Torture at Home: Borrowing from the Torture Convention to Define Domestic Violence

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Hastings Women's Law Journal


The most potent weapon in the hands of the oppressor is the mind of the oppressed.' Men are taught to apologize for their weaknesses. Women for their strengths. Fourteen-year-old Josh stared mindlessly at his computer screen, unsure of how to respond to his father's latest angry rant. He had sent his father an email the night before, asking if they could postpone their weekend camping trip. Josh wanted to attend his friend's birthday party and get a good night's sleep in a proper bed before his upcoming final exams. To put it mildly, his father had not responded well to Josh's request. He had demanded that Josh keep their "camping date" and called Josh "selfish," "lazy," (presumably, he thought Josh did not like to hike or "rough it" in the wild), "a mama's boy," and a number of other demeaning names and put-downs. The truth was that Josh liked camping and hiking and desperately wanted to have a good relationship with his father. At the same time, he knew from his fourteen years of experience with his father that the only way to get along with him was to agree with him 100 percent of the time. Ironically, though his father had called him a "wimp" in his reply message, Josh felt like a wimp only when he gave in to his father's demands. He knew that his resistance was futile. As he felt a nauseating combination of frustration, depression, and fear of failure, Josh typed "ok" and hit the send button. On Friday afternoon, Josh's father surprised him by picking him up directly at school. Josh pleaded with his father to drive by his mother's house so he could pick up some study materials that he had planned to review that weekend, but his father glared at him and asked, "You're not going to start that up again, are you?" Josh did not even know what "that" was, but he knew better than to ask for clarification. When they arrived at their campsite, Josh's father instructed Josh to set up the tent, and then set off to find a "nice, long hike" for them to take the next day. Josh tried to set up the tent but could not find any directions, and various pieces of equipment appeared to be missing. He sat down at a picnic table next to his father's van and waited for him to return to their campsite. When Josh's father returned, he started shouting at Josh at the top of his lungs, accusing him of being lazy and disrespectful. Josh was terribly embarrassed as a number of neighboring campers heard the commotion and looked over at them. Josh's father then said that Josh must be "brain-dead" because he had not realized that the broom they had brought with them in the back of the van actually served as the tent's center pole. He then handed Josh the broom and instructed him to hold it over his head in a horizontal position and take ten laps around the long circular driveway of the campground, saying this run would help Josh remember how to assemble the tent in the future. As Josh was a member of the junior varsity football team at his school, the run did not take a big toll on him physically. The shame he felt as he passed other campers on his run, however, was excruciating. After two long, mostly silent days of hiking, Josh and his father sat down to have their last meal before they drove back home. While eating, they noticed that the family at the campsite next door was packing up to return home as well. The father said he was going to fill their van with gas and would return in half an hour to an hour, and then the mother and two girls left the campsite for several minutes. After ensuring there were no witnesses, Josh's father instructed Josh to grab the family's big cooler and radio that were sitting on the nearby picnic table. Without thinking, Josh said, "Dad, that's really crazy." His dad towered over him and, in a low, threatening voice, said that if Josh knew what was good for him, he would do exactly as he was told or he would find himself walking all the way back home. With great trepidation, Josh went over to their neighbor's campsite, placed the radio on top of the cooler, and carried both back to his and his father's campsite. Just as he was heading back, the father of the family next door pulled up in their van and asked Josh what he was doing. Josh looked over to his father for guidance as to what to say, and his father then apologized profusely to this man and explained that he had been having a lot of trouble with Josh lately. He said Josh had probably intended to steal the items, if only for a prank. In fact, Josh's father remarked to the neighbor, "You probably even heard me discipline him on Friday night." The man nodded sympathetically, looked Josh straight in the eye, and said, "Now you listen to me, son-I'm going to do your dad a big favor and not call the cops. But you'd better start respecting other people, including your father. Your life is just going to keep going straight downhill until you can be honest and admit that you 're the real problem." As unpleasant as Josh's life is, he nonetheless possesses a number of advantages over most abused children and adolescents in this country. To begin with, on some level, he understands that his father is abusing him. In addition, he is old enough to testify in his parents' child custody dispute. Perhaps he even lives in one of the approximately twenty-five states that recognizes a rebuttable presumption against granting sole or joint custody to a parent who has perpetrated domestic violence in the recent past. It is possible that his father's email communications can be admitted as evidence of his father's mental abuse in his parents' custody proceeding. As indicated, most minors who are being abused by a parent or other guardian are not so lucky. Many such minors are too young to testify in a custody proceeding, and some of them may not even understand that they are being abused. Additionally, many minors are likely to live in a state that either: 1) does not respect a rebuttable presumption against granting joint custody to a parent who has committed domestic violence or 2) does respect such a rebuttable presumption but likewise recognizes a rebuttable presumption in favor of granting joint custody to both parents so that these two presumptions counter each other. At the same time, even an adolescent in a state such as California faces a formidable challenge in convincing a judge or custody mediator that custody should be denied to a parent who has been verbally or emotionally abusive. To begin with, mental abuse is notoriously difficult to prove, given that it not only typically occurs in private, but it also does not leave telltale scars that other witnesses may see. Even more importantly, though, the definition of domestic violence utilized by the overwhelming majority of states does not encompass mental abuse (other than mental abuse caused by an abuser's threat of future physical harm or sexual assault, refusal to refrain from contact with the victim, or invasion of the victim's privacy). As a result, even if Josh lives in a state that recognizes a rebuttable presumption against granting sole or joint custody to a parent who has committed domestic violence, a custody court today likely would order Josh to spend significant time alone with his father in a post-separation custody arrangement. This article utilizes a psychological or behavioral perspective to analyze the domestic violence laws in this country and it concludes that, at the very least, states should amend their child custody laws to include "mental abuse," a term which is used in this article to refer to verbal, emotional, and psychological abuse, each of which is discussed further below. Section II of this article explains the behavioral approach to law, while Section III provides background information regarding the phenomenon of domestic violence. Section IV discusses the major theories of domestic violence that have been proposed to date. Section V explains the psychological theory of domestic violence, which strongly suggests that the legal system should implement more effective deterrents and sanctions for the mental abuse of one family member by another, especially when the victim is a child. Section VI discusses the domestic violence laws in effect in the U.S. states, paying particular attention to how states' child custody laws treat domestic violence in general and mental abuse in particular. Section VII addresses possible constitutional objections to states' inclusion of mental abuse in their definitions of domestic violence. Section VIII reviews legal prohibitions against other forms of abuse of power, including bullying, hazing, torture, and other cruel, inhumane, or degrading treatment or punishment. Section IX sets forth a definition of domestic violence that incorporates mental abuse. Finally, Section X concludes by proposing that states adopt a new, psychologically-sound definition of domestic violence that encompasses all forms of mental abuse, at least for use in child custody proceedings.

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Publication Date

Summer 2013