Brief History of VAWA and the Restraining Order

Domestic violence has existed throughout recorded history. However, brutality has no place in a civilized culture. The evolution of our laws culminated into legislation clarifying that battery against one's household members would no longer be tolerated. One method of extending protection to women seeking to escape abusive relationships is the restraining order, which grants a civil remedy (no abuse) ordering the batterer to stay away from his victim. The initial "temporary" restraining order is liberally granted for probable cause for a period of up to 10 days until a hearing can be held to determine it's validity. The "permanent" hearing determines, by preponderance of the evidence, if the defendant has committed behavior such as assault, battery, or other disturbing behavior which now goes under the title of "stalking". Violation of the restraining order is punishable by criminal sanctions if the abuser continues his confrontational behavior. By ordering a batterer to vacate the premises and avoid contact with the victim, an intermediary step is provided for women seeking to escape abusive relationships who don't desire to pursue criminal charges or put their former intimate partner in jail. Mindful of the tragedies which frequently accompanied domestic violence, our civilized culture has decided that preventing potentially deadly confrontations between former intimates outweighs the inconvenience to the batterer seeking to force a former partner to remain in a relationship with him. As abuse prevention laws were vigorously enforced by law enforcement officials, the traditional avenues open to batterers to maintain control of their victims began to slam shut. Some batterers successfully completed treatment in court-ordered batterer's intervention programs. However, not all treatment was successful. The recidivism rate of batterer's who don't acknowledge their battering behavior is particularly high. As observed by David Adams, Clinical Director of EMERGE (the first counseling program in the nation for battering men): "Often, men who abuse are well-liked and highly regarded in their communities ... and peers. They appear to be rational, well-adjusted, and even sensitive, and to have positive social relationships. In fact, these men use physical and psychological abuse as a means of privately controlling relationships with their partners, on whom they actually often have a pathological dependence.

"The typical abuser's reaction to the legal system is that the system is unfair to be publicly embarrassed and put out of his home. Abusers tend to minimize their abusive behavior, tend to consider their actions as not abusive, and think that private actions are not properly the subject of scrutiny. Alternatively, abusers may concede violence, but divert attention to a partner's problems as a way of justifying the violence. In the narcissism characteristic of abusers, these men are rarely able to see the partner's perspective on the relationship, often shifting responsibility for the abuse to the victim."(Gender Bias Study of the
Supreme Judicial Court of Massachusetts, 1989, p. 83)

Traditionally, family violence was not taken seriously by the courts. Prior to the late seventies, most states did not have statutes providing civil relief for women seeking protection from abuse, and domestic violence cases did not receive serious attention from the criminal justice community. Instead, domestic violence was considered a "family" matter to be "worked out" by the parties involved. Women who were victims of family violence were often blamed for their predicament and denied the protection of the courts. (Gender Bias Study of the Supreme Judicial Court, Mass. 1989, p. 79). Beginning in the late seventies, advocates for battered women were successful in convincing lawmakers that victims of domestic violence were entitled to government protection. In 1978, Massachusetts passed an abuse prevention act that allowed victims of domestic violence to obtain a civil order protecting them from their abusers. However, society was slow to change it's image of the battered women. Police personnel, judges, and even the victims own support network tended to view domestic violence as a trivial offense. Judges and juries expect more corroboration of physical injuries in domestic violence than in other serious crimes. Sentences in domestic violence cases were generally lower than in cases of other serious crimes. Orders were often not enforced, giving the batterer the impression that the law didn't take his criminal acts seriously. "The tendency to doubt the testimony of domestic violence victims and to "blame" them for their predicament no only hampers the court's ability to provide victims with the protection they deserve, it also has a chilling effect on victims' willingness to seek relief." (Gender Bias Study of the Supreme Judicial Court, Mass. 1989, p. 80). As public awareness increased, the legislature passed stricter laws enforcing violations of restraining orders which eventually culminated in the Violence Against Women Act of 1994 (VAWA) which created extensive anti-abuse legislation, defined stalking laws, encouraged police and court personnel

training for those states which did not already have programs in place, and gave women a federal cause of action for crimes motivated by gender. In spite of these improvements, even today "many women who flee violence are forced to return to their abusers because of inadequate shelter or lack of money. Even if they leave their abusers to go to a shelter, they often return home because the isolation from familiar surroundings, friends, and neighborhood resources makes them feel even more vulnerable." (Congressional findings, VAWA proposed 1999 amendments, H.R. 357, Title II, s. 402 (5)). Currently, the Violence Against Women Act of 1999 is working its way through Congress. It defines broader classifications of abuse to be applied by the states, increases the penalties for interstate stalking, mandates greater protection for children of battered women who witness abuse, prohibits employers from discriminating against battered women who lose time from work to seek a restraining orders against an abuser, and extend VAWA's protection to traditionally under served communities such as immigrant battered women and elderly battered women. One way which the proposed legislation will increase protection to battered women is it's broad sweeping definition of abuse.
" 'Abuse' means the occurrence of one or more of the following acts by a current or former household or family member, intimate partner, or caretaker: (a) Attempting to cause or causing another person bodily injury, physical harm, substantial emotional distress, psychological trauma, rape, sexual assault, or involuntary sexual intercourse; (b) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm; (c) subjecting another person to false imprisonment or kidnapping; (d) attempting to cause or causing damage to property so as to intimidate or attempt to control the behavior of another person." [italics mine](Congressional findings, VAWA proposed 1999 amendments, H.R. 357, Title II, s. 422 (1)).

This refinement of the definition of abuse includes behavior such as "following" or "controlling" which courts have traditionally been reluctant to grant protection. These refinements will hopefully allow the courts greater leeway in affording protection to the victims of domestic violence. What the proposed revisions don't describe is the disturbing trend amongst Father's Rights groups and the battering community at large to teach men how to violate restraining orders legally by skirting existing definitions of assault and battery. Instead of sending the victim a threatening letter, the batterer is taught to disguise his message as a "complaint" to a court or state administrative agency where the victim will be forced to lose a day out of work to confront her batterer. The "message" is not considered a violation of a restraining order, and judges or agency administrators will shrug apathetically when the victim tells them this is the 10th or 12th such

hearing she has been forced to defend in 6 months and vacuously tell her "he has a right to redress his grievances." Nor do police take it seriously when the batterer encourages third parties to telephone the victims friends, or contact them directly, to "discuss" how "unreasonable" the victim is being by attempting to escape the batterer. Since the batterer relays the message through an intermediary to a friend and carefully avoids asking the friend to pass a message along to the victim, thirdparty contact provisions are not violated and the victim is without recourse even though the batterer may have coverts repeatedly telephone her family and friends, thereby diminishing her support network. In those "comparatively rare" cases where the violating conduct involves that of a third party, some proof of the defendant's intent is required. In such instances, where the issue is raised whether the defendant directed or acquiesced in the conduct of the third party, the Commonwealth must prove that the defendant intended the act that resulted in the violation. In this case, the Court ruled that the evidence was sufficient to warrant such a finding, based on the evidence that the defendant knew of the order, was in a car driven by his son, other routes were available, and that the victim had direct eye contact with the defendant while the car was purposefully driven to within three feet of her in a threatening manner. (Commonwealth v. Delaney, 425 Mass. 587 (1997)). Stalking is essentially psychological warfare in the battle for control. (Specialists Say Stalkers are Driven by a Need to Control, Terry Wilson, Chicago Tribune, Feb. 23, 1992). It is a pattern of multifaceted conduct intentionally targeted at a specific person that terrorizes the victim. Minimal contact with a former abusive partner may trigger substantial emotional distress. Batterer-stalkers who know their victims often use familiar gestures to provoke a particular response or fear. (Lenore E.
Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Public Policy, 324).

This harm was acknowledged in the case of Commonwealth v. Thompson where the defendant attempted to argue to the Massachusetts Court of Appeals that the "no contact" provision in his estranged girlfriends abuse prevention order violated his constitutional right to free speech. "When an expressive activity produces "special harms distinct from their communicative impact, such [activity is] entitled to no constitutional protection." (Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244 (1984)). Speech that places the victim in reasonable apprehension of imminent serious physical harm is conduct equivalent to the crime of assault and accordingly is unprotected by the First Amendment. (Commonwealth v. Robicheau, 654 N.E.2d 1196,

421 Mass 176, 182-183 (1995)).

The harm created by contact from an abuser -- the inability of the victim to escape the abusive relationship fully and the fear created by the abuser's continuing presence -- is distinct from and unrelated to any message the abuser might be seeking to send. While an abuser has a right to speak his mind freely in any number of forums, he has no right to seek out and contact the victim of his abuse, forcing that victim to endure his unwanted and destructive presence in her life -- no matter how harmless or important the message he seeks to deliver. When offensive, or even harmful speech takes place in a public forum and is directed to no single person, anyone who wishes not to listen may walk away ... [however] when an abuser singles out the victim of his abuse (as judicially determined) and directs unwanted communications to that person, the victim cannot walk away. " (Commonwealth v. Thompson (699 N.E. 2d 847, 1998, 45 Mass.App.Ct. 523, 525 (1998)).