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Don't jail domestic violence victims

By Wendy McElroy
web posted December 19, 2005

Katina Britt claims to have been savagely beaten by an ex-boyfriend against whom she refuses to testify. Accordingly, a California judge has ordered her to be jailed on contempt of court charges last week. Britt's attorney is filing an appeal with the U.S. Court of Appeals in San Francisco on the grounds that state law permits Britt, as a domestic violence (DV) victim, to decline to testify in at least one trial with impunity; the testimony in question would constitute her first court appearance.

The appeal may hinge on a technicality but Britt's case illustrates a fundamental change in the legal system's stance toward DV victims. Critics of the change, like me, argue that there is something wrong with a system when those it purports to protect refuse to co-operate and risk imprisonment instead.

The specific argument in the case of Britt revolves around the idea of "coerced testimony."

In past decades, prosecution rarely proceeded if a DV victim refused to testify. This was especially true in cases like Britt's which authorities have called "weak" without her testimony.

How has the issue of DV drifted from its early roots of empowering 'victims' and encouraging their voices toward imprisoning them and coercing their testimony?

The possible imprisonment of Britt results from a specific bureaucratic and ideological approach to DV that has dominated the legal system in recent years.

The bureaucracy consists of the lawyers, counselors, politicians, 'experts', and other professionals who derive income or advancement from the prosecution of DV; to a large extent, the choice to prosecute has been taken from alleged victims and placed in the hands of bureaucrats.

The ideology is gender feminism that views DV as violence against all women; this makes obstruction of prosecution an act of harm against all women. Victims who object are often dismissed as being too confused or intimidated to perceive their own best interests.

According to the experience of Chief Deputy District Attorney Steve Wagstaffe -- the prosecutor in Britt's case -- approximately 75 percent of DV victims are reluctant to testify. With Britt's refusal, the court followed California law by 'providing' her with court-ordered counseling. Since victims who persist in their refusal face imprisonment, Wagstaffe explains that most co-operate after the mandatory counseling.

Thus, the threatened imprisonment of Britt may be uncommon only because earlier and more subtle forms of coercing testimony are usually effective.

Certainly the intention of coercing testimony from DV victims is clear. Nothing else explains the Spousal Privilege Exception statutes currently in effect for DV in almost every state.

The well-established legal principle of Spousal Privilege requires that a wife or husband be able to refuse with impunity to testify in court on private matters. The DV exception allows prosecutors across North America to compel the testimony of one spouse against another in matters of DV.

Advocates of spousal privilege view it as a limitation upon government's reach into the home, as a barrier separating the public and private spheres in order to protect the latter. Advocates of an exception for DV consider spousal privilege to be a remnant of the legal opinion that wives are a husband's property.

Exception advocate Shery F. Colb adds the argument, "[A] woman who decides not to testify against her husband might simply have forgiven him. Notwithstanding...it is still reasonable for the state to prosecute him. After all, criminal assault violates the laws of the state and should not be considered a private affair to be addressed or not, depending on a private party's wishes."

In short, DV is not a crime against an individual but a crime against society and, so, choice rests not with the individual but with society; in practice, this means it rests with the legal bureaucracy.

Colb's article is entitled "Helping Battered Women Without Holding Them in Contempt" but that title begs the main question: will battered women (or men) who do not wish to press charges or provide testimony be held in contempt? The answer is becoming "yes." DV advocates are ceasing to push for empowering victims with choice. They now argue for empowering bureaucracy to achieve social goals, even over the objection of victims.

How did DV come to the sad pass where its advocates defend the practice of imprisoning victims?

In fairness, one reason is the extreme complexity of DV. Consider the Britt case. Her resistance to testifying is said to come from being intimidated by the alleged abuser. Even if this is true, however, how does her imprisonment constitute a solution? How can an imprisoned Britt distinguish the court system from her abusive ex-boyfriend, both of whom claim control of her life against her will?

DV is a Gordian Knot -- a difficult, intractable and sometimes unsolvable problem. Alexander the Great 'solved' the legendary Gordian Knot by simply cutting through it with his sword. He achieved a bottomline with the knot by slicing through it.

As the survivor of severe DV, I know on a visceral level the complexity of DV. I also know there is a bottomline: DV is a crime committed by one individual against another. The way to empower victims is to restore and respect their choices, not to coerce them further.

No one should be put in jail for being beaten up and, then, refusing to talk about it. Any system that imposes this punishment upon a victim is wrong on its face. And in its heart.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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