Should the law differentiate mutual combat from domestic abuse

Posted Tuesday, February 13th, 2018 by Gregory Forman
Filed under Law and Culture, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, Protection from Domestic Abuse

I recently attended the South Carolina Bar’s annual guardian ad litem training. One of the presenters discussed “Domestic Violence and its Impact on Children.” Her oral presentation, but not her written materials, differentiated two types of domestic violence. The first–and this is not how she labeled it–is what one might think of a low-level mutual combat. The second was what we all would consider proverbial domestic violence: where one domestic partner routinely uses violence or the threat of violence as a method of control.

Now this presenter noted that the law did not distinguish these two types of domestic violence. Given that this presenter represented numerous women in family court, and has handled dozens of protection from domestic abuse petitions, her very politically incorrect presentation was quite brave–and so surprising that I subsequently confirmed I had correctly understood her thesis. Yet, from years of family law practice and limited knowledge of the domestic lives of my friends and family, it seems somewhat obvious that there are indeed two types of domestic violence. Perhaps the law should recognize this and treat them differently.

Google, “which gender instigates more domestic violence” and one will encounter numerous articles purporting to demonstrate that females are more often the instigators. This is only plausible if one considers what above I term “low-level mutual combat” as domestic violence. While I would consider this to be domestic violence, I would note that it’s not the sort of domestic violence most folks have in mind when considering the problem of “domestic violence.”

Until recently it was a trope of romantic comedies and fiction for the heroine to slap some cad across the face when he treated her feelings cavalierly [you don’t see this in contemporary fiction any more but it’s only stopped recently]. The audience was intended to cheer the leading lady and her act as a sign of empowerment. Often the next scene would involve rather vigorous sex, or, in the Hayes Code era, a fade-to-black and either a scene of a train going through a tunnel or the couple smoking cigarettes while looking disheveled.

The law really doesn’t know how to treat such “mutual combat” domestic violence. It’s clearly a problem–both for the couple involved and for the children who witness it. However, I’m not certain it needs to be a criminal law problem or a problem in which the law searches for a victim and a perpetrator.  The current practice of arresting both parties when law enforcement comes to a scene in which both partners have gotten physical but neither is injured is of questionable benefit.  I’ve defended a handful of protection of domestic abuse cases in which a woman claimed to be abused by her male partner in which her own version of events indicated she was the instigator of the domestic violence and that her partner’s response left her with no injury that required medical treatment–often no injury that even left a bruise.

Such couples might need intervention in the form of counseling, but I don’t see much if any benefit from criminal law intervention. These physical altercations are the adult equivalent of fighting pre-schoolers who need to learn to “use your words.” Their dispute resolution method is partially due to immaturity and partially due to a failure to teach dispute resolution in grade school. Telling children to “use your words” may be a prophylactic but isn’t really a method of dispute resolution. Couples whose arguments sometimes devolve into pushing, slapping, or throwing objects can be taught how to better handle conflict. Such lessons can create a calmer family dynamic and break the cycle in which children see adults in intimate relationships resorting to low-level violence when angered and then do the same when they get older.

On the other hand, domestic violence that is used by one partner to terrorize the other partner is deadly serious (pun intended). This is the domestic violence that leaves serious bruising or broken bones–the kind that often leads to someone needing medical treatment–or ending up dead. In my years of family law practice I’ve encountered very few cases in which the instigator of such domestic violence was a woman. One of the few good cultural changes I’ve observed in my quarter century practicing family law is that the law treats this violence as a criminal matter and doesn’t encourage women to remain in the household in the interests of “preserving domestic harmony.” Such abuse is incredibly damaging to the victim and to the children who witness it. It is almost impossible to solve unless the couple separates for a period–with both the victim and the perpetrator getting counseling specific to their role in this dynamic.

It possible that there are actually two distinct types of physical violence within domestic partnerships that are lumped under the rubric of “domestic violence”–one of which is related to immature dispute resolution methods and one of which uses violence as a means of control. While both are bad, and while children shouldn’t be exposed to either, the former may not require criminal law intervention and the latter surely must. The former does not benefit by assigning partners the labels of victim and perpetrator. With the latter, justice requires such labeling. However until and unless the culture distinguishes these two type of domestic violence, our thinking about this issue will remain muddled.

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