DOMESTIC VIOLENCE IN OUR SOCIETY

The Human Resources Committee of the League of Women Voters, as part of this study, has researched the literature pertaining to domestic violence. The information in the Introduction was obtained from many books, studies and periodicals. All the sources we consulted are listed in the references. A glossary of terms has been included, as well as the text of Hawaii Revised Statutes Section 709-906.

It has been estimated that every nine seconds, a woman is beaten by her husband or boyfriend. One out of every three Americans has witnessed an incident of domestic violence. It is the leading cause of injury to women – more than car crashes, muggings and rape combined. Domestic violence is not a problem confined to any one socio-economic group. It cuts across all economic, cultural, religious, geographic, educational and vocational lines. In America today, 42 percent of all murdered women are killed by men who profess to love them. It is claimed that domestic violence is not about love and passion – it is about power and control over another person and the imbalance of power in a relationship.

Experts agree that physical abuse is part of a continuum that typically begins with actions that undermine self-esteem, escalating verbal assaults, and attempts to isolate a victim from friends and family. There is a battering cycle that tends to occur in predictable patterns of increasing tension, a battering incident, followed by calm, sometimes sorrowful respite. Alcohol and drug abuse may escalate domestic violence situations, but alcohol and drugs are not usually the causal factor. In most situations, the physical violence increases in severity and frequency over time. Any attempt at self-assertion by a victim is deemed threatening. Lack of access to a victim is the epitome of lost control, and is commonly accompanied by-actions such as stalking and by increasingly serious threats on a victim's life. Most batterers minimize their violent actions, deny that any abuse took place, and blame victims for the violent outbursts.

Because of our culture's emphasis on power and dominance, many professionals believe that men are taught to devalue women and women, in turn, learn to accept male dominance. Experts uniformly agree that men have been socialized to be aggressive and that a disregard for others is part of this aggressiveness. Boys are taught to deny their feelings of vulnerability and tenderness. They are encouraged to be brave and invincible. This can create adolescent and adult males who lack empathy and respect for others. Women are primarily encouraged to be "nice," and this often is equated with being submissive and weak. Society's general acceptance of girls as less powerful and more submissive often leads to women's perceptions of themselves as unimportant and unworthy.

Professionals believe that this socialization of boys and girls leads directly to acceptance of violence against women. Theorists in the last 20 years have increasingly emphasized cultural attitudes and beliefs that justify and condone violence against women as one reason for household violence. The pervasive belief among batterers and too many others in our community is that men should dominate women and children and when women and children resist this domination, they should be punished. In 1987, a study of male university students looked at their "self-reported likelihood of wife battering" in a variety of situations. It was found that 79% of the subjects indicated some likelihood of battering, and that this likelihood is associated with attitudes and beliefs supportive of violence.

In such a cultural environment, partner abuse is viewed as an understandable course of action. Batterers can and have manipulated a system designed to protect the accused and are skilled in undermining the credibility of their victims. Victims are sent opposing, mixed messages. They are blamed for provoking violence on the one hand, yet chastised for failing to defend themselves and flee on the other. Instead of public outrage, victims of domestic violence routinely encounter silence, indifference and blame. This is not the response most victims of violent acts committed by strangers typically encounter.

Our society does not adequately assist abuse victims in their attempts to flee to safety. Most domestic violence homicides occur when victims attempt to escape or to end the relationship. There is not always enough room at shelters for battered women. Help in the form of financial aid, job training and child care resources is scarce. The law enforcement safety net is not always adequate. Victims who testify in court or at probation hearings against their abusers risk threats, retaliation, and further abuse.

The issues surrounding domestic violence reflect a societal attitude that relegates domestic violence to the sphere of private family issues. But domestic violence affects all of us by contributing to child abuse and community violence. In addition to the real pain and suffering of victims, domestic violence costs our state millions of dollars every year in health care, social services and lost worker productivity. These lost lives and lost dollars decrease resources that would otherwise be available for our community and economy.

THE SCOPE OF THE PROBLEM IN HAWAI'I

The Hawaii Crime Brief issued by the Attorney General in April 1996 found that nearly 30% of all homicides from 1985-1994 in the state were the result of domestic violence. It should be noted that nationwide, this figure is 15% for 1994. A study conducted by the Hawai'i State Commission on the Status of Women (1993) estimated that nearly 50,000 women in this state between the ages 18 and 64 have been victims of domestic violence. The Department of Health's Plan for the Prevention of Injuries in Hawai'i (June 1995) reported that between 1989 and 1994 almost 100 women were killed by men in Hawai'i. Most of the killers were partners, boyfriends, husbands or acquaintances.

Firearms were the most common weapon used to kill another person in these domestic violence incidents. Most victims are killed when they try to flee from their abusers. It has been estimated that between 22% and 35% of visits to hospital emergency rooms are made by victims of domestic violence. Yet only about 5% of battered women who seek medical care are identified as domestic violence victims. Studies show that only a small percentage of abuse situations are reported to police; by the time an arrest is made, abuse is likely to have been going on for years. Data from the Department of Health study confirms this problem of under-reporting in Hawai'i. That study also indicates that 28% of the women in Hawai'i who are identified and hospitalized for injuries from domestic abuse are pregnant.

According to the 1993 Hawai'i State Commission on the Status of Women study, arrests involving alcohol and drug charges are high among domestic violence perpetrators. This association should not necessarily be construed to mean that alcohol and drugs cause battering. Instead, it simply shows that abusers also often have alcohol and drug problems as well. It demonstrates the need for a coordinated multi-disciplinary approach for effective intervention.

DOMESTIC VIOLENCE AND THE COURTS

The United States legal system is, in large part, based upon the common laws of England, where men historically had a right as well as a duty to beat their wives – as long as the stick was thinner than a man's thumb (this is the origin of the phrase, "the rule of thumb"). It was the Supreme Court of Mississippi that codified approval of spousal abuse in America. In 1824, that Court ruled that a husband had a right to physically chastise his wife. Following the Mississippi example, courts in Maryland and Massachusetts also decided that a husband had a right to use moderate physical chastisement. It was the opinion of a court in North Carolina that the state should not invade the household and should leave the parties alone to make up after a fight and to learn to live together as a man and wife should.

Since its recognition and treatment as a criminal act in Hawai'i, domestic violence has become a major issue in our criminal justice system. The legislature passed our first spouse abuse law in 1972, Hawai'i Revised Statutes Section 709-906, "Abuse of family and household members." From 1973 to 1979, judges convicted only three men of spouse abuse and suspended the only jail sentence. (Star Bulletin, December 18 & 20, 1986). The law finally gained teeth on May 29, 1985 when HRS Section 709-906 was amended. This amendment required abusers to serve a mandatory 48 hours in jail. The Hawai'i statute is a presumptive arrest law, which means that police officers may make an arrest in any apparent domestic abuse situation. Pursuant to General Order 91-4, internal police policies in all Hawaii jurisdictions mandate an arrest when there is probable cause to believe abuse of a household member has occurred. During the last decade, enforcement of Section 709-906 has increased the number of domestic violence arrests from 300 in 1986 to 4,665 in 1995 (Honolulu Police Department figures). The 1995 figure means that police found at least probable cause, or facts and evidence sufficient for arrest, 4,665 times.

Implementation of the domestic violence statute is the responsibility of our criminal justice system. Police agencies are required to make arrests, gather initial evidence, file reports and refer cases to prosecutors. Police are increasingly being required to provide initial referral information and assistance to victims to insure their safety. Prosecutors are required to file charges, work with witnesses, address issues of evidence, and prosecute cases in court. It is the Judiciary's responsibility to preside over cases before the court, including sentencing, in accordance with the existing statutes and case law. It is the responsibility of our citizens, when they serve as jurors, to make informed verdicts based on the law and evidence presented to them.

In response to the increase in domestic violence-related arrests and prosecutions, our Judiciary instituted educational programs for Hawai'i judges to promote an understanding of domestic violence issues and to provide guidance in the proper adjudication of these cases. Two resource manuals that were used in judicial training programs are: Family Violence: Improving Court Practice, which contains the recommendations of The National Council of Juvenile and Family Court Judges' Family Violence Project, and A Benchbook for Judges on Domestic Violence in Civil and Criminal Cases. The recommendations of The National Council of Juvenile and Family Court Judges are directed to judges, prosecutors, police, victim advocates, and other persons and agencies who work with the accused and the victims of domestic violence in the court system and through court-related agencies. The Benchbook is a compilation of articles on domestic violence issues and the laws and policies of various jurisdictions. Judges are free to use these resource manuals and other materials of their choosing in making their decisions in court, but they are bound by Hawai'i statutes and the ruling in Hawai'i case law, unless there is an applicable federal statute or ruling that pre-empts or overrules local law.

An example of the kind of guidance provided by the National Council of Juvenile and Family Court Judges is Recommendation Six, directed to criminal courts, which states that:

"Every sentence in a family law violence case should:

a) Hold the offender accountable;

b) Order offender involvement in activities specifically designed to reduce future violence;

c) Require an alcohol and drug evaluation where appropriate, mandate successful completion of treatment, and provide for mandatory chemical testing; d) Provide for formal supervision and monitoring of compliance.

In support of Recommendation Thirteen to probation departments, the Council of Judges noted that ". . . perpetrators of family violence require maximum supervision. The reasons are numerous: the risk of recidivism is extremely high; the community is at risk of future violence; the great majority of offenders have substance abuse problems; it is likely they have committed the crime a number of times in the past; these offenders typically rationalize their criminal behavior; they know and have easy access to their victims ....

The Council of Judges states in Recommendation Four to court-related agencies that prosecutors should initiate, manage and pursue prosecution in all family violence cases where a criminal case can be proved, including proceeding without the active involvement of the victim, if necessary.

Although proceeding without the victim is possible in other jurisdictions, Hawaii law makes this very difficult. If the alleged victim does not wish to testify, prosecutors must find other ways to introduce her statements to police and other verbal evidence about who attacked her into the court record. Under the strict interpretations of the rules of evidence handed down by the Hawaii Supreme Court, it is difficult to demonstrate that these statements are exceptions to the hearsay rule, and therefore admissible as evidence.

In the last decade, reactions to HRS Section 709-906 have changed. Previously, most defendants waived their right to a jury trial, opting for a bench trial with a judge. Those convicted received the mandatory minimum sentence of 48 hours in jail. Soon, defendants began demanding jury trials. This, combined with the dramatic increase in arrests, created a tremendous jury trial backlog. By May, 1994, there were 3,476 pending cases. (Status Report to the Chief Justice, October 31, 1994). The Judiciary resolved the problem by reassigning judges to hear domestic abuse cases and made additional courtrooms available. During this process, at least 1,600 cases were dismissed under Rule 48 of the Hawaii Rules of Penal Procedure, which requires a trial of the defendant within six months of arrest or charge.

PURPOSE OF THE STUDY

Because of its impact in our communities, the League of Women Voters has been active in the support of laws designed to prevent domestic violence. The League has concerns about the enforcement of these laws by our criminal justice system and the resulting impact on victim safety, abuser accountability, and the prevention of domestic violence. For this reason, the League's Human Resources Committee undertook a court observation project in collaboration with the Hawaii State Commission on the Status of Women, involving misdemeanor domestic violence cases in Honolulu, which became the basis for this report. Court proceedings are only part of how our society deals with domestic violence. It is our hope that this report will increase the discussion about the roles of judges, prosecutors, and other court agencies and the community in response to domestic violence.

SURVEY METHODOLOGY

Twenty-six League volunteers monitored Family Court proceedings from March 1, 1996 to May 31, 1996 (and arraignments and pleas and calendar calls through June 30, 1996). Most of these proceedings were for HRS Section 709-906 violations, restraining order violations, and related matters. Each volunteer was instructed about court procedures, definitions of terms, court protocol, and how to collect information and fill out the monitoring form. The form was designed to collect all pertinent information, even though there are gaps in availability of this information at the proceedings.

The Family Court of the First Circuit has three courtrooms for domestic violence criminal proceedings on Oahu, which are located in the District Court building at 1111 Alakea Street, 8th floor (courtrooms, B, C, and D). League volunteers sat in the courtrooms during all scheduled court sessions and collected information on each case to come before a judge. The collected information formed the data base for this report. The tables and charts in this report were compiled from this data base.