Here's a summary of Linda Mills' Harvard Law Review article Killing Her Softly: Intimate Abuse and the Violence of State Intervention. It's the basis for her important new book calling for a complete overhaul of the domestic violence system:
Mills, Linda G., Insult to Injury: Rethinking our Responses to Intimate Abuse (Princeton, NJ: Princeton Uniuversity Press, 2003) (ISBN: 0-691-09639-2)
Cite as: 113 Harv. L. Rev. 550
Killing Her Softly: Intimate Abuse and the Violence of State Intervention
Linda G. Mills
In this commentary, Professor Mills argues that we need to reconsider the feminist position that mandatory interventions in domestic violence cases, including mandatory arrest, prosecution, and reporting, serve the best interests of all battered women. Reviewing the findings from relevant empirical studies, Professor Mills concludes that battered women are safest — and feel most respected — when they willingly partner with state actors to investigate and prosecute domestic violence crimes. Clinically speaking, a battered woman needs a healing response to the intimate abuse, one that nurtures her strengths and empowers her to act. Mandatory state interventions, even when sponsored by feminists, not only disregard these clinical concerns, but also are in danger of replicating the rejection, degradation, terrorization, social isolation, missocialization, exploitation, emotional unresponsiveness, and close confinement that are endemic to the abusive relationship. In an effort to alter these abusive dynamics and promote a more respectful relationship between state actors and battered women, Professor Mills proposes a Survivor-Centered Model that relies on clinical methods that engage the battered woman, foster her healing, and promote her safety.
Laura entered the emergency room with some trepidation. Her eye was bruised and her head was pounding. When she was finally seen, she told the doctor that Thomas, her husband, had pushed her. They had fought and she had accidentally fallen into a lamp. It had bruised her eye and she had a migraine. Thomas and Laura had been married for four years and he had never been violent before. Within moments, the doctor told Laura that under California’s mandatory reporting law, he would have to call the police.
Laura was horrified. "What about what I want to do?" she asked. "What about my rights?" Laura explained that she did not want Thomas arrested; he was a good man and a fine provider, and she was not worried that his behavior was or would become dangerous. The doctor had no choice — he would be held personally liable if he failed to report the abuse.
The doctor called the police. Laura warned Thomas by phone that the police were coming. Laura arrived home just as the police showed up. She tried to convince the officers not to arrest him — to no avail. The officers informed her that the Los Angeles Police Department has a mandatory arrest policy. If the officers have "probable cause" to suspect that domestic violence has occurred, they must arrest the suspect regardless of the woman’s objections or protestations.
Thomas spent three days in jail. Having been arrested on Friday night, he missed work on Monday and worries that he may be fired if he is convicted of a crime. He also awaits prosecution on a domestic violence charge.
Laura has spoken with the prosecutor and has begged her not to prosecute. She has explained that Thomas may lose his job and that their daughter, who suffers from multiple disabilities, relies on both parents for her care. Thomas’s employer-provided health insurance covers their daughter’s health care.
The prosecutor does not listen. She informs Laura that the Los Angeles City Attorney’s office adheres to a no-drop prosecution policy. The prosecutor assigned to the case will proceed against Thomas regardless of Laura’s objections or her reluctance to testify. If she refuses to testify, the City Attorney’s office will subpoena her. And, to prove the case against Thomas, the prosecutor will use the statements Laura made to the emergency room doctor.
Emotional abuse has a way of creeping into every intimate relationship. Technically speaking, emotional abuse is "the nonphysical degradation of the self which lowers worth and interferes with human development and productivity." It can be experienced in a wide variety of ways by the recipient or victim. Emotional abuse of children often interferes with their development. Emotional abuse can prevent adults from performing such daily functions as going to work or caring for children. Emotional abuse is not limited in origin to batterers. It is evident in intimate relationships and families, in the workplace, and even in public settings.
The argument that the state, or more specifically its representatives or policies, can be emotionally abusive has been a recurring theme in the jurisprudential literature. Punishment, third-world development, and welfare reform have all been analyzed from the perspective of state violence. Indeed, Robert Cover, in his famous essay Violence and the Word<, recognized that "[l]egal interpretation takes place in a field of pain and death." This reality remains apparent, if often unacknowledged, in contemporary legal discourse and action. Cover’s insight that "the relationship between legal interpretation and the infliction of pain remains operative even in the most routine of legal acts" suggests that the dynamic that underpins the law’s relation to its subjects can itself be abusive and that the state can inadvertently replicate the very violence it aims to eradicate.
Drawing on this observation and the extensive literature that accompanies it, this commentary exposes the myriad ways in which the state’s regulation of domestic violence in the United States has become tinged with emotional violence. I argue more specifically that such policies as mandatory arrest, prosecution, and reporting, which have become standard legal fare in the fight against domestic violence and which categorically ignore the battered woman’s perspective, can themselves be forms of abuse. Indeed, I argue that, ironically, the very state interventions designed to eradicate the intimate abuse in battered women’s lives all too often reproduce the emotional abuse of the battering relationship. In these instances, state policies have the inadvertent effect of rendering battered women less, rather than more, safe from violence. Proceeding on the assumption that battered women are as often survivors as they are victims, I argue that mandatory state interventions rob the battered woman of an important opportunity to acknowledge and reject patterns of abuse and to partner with state actors (law enforcement officers, prosecutors, and medical professionals) in imagining the possibility of a life without violence. Therefore, I propose an empowerment model that reverses the violent dynamic imposed on the battered woman by the batterer, a method that nurtures the survivor’s need for emotional support and helps heal the wounds inflicted by the abuser.
I begin, in Part I, with a description of the mandatory interventions that I believe do violence to battered women. In this section, I also present the advantages and disadvantages of mandatory interventions, relying in part on empirical support for my contention that state-imposed interventions may actually increase violence in the lives of some battered women. Similarly, I argue that mandatory interventions, as they are designed, discourage many survivors from forming partnerships with state officials to help control the violence they endure.
In Part II, I explore the strategies used by clinicians (social workers, therapists, psychologists, and psychiatrists) when working with trauma victims and with survivors of domestic violence — strategies designed to empower and heal. I then contrast these healing-oriented approaches with the efforts of state actors who have contact with battered women in the criminal context. This comparison exposes the contagion of violence and reveals the ways in which helping professionals, if unreflective, can become submerged in a reactive dynamic with the battered woman that is counterproductive to her recovery and safety. This evidence supports my thesis that state actors’ abusive posture toward survivors comes dangerously close to mirroring the violence in the battering relationship. This dynamic is psychologically predictable when the unspoken or repressed feelings of public officials are exposed and explored in the context of the trauma literature. Close examination reveals a connection between the unexpressed rage, shame, and guilt of the professionals who work with victims of intimate abuse and their unwavering support for mandatory interventions that render victims helpless.
In Part III, I build on this clinical analysis and on my critique of mandatory interventions and present a framework that includes eight subtypes of emotional abuse that are common to the battering relationship and to the dynamic between state actors and victims in domestic violence cases. The table and the accompanying text present in stark terms the parallels between the batterer’s and the state’s abuses and the specific ways in which state actors who carry out these policies promote an emotionally abusive dynamic with the battered woman. In this section, I reveal how state approaches that involve coercive and dismissive tactics may effectively revictimize the battered woman, first by reinforcing the batterer’s judgments of her, and then by silencing her still further by limiting how she can proceed.
In Part IV, I present an alternative method of state action called a Survivor-Centered Model of intervention in domestic violence cases that helps connect the battered woman to her resistance and fear through deliberate emotional and strategic programmatic support. This model rejects violent patterns of state intervention that reinforce destructive dynamics and help prevent the battered woman’s recovery.
In Part V, I conclude with a call for policies that would create a healthy dynamic in the relationships between state agents and battered women. Policies that support and empower victims of battering must respect their emotional, cultural, and financial challenges and must not reinforce the emotional oppression, initiated by batterers, that the state currently perpetuates.