The NY State Domestic Violence Survivors Justice Act
December 26, 2017 9:52 AM Subscribe
A proposed New York State law could offer justice to women who fight back against abusive partners. [TW: Descriptions of physical, verbal, and sexual violence.] In 1989, the National Coalition Against Domestic Violence found that the average prison sentence for men who kill their female partners was two to six years; the average for women was fifteen. The NYS Domestic Violence Justice Act would allow judges to sentence domestic violence survivors to fewer years behind bars or to alternative-to-incarceration programs. The legislation could also lessen the sentences of survivors who were forced into criminal activity by abusive partners. Kim Dadou, who served 17 years for killing her abusive partner, is working to help pass the bill. “I don’t get paid money to do this, but I want to prevent survivors from losing years of their life like I did,” she said.
So, seriously... who exactly does have the right to use lethal force in order to defend themselves against serious physical violence?
You know the answer to this. White men or people defending themselves against unarmed black children.
posted by jeather at 11:56 AM on December 26, 2017 [42 favorites]
You know the answer to this. White men or people defending themselves against unarmed black children.
posted by jeather at 11:56 AM on December 26, 2017 [42 favorites]
In 1989, the National Coalition Against Domestic Violence found that the average prison sentence for men who kill their female partners was two to six years; the average for women was fifteen
On mobile, so I don't know whether this google link to the 1995 PDF "Spouse Murder Defendants in Large Urban Counties" by the Dept. of Justice Statistics Bureau will work...
Anyway, the table on p. 1 states "In spouse murder cases, wife defendants were less likely to be convicted and to receive severe sentences than husband defendants."
There might be another source out there which is less than 20 years old, too. I just Googled for "Average sentence for men who killed their wives" and vice versa, and that was on the first page for one of those queries.
posted by Coventry at 12:00 PM on December 26, 2017 [1 favorite]
On mobile, so I don't know whether this google link to the 1995 PDF "Spouse Murder Defendants in Large Urban Counties" by the Dept. of Justice Statistics Bureau will work...
Anyway, the table on p. 1 states "In spouse murder cases, wife defendants were less likely to be convicted and to receive severe sentences than husband defendants."
There might be another source out there which is less than 20 years old, too. I just Googled for "Average sentence for men who killed their wives" and vice versa, and that was on the first page for one of those queries.
posted by Coventry at 12:00 PM on December 26, 2017 [1 favorite]
From this 2016 HuffPo article [TW: physical abuse descriptions], it sounds like the data isn't tracked very well:
It's impossible to know exactly how many domestic violence survivors are incarcerated for crimes directly related to their abuse, as no government agency gathers this data.
"I’ve been trying to track down these numbers for over 20 years," said Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. "It’s really hard to track this. Who gets to decide who is a victim of battering? Or if they were acting to defend themselves? That information is just not kept."
However, there is some state-level data. The New York State Department of Corrections and Community Supervision, for example, found that 67 percent of women sent to prison in 2005 for killing someone close to them were abused by that person.
Anecdotally, advocates say the problem is endemic across the country.
"If you talk to women in any prison, you will find a huge percentage of them are there for crimes related to their abuse," said Rene Renick, vice president of programs and emerging issues at National Network To End Domestic Violence. "Think about how different this would be if we spent the money to help these women escape abuse instead of locking them up."
posted by stillmoving at 12:46 PM on December 26, 2017 [5 favorites]
It's impossible to know exactly how many domestic violence survivors are incarcerated for crimes directly related to their abuse, as no government agency gathers this data.
"I’ve been trying to track down these numbers for over 20 years," said Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. "It’s really hard to track this. Who gets to decide who is a victim of battering? Or if they were acting to defend themselves? That information is just not kept."
However, there is some state-level data. The New York State Department of Corrections and Community Supervision, for example, found that 67 percent of women sent to prison in 2005 for killing someone close to them were abused by that person.
Anecdotally, advocates say the problem is endemic across the country.
"If you talk to women in any prison, you will find a huge percentage of them are there for crimes related to their abuse," said Rene Renick, vice president of programs and emerging issues at National Network To End Domestic Violence. "Think about how different this would be if we spent the money to help these women escape abuse instead of locking them up."
posted by stillmoving at 12:46 PM on December 26, 2017 [5 favorites]
This got me curious as to the NRA's stance on the issue. I found the following HuffPo article:
The NRA Wants To Solve Domestic Violence By Arming Victims. It Probably Won’t Work.
posted by enamon at 1:10 PM on December 26, 2017 [4 favorites]
The NRA Wants To Solve Domestic Violence By Arming Victims. It Probably Won’t Work.
posted by enamon at 1:10 PM on December 26, 2017 [4 favorites]
One of the perplexing things is that I understand is police can't be second-guessed when they say they were in fear for their life and safety and had to use lethal force to remove that perceived threat, yet that only works for them. Seems that "Equal Protection of the Law" means either everyone gets that protection, or no-one does.
posted by mikelieman at 1:18 PM on December 26, 2017 [10 favorites]
posted by mikelieman at 1:18 PM on December 26, 2017 [10 favorites]
Mod note: several comments deleted. Knoyers, "what if" kind of takes aren't helpful in this kind of thread - please skip this.
posted by LobsterMitten (staff) at 1:23 PM on December 26, 2017 [4 favorites]
posted by LobsterMitten (staff) at 1:23 PM on December 26, 2017 [4 favorites]
Gun control opponents have been using domestic violence and stalking to justify their position as long as I can remember. The gun industry also started advertising pistols to appeal to the female demographic once concealed carry swept across America. Their approach was/is laughably crude, such as adding pink grips to handguns. S&W sells a smaller sized semi automatic called the LadySmith, and some of the hottest selling handguns on the market are the so called pocket pistols, and their intended market is specifically women.
So, yes, not surprisingly, the gun industry uses domestic abuse for it's own agenda.
posted by Beholder at 1:44 PM on December 26, 2017 [3 favorites]
So, yes, not surprisingly, the gun industry uses domestic abuse for it's own agenda.
posted by Beholder at 1:44 PM on December 26, 2017 [3 favorites]
Gun control opponents have been using domestic violence and stalking to justify their position as long as I can remember. The gun industry also started advertising pistols to appeal to the female demographic once concealed carry swept across America
That's interesting. I'm aware that there is a lot of rhetoric that women should arm themselves for self-protection, but in my experience the imagined enemy is always a stranger--not a partner. For example, the sign I mentioned above creates a home invasion scenario: the "lady" is home alone and is "menaced" by "thugs".
Likewise, when concealed carry was a huge debate in my state, it was women walking alone who might be attacked by strangers. It was very much "protect white womanhood," just not so much protecting it against their husbands/boyfriends. Maybe it's inconvenient? You're far more likely to be attacked by an intimate partner than a complete stranger, but that gun you brought into your home is more likely to be used against you than protect you in that scenario. Then again they don't care that much about facts...
But, I'm not saying that the NRA is for imprisoning women who defend themselves using a gun. That would be blatantly hypocritical of them. What I think is striking is how little attention these cases get from the pro-gun, bluelivesmatter, stand your ground, castle doctrine side of the aisle.
I'm not from Indiana or Tennessee, so the NRA's work there came as news to me.
posted by Kutsuwamushi at 2:06 PM on December 26, 2017 [5 favorites]
That's interesting. I'm aware that there is a lot of rhetoric that women should arm themselves for self-protection, but in my experience the imagined enemy is always a stranger--not a partner. For example, the sign I mentioned above creates a home invasion scenario: the "lady" is home alone and is "menaced" by "thugs".
Likewise, when concealed carry was a huge debate in my state, it was women walking alone who might be attacked by strangers. It was very much "protect white womanhood," just not so much protecting it against their husbands/boyfriends. Maybe it's inconvenient? You're far more likely to be attacked by an intimate partner than a complete stranger, but that gun you brought into your home is more likely to be used against you than protect you in that scenario. Then again they don't care that much about facts...
But, I'm not saying that the NRA is for imprisoning women who defend themselves using a gun. That would be blatantly hypocritical of them. What I think is striking is how little attention these cases get from the pro-gun, bluelivesmatter, stand your ground, castle doctrine side of the aisle.
I'm not from Indiana or Tennessee, so the NRA's work there came as news to me.
posted by Kutsuwamushi at 2:06 PM on December 26, 2017 [5 favorites]
Wasn't this all resolved in the Burning Bed case??
posted by Melismata at 2:10 PM on December 26, 2017
posted by Melismata at 2:10 PM on December 26, 2017
I think the problem with the burning bed case was that it didn't really establish precedent. It was a case of jury nullification, where a woman was so abused, the cops had just been there and done nothing, she HAD tried to involve the law and the law failed her, she took great care to make sure her children were not harmed... Judge and jury were very sympathetic, she got off on not guilty by temp insanity. But afterwards a lot of jurisdictions preemptively nuked the battered woman defense as non-admissible. Also I feel like that woman suffered 13 years of abuse and because we live in a world that hates women, a lot of cases were tried as like, that woman suffered 13 years of abuse before she snapped, you suffered only 2 therefore you are a murderous harlot. We need laws on the books, and the sort of precedent where in these cases prosecutors decline to prosecute.
posted by Homo neanderthalensis at 2:35 PM on December 26, 2017 [8 favorites]
posted by Homo neanderthalensis at 2:35 PM on December 26, 2017 [8 favorites]
You know the answer to this. White men or people defending themselves against unarmed black children.
White police. Michael David Dunn at least rots in a prison cell.
posted by Talez at 2:48 PM on December 26, 2017
White police. Michael David Dunn at least rots in a prison cell.
posted by Talez at 2:48 PM on December 26, 2017
“common sense legislation which would address this situation has been stuck in committee and denied a vote by the Senate Republican Majority.”
For those of you who don't follow New York state legislative politics: the reason the Senate is currently controlled by Republicans is, basically, because of the Independent Democratic Conference: several Senators elected as Democrats who caucus with the Republicans. The IDC is holding back a bunch of progressive legislation, like the Reproductive Health Act and single-payer health care in the state.
Maybe this activism, and the wording of the bill, can help people pass this sort of bill in other US states, even if the IDC and the Republicans are slowing it down here.
posted by brainwane at 5:47 PM on December 26, 2017 [2 favorites]
For those of you who don't follow New York state legislative politics: the reason the Senate is currently controlled by Republicans is, basically, because of the Independent Democratic Conference: several Senators elected as Democrats who caucus with the Republicans. The IDC is holding back a bunch of progressive legislation, like the Reproductive Health Act and single-payer health care in the state.
Maybe this activism, and the wording of the bill, can help people pass this sort of bill in other US states, even if the IDC and the Republicans are slowing it down here.
posted by brainwane at 5:47 PM on December 26, 2017 [2 favorites]
A lot of the problem, on an intellectual axis at least, has to do with the "imminence" of the threat. That is--speaking generally of course, state laws do vary--you are usually entitled to defend yourself with lethal force against the imminent threat of lethal force. "Imminence" here does the work of ensuring that it was necessary for you to use lethal force instead of calling the police or retreating. So if the woman happens to kill her abuser in a moment when he's asleep, or even being threatening but not in a clearly lethal way, she usually doesn't qualify for a claim of self-defense. But, of course, this concept, while it may work for encounters between strangers or even casual encounters within a community, works very badly when it comes to domestic violence, when the threat of lethal force can be effectively non-stop even if the abuser is not at that moment approaching with a butcher knife, when calling the police can be of limited value, and when retreat may actually be more perilous than remaining.
On a more practical level, juries are way more inclined to give the benefit of the doubt to certain kinds of people than others. If you're, say, a black woman, a jury is more likely to see you as a liar and inherently violent. Hence the difficulty of persuading a jury that your story fits into the narrative of imminence, etc. even if the facts support you.
posted by praemunire at 6:02 PM on December 26, 2017 [12 favorites]
On a more practical level, juries are way more inclined to give the benefit of the doubt to certain kinds of people than others. If you're, say, a black woman, a jury is more likely to see you as a liar and inherently violent. Hence the difficulty of persuading a jury that your story fits into the narrative of imminence, etc. even if the facts support you.
posted by praemunire at 6:02 PM on December 26, 2017 [12 favorites]
"Imminence" here does the work of ensuring that it was necessary for you to use lethal force instead of calling the police or retreating.
Even if you call the 911, and they say the police are responding, the police don't have any actual duty to come to your aid.
GRIESHABER v. CITY OF ALBANY ( Warning: Will cause frustrated anger )
posted by mikelieman at 6:37 PM on December 26, 2017 [1 favorite]
Even if you call the 911, and they say the police are responding, the police don't have any actual duty to come to your aid.
GRIESHABER v. CITY OF ALBANY ( Warning: Will cause frustrated anger )
posted by mikelieman at 6:37 PM on December 26, 2017 [1 favorite]
[W]here is the NRA?Kim Dadou's shooting occurred in December 1991 in New York. At that time, in that place, the NRA had effectively zero influence. The early 1990s were a high point for anti-gun activity in the United States, and New York has always been anti-gun. Assuming that everything she says is true and the shoot went down exactly as she describes, a New York jury would have been unlikely to acquit a person (and indeed, did not) who used a gun in self defense without even trying to fire a warning shot, or shoot him in the leg, or something else first.
posted by Hatashran at 6:58 PM on December 26, 2017 [1 favorite]
unlikely to acquit a person (and indeed, did not) who used a gun in self defense without even trying to fire a warning shot, or shoot him in the leg, or something else first.
I could see that if there were any distance between them, but her accounts suggests that he was physically overpowering her and she was unable to breathe or see what was going on. A warning shot would have simply invited him to take the gun away.
posted by Coventry at 7:04 PM on December 26, 2017 [2 favorites]
I could see that if there were any distance between them, but her accounts suggests that he was physically overpowering her and she was unable to breathe or see what was going on. A warning shot would have simply invited him to take the gun away.
posted by Coventry at 7:04 PM on December 26, 2017 [2 favorites]
Agreed; It was a cynical joke about uninformed people (like say, 1990s New York juries) and the things they imagine.
posted by Hatashran at 7:55 PM on December 26, 2017 [1 favorite]
posted by Hatashran at 7:55 PM on December 26, 2017 [1 favorite]
who used a gun in self defense without even trying to fire a warning shot, or shoot him in the leg, or something else first.
If you look at the Marissa Alexander case, firing a warning shot at your abusive husband is what will get you 20 years.
posted by AlSweigart at 9:30 PM on December 26, 2017 [3 favorites]
If you look at the Marissa Alexander case, firing a warning shot at your abusive husband is what will get you 20 years.
posted by AlSweigart at 9:30 PM on December 26, 2017 [3 favorites]
Coincidentally I was reading this just before I came across this thread:
Petty treason or petit treason was an offence under the common law of England which involved the betrayal (including murder) of a superior by a subordinate. It differed from the better-known high treason in that high treason can only be committed against the Sovereign. In England and Wales, petty treason ceased to be a distinct offence from murder by virtue of the Offences against the Person Act 1828...posted by XMLicious at 6:01 AM on December 27, 2017 [2 favorites]
The element of betrayal is the reason why this crime was considered worse than an ordinary murder; medieval and post-medieval society rested on a framework in which each person had his or her appointed place and such murders were seen as threatening this framework. Many people had somebody subordinate to them and feared the consequences if the murder of superiors was not punished harshly.
The common law offence was codified in the Treason Act 1351. Under that Act, petty treason was an aggravated form of murder. It consisted of:
- a wife killing her husband,
Even if you call the 911, and they say the police are responding, the police don't have any actual duty to come to your aid.Rulings over the public duty doctrine and similar cases is what has made me a reluctant 2A supporter despite my very lefty leanings and a general abhorrence for violence. In a society where SCOTUS has ruled that the police have no duty to protect you even if you a: have a restraining order and b: live in a state that enforces mandatory arrest over RO violations, I am left to conclude that guns are the only option available to victims of stalking and domestic violence. Of course, upon purchasing your gun to protect yourself from violent partners, you must also accept that it is more likely that you will be thrown in jail if you kill your husband, ex-husband, or domestic partner in self-defense than if you're a rando racist vigilante cruising the streets of FL looking for PoC to murder.
(My mind was utterly changed about the 2A due to the case of a woman who frantically called the police after her ex-husband absconded with their 3 children despite a permanent restraining order. CW: Child murder and a bullshit SCOTUS ruling.)
posted by xyzzy at 8:32 AM on December 27, 2017 [1 favorite]
who exactly does have the right to use lethal force in order to defend themselves against serious physical violence?
One of the problems that I experienced, as someone whose domestic abuser used a gun against me, as someone who was raped by my abuser, is that the police force seems to believe that if the ultimate goal of the attacker is rape or control, rather than violence – for example, if the violence is not the desired ultimate end, but rather a means to an end, you were not believed to have the right to defend yourself And it is not believed to be a life or death situation, because you “always have the option of submitting.”
I think this belief is at the bottom of a lot of the unjust sentencing laws here - The men who make up juries and the men who make our laws fundamentally do not believe that rape, control, or intimidation is “really that bad.” As a consequence, they do not understand why someone would not submit to it – or specifically, why a woman would not submit to it – in order to avoid violence. And because they see submission as a nonviolent way to avoid violence, they refuse to accept a violent way a woman might choose to avoid that violence.
posted by corb at 9:32 AM on December 27, 2017 [12 favorites]
One of the problems that I experienced, as someone whose domestic abuser used a gun against me, as someone who was raped by my abuser, is that the police force seems to believe that if the ultimate goal of the attacker is rape or control, rather than violence – for example, if the violence is not the desired ultimate end, but rather a means to an end, you were not believed to have the right to defend yourself And it is not believed to be a life or death situation, because you “always have the option of submitting.”
I think this belief is at the bottom of a lot of the unjust sentencing laws here - The men who make up juries and the men who make our laws fundamentally do not believe that rape, control, or intimidation is “really that bad.” As a consequence, they do not understand why someone would not submit to it – or specifically, why a woman would not submit to it – in order to avoid violence. And because they see submission as a nonviolent way to avoid violence, they refuse to accept a violent way a woman might choose to avoid that violence.
posted by corb at 9:32 AM on December 27, 2017 [12 favorites]
"is that the police force seems to believe that if the ultimate goal of the attacker is rape or control, rather than violence – for example, if the violence is not the desired ultimate end, but rather a means to an end, you were not believed to have the right to defend yourself "
This occurs on a smaller scale than shooting/murder cases as well - if you physically fight your abuser, the police (and judges and juries) will refuse to believe you had any right to do so if your abuser states their ultimate goal was control/rape/literally anything other than "I wanted to hurt her"
posted by FritoKAL at 10:58 AM on December 27, 2017 [1 favorite]
This occurs on a smaller scale than shooting/murder cases as well - if you physically fight your abuser, the police (and judges and juries) will refuse to believe you had any right to do so if your abuser states their ultimate goal was control/rape/literally anything other than "I wanted to hurt her"
posted by FritoKAL at 10:58 AM on December 27, 2017 [1 favorite]
what are restraining orders good for if they're not enforceable?A cynic would say they're good for giving the appearance that the system is addressing the problem.
posted by Nerd of the North at 1:35 PM on December 28, 2017 [2 favorites]
what are restraining orders good for if they're not enforceable?
I was talking about this a little on another thread, but essentially: the Supreme Court has ruled that police have no duty to enforce any given law. They have the ability to pick and choose. And they tend to not pick enforcing domestic violence cases.
If I were a betting woman, I'd guess:
1) Some of it is because they have internalized sexism and misogyny, and don't really think that what these men are doing is wrong, or they sympathize with them, or they think it's unreasonable that a man should actually have to stay fifty whole feet away from a woman he once legally owned.
2) It is hard to process these crimes if the DA doesn't feel like doing so. It should not, in theory, be hard to do so - these are not crimes where intent matters. If someone is twenty feet away when they should be fifty, it is a clear violation of the order. If someone has texted when they should not, it is a clear violation of the order. But #1 applies to the DA as well, and often they just don't think these crimes are "important", despite the fact that when a woman is found murdered by her ex partner she is usually found with a sheaf of unanswered restraining order violations in her file.
3) The men who do the arresting and charging and judging do not feel it is worth "ruining a man's life" because he is incapable of keeping himself from violating the law around a woman who he felt he once possessed. They do not want to send a man to jail because he is incapable of following that law, even though they will cheerfully send the same man to jail if he is not capable of, say, not trespassing on the property of someone he has not had sex with.
posted by corb at 5:24 PM on December 28, 2017
I was talking about this a little on another thread, but essentially: the Supreme Court has ruled that police have no duty to enforce any given law. They have the ability to pick and choose. And they tend to not pick enforcing domestic violence cases.
If I were a betting woman, I'd guess:
1) Some of it is because they have internalized sexism and misogyny, and don't really think that what these men are doing is wrong, or they sympathize with them, or they think it's unreasonable that a man should actually have to stay fifty whole feet away from a woman he once legally owned.
2) It is hard to process these crimes if the DA doesn't feel like doing so. It should not, in theory, be hard to do so - these are not crimes where intent matters. If someone is twenty feet away when they should be fifty, it is a clear violation of the order. If someone has texted when they should not, it is a clear violation of the order. But #1 applies to the DA as well, and often they just don't think these crimes are "important", despite the fact that when a woman is found murdered by her ex partner she is usually found with a sheaf of unanswered restraining order violations in her file.
3) The men who do the arresting and charging and judging do not feel it is worth "ruining a man's life" because he is incapable of keeping himself from violating the law around a woman who he felt he once possessed. They do not want to send a man to jail because he is incapable of following that law, even though they will cheerfully send the same man to jail if he is not capable of, say, not trespassing on the property of someone he has not had sex with.
posted by corb at 5:24 PM on December 28, 2017
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I'm not asking this to start a debate about gun control, but because it seems like there is a huge, unremarked-upon double standard here. At first I thought that maybe this was just for cases where the woman was convicted because people didn't believe it was a life-and-death situation. But then I got to this paragraph: So, seriously... who exactly does have the right to use lethal force in order to defend themselves against serious physical violence? Where is the NRA? I know that states have different laws (e.g. castle doctrine and stand your ground), but you know, on my drive home to visit my family I pass some soy fields where the landowner has put up signs about how women need guns to protect them from "thugs"... the NRA is a national organization.
Dadou's own story contains some amazing bullshit on the part of the prosecutor: ... and according to Dadou's attorney, Reyes used the threat of slut-shaming Dadou to keep her off the stand, and because Dadou didn't take the stand the judge didn't let through most of the evidence of Sanders' abuse. Which baffles me as a decision--what is the legal reasoning for that? Whatever it is, it resulted in an extremely stupid and unjust outcome here.
(Okay, "slut-shaming" is my own wording, but that seems transparently to be what it is.)
So I'm not sure if this law would have even helped Dadou, who seems to have been convicted because the prosecutor decided Dadou sleeping with another man and was somehow evidence that Dadou was lying about being abused, despite numerous police and medical reports. Unless the judge would have been allowed to adjust the sentence based on information that wasn't given to the jury, and would have done so?
The only significant opposition to the legislation has come from the District Attorneys Association of the State of New York who in 2012 wrote that the bill “denies jurisdiction to prosecutors who are otherwise empowered to bring cases that impact their counties; it disrupts well-established criminal procedures; and it fails to achieve its purported goal of providing cost savings.”
I'd have more respect for this statement if I believed, for one second, that they would be for a code of conduct that would prevent prosecutors from slut-shaming female defendants and ignoring vital evidence that they were in legitimate danger.
posted by Kutsuwamushi at 11:35 AM on December 26, 2017 [19 favorites]