How Illegal is Domestic Abuse? Less Than You Think.
As I've stated before, on this blog, something is only as illegal as it is punished. Laws on the books don't mean anything if they are not enforced. The problem with sexual assault and domestic abuse is that despite being technically illegal, the actual repercussions on individuals are minor. Which, in my view, renders domestic abuse (and sexual assault) only technically illegal. My previous post on the topic focused on sexual assault and this one focuses on domestic abuse.
In 2017 I started a firm called "The Woman's Lawyer," the focus of which was representing victims of domestic abuse and sexual assault. I soon learned that calling the police was only marginally helpful. While it could bring some aid in acute situations, the outcome of those calls was unpredictable and, more often than not, did nothing to help my clients. One notable example is an individual who was violently physically assaulted by her partner. She went to the hospital for a few days as a result of the assault. The day she came out of the hospital she went to the police. The officer there told her she had "waited too long." Case closed, end of story, buh-bye. In another ironic twist, when I see law enforcement come down hard in cases of domestic abuse, it is usually on my client who had the audacity of fighting back. I don't roll my eyes or sigh anymore; I just understand it comes with the territory.
But, I still wanted to take some time to do the research and find the data to answer the question: How illegal is domestic abuse anyway?
First, domestic abuse is far more than just physical abuse. And this is the first way that domestic abuse escapes criminalization. Domestic abuse involves exerting power and control over a partner. This can be financial, emotional, reproductive, sexual or physical. Until and unless domestic abuse escalates to sexual or physical abuse (and sexual abuse is a long shot to prove anyway in a relationship), there is little the law actually prohibits. The only way these "soft" abuse techniques become criminal is after the victim leaves the relationship. At that point, they can be referred to as harassment or stalking. But this requires the victim leaving (which is hard), with no protection (which is terrifying), and wait for an escalation (which is exceedingly dangerous).
Second, even when domestic abusers escalate to physical violence, law enforcement response is very discretionary. Even in states where there is a "mandatory arrest," which means someone has to get arrested, I've seen victims get arrested "for their own protection" or because they acted in self defense. A study by Psychology Today (on an admittedly small sample of about 500 domestic abuse cases) found that only in 3 of 5 cases investigated by police, was there an arrest.
More shocking, "this rate was not higher in mandatory arrest states than in other states."
Third, assume that a victim goes to a police station to report, and that "discretion" becomes even hard to track. Simply put, many (incalculably many) cases of domestic abuse do not even register as a "case." (Not coincidentally, one of my "legislative wish list items" is a law that requires registration and cataloging of complaints, so we can actually track data).
Fourth, even in situations where an abuser is arrested, the prosecutor may decide not to press charges. Again, this happens for a myriad of reasons: she was drunk, unreliable witness, she was using drugs, she doesn't want to testify, or it's not a "strong case." In the same Psychology Today study, out of 18 perpetrators arrested, 1 in 3 were not charged.
Fifth, assuming a perpetrator is arrested and charged, there is still a high likelihood that the charges will either be dropped or whittled down to a minor offense (usually a misdemeanor). This entails very little jail time. Out of the 517 cases of domestic abuse reviewed by Psychology Today, less than 2% went to jail. This is despite the fact that more than a third of cases involved some kind of physical injury and 61 involved injury sufficiently grave to require medical attention.
So, the answer is that domestic abuse may be technically illegal it is not actually illegal. And without punishment, there is no opportunity for either deterrence or reformation.
More importantly, though, there is a total dearth of hard data to inform appropriate legislative responses. The first step to tackling domestic abuse, therefore, is to track every report through the system and understand how many people we are failing to help and why.