A WOMAN'S PLACE LEGAL ASSISTANCE PROGRAM
1200 New Rodgers Road Suite C‑11
Bristol, PA 19007
May 26, 3006
7800 Bonhomme Avenue
St. Louis MO 63105
Dear Ms. Schlafly:
I read with great interest your May 17th column on the Violence Against Women Act, recently reauthorized in January of this year, as I represent individuals who have been subjected to domestic violence in family court. My agency, A Woman's Place, defines domestic violence as a pattern of repeated abusive conduct perpetrated by a family member or intimate partner.
The restraining order schema that you describe is a far cry from the one in place in Pennsylvania and, more particularly, in Bucks County.
You describe a domestic violence response system that treats domestic violence as a crime but without the corresponding safeguards accorded criminal defendants; that caters to the victims, or "accusers," and fails to provide funding for legal representation of defendants; that "criminalize[es] ordinary private behavior;" that errs on the side of granting restraining orders for fear of being accused of failing to prevent worse violence down the road; that permits women victims to gain an advantage in custody battles that they would not otherwise have; and one that assumes that men are always the batterers and women are always the victims.
In Pennsylvania, our Protection From Abuse ("PFA") Act provides the following types of remedies when physical abuse, or a credible threat of physical abuse, is found by the court: no contact between the victim and the perpetrator; if the perpetrator has caused damage to the victim or the victim's property he (and it is usually "he") may be required to reimburse the victim for medical treatment or repair or replacement of property; if the perpetrator and the victim reside together, the perpetrator may be required to find another residence for the duration of the PFA order; if the perpetrator has used or threatened to use weapons to harm the victim, confiscation of weapons; and the court may also make temporary custody determinations in favor of the victim.
These types of remedies are civil, not criminal, in nature. The perpetrator cannot be fined, arrested, or jailed after a PFA is issued against him. The court essentially prohibits the perpetrator from committing future acts of physical violence, or the making of threats of such violence, against the victim. A plaintiff in a tort suit has access to the same types of remedies: if a plaintiff is assaulted, she may bring civil suit for damages; if a plaintiffs property rights have been violated, she may be granted an injunction against future violation and damages for past violation.
A PFA defendant is only subject to arrest and incarceration when he violates an existing PFA order. A tort defendant ordered to desist from further harming a plaintiff is subject to the same penalties if he violates a court order against him. To accept that PFAs "criminaliz[e] ordinary private behavior," one must, to be fair, believe that our entire civil tort system criminalizes ordinary private behavior
and that tort defendants are therefore entitled to the full panoply of criminal protections such as the right to free counsel.
The right to free counsel is the right of a criminal and not a civil defendant. In Bucks County, PFA defendants do have the right to free counsel. But would you mandate the right to free counsel for PFA defendants and all tort defendants as well across the nation? What about in a cross‑claim situation? Would you support the right to free counsel when parties apply for PFAs against each other, or sue each other in tort? I would be interested in your ideas for funding of such a right.
Your column creates a false impression of the overall national legal response to domestic violence. I would happily agree that PFA defendants should be accorded the rights of criminal defendants if they were, in fact, subject to criminal penalties. But they are not.
Incidentally, the Pennsylvania PFA Act does not, contrary to your assertion, protect a victim against non‑physical abuse such as, as you state, "name‑calling, put‑downs, shouting, negative looks or gestures, ignoring opinions, or constant criticizing‑"
In Bucks County, I have found that judges are quite alert to the possibility that PFA applicants are attempting to use the PFA system to subvert the regular custody adjudication process. Our judges do not automatically grant custody to a victim whenever requested. Rather, consideration of the parental rights of the perpetrator is weighed against the likelihood that the perpetrator may harm the children.
As for the assertion that men and women are equally likely to be perpetrators or domestic violence, many studies and reports exist, from reputable sources, that show this to be false. (For more information go to the National Coalition Against Domestic Violence website, www.ncadv.org.) Few people in the domestic violence field assert that all perpetrators are men and all victims are women. Of course there are intimate partners who are equally violent towards each other, men who are victimized by women, women who are victimized by women, and men who are victimized by men. But the research shows that men are much more likely to be violent towards women than any other coupling. Given that the problem of domestic violence manifests in a repeated pattern of male violence perpetrated on women, it makes perfect sense to direct the bulk of our resources to addressing this dynamic.
I hope that sharing my experience with you will help inform your thinking on this issue.
Thank you for your kind attention.
Djung Tran, Esq.
CC: Donna Byrne, Executive Director, A Woman's Place