For most of history, law has allowed and arguably encouraged domestic violence in marriage. One of the first traces of the law’s response to domestic violence is found in the Roman Code of Paterfamilias (literal translation: the Roman Code of the male head of a family or household) which reads: “If you should discover your wife in adultery, you may with impunity put her to death without trial, but if you should commit adultery or indecency, she must not presume to lay a finger on you, nor does the law allow it”.
This general premise of the husband being the head of the household (limited by the fact that he could not cause permanent damage as was consistent with English Common Law) was prevalent for most of American history. Calvin Bradley v .The State of Mississippi (1834) was the first major American court case that seemed to limit a husband’s ability to physically abuse his wife beyond the common law when it found: "If the defendant now before us could shew from the record, in this case he confined himself within reasonable bounds, when he thought proper to chastise his wife, we would deliberate long before an affirmance of the judgment." (Emphasis added.)
Fourteen years later, in 1848, at the Seneca Falls Woman's Rights Convention, women united to protest that the law granted men the power, within some bounds, to physically abuse their wives. This very concept was reinforced sixteen years later, in the State of North Carolina vs. Jesse Black (1864) which was a domestic violence case between spouses wherein the Court stated:
A husband is responsible for the acts of his wife, and he is required to govern his household, and for that purpose the law permits him to use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave herself; and unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum or go behind the curtain. It prefers to leave the parties to themselves, as the best mode of inducing them to make the matter up and live together as man and wife should.
The concept of familial privacy as an excuse or defense to domestic violence was further stated in State of North Carolina vs. Rhodes (1968) when the Court stated: “[f]or, however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber”. Although, perhaps in an attempt at equality, the Court also found that it would not intervene in a case where the wife physically assaulted her husband.
In 1871, for the first time in American jurisprudence, the Alabama Supreme Court ruled in Fulgham v. State that absent self-defense, a husband could not physically assault his wife. The Court stated:
Therefore, a rod which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjection to the husband. The husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husband's slave. And the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law.
That same year, Massachusetts in Commonwealth vs. McAfee, heard a domestic homicide case where the defendant sought the following jury instruction: "that the husband had a legal right to administer due and proper correction and corporeal [sic] chastisement on his wife”. The Court, in response ruled that: "beating or striking a wife violently with the open hand is not one of the rights conferred on a husband by the marriage, even if the wife be drunk or insolent."
While the case findings were commendable and they represent a turning point in how the law viewed domestic violence, absent three states (Maryland, Delaware, and Oregon), there was almost no criminal liability. In 1910, perhaps in recognition of the absence of criminal liability, a woman sought to obtain civil damages against her husband as a result of domestic assault. The United States Supreme Court heard the case of Thompson vs. Thompson which asked the Court to determine whether a wife could sue her husband for civil damages as a result of a domestic assault based on a statute that provided women with significantly more financial autonomy from their husbands. While the Court found that the statute did provide women with the ability to sue other people or businesses, it concluded that to extend the meaning to allow spouses to sue each other would be “evil” and would “open the doors of the courts to accusations of all sorts of one spouse against the other and bring into public notice complaints for assault, slander, and libel, and alleged injuries to property of the one or the other”.
The early twentieth century was plagued by competing beliefs on domestic violence. While by 1920, all states made some forms of domestic violence criminal, the family courts sought to decimalize it. Couples were urged to work on their marriage and reconcile. Police took cues from the family court and adjusted police report to encourage reconciliation. “…[P]hysical assault was not viewed as criminal conduct; instead it was viewed as an expression of emotions that needed to be adjusted and rechanneled into marriage.” The Rule of Love: Wife Beating as Prerogative and Privacy," Yale Law Journal, vol. 106, June 1996.
It was not until the late 1960-1970’s that limited inroads against domestic violence were made. In 1976, a study done by the Police Foundation found that the police had intervened at least once in the former two years in 85% of families where subsequently a spouse murder occurred. In response to this study, Minneapolis played an integral part in understanding the best police force reaction to domestic violence in the Minneapolis Domestic Violence Study (1981-1982). The purpose was to determine whether ordering that the abuser leave for eight hours, arresting the abuser, or mediating the dispute had the best outcome (re-offending). The study found that arrest resulted in the best outcome. Four years after the study, nearly 50% of police forces imitated policy changes as a result of the study and the US Attorney General’s Task Force on Family Violence Report took heavily from the study. In 1984, Congress passed the “Family Violence Prevention and Services Act” which was followed by the 2005 Regarding the Violence Against Women Act (which was renewed and expanded in 2012 to include same sex couple and provide people with U Visas and in 2013 a re-authorization was issued which contained equal coverage for men).
In 1984, the United States Federal Court heard from domestic violence survivor in Tracey vs. Thurman. In that case, a wife who had been abused (once in front of a police officer) and nearly killed by her husband and obtained numerous restraining orders, sued the police protection based on the equal protection clause based on the police ignoring her husband’s domestic violence and not enforcing the restraining orders. The Court in awarding the survivor $2.3 million dollars found:
City officials and police officers are under an affirmative duty to preserve law and order, and to protect the personal safety of persons in the community. This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relationship as well as to all other persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community. [A] police officer may not knowingly refrain from interference in such violence, and may not automatically decline to make an arrest simply because the assailant and his victim are married to each other. Such inaction on the part of the officer is a denial of the equal protection of the laws.
Currently, while federal law recognizes all types of domestic violence victims (regardless of race, immigration status, and gender) the state laws are not comprehensive in the type of victim they protect (meaning whether the parties live together or not), protection they provide survivors, or in the criminal penalties for abusers. Most relevantly, Minnesota has been fairly progressive in the type of victims they protect (race, gender, and intimate relationships of all types) and the available relief (such as protective orders that exclude the abuser from the home, work, school, or other place; temporary spousal maintenance, pet custody, and other relief).
Notwithstanding these improvements, the Center for Diseases Control found that 1 out of every 4 women and 1 out of every 7 men will suffer severe partner violence in their relationships at some point in their life. The American Psychological Association found that 2 out of every 5 gay or bi-sexual men will experience partner violence. In a 2015 study by the University of Minnesota Institute on Domestic Violence in the African American Community found that black women experience domestic violence 35% more than white women. “Between twenty-two and thirty-five percent of women who visit hospital emergency rooms are there due to injuries sustained as a result of domestic violence.” Teri Randall, Domestic Violence Intervention Calls for More Than Treating Injuries, 264 JAMA 939, 939 (1990). Thus, while significant progress has been made with development of laws dealing with domestic violence and victims have occurred over the past two centuries, more can be done to decrease the incidence of domestic violence and to improve laws protecting victims.
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