VAWA: Violence Against Centuries of Jurisprudence

By Charlotte Allen

April 25, 2012

As the Senate considers reauthorization of the Violence Against Women Act (VAWA), I don’t even know where to start with the legal, constitutional, and social problems posed by the proposed  bill—a federal law that was completely unnecessary when it was passed in the first place in 1994, since every state in the union already had laws criminalizing domestic violence.

Nonetheless, I’ll start with one very large problem that neatly combines the legal, the constitutional, and the social: VAWA destroys marriages and families. Here’s how: Every year the Office on Violence against Women (OVW), a unit of the federal Justice Department set up under VAWA, awards $26 million in grants to states and localities to fund “no-drop” prosecution policies, now the rule in about 60 percent of prosecutors’ offices.

No-drop means that when a woman calls the police to report a claim of domestic abuse, she can’t withdraw the charges for any reason. She can’t even prevent her husband’s mandatory arrest under such policies. She might have second thoughts within minutes and realize that her claims weren’t so serious after all, or her husband might agree to attend counseling–or she might simply decide that bad as he is, it would be better for him, her, and their children if he didn’t have an arrest and conviction record that could permanently jeopardize his employment prospects.

The VAWA response to that is: Tough. OVW uses federal funding to encourage what are called “evidence-based” prosecution policies in abuse cases. That means that even if the allegedly battered wife refuses to cooperate with police, or refuses to show up in court to testify despite a subpoena ordering her to do so, the husband can be convicted of assault and battery based on whatever other evidence is available: photographs of bruises or other injuries, or—and this is what is shocking—hearsay evidence in which the defendant-husband never gets a chance to confront or cross-examine his accuser-wife or any other hearsay declarants.

Most state evidence codes ban the use of hearsay declarations, but there is an exception called “excited utterance,” which can include that call to the police. The legal problems are obvious—what if the wife lied in that phone call?—and so are the constitutional problems. The Sixth Amendment guarantees criminal defendants the right to confront their accusers, and the Fourth Amendment requires that arrests be based on “probable cause.”

No-drop policies have certainly increased conviction rates—a 2004 study showed that before OVW stepped in, 79 percent of domestic-violence cases in Everett, Washington, were dismissed because the complaining spouse refused to co-operate, compared with only 26 percent after Everett instituted no-drop with OVW help. Another VAWA-funded city, Klamath Falls, Oregon, saw convictions for domestic abuse rise from 47 percent to 86 percent once no-drop was instituted. But the study also found that no-drop is not only expensive (it takes time and specialized expertise to make a case when the main witness declines to make herself available) but requires “the energy to persuade judges to accept forms of evidence that have been historically regarded as controversial,” the study stated. That means evidence that not only violates centuries of Anglo-American jurisprudential norms but probably the Constitution as well.

Meanwhile, the no-contact conditions that many judges impose after domestic-abuse convictions guarantee that the marriage or other relationship will not survive. They guarantee that fathers will lose contact with the children who desperately need their financial and emotional support. Most cases of domestic abuse spring from domestic arguments gone seriously wrong: over money, infidelity, even trivial matters. They are often exacerbated by drinking, drugs, and habits of poor impulse control.

When police and prosecutors insist (with the help of VAWA funds) on wresting control of these intimate matters from those involved, they typically shatter hopes of mending those already fragile relationships. State laws against assault and battery—the subject of domestic-abuse cases—have rightly been on the books for centuries. We don’t need a federal law that insists on criminalizing marital matters that both parties agree ought to be kept out of the criminal-justice system.

Source: WAVE