December 28, 2000
By Ed Lederman
Years ago I was doing the dishes. My wife and I had had an argument; or I should say were having one since it apparently was not resolved quite to my wife’s satisfaction. Don’t ask either one of us what it was about. My wife, in a mood, closely observed the job I was doing and proceeded to comment on what a very shoddy job it was. This, mind you, was not the trunk of our argument, rather a branch, a minor offshoot of the main dispute. I was also in a mood. So, by the third comment involving a dinner plate in my hand I turned and flipped it to an unoccupied corner of the kitchen where it shattered in a most satisfying way. “There,” I said, “that one’s done well enough I think.” She glared at me for a few seconds, then stalked out of the kitchen leaving me to finish the dishes and clean up the breakage in peace.
Under today’s domestic violence laws I could be charged as, and labeled, a violent criminal, needful of the therapeutic ministrations of the state. If we lived in an apartment and a neighbor heard the crash of the dish it would not even be necessary for my wife to dial 911. It would be enough for the neighbor to call; and for either my wife or I to truthfully advise the arriving officers that, yes, I had hurled the dish.
Now, as a technical matter, it is not a crime to destroy your own property. And, theoretically, there can be no “domestic violence” without an underlying crime. But the fine points of the law, along with common sense, tend to get steam rolled in an era of mandatory arrest and assembly line plea bargains.
There is an absolute need for laws addressing crimes committed within the home. The label “domestic violence” is necessary because of the substantial differences in dealing with, say an assault committed against an unrelated person and one committed against a lover or spouse. However the sheer volume of domestic violence business now occupying our courts and law enforcement begs the question of costs and benefits. What do we get with the system now in place? And what do we pay?
In May of this year newspapers across the country heralded a decline in domestic murders over the last two decades. Almost all of the stories attributed the decline to the laws, enforcement and therapeutic interventions of the domestic violence system now in place. Unfortunately the banner headlines were at odds with the facts.
For whites, and most minorities, there has been no decline in domestic murders. For blacks there has been a substantial decline. But criminologists attribute it to the fact that, as quoted in the May 18, 2000 New York Times “black men have been disproportionately jailed and imprisoned, taking them out of their homes, therefore making it less likely that they will either kill their partners or be killed in domestic quarrels.”
Of course the current domestic violence system may have benefits other than the hoped for decline in homicide rates. Maybe there is a less violent climate within homes because of policies now in place. Certainly there are innumerable studies that say as much. But they are done by the very industry that benefits from the massive coerced customer base our courts now provide.
Then there are the costs. Is law enforcement actually less effective at dealing with truly violent abusers because it casts such a broad, interventionist net? Does the aggressive police presence in marginal domestic disputes hasten the disintegration of some marriages? Is the atmosphere of cynicism heightened when the title of “victim” is often awarded not to the true victim in a domestic dispute, but to the one who calls the police first? And finally, does it wedge too much of the state into the workings of the family?
Some tweaking is necessary. For starters , as has been recommended by the Governor’s Task Force on Violent Crime, police officers should be given the discretion to arrest or decline to arrest in domestic disputes where no one has suffered physical harm. Domestic violence is a serious issue. Too serious to distort the benefits of the system now in place while ignoring its costs.
Ed Lederman is a Denver lawyer and a Senior Fellow with the Independence Institute, a government reform think tank in Golden, https://i2i.org.
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