IT’S HUNTING SEASON: SCOTUS guns and DV debate misses the point
Laws holding abusers accountable in Domestic Violence assaults are relatively new.
By Virginia Kyle
Published 2016
News stories are painting the U.S. Supreme Court’s ruling upholding the federal ban on gun ownership for people convicted of domestic violence as a major victory for prevention advocates. In a 6-2 decision, the high court just knocked down attempts to get around the law. Far from settling the matter, the court’s action continues to distract from the real issues in the decades-old debate. Can we roll this back about 20 years?
As too many attorneys, advocates, and survivors of domestic abuse can attest, this argument, due to some structural fallacies, is a distraction and misses the critical point. It’s one of those cultural freak shows that keep us focused on the ridiculous so that a culture in denial can continue its own cycle of power and control – all the while cloaking its nature in rhetoric that only works for those fortunate to live blissfully unaware of the realities of our justice system.
This legislation is another of those often well-intentioned, ill-informed laws that survive on collective ignorance and individual arrogance. I remember when the guns and DV law first started to impact our lives back in the late 1990s, after the passing of the Lautenberg Amendment in 1997. We victim advocates were rejoicing at what we considered a brilliant move by the Bureau of Alcohol, Tobacco, and Firearms, where the federal ban was born.
I had stood with clients in courtrooms in Oregon, Idaho, and Washington by then, holding their hair while they vomited in the courthouse bathroom before their hearing, sometimes holding their hand a few days later in a hospital room after they’d learned what happens to people who betray their abuser by reporting the abuse or documenting it in minute, ugly, detail in a plea for an order of protection from the court. We DV victim legal advocates quickly learned that this ban was extremely dangerous for people living with domestic violence – the women, children, and men who might turn to the courts for help. I was in a rural Idaho courtroom with a client seeking a protection order after an attempted strangulation when I came to understand the unforeseen backlash the law would deliver to some victims.
My client’s 12-year-old daughter witnessed her father choke her mother to the point of losing consciousness. I had taken photographs, as did law enforcement, of the red finger marks and bruising on her neck, of the little red dots that resemble freckles called petechiae that were all over her face. I felt like I was in some horrible Lifetime movie as the judge ruled my client must enter into “couples treatment,” and that the daughter who had testified against her father be returned home to him immediately. It was almost hunting season, and the judge explained that he just couldn't see taking away a man’s right to hunt.
Attempted strangulation, by law, is supposed to trigger a mandatory response. If, as a District Attorney, you accept attempted strangulation has occurred, you are supposed to proceed with a felony investigation. For that matter, if you are a judge hearing a protection order case and accept that the respondent has committed any life-threatening action he or she has been accused of, you are supposed to grant the order of protection: a domestic violence conviction. I’ll bet you can guess what happens next. No conviction, no guns taken.
Even better – when convictions for DV go down, it looks and feels better for everyone (except nonprofit agencies seeking dollars to aid victims). Overworked, understaffed news organizations doing a (rare ) story on domestic violence in their coverage area will turn to the county and city records from law enforcement and the district attorney’s office to write their stories informing the community about the local government statistics on domestic violence calls and cases.
Imagine how much safer everyone, except those living in abuse, feels when they read how few DV convictions there have been over the past few years. Rarely does a reporter ask how many cases were pled down from DV to a lesser charge like “menacing” or “harassment” or dropped altogether. How many were referred to counseling or mediation, a practice proven to be dangerous at worst and ineffective at best when violence is present. Consider the cultural reflection here. In what other scenario is a victim mandated by law to live with someone who has attempted to murder them, and promised to do so again? How would you feel? You wouldn’t do it?
What if a judge gives you the choice of living with someone who has pushed you down a flight of stairs as a condition of being able to protect your children from sexual abuse at their hands? This happens every day, in courtrooms all over this nation. My experiences with it haunt me.
People are encouraged to leave abusive situations, shamed into it, criticized for not leaving. “Why don’t they leave?” is the first question, rarely “Why did he (or she) do that?” The attention remains on the victim’s actions, not the person committing the crime. The most dangerous time for an abused person is when they try to leave. If this is what they do when they love you, what happens when you betray them? What about your family? Your friends? Your pets? What happens when you go to court?
It’s easy to think the critical issue is whether someone who has committed violence that rises to the level of domestic violence (Assault IV) should be able to own firearms. And to argue over whether, as in the Supreme Court case litigants, that only a conviction for an intentional domestic assault offense should count for the federal gun prohibition, while the other argued that the ban violates their constitutional right to bear arms. So many problems here. Just one is the validation of the myth that domestic violence happens because someone loses control. Domestic violence happens as a means OF control. Does the abuser “lose control” with their boss? Parents? Around friends and neighbors? Or is it only when there aren’t any witnesses? Until education and ongoing professional training and certification in even the most basic fundamentals of power-based violence – from domestic violence and sexual assault to stalking and child abuse – is mandated for judges, district attorneys, and law enforcement, egregious errors in judgment will continue, damaging and destroying countless lives.
That’s not going to happen until the people who elect the judges and district attorneys wake up to the real picture of domestic violence in their communities. Independent citizen watchdog groups, journalists, and government accountability task forces need to join forces with advocates to demand documentation and reporting of the handling and disposition of cases that were originally called in as domestic violence.
We need to commit to the truth. How can we respond to the most vulnerable in our society with any integrity, how can we offer safety and promote justice, until we are willing to let go of our black and white illusions, the ones that make us feel safe? There is no feeling of safety for the children and all the victims that live in the psychological and physical captivity and torture of domestic violence.
The first step is rethinking the criminal justice system and the route through civil and family court domestic violence cases typically go. The standard of proof in most courts for domestic violence is quite high. If a case has risen to be heard, it has risen to a level of danger that must be taken seriously. Let’s demand our judges and prosecutors be educated so they can make informed decisions. Accountability is for everyone – whether in the courtroom or at the voting booth. Let’s end the debate about laws that assume competencies and fairness that just aren’t there. Let’s back up and get real about the work that has to be done at the structural level.
Let’s end Hunting Season.
