Domestic violations - Cover Story

Reason, Feb, 1998 by Cathy Young

To punish spouse abuse, the law runs roughshod over common sense and the rights of both women and men.

In the fall of 1996, Susan Finkelstein's live-in boyfriend was arrested and charged with abusing her. Today, Susan, a 31-year-old free-lance editor in a small Midwestern town, feels that she was abused by the justice system. "I felt so helpless," she says. "I had no rights. Nobody listened to me, nobody wanted to hear my story."

The tale sounds familiar enough - except that what angers Susan is not that her boyfriend was treated too leniently but that he was prosecuted at all.

It all started when Susan and her boyfriend, a 44-year-old college administrator whom I'll call Jim, were having a heated argument on the way home from a party. Both of them, Susan explains, were under a great deal of stress. The quarrel escalated, and Jim decided it would be best to pull over. He wanted to get out of the car and walk, and Susan tried to stop him. "I lost my temper, he lost his temper, and we got into a mutual scuffle," she says. "I may have scratched him, he may have pushed me. It got physical, but there certainly wasn't any beating."

Finally, they cooled down and got back on the road - only to be stopped by a police car. Susan remembers thinking that Jim might have been driving erratically during the fight and might have looked like a drunk driver. But it was something very different. A passing motorist had seen their altercation, written down their license plate number, and called the police.

Despite Susan's assurances that Jim hadn't hurt her and she wasn't afraid of him, he was handcuffed and taken away. Under department policy, an officer told her, they had to make an arrest in a domestic dispute. Says Susan, "I was very upset that they wouldn't listen when I said that I was fine. They said, 'Well, we know that women who are abused often lie out of fear.'"

After spending the night in jail, Jim was arraigned on a misdemeanor charge of domestic violence and prohibited from having any contact with Susan, who had to stay with a friend. Her efforts to convince the judge and the prosecutor that nothing had happened were fruitless.

On a lawyer's advice, Jim pleaded no contest. He had to write a letter of apology to Susan (which he wrote in her presence and mailed to the district attorney's office, which forwarded it to her) and attend 10 weekly counseling sessions for batterers, a three-hour drive away, at a cost of $400. He is acutely aware that his record puts him at risk: "If Susan and I have a loud argument and a neighbor calls the police, I'll be arrested immediately," he says.

What happened to Jim and Susan - who are still together as a couple - is not an aberration. It's just another story from the trenches of what might be called the War on Domestic Violence. Born partly in response to an earlier tendency to treat wife-beating as nothing more than a marital sport, this campaign treats all relationship conflict as a crime. The zero-tolerance mentality of current domestic violence policy means that no offense is too trivial, not only for arrest but for prosecution. Consider these recent examples:

In 1996, Seattle City Councilman John Manning, who came home one day and was shocked to find his wife loading her things into a truck, was charged with assault for grabbing her shoulders and sitting her down on the tailgate (causing no injuries). He pleaded guilty to misdemeanor domestic violence, received a deferred prison sentence, and agreed to complete a treatment program for batterers. (The Seattle Times editorialized that the case gave "a public face" to the tragedy of domestic violence.)

The same year, Michigan Judge Joel Gehrke made headlines when he gave convicted spouse abuser Stewart Marshall a literal slap on the wrist, citing the wife's adultery with her husband's brother as a mitigating factor. This episode, which provoked cries about judges who go easy on wife beaters, should have raised questions instead about frivolous prosecutions. Aside from the fact that many of the jurors believed Chris Marshall had set up the incident as a leverage-gaining divorce tactic, Stewart's assault consisted of grabbing her by the sweatshirt and pushing her; she did not suffer a single scrape. A woman juror who backed Judge Gehrke's decision explained that the jury "had to say guilty" because "if you touch, it's battery."

In those cases, at least, the alleged victims wanted a prosecution. But increasingly, women who don't - like Susan Finkelstein - find their wishes ignored. This issue was brought into the spotlight by the 1996 Texas trial of football star Warren Moon, whose wife Felicia was forced to take the stand against him. In a less famous case in St. Paul, Minnesota, two years earlier, Jeanne Chacon, an attorney, tried not only to drop battery charges against her fiance, Peter Erlinder, but to serve as his lawyer. Though Chacon herself had called the police and accused Erlinder of"slamming" her to the ground, she quickly changed her story: Abused as a child, she explained that she was prone to violent outbursts, and that Erlinder had merely restrained her with a "basket-hold" technique recommended by her own therapists. Her therapists corroborated her story, and Chacon had several violent episodes while the case was pending. Still, prosecutors insisted on going to trial - which, like the Moon case, ended in acquittal.