|
The OJ Simpson 1994-1995 double murder trial and
the recent controversy over Simpson’s book mean different things to different people. For some, they
are a symbol of America’s racial divide. For others, they reflect the problems
in our judicial system. Yet the most important and enduring aspect of the
Simpson case is one which is rarely discussed—its dramatic effect on domestic
violence policies, particularly in California.
In 1995 and 1996,
California passed nearly two dozen domestic violence-related bills and doubled
its funding for domestic violence programs. Some of these new laws and
initiatives improved the domestic violence system, some were questionable, and
some have been very harmful.
SB 591 mandated that all law
enforcement agencies implement mandatory/presumptory arrest policies which
virtually require officers to make arrests when responding to domestic violence
calls. SB 1944 introduced the “dominant aggressor” doctrine as a way of
encouraging officers to arrest men, not women. Many California District
Attorneys adopted “no drop” prosecution policies.
These three were a direct and
understandable outcome of the Simpson case. In the late '80s, police had come
to Simpson's home on 911 calls for eight separate incidents before finally
arresting him. Simpson received little punishment, and many later concluded that
if the system had been tougher on him, perhaps the killings could have been
prevented.
These policies have led to large
numbers of arrests and prosecutions in cases where it is questionable whether
the men actually committed any abuse. In a report in the California legal
publication Daily Journal detailing attorneys’ frustration with these
policies, Pacifica criminal defense attorney Dave McDonald explains that now
"[Domestic violence] is a political hot potato…The Legislature is saying,
'Prosecute, prosecute, prosecute’…They prosecute everything.” John Digiacinto,
head of the San Mateo County Bar Association’s Private Defender Program,
asserts, "There are cases of pushing and shoving that are treated like the
crimes of the century.”
Reflecting the questionable
nature of many of these arrests and prosecutions, the Daily Journal
report explains that many “victims” do not want their husbands or boyfriends
prosecuted. Digiacinto criticizes the system’s “craziness [with] spouses calling
in complaining because [the defense lawyer] can't get the case dismissed."
Certainly there are instances
where the defendant really did batter his wife and she later recants her
previous allegations. However, many prosecutors refuse to acknowledge that
sometimes women want the charges dropped because the “violence” never happened,
was marginal, was mutual, or was actually perpetrated by the woman. The report
notes:
“Domestic violence units have
adopted aggressive policies, refusing to drop the cases even when the victim
refuses to cooperate.”
Another outgrowth of the Simpson
case has been an explosion in domestic violence restraining orders, as new laws
and services have made the orders easier to obtain. According to Attorney
General Bill Lockyer, there are a quarter million domestic
violence-related restraining orders currently active in California--one for
every 50 adult males in the state.
Restraining orders can be a useful
tool to help protect battered women. However, a recent article in the Family
Law News, the official publication of the State Bar of California Family Law
Section, explains:
"Protective orders are
increasingly being used in family law cases to help one side jockey for an
advantage in child custody…[the orders are] almost routinely issued by the court
in family law proceedings even when there is relatively meager evidence and
usually without notice to the restrained person.”
These orders often do not even
involve an allegation of violence--according to the Judicial Council of
California, the "abuse" needed to get a restraining order can be "spoken" or
"written." Yet in the wake of the Simpson case it became politically difficult
for judges to deny them.
When a restraining order is issued, the man is booted out of his own home and
can be jailed if he tries to contact his own children, even though he has
never been afforded the opportunity to defend himself. The subsequent hearings
to determine whether the orders will be made permanent are often conducted in an
assembly line fashion with little due process. Under California’s AB 840, also
passed in the wake of the Simpson case, these orders can be considered findings
of abuse, making the restrained person ineligible for joint custody of his
children after divorce.
The Simpson case pushed the
domestic violence system way out of balance, stacking it unfairly against men.
Now that the case is being revisited, it's time to rethink the laws and policies
it helped create.
This column first appeared in the Riverside
Press-Enterprise (12/5/06).
Jeffery
M. Leving is one of America's most prominent family law attorneys. He is the
author of the new HarperCollins book
Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top
Maneuvers When Divorce Gets Ugly. His website is
www.dadsrights.com.
Glenn
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
www.GlennSacks.com or
via email at Glenn@GlennSacks.com.
|
