With their aggressor on the one end and the legal system on the other, women are caught between two fires: Who can they turn to?
According to the National Center for Injury Prevention and Control, “women in the United States experience about 4.8 million intimate partner-related physical assaults and rapes every year.” How does the American system deal with this issue which concerns more and more people? We decided to focus on different “options” those women have and how precarious their situation is in relation to the legal system.
The Violence Against Women Act (1994) was created to protect the victims but also to protect the victims who have no legal status in the US. Many associations do their best to help these women, and many programs have been created. The National Coalition Against Domestic Violence (NCADV) is present on the whole territory. It is devoted to helping men, women and children who are victims of abuse. They also help people who face different forms of discriminatory abuse. The court should submit the aggressor to psychological tests to evaluate what risks he represents.
When victims do report their being abused, the solutions offered to them are protective measures and programs. Among those we can find the Restraining Order: most perpetrators in domestic violence cases are released on bail before trial. This is when the victim is most vulnerable because her abuser may try to attack her again. In this case, the court can protect her by issuing a restraining order. But these orders are often useless. They are just recommendations – and the abusers often ignore them and retaliate. survivors of those retaliations often report that the aggressor told them: “If I can’t have you, no one else will”. The Welfare System: A woman who reports her abusive companion to the police can have her children taken away from her to protect them – a “solution” feared by many mothers. The American Welfare System can sometimes separate a mother from her children only to put them in danger again in other families. The issues involved are vital to these victims. To really shelter them, stricter legal measures should be applied urgently, and they should meet all the requirements necessary in terms of security. For example, the law could decide to order random police patrols around the victims’ homes to ensure they are not in danger.
Reported cases of domestic violence are just the tip of the iceberg. Most of the cases are unreported which makes them the top of the « iceberg » of domestic violence. “Why does she stay and say nothing?” From the outside leaving seems simple. The possible factors that explain why an abused woman chooses to stay with her abuser, vary from personal or societal to a matter of ignorance and social silence. Women with personal issues are either afraid of their aggressor’s counterattack or economically dependent on them. There is also a psychological side of these stories which is completely ignored by most people. The woman is under the control of her abuser, she is disoriented and does not even realize how dangerous the situation is. Inside this bubble, she can suffer from post-traumatic stress disorder, anxiety or/and depression. The notion of reality is biased, and this woman needs help to escape this situation.
Simultaneously, in some cultures, some women’s families consider the aggression to be a private matter and eventually, these women often blame themselves for provoking the aggression. Furthermore, there are still women who are not aware of their rights. « I’m not only learning about my rights as a young woman but also understanding the norms and rules society has taught us since childhood. Now I know that I can question those ingrained norms and that I am allowed to be involved in society, without fear of reprisals » Leidy Romero said. She participated in a round table of women who suffered from domestic violence. On the social level, many unreported cases of abused women are known by their relatives such as neighbors and friends. Therefore, women remain silent in an atmosphere which tolerates aggression.
The silence of those who know about cases of violence and do not report are the ones responsible for creating an atmosphere that tolerates domestic violence. One of the key elements in breaking the silence would be mobilization through public education, raising awareness campaigns in the media or led by academics. Furthermore, hospital emergency rooms should have protocols to identify signs of violence on the victims’ bodies.
Non-reported cases can lead to other tragic ends. A Study finds that out of all homicide/suicide cases, 72% involve an intimate partner – 94% of which concern women. Some women have only one option to protect themselves: kill their aggressor. How does the law consider this type of case? The US law provides the right to protect oneself. However, the court needs proof to justify the right to self-defense according to some criteria. We will now focus on the requisite standards which only concern self-defense in domestic cases. Obviously, we can notice some differences among States because each State has its own jurisdictions. However, they rely more or less on the same basis.
Imminent Threat of Harm: The violence must be imminent. A “future” threat does not justify the use of self-defense.
Reasonable Fear of Harm: The fear must be reasonable. It is based on what an objective person would do in the same situation. If the aggressor does not look dangerous, self-defense is not justified.
Proportional response: The victim of violence must only use necessary force to repel the aggressor. If the aggressor does not use lethal force, the victim cannot.
Imperfect self-defense: The woman may have interpreted a threat due to a misunderstanding. This case can reduce the sentence of the user of self-defense.
Duty to retreat: The victim must prove she tried to escape violence before using deadly force against the aggressor.
While each case of domestic violence is specific, these laws are objective and sometimes based on the point of view of a third person who must judge a complex situation. In most cases, in face of the law, a woman who killed a man will necessarily be guilty as charged. We believe that the legislation should consider other factors, such as the feeling and experience of the woman who feared for her life and the psychological effects of this previous situation. Moreover, the lack of means women have to defend themselves against men and the lack of alternatives they have to survive if they succeed in leaving must be considered.
As we saw, killing in self-defense is a right. But in practice, the rate of women in prison for those “violent crimes” is drastically high. In fact, for First- or Second-degree murder or Voluntary Manslaughter, 10-15% of victims are convicted. For most women, neither the laws of self-defense nor evidence of battering work in actual trials. Plus, 75-85% of women who kill in self-defense are convicted or convinced to plead guilty. In February 2020, Nicole Addimando was sentenced to jail for the murder of her husband in 2017. She had faced physical and sexual abuse for years but once again the court did not consider all the aspects of her own situation.
The female gender in the American judicial system remains widely unrepresented in senior offices such as judges. Only 34.7% of American judges are women. This is a real problem when it comes to judgements on domestic abuse cases. The abused parties (mostly women) are often blamed or “accused” of not reporting the abuse; not fighting for their children and/or not living their abuser. They are essentially blamed for being a victim, which is one of the main reasons why they refrain from reporting their misfortunes to the competent administrations. “Women have to think carefully about bringing abuse allegations to court, even where there may be evidence”. This quote from Mrs. Sonia Sodha, a Columnist from The Guardian, illustrates quite clearly what precedes.
Studies also find that the women who are more likely to be arrested and charged with murder are African American women, LGBTQ women of color, low-income women and low-income LGBTQ women. Concerning dual arrests (when the victim and her abuser are arrested) or in case the abuser decides to complain, we find 66% of African American or Latinas. Among them, 43% are living below the poverty line and 19% are welfare recipients.
Some survivors who escaped their aggressor or who were lucky enough to be found innocent in court after a murder charge find themselves helpless with no means to survive. Due to the precarious environment in which they live, they are most likely to end up dealing and/or doing drugs or in prostitution – which means jail time for them anyway. It falls in the framework of an intersectional system. A system that discriminates against minorities and has no plan for these women, other than prison or death.
This patriarchal culture in the judicial system is not the only problem. But it is to blame because judges (often men), when it comes to self-defense cases, don’t give proper instructions to juries on what they should primarily take into account for the judgment. They also sometimes fail to remind them that any testimony or evidence of abuse is enough to establish domestic violence and therefore justify the action taken by the defendant.
There should be a thorough sensibilization to domestic violence, and what it involves is paramount. This should be a requirement for hiring judicial personnel, psychologists and social workers, but also a requirement for the establishment of working profiles for judges, secretaries, assistants, other staff members, and managers concerned with the issue of violence against women. Staff members and judges who are perpetrators of domestic violence should be fired.
As we observed, female victims of domestic violence in the United States are very often left behind. This situation is caused by a system which encourages isolation and blames the victims instead of offering them more help and alternatives. Real measures must be taken to inform, support and understand the victims’ situation. Since the number of victims of domestic abuse increases at the same rate as the number of deaths especially during this pandemic period, many lives are in danger every second and every day. The consequences presented in this article only represent 50% of what kinds of impacts this type of violence can have . For instance, we did not mention the impact on children who witness these aggressions. All of us can be touched or witness such abuses, we must care about each other.
Noëlly Rocher, Imad Baazizi and Alexandra Dina.
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