The Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis

Abstract

In Woods v. Horton, the California’s Third District Court of Appeal in Sacramento ruled that a state Health and Safety Code section funding domestic violence shelter services specifically for battered women and their children violated equal protection. Using the strict scrutiny standard of review, the court held that under the state’s Equal Protection Clause, women and men are “similarly situated” with regard to domestic violence and, therefore, the language in the code should be revised to make state funding for domestic violence shelter services under that code gender-neutral. Woods is the first successful legal decision for the anti-feminist “fathers’ rights” movement in a series of lawsuits filed against battered women’s shelters and their funders. The case is important because it highlights the limits of formal equality review of laws that confer benefits upon women. Specifically, in its formal equality review, the court failed to sufficiently consider the gendered nature of domestic violence and the social and political context in which violence against women occurs. Women are battered much more frequently, suffer much greater injuries, and are at much higher risk of being killed by their batterer than their male counterparts, particularly at separation. Further, women who are battered are in greater need of the specific services offered by shelters because of the profoundly gendered nature of battering, wherein women and children bear substantial risk of homicide, assault, rape, and stalking following separation from an abuser, whereas men do not. Women also have fewer economic resources and often are more dependent on their abusers than men due to women’s persistently lower income and greater participation in child care. For these reasons, disparate funding for battered women’s shelters should survive a strict scrutiny challenge because women and men are not similarly situated with regard to domestic violence. Because the risks faced by women and men following separation are essentially different, shelter services tailored to women and their dependent children are narrowly designed to address a compelling state interest in decreasing separation assault, assisting battered women in safely leaving abusers, and decreasing preventable homicides. By failing to acknowledge the important role that gender plays in domestic violence, the Woods decision set a precedent that threatens to erode the already inadequate laws and services specifically created in response to the quantitatively and qualitatively different types of violence faced by women, men, and children.

We conclude that domestic violence is uniquely gendered because it is a manifestation of discrimination against women. Failure to recognize the causal link between domestic violence and gender threatens to severely undermine formal equality because it fails to address the underlying problems that allow domestic violence to persist and does not address the victims’ experience within the context of societal discrimination. Considering domestic violence in the broader context of gender inequality, it becomes clear that men and women are not similarly situated. Rather, domestic violence is a systemic political and social problem within which women are uniquely situated when compared to men.