Domestic Violence, Child Abuse and Related Issues

Copyright 2000, Karl Denninger. All rights reserved. Reproduction of this article, in whole or part, requires written permission of the author.

I have been witness to a number of recent debates on the Internet and elsewhere related to domestic violence and child abuse, along with the related custody and other issues that inevitably arise. These debates and discussions, which inevitably come back to the same "talking points", lead me to believe that I need to put forth a "guidebook" if you will of my position on these matters so that there is no misunderstanding - or misconceptions - of where I stand when it comes to domestic violence and child abuse.

Let me start by stating what should be obvious, but which sometimes isn't and which needs to be said right up front:

Absolutely no form of domestic violence, child abuse, or child neglect is acceptable. Such acts are, and should be, criminal events and should be, in each and every case, punished to the fullest extent of the law.

When a child witnesses a domestic assault, an act of abuse has been committed against them, as they are inextricably "linked" to their parents as a dependant. As such, when one of their parents is attacked, so is the child who is dependant upon those parents.

(The extreme case, in which a parent is killed, is obvious; such an event renders the child unable to survive without outside, extra-family assistance. It should be obvious to thinking individuals that a lesser - but not zero - degree of harm occurs when a parent is assaulted or battered)

Before we begin, I want to define domestic violence so there are no misunderstandings and the "expansive" definitions I've heard some people use are tossed on their ear.

Domestic Violence is one or more acts of physical aggression between two adults living in the same household, where the underlying acts would be considered by the criminal code to be a battery were they to be performed between ordinary, unrelated people. For the purposes of this discussion, such acts are only under consideration if at least one of the adults is a parent of a child living in or visiting that same household. (That is, if you're having a back-yard BBQ, and two of your guests get into a fistfight, that is not an act of domestic violence.) Examples of domestic violence include pushing, striking with a fist, a slap with an open palm intended to do harm (a "pat on the butt" as an act of affection doesn't qualify), use of a knife, pot of water or other implement as a weapon, etc. Threats of a battery ("If you do that I'll stab you with this knife"), if they are reasonably believeable, are also included. Specifically excluded are acts of actual self-defense (if you're being assaulted, you are not committing domestic violence if you use a reasonable amount of force to end the assault in defense, including but not limited to lethal force if state law permits under the circumstances.)

Now, let's deal with some facts.

1. Both women and men are equally violent in domestic relationships. A compendium of over 200 studies has conclusively documented this fact. It can no longer be claimed, with a straight face, that women are overrepresented in any material fashion when it comes to domestic violence. In fact, the ugly truth is that women are more likely to commit serious assaults (defined as the use of a weapon of some kind) than men in a domestic relations squabble.
2. There are very, very few incidents in which a person is physically prevented from leaving a violent partnership. In fact, on those rare occasions where this does occur, we don't charge the perpetrator with domestic violence, we charge them (quite properly) with kidnapping!

Why is this important? There are several very fundamental truths that come out of the two facts above, and it is critically important for the safety of our children that we understand both the underlying facts - and the truths they represent - as a society.

Further, for judges and others who often face these issues, it is critical that they understand these facts and subsequent inescapable conclusions, lest we place children in even more harm's way then they already are when these situations develop!

Fundamental truths about domestic violence include:

1. The very first time you are hit, pushed, shoved, threatened, or have a weapon pulled or used upon your person you are a victim of a domestic assault. You have had a criminal offense committed against you, and with the exception of the smallest of these offenses (e.g. being pushed but not struck) the offense is a felony. If a weapon was used the felony is very serious indeed and typically carries a sentence of several years in prison, along with a permanent record as a violent individual. It also counts as one of your "three strikes" in many jurisdictions.
2. From that point onward, if you do not leave, you are no longer a victim. You are a willing co-conspirator and participant in a battle which you have willfully joined, and as a competent adult you are RESPONSIBLE (but not to blame) for its continuation. This is extremely important. Since absent physical restraint you are able to leave, if you choose not to it is only reasonable to assume that you have weighed the risks and rewards of remaining and departing and have decided to remain. The criteria upon which you made this decision, while perhaps severely flawed, is immaterial to your free-will decision. For instance, while we know for a fact that your risk of dying increases if you smoke tobacco, and therefore it is manifestly silly to do so, you still have, as an adult, the right (at least for today) to light that cigarette. Likewise, a person who knowingly enters a boxing ring is well aware that they may be injured or even killed in the contest, yet they have decided to take part in that contest irrespective of its risks.

There is a very, very important difference between being responsible for something and being to blame for that same thing.

If you leave a loaded firearm around your home, and someone else picks it up and shoots a third party, you are not to blame for the fact that a murder was committed. You did not pull the trigger. However, under the law you are responsible since your acts were negligent in leaving that loaded firearm where someone could easily obtain it.

The same principle must be applied here.

The bottom line in these situations therefore, logically, must be that:

1. A person who is a victim of domestic violence (that is, the very first instance of violence occurs between them and their partner) is required under the law to report that violence and press charges if there are children in the home. They are required to do so in order to protect their children, as the child who witnessed or was aware of that act was assaulted as well and cannot give legal consent to that or any subsequent assault, nor can they legally "forgive" the act, as they are not legally competent to do so.
2. A person who does not report that violent act immediately and who does not extricate themselves as soon as it is possible from that relationship has consented to all future acts of combat, because they know full well that the person they are with is capable of, and in fact has done, this to them! While that person may withdraw their consent at any future time (and press charges for the future assault) their children cannot consent!
3. A person accused of said violence has the absolute right to all the protections of the US Constitution that accord to any criminal defendant, including the presumption of innocense, right to counsel, right to a speedy and public trial, etc. Should they be acquitted then the matter is extinguished. If not, they are punished as defined by the law.
4. A parent who is assaulted by a partner and does not press charges and exit the relationship immediately is at that instant in time legally negligent in the care of their child or children. If a second act of violence then occurs, they are equally responsible for the child abuse perpetrated by that act, and must be prosecuted exactly as must the person who threw the punch or pot of boiling water. A parent who permits a convicted domestic assailant to knowingly reside in the same household is likewise negligent. (Yes, this means that if your wife comes at you with a knife, and is convicted, you can't live with her when she gets out of jail or you might lose your kids. Gee, since she might stab your kids next time that's probably a good thing, right?)
5. Finally, a person who is legally negligent is presumptively unfit to have custody of that child.

Now there will be people who will scream that this kind of a change in the law will cause women and children to be put at risk.

To that I say "hogwash."

If anything, having the law this way will drastically reduce the risk our children are put under. Here's why:

1. No child will be witness to more than one domestic violence incident between any two partners and remain in the custody of either of the parents. This is very important, because both abusers and those who they pair with have a tendency to "pick" the same kind of people over and over again. In fact, it is a known fact that domestic violence victims often are serially abused in relationships; they exit one, and the next person they get involved with is also abusive. The reasons are complex and usually rooted in psychological issues, but the point remains that children with those individuals are at high risk of multiple exposures to a violent home life, and studies show that children exposed to domestic violence on a repeated basis tend to be abusive themselves. We must stop this to break the cycle of domestic violence.
2. A parent who is abused will now have a greater incentive to both report the FIRST incident immediately and leave, because failing to do so may mean loss of custody of their children. This effect will reduce the number of children who are abused by exposure to such events.
3. A parent (or paramour of a parent) who is thinking of committing abuse will know, up front, that their spouse or partner is legally obligated to call the police and that their children are on the line if they do not. This may serve as a powerful deterrent; every sociological study of crime and punishment has documented that it is not the severity of punishment that deters the offense, but the certainty. Anything that we do to increase the certainty - and this would do a lot without violating anyone's Constitutional Rights - would go a long way towards reducing domestic violence in its entirety.

Its a good idea. Let's pass it into law. The changes are relatively minor, constituting only a legal duty to report domestic assaults and an imputed negligence finding with regards to your children if you fail to do so.