PodcastLeigh Goodmark, Esq. on Domestic Violence and the Legal System

February 4, 2014by Frank Love0

Podcast Episode:
Does the legal system do enough to deter domestic violence? We are going to discuss this and much more on this edition of Frank Relationships.


Guests: Leigh Goodmark
Date: January 20, 2014

Frank: Does the legal system do enough to deter domestic violence? We’re going to discuss this and much more on this edition of Frank Relationships.

Welcome to Frank Relationships where we provide a candid, fresh and frank look into relationships with goals of acceptance, respect and flexibility. I’m Frank Love and you can find me, my blog and my various social media incarnations at franklove.com. You can also download the podcast of this and other archive shows at iTunes or with your favorite podcast app. And I am pleased to be joined by my co-host, Latonya Taylor. She’s bright-eyed bushy tailed and undoubtedly has something to say.

Latonya: I’m so glad to be here. Thank you for having me.

Frank: You got something to say now?

Latonya: Not yet.

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Today’s guest has a passion for women and women’s issues. In fact, she’s a modern day feminist. She’s the director of the Clinical Education and Family Law Clinic. She’s the co-director of the Center of Applied Feminism at University of Baltimore School of Law. She’s the president of the board of directors of the Women’s Law Center of Maryland and she is the author of, A Troubled Marriage: Domestic Violence and the Legal System. Did I get everything?

Leigh: I think that’s about it.

Frank: Okay, she is Ms. Leigh Goodmark. Welcome to the show.

Leigh: Thanks so much for having me.

Frank: You bet. Alright, the premise is the legal system fails women who are domestically abused. Color that. Tell us how that’s the case.

Leigh: In my research, what I’ve found is that the legal system failed women in four big ways. I should say that it’s not just research, like academic research, but that I’ve represented people who’ve been abused for the last 20 years. So, it’s based not just on my research, but also on my experience.

And there are four ways that I think that the legal system fails. One, is that the legal system fails by defining domestic violence way too narrowly, so it doesn’t capture most of what’s really harmful that happens in relationships. The second thing it does is it defines victimization in a very specific way and if you don’t look like that stereotypical victim, the legal system is not likely to help you. The third thing that the legal system does is to rely on separation. On breaking up relationships as the answer to domestic violence and that simply isn’t the case. The fourth thing that it does is it allows state to intervene in people’s lives in ways I think are really problematic and it gives the state the ability to make decisions about ending relationships that should really lie with the people in those relationships.

Frank: Okay. Now, that’s interesting. Now, you say, it relies on breaking up as the answer to many of the problems? Please explain.

Leigh: The legal system really relies on separation as the main thing that it offers to people in abusive relationships and it has a number of different tools that it uses to do that. For example, many people know about domestic violence, protective orders or restraining orders. Those are orders that you can get when you into court and say, “I’ve been abused,” and you prove that you’ve been abused. And the system says, “Okay, then your partner needs to stay away from you, he needs to not have further contact with you. She needs to not be at your home, your work, your school.” A variety of other kinds of things.

The legal system does arrest and prosecution, which is another way of separating people. You can get a divorce, but what the system doesn’t do is say to people who still have love for their partners or who still need to be involved with their partners, because of children, because of community ties, because of religious ties, because of economics, “Here’s a way that you can be safe without necessarily having to separate.” What the research tells us is that separation is not any safer than being with a domestic abuser. That, in fact, the point of separation can be more dangerous and so by offering only separation as a remedy, it really doesn’t give people very much.

Frank: You started that answer with proving abuse. My understanding of proving abuse is, it’s pretty light. It’s a pretty thin bit of evidence, a testimony that you have to give when you go to court, basically, on your own without opposition to get a temporary restraining order, TPO (Temporary Protective Order) and you just, you say, “X, y and z happened,” and it’s only temporary. Whatever the ruling is, is only temporary, but my understanding of it is you don’t have to say an awful lot happened and you barely have to really have to prove it. When I say prove it, you barely have to prove it, because there’s no real opposition.

Leigh: That may be true at the temporary stage. So, you’re right. At the temporary stage, generally the opposition is not there. The assumption is that because it’s an emergency situation, we’re going to give the person who’s testifying the benefit of the doubt to see if we can sort it all out.

The temporary orders last a very short time. In most states, between one week and two weeks and after that one week to two week period, the burden of proof to prove up that abuse gets much higher.

In Maryland, where I practice actually, it’s a clear and convincing evidence standard, which is a pretty high standard. And so, the idea that you can just come in and say whatever, that may be true at the temporary stage-although I like to give judges a little more credit than that-it’s certainly not true at the final stage. And it’s at the final stage where various forms of relief are actually available to people who’ve been abused, like custody and visitation and use of homes and use of cars, and a variety of other things for which you want a stronger evidentiary standard, because you want people to prove their cases.

We actually litigate these things pretty hotly and they are very highly contested and so that may be true what you’re saying at the temporary stage, but not so much at the final.

Frank: What would you suggest in terms of avoiding separation in a manner where you are-it sounds as though helping the couple work their issues out?

Leigh: it’s funny that you say I’m a modern day feminist. I am a feminist, no doubt, but this is a place where I feel differently than a lot of feminists in the battered women’s movement. I believe that if a couple wants to try to sort things out and they can find someone who is willing to work with them who has a knowledge of domestic violence and how domestic violence works and is attentive to the kinds of signals that somebody without that knowledge might not see in a counseling situation, then they should be able to get that kind of counseling if they want it.

Most folks in the battered women’s movement would say, “No couples counseling,” period and I think that’s problematic. Similarly, a lot of people in the movement would say, “You never mediate domestic violence,” and I think that’s problematic too.

From my prospective, I want the person who’s been abused to get to make those decisions and not anybody else and so saying you can’t do this or you can’t do that just takes power out of the person’s hand. If you have a situation where you have a trained mediator, you have a trained counselor and you can help people get some assistance in dealing with the abuse that’s going on in their relationships, that to me is not a horrible thing. I don’t think that all abused relationships need to end.

Frank: That sounds powerful. I appreciate that. How does mediation of domestic violence look or how might it look?

Leigh: If you are in a situation where you want to mediate a case, I think the first thing that you want to know is that the person who has been abused wants to mediate and you find that out not by sitting with them, with the other person and having that conversation, but by taking them by themselves, having a conversation, doing a screening for any domestic abuse in a relationship. And there are various screening tools that are out there for mediators. Assuring the person that you are a trained mediator with specialized knowledge of domestic violence and I can’t stress that enough. Most mediators don’t even screen for domestic violence. Most of them haven’t been trained on domestic violence. You definitely want somebody who’s attentive to the dynamics of an abusive relationship, doing that kind of mediation.
But when you find that person and you’ve talked to the person who’s been abused and they’re interested in having mediation, there are lots of different ways that it could look. Most people just think of mediation as two people sitting in a room, arguing things out with a mediator, but you can do relay negotiations with people in different rooms so that there’s not physical proximity to each other and so that concerns about safety are lessened. And with technology we can do all kinds of things. People are starting to do online mediation and so you don’t have, again, those concerns about physical safety.

I think it is also important to note that while physical abuse is part of what people experience, it’s not most of what people experience as abusive. And so, safety concerns are certainly important, but they’re not the same in every relationship and part of what the mediator’s job is, is to figure out what are the abusive dynamics in this relationship? Is it about physical abuse or is it about emotional abuse, which actually might make it harder to mediate rather than easier.

Is it about economic abuse? Is it about reproductive abuse? Is it about spiritual abuse? This goes back to something that I said right off the bat, which is that the legal system defines domestic violence very narrowly and that’s really wraps physical abuse and threats of physical abuse. But the experiences of people who’ve been abuse are much broader than that and the legal system doesn’t touch most of that. If you’re going to mediate though, you’ve got to be attentive to those things.

Frank: How does a mediator or how does a counselor, social worker, whoever, screen for domestic violence?

Leigh: There are various tools that a mediator or a counselor can use and they ask some basic questions: has your partner ever hit you, kicked you, spit on you, all those kinds of obvious questions. But also, “Does your partner isolate you from other people? Does your partner keep tabs on your whereabouts all the time? Does your partner control all of the money? Does your partner use language about you that makes you feel belittled? Is it demeaning? Does your partner talk badly about you to your children?” You’re looking for control, you’re looking for isolation, you’re looking for the kind of spying, various kinds of things that say to you, “This person is being abusive beyond just that there’s physical abuse going on.”

Frank: Speaking of spying, so how does in an age where we have spyware that goes on phones and when we can monitor our partners emails, to see if they’re cheating, how do you draw the line between guarding against your partner “cheating” and calling them an abuser?

Leigh: I don’t think that anybody’s got the right to get into anybody else’s private information. If I haven’t given you my email password, you don’t have a right to be in my email. If I haven’t given you permission to put some GPS tracking software on my phone, you don’t have any right to follow me on the GPS.

The iPhone is actually one of these things where it’s a wonderful technological advance. It’s given abusers a tremendous tool to use in following their partners around. If the couple has decided that this is okay and that decision comes not because somebody is being coerced but because the person is actually okay with it, that’s one thing. But I think it becomes abusive the minute that you’re doing those things without your partner’s consent.

Frank: Give me an example of spiritual abuse?

Leigh: For example, in the Orthodox Jewish community, denying somebody the right to practice the Sabbath.

Frank: Do you speak from this because you are Orthodox Jewish?

Leigh: No.

Frank: Okay.

Leigh: But there’s some social science research out there. But it’s pretty much true across the board. Say you are a deeply religious person and your partner says, “Well you’re not going to services this week. I don’t care if it’s Baptist or Jewish or Muslim or whatever it is. You’re just not going, because I don’t want you to go and I’m not going to allow you to go.” That’s abusive and that gets to the core of somebody’s identity.

If not going to service means you’re violating some deeply held belief or some responsibility to the entity that you see as God, that’s deeply abusive. That goes right to the core of who somebody is and there are all kinds of religious practices that people can interfere with or deny the person access to in ways that are far more harmful than just slapping somebody across the face. Keeping somebody from being able to carry out their religious obligations can be a form of abuse.

Frank: Reproductive abuse?

Leigh: Reproductive abuse works two ways. One is by getting people pregnant and one is by keeping people from getting pregnant.

There are a couple of background things to understand. One is that pregnancy is a really, really fraught time for an abusive relationship and a lot of abuse either begins or increases during pregnancy. And some of the theory on that is that pregnancy threatens the male partner in that there’s somebody else who your partner is paying attention to-that the baby becomes more important than the male partner, the male partner wants to exert his control, make sure that supreme in the relationship and begins to abuse the pregnant woman in ways that might cause damage to the fetus.

Reproductive abuse can look like, obviously battering during pregnancy, which is a big problem, but it can also look like, interfering with someone’s birth control, denying them access to birth control, flushing somebody’s pills, getting somebody pregnant on purpose in order to keep them tied to you. Obviously, rape and sexual assault can be forms of reproductive abuse and I should say, those things happen in all kinds of relationships. It’s not always just male-female. It happens in same-sex relationships. It’s important to keep that in mind.

Frank: When I hear you describe this reproductive abuse, I hear it from the male to the female side. When you say getting people, clearly we’re talking about getting women pregnant. Wat about women who are doing all they can to get pregnant? Even tampering with condoms and that sort of thing, that didn’t come up with what you said, but is that abusive?

Leigh: It depends and the difference with it is that gets into the bigger issue of women’s abuse of men, which is one of the hottest issues in this field. It’s the one that creates the most debates and the most arguments. Generally, what most people in the field accept is that abuse is a way of asserting control over another person.

Frank: Okay.

Leigh: So, if someone is doing everything she can to get pregnant, poking a hole in the condom, whatever it is and that has the impact of exerting control over her partner, then you could consider that abusive. But what we know about most of the abuse perpetrated by women is that it doesn’t end in control of the other partner, that it’s generally out of anger or frustration or in self-defense, but very rarely do their male partners feel controlled by the abusive things that women can do and that’s the distinction.

Frank: I don’t know about that.

Leigh: Yeah, if the intent of control, then I think is abusive.

Frank: Well, let’s play with what you just said. You could go there from just a woman crying. Women often in the mist of this that the other kind of conversation or interaction with their partner cry almost at the drop of a hat, the press of a button and they can turn it on and sometimes they can turn it right off. It’s done with the intent of controlling their partner, so that he doesn’t walk away or walk out the door or that he may hold her or that he may do all kinds of things, but that is controlling.

Leigh: When I talk about control though, what I mean is something that materially limit someone’s liberty, something that keeps you from being able to go out in the world and do the things that you want to do.

Frank: Material?

Leigh: Yeah. I don’t think of crying as necessarily being abusive, though it can be controlling and there is control that’s not abusive. I don’t see most crying that women do-I know somebody has cried at the drop of a hat, I will tell you, I don’t see most crying that women do as changing in some way my partner’s ability to go out in the world and operate as an independent actor.

Frank: Okay, so-

Leigh: I think that’s the difference.

Frank: Let’s say a woman who does something with the children, tells the children that “Daddy out and he’s out with his other woman.” Is that abusive?

Leigh: I say it’s more abusive to the children than to him. The children don’t need to hear that kind of stuff. I don’t believe people should bring children into that stuff.

Latonya: I have a question.

Frank: Uh-huh.

Latonya: As you were describing the spiritual abuse and the reproductive abuse, I thought about may be there needs to be another category, like participatory abuse. I wonder when you, the social workers do screening, do they screen to see if the woman is participating in her own abuse.

Leigh: That goes back to some really, really old thoughts about why abuse happens. In the 40’s and 50’s, there was a bunch of research that said, “Abuse happens because women are masochists and they like it, and so it’s happening because they want it to happen.” I think over the last several years we’ve pretty much debunked that stuff through the social science research-that abuse isn’t happening because women like it and somehow want it.

I think you have to be careful with saying things like “participate in their own abuse.” Oftentimes what happens is that women make choices about what it is that they can endure, what it is that they can put up with and how it is that they’re going to address the things in their lives. You may have a girlfriend and you know that her guy is beating her up and you say to her, “Get out, what are you doing, you don’t have to put up with this. You need to get out.” And she doesn’t tell you what it is that she’s thinking. But what she’s thinking may be, “If I get out, I don’t have a roof over my children’s head.”

Latonya: Right. Those are extreme examples.

Leigh: Actually, they’re not so extreme; those three examples that I see as a lawyer all the time. “Or if I get out this community that I’m relying on, religious community, my spiritual community, my community of friends are not going to be there to support me and so I’m going to make a decision to put up with stuff that people think I shouldn’t put up with, because there are other consequences that I’m not willing to discuss with other people.”

Latonya: Right. I’m familiar with that. The question, I think-let me give an example of women, for instance, in the ways that we express ourselves. Sometimes we get in men’s face.

Leigh: Yeah. Okay, I see what you’re saying.

Latonya: Then we threaten, we throw things and then once the man responds then the cry is, “Oh, you abused me.”

Leigh: And so, I think that there’s a line and the legal line is different than say the emotional line.

Frank: I want you to also give what the “Leigh” line is also, because you chimed in with your personal opinion also.

Leigh: Yeah, absolutely. Here’s the legal line. The legal line is you can yell and scream back and forth all you like. In some places, though not all places- you can’t destroy property, that’s a criminal offense, but you can yell and scream-

Frank: Unless it’s your own property.

Leigh: You can do what you want, unless it’s your own property. You can destroy your own property all you like. The law’s going to intervene at the point of which you threaten somebody and that threat is credible or you do some kind of physical abuse. And in most places, that’s it. Emotional abuse is not covered, economic abuse is not covered. Those are things the law doesn’t care about.

On the emotional side of things, if you expand the definition, you still have to look at this element of control and what the research shows us is that when women are doing stuff like yelling and screaming and getting up in their man’s face and that kind of thing, they’re not doing it to exercise control, they’re doing it for other reasons.

Frank: You’ve got to be kidding.

Leigh: I’m not kidding and that’s what the research shows. And what happens most often is that men just laugh. They don’t take it seriously. They’re not threatened by it.

Frank: No, Leigh. No.

Leigh: You’ve got to talk to the social scientists about it. That’s what the research shows.

Frank: No, I’m talking to you.

Leigh: Now-

Latonya: Yeah, but Leigh, who’s social science? In other words, who are we using as a measurement for this type of thing, because there’s a certain emasculation that happens. Now, I’m a woman’s woman, so trust me, I’m not advocating for men here when it comes to abuse, but there has to be some responsibility when we talk about counseling.

Leigh: I don’t disagree with you and I think that part of what we need to be talking about is how people have healthy relationships. Don’t misunderstand me. I don’t think it’s a good idea for people to threaten people at all. I don’t think it’s a good idea to get up in somebody’s face. I don’t think it’s a healthy relationship when two people are screaming at each other all the time. I don’t think any of those things are good things and you’re right. Right, that bad behavior escalates situations in ways that are really problematic and can lead to some really serious consequences, but when we’re talking about what’s abusive and what’s not, what I can tell you is that the research generally shows that the stuff that women does, doesn’t have the long lasting consequences in terms of controlling their partners that a particular kind of abuse by men does. There’s a whole field-

Frank: Okay Leigh, I’m going to take you there. Okay, I’m the woman here, you’re the man and I’m getting in your face, because number one, I know that getting in your face irritates you. I know that getting in your face and calling you a bitch and calling you a sorry motherfucker that can’t keep a job and calling you a little dick asshole, I know that that presses your buttons and I know that that is going to be something that will get you to fly off the handle where I can call the police, because I can’t call them if you you’re not swinging on me or if you’re not doing something crazy. I can’t call them for that, but I can call them if you hit me up side my head and I can call them, if you hit me upside my head and because I have helped you. I have kind of triggered you to do just that. Then, I can call them to come over here and kick your ass. Your thoughts.

Leigh: Yes.

Latonya: Right.

Leigh: Yeah, and-

Frank: I mean you were saying that when women get up in your face is not about control. Hell, that is about control.

Latonya: And the social science.

Leigh: It’s not about the day-to-day control of someone’s life. Now, look in that example, is the woman doing wrong? Absolutely.

Frank: I’m not talking about-

Leigh: It’s not a healthy relationship. It’s not the way you want people to act, absolutely.

Frank: No, we’re going to keep it on the level.

Leigh: And is it possible that that’s abusive? Sure it’s possible if it’s materially altering his ability to carry on with his life. Let me give you an example. I represented a guy once whose ex had put him in jail on a false allegation and he lived the rest of his life scared that she was going to put him back. He ultimately decided to not have any further contact with his kids, because he was so afraid of having contact with his wife. Was that abusive? Absolutely.

Frank: Okay, back to what I was saying. You interjected and you’ve done this along the way a few times and I left it alone, but we’re going to get our hands dirty now. You’ve said, we went from the abuse to it being a long-term effect. Kind of long term control verses just kind of immediate control that was something we did not interject at the beginning. The point was control and she is being controlling, so where do you draw the line in terms of her having some responsibility or her being the person who in many ways initiated the “abuse” that which Latonya brought up.

Leigh: If what she is doing is keeping him from being able to live his life the way he wants to live his life then she has responsibility.

Frank: Where do we draw the line there? We do things that-

Leigh: I don’t think you can draw a hard and fast line. Every situation is different, every couple is different. In that situation, if she is constantly picking and picking and picking in a way that gets him to respond, that’s not the kind of abuse that we-in the social science, I know you don’t want to hear it, but in the social science there are different kinds of abuse. It all doesn’t look the same and people are trying to figure out what different kinds of abuse look like.

In the book, I talk about this, that there’s one sociologist, Michael Johnson, who’s come up with these things called the typologies of control. One of them is mutual couple violence. That is pretty rare, but it happens that people are mutually violent and so the situation that you’re describing sounds much more like a mutual situation.

Frank: That doesn’t sound like-no that wasn’t mutual. I didn’t say he hit her.

Leigh He then hits her back. Okay, I made the assumption that she picked on him enough and he hit her back.

Latonya: No, Leigh when you-

Leigh: That’s when you said he called the police.

Latonya: Right.

Leigh: She called the police.

Latonya: Right, but Leigh, when you refer to your research, right, because I love the fact that you think your own way outside of just the research. So, if we want to be helpful to situations when you talk about counseling and screening, then whose social science are we using, because it’s not so rare-I’ve heard you use terms like rare. It’s not so rare in many communities that this happens. Even it starts at school age. I’ve seen it in the schools.

Frank: In fact, it’s prominent. I’ll go to the other side.

Leigh: Where girls are being cultured to be able to do this and get away with it. Like women get a pass and I’m a woman and a woman’s woman and guest what, I’ll tell the truth, I have absolutely been wrong and provoked in situations that I wish that I hadn’t done.

Frank: I will add to that and I see in a school environment regularly-I see young ladies in a middle school hit the males all the time between classes. They are hitting the guys left and right.

Latonya: Yes.

Frank: And there’s no way this does not carry over into adulthood. And on top of that we talk about the female side-well we’re talking about the female side of the abuse factor, because she seems to be the one getting hit, but one of my favorite quotes is, “hurt people, hurt people.” Now, you can look at it as okay, a guy hits a woman, well that guy was hurt along the way. Somebody hurt him, you could say that.

But you can also close that circle a little bit and say a guy hits a woman if we’re just talking about guys, we can talk about ladies hitting too. But if we’re just talking about guys which, I’ll say right now, but you could say in a closed circle “hurt people, hurt people,” so a guy hits her it’s probably because in some ways he is hurt and she might have hurt him. And so, if that’s the case, how do we start to remove the blame of the situation and stop pointing the finger at simply him and start pointing the finger at the circle. The actual complete entity if there must be a finger pointed.

Leigh: I don’t think there has to be a finger pointed necessarily.

Frank: I agree.

Leigh: But I want to go to kind of a different point-the point that you’re raising, which I think is important. One of the things that the current movement has done that I think is really problematic is to demonize men and to say that “Any man who hits a woman is a monster. He can’t be helped, he can’t be redeemed and we should just write him off. We should end the relationship.”

Latonya: That’s true.

Leigh: “We should do all these things,” and I think that’s deeply problematic. I think it’s problematic for a couple different reasons. One, is if we’re just going to stay on men for a second, but it’s true of anybody who abuses. If someone is being abusive, isn’t what we need to do to change that person’s behavior-isn’t that where we should be focusing our efforts?

Frank: No.

Leigh: If we just write them off as a monster, then how can we ever help that person to change and how can we ever help that person not to be abusive anymore. And I think that one of the things that is really important for us to do is to engage men in this conversation and to talk to men about doing peer-to-peer work and talk to men about their experiences and why it is that they’re doing what they’re doing and what are the things that might help them change.

There’s really interesting research around the idea that, for example, if men understand-and the research I’ve seen has been on men-if men understand that the abuse that they’re doing is harming their children they are more likely to change. So, how do we get that information to men in a way that they can hear it and understand that being abusive within their relationship is bad for their children so that you break that circle at some point?

Frank: So many places to go.

Latonya: I don’t know if you answered who’s social science. I really have to ask that, because it seems like-

Leigh: There’s research on African American women, there’s research on white women, white couples, African American couples, Latino couples. There’s research on all different kinds of couple relationships, and I think, frankly, African American women get a really bad rap, because the stereotypes of African American women are that they are angry that they fight back that they’re really abusive within their own relationships and what happens as a result of that is that when African American women go into court whose been abused, they are looked at as less of a victim. And when you don’t look like a victim in the legal system you don’t get the kind of help you need. And so, we’re talking about women who acted in certain ways, but what that does is perpetuate a stereotype in some ways of what African American women look like that really does disservice to women who seriously need help.

Latonya: Well, I whole-heartedly agree with that. However, there’s another demographic of a community of women, women on women.

Leigh: Yeah.

Latonya: Within that community the abuse levels are ridiculous and so the silence that happens in that community, what about that? Have you done any research on that?

Leigh: Yeah, I’ve done a little work on-

Frank: Or do you just have an opinion? I don’t want to hear about the research all the time. I want your opinion.

Latonya: Yeah, Leigh, what are you think in your experience?

Leigh: Battering in the lesbian community is really complicated and some of what we know is that, for example, you have stereotypes of big butch women and then really small femme Women. And so when, say a cop comes into the situation with a butch women and a femme woman and there’s been a fight, who are they going to believe? Well, they’re going to believe the little thin woman, because she looks like a victim and what that does is do the same kind of disservice to butch women.

A lot of times in lesbian relationships the cops come in and they think it’s funny, like a cat fight and they don’t take abuse within lesbian relationships seriously. And then, because lesbian women don’t look like, again, the traditional victim, again, they don’t get the kind of help that they need from the court system.

Frank: Abuse, away of exerting control over another person. This is the definition you gave: there are so many ways in relationships that we often attempt to exert control over our partners. To call that abuse seems abusive.

Leigh: That’s only part of what I said though. It’s a way of exerting control over another person that materially limits that person’s ability to live their life the way that they want to live their life.

Let me give you an example. I had a case-let me give you a different example, because I don’t want to use that one. If someone is making you keep a log of where you are every minute of the day and you’ve got to account for where you are every minute, you’ve got to account for every penny that you spend, you’ve got to be on the cell phone, you better answer that cell phone if you get called, that’s abusive, because it’s limiting your ability to live your life the way that you want to live your life.

Frank: Alright, what about-

Leigh: There’s tons. People struggle for control in every relationship. There are day-to-day struggles for control, but most of those don’t keep you from living your life the way you want to live your life. That’s the other part of it that’s so important *(inaudible) 36:37.

Frank: That’s not true. I will take it to the other extreme and say I can’t think of one example where someone is attempting to exert control and that’s not meant to limit your liberty and you living your life the way you want to live your life. If I wanted you to live your live the way you wanted to live your life, I wouldn’t attempt to control you.

Leigh: I just think there’s a distinction. We disagree about this.

Frank: Let’s play with that distinction. You just said the cell phone issue. So, if I call my wife, she doesn’t answer the phone, I’m upset. I’m upset that she doesn’t answer the phone and I let her know, “Look, when I call you, I want you to answer the phone. Where were you?” I am letting her know I do not like it when she doesn’t answer the phone, because I cannot find out where she is and what she’s doing at that particular period of time.

Now, I might do that once, but I might do it once, a thousand times and so if that occurs over the course of our relationship, you better believe I’m attempting to limit her liberty and her way of living her life the way she wants to live it, because-

Leigh: Then, I think you’re being abusive.

Frank: Okay, okay, so someone just simply-I love that you’re saying that, because I more agree with that than disagree. But, then I take it to the point of, so what do we do with the concept of someone being abusive? Do we need to do something or do we just say, “That is that couple.” That’s what they do, they call each other. That’s one of the things that they do. They call each other to keep tabs on each other, because they don’t want them doing something that they don’t want them doing.

Leigh: Right.

Frank: Well, that’s that couple’s chemistry and that’s what they do. I do consider it-I considerate it more than I consider it abusive, I consider it controlling. Abusive is as far as I’m concerned, overused word.

Latonya: Right, like bullying.

Frank: Like, oh my God, like bullying. However, what do we do about the controlling? Do we attempt to change it by the cops? Do we attempt to change it through legislation or the courts or do we let folks know, “Hey, you’re being controlling? Just check it out. You’re being controlling.” Where do the lawyers have to come in for this?

Leigh: Yeah, the lawyers come in when somebody decides they don’t want to live their life that way. Here’s the difference between I think the way that I think the way a lot of people think. Some people think that, for example, every time the cops come in they should make an arrest, every time the cops come in there should be a prosecution. I don’t agree with that. I think you get to make the decisions about your relationship yourself. That you should have as a person who’s been abused, you should have the power to make that decision.

So, if I’m the person who’s being abused and you can disagree with me about the use of the word but whatever. If I’m the person who’s being abused and I want it to stop that’s the point at which I might go and invite someone into that relationship. Otherwise, I might have reasons why I’m not stopping it, because that is not bothering as much as the thought of homelessness or that is not bothering me as much as the thought that my church will not let me come back, should I leave this relationship? I don’t think-

Frank: So, with the cell phone example that I just gave, who you going to invite into your relationship? The cop? He’s–

Leigh: Probably not-

Frank: He’s keeping tabs on me.

Leigh: Because that’s not illegal. No, and that’s what I talked about in the beginning. The legal definition of abuse is very, very different than a definition of abuse that others of us might use, say who look at this-I know you hate the research, but look at the social science researcher who’ve worked with people who’ve been abused-

Frank: I do not hate the research.

Leigh: In that legal definition.

Latonya: Yeah, we don’t hate the research. We definitely can’t go on record with that. The research sometimes does a poor job of representing everyday people.

Leigh: No, I understand that. I understand that. I don’t disagree with you about that, but I will say this, that’s not illegal. The cell phone thing that we’re talking about is not illegal and so you cannot get legal help for that. And I’ve had clients who had serious, serious emotional abuse and the kind of stuff you would not even believe that anyone could live through on a day-to-day basis and have no legal claim, because the stuff that’s happening is not illegal.

Latonya: Exactly. That’s our point.

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You’re listening to Frank Relationships and we’re talking with Leigh Goodmark, author of A Troubled Marriage, Domestic Violence and the Legal System. She’s also modern day feminist, at least I’m calling her that. Ms. Goodmark is here to educate us on domestic violence and the legal system. Please, tell us how our listeners can find you and your book.

Leigh: The book is available on Amazon.com and at Barnesandnoble.com and there’s not too much web about me. I’m a law professor who wrote the book, but you can find out information about me on the University of Baltimore’s website.

Frank: I’ve given the following example in the past when we discussed domestic violence on the show and I credited and referenced an author by the name of Byron Cady with given this example. She says, “You walk by a yard and a dog runs out and bites you, you got bit by a dog. When you go past that yard again, when you know this dog bites we often want to call that abuse, but that’s not abuse and actually, the dog didn’t bite you, you bit yourself. You went back by that yard taking no precautions, doing nothing differently and you got bit again. Yet you want to call yourself the victim.” I relate that back to kind of what we were discussing in terms of domestic violence and victimization and victim-hood and all of that good stuff. When you’re talking to a woman or a man or a “victim,” does the conversation start with what he should have done or the assaulter should have done differently or does the conversation start with what the person who was “victimized” could have done differently

Leigh: So first, I don’t use the word “victim.” I don’t like what it connotes over and over. I think *(inaudible) 44:21-

Frank: The abused, you differently use that word.

Leigh: A person who’s been abused

Frank: Okay.

Leigh: Actually, the term I use is much longer, which is person subjected to abuse and we could go on why that is, but my conversations actually with people never start with either of those things, because I don’t really care about those things. What I care about is what the person wants to achieve.

My conversation with the person starts with, “What’s your goal here? Is your goal to get out of the relationship? Is your goal to stay safe within the relationship? Is your goal to make sure that your children are protected? What is it that you’re trying to accomplish?” Oftentimes people start conversations with people who’ve been subjected to abuse with, “Well, why did you stay,” and there are lots of reasons why people stay in these relationships. People stay because of their immigration status, because of their religion, because of their community, because of love, because of economics, because of their children. There are lots and lots of reasons that people stay. I’m not so interested in that. That’s their reason.

What I am interested in as a lawyer is how I can help them achieve whatever goal it is that they have. I think that the other thing that’s kind of really important to think about in that context is, “What is it as a lawyer that I can give them? What are the tools that are available to me that can help them achieve those goals?” And frankly, as a lawyer, lots of times there aren’t any, because if you don’t want to end the relationship and if you don’t want to get a divorce or get a protective order there’s very, very little that I can do for you. But I’m not focused on whose fault it is.

I will say this though, one thing that-Beth Richie who’s an author I tremendously admire, did a really amazing study on African American women and found that on average, abuse started two years into their relationships. So, it’s not like you walked by the dog on day one and got bit and walked back the next day. This is somebody who you’ve invested two years of your life with. You have a long-term relationship with, who you’re really invested in, who you believe you’re going to share your life with and then something starts and there’s a whole background of relationship and love that you’re looking at and thinking, “Is this really what I think it is?” And two years in, it’s a whole lot harder to extricate yourself than it is if you’ve walked by the dog and it bit you on day one.

So, I don’t know that I agree with that kind of way of looking at it. I think that misses a lot of the complexity of what people have built up within their relationships, oftentimes before the abuse even starts.

Frank: What difference does that make, because there’s history? If you’re two years in, there’s history, okay. You’re two years in, there’s history. You’ve got to make a new decision today. You got a new circumstance.

Leigh: But that decision is colored by that previous two years of relationship. It makes you doubt yourself. It makes you think, “Is this really what I thought it is? Is he really being abusive or am I just missing something?” It makes you think, “Is it worth throwing away this time, this energy, this marriage, this co-parenting,” whatever it is that you have invested. I think it’s a lot harder to walk away at that point than it is on day one.

Frank: Well, it is harder and it’s harder for both parties and just because it’s harder doesn’t really mean anything. It’s just harder.

Leigh: Well, it means something to me and I think it means a lot to my clients.

Frank: Again, it’s harder, but just because it’s harder doesn’t mean don’t make the decision and it doesn’t mean that the decision isn’t an important one. I mean, it’s like having-

Leigh: It means the-

Frank: A job.

Leigh: Decision looks very different. I think it means that the decision looks very different than it would if somebody abused you on your first date.

Frank: So, let’s say you have a job. Yeah, you work somewhere and for a week, sure, you can walk away a lot easier than you can walk away if you worked there two years-

Leigh: Right.

Frank: But if you worked there two years or 10 years, the day may very well come when something goes down where it’s time to walk away. Yeah, the decision may be more difficult, however the decision is actually as it’s also more difficult, it’s more valuable. So, with the value and with the difficulty there becomes value also. So what? You’ve got to deal with it, deal with it.

Leigh: I think people choose to deal with it differently when they’ve got time invested in a relationship.

Frank: You are absolutely right. I agree. And you said “achieved goal.” I asked, “Do you talk to the person who has been-what was your word-abused or subject to abuse. That was your clarification.

Leigh: Yeah, that’s what I usually say.

Frank: Okay, I asked, “Do you talk to that person about what they could have done or what the other party could have done and or should have done or is going to do?”

Leigh: But let’s make it clear. I’m not a relationship counselor.

Frank: I’ve got you.

Leigh: That’s not mine job and I’m not there in that role. I am there in the role of a lawyer who’s trying to help them figure out how to achieve their goals. And I don’t want to pretend to be something that I’m not with them.

Frank: All I’m doing is-

Leigh: I can’t give them that expertise

Frank: All I’m doing is recapping the question that I asked.

Leigh: Yeah, yeah, and so the answer is “no.”

Frank: Okay, but you did say, “You asked them what their goal is.”

Leigh: Yeah.

Frank: So, once you find out what their goal is, you said there are not a lot of remedies a lawyer, which makes me think that you’re really thinking along the lines of the tools available that are strictly tools used by lawyers.

Latonya: Right.

Frank: But there’s so many more tools available that you as a woman just can have available that even though you’re a lawyer-so, not because you’re exclusively a lawyer, but because you’re also a woman, there are tools available and there are also-once you find out what a person’s goals are, my question is, where do you go then? Do you discuss with them-I’m back to my original question-once you find out what their goals are, do you discuss with them what they could have done differently or do you discuss with them, how to get this other person?

Leigh: I don’t like the way you’ve characterized that. So when I’m meeting-

Frank: Okay.

Leigh: With a client and they’re telling me that their goals are, say, for example, to be financially secure. There are ways that I can do that through the legal system, but if I can’t do it through the legal system, I’m going to hook them up with the resources that they need. There are tremendous resources in a lot of communities that are set up to help people who have been subjected to abuse and those are the things you can hook people into.

To have those kinds of conversations as they kind of, “What could you have done differently to avoid this?” To me, that’s about blaming somebody for having been abused. That’s not a conversation that I’m going to have with them. To think about what this other person did, what I’m thinking about is, “How do I help her keep her kids safe? How do I help him keep himself safe? How do I ensure that this person can go to work unimpeded? How do I make sure that if this person is really psychologically damaged, they get the help that they need and I hook them up with the appropriate resources?”

But I think it’s really important for lawyers to know their limitations. A lot of times they don’t and even though I’m a woman and I can connect with my clients and do connect with my clients on a really human level, I know what my limitations are and I want to make sure my clients get the help they need.

Latonya: But Leigh, you’re also an educator. Correct?

Leigh: Yes.

Latonya: Education to me is an art and I understand that lawyers have limitations and are taught to think quiet linear around those limitations. Correct?

Leigh: I don’t teach people to think linearly around their limitations, I teach them to think about what their role is and what they’re competent to do.

Latonya: Okay, so that can become very black and white in my opinion. So, is that also a systemic issue that everyone is playing only their role rather than working together in a circular way?

Leigh: No, because I don’t see it that way. I guess what I see it as is I work in collaboration with people who have expertise that I don’t have and have skills that I don’t have. So, I don’t want to pretend to be able to do the things that they can do, but I’m collaborating with those people to make sure that the services that we get to people are in that kind of a circle. But it’s not my job to deliver them, because I don’t have that background and I don’t have that expertise.

Frank: Do you think that the threat of going to jail deters abuse?

Leigh: I think it deters abuse among people who care about going to jail and here’s what I mean. There are some folks for whom going to jail is a real issue. Right? They really don’t want to go, they’re really afraid of it, they know it’s going to be a problem and the threat of going to jail might deter them.

What’s true about domestic violence is that most often, it’s prosecuted if it’s prosecuted at all, as a misdemeanor assault and that very, very few people are doing any jail time. The real threat of deterrence doesn’t actually exist, because the penalties aren’t that significant. You have to really, really hurt someone badly to get anything more than a misdemeanor assault. Most misdemeanor assaults either get pled out or end up as probation. Almost nobody’s doing jail time for domestic violence and people know that.

Latonya: Wow.

Frank: We kind of played with the concept around abuse and control and the law. Do you believe that the law should cast a wider net or a smaller net or keep it the way it is, particularly, as it pertains to control in my term, abuse, in yours?

Leigh: My concern is that there’s no evidence that criminalization of domestic violence is lowering the rates of domestic violence in the United States. Domestic violence rates have dropped in the U.S. between 2000 and 2010 they dropped, but they dropped exactly as much as the overall crime rate is dropping.

And 2010 on, it’s dropped less than the overall crime rate is dropping. In the U.S. we have poured hundreds of millions of dollars into the legal system and the cops and courts and prosecutors to deal with domestic violence and there’s been very, very little to show for that.

So, I don’t think criminalizing anything else is particularly going to us any favors. I don’t think it’s addressing the problem and I think we need to look at it another way to address the problem, because I don’t think that putting more men in jail and particularly, but let’s be honest, low income men of color, because that’s who ends up in jail, is really helping us solve this problem.

Frank: Okay, that’s who ends up in jail. Does that also tend to be the demographic that ends up not being able to represent themselves in court?

Leigh: Absolutely, but in criminal court in most places, people are entitled to counsel in those criminal cases. It’s on the civil side, that they’re not entitled to counsel. But if you’re entitled to counsel, it means you’re getting a public defender whose got 70 other cases who may or may not have had time to meet with you. The quality of justice that is available to low income people of color in this country is not great and so criminalizing more things to me is not an answer to anything.

Frank: Do you think protective orders give women a false sense of security?

Leigh: I think that they can. I think that when I have clients I say to them, “Look, do you think he’s the kind of person-” again, it goes back to your deterrence question. “Is this the kind of person who’s going to be deterred by the threat of jail,” because a violation of a protective order in most places is criminal? So, if this is a person who’ll be deterred by the threat of jail, then a protective order can be a really useful tool. If this is a person who doesn’t care about the ramifications of violating the order, then it will help you not at all.

For some people it really does send the message, “Look, she’s serious, he’s serious, stay away.” For other people it means nothing at all. And you have to kind of know who the abuser is to get a sense of whether it’s going to work.

Frank: Uh-huh. There’s a term called, the “third feminist movement.” Could you tell us what it is and what your thoughts are on it?

Leigh: Third way feminism is really based around the idea that we need to take into account more than just, basically white middle class women’s opinions about feminism. That-

Latonya: Amen.

Leigh: It’s really, really important-yeah no kidding. And I say that as a white middle class woman. It’s really, really important that voices that have not been heard in the movement the way that they should have been, are heard and are brought to the force. Kimberle Crenshaw, who is a law professor at UCLA, came up with the term, “innersectionality,” which talks about the ways that people’s various facets of identity kind of combine to reinforce their oppression.

And you see that. The experience of a white middle class woman who’s been abused, is very different than the experience of a low income of woman of color, an undocumented woman, a woman who has a disability. All of those things make that experience very different and Third Way Feminism is really concerned with an ensuring that those voices are all being heard and gets the floor. And that is a kind of feminism that I’m absolutely proud to be a part of.

Frank: What’s the Violence Against Women Act?

Leigh: The Violence Against Women Act, is federal legislation that was first passed in 1994 and has been renewed several times since then. It was the first federal law that really dealt with the legal side of domestic violence. When I talked about hundreds of millions of dollars going to cops and courts and prosecutors, that was all made possible through the Violence Against Women Act. The Violence Against Women Act pours money into the criminal justice system. It also gives money, but not as much, to the civil legal system and even less to things like transitional housing and counseling and other kinds of services that women need.

It’s been hugely important in recent years for bringing in more marginalized communities. If you know anything about the fight in 2013, about the Violence against Women Act, the two really big things that happened there were increased protection for Native American women and increased protection for LGBT folks (Lesbian Gay Bisexual Transgender folks). And so, to that extent I think it’s done a really great job of making sure that marginalized communities are getting more attention, but it’s overwhelming focus on criminalization is something that I criticized.

Frank: Last two questions. Why did you write your book? And tell us about it also.

Leigh: The book talks about a lot of the stuff that we talked about today. The problems that I think exist in the legal system and ways that we might solve them. Both kind of ways that we might change the legal system to be more responsive to people’s needs and things that we might do outside of the legal system: things like restorative justice and community-based justice and working with men and working in community to try to address these problems.

And I wrote it because as somebody who’s done this work for 20 years, I had a lot of opinions about ways in which the system really failed my clients. I think as a lawyer and part of my job is to criticize the system from within and we can do some of the best thinking about the ways in which the system falls short, because we’re the ones who deal with it on a day-to-day basis. And I really wanted us to think about what could we be doing both within the system and outside of the system to make sure that people who have been subjected to abuse get what they need.

Frank: And do you have a take-away message overall? A recap or something you want to leave us with?

Leigh: I think the take-away message is this, that the legal system can’t solve the problem of domestic violence and that to the extent that we keep assuming that it can by pouring money into it and by not developing other alternatives, we’re really doing a disservice to lots of people who have been subjected to abuse, particularly in marginalized communities who for various reasons don’t want to have anything to do with state-based systems and so we need to do a better job of thinking about what our alternatives should be.

Frank: That’s a powerful message. You’re listening to Frank Relationships and we’re talking with Leigh Goodmark, author of A Troubled Marriage: Domestic Violence and the Legal System. Ms. Goodmark, one more time, please tell our listeners how they can find you and your book.

Leigh: My book, A Troubled Marriage: Domestic Violence and the Legal System, is available on Amazon.com and Barnesandnoble.com and information about me is available on the University of Baltimore’s website.

Frank: Along today’s journey, we’ve discussed the definition of abuse, domestic violence mediation and reproductive abuse. I hope you’ve had as much fun as I’ve had discussing the legal system and domestic violence. I also hope you’ve learned as much as I’ve had.

As always, it’s my wish for you to walk away from this conversation with a heaping helping of useful information that’ll help you create a relationship that’s as loving and accepting as possible. Let us know what you thought of today’s show at facebook.com/relationshipflove, on Twitter @mrfranklove or franklove.com. On behalf of my producer, Phileta Legette, my assistant producer, Anayza Stewart and my engineer, Jeff Newman, keep rising. This is Frank Love.


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