Next Time, She'll Be Dead

Battering and How to Stop It

Ann Jones

• Publisher: Open Road Media
• Year: 2015
• ISBN:
  9781504019538
• Topic: Scienze sociali
• Subtopic: Studi di genere

"Whether you're an individual woman looking for help or a reader looking for the truth about the thousands of women who are battered by the men they live with, Next Time, She'll Be Dead is the one book you should read." —Gloria Steinem At least 1 in 4 women will be abused during her lifetime—that is 25% of our mothers, daughters, sisters, partners, and friends. Thousands will be killed. As author Ann Jones observes, despite its devastation battering is regarded not as a serious crime, but instead as an inevitable "problem" blandly labeled "domestic violence." Stories of household assaults and murders are all over the news, but the blame is usually pinned on the woman who is said to have either provoked the attack or failed to "leave." In this groundbreaking book, Jones points instead to the many factors in society that promote, trivialize, and perpetuate brutality against women: from popular psychology, academic "expertise, " mass media, and pop culture, to the criminal justice system and the law itself. Delving deep into the history, legality, and personal politics of male violence against wives and girlfriends, Next Time, She'll Be Dead fearlessly reframes the issue. This critically acclaimed masterwork offers productive ways of thinking and speaking about battering and explains what must be done to stop it.

1 Against the Law

As Americans, we believe that we possess certain fundamental inalienable rights, and we assume that the right to be free from bodily harm is among them. We share a conviction, so deeply felt as scarcely to need articulation, that people have a right to bodily integrity, to freedom from physical intrusion. The right to be secure in our persons is mentioned in the Bill of Rights, just as freedom of speech, freedom of assembly, and freedom of religion are, but it may be even more important.¹ In his classic analysis of the rights of individuals, Blackstone gave the highest priority to “security from the corporal insults of menaces, assaults, beating and wounding,” and next in importance after “personal security” he ranked personal liberty and personal property.² What do our other freedoms amount to after all if we are not safe in our persons? As one judicial decision noted: “No right is held more sacred, or is more carefully guarded … than the right of every individual to the possession and control of his own person, free from all restraint or interference of others.”³ We assume that it is the task of government, then, to keep the peace among us, to keep us all safe from the state itself, from enemies abroad, and from one another so that we may go about our business, exercising our freedoms, pursuing our happiness.

Our right to freedom from bodily harm underlies our laws against physical assault, providing their moral foundation. Without laws to forbid assault and battery and rape and homicide, and without a government to enforce those laws and punish offenders, we’d have to defend ourselves. We can imagine how terrible such lawlessness would be. Our Hollywood Westerns have taught us the value of a decent lawman to fight our showdowns for us. Threatened by an attacker, we don’t want to fight it out for ourselves, and we don’t think we have to. We call the cops. We good citizens cede to authorities—to police and prosecutors and judges—our right to defend ourselves, and they in turn are supposed to act on our behalf to protect our right to be free from bodily harm and to punish those who try to violate that right. That’s the deal we make with the state—a basic clause in the social contract. And at the most rudimentary level, this is what a government of law is all about. Civilization rests upon the shoulders of an upright sheriff.

It doesn’t rest easy, for despite the idealism of our assumptions, the right to be free from bodily harm has never been absolute. Like all our other rights, it was for a long time the privilege of only some of the “people”—mainly those well-to-do white men who drafted the laws and administered their enforcement. English men enjoyed privileges that were enshrined in the common law as their legal rights, and among them was the right to rule the family.⁴ Building on the foundation of English common law, American legislation and jurisprudence imported those male “rights” wholesale. And just as English women had complained for centuries about the undue power men held over women and children, American women also began to campaign for equal rights, especially for equal rights within the family.

Historically, the law distinguished between public matters and private family matters, leaving the family under the governance of the husband and father. English common law made a Husband and a Wife legally one entity, and that one was the Husband. When she married, a woman ceased to exist before the law; she was “covered” by her Husband. If Wife ran up debts, pummeled a neighbor, or stole a cow, Husband had to answer for it at the bar of justice. Obviously then, the law had to arm Husband with a stick to keep Wife in line. Fair’s fair. Today, of course, every woman is legally accountable for her own acts; so there is no longer any basis for the legal justification of wife beating. But for centuries the law concerned itself with the larger problem of keeping order among men; it delegated to each individual man the task of keeping his own household in line. The law gave him the right—even the obligation—to “chastise” his women and his children and his servants. American law in the early nineteenth century permitted a man to chastise his wife “without subjecting himself to vexatious prosecutions for assault and battery, resulting in the discredit and shame of all parties concerned.”⁵ The law drew a curtain of privacy about each man’s household to shield it from legal scrutiny.

But behind that curtain, men committed acts against women and children which would have been considered crimes if committed against other men. Stories of household atrocities, such as we see in our newspapers today, have always circulated; and, gradually, under pressure from humanitarians and women’s rights activists, some lawmakers came to face facts. They recognized that laws against assault and battery which protected men from bodily harm at the hands of others should apply to women and children as well—even when the assailant was the husband. Yet efforts to expand the legal category of “people” protected from assault inevitably collided with the accumulated precedents of privacy law. The two sometimes collided within a single judicial decision, producing hopeless ambiguity. Consider, for example, an 1874 decision of the Supreme Court of North Carolina. The court nullified the husband’s right to chastise his wife “under any circumstances,” then added: “If no permanent injury has been inflicted, nor malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forgive and forget.”⁶

The first English law against “Aggravated Assaults Upon Women and Children” was passed by Parliament in 1853. (Parliament seems to have been caught in a particularly charitable mood, for this law followed upon a great wave of legislation to protect domestic animals.) The act provided fines and prison terms of up to six months for men convicted of beating their wives or children under age fourteen. The United States, however, was slow to follow this example. Protesting the commonplace physical and sexual abuse of wives, American feminists and temperance leaders in the late nineteenth century railed against the “brutality” of violent and drunken husbands. And eventually they convinced policy makers, in that Darwinian age, that such privileged male behavior was an evolutionary throwback to the order of “brutes,” unworthy of Nature’s crowning achievement: Man—which is to say, men. By 1880, many states had made laws to restrict the “right” of men to “chastise” their wives and children, but few provided any punishment for men who exceeded the limits.⁷ And because the laws were not enforced, the lives of women were little changed.⁸

The North Carolina decision that nullified the husband’s right to chastise and then in effect nullified that nullification exemplifies the progress of American law. Not until this century did a court rule that while Husband was still obliged to “teach the wife her duty and subjection,” he could no longer claim “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 other like indignities.”⁹

Laws against assault, of course, were on the books in every state, but being intended to regulate the conduct of one man to another, they were almost never applied when a man assaulted his wife. Thus, many men continued to claim their ancient privilege, and law enforcement officers, uncertain what the law required of them, and—as one man to another—understandably reluctant to interfere in a fellow’s “family” affairs, hesitated to look behind the traditional curtain of privacy. That very distinction between public and private matters, with the law regulating only weighty public affairs, effectively diminished women’s concerns to inconsequential private complaints beneath the dignity and majesty of the Law. Thus, for the better part of a century, only the most atrocious crimes came to the attention of the courts, while run-of-the-mill batterers like my father carried on undeterred in the sanctified privacy of home.

In the 1970s, when women began fleeing to shelters, many of them told the same story. They’d called the cops. The cops had insulted them, laughed at them, blamed them, put them down, or ignored them altogether. Some women had gone to court only to be told they had no business there. Prosecutors and judges sent them home to “make up” with their husbands. Battered women’s advocates and legal scholars set to work to make the law better, stronger, fairer, and inclusive of women and to persuade the criminal justice system to come to the defense of women’s rights. At last a thoroughgoing paper reform took place, with many states adopting domestic abuse prevention acts to strengthen the hand of the authorities and sharpen their focus on assault in the home. Women worked with police, prosecutors, and judges—or tried to—to help them see the issues from the woman’s point of view and to understand the seriousness of male violence against female partners. But battered women, still fleeing in growing numbers to shelters, reported little change.

Feminist attorneys, working on behalf of groups of battered women, brought class action law suits against police departments and court officers to compel them to do their job—to enforce laws against assault, make arrests, and help battered women press charges in court. In most cases, battered women won or settled to their advantage out of court. Important victories in Oakland, California, and New York City in 1976 prompted policy and procedural changes in those cities, sparked other lawsuits across the country, and convinced police in some jurisdictions, under pressure from local battered women’s advocates, to change their policies without litigation. In addition, the victories inspired the battered women’s movement, of which they were a part, to new levels of confidence and work.¹⁰ But the movement had to fight the battle city by city, leaving many localities untouched or unchanged, and even in cities where the movement won, it had to monitor the police continuously to ensure even partial compliance with the law. The victories were monumental, yet battered women described the change as “small.”¹¹

Then some badly injured individual women and the families of some women murdered by husbands or boyfriends brought suits against police for failing to protect them as they would protect other crime victims, a violation of their civil rights. One woman, Tracey Thurman, won a suit against the police of Torrington, Connecticut, who had stood by and watched while her estranged husband stabbed and slashed and kicked her nearly to death.¹² Awarding her substantial damages, a federal district court ruled that “a man is not allowed to physically abuse or endanger a woman merely because he is her husband. Concomitantly, a police officer may not knowingly refrain from interference in such violence, and, may not automatically decline to make an arrest simply because the assaulter and the victim are married to each other.”¹³ This sensible decision was handed down only in 1984, and only after Tracey Thurman and thousands upon thousands like her had been beaten and beaten and beaten.

The more women pressed for law reform and law enforcement, the more they realized what an impenetrable body the law is, and how intransigent the system that administers and enforces it. Again and again during the last two decades women assaulted by men turned to the legal system for help. Again and again the system let them down. In one six-year period alone—1967 to 1973—battering men killed 17,500 women and children in the United States. To grasp the enormity of that figure consider that only a little more than twice as many men—39,000 to be exact—were killed during the same period in combat in Vietnam.¹⁴ Thankfully the war in Vietnam ended, but the count of women injured and killed by men on the home front continues. In 1991 more than 21,000 domestic assaults, rapes, and murders were reported to the police every week.¹⁵

The law has never been able to address battering effectively because of its own peculiar structure. Written by men for men, the law is designed to protect men from the power of the state and to adjudicate conflicts between men, to preserve order in a society of men. We may believe the law to be rational, objective, impartial, and fair, but many legal scholars find legal procedure, legal language, legal logic, and even the binary “either/or” mode of legal thought masculine to the core. To critics, the law seems simplistic, regimented, confrontational, adversarial, and overly technical—in a word, macho. A trial is a showdown: somebody wins, somebody lies bloodied in the dust. This result is called “justice.” But how can this sort of macho justice be applied to the complex issues raised when a man assaults a person who is also his intimate partner or wife, and when the welfare of children also hangs in the balance? The fact is that there’s something fundamentally wrong with the law. Dickens’s Mr. Bumble pronounced the famous indictment: “The law is an ass.” Worse. The ass seems to be masculine. Worse still, when women’s rights are at issue, the ass ambles backwards.

The problem is not simply that the law is biased in favor of the male gender (though it is), but that the law itself, in the way it goes about things, is “gendered.” Thus, the practice of law changes only very slowly as women enter the field, for female law students are subjected to the same rigorous training in the system of “male” language, logic, and procedures as their male counterparts; and subsequent success in the profession usually depends upon sticking to the rules.¹⁶ Certainly, among women in the law, feminist legal scholars engaged in critical analysis of the law are a minority. The fact that so many women in the law behave much like men in the law is then taken as evidence that the law is indeed objective, impartial, ungendered, true, and universally applicable. But, unfortunately, it is not.

In any conflict, the law casts the parties as adversaries, but conflict between parties who share a household and perhaps children is never that simple. A battered woman may want her husband arrested to deter him from beating her again, but if feeding the children depends upon his wages, she may not want him jailed or even prosecuted. In that case, the prosecutor is likely to say that she’s wasting the court’s time; and the judge may admonish her instead of her assaultive husband. She has to play it the court’s way, or not at all. Yet the court is singularly unable to remedy her complaints because by the very nature of its thinking, geared to simple good guy versus bad guy situations, it cannot comprehend them. Is this man, who is at once her husband and her assailant, her adversary or not? The battered woman may have to answer yes and no—an answer which disqualifies her complaint. On the other hand, if a battered woman wants her assailant locked up forever, as many do, the court is certain to remind her that the man is her husband. In either case, the prosecutor or the judge may conclude that there’s something wrong with her: she’s indecisive, uncooperative, manipulative, masochistic, stupid, angry, a “bitch” using the law to “get back at” her husband or boyfriend. In fact, it may be that adversarial law is simply inadequate to gratify her best interests, or even to understand them.

Harvard psychologist Carol Gilligan, studying moral conflict and choice, concluded that women make ethical distinctions that are different from those of men. Earlier studies of people in ethical dilemmas concluded that the ability to reason from abstract principles (as the law purports to do) is the highest level of moral development; but Gilligan noted that those studies were based almost entirely upon male subjects. The few women studied were found “deficient” in abstract reasoning and branded morally “inferior.” Gilligan agreed that women—given their different social conditioning and experience of life—seemed to reason differently; but she posited a second moral “voice,” neither better nor worse than the male interest in abstract principles, but “different”—more concerned with real human relationships and connectedness. Beside the male ethic of “justice” she placed the female ethic of “care.”¹⁷

Gilligan’s work is controversial among psychologists who don’t like to admit they’ve based a “science” of human behavior almost exclusively on the behavior of white males, and among some feminists who see differences between the sexes (particularly differences that may be regarded as essential) as potential obstacles to equality. But her observation that women often make different ethical distinctions from men goes straight to the core of what’s wrong with the law. Faced with a classical ethical problem—should a poor man whose wife is dying st...