Fix The Problem, Not The Blame by Richard L. Davis, A.L.M.

Reproduced with permission of the author

This site is supported and maintained by the Equal Justice Foundation.


 

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| Chapter 2 — Domestic Violence And The Rule Of Law |

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Index

Introduction

In The Beginning

How We Lost Our Way

The fallacious argument

Define the problem before attempting to solve it

Data expunged

Homicides

Approximately one out of every four domestic violence homicides also involves a suicide

Dynamics

Gender Feminism

The light begins to dawn

Some still don't get it

Why don't the various groups get it?

A Lack Of Agreement

Cause

Battering behavior

Family conflict

Who still doesn't get it?

The cause of the confusion between Capaldi, Kelin, Soler and many others

Family conflict as seen by frontline officers

Egregious Inactions

Buck Thurman case — Connecticut

Luis Melo case — Massachusetts

One-label-fits-all

It Is Time We Question Why?


 

Introduction

Top

Injustice anywhere is a threat to justice everywhere.

Martin Luther King, Jr.

It seems only logical that all victims of domestic violence regardless of age, gender or sexual orientation would receive equal or the same justice from research and intervention programs and the criminal justice system. However, a cursory examination of public domestic violence policies and public and private domestic violence websites document that adult women are considered to be the primary or most important victim.

Concerning gender justice in the criminal justice system in particular, the Bureau of Justice Statistics Sourcebook 30 th Ed. 2002 documents on page 420 that for all crimes, sentences imposed on males are longer than the sentences that are imposed on females for the same crime.

In fact, the National Institute of Justice report, Extent, Nature, and Consequences of Intimate Partner Violence (PDF) documents that law enforcement respond differently to women who are victims of domestic violence incidents than they do men.

Most domestic violence advocates and many of our public policy makers continue to view the issue of domestic violence as only or primarily violence against women. Criminal justice training manuals sponsored by the Violence Against Women's Office concerning domestic violence intervention nearly universally refer to the victims as women and the offenders as males.

Hence, common sense and logic will dictate that when law enforcement officers respond to domestic violence calls, because they have been trained to expect males to be the offenders and female's their victims, officer response is a biased against men.

Women are more likely than men to report domestic violence incidents and it is documented that law enforcement officers are significantly more likely to take a report and to arrest or detain a male perpetrator if the alleged victim of the reported incident is female (p. 50 PDF).

The nexus of the problem for the criminal justice system is that domestic violence, by law in all fifty states has become far more complicated than either "violence against women" or "battering behavior." Because the majority of domestic violence advocates continue to equate "violence against women" and "battering behavior" with "domestic violence," the issue has become an enigma that is different things to different people.

Clearly, if justice is to be served equally domestic violence advocates need to expand their education and understanding of the criminal justice system and become more familiar with statute law. It is the written law and not ideological or philosophical beliefs that must guide law enforcement education, intervention, and training.


 

In the beginning

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In 1981 a group of citizens in Duluth, Minnesota became frustrated with what they perceived was a lack of commitment by the criminal justice system concerning "wife beaters." With private funding they founded the Duluth Abuse Intervention Project (DIAP). The project was a coordinated community wide effort that contained a number of agreed upon written protocols that were intended to connect the police, the court system and social service agencies.

The Duluth police department put in place a policy that mandates when their officers respond to a domestic violence incident where there is enough probable cause to identify the offender, and there was an injured victim present, an arrest must be made. And most people would agree that if someone beats or batterers their wife, they should be arrested, sanctioned, and perhaps placed in an effective treatment/counseling program.

The Duluth courts and social service agencies have specific advocates trained to assist the victims in all steps of the post-arrest process. Recognizing that many offenders would return to their home after the arrest, and that many victims did not want the offender to be jailed, they put in place a court-ordered education and counseling program for offenders. The majority of law enforcement officers at that time agreed that the Duluth approach was a good idea.

Today many law enforcement officers and others in the criminal justice system have their doubts about this (one-size-fits-all) domestic violence intervention (PDF).

So where have we gone wrong?

 

How we lost our way

Top

Susan R. Paisner is a Maryland criminologist and writer with more than 20 years' experience concerning domestic violence. She writes for and is on the advisory board of the National Bulletin on Domestic Violence Prevention. Paisner recently wrote that the key to effective "domestic violence" training is to make the dynamics of domestic violence very, very clear.

Paisner is absolutely correct. However, Paisner, the bulletin she writes for, and the majority of domestic violence advocates appear to lack a basic understanding of just what domestic violence, by statute law in all fifty states, really is. The bulletin notes that it will provide "insightful reporting on batterers, victim profiles, and witness interrogations." And concerning "battering behavior" the bulletin is often helpful and insightful. However, domestic violence as defined by law, in all fifty states is not primarily violence against women nor is it battering behavior. The following is an example of domestic violence in Massachusetts:


 

"Abuse" is defined by M.G.L. c. 209A, § 1 as the occurrence of one or more of the following acts between family or household members:

1. Attempting to cause or causing physical harm;

2. Placing another in fear of imminent serious physical harm; or

3. Causing another to engage involuntarily in sexual relations by force, threat or duress.

4. Where there is no battery, a warrantless arrest for "abuse" may properly be made by effecting an arrest for simple assault under c.265.13A. The most relevant definition of "abuse" closely approximates the common law description of the crime of assault.

The crime of assault can be committed in the following ways: (a) by an attempted battery, i.e. the defendant took some overt step to commit an intentional battery; (b) an immediate threatened battery must include an overt and menacing gesture, the conduct of which reasonably caused the victim to fear an imminent battery; (c) an act placing another in "reasonable apprehension" that force may be used. Mere words alone are not sufficient without an overt act on the part of the defendant."

However, it is important here to note that there need be no apparent marks or injuries to the victim. An overt act is sufficient to place the victim in fear of serious physical harm. Hence, the arrest and/or the ensuing assault complaint, would be based on the application of G.L.c. 209A and G.L.c.265.13A.

In all fifty states, domestic violence can be one push, one shove, one grab, one bite, one slap, one scratch, one hit, one threat, one thrown object, a loud argument, or just pounding on the table to emphasize a point. In fact, in some states all that is required is "the fear" by some third party that someone else may be abused.

In many, if not most states domestic violence includes everyone who is related through blood or marriage, those who live in a spousal-styled relationship or are engaged in even casual dating relationships regardless of sexual orientation or whether an intimate relationship exists. In some states it includes those who are not related but simply live in the same household even though no intimate relationship exists.

Thus, by law, domestic violence includes all "family members" regardless of age or gender. Family or household members also includes same sex relationships and all the following:

1. Persons who are or were married to one another;

2. Persons who are or were residing together in the same household;

3. Persons who are or were related by blood or marriage;

4. Persons who have a child in common regardless of whether they have ever married or lived together; or

5. Persons who are or have been in a substantive dating or engagement relationship.

By law domestic violence can be a single act of physical or emotional abuse towards relatives, children, spouses, intimate partners regardless of sexual orientation, and the elderly. In some states it can also include acts that affect another individual's emotional, mental, or psychological condition. In other states some domestic violence advocates also want to include acts that violate the integrity, dignity, or liberty of a person.

How can criminal justice domestic violence training or its dynamics be made clear if the majority of those who provide the training do not understand the dynamics of the criminal justice system or the dynamics of domestic violence law? Law enforcement personnel and others in the criminal justice system must be guided by law, not ideological or philosophical beliefs.

Criminal justice domestic violence intervention has thus become a problematic series of multifaceted and complicated dynamics that now reach far beyond its original intent of many of the well-intentioned advocates in Duluth, Minnesota.


 

The fallacious argument

Define the problem before attempting to solve it

Top

Since the late 1970s an argument has continued over the validity of studies that may or may not document how women and men are equally victimized by their intimate partners (PDF).

This is a fallacious argument because domestic violence advocates, researchers and scholars have yet to agree on just what "domestic violence" is, what "violence" is, what is an "injury," or what "abuse" is. It is both inconceivable and unbelievable to understand how this argument, lacking an agreed upon definition of domestic violence, continues unabated.

Domestic violence advocates do an injustice to all victims when they claim that one out of every three women are abused or half of all married women will be abused. Indiscriminately, such advocates lump together victims of chronic and severe beatings with surveys that question whether a woman has ever, even once suffered any emotional or physical abuse during their entire lifetime.

The number of women and men who believe they have been emotionally abused, pushed or slapped by an intimate partner once, or occasionally during their entire lifetime differs dramatically from those who suffer broken noses, blackened eyes, or other chronic physical beatings.

Grouping those who experience minor family conflict incidents with those who experience violent and chronic beatings both minimizes and trivializes the real victims of violent chronic abuse.

The vast majority of researchers and scholars agree with Deborah Capaldi, Donald Dutton, Jeffery Fagan, Richard Gelles, Linda Mills, Terrie Moffitt, to name only a few, that both women and men can be domestic violence offenders, victims, and sometimes both. These researchers and scholars also agree that a substantial number of women are just as assertive and aggressive as men and many women's violent acts against their male partners can not be explained away only as acts of self-defense.

The standard tool used by most researchers and scholars for evaluating violent acts is the Conflict Tactics Scale (CTS). The CTS measures the physical abuse from minor to severe. The majority of researchers and scholars, including those named above, agree that although women may assault their partners as often as men, the assaults by men have the potential of inflicting greater physical, financial, and emotional injury.

However, even if female violence against males may not always cause greater injury, that does not mean it can not be just as painful to experience. Does not everyone, regardless of what type or reported percentage of victimization they represent, deserve equal access to services and funding? Is not everyone, regardless of age, gender, or sexual orientation deserving of understanding and compassion?

Does any one group, regardless of age, gender or sexual orientation need to comprise half of all victims in order to receive equal justice and protection by society?

Data from the 1999 US Uniform Crime Reports document that there were 93,103 forcible rapes. However, the National Crime Victimization Survey for that same year documents that there were 333,000. The National Violence Against Women Survey estimates that 302,091 women and 92,748 men are forcibly raped each year.

But we rarely ask how many men are forcibly raped in prisons every year? When an individual asks for assistance, regardless of age, gender, race, ethnicity, social position, incarceration, or sexual orientation, that single individual deserves equality of assistance and sympathy regardless of any differences in the number of incidents.

Though there is no uniform definition of what constitutes a "sexual assault" or "rape," according to a survey of high school students, the Youth Risk Behavior Surveillance System (YRBSS), documents that 11.9% of female students and 6.1% of male student report having been sexually assaulted.

The survey also documents that, 12.3% of Black students, 10.4% of Hispanic students, and 7.3% of White students reported having forced sexual intercourse. Does not each of these individuals deserve equal access to justice regardless of gender, race or ethnicity?

Data expunged

Top

A 1994 federally sponsored family violence conference noted that the problem of family violence in the United States is epidemic (PDF). The conference estimates that the annual incidence of abuse of family members is at 2 to 4 million for children, nearly 4 million for women, and 1-2 million for elder adults. At this conference there were 400 professionals and 80 national experts.

The 1994 conference experts did not acknowledge one man as being a victim of domestic violence.

More egregious is a recent report designed and designated for our public policy makers by the National Conference of State Legislatures. This report, When Violence Hits Home: Domestic Abuse and Families, claims that some men may be abused by women. However, the author then sets out to expunge or hide just what the numbers of those "some men" are, when ever and where ever she can.

The author claims that she does not intend to downplay the seriousness of male victimization. But she then writes that a male victim at the hands of female offender is a "rare event." She cites on page 26 of the Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women (PDF) that one out of every four women have been abused by an intimate partner.

However, what she excludes is that on the very same page of the very same report she cites the "one in four" is that the same report documents about 1.3 million women and 835,000 men are physically assaulted by an intimate partner annually in the United States.

The author is correct, she is not down playing male victimization, she is obviously willingly and purposely ignoring, minimizing, and trivializing male victimization.

In fact the National Violence Against Women (PDF) survey notes that because many victims are victimized more than once the number for women who are victims might be as high as 4.8 million and for those "some men" the "rare event" number would be as high as 2.9 million annually.

There is a National Domestic Violence Hotline (NDVH). This hotline claims to be unbiased yet notes on its website that a National Institute of Justice report, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, documents that between 1976 and 1996 that 31,260 women were murdered by an intimate.

What the NDVH does not want you to know, nor does it document on its website, is the fact that this very same NIJ report documents that in the same time period 20,311 men were murdered by an intimate. In fact the NIJ website contains a lot of information that the majority of private domestic violence advocates do not want the general public to be aware of. Unbiased indeed!

Each and every October during domestic violence awareness month not a single president has ever, just once, mentioned the fact that even one man in the entire nation has been a victim of domestic violence.

Why is it that some experts, our public policy makers, domestic violence advocates, and the president on a yearly basis, do not understand that domestic violence includes all intimate/family victims regardless of age, gender, or sexual orientation? What is the cause of these misunderstandings? How does this bias effect law enforcement, the individuals affected, and others in the criminal justice system?


 

Homicides

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Data documents that the safest place for the vast majority of all of us is in our homes. Data documents that the safest place for a woman is in her home married to the biological father of her children. Statistically, the safest place for a child is with its biological father.

However, nearly all domestic violence websites proclaim that the home is the most dangerous place for women and children. The fact is that most homes and neighborhoods are safe places for men, women, and children. The more affluent and educated a neighborhood is, the safer it is, both inside and outside the home.

All homicides, family/intimate, acquaintance, and stranger occur far more frequently in disadvantaged neighborhoods with economically distressed households. In fact all forms of family violence are dramatically more prevalent in disadvantaged neighborhoods within economically distressed households.

When homicides do occur, the vast majority are not committed by strangers. Both offenders and victims are all too often intimate partners or family members. The FBI Supplementary Homicide Report (SHR) defines intimate/family members as relatives, step-relatives, in-laws, and common law or ex-spouses.

In 1980 the FBI Supplementary Homicide Reports documents that 2,094 males (57%) and 1,609 females (43%) were murdered by a family members or intimate partners. In 1990, it was 1,600 males (53%) and 1,427 females (47%). In 2000, 928 males (45%) and 1,133 females (55%) were murdered by a family member or intimate partner.

From 1976 to 1996 31,260 (61%) women and 20,311 (39%) men were murdered by an intimate partner. Of these, 64% of the female victims were killed by their husbands, 5% by ex-husbands, and 32% by partners/boyfriends. Of male victims, 62% were killed by their wives, 4% by ex-wives and 34% by partners/girlfriends.

The FBI Supplementary Homicide Reports documents that between 1980 and 2000, 28,586 (48%) females were the victims of a family/intimate homicide during this 20-year period. During that same period there were 31,509 (52%) male victims. The yearly decrease in intimate/family homicides during this period for both males and females is reflective of the decrease in the total number of homicides nationwide.

In the NIJ study, Homicide in Eight U.S. Cities: Trends, Context, and Policy Implications (PDF), the researchers report that female homicide victimization occurred at such low rates relative to male homicide victimization that the changes in female homicide victims accounted for little of the overall fluctuation of the homicide trends.

The majority, but certainly not all, domestic violence homicides are committed by people who have histories of criminal behavior, long histories of violent and aberrant behavior inside and outside the family, were physically or sexually abused as children, and suffer from alcohol or other substance abuse.

Individuals who do not have histories of criminal behavior, and commit a smaller number of domestic violence homicides, also do not represent the general populace. They often appear to be people who display extreme narcissistic behavior, have alcohol or drug problems, display pathological jealousy, become extremely depressed at the prospect of losing their partner, or blame their intimate partners for the loss of their economic standing or professional and personal esteem.

While murder is the most serious of crimes the Bureau of Justice Statistics documents, it is also the least common. In fact, the NVAWS documents that most domestic violence incidents are minor assaults such as pushing, shoving, slapping, etc. The Bureau of Justice Statistics Factbook, Violence by Intimates, documents that intimate partner violence accounts for about one fifth of the total amount of violence against females.

For comparison of the relative danger, note that on average 40,000 Americans die in automobile accidents annually, 36,000 Americans die of the flu every year, and about 14,000 are killed by drunk drivers. However, while domestic violence homicide is statistically a small risk, it is not one society can completely ignore.

Approximately one out of every four domestic violence homicides also involves a suicide

Top

On the last day of each year the Boston Globe lists the names of people who died as a result of domestic violence. In 2003 there were 13 incidents in Massachusetts that resulted in domestic violence homicides. Five of the 13 incidents involved homicide/suicides.

Inexplicably, each year the Boston Globe excludes family violence suicides as lives lost as the result of domestic violence. The family members of those who murder and then take their own lives might respectfully disagree. It is an old adage that when someone dies they leave a philosophical skeleton in the family closet. When suicide victims die they leave philosophical skeletons in all our closets.

The lesson we must all learn from murder/suicides is that there are many victims left behind in both families. We must learn how precious all of our lives are. There are no primary victims of family violence. Each individual is just as important and vital as another regardless of the difference in percentage of victimization.

The editors of the Globe do acknowledge that the homicide/suicides involve many people who feel helpless and hopeless and are profoundly troubled. However, the editors, and the advocates who provide the Globe with the names of those who die as a result of domestic violence, display a callous lack of empathy by not listing them as victims of domestic violence. Despite the fact that these people took the lives of others along with their own, there should be no doubt that these suicides are a reflection on all us and are the very direct result of domestic violence.


 

Dynamics

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The last three decades of research reveal that varied interventions are needed for the many different dynamics of domestic violence present. It should be clear to everyone that any "one-label- fits-all" or "single ideology approach" is not suitable or applicable for all victims, or all abusers in family violence situations.

Domestic violence advocates who are concerned with the dynamics of domestic violence need to understand that this behavior can sometimes begin with or be as simple as belittlement or demeaning behavior towards another family member. In other cases the violence or abuse may be linked to illnesses, mental disorders, injuries (particularly of the head), aging, or other factors. Jealousy, infidelity, and financial distress may also be a domestic violence trigger.

Most couples experience low levels of aggression such as shouting, pushing, shoving, slapping, or threats at some time during their relationship. In most cases such family conflicts are harmless and resolve themselves with time, or the relationship dissolves. Such arguments are not the concern of society or law enforcement, although under current laws officers all too frequently become involved when neighbors or others call the police. However, some family conflicts escalate to severe physically injurious and sexual assaults coupled with excessively controlling behavior.

Such extreme cases are obviously the concern of society and law enforcement. Unfortunately, there is no clear demarcation line between a normal family conflict and such battering behavior. At present, society and law enforcement tend to react excessively, too often to the detriment of some families and children.

Often low levels of assertive or aggressive behavior can be mutual and mild. However, in a small number of families it can escalate quickly into violent and injurious behavior. Such violent behavior is often fueled, but not caused by, alcohol or drug abuse. There is no question that the abuse of drugs and alcohol lessens reason and logic. Hence, its abuse can often promote or exacerbate violence. However, most researchers agree it is not the fundamental casual factor of the aggressive or violent behavior,

Proper identification of victim-specific and batterer-specific dynamics is vital concerning proper intervention. Those who live at the bottom rung of the socioeconomic educational ladder, and who have few resources and lack family support are the primary victims of chronic injurious physical and sexual assault and need the most assistance.

In general:

• The forms and patterns of family violence are not the same for all families and social, economic, and educational factors play an important role.

• The cycle of violence dynamic often associated with "battered" women is apparently typical only for the more severe forms of domestic violence and is relatively rare.

• Women, because of physicality and lack of resources, in some socioeconomic situations are at a greater risk for physical, sexual, emotional, and economic abuse. However, many women at all socioeconomic levels initiate violence and can be just as assertive and aggressive as men.

• Risk factors for both perpetrators and victims are often familial and intergenerational. Risk factors are exacerbated by, not caused by, the abuse of alcohol or drugs.

• The risk of chronic and violent abuse is greatest, but not exclusive to abusers who are violent outside the family or have a history of criminal behavior.

• Risk factors for both victimization and perpetration are dramatically increased when one partner, or both have a history of mental disorders or criminal behavior.


 

Gender feminism

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Two of the most common questions received from domestic violence advocates over the last decade are:

• Why don't law enforcement officers recognize domestic violence when they see it, or to put it more bluntly: Why don't they [law enforcement] get it?

• Why don't law enforcement officers show more compassion and concern towards the victims of domestic violence?

The majority of "feminists" still believe in "equal" rights. However, gender feminists are people who believe women's rights are more important than victim's or civil rights. To enhance their political goals, gender feminists ignore, minimize or trivialize male victimization. It is these gender feminists that have caused the unneeded, unwarranted, and unsubstantiated gender war because it is conducive to their specific agenda and financial gain.

Because of gender feminism many domestic violence advocates come to the criminal justice system with a bias that causes them to view law enforcement as part of the problem rather than part of the solution. They also view domestic violence primarily as violence against women and believe it is caused by the patriarchy.

The bias against law enforcement is so entrenched in many domestic violence advocates that there is actually a nationally recognized domestic violence organization that claims that in law enforcement academies law enforcement officers are trained how to inflict great physical pain on the general public while leaving no external marks or bruises. This organization then makes the claim that law enforcement officers will do the same to their wives.

It is not just one domestic violence organization that reveals its extreme bias against law enforcement. There are many domestic violence advocates whose websites document that, while not making the same excessive claim, do believe these extreme and unrealistic assertions to be true.

The majority of domestic violence organizations continue to believe, as their websites and pamphlets document, that domestic violence is caused by men because men in general are misogynists. These organizations ignore the fact that there is not a single empirical scientific study that can document this gender feminist ideology is valid.

These gender feminist organizations rarely hesitate to remind us that most law enforcement officers are men. They stress that men in general do not respect women in particular and that contemporary masculine mores and norms cause men in general to view women as property to be used and abused and sexually assaulted at will in order to support and maintain the patriarchy.

In order to blame all men, and not just some men, gender feminists assert that those men who do not abuse or sexually assault women condone such violence by turning a blind eye, deaf ear, and mute voice toward the behavior of men who do.

Gender feminist patriarchal ideology is held by many domestic violence advocates. In many states public policy makers actually mandate that batterer intervention programs are based on this failed, myopic, gender feminist inspired, patriarchal "Duluth" model.

This "one-size-fits-all" criminal intervention (PDF) by the justice system and batterer programs continues despite any evidence that this prejudiced, "blame-and-shame," biased, and ideologically-based intervention, in and of itself, works any better than other criminal justice sanctions or simply no intervention at all.

One extensive NIJ study, The Effects of Arrest on Intimate Partner Violence: New Evidence From the Spouse Assault Replication Program, documents that regardless of whether or not the batterer was arrested the majority committed no further assaults on the same victim. It also documents that a minority of batterers continued to commit assaults after they were arrested and placed in programs.

A recent National Institute of Justice Report Batterer Intervention Programs: Where Do We Go From Here (PDF), documents that the gender feminist ideologically-based batterer programs, in and of themselves, have demonstrated little to no valid scientific empirical evidence that they are of any value whatsoever to victims or perpetrators.

In addition to holding ideological- and gender-biased views, many domestic violence advocates who train law enforcement officers have little real understanding of the complexities of federal, state, civil, criminal and common law. They often have little to no knowledge of individual police department policy and procedure concerning domestic violence cases.

The light begins to dawn

Top

On page A15 of the September 23, 2004, edition of the Boston Globe, gender feminist Ellen Goodman returns to the roots of feminism and its goal of equality for our daughters and sons.

Goodman writes, "Get over the stereotype of women as peaceful." and "Indeed, in studies of domestic violence women initiate violence nearly as often — though not as lethally — as men." Goodman lets it be known that women can not only be, they often are just as violent as men.

Goodman quotes from the book Same Difference that "It's a fantasy that women are so much more caring and empathetic than men. In all the systematic research, men and women come out about equal." Goodman, authors of this book, and the majority of women understand that when some women believe they will be rewarded for their violent behavior, they will behave the same as some men. This is a basic psychological and sociological concept that gender feminism is unable or unwilling to accept.

One of the most important reports that document how the criminalization of all family conflicts has led to the mass incarceration of people in general, and men in particular, is from the Ms. Foundation for Women.

It is interesting to note that the Ms. report, Safety & Justice for All (PDF), refers to the "criminal justice system" more appropriately as the "criminal legal system." Often there is little justice in the law and many victims, families, and children would testify to that with regard to domestic violence laws. One need only remember that it was the "justice system" that upheld Jim Crow laws for many decades.

The injustice of the justice system is no stranger to those at the lower end of the socioeconomic and educational ladder. It visits far too often and is ignored by far too many, particularly those at the higher end of the socioeconomic and education ladder who do not think its injustice will ever visit their homes.

The Ms. Foundation report, Safety & Justice for All: Examining the Relationship Between the Women's Anti-Violence Movement and the Criminal Legal System (PDF) concludes that the criminal justice system domestic violence intervention can be a life saver for some people. Conversely, because it is often used as a dragnet for all family violence it can become cement boots for many men, women, and children who are dragged down into a quicksand of injustice and destruction by current laws and practices.

Some still don't get it

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Many law enforcement agencies wonder why the domestic violence advocates and public policy makers don't get it! Law enforcement agencies, as do the majority of physicians, nurses, psychiatrists, psychologists, family counselors, educators, social workers, attorneys, district attorneys, and judges understand that domestic violence does not fit only a single dynamic.

Domestic violence is not only or primarily violence against women. Domestic violence, at the very least, is by law in all fifty states:

• Child abuse,

• Intimate partner abuse regardless of sexual orientation,

• Spousal abuse, and

• Elder abuse.

Despite what many domestic violence advocates claim, the data from all empirical scientific surveys and studies clearly documents that domestic violence is not only or primarily violence against women. The vast majority of researchers agree that it is a multifaceted complex familial-styled dynamic that encompasses a wide range of behaviors and causative factors. And most family conflicts are beyond the proper scope of the confrontational and adversarial legal system.

However, the majority of contemporary domestic violence interventions continue to disregard and ignore those complexities. Too often law enforcement domestic violence training is presented as "one-size-fits-all." The "one-size-fits-all label" presents all family conflict and domestic violence as battering behavior.

Why don't the various groups get it?

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The lack of agreement between many professionals concerning just what domestic violence is continues to cause confusion and disarray between law enforcement, domestic violence advocates, and public policy makers, as well as the general public. Domestic violence advocates claim they are right and want to train law enforcement based on their ideological vision, while the fact is that law enforcement must be guided by Federal and individual state law and the policies and procedures of their department.

Because there is little to no agreement between researchers, scholars, and professionals on definition, it logically follows that there can be little to no agreement concerning cause and consequences. Hundreds of studies to date only serve to document that there is no single researcher, scholar, or professional that has discovered the one-and-only, single, always correct answer to cause and consequence of domestic violence.

How then can domestic violence advocates provide training for law enforcement officers when there are dramatic differences between their ideological philosophy and state law concerning the definition of domestic violence?

As a result, a great many criminal justice agencies resist domestic violence training because they understand that most often it will be presented by advocates, or law enforcement officers who have been trained by advocates. Many of these advocates do not understand state laws and they continue to believe domestic violence is primarily violence exhibited against women and their training is presented in the "one-label-fits-all" batterer dynamic.


 

A lack of agreement

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Deborah Capaldi is a research scientist and the co-author of the study, Physical Aggression in a Community Sample of At-Risk Young Couples: Gender Comparisons for High Frequency, Injury, and Fear.

Andy Klein is a former probation officer, domestic violence consultant and author concerning domestic violence.

Capaldi and Klein document, apparently unknowingly, the difference between what the majority of domestic violence incidents look like when law enforcement responds to calls for service and what many of the contemporary domestic violence advocates, who are involved in domestic violence training, believe it to be.

Capaldi asserts that her study is not an attempt at "victim blaming." However, it does document that women are often involved in mutual assertive behavior with partners. The study notes that women initiate many "domestic violence incidents." Capaldi is talking about domestic violence incidents, or family conflicts, in general and not only or specifically battering behavior. There are more than 100 scientific, scholarly, empirically-based studies that agree with the findings of the Capaldi study.

Conversely, Klein asserts that Capaldi's study is a "real misstatement of what domestic violence is all about." Klein maintains that domestic violence as seen in civil and criminal courts are not people engaged in mutual arguments and fights who are pushing or slapping each other.

Klein claims the domestic violence as seen in the courts is the type of behavior that lands female victims in the hospital and the morgue. And concerning the men Klein interacted with in the criminal justice system, he is correct.

However, Klein is not talking about the hundreds of thousands of domestic violence incidents that cause restraining orders to be issued, or the great majority of the domestic incidents that police officers respond to. Klein is describing the behavior of the men he saw as a probation officer when the most serious cases reached his office. The majority of these men have long histories of criminally violent behavior and are certainly not a random sample of a representative population.

Further, these men are not characteristic of the wide variety of domestic violence cases seen by district attorneys and judges today under mandatory arrest, no-drop prosecution laws. In fact, anywhere from 15-25% of the cases before the courts the perpetrator is a woman.

Data documents that majority of domestic violence abusers that Klein dealt with had histories of both violent and criminal behavior. Many, if not all, of these abusers were in front of Klein as a consequence of the violent physical beatings of their partners.

However, the majority of law enforcement agencies can relate to the Capaldi study. They recognize the forms of domestic violence incidents she describes because a great many of the domestic calls they respond to are "family conflict" incidents.

The Capaldi study documents, if one will actually takes the time to read the entire study, that the majority of the incidents in her study are "family conflict" and not "battering behavior." Rather than being on opposite sides of the fence, both Klein and Capaldi are right. However, they are engaged in the now decades old apples (battering behavior) and oranges (family conflict) dilemma.


 

Cause

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In the college text, Family Violence: Legal, Medical, and Social Perspectives, Harvey Wallace notes that many thousands of people have been interviewed, tested, observed and evaluated in attempts to discover what causes family violence. The vast majority of researchers and scholars all agree that there is no single correct answer and that there are, in fact, many different dynamics involved and many different reasons or causes.

The text notes there is:

• The Psychopathology Theory,

• The Substance Abuse Theory,

• The Social Learning Theory,

• The Exchange Theory,

• The Frustration-Aggression Theory,

• The Ecological Theory,

• The Sociobiology or Evolutionary Theory,

• The Culture of Violence Theory,

• The Patriarchy Theory,

• The General Systems Theory,

• The Social Conflict Theory, and

• The Resource Theory.

And almost all of the researchers and scholars agree that it could be one, or a combination of these theories that will cause an individual to abuse those they profess to love. Take your pick or mix and match.

Regardless of all these varied theories concerning cause, law enforcement and others in the criminal justice system are only concerned with consequences. The sociological or psychological causations are of little concern to law enforcement officers. What is most important for law enforcement officers is how domestic violence is defined by law in their state and what policies and procedures they must follow to enforce those laws.

Regardless if violent behavior is familial or not, it can be expressive, instrumental or a combination of both.

Expressive violence rises from feelings of anger, rage, or hate.

Instrumental violence is when an offender uses force or violence to achieve short or long term goals.

Domestic violence involves intimate/family members engaged in either minor or serious violence. Anyone remotely familiar with law enforcement understands that officer's respond to both minor "family conflict" and "battering behavior" incidents.

One of the behaviors, "family conflict," is most often expressive, and can frequently involve little more than a loud argument and some pushing, shoving, or posturing which many, if not most couples engage in at times in their relationship. This behavior is frequently exhibited by siblings as well.

Most often "battering behavior" is instrumental. These two, distinct domestic violence behaviors are very different, yet, because of the law, they must be treated in a "one-size-fits-all" fashion. In mandatory arrest and no-drop prosecution states all logic, reason, and common sense must be cast aside in favor of gender feminist ideology.

The gender feminist ideology now embedded in laws has become more important than the many family members who want to seek solutions and solidarity, not only and always punitive criminal sanctions. Much too often civil and criminal court solutions are based on legal precedent that lack compassion, morality, ethics, and common sense.

Battering behavior

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Most researchers and professionals agree that a "battered victim" is a person whose life is thoroughly, extensively, and completely controlled by an abuser. The victim's behavior is purposely altered to satisfy the abuser's desires while they live in a familial- or intimate-partner styled relationship.

The batterer manipulatively and deliberately uses psychological methods, physical violence, economic subordination, threats, isolation, and a variety of other behavioral and controlling tactics to ensure the victim does what the abuser wants.

Sociologist and researcher Michael P. Johnson, in his many papers concerning Conflict and Control, labels this behavior "intimate terrorism." In most relationships where battering occurs, only one partner is violent and controlling, and the other is violent only while resisting an assault in which they often fear for their life.

There are other couples where both partners exhibit "mutual violent control." Often this mutually violent behavior is fueled, not caused by, substance abuse.

It is important to understand that most victims do not rationally choose to stay in violent relationships. They often stay because they do not understand their problem is outside the mores and norms of society, or why the relationship has gone wrong.

Some victims remain because they were raised in a violent home or neighborhood. Thus, the violence they face is not viewed as aberrant or abnormal. Some do not realize or understand they can leave. Some lack the education or economic resources to survive on their own. Some have little to no community support. Some will be ridiculed by their own family for leaving.

Some believe that leaving will publicly document the shame they privately feel. Some mistakenly view the failure of the relationship as their failure. Some are concerned that the physical and emotional harm their children suffer may increase if they attempt to leave. And some, rightly so, fear greater physical abuse or death.

Unconditional love can keep some victims in relationships far too long. Some confuse sexual acts with acts of love and jealously and possessiveness with romantic behavior. Many who are used and abused believe that their abuser needs their help. Many learn that their abuser has been physically or sexually abused as a child and remain out of misplaced pity.

Other victims remember that their family was loving and caring and they believe they must make their chosen relationships succeed. Some victims believe that their abuser is the person suffering and their abuser wants to, can and will change. Many being abused believe that if they can demonstrate to their abuser what unconditional love is, their abuser will stop the abuse. Many victims believe that their abuser, given unconditional love, will return that love.

But most often the only real solution for a victim in a battering relationship is to leave and put as much distance between themselves and the batterer as possible. Erin Pizzey is justly famous for pioneering shelters for battered women to enable them to escape. However, even today almost no such resources for abused men exist.

Family conflict

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Numerous studies document there is another less distinctive, yet far more common form of family violence or conflict that occurs within families. It is a fact of life that the majority of people who are married or who live in a familial or intimate-partner styled relationship will occasionally struggle with individual or family problems about which they may profoundly and heatedly disagree. A lack of education and economic resources often creates or exacerbates this stress and conflict, particularly among young couples.

There are many types of psychological and physical tactics employed by family members or intimate partners, regardless of age or gender, who attempt to "get their way" in a specific or general disagreement. Nearly all individuals will attempt to direct others in directions they see as most favorable to their desires, wants, and needs. Within wide limits such behavior is normal. For example, a woman may cry to get what she wants or to control the outcome of an argument. A man may pound on the table, or storm out of the house in similar circumstances.

Family conflict rarely involves violent assaults. Nor is it the result of a specific, long term, carefully crafted, well thought out pattern of controlling behavior. Data documents many minor forms of family conflict can be, and often is, mutual behavior, regardless of age or gender as each partner strives to achieve their ends and goals. However, studies document that repeated, prolonged, psychologically-coercive behavior often precedes, and sometimes predicts the development of physical assaults.

Family conflict can evolve from, or be exacerbated by anger, anxiety, financial matters, illness, injuries, age, grief, abusive alcohol or drug use, stress, work issues, and mental disorders. The danger of family conflict escalating into domestic violence is greatly increased when one, or both of the partners are narcissistic or suffer from other personality disorders, are self-centered, lack self-control, and tend to seek self-gratification with little concern for the feelings of others.

Verbal abuse can hurt just as much as physical assault. Verbal abuse can escalate to physical assault in the form of pushing, shoving, or a slap. However, most family conflict is infrequent and does not specifically and constantly escalate to more serious and injurious physical assaults.

Family conflict very rarely matches the pattern of a battered woman and a male batterer. However, family conflict is the face of domestic violence most often presented to social service agencies, law enforcement officers, district attorneys, judges, and others in the criminal justice system.


 

Who still doesn't get it?

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Esta Soler is the founder and president of the Family Violence Prevention Fund (FVPF). The FVPF receives national recognition concerning domestic violence education, intervention and training. Soler acknowledges that the debate between Capaldi and Klein, "goes to the definition of domestic violence." And Soler is absolutely correct.

Soler asserts that, certainly, all violence is wrong regardless of who is the perpetrator. But domestic violence is not one person pushing another person one time because a couple have gotten into an argument. Soler claims that domestic violence occurs when there is an ongoing pattern of fear, intimidation and violent assault.

And it is here that Soler displays a lack of understanding of state and Federal domestic violence laws because it is here that she is absolutely wrong. It is both frustrating and painfully obvious to those familiar with the criminal justice system that Soler has little to no knowledge of the laws that defines domestic violence for the criminal justice system.

Soler may be well intentioned, however, she is just one of many domestic violence advocates who are unable or unwilling to understand criminal law or the criminal justice system. In the real world of law and the criminal justice system, domestic violence does not require an ongoing pattern of fear, intimidation and violent assault.

Domestic violence, by law in all fifty states can be one person pushing another person one time. What Soler is describing is "battering behavior" and not "domestic violence" as defined by the law in all fifty states.

There is not a single domestic violence law in this nation that matches Soler's definition of domestic violence. As bizarre as it seems, the truth is often stranger than fiction, it is organizations similar to FVPF that continue to claim they want to educate the criminal justice system and the general public concerning domestic violence.

And worse still, it is organizations like the Family Violence Prevention Fund and the National Conference of State Legislatures that sometimes train law enforcement and actually do provide information to legislators that drive many of our public policies concerning domestic violence.

The cause of the confusion between Capaldi, Kelin, Soler and many others

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The National Institute of Justice sponsored study, Controlling Violence Against Women, . documents that "The vast majority of law enforcement policies, procedures, statute law and mandatory and preferred arrest laws make no distinctions between 'family conflict' and 'battering behavior.'"

The criminal justice system now has in place in all fifty states mandatory or preferred arrest laws. The majority of domestic violence advocates who train law enforcement continue to insist law enforcement officers must arrest every time there is any probable cause that a domestic violence incident occurred. And, in fact, most states now have some mandatory arrest laws. However, at times and in far too many communities, mandatory arrest and no-drop prosecution can clog the judicial system with trivial cases. Or worse still, in some instances the innocent will be punished, and the guilty will not receive the sanctions and punishment they deserve.

This "one-label-fits-all" intervention process makes little sense. In many communities 20-30% of all "domestic violence" arrests are of female offenders. Domestic violence advocates see this as justice gone awry and often insist that law enforcement officers need more training so the officers will better understand just who the real "batterer" is. What these advocates do not understand is that there is often no "batterer" or "battered victim" in most of these incidents.

There is no question that the vast majority of domestic violence advocates believe that many of the women who are arrested are not "batterers" and should not be arrested. And they are right, most of these women are not involved in "battering behavior."

However they are involved in domestic violence as defined by statute law. It is stupefying that after all these years so many domestic violence advocates still do not understand domestic violence law is not about "battering behavior."

An ever increasing number of women are being arrested for domestic violence because, as all psychological and sociological studies document, women can be just as aggressive and assertive as men concerning "family conflict" incidents. It should come as no surprise to any reasonable and prudent person who has ever been involved in an intimate relationship that many women can be just as violent and jealous as some men concerning intimate relationships, and that substance abuse is indiscriminate with regard to sex.


 

Family conflict as seen by frontline officers

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What follows is an example of a "family conflict" incident of the type that law enforcement officers respond to:

A live in boyfriend stays out all night, spends his entire pay check, sleeps with his girlfriend's best friend. He comes home at 5:00 AM. His girlfriend, who told him they need the money for rent and food for the kids, finds out, gets mad and throws glasses and plates at him. A concerned neighbor, hearing all the noise, calls law enforcement. Officers arrive and, by statute law in the majority of our states, she is the one who is guilty of "domestic violence." In those states with mandatory arrest she must be arrested and in many other states she most likely will be.

Should the woman in the preceding scenario be considered a "batterer?" Few if any domestic violence advocates agree that this woman is a "batterer." However, she is an example of the type of domestic violence perpetrator, regardless of age or gender, that law enforcement often responds to.

What is truly sad is that contemporary domestic violence "one-label-fits-all" laws do not reflect the "battered" victims or perpetrators described by Soler or Klein. In many cases those arrested by law enforcement are reflections of "family conflict" found in the Capaldi study.

The vast majority of law enforcement officers understand that many of the domestic calls they respond to are the result of "family conflict" and not "battering behavior." However, mandatory arrest and no-drop prosecution laws makes no distinction despite the dramatic differences between the two dynamics and mandatory arrest laws give frontline officers no option but to make an arrest.

Most tragic of all is the fact that data from court systems across this nation document that the violent and chronic "batterer" offenders often receive the same sentence as minor "family conflict" first-time offenders. This may be directly attributed to the demand of a "one-label-fits-all" approach in reverse.


 

Egregious inactions

Buck Thurman case — Connecticut

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Do these draconian " one-size-fits-all" laws work?

In 1983 Charles "Buck" Thurman was sentenced to 20 years in prison after his brutal attack on his wife Tracey Thurman led to a $1.9 million suit against the Torrington, Connecticut police. In the Torrington case, Thurman was found guilty of stabbing his wife 13 times, stomping on her head, and partially paralyzing her for life.

Thurman was released from prison in 1991 after serving only nine years of the twenty year sentence. In 1999 a woman Thurman was living with in Northampton, Massachusetts, and mother of their child, fled the state accusing him of repeatedly choking and sexually assaulting her.

No criminal charges were filed as she only asked for a restraining order to keep him away from her. The order was issued, she returned to Massachusetts and Thurman, who has a long history of ignoring court orders, violated this latest order.

Thurman pled guilty only to violating a restraining order. A judge placed Thurman on probation for a year. Additionally, he ordered Thurman to participate in any counseling ordered by the probation department and ordered him to comply with the restraining order against him.

This was the only action taken by the judge despite the fact that Charles "Buck" Thurman is a chronic violent abuser who has a history of beating women and ignoring court orders. Buck Thurman had a restraining order against him and he was on probation when he beat and stabbed Tracey Thurman and traumatized her for life.

Luis Melo case — Massachusetts

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In 1996 in Bristol County, Massachusetts Debbie Melo asked for and received a restraining order against her husband Luis. In an affidavit before the court she wrote that Luis made threats to do bodily harm to himself, her or both. She was afraid of what he might do to her or their daughter.

In 2000 Luis Melo reported to the police that Debbie disappeared after they had a roadside argument. Debbie Melo has never been seen or heard from since. The last person to see her alive was Luis Melo. No report of using credit cards, no phone calls, and no attempts to reach either of her two children. Luis Melo, for good reason, should be more than a person of interest to the criminal justice system.

In 2004 the live-in girlfriend of Luis Melo appeared in a civil court to get a restraining order because she and her daughter were afraid of Luis Melo. She has good reason to be afraid because Melo had beaten her in the past. Court records document that Melo is a dangerous man who should be feared. Earlier, in a Bristol County court, Melo had pled guilty to assaulting his girlfriend.

For that previous assault Luis Melo received no jail time and was placed on probation. Luis Melo is a man that many believe may have murdered his wife. He is a man with a history of violent abusive behavior. And he is a man with no respect for the court system.

Apparently domestic violence awareness month must slip by, year after year, unnoticed by the Bristol County District Attorney and this judge. The Bristol County District Attorney and this particular judge are not alone in their ignorance. Restraining orders or orders of protection rain down on this nation like confetti at a parade.

Is there anyone other than the judge who really thinks a restraining order is going to protect this woman from Melo? Is this really the best that the District Attorney and the judge can do for this woman and her child? After decades of intervention is this as far as we have come?


 

One-label-fits-all

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What is truly sad is that these two cases are not aberrations. Such inactions as represented by these two unexceptional cases are directly attributable to overloading the justice system with cases demanded by gender-feminist driven mandatory arrest laws, no-drop policies, and "one-label-fits-all" ideology.

And just as tragic, first time offenders with minor violations are commonly treated the same as violent chronic batterers like Buck Thurman and Luis Melo. It is families with little education and less money, that are in need of resources, education and assistance who will receive false hopes and broken hearts from a system that puts it in writing that it "will protect them" when 911 is dialed. Instead, their marriages and children can be destroyed by draconian laws and their family dreams and finances shattered.

Contemporary "one-label-fits-all" domestic violence intervention treats all domestic violence incidents as if they are all "battering behavior." In the majority of states domestic violence incidents require "mandatory arrest," and "no drop prosecutions." The contemporary "one-label-fits-all" policies too often ignore the wishes of the families. This "one-size-fits-all" intervention process too often documents how a good idea has too often become a tragedy for many families (PDF).

There are an ever increasing number of studies that document how many of these poorly conceived "good ideas" can harm as many or more people than they help. One NCJ report 193235, Effects of No-Drop Prosecution of Domestic Violence Upon Conviction Rates notes that "Finally, we do not know whether no-drop prosecution of domestic violence cases increases victim safety or places the victims in greater jeopardy." Regardless, of 142 prosecutor's surveyed, 66% had adopted the no-drop policies.

There is an ever increasing number of scientific empirical data and NIJ studies that document some of these well intentioned "good ideas" are "bad ideas" for many families.

There is a long line of domestic violence advocates and public policy makers waiting in line to take credit and financial support for families they claim have been helped over the last couple of decades. There is no line for those willing to accept responsibility for the harm that has been done to many children, families, and marriages by this misquided ideological approach to a complex human problem.


 

It is time we question why?

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Time to question why there is no line of domestic violence advocates and public-policy makers willing to take the blame for those who have been harmed by their "one-label-fits-all" policies. It is time to weigh success against failure. It is time to consider the logic in proclaiming one victim is more important than the other. It is time to reevaluate the false hopes and broken promises of "We are the criminal justice system and we are here to help you."

Even more egregious is the fact that gender feminists are clearly engaged in pitting the suffering of one group against the suffering of another. This despicable practice is as old and as odious as injustice itself. Gender feminists now exhibit the very behavior they claim to abhor in men.

It is time that everyone who agrees with the original premise of the feminist movement, equal treatment for everyone regardless of gender, to stand up, to speak up, to demand for our daughters and our sons, equal and just treatment from our legislators and the criminal justice system concerning domestic violence programs and intervention.

If you do not speak up or stand up for your beliefs, you don't have any.

Richard L. Davis

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Richard L. Davis served in the United States Marine Corps from 1960 to 1964. He is a retired lieutenant from the Brockton, Massachusetts police department where he served for twenty-one years.

He has a graduate degree in criminal justice from Anna Maria College and another in liberal arts from Harvard University. His Bachelor of Arts degree is from Bridgewater State College in history with a minor in secondary education.

He is a member of the International Honor Society of Historians and an instructor of Criminology, Group Violence and Terrorism, Criminal Justice and Domestic Violence at Quincy College in Plymouth, Massachusetts.

He is a past president of the Community Center for Non-Violence in New Bedford, Massachusetts and the vice president for Family Nonviolence, Inc. in Fairhaven, Massachusetts.

Richard Davis is an independent consultant for criminal justice agencies concerning policies, procedures, and programs concerning domestic violence and is the author of Domestic Violence: Facts and Fallacies. He has written numerous articles for newspapers, journals, and magazines concerning the issue of domestic violence and has columns concerning domestic violence at Police and Law Enforcement, and NY Cop . Recent work includes an article that defines domestic violence in the multi-volume Encyclopedia of Psychology published by Oxford University Press and Yale University.

Davis and Kim Eyer have a collaborative domestic violence website The Cop and the Survivor . He experienced domestic violence professionally as a police officer and personally as a child and as an adult. In his retirement he continues to use his education, experience, and training to help the children, women, and men who have had to endure violence from those who profess to love them.

He presently lives in Plymouth, Massachusetts with his wife and the two youngest of five children. He may be reached at rldavis@post.harvard.edu.

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Last modified 3/26/14