Hastings Women’s Law Journal
Hastings Women’s L.J. 457
Torture at Home: Borrowing from the Torture Convention to Define Domestic Violence
NAME: Claire Wright*
BIO: * Claire Wright is an associate professor at Thomas Jefferson School of Law, in San Diego, California, where she teaches property law and a variety of international law courses. On February 27, 2009, she coordinated the Ninth Annual Women in the Law Conference entitled Confronting Domestic Violence Head On: The Role of Power in Domestic Relationships and 2009 Ruth Bader Ginsburg Lecture at Thomas Jefferson School of Law. At this conference, she first presented the concept for this article.
The most potent weapon in the hands of the oppressor is the mind of the oppressed. n1
Men are taught to apologize for their weaknesses. Women for their strengths. n2
Fourteen-year-old Josh stared mindlessly at his computer screen, unsure of how to respond to his father’s latest angry rant. He had sent his father an email the night before, asking if they could postpone their weekend camping trip. Josh wanted to attend his friend’s birthday party and get a good night’s sleep in a proper bed before his upcoming final exams. To put it mildly, his father had not responded well to Josh’s [*458] request. He had demanded that Josh keep their “camping date” and called Josh “selfish,” “lazy,” (presumably, he thought Josh did not like to hike or “rough it” in the wild), “a mama’s boy,” and a number of other demeaning names and put-downs. The truth was that Josh liked camping and hiking and desperately wanted to have a good relationship with his father. At the same time, he knew from his fourteen years of experience with his father that the only way to get along with him was to agree with him 100 percent of the time. Ironically, though his father had called him a “wimp” in his reply message, Josh felt like a wimp only when he gave in to his father’s demands. He knew that his resistance was futile. As he felt a nauseating combination of frustration, depression, and fear of failure, Josh typed “ok” and hit the send button.
On Friday afternoon, Josh’s father surprised him by picking him up directly at school. Josh pleaded with his father to drive by his mother’s house so he could pick up some study materials that he had planned to review that weekend, but his father glared at him and asked, “You’re not going to start that up again, are you?” Josh did not even know what “that” was, but he knew better than to ask for clarification. When they arrived at their campsite, Josh’s father instructed Josh to set up the tent, and then set off to find a “nice, long hike” for them to take the next day. Josh tried to set up the tent but could not find any directions, and various pieces of equipment appeared to be missing. He sat down at a picnic table next to his father’s van and waited for him to return to their campsite.
When Josh’s father returned, he started shouting at Josh at the top of his lungs, accusing him of being lazy and disrespectful. Josh was terribly embarrassed as a number of neighboring campers heard the commotion and looked over at them. Josh’s father then said that Josh must be “brain-dead” because he had not realized that the broom they had brought with them in the back of the van actually served as the tent’s center pole. He then handed Josh the broom and instructed him to hold it over his head in a horizontal position and take ten laps around the long circular driveway of the campground, saying this run would help Josh remember how to assemble the tent in the future. As Josh was a member of the junior varsity football team at his school, the run did not take a big toll on him physically. The shame he felt as he passed other campers on his run, however, was excruciating.
After two long, mostly silent days of hiking, Josh and his father sat down to have their last meal before they drove back home. While eating, they noticed that the family at the campsite next door was packing up to return home as well. The father said he was going to fill their van with gas and would return in half an hour to an hour, and then the mother and two girls left the campsite for several minutes. After ensuring there were no witnesses, Josh’s father instructed Josh to grab the family’s big cooler and radio that were sitting on the nearby picnic table. Without thinking, Josh [*459] said, “Dad, that’s really crazy.” His dad towered over him and, in a low, threatening voice, said that if Josh knew what was good for him, he would do exactly as he was told or he would find himself walking all the way back home. With great trepidation, Josh went over to their neighbor’s campsite, placed the radio on top of the cooler, and carried both back to his and his father’s campsite.
Just as he was heading back, the father of the family next door pulled up in their van and asked Josh what he was doing. Josh looked over to his father for guidance as to what to say, and his father then apologized profusely to this man and explained that he had been having a lot of trouble with Josh lately. He said Josh had probably intended to steal the items, if only for a prank. In fact, Josh’s father remarked to the neighbor, “You probably even heard me discipline him on Friday night.” The man nodded sympathetically, looked Josh straight in the eye, and said, “Now you listen to me, son – I’m going to do your dad a big favor and not call the cops. But you’d better start respecting other people, including your father. Your life is just going to keep going straight downhill until you can be honest and admit that you’re the real problem.”
As unpleasant as Josh’s life is, he nonetheless possesses a number of advantages over most abused children and adolescents in this country. n3 To begin with, on some level, he understands that his father is abusing him. In addition, he is old enough to testify in his parents’ child custody dispute. n4 Perhaps he even lives in one of the approximately twenty-five states that recognizes a rebuttable presumption against granting sole or joint custody to a parent who has perpetrated domestic violence in the recent past. n5 It is possible that his father’s email communications can be admitted as evidence of his father’s mental abuse in his parents’ custody proceeding. n6 [*460] As indicated, most minors who are being abused by a parent or other guardian are not so lucky. Many such minors are too young to testify in a custody proceeding, and some of them may not even understand that they are being abused. Additionally, many minors are likely to live in a state that either: 1) does not respect a rebuttable presumption against granting joint custody to a parent who has committed domestic violence or 2) does respect such a rebuttable presumption but likewise recognizes a rebuttable presumption in favor of granting joint custody to both parents so that these two presumptions counter each other. n7 At the same time, even an adolescent in a state such as California faces a formidable challenge in convincing a judge or custody mediator that custody should be denied to a parent who has been verbally or emotionally abusive. To begin with, mental abuse is notoriously difficult to prove, given that it not only typically occurs in private, but it also does not leave telltale scars that other witnesses may see. n8 Even more importantly, though, the definition of domestic violence utilized by the overwhelming majority of states does not encompass mental abuse (other than mental abuse caused by an abuser’s threat of future physical harm or sexual assault, refusal to refrain from contact with the victim, or invasion of the victim’s privacy). n9 As a result, even if Josh lives in a state that recognizes a rebuttable presumption against granting sole or joint custody to a parent who has committed domestic violence, a custody court today likely would order Josh to spend significant time alone with his father in a post-separation custody arrangement. n10
[*461] This article utilizes a psychological or behavioral perspective to analyze the domestic violence laws in this country and it concludes that, at the very least, states should amend their child custody laws to include “mental abuse,” a term which is used in this article to refer to verbal, emotional, and psychological abuse, each of which is discussed further below. Section II of this article explains the behavioral approach to law, while Section III provides background information regarding the phenomenon of domestic violence. Section IV discusses the major theories of domestic violence that have been proposed to date. Section V explains the psychological theory of domestic violence, which strongly suggests that the legal system should implement more effective deterrents and sanctions for the mental abuse of one family member by another, especially when the victim is a child. Section VI discusses the domestic violence laws in effect in the U.S. states, paying particular attention to how states’ child custody laws treat domestic violence in general and mental abuse in particular. Section VII addresses possible constitutional objections to states’ inclusion of mental abuse in their definitions of domestic violence. Section VIII reviews legal prohibitions against other forms of abuse of power, including bullying, hazing, torture, and other cruel, inhumane, or degrading treatment or punishment. Section IX sets forth a definition of domestic violence that incorporates mental abuse. Finally, Section X concludes by proposing that states adopt a new, psychologically-sound definition of domestic violence that encompasses all forms of mental abuse, at least for use in child custody proceedings.
II. BEHAVIORAL APPROACH TO THE LAW
Psychological issues have influenced U.S. jurisprudence for hundreds of years. n11 This is a natural enough state of affairs, given that the primary role of law is to regulate human behavior, n12 and the word “psychology” means “the science of mind and behavior.” n13 In the 1970s, however, [*462] recognition of the new interdisciplinary field of “psychology and the law,” which has been described as “involving the application of scientific and professional aspects of psychology to questions and issues relating to law,” n14 began. n15 The Corsini Encyclopedia of Psychology and Behavioral Science explains that this new field of study is intended to increase “the administration of justice in our society.” n16 In this respect, the behavioral approach to law can be viewed as a sub-set of both critical legal theory n17 and “law and society” legal theory. n18
Behavioral theory was largely responsible for the American Law Institute’s (ALI) Model Penal Code which relaxed the two-part insanity test set forth in the case of Queen v. M’Naghten. n19 That test provides that a defendant was insane, if “at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as [*463] not to know that what he was doing was wrong.” n20 The Model Penal Code states that a person lacks the capacity to commit a proscribed act either when he or she cannot understand that the act is prohibited, or, despite his or her understanding of the proscription, nonetheless is incapable of conforming his or her conduct to it. n21 The ALI explained that “the law must recognize that when there is no black and white it must content itself with different shades of gray.” n22 Most states have since incorporated the ALI’s Model Penal Code provision on the diminished capacity defense into their criminal codes. n23 In addition, the law and psychology movement has successfully advocated for recognition of mentally disabled people’s legal rights. n24Furthermore, legal scholars and psychologists have been instrumental in demonstrating the general unreliability of eyewitness testimony, n25 and numerous DNA exonerations of innocent individuals have confirmed that many eyewitness identifications are flawed. n26 Some scholars have even proposed a new Model Penal Code that would require the exclusion of eyewitness testimony in any criminal prosecution in which police personnel failed to follow a strict set of procedures. n27 Practicing lawyers and legal scholars have in fact utilized tenets of psychology (as well as neuroscience, the study of “how nervous systems [including the brain] are organized, and how they function to generate behavior” n28) to [*464] benefit society in numerous additional ways. For example, they have assisted in the formation of litigation settlement strategies, n29 supported the creation of alternative dispute mechanisms for emotionally charged legal disputes such as contested child custody proceedings, n30 and successfully promoted the legal system’s recognition of the disease model over the moral deficiency model of addictions. n31 Domestic violence unquestionably constitutes aberrant human behavior, consisting, as it does, of a person somehow injuring one of his or her supposed “loved ones.” Therefore, utilization of a behavioral perspective to analyze the available legal remedies and sanctions available for domestic violence victims is particularly apt.
III. BACKGROUND INFORMATION REGARDING DOMESTIC VIOLENCE
In the twenty-first century, domestic violence continues to be one of the most misunderstood crimes. Although commentators generally agree that the financial cost of domestic violence is too high, n32confusion and debate abound regarding many other aspects of domestic violence. For example, its definition, incidence, gender symmetry, and cause(s) are all highly controversial. Each of these issues is discussed below.
A. Types of Domestic Violence
The term “domestic violence” is a creation of the state legislatures. In the 1970s, states began to adopt statutes addressing “spousal abuse.” n33 After it became clear that persons other than spouses or former intimate partners could be subjected to violence in relationships as well, states began to adopt statutes specifically dedicated to the various forms of [*465] violence that can occur in the context of domestic relationships. n34 These statutes often use the terms “domestic violence” and “domestic abuse” interchangeably, n35 and, given the variation among states regarding legally recognized domestic relationships and crime definitions, these statutes tend to define “domestic abuse” or “domestic violence” very generally as “abuse” or “violence” (i.e., a specifically proscribed act) inflicted by one member of a defined “domestic relationship” against another, and then further define “abuse” and “domestic relationship” in separate statutory provisions. n36
The American Psychological Association’s (APA) Presidential Task Force on Violence and the Family “defined family violence and abuse as including a range of physical, sexual, and emotional maltreatment by one family member against another[,]” n37 and clarified that “the term family includes a variety of relationships beyond those of blood or marriage, in recognition that similar dynamics of abuse may occur in these relationships.” n38 Numerous domestic violence experts and government agencies are in accord with the APA’s general statement regarding domestic violence. n39 For example, psychologist and domestic violence expert Daniel Sonkin states that “most advocates and professionals agree that violence manifests in three general forms, physical, sexual and psychological … .” n40 Similarly, the Office of Violence on Women (OVW), a U.S. Department of Justice agency, has stated that “domestic [*466] violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.” n41 The OVW has also clarified that such psychological actions can include destruction of pets or personal property as well as forced isolation of the victim. n42 The U.N. Declaration on the Elimination of Violence Against Women likewise defines “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” n43 Each of these types of abuse (physical, sexual, emotional, psychological, and economic) is discussed further below.