Associate Professor of Law, Western State University College of Law. Professor Miccio received a J.D. from Antioch School of Law (1985); an LL.M from Columbia University School of Law, where she was the Finklestein Fellow in Law (1997); and is a doctor of laws candidate at Columbia University School of Law. Professor Miccio is a nationally recognized expert in the law of domestic violence. She is the founding director of the Center for Battered Women's Legal Services in New York City, the first comprehensive legal services center in the state of New York and one of three nationwide. She also litigated a precedent-setting case, People v. Barrett, 189 A.D.2d 879 (N.Y. App. Div. 1993), that changed the standard for expert testimony on battered women's syndrome in New York. Additionally, Professor Miccio has lectured and written extensively on the issue of domestic violence and its nexus to child abuse. She has received numerous awards for her teaching, litigating and advocating on behalf of battered women, including "Woman Attorney of the Year" (Kings County District Attorney's Office); "Susan B. Anthony Award" (National Organization for Women); "Public Interest Lawyer Award" (Association of the Bar of the City of New York). Professor Miccio served on the faculty of the New York State Judicial College and was appointed to the New York City Commission on the Status of Women. In 1997 she was nominated by the National Organization for Women to serve on the Presidential Hate Crimes White House Conference.

Unfortunately, the case of Cathy G. is not atypical. It is the staple ingredient of a cultural/legal
system that has constructed an impenetrable wall of privacy that obscures intra-familial violence,
marginalizes the survivors and shields the perpetrators from accountability. n64 State inaction in
the face of such violence is a by-product of this system. State nonfeasance, even where violence
exists and is known to governmental authorities, is firmly rooted in conceptions of the
public/private, of familial privacy and of male power within the family. n65 Indeed, in DeShaney v.
Winnebago County, n66 the United States Supreme Court makes it eminently clear that violence
within the home is a private matter -- concerning only the abuser and the abused. n67

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n64 See ZILLAH R. EISENSTEIN, THE RADICAL FUTURE OF LIBERAL FEMINISM (1981) (arguing that the state contributes to the notion that women are not distinct from their families by refusing to intervene in the family to protect the rights of individual women.).

n65 See Catharine A. MacKinnon, Roe v. Wade: A Study in Male Ideology, in ABORTION 45, 53 (J. Garfield & P. Hennessey eds., 1984) (claiming that abstract privacy protects abstract
autonomy, without inquiring into whose freedom of action is being sanctioned and stating "from
this perspective, the legal concept of privacy . . . has protected . . . male supremacy"). Indeed,
feminist legal scholars have criticized use of a right to privacy as legal strategy rather than equality
theory, because use of privacy theory confined women while absolving the state of its burden to
provide affirmative rights and protections. See Harris v. McRae, 448 U.S. 917 (1980).

n66 489 U.S. 189 (1989).

n67 See id. at 190-95.

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In DeShaney, n68 the Rehnquist Court found no constitutional violation on the part of Wisconsin
when it returned four-year-old Joshua DeShaney to his abusive father after an emergency state
removal. n69 The Court characterized Joshua's severe beatings by his father as private. n70
Because the Court found that Joshua's injuries were not directly inflicted by the state nor inflicted
while the child was in state custody, the Court concluded that the state owed no particularized
duty of protection to the child. n71

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n68 I am not using DeShaney in the classic sense. Thus, I am not making a claim that state
inaction constitutes a federal civil rights violation. Rather, I am using DeShaney to point out how
the public/private distinction shapes attitudes that form the basis for law and legal practices.

n69 See id. at 196-98.

n70 See id.

n71 See id.

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Justice Rehnquist, writing for the majority, affirmed the lower federal court decisions and
reinscribed a narrow conception of due process. n72 According to Rehnquist, the Due Process
Clause confers no affirmative right to governmental aid in the absence of a special relationship
between the victim and the state. n73 A special relationship is triggered only when [*102] the
victim is in the custody of the government. Consequently, when actor and situs of the harm are
private, the state is shielded from constitutional liability. Under this conception of state action,
there is no need to examine how state nonfeasance constructs and perpetuates the harm.

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n72 See id. at 196-97.

n73 See id. at 199-201.

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As in DeShaney, the violence in Cathy G. is "private" -- beyond public control and not the creation of the state. But as the dissenting Justices in DeShaney suggest, "violence itself is public as well as private -- that law is part of the violence and that law itself can be violent." n74 Here, as in DeShaney, law and legal actors were complicit in perpetuating violence.

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n74 Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family
Violence, 43 VAND. L. REV. 1665, 1671 (1990). In DeShaney, the dissenting justices compared Wisconsin's actions to those of "antebellum judges who denied relief to fugitive slaves" on the basis of a formalist legal analysis and "existing legal doctrine." 489 U.S. 189, 212 (Blackmun, J. dissenting).

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... ... ... ... ... ...

[*104] 2. State Failure to Protect

In understanding how domestic violence flourishes, our analysis must extend beyond the
"individual characteristics of the man, the woman and the family and look to the structure of the
relationships, the role of the state and law in underpinning that structure." n83 Women are
subjects of a system of familial terror, supported by state inaction where the veil of familial privacy
shields the perpetrator and the state from accountability. n84

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n83 U.N. CENTER FOR SOCIAL DEVELOPMENT AND HUMANITARIAN AFFAIRS, VIOLENCE AGAINST WOMEN IN THE FAMILY 33 (1989).

n84 See Romany, supra note 55, at 85.

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A shadow state exists where the power of the patriarch is enforced through state acceptance of
domestic violence. n85 Such state condonation is evidenced in failing to arrest in domestic
violence cases, in mitigating murder to manslaughter in cases where the victim is the wife or
heterosexual partner of the perpetrator and in decriminalizing non-consensual sex acts committed
by husbands on their wives. n86 Where the state turns a deaf ear or blind eye to such violence,
the state is transformed into an accomplice in creating the harm. n87 Such was the case in Cathy
G.

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n85 See Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207 (1992) (comparing domestic violence to involuntary servitude).

n86 See generally VAWA SENATE REPORT, supra note 4.

n87 It is interesting to note that in international law the concept of accomplice liability for state
inaction has a long history. Such accomplice liability is being applied in the United States but only
insofar as it is incorporated into public policy. See Velasquez Rodriguez, Case 4 Inter-Am. C.H.R. 61, OEA/ser.C./4 (1988) reprinted in 28 I.L.M. 291 (1989); cf. Rhonda Copelon, Intimate Terror: Understanding Domestic Violence as Torture, in HUMAN RIGHTS OF WOMEN 116; see generally VAWA SENATE REPORT, supra note 4.

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There was ample opportunity for the state to intervene. When the police first arrived at the G.
home, arrest was an appropriate response. Indeed, under New York law, n88 it was mandated
unless the survivor requested otherwise. Here, the police refused to arrest because Cathy would
not file a police report. Yet, filing such reports is not a predicate for an arrest in general and
certainly not in domestic violence matters in particular. n89

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n88 See N.Y. CRIM. PROC. LAW § 140.00 (McKinney 1986 & Supp. 1998).

n89 See id.; see also N.Y. FAM. CT. ACT § 812 (McKinney 1983).

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If, however, there was any question concerning Cathy's resolve to have Thomas arrested, it was
put to rest on the following day. Once physically separated from Thomas and in a safe space,
Cathy called the police and requested an arrest. Rather than make an arrest at this point, the
police refused, conditioning their responsibility to arrest on the actions of the survivor. Cathy
missed her "chance" the night before. Hence, her inability to comply with procedures was
transformed into a power that did not exist -- an ability to construct police policy and shape police conduct.

[*105] The combined response of New York and Georgia law enforcement created an environment where the assailant's conduct went unchecked and unabated. Georgia could have arrested Thomas for stalking or harassment, and New York could have arrested him for felonious assault on at least two occasions. n90 Nonetheless, both jurisdictions chose to take no action.

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n90 Because Thomas used a steel-toed work boot, in New York he could have been charged with second-degree assault. By choking his wife into unconsciousness, an additional charge of second degree assault could have been added. Depending on the extent of injury, Thomas could have faced attempted murder charges. See N.Y. PEN. LAW § 120.10, 110/125.00 (McKinney 1983).

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Such conduct on the part of the state has devastating effects on mothers and children. Through
police avoidance of arrest, the assailant learns that his conduct is outside state concern and state
reach. Violence within the home is extraneous to state concern and, for the survivor, the private
sphere functions as a movable prison. Consequently, the response of New York and Georgia in the G. case reflects a norm of inaction. As this case demonstrates, states' failure to protect results in harms to mother, child and society.

For Cathy G., the harms were particularized to both mother and child, compromising their right to
bodily integrity and to the society of parent and child. n91 Here, the state's failure to take
affirmative action resulted in further abuse, escalation of the terror and the eventual rupture of the
mother-child relationship. The state's refusal to intercede as an affirmative protector of the
mother-child relationship, while being altogether too willing to separate the child from her, makes
the mother a disengaged stranger to the law. Such state inaction contributes to the continued
cycle of abuse.

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n91 Because the state uses the violence as the basis for an abuse/neglect finding against the
mother, the fundamental right to the society of the child/parent is implicated.

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The harms created by systemic inaction extend beyond the sphere occupied by mother and child.
When intra-familial violence continues unabated, it results in a palpable community injury. It is
estimated that over one million women per year seek medical attention for injuries caused by a
male intimate partner. n92 In 1992, the United States Surgeon General Antonia Novello cited
intimate violence as the leading cause of injury to women -- more than car accidents, muggings,
occupational hazards and cancer deaths combined. n93

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n92 See VAWA SENATE REPORT, supra note 4, at 41.

n93 See id. at 38, 41-42.

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Intimate violence is a chief cause for increases in women's and children's homelessness and for
decreases in women's job productivity. n94 Time lost is due primarily to time spent for treatment of injuries, for court appearances [*106] to prosecute claims and to enforce orders of protection and for moves to escape the batterer. n95 Terrorism in the home restricts women's access to the
market and constrains freedom of movement. n96 Intimate violence also distorts relationships
between parent and child and between family and community. n97

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n94 See STAFF OF SENATE COMM. ON THE JUDICIARY, 102ND CONG., REPORT ON THE VIOLENCE AGAINST WOMEN ACT OF 1991 53 [hereinafter VAWA OF 1991 SENATE REPORT]; see also Joan Zorza, Women Battering: A Major Cause of Homelessness, 25 CLEARINGHOUSE REV. 421 (1991).

n95 See generally VAWA OF 1991 SENATE REPORT, supra note 94.

n96 See id.

n97 See Evan Stark & Anne H. Filtcraft, Women and Children at Risk: A Feminist Perspective On Child Abuse, 18 INT'L J. HEALTH SERVICES 97, 114-16 (1988).

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Finally, intimate violence contributes to trauma in children. Studies confirm what advocates for
children and battered women have argued -- that domestic violence may impact adversely on
children by inducing sleep disorders, ulcers, nightmares, enuresis and behavior problems. n98
Children who witness domestic violence also may display a wide range of social disorders,
including learning disabilities, truancy and criminal behavior. n99 Hence, failure to locate the
source of such violence and to prevent such violence places children at further risk of harm.

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n98 See Daniella Levine, Children in Violent Homes: Effects and Responses, FLA. B.J., Oct.
1994, at 62-65.

n99 See Alan Rosenbaum & K. Daniel O'Leary, Children Who Witness Woman Battering, 14 LAW & POL'Y REV. 169, 170-73 (1992).

... ... ... ... ...

[*116] 2. The Gendered Nature of State Inaction

In concluding that state remedies were inadequate to address crimes against women, the Senate
Judiciary Committee found that "crimes disproportionately affecting women are treated less
seriously than comparable crimes affecting men." n152 In a 1989 study conducted in Washington,
D.C., 85% of family violence cases in which a woman was found bleeding from wounds did not
result in the arrest of her male abuser, simply because the violence occurred between intimates.
n153 Relying upon a United States Department of Justice report, the Senate Judiciary Committee
noted that one-third of domestic violence attacks, if reported, would be classified as felony rapes,
robberies or aggravated attacks. n154 Of the remaining domestic attacks, two-thirds were
classified as simple assaults, although nearly one-half involved "bodily injury at least as serious as
the injury inflicted in 90 percent of all robberies and aggravated assaults." n155

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n152 VAWA Senate report, supra note 4 (citing

U.S. DEPARTMENT OF JUSTICE NATIONAL INSTITUTE OF JUSTICE, CIVIL PROTECTION ORDERS: LEGISLATION, CURRENT COURT PRACTICE AND ENFORCEMENT, at 4).

n153 See VAWA Senate report, supra note 4 (citing KAREN BAKER ET AL., JOINT PROJECT, D.C. COALITION AGAINST DOMESTIC VIOLENCE & WOMEN'S LAW & PUBLIC POLICY PROJECT AT GEORGETOWN UNIVERSITY LAW CENTER, REPORT ON D.C. POLICE RESPONSE TO DOMESTIC VIOLENCE (1989).

n154 VAWA Senate Report, supra note 4.

n155 Id.

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State judicial systems did not remain unscathed. The Senate report cited the Iowa Courts Task
Force Report n156 as an example of systemic neglect. The report noted that a majority of judges
question the character of survivors of domestic violence or tend to doubt the seriousness of the
abuse. n157 Judicial incredulity was expressed even in the face of bruises, knife wounds and
broken bones. n158

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n156 As an advisor to the New York State Task Force on Women in the Courts, I can confirm that the findings in Iowa's report were consistent with New York's. Based on conversations with Lynn Hecht-Schfran, director of NOW-LDEF's Judicial Education Project, I can confirm that the
problems with the judiciary are manifold.

n157 See VAWA SENATE REPORT, supra note 4.

n158 See id.

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Such judicial disbelief is framed by two assumptions. The first assumption is that it is women's
nature to lie. In Illinois v. Phillips, n159 decided in 1989, the Court permitted a Hale instruction in a rape case, n160 opining that "This statement has been approved by this court . . . [because] . . . it is just as accurate and viable today as it was when . . . first [*117] uttered by Lord Hale." n161
Women's narrative then was presumed untrustworthy.

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n159 536 N.E.2d 1242 (Ill. App. Ct. 1989).

n160 The Lord Hale instruction warns that rape is a charge "easily to be made and hard to be
proved, and harder to be defended by the party accused tho'ever so innocent." Id. at 1246.

n161 Id.

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In domestic violence cases that involve allegations of physical abuse, visible injuries as a
precondition to judicial believability are the functional equivalent of the Hale instruction. Thus, the
underlying assumption that gender determines credibility shapes judicial inquiry in cases where
males perpetrate violence against women.

The second assumption concerns the battered woman's continued presence in the home or in the
relationship. Here, the court conditions existence of the harm on her decision to leave or to stay
with the batterer. n162 And where she remains with the batterer, courts minimize the violence or
dismiss it completely. n163

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n162 See generally TWICE ABUSED, supra note 27; see also MESSINGER & ELDGREDGE,
supra note 75.

n163 See VAWA SENATE REPORT, supra note 4.

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Gender bias then contributes "to the judicial system's failure to afford protection of the law to
victims of domestic violence." n164 Simply put, battered women are treated as second-class
citizens because of the states' failure to investigate, arrest, prosecute and punish the
gender-based crime of intimate violence.

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n164 See id. at 49.