Gender Bias and the Family Violence Prevention and Services Act
At the risk of committing liberal heresy and being associated with the likes of our Misogynist-in-Chief, I submit the first in a series of articles for consideration. My career has been dedicated to conducting research that can influence public policies supporting marginalized populations, particularly women and children. Clearly domestic violence is an ever-present public threat, and many are powerless to prevent it from happening to them. I was one of those people, having endured physical and emotional abuse for most of my childhood; so, I speak from experience on several fronts. Nonetheless, policies and laws that stem from stereotypes, political agendas, and inadequate evidence not only do not prevent the problem, they may in fact make it worse.
Domestic violence accounts for about 15% of all crime in our nation. The Family Violence Prevention and Services Act (FVPSA) in 1983 (PL 98–457) was the first national effort to address this problem. FVPSA sparked the creation of laws and services to protect victims of domestic violence. Since then, the number and scope of family violence related statutes have grown substantially, largely in response to pressure from special interest groups; most notably the Violence Against Women Act of 1994 (VAWA). Lawmakers scrambled to create and expand these laws but have expended very little effort evaluating their effectiveness and unintended consequences. The time has come for us to examine the fundamental fairness of family before further expansion.
Questioning the fairness of family violence laws evokes strong opposition from the left, especially organizations funded specifically to improve protections for women; opposition that seems to contradict their calls for gender equity. VAWA framed domestic violence as a women’s rights issue from the onset despite compelling evidence of gender symmetry (Parra, 2016; Zimmermann, 2016). Domestic violence is an equal opportunity phenomenon. Lifetime prevalence of domestic violence is comparable between the sexes (Black et al., 2011; Desmarais, Reeves, Nicholls, Telford, & Fiebert, 2012). The lifetime prevalence among men is only about 25% lower than that observed among females (Black et al., 2011).
While men and women experience comparable levels of domestic violence, family violence court cases and dispositions suggest that women share almost the entire burden. Growing evidence of judicial bias towards men in these proceedings is surfacing. Judicial bias against men is particularly acute with respect to issuing and enforcing temporary restraining orders. Many judges still subscribe to age old stereotypes of men as perpetrators and women as victims (Baron, Burgess, & Kao, 1991; Dutton, Hamel, & Aaronson, 2010; Johnson, 2005; Muller et al., 2009; Straus, 2005). For example, Muller et al., (2009) found that judges were almost 13 times more likely to grant a TPO requested by a female plaintiff against her male intimate partner, than a TPO requested by a male plaintiff against his female partner. Perhaps judges do not objectively consider both the male and female’s role in the dispute. Fritsche (2014) states, “The problem with the current approach is that not all abusive relationships are one sided, and while one partner may be considered the victim, there is often a more complex story, sometimes involving mutual abuse” (p. 1478).
Family court judges are seemingly uninterested in complexity or most importantly the female’s culpability in abusive relationships (Fritsche, 2014). Criticisms of “female-framed” family laws predate (VAWA). Thirty years ago, McNeely and Robinson-Simpson (1985) warned that framing it as a women’s rights issue will greatly contribute to “men’s increasing legal and social defenselessness” (p. 485). Decades later their warning was prophetic. Judges are often easily swayed by female victim’s narratives and most likely to rule in their favor out of an “abundance of caution”.
One of the most disturbing factors that contribute to judicial prejudice in cases related to harassment or stalking is how the courts define “harm”. No other criminal statute in the U.S. uses a victim’s emotional state as a criterion for determining guilt (Gatewood Owens, 2015). The definition is gender -biased and plays in favor of the demonstratively emotional female victim (Gatewood Owens, 2015). Such a criterion says that if a victim perceives themselves as harmed then they have satisfied that requirement. The evidentiary standard in most states is “preponderance of the evidence”, a standard very low given the potential impact of a negative ruling on the defendant. Defendants most often male, typically have less than 10 days to gather evidence after being served an ex parte order. They are essentially presumed guilty and must overcome both judicial prejudice and a low evidentiary standard. Defendants are not even afforded the rights of discovery and do not understand was to what evidence the plaintiff will present in court. Given that a civil hearing could result in criminal charges the stakes for the defendant are not trivial.
Representing affluent professional women in domestic disputes is the lifeblood for many attorneys. Like their ambulance chasing colleagues, they market directly to middle-aged women who have been “injured” by their partner. Obviously, many women meeting this description are genuine victims of domestic violence and have suffered terrible injuries and trauma but those are not the women who sustain the practices of these attorneys. These attorneys attract the “microaggrieved”. Microaggrieved women are women who have sustained largely trivial forms of mental injuries call microaggressions. Microaggressions are “subtle forms of discrimination, often unintentional and unconscious, which send negative and denigrating messages to various individuals and groups” (Nadal et al., 2015).
The microaggrieved women seek attorneys who will vindicate them from a lifetime of annoying slights. A vindictive, punitive motive shrouded in feminist rhetoric by the right attorney is a sure bet. Attorneys who represent these women are highly likely to win their cases and to be compensated making them the ideal litigator’s inventory. Affluent gated suburban communities are filled with well-educated and powerful women eager to seek justice for marital or dating grievances.
Exploiting the gender bias in family law is effective and lucrative. Suburban areas are heavily populated with numerous affluent, divorced, and angry women. Women who are seeking validation through the courts that eludes them in their interpersonal lives. There is no shortage of attorneys reaping the financial rewards of one-sided statutes. The benefits to both the plaintiff and counsel are both considerable and likely with negligible risks. Attorneys easily manipulate both the courts and the plaintiffs in this context. Sadly, marginalized women, the real victims of horrific and ongoing domestic violence rarely have representation.