By Barry Goldstein
To treat people who are fundamentally different or in different circumstances as if they were the same is unfair and should be stopped. The problem is that this false equivalency is easy to miss and there are often abusive and manipulative people who seek to take advantage of it. In fairness this false equivalency also is allowed to continue because good people are unconscious of these violations. This applies to many areas of our lives, but let me start with criminal law and self-defense.
The exact requirements for self-defense vary slightly among the states but are based on a reasonable man standard and require a potential victim wait until after they are attacked. On the surface this seems perfectly fair because the standard is the same for everyone including men and women. Consider how this applies to domestic violence cases in heterosexual relationships. I realize there are exceptions, but in most cases the man is bigger and stronger. If the woman attacks the man she has the advantage of surprise, but he has the advantage of size and strength so has the chance to overcome the initial attack. If the man attacks the woman he has the advantage of size, strength and surprise so she has little chance to protect her life. A woman living with an abuser pays very close attention to his tone of voice, words, body language and any other clues that give her advance notice that he is about to attack her. She can use this to diffuse the situation by agreeing to whatever he demands, running away, calling for help, locking herself in a room, or protecting her head. In many cases the partner’s behavior has informed her that he was about to kill her and so she killed him first. This was necessary to save her life but under the definition of self-defense this is treated as murder.
At the same time, women are sentenced to 70% longer prison terms then men for domestic violence homicides under similar circumstances. The reason for this is that in our still sexist society, men are treated as more valuable than women so murdering a man results in a more severe penalty. Of course the language in the law doesn’t require these longer sentences, but it is our cultural beliefs that result in treating women differently. Similarly, when we look at the death penalty, there is a discrepancy, not based on the race of the defendant, but the race of the victim. Murderers are more likely to receive the death penalty if they kill a white person than a person of color because in our still racist society we treat white lives as if they are worth more than black lives. Again on the surface, the laws claim to treat everyone the same, but because of the often invisible advantages some groups receive the law is applied in a way that gives one group an unfair advantage.
Treating Both Parents the Same in Custody Courts
Although the custody courts have shown enormous favoritism towards fathers, we often hear the male supremacist groups that like to refer to themselves as “fathers’ rights” complain that the courts favor women. They usually cite the fact that mothers are more likely than fathers to be given custody. This goes against one of the abusers’ political beliefs that children need both parents equally and so the mother and father should be treated the same. On the surface, all of this sounds reasonable which is why it has been so effective in manipulating courts and sometimes legislators. They are creating a false equivalency by taking context out of the discussion. The truth is children need their safe parent more than their abusive one and their primary attachment figure more than the other parent.
Despite articles and “research” that suggest fathers are taking a much greater role in child care, in our still sexist society, mothers continue to provide most of the child care especially when the children are very young. Even when both parents work outside the home, the mother is expected to do most of the housework and child care. If someone needs to attend to a problem in school or a sick child the burden falls mostly on mothers. This means that mothers are the primary attachment figures. Children separated from their primary attachment figures are at much greater risk of depression, low self-esteem and suicide when older.
Most custody cases settle amicably as both parents place the highest priority on the well-being of their children. Even cases that start out contested are usually settled without the need for a trial. These cases overwhelmingly result in custody for the mother and regular visitation for the father. In other words the parents voluntarily create a similar division of time with the children as they had during the relationship. The good and loving fathers are willing to sacrifice their personal interests to help their children. I am speaking about what happens most of the time. There are exceptions to most of what I am discussing and abusers like to focus on the exceptions or misrepresent situations to create the illusion that there is a problem with what works best for most children.
The problem in the custody court system is the 3.8% of contested cases that require a full trial and often much more. Many court professionals have been misinformed to treat these as “high conflict” cases. They assume that the cases involve two parents who are angry with each other and act out in ways that hurt the children. In reality a large majority of these cases are domestic violence cases in which the worst abusers who often had little involvement in the care of the children during the relationship but seek custody to regain control over their victims when they try to leave. As a result of misunderstanding the nature of these cases, courts routinely pressure the parents to cooperate and assume the children need both parents equally. This results in pressuring mothers to cooperate with their abusers instead of pressuring the abusers to stop their abuse if they want a relationship with the children. Many other flawed practices result in outcomes that result in the mostly abusive fathers gaining custody. So when courts have to decide custody they mostly favor fathers despite the history of abuse and limited child care. These decisions are based on the rights of the father instead of the well-being of the children.
Domestic Violence is Overwhelmingly what Men do to Women
In the batterer classes I teach, the most common question from the men is some form of “what about the women?” This is a way to minimize and distract attention from their crimes. The abuser rights groups similarly seek to promote a false equivalency by suggesting men are abused about as often as women. There are legitimate concerns with the rare cases in which women assault and mistreat their male partners and this has led some people acting in good faith to use language that includes male and female victims and seek equivalent services. The male supremacist groups have attempted to use this misunderstanding to sue domestic violence agencies for equal services to men. The purpose of this tactic is to hurt agencies with limited resources and undermine the ability of their victims to receive assistance. Men’s abuse of women is in no way similar or comparable to cases in which women mistreat men and society must avoid creating a false equivalency.
We will sometimes see news stories claiming that men are assaulted by women about as often as women are assaulted by men. This is based on very flawed or biased research, but journalists are too often manipulated because they fail to interview genuine experts and tend to favor stories with an unexpected outcome. This is why the proverbial man bites dog story would make news.
Domestic violence is tactics men use against women to coerce and control them. There is a long history of society tolerating and even encouraging husbands to assault and discipline their wives. The first law in the United States about what we now call domestic violence said husbands could not beat their wives—ON SUNDAY. In other words any other day it was acceptable for husbands to assault their wives. There is no equivalent history of women being encouraged or allowed to beat their husbands. History matters because even though the laws have changed many men continue to support the old beliefs.
Most domestic violence tactics are neither physical nor illegal. Instead men typically use psychological, emotional, verbal and economic abuse to maintain control. They also use isolating and monitoring behaviors and increasingly use courts to take children from safe, protective mothers. The studies that purport to find equivalency in assaults by men and women are based on counting the hits and conflict tactical scales that are unreliable. They are often based on phone calls in which true victims may not be safe in revealing their partner’s abuse. The unqualified researchers fail to consider that men in general are bigger and stronger, hit harder and cause more serious injuries. They often do not consider sexual abuse which in heterosexual relationships is committed almost exclusively by men. They also do not differentiate the purpose of the assault. Men are more likely to hit their partner to maintain power and control over her while women are more likely to hit back in self-defense or to make him stop his abuse. Most revealing is that women are frequently so afraid that her partner will kill or seriously injure her that she will do whatever she believes he wants in order to try to protect herself. Men rarely have that level of fear of their partner. The gendered nature of domestic violence is confirmed by the fact that a large majority of DV homicides, emergency room visits and serious injuries are the result of men’s abuse of women.
The researchers, like most court professionals do not have an understanding of domestic violence dynamics and this can result in tragedy. In the Castillo case in Maryland, the mother sought a protective order to prevent unsupervised visitation between the children and her abusive husband. Right before going to court she had marital relations with her husband. When the judge found out he assumed that meant the father couldn’t be that dangerous and gave the father access. The judge never considered that it might not be safe for the mother to refuse his demands. The father used the access granted by the court to kill the three children.
Tomorrow I’ll share more on the War On Women and the gender bias in America’s courts.
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