Analyzing the Impact of Coercion on Domestic Violence Victims: How Much is Too Much?
Tamara L. Kuennen
University of Denver Sturm College of Law
Berkeley Journal of Gender, Law & Justice, Vol. 22, p. 2, 2007
U Denver Legal Studies Research Paper No. 07-31
This article critiques the methods used by judges and prosecutors to determine if a victim of domestic violence is being coerced by her batterer. It argues that, while the intention of domestic violence and civil protection order statutes is to promote and restore victim autonomy, freedom, and choice, the presumption that a victim's decision not to cooperate with prosecutors or to vacate a protection order is involuntary and coerced may produce the opposite effect. In fact, courts' attempts to analyze the impact of coercion on victim decision-making may deny victims the same fundamental rights that domestic violence laws are intended to restore.
The article begins by acknowledging that an analysis of the role of coercion is essential to any effective response to domestic violence. However, it argues that such an analysis must go beyond the assumption that if a victim is uncooperative in her batterer's prosecution or seeks to vacate a protection order, the only reason for her actions is that her batterer has coerced her. Such an analysis presumes she has no other reason to do so.
Coercion occurs along a continuum, and the experience of coercion is subjective. Not all pressure experienced by victims should be viewed as coercion for legal purposes. It is only when that pressure is additional, unfair, or improper that judges should balance it against a victim's right to make her own choices. This balancing can only be done on a case-by-case basis, as no two victims are alike and what may be coercive in one situation may not be in another. While legal standards used to measure coercion must take into account objective components of coercion, they must specifically value the victim's subjective experience.
The article argues that victims choose their actions for a variety of reasons aside from coercion, many of which never come to light in the courtroom. Victims' decisions are influenced by external sources including the state, child protective services, concerns about qualifying for welfare, immigration issues, and pressure from landlords, employers, friends and family, and more. Pressure from these sources is also a factor in victims' decision-making. Her decision to vacate the protection order may well be a result of one (or several) of these factors rather than, or in addition to, being the result of coercion by the batterer.
The article highlights the fact that current judicial guidelines advise judges to consider whether a woman was coerced before deciding whether to grant a victim's request to vacate a protection order. However, this guideline lacks a definition of coercion and leaves judges with only two options - to decide her choice is coerced, or that it is voluntary - failing to account for the continuum in between.
The article concludes that victims' decisions, even when they appear to comply with batterers' demands, are not necessarily involuntary. The conceptualization of coercion must be narrowed, providing victims with more freedom to choose what they believe is best for them, and allowing victims' decisions to be invalidated by the court only when absolutely necessary. Failure to do so may replicate within the justice system itself the power dynamics of victims' abusive relationships, ignore victims' voices and deny victim autonomy.
Number of Pages in PDF File: 30Accepted Paper Series
Date posted: July 15, 2007 ; Last revised: March 22, 2012
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