Category Archives: Abuse

The Rule of Thumb and Progress (History and Domestic Violence)

There once was a time when marriage was a complete bar to the charge of battery.  Then that complete defense was replaced with the “rule of thumb;” that anything used to beat one’s wife needed to be smaller than one’s thumb.  Then starting with the reign of Charles II in the 1600’s, the rule of thumb was slowly eradicated.  Charles II was influenced by his wife Catherine of Braganza, who had witnessed violence by the “rule of thumb” and thought the measure of battery on one’s wife should be the effect, not the tool used.  She also changed history in other ways, as Catherine is also credited with introducing Britain to tea.

In the late 1800’s American courts were still struggling with whether marriage was a complete defense to battery, whether the “rule of thumb” applied instead, or if Charles II was right and the effect of the beating was the correct measure.  The tendency was for the courts to view the “family government” as its own insular unit that could manage its own affairs and that it was not the place of the courts to insert themselves into family matters.

One case from the Supreme Court of North Carolina in 1868 is particularly illustrative.  The opinion finds that “Defendant struck Elizabeth Rhodes, his wife,…without any provocation except some words uttered by her…[however, the court] will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence.”  State v. A.B. Rhodes (1868) 61 N.C. 453.  The “respect” for the privacy of the family unit was so great that spousal battery was a trifling matter.

The hands-off approach of days-past was ridiculous and I would argue (correctly) that misogyny was cloaked in privacy.  However, the family law courts of today are more intrusive than any other form of government and there is something to be said for limiting the role of the judiciary.  Today, Judges make orders regarding school schedules, spousal support, and who gets the family dog.  Pragmatically, when spouses can’t agree on anything—someone simply has to decide.  I hope that someday the role of the judiciary can become less intrusive while still redressing harm and vindicating spouse’s rights.

Our domestic violence system is not perfect today.  Many times law enforcement “misses the boat,” affected spouses are afraid of reprisal, or they have difficulty presenting their case without a lawyer.  But, we are making progress.  Our courts have upheld the complete defense of marriage to both battery and rape, then shifted to a “rule of thumb” test, then focused on the effect of the battery, and now we have a slew of acts that qualify as domestic violence.  Have a cup of tea and thank Catherine of Braganza for her guidance along the way.

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Filed under Abuse, Family Law, Mindless Academia, The Judiciary

Domestic Violence Restraining Order 101 (The Basics)

There are several kinds of restraining orders, one of which is a domestic violence protective order (DVPO).  There are basically two main requirements to get a DVPO: A Special Relationship and Abuse.

A)      A Special Relationship including:

  1. Dating,
  2. Shared children,
  3. Related by Blood,
  4. Married, or
  5. Cohabitants.
  6. NOTE: If you don’t have one of these special relationships, you may still qualify for a Civil Harassment Protective Order under Code of Civil Procedure § 527.6.

B)      Abuse such as:

  1. Stalking,
  2. Threatening,
  3. Sexual Abuse,
  4. Destruction of Personal Property,
  5. Harassing Phone Calls, or
  6. Physical Violence.

What Constitutes Sexual Abuse?

Sexual abuse is not limited to aggravated rape.  Many women are coerced into sex, give consent while under the influence, or have sex against their will with a physically forceful offender.  Coerced sex is sex involving intimidation or extreme psychological pressure, and is sexual abuse.

What Does a DVPO Do For Me?

DVPO’s can do lots of different things.  Specific remedies depend on the situation, but remedies can include:

  • Keeping the offender away from you
  • Keeping the offender away from other family members
  • Preventing the offender from calling you
  • Kicking the offender out of the house
  • Taking away the offender’s right to possess firearms
  • Making the offender pay certain bills
  • Giving you custody of children
  • Giving you custody of pets
  • Making the offender pay your legal fees related to the proceeding

How Long Does the DVPO Last?

The length of the order is determined by the judge, but can initially be up to 5 years.  Later on, orders can be renewed for even longer if a judge finds there is good reason.

Why Would I Want a Lawyer?

It is possible to get a DVPO without a lawyer, but it can be very helpful to have one.  The entire situation—confronting the abuser in court, testifying about what happened, and being in front of a judge can be very stressful.  Having a lawyer there to guide you through the process and worry about cross-examining the witness can make the entire situation less stressful.  In addition, some conduct not on the court form may be considered abuse and may strengthen your case against the other party.

What Does it Cost?

There are no court filing fees for a DVPO.  Depending on the situation, you may be to force the offender to pay you back the money you spent on a lawyer.  Our fees vary depending on the complexity of the case.  We don’t waste your time, we don’t take unnecessary steps, our billing is fair, and our rates are lower than many other lawyers in the county.

Where Do I Go in the Meantime?

First of all, if you are in danger and need help, call “911.”

 

If you are in Ventura County and need to move away from an abusive spouse and don’t know where to go, please contact Interface Children & Family Services.  Interface is in Camarillo, CA and has a 24 hour Domestic Violence Hotline @ 1 (800) 636-6738.

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Filed under Abuse, Family Law, Pets, Sex