuitous rudeness to a journalist -- shall I emphasize that she's a woman? "
sure, emphasize it.
But I thought liberals were pushing for equal treatment for women -- you know treat male and female reporters equally, etc. Thus, under the feminist doctrine, isn't it insulting to treat a female reporter with kid gloves simply because of her gender?

I wonder if Don is a closet victorian who'd prefer that men be more "gallant"[ Courteously attentive especially to women; chivalrous ], instead of the equal treatment that most feminists demand. Actually, Don would rise in my estimation (if true); I hold this exact view.

Posted by: Will | May 1, 2005 5:53:20 PM


Posted by: Bernard

Perseus, I don't see that looking to the state for legal protection from non-consensual violence is at odds with the desire for strength or indepedence. If it were, then mainstream libertarianism would be a crock too.

Posted by: Bernard | May 1, 2005 6:29:55 PM


Posted by: Don Herzog

I'm afraid I have to politely decline my opportunity to rise in Will's estimation. The language of mine that he quotes was there to suggest that no one should dream of mistaking Rep. Altman for a Southern gentleman.

Posted by: Don Herzog | May 1, 2005 6:52:27 PM


Posted by: Tad Brennan

Bernard--

Thank you. Yes, this is roughly my reply to Perseus on the old charge that feminists of my stripe want to subjugate women to a paternalistic state instead of the traditional subjugation to fathers and husbands.

Everyone needs the help of the state sometimes. And even libertarians agree that the state should step in to shield its citizens from violence. I say that without respect to gender, both because I think the principles are gender-neutral, and because it is worth remembering that some men are beaten by their wives.

So this feminist's stance does not impose any more state-based paternalism on men than it does on women. Nor does this feminist deny to women the same options for non-state-based self-help that are available to men (back to our shoot-em-out thread of several weeks ago, where I made plain that I am fine with both men and women using firearms in self-defense).

What was inconsistent, both in traditional libertarianism and in some forms of traditional liberalism (though not Mill's), was the idea that a man could expect the state to intervene on his behalf when another man assaulted him on the street, but a woman could not expect the state to intervene on her behalf when a man assaulted her in her own home.

This sort of attempt to prove that feminists are really anti-feminists had a certain charm of paradox once, but the novelty has long worn off. It should probably be retired.

Posted by: Tad Brennan | May 1, 2005 6:53:45 PM


Posted by: Mona

Tad writesThis sort of attempt to prove that feminists are really anti-feminists had a certain charm of paradox once, but the novelty has long worn off. It should probably be retired.

I disagree; Cathy Young gets it exactly correct when she says current DV law denies women their moral agency. In many or most jurisdictions, once someone gets law enforcement involved, the charges go forward no matter how strongly the woman wishes that they not -- even if she refuses to cooperate in the prosecution.

The theory is that she does not know what is in her best interests. Invoking yesteryear's benighted schemes in which husbands could "discipline" uppity wives does not diminish the condescension in treating women today as if we are hopelessly caught up in patriarchy's false consciousness.

And Mr. Ridgely, I greatly enjoyed your analysis of the "60 Minutes" episode. All I could add is, ditto.

DV is too serious a matter, for actual victims and also for those whose lives are ruined by dubious charges and convictions, for a feeding frenzy of silly juxtapositions. I mean, who give's a rat's patooty about SC law on cockfighting when there are issues we ought be considering about efficacy and justice of DV law? This was a contrived controversy, and Altman a perfect foil.

So Altman is a boor and spews his boorishness with a southern drawl. And his target was, gasp!, a reporter? Those delicate flowers of investigative-reporting womanhood are unbearably fragile. Hopefully someone on the CBS staff thought to get poor Miss Gormley some smelling salts before the vapors utterly did her in.

Posted by: Mona | May 1, 2005 7:22:25 PM


Posted by: Perseus

There wouldn't be any contradiction if they were seeking to have A&B laws applied more vigorously in DV cases, but DV laws strike me as treating battered women (and it is far more common for women to be battered than men) as a victim class that needs special protection as a class rather than as equal, independent individuals. Hence my view that DV laws are basically old-fashioned chivalry in modern statist drag.

Posted by: Perseus | May 1, 2005 7:35:10 PM


Posted by: D.A. Ridgely

I might point out that Perseus has never claimed to be a libertarian.

Posted by: D.A. Ridgely | May 1, 2005 7:36:28 PM


Posted by: Tad Brennan

Perseus--

We can agree that if the A/B laws were adequate and adequately enforced, they should render the CDV laws superfluous. In fact, I think that probably expresses my basic view here: the at-home/in-the-street distinction was traditionally given a prejudicial and invidious weight when it comes to A/B, and that is what needed changing. So I think I can agree with you that CDV laws are in a sense the compounding of an historical anomaly--if A/B laws had always been applied even-handedly, there would never have arisen the need (false appearance of a need?) for special CDV laws.

On this part of your post I'm not sure:

"DV laws strike me as treating battered women (and it is far more common for women to be battered than men) as a victim class that needs special protection as a class".

Take a law that is facially neutral, and combine it with some empirical facts about non-neutral infractions, and does the law then amount to treating the disproportionate victims as a class in need of special protection? I'm not sure that this follows (or at least, that it follows in any sense that should make us frown upon the law).

For instance--what would you think of laws that targetted lynchings? I.e. a special statute saying you are not allowed to assemble a mob and then hang someone by the neck until dead.

Empirical studies would show that the historical victims of this crime had been predominantly black. Would the enactment of such a law constitute treating black people as a victim class in need of special protection? If so, would it do so in any sense that should make us frown upon the law?

My inclination is to say that as long as we prosecuted the lynchers of non-black victims, and the abusers of non-women victims of CDV, with the same zeal as the empirical better-represented class, then the law remains neutral for all purposes.

3 random points:
a) Never meant to suggest Perseus is a libertarian--I can't keep track of anyone's affiliations around here.
b) the point of DH's mentioning that the reporter was a women was not to express special outrage at rudeness to women, but rather to add another item to the catalogue of evidence that Altman is generally sexist and contemptuous of women. I nevertheless agree with those posters who have said that one buffoon should not be the real point here.
c) I hope I'm using the phrase "facial neutrality" with rough fidelity. I do so only because the cool kids like Mona and DAR use it, and I want to be like them. At first I just thought it referred to the Ph of my skin-oils or something.

Posted by: Tad Brennan | May 1, 2005 8:25:38 PM


Posted by: Steve Horwitz

Fascinating discussion. Two quick points:

1. I'm unwilling to cleanly apply regular A/B laws to cases of DV for precisely the reasons that many have indicated: there is simply a difference between the dynamics of a romantic relationship and "stranger" violence. Yes, as DV becomes more extreme, I'd say apply the A/B laws (a slap is not the same as a beating), but if we're talking about a slap in the context of a relationship where violence has not been a tendency, that's different. After 16 years of marriage, I'm convinced that no one can anger you more than the one you love the most. That does NOT excuse physical violence (and yes, I've never hit my wife, nor can I even possibly imagine circumstances under which I would), but it does recognize that the law should treat it differently than stranger violence. A one-time, mild event in a romantic relationship is, and should be treated, different from a one-time mild event by a stranger.

2. I do have a problem with "mandatory arrest" laws. There's some good evidence to suggest they don't deliver the promised results and often backfire on the victim. There's even more evidence that victims of sexual violence of all sorts do better when *they* are in control of the process of how to handle the situation, rather than the paternalistic state ignoring the situation or taking control of it itself. DV victims need resources, support, and options, only one of which should be the state arresting the perpetrator.

Busting up marriages, careers, and families when the victim, after as much conversation, information, and counseling as possible, doesn't want to press charges seems like a really bad idea.

Posted by: Steve Horwitz | May 2, 2005 8:43:34 AM


Posted by: Matthew Dundon

I wonder if people have given any thought to the disparate racial impact of making domestic violence charges automatic felonies. There's a lamentably strong correllation between socioeconomic status and (complaints to law enforcement about) domestic violence, and, at least in South Carolina, there's an even stronger correllation between race and socioeconomic status. Is making an even higher percentage of African American men felons really going to be helpful, particularly given (as many posters above have noted) that the police and prosectors always have recourse to assault and battery felony charges when the circumstances warrant?

Posted by: Matthew Dundon | May 2, 2005 11:29:16 AM


Posted by: Tad Brennan

On mandatory arrest laws.

There are several things I don't understand here, but I'm not sure how much I'd have to pay for a tutorial from the legal experts.

To wit: I had thought that since the state is the official prosecutor, the state makes the decision whether or not to press charges. Since the state has an interest in policing and punishing crime, why should any private actor be able to thwart its pursuit of these interests, simply because that private actor was the victim? (I run the 1st National Bank at 111 Main Street, you run the 2nd National Bank at 222 Main Street. Being the good-hearted type you are, you have a policy of never pressing charges against bank-robbers, no matter how many times they rob. This seems to me an outrage not only against the state's interests in discouraging bank-robbery, but in particular against my own interest in not having my bank robbed, esp. by robbers who can't count.)

But clearly I'm wrong about this--it is apparently a special feature of certain domestic violence laws that they do not leave the decision to press charges in the hands of the victim, so I infer that in some other class of laws, such a decision is left in the hands of the victim. Seems odd to me, but there it is. Anything anyone wants to say to mitigate the appearance of oddness will be appreciated. (I almost wrote "to mitigate my appearance of oddness", but that's beyond mitigation).

second point.

Are mandatory arrest clauses in domestic violence laws predicated on a theory that the women "does not know what is in her best interests" ?

Let's set aside the quibble that such laws must maintain the same theory about male victims of domestic violence, too. Do such laws depend on the view that the victim will be so confused, indecisive, and irrational that she simply won't be able to make up her mind about what to do, or that she will consistently make mistakes about where her interests lie? Only such a view of her reduced autonomy, one might think, could justify the state in taking this decision out of her hands.

I'm just not sure that this was the original rationale at all (legislative record might help). I would have thought the point is just a game-theoretical one about avoiding certain opportunities for threats. It would be a bit like the old saying that if you want to win a game of chicken, you should begin by ostentatiously discarding your own steering wheel.

The problem is that in a situation of abuse where the victim has a choice, the abusing spouse could take the victim's decision to arrest and press charges as a motive for further, future abuse, and as a pretext for threats. The abusing spouse would say "if you don't have me arrested this time I shall henceforth be a paragon of spousal virtue; but if you do choose to have me arrested then I shall feel greater hostility towards you, and visit that enhanced hostility on you when I'm out on bail ".

Even a victim whose autonomy is not in question, who has no doubts about where her interests lie, and is sure that her best interests lie in the spouse's being arrested, might prefer to have the decision taken out of her hands at this point. If it is an impairment of the victim's autonomy, it may be a local and strategic one, just as the decision to discard the steering wheel will produce a later impairment of my ability to steer.

We can imagine a parallel situation with a small business owner and the mob; I really want these thugs to be arrested, but I know that if I make a visible move to have it done then I will call down further mob retribution on myself. Furthermore, the mob has threatened exactly such retribution if they can trace an arrest back to my actions. It is no disparagement of my autonomy to say that I might be very glad to have mandatory arrest clauses in place so that I can tell the mob that it wasn't my fault, I didn't want it to happen, etc. etc.

So--even on this score, I'm not sure I agree with the Cathy Young line that domestic violence laws rely on a theory of diminished autonomy in women. Any more than certain mob-related laws would rely on a theory of diminished autonomy in small business owners.

Posted by: Tad Brennan | May 2, 2005 12:17:40 PM


Posted by: D.A. Ridgely

Mr. Brennan:

Crimes are offenses against the state. Thus the state decides whether to prosecute, not the victim. Most police will grudgingly make an arrest and most prosecutors will grudgingly take a case to trial if an insistant victim demands it. Also, many prosecutors will abandon a prosecution if the victim and primary prosecution witness refuses to testify. But the decision to arrest or prosecute ultimatly lies with the state. Similarly, while police and prosecutors typically have broad discretion as to when to make an arrest or what cases to take to trial, a legislature can deprive them of that discretion.

Posted by: D.A. Ridgely | May 2, 2005 12:34:20 PM


Posted by: Tad Brennan

Prof. Ridgely--

Many thanks for this tutorial (not the first I've received from you).

It leaves me further puzzled, however, about what it means to complain about "mandatory arrest" features of domestic violence laws. Your description of crimes as "offenses against the state" sounds as though the decision to arrest never belonged to the victim in the first place. So what's special in the domestic violence cases?

I realize that a victim might force the prosecutor's hand by refusing to testify, if their testimony was central to any case that could be built. And there must be complications already built in here by the exemption of spouses from compelled testimony.

But I guess overall I'm as puzzled as ever--is there something special about domestic violence laws that leads people to complain about "mandatory arrests"? Or is it more a matter of non-legislative policy in police forces? Where does the difference lie?

Posted by: Tad Brennan | May 2, 2005 12:44:19 PM


Posted by: D.A. Ridgely

Mr. Brennan:

First, please don't even jokingly refer to me as a professor, lest the AAUP come to your door demaning back your union card!

Seriously, though, in the real world cops on the beat have a great deal of discretion when to arrest someone for assault, for example. (I'm told, by the way, that cops hate domestic violence calls because they are both dangerous to the cops and usually frustrating in the outcome.) If they fail to make an arrest, they are supposed to tell the victim she is free to come down to the station and execute a written complaint. Again, I'm no expert, but I'd guess that many spouses call the cops just to have them make an appearance -- the last thing they want most of the time is their spouse dragged off in handcuffs. (Though I suspect many would also be happy if hubby just slept it off in jail overnight and then was released.) In fact, if the new CDV law really does require on-scene arrests, it might actually reduce the number of DV calls to the police once word gets out that an arrest will inevitably result.

But this is mostly guesswork on my part. Mona may well have more relevant professional experience.

Posted by: D.A. Ridgely | May 2, 2005 1:06:04 PM


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