Domestic Violence No-Contact Orders and the Autonomy Rights of Victims

Boston College Law Review, Dec 1999

By Christine O'Connor, Published on 07/01/99

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Domestic Violence No-Contact Orders and the Autonomy Rights of Victims

Domestic Violence No-Contact Orders and the Autonomy Rights of Victims Christine O'Connor 0 1 2 0 Thi s Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Christine O'Connor, Domestic Violence No-Contact Orders and the Autonomy Rights of Victims , 40 B.C.L. Rev. 937, 1999 2 Part of the Criminal Law Commons, Family Law Commons , Law and Gender Commons Follow this and additional works at: the Law Enforcement and Corrections Commons Recommended Citation - Article 5 She sat in the first row, her children by her side. She was easy to pick out of the crowded courtroom. In part, because the regulars—the probation officers, the interpreters, the victims' advocates, the daily courtroom watchers—of the Rhode Island Superior Court are easily recognizable. Also, although she wasn't keeping an eye out for her lawyer—she didn't have a lawyer—she nervously watched everything and everyone, sure that someone would ask her to leave. She wore her best outfit and kept the kids quiet and still, showing proper respect. When her name was read there was the moment of hesitation seen time and again in the courtroom. Should she stand up? Go through the gate, into the inner sanctum where the judge sat? As she half-stood, looking for a signal from someone—a uniform, a suit, a robe—who knew what she was supposed to do, she heard the judge ask the prosecutor for a recommendation. Without looking up, the prosecutor indicated that the Attorney General's office would recommend denial. She didn't know the woman speaking, had never met her. Before she had managed to straighten her skirt, the judge announced, "Motion dismissed," and turned to the next file. She looked around the room for a clue, for someone to tell her what had just happened. The sheriff approached her, knowing, as the regulars did, why she was there. He explained that her application to withdraw the no-contact order issued against her husband had been denied. "Maybe you should try again in three months?" "But I didn't get to talk, I didn't get to tell them . . . who is she to decide . . . they never asked me why." Scenes such as this can be witnessed several times a week in many courtrooms of the United States. In Rhode Island, the state decided what was best for this woman and her family without giving her an opportunity to be heard. Rhode Island is not alone in this approach; many other states, in the wake of growing public awareness, have developed similar statutes and policies to prosecute domestic violence offenses. It has taken more than twenty years to criminalize conduct that the criminal justice system has traditionally treated as an untouchable, "private" family matter. Today, strong anti-domestic violence laws and policies are in place and functioning, albeit to varying degrees, throughout the country. These laws are primarily intended to protect individuals and society as a whole from the effects of domestic violence. Unfortunately, they have also tended to remove the victim from participating in essential decisions concerning her family, its structure and the prospects for resolution within the family. It may now be time to give the victim back her voice. In order to explore ways to reintroduce the victim's preferences into domestic violence jurisprudence, Part I of this Note will review the development of modern domestic violence law.' Part II will examine the personal and private autonomy rights at stake in domestic violence cases, as well as the constitutional decisions and tests that protect these rights. 2 Part III will propose a first step towards reinstating the victim and her wishes into the process.' To this end, the Note will focus on the current use of criminal protection orders—known as no-contact orders—by prosecutors and courts. Moreover, it will examine how the victim's wishes can be integrated into these decisions in the future :1 The procedural hearing in which the no-contact order is typically imposed, pre-trial release, provides an ideal setting in which to balance the State's interest in addressing crimes of domestic violence and the private autonomy interests of the victim. I. THE DEVELOPMENT OF DOMESTIC VIOLENCE LAW Until relatively recently, the criminal justice system had not aggressively pursued violence between domestic partners. 5 Not until the 1970s did the public perception of battered women and their abusive partners begin to change significantly. 6 With heightened public awareness, pressure to change the criminal justice system increased and the system began to respond.? As domestic violence became recognized as a societal and public safety issue, the need for legal intervention bet See infra notes 5-100 and accompanying text. 2 See infra notes 101-55 and accompanying text. 3 See infra notes 156-228 and accompanying text. 4 See infra notes 211-28 and accompanying text. 5 See generally Pamela Blass Bracher, Mandatory Arrest for Domestic Violence: The City of Cincinnati's Simple Solution to a Complex Problem, 65 U. Cur. L. REV. 155,160-63 (1996); Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 FORDHAM L. Rev. 853,853-55 (1994); Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV, L. REv. 1849, 1857-58 (1996) [hereinafter No Right to Choose]; Kathleen Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 WASH. L. REV. 267, 267-68 (1985). 6 See Waits, supra note 5, at 267-68. 7 See id. at 268. came apparent, resulting in domestic violence legislation on both the state and federal levels. 8 Both English and American law historically condoned wife beating:4 The earliest reported case of a woman charging her husband in court for domestic violence is a fourteenth-century English case, Neffeld v. Neffeld.") The court, yielding to English common law—which treated married women as adjuncts of their husbands with no independent legal identity or status—denied the woman relief and sent her back to her marital home." Following the English tradition, American women were denied independent legal identities until the early part of the twentieth century." State laws legalizing wife beating were prevalent throughout the United States." Not until 1920 did all states remove laws permitting, or enact laws prohibiting, wife beating." Another fifty years would pass, however, before the criminal justice system would abandon nonintervention policies, such as non-arrest policies, and begin treating domestic violence as a serious crime." Historically, both social norms and limits to legal authority typically resulted in nonintervention and non-arrest policies in police departments throughout the country." Domestic violence calls were assigned a low response priority, and mediation attempts by responding officers were encouraged while actual arrests were discouraged." Separating the parties was often the extent of police intervention. This included removing either the abuser or the victim from the home and informing the victim of the ramifications of arrest—loss of income, court costs and public testimony." Successful court challenges and the accompanying publicity instigated changes in police policies and led to legislative responses on both the state and federal level. 19 In 1977, in Bruno v. Codd, one of the earliest challenges was launched in a suit against the New York City Police Department and the New York Family Court." The plaintiffs claimed that police officers had failed to take action against abusive spouses even when evidence of assault was unmistakable. 21 Instead, the officers would advise a victim that she could not act when her abuser was her spouse and that her only remedy was to obtain an order of protection from the Family Court. 22 The Family Court failed to advise the battered wives of their statutory right to petition immediately for such orders, instead assigning the women conference dates often weeks or months in the future." The New York Supreme Court found that the police failed to perform their duty to protect battered wives as they would any other similarly situated citizen by pursuing a discriminatory police policy." The court also found that the Family Court failed to fulfill its statutory duties and responsibilities, showing a callous disregard for women in need of immediate protection from their abusive husbands." The trial court, in denying the police department's motion to dismiss, stated: [f] or too long, Anglo-American law treated a man's physical abuse of his wife as different from any other assault, and, 18 See Bracher, supra note 5, at 161. 19 See id. at 163-65, citing Scott v. Hart, No. C-762395 (N.D. Cal., filed Oct. 28, 1976). In a class action suit against the Chief of Police of Oakland, California for failure to respond or ineffectual response to domestic violence calls which was settled out of court, the settlement gave the plaintiffs most of the relief they sought including an agreement to: ( 1 ) quicken response to domestic violence calls; (2) arrest whenever probable cause was found; and (3) prohibit the use of adverse consequences to pressure victims to drop charges. See id 28 See Bruno v. Codd, 396 N.Y.S.2d 974, 976 (N.Y. Sup. Ct. 1977), Iry d, 393 N.E.2d 976 (N.Y. 1979). 21 See id. at 976. In one case, the police arrived after a husband had beaten his wife and "brandished a straight razor ... tore [the victim's] blouse off [her] body and gouged [her] face, neck, shoulders and hands with his nails, in full public view." Id. The police advised the woman that they could do nothing since it was a family matter. See id. " See id. "See Bruno, 396 N.Y.S. at 976, 978. 24 See id. at 977. Yb See id. at 979. indeed, as an acceptable practice. If the allegations of the instant complaint—buttressed by hundreds of pages of affidavits—are true, only the written law has changed; in reality, a wife beating is still condoned, if not approved, by some of those charged with protecting its victims." Following the denial of its motion to dismiss, the New York Police Department entered into a consent decree with the plaintiffs." The consent decree provided for changes in police policies to improve response time and arrest rates of domestic violence complaints. 28 The New York Court of Appeals dismissed the charges against the New York Family Court after procedural changes were announced. 29 These changes, later backed by a legislative amendment to the Family Court Act, required court clerks to advise battered women of their rights to an immediate protective order hearing before a judge. 5° In 1984, in Thurman v. City of Torrington, a federal jury in the United States District Court for the District of Connecticut awarded the plaintiff, a battered wife, $2.3 million on the grounds that the Torrington police were negligent in their failure to protect her from her abusive spouse. 31 The court held the police department liable for its non-arrest policy in domestic violence cases, reasoning that the policy was, in effect, sexual discrimination. As a result, police departments and legislatures throughout the United States, concerned about similar lawsuits and liabilities, began to replace non-arrest and nonintervention policies with more aggressive policies. 52 The first step for many jurisdictions was to provide police officers with the legal authority to arrest at the scene of a domestic assault." Previously, unless a misdemeanor occurred in the officer's presence or the officer could establish probable cause that a felony had taken place, the officer legally could not make a warrantless arrest. 34 When, in 1984, the United States Attorney General recommended arrest as the standard police policy for domestic violence cases, legal reform efforts were initiated nationwide 55 Based on this recommendation, all fifty states now provide for warrantless arrests, by making an exception to the in-presence requirement when an officer has probable cause to believe that a misdemeanor has been committed or a restraining order has been violated." These statutes can vary in the amount of discretion accorded to the police officer: ( 1 ) permissive arrest statutes afford police officers considerable discretion; (2) preferential arrest statutes limit police discretion; and (3) mandatory arrest statutes completely restrict police discretion. 57 Currently, most states have implemented either preferential or mandatory arrest statutes." Although the underlying aim of these statutes is to remove institutional resistance to arrest by the police, the statutes also remove the victim as the decisionmaker. With stronger arrest policies in place, and-domestic violence advocates next turned their attention to reform of prosecution practices.59 Like other members of the criminal justice system, prosecutors historically considered domestic violence a private crime and thus, for the most part, failed to initiate or follow through on charges. 4° In addition, victim noncooperation and reluctance or refusal to participate were cited as reasons for not pursuing charges." If victims made their reluctance known, prosecutors were likely to dispose of the cases 33 See No Right to Choose, supra note 5, at 1859. 34 See id 35 See id. at 1859 n.32, citing ATTORNEY GEN.'S TASK FORCE ON FAMILY VIOLENCE, FINAL REPORT 22-23 (1984). 36 See No Right to Choose, supra note 5, at 1859. 37 See Bracher, supra note 5, at 166, 168-69, 170; Paradox of Hope, supra note 8, at 1518-19, 1520. 38 See Paradox of Hope, supra note 8, at 1519 & n.47. Preferred arrest statutes are generally worded "should arrest," encouraging but not requiring officers to arrest when probable cause is encountered. See id. at 1519 n.47. In contrast, jurisdictions following mandatory arrest policies have "shall arrest" within the statutory language. See id. 39 See No Right to Choose, supra note 5, at 1860. 40 See Corsilles, supra note 5, at 866. Although prosecutors are given "great latitude and little accountability" in deciding whether to forgo or proceed in domestic violence cases, they remain reluctant to proceed with domestic violence cases. See id. at 866-67. Prosecutors remain hampered by a complex set of motivations (such as maintaining conviction rates) and beliefs that the violence is inconsequential, victims are to blame or that harm does not reach societal proportions. See ki. at 867. 41 See No Right to Choose, supra note 5, at 1860. Sometimes charges were dropped solely on by dropping the charges.° Approximately fifty to eighty percent of cases, depending on the jurisdiction, were thus disposed.' Many jurisdictions responded to this situation by limiting or removing the prosecutor's discretion when deciding whether to proceed with a case.'" The most aggressive prosecution policies are those of mandatory prosecution. Mandatory prosecution policies, also referred to as nodrop policies, are intended to check prosecutorial discretion. Under a no-drop policy, a prosecutor cannot routinely dismiss charges at the victim's request, but rather must pursue the case and elicit the victim's cooperation. 45 These policies represent both the intent of the state to pursue domestic violence cases and the protocol by which to do so, despite nonparticipation by the victim." No-drop policies underscore that the state, and not the victim, is the party to the prosecution. 47 For example, Rhode Island state law imposes a duty on the court to "make clear to the defendant and the victim that the prosecution of the domestic violence action is determined by the prosecutor and not the victim."' If after charges have been filed the victim indicates that she will not support the prosecution, the no-drop policy directs prosecutors to ( 1 ) continue, notwithstanding the victim's reluctance; (2) convey to the victim that the state controls the case; and (3) facilitate victim participation in the prosecution. 49 Several perceived benefits have been the prosecutor's expectation that the victim would ultimately change her mind. See Corsilles, supra note 5, at 867. It continues to be difficult to determine the extent to which victims are influenced by the prosecutor's reluctance to move forward. See id. Prosecutors have discouraged victims by: ( 1 ) conveying disbelief; (2) actively outlining the disadvantages of pursuing the charges; (3) delaying the institution of charges; and (4) abdicating control for dismissing the case to the victim. See id. at 868-69. Many victims, discouraged by the legal process, may then decide that the cost of proceeding with the prosecution outweighs the potential benefits. See id. at 870; see also Donna Wills, Domestic Violence. The Case for Aggressive Prosecution, 7 UCLA WOMEN'S LJ. 173, 173-74 (1997) (stating that, because the victim will often decline to press charges, prosecutors cannot rely on the victim of domestic violence to vindicate the Slate's interests in domestic violence cases). 42 See Corsilles, supra note 5, at 857. 43 See id. 44 See id. at 874; No Right to Choose, supra note 5, at 1861-62. 43 See Corsilles, supra note 5, at 859; No Right to Choose, supra note 5, at 1862. 46 See Corsilles, supra note 5, at 858; No Right to Choose, supra note 5, at 1862-63. 47 See Corsilles, supra note 5, at 858; see also Wills, supra note 41, at 173 (asserting that the prosecutor's client is the State, not the victim). 49 R.I. GEN. LAWS § 12-29-4(b) (4) (1997). 49 See Corsilles, supra note 5, at 859. Viewing mandated participation as a better choice than dismissal when encountering an uncooperative witness, Professor Hanna acknowledges that a woman's sense of autonomy is threatened by the compromise. See No Right to Choose, supra note 5, at 1856. Forcing the witness to take the stand may be avoided if the prosecutors gather enough outside evidence. See id. at 1867. Participation must be mandated, however, if necessary to proceed with the case. See id. at 1857. Professor Hanna states that "the societal benefits gained attributed to proceeding with the prosecution with or without the victim's cooperation. Among these are reductions in the dismissal rates, increased victim cooperation and minimization of the victim's value to the batterer as an ally in no-drop jurisdictions. 50 There are also recognized drawbacks to these policies. When compelled against her will to participate in a proceeding, the victim's right to self-determination is yet again subjugated—this time to the prosecutor. 51 The decision whether to prosecute could be the victim's opportunity to take a proactive step toward removing violence in her life and taking control in a relationship in which she previously was powerless.52 A policy which mandates the removal of this opportunity and instead replaces one domination with another may drive the reluctant victim to side with her battering partner, further entrenching her in the abusive relationship." Pro-prosecution policies, whether they are no-drop policies or less stringent approaches to limiting prosecutorial discretion, vary greatly among jurisdictions. 54 At the federal level, the Violence Against Women Act of 1994 ("VAWA") attempts to provide a multifaceted national response to the issues of domestic violence, including extensive funding to states establishing pro-prosecution policies. 55 Recently the United States Court of Appeals for the Fourth Circuit, in Brzonkala v. Virginia Polytechnic Institute, found one provision of VAWA, which provided for a private cause of action against perpetrators of violence motivated by gender, to exceed Congress' Commerce Clause authority. 56 The court did not examine any other provision of the act. 57 Provisions authorizing through this criminal justice response to domestic violence far outweighs short-term costs to women's autonomy and collective safety." Id. When aggressive policies mandate prosecution, the incentive for the batterer to manipulate or coerce the victim is minimized since she no longer controls the process. See id. at 1865. Suggesting that mandated participation continue through the life of the case, Professor Hanna would require the woman to sign statements, be photographed to document injuries, produce her children if subpoenaed, appear in court and, if necessary, be forced to testify. See No Right to Choose, supra note 5, at 1867. Since 90% to 95% of cases end in plea bargains, instances of forced testimony would be rare. See id. 55 See Corsilles, supra note 5, at 873-74; Wills, supra note 41, at 180. 51 See No Right to Choose, supra note 5, at 1865-66; Linda G. Mills, Intuition and Insight: A New Job Description for the Battered Woman's Prosecutor and Other More Modest Proposals, 7 UCLA WostEres L.J. 183,191 (1997). 53 See Mills, supra note 51, at 191. 53 See id. at 190-91. 54 See Corsilles, supra note 5, at 859-60; No Right to Choose, supra note 5, at 1864. 55 See 42 U.S.C. § 10410(a) (2) (E) (1998). 56 See Brzonkala v. Virginia Polytechnic Inst., Nos. 96-1814,96-2316,1999 WL 111891, at *2 (4th Cir. 1999); see also 42 U.S.C. § 13981 (establishing a federal substantive right to be free from crimes of violence motivated by gender" and a tort action allowing compensatory and/or punitive damages and injunctive, declaratory or other appropriate relict). 57 See Brzonkala, 1999 WL 111891, at *2. federal grants to fund state domestic violence coalitions, which further the purpose of domestic violence intervention and prevention through activities such as "the adoption of aggressive and vertical prosecution policies," have not been challenged and remain in effect.° Furthermore, the federal government continues to make available "model state leadership grants" to ten states with statewide policies that "authorize and encourage prosecutors to pursue cases where a criminal case can be proved, including proceeding without the active involvement of the victim if necessary; and . . . implement model projects that include . . . a 'no-drop' prosecution policy." 59 In addition, four states have passed legislation favoring either pro-prosecution or mandatory prosecution policies in domestic violence cases, but the nuances of these laws vary by state. 60 Florida law mandates criminal prosecution as the "favored method" for enforcing domestic violence injunctions and requires each circuit to "adopt a pro-prosecution policy for acts of domestic violence. "6i Utah law also encourages the adoption of no-drop policies and specifically disallows dismissal by the prosecutor or judge at the victim's request, unless there is "reasonable cause" to think that the victim would "benefit." 62 Wisconsin's statute directs all district attorneys' offices to "develop, adopt and implement written policies" that are not based on the victim's consent to prosecute. 65 Minnesota, adopting a different approach, requires city and county attorneys to develop and implement a plan to expedite and improve the efficiency of domestic abuse cases, including methods for gathering evidence exclusive of the victim's testimony.° Furthermore, some municipalities have implemented pro-prosecution policies, either as written protocols or through unwritten office 68 See id.; 42 U.S.C. § 10410(a)(2)(E) (1998). " 42 U.S.C. § 10415 (b) (3) (A)-(B) (1998). States that have implemented a "vertical prosecudon" policy may also qualify for the grants. See id. Under vertical prosecution policies, a specialized prosecutor or prosecution unit is assigned the case after arraignment and stays with the case through its completion. See No Right to Choose, supra note 5, at 1910. 62 See, e.g., FIA. STAT. ch. 741.2901(2) (1997); MINN. STAT. § 611A.0311(b)(4) (1997); UTAH CODE ANN. § 77-36-2.7 (1998); Wm. STAT. § 968.075(7) (1997). 61 FLA. STAT. ch. 741.2901(2). In addition, the statute requires each state attorney to develop specialized units or prosecutors for domestic violence cases. See id. ch. 741.2901( 1 ), 62 See UTAH CODE ANN. § 77-36-2.7( 1 ) (e) (1998). " See WM. STAT. § 968.075(7) (1997). In addition, the prosecutor cannot decide against prosecution because of an absence of visible injury or because of the relationship of the persons involved in the incident. See id. § 968.075(7) (a) ( 1, 3 ). The statute also calls for an annual report indicating the number of arrests, prosecutions and convictions by each district attorney. See id. § 968.075(9). " See MINN. STAT. § 611A.0311( 1 ) (b) (1997). The plan must also address the following: early practices. 65 These policies tend to focus on obtaining victim participation, often resorting to issuing subpoenas to victims 66 Although some municipal policies allow victims to drop charges after meeting certain criteria, 67 others are more stringent, with some even approaching mandated victim participation.° Both San Diego, California and Duluth, Minnesota city attorneys issue subpoenas to elicit victim participation.° Similarly, in 1983, under an Anchorage, Alaska no-drop policy, a victim who had filed a complaint and then changed her mind was jailed overnight for refusal to cooperate." The victim was released when her husband agreed to probation and counseling." Mandated participation policies such as those above have been criticized as being invasive and substantially infringing upon the victim's autonomy. 72 Advocates of mandatory participation, however, believe that it is a better choice than dismissal when encountering an uncooperative witness." They argue that the societal benefits of prosecuting abusers outweigh the short-term costs to women's autonomy and collective safety." A substantially less invasive tactic for confronting domestic violence is the mandatory no-contact order. In most jurisdictions, a criminal protection order, also known as a criminal no-contact order, is issued as a condition of a pretrial release or sentencing when a domesassignment of trial prosecutor; procedures to facilitate early contact between the prosecutor and victim in order to acquaint the victim with the process, including her role as a witness for the prosecution; procedures to encourage the prosecution of all domestic abuse cases where a crime can be proven; and the use of subpoenas to victims. See id. § 611A.0311( 1 ) (b) ( 1, 2, 4, 7 ). so See Corsilles, supra note 5, at 859-62. 66 See id. at 860. 61 See No Right to Choose, supra note 5, at 1863-64. In Alexandria, Virginia, a victim can drop charges after appearing before a judge to explain her refusal. See a Although the charges will not be automatically dismissed when a victim changes her mind, the no-drop policy of Jefferson County, Kentucky, allows the prosecution to dismiss, with the county's domestic violence unit's consent, once the prosecutor has obtained a sworn statement from the victim explaining her reasons for withdrawing. See Corsilles, supra note 5, at 860. A victim will be allowed to sign a "drop form" in Marion County, Indiana, as long as she has contacted her legal advocate and has been advised of the risk of being revictitnized if the charges are dropped. See id. at 861. 62 See Corsilles, supra note 5, at 860, 862; No Right to Choose, supra note 5, at 1866. 69 See Corsilles, supra note 5, at 860, 862. The official policy of the San Diego City Attorney is to issue an arrest warrant, at the request of a specially trained domestic violence prosecutor, if a subpoenaed victim fails to show and the case cannot proceed without her. See id. at 860. All victims, irrespective of their willingness to testify, are subpoenaed in Duluth in an effort to shield the victim from the appearance of responsibility. See id. at 862. 7° See No Right to Choose, supra note 5, at 1866 & n.76, citing John Riley, Spouse-Abuse Victim Jailed After No-Drop Policy Invoked, NAT'L Lj., Aug. 22, 1983, at 4. 71 See id. 72 See id. at 1856, 1870. " See id. at 1856. 74 See id. at 1857. tic violence arrest has been made. 75 A court issues a criminal no-contact order as part of another criminal proceeding, such as bail determination, with the state acting as a party. 76 No-contact orders typically prohibit the defendant from directly or indirectly contacting the victim and from returning to or approaching the home or any other location where the victim is likely to be found. 77 The discretion accorded to the court with respect to the issuance of a criminal protection order, including which conditions to stipulate, varies by jurisdiction. 78 The governing statutes of several states require that a no-contact order be issued as a condition of pretrial release, thus limiting the opportunity for victim input. 79 For example, the Rhode Island statute mandates that the court impose a no-contact order, providing that: [b] ecause of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when a person is charged with or arrested for a crime involving domestic violence, that person may not be released from custody on bail ... without first appearing before the court ... Mlle court . . . shall issue a no-contact order prohibiting the person charged or arrested from having contact with the victitn.81) By the same token, Colorado, in mandating the issuance of restraining orders against domestic violence defendants, requires that the order be issued immediately, upon first appearance before the court, and continue until final disposition of the action." Similarly, both South Dakota and Utah also mandate a no-contact order whenever bond is set in domestic violence cases." Although these statutes are meant to protect victims from ongoing battering, they also impose upon the victim the same "no contact" condition, causing a split in her family without consideration of, or in opposition to, her In contrast, other jurisdictions require the court to evaluate factors such as past conduct by the defendant, drug or alcohol abuse and access to weapons before determining whether a no-contact order is appropriate." The Florida statute requires the State Attorney's office to investigate the defendant's history, including prior arrests for domestic violence, prior arrests for non-domestic charges and prior injunctions for protection filed against the defendant.° This provision allows the court to consider properly the safety of the victim when determining pretrial release conditions. 86 New York requires a similar review of the defendant's history by requiring the courts to make a considered determination before directing the defendant to stay away from the home.87 When a statute requires the court to consider factors such as those above before determining whether a no-contact order should be issued, the opportunity exists for the victim to express her wishes.° Of those states that have statutorily instituted criminal protection orders in domestic violence cases, none have expressly required courts to solicit or consider the victim's concerns .° Wisconsin, however, does allow the victim to waive the requirement for a temporary restraining order within the first seventy-two hours of the arrest, thereby restricting the court's discretion in imposing conditions upon the defendant's release. 90 Unlike the civil protection order, which is always sought by a specific petitioner, usually the victim, a criminal protection order does not require a specific petitioner. 9' Civil protection orders require a petitioner as a procedural safeguard, assuring that only interested parties who have made proper showing of need can restrict the rights of another." In contrast, most criminal protection orders do not require that a specific petitioner be named." In some states, the victim's name will appear as the petitioner only because statutory requirements allow members of the criminal justice system to file in the victim's name." The court may even be able to issue, sua sponte, a temporary protection order.95 By removing the victim as the petitioner, the system quells the victim's input, leaving the court without the information it needs to weigh the victim's wishes properly." Aggressive policies were needed to address the pervasiveness of domestic violence in American society and the institutionalized noninterventionist approach of the criminal justice system. 97 The introduction of mandatory arrest, prosecutorial mandates such as no-drop and participation policies and mandatory no-contact orders heightened the awareness of and response to domestic violence crimes within the justice system." Each of these policies, however, progressively removed the victim from the decisionmaking process." In doing so, the state's " See Frank, supra note 75, at 930. A victim of domestic violence can obtain an order of protection by first petitioning the court ex parte for a temporary order providing emergency relief. See id.; see also David M. Zlotnick, Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to Enforce Civil Protection Orders, 56 Onto ST. U. 1153, 1191 (1995). Once the temporary order has been served on the batterer, the victim must attend a hearing and request that the civil protection order be made semi-permanent. See Zlotnick, supra at 1191-92. See Frank, supra note 75, at 922, 931. " See id. at 930. 94 See 725 ILL. COMP, STAT. 5/112A-2(a) (ii) (West 1998) (statute requires State Attorney to file the petition in the name of crime victim (s)); OHIO REV. CODE ANN. § 2919.26(A) ( 1 ) (Anderson 1998) (statute allows the arresting officer, if the victim is unable, to file a motion requesting a temporary protection order as a condition of pretrial release). "See Onto Rev. CODE ANN. § 29I9.26(D) (Anderson 1998). This aspect of the Ohio law was challenged in Ohio ex rel. Mormile n Garfield Heights Mun. Court. See 607 N.E.2d 890, 890-91 (Ohio Ct. App. 1992), appeal dismissed, 602 N.E.2d 249 (Ohio 1992). Although neither the wife nor the arresting officer requested a no-contact order as a condition on release, the appeals court upheld the trial court's refusal to remove the condition requiring the husband to vacate the couple's house. See Mormile, 607 N.E.2d at 891. The couple had repeatedly petitioned, over an eight-month period, to have the order lifted. See id. 96 See Frank, supra note 75, at 931-32. 97 See generally No Right to Choose, supra note 5, at 1859-60; Paradox of Hope, supra note 8, at 1516; Waits, supra note 5, at 267-68. as See supra notes 16-96 and accompanying text. 99 See Frank, supra note 75, at 922; No Right to Choose, supra note 5, at 1862; Paradox of Hope, supra note 8, at 1519. interest in addressing crimes of domestic violence was enhanced while the victim's deliberative and decisional autonomy was overlooked.m II. AUTONOMY RIGHTS OF DOMESTIC VIOLENCE VICTIMS Almost simultaneously with the development of modern domestic violence statutory and common law, the United States Supreme Court actively advanced the personal autonomy and privacy rights of individuals.'°' At the core of individual autonomy is the fundamental right to make decisions important to one's destiny. 102 The Supreme Court has found decisions such as whom to marry, whether to conceive a child, whether to terminate a pregnancy and whether to refuse life-sustaining medical treatment to be constitutionally protected liberty interests.mDeliberative autonomy, as established by the Court's substantive due process decisions, safeguards the privacy of individuals when deciding matters central to family structure.m The victim of domestic violence must confront issues and make decisions pivotal to the survival of her family; these decisions fall within the scope of guarantees provided by the Court's substantive due process decisions. 1 °5 A series of United States Supreme Court decisions beginning in 1965 defines deliberative autonomy jurisprudence. 106 In 1965, in Griswold v. Connecticut, the Supreme Court struck down a state law forbidding the use and distribution of contraceptives to married couples.wl The Court focused on the impact on the marriage relationship rather than the autonomy of individuals, finding that the sanctity of marriage lies within a "zone of privacy."wa In 1972, the Court broadened this holding in Eisenstadt v. Baird, finding that prohibiting the distribution of contraceptives to unmarried as well as married persons interfered with the individual right to privacy.w° In Griswold, the Supreme Court focused on the marriage relationship and the privacy it should be accorded, while in Eisenstadt the focus was upon individual rights and deliberative autonomy."° The Court in Eisenstadt explained, "[Of the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."'" Because of the historic treatment of privacy rights within families, this shift in focus from marital privacy rights to the rights of individUals to make autonomous decisions is particularly important when considering the autonomy rights of domestic violence victims.'" A tradition of allowing violence against women, under the guise of family privacy, has required advocates of domestic violence reform to dismantle the "zone of privacy" in order to force the issue into the public sphere.'" The "zone of privacy" concept was, however, a limited idea of privacy, one focused on the right to keep matters private rather than the view of privacy which is derived from an affirmative concept of liberty—a right to independent decisionmak11)9 See Eisenstadt, 405 U.S. 438, 453 (1972). 110 See id. at 453-54; Griswold, 381 U.S. at 485; see also Loving, 388 U.S. at 10, 12. The Court invalidated a state ban on interracial marriages as a violation of the Fourteenth Amendment equal protection and due process clauses, describing marriage as "one of the 'basic civil rights of man,' fundamental to our very existence and survival." Loving, 388 U.S. at 12, quatingSlcinner v. Oklahoma, 316 U.S. 535, 541 (1942). Recognizing the freedom to marry as "one of the vital personal rights essential to the orderly pursuit of happiness by free men," the Court disallowed interference by the state in a constitutionally protected personal decision. Id. Thus, the Court encompassed personal decisionmaking within the vital personal rights protected through substantive due process. See id.; but see Bowers v. Hardwick, 478 U.S. 186 (1986), reh'g denied, 478 U.S. 1039 (1986) (majority limiting right to privacy to traditional family sphere which does not extend to homosexual activity). In a challenge to a Georgia statute criminalizing sodomy, the Court held that the statute did not violate the fundamental rights of homosexuals. See Bowers, 478 U.S. at 189-90. Stating that "[n]co connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated," the court refused to extend the deliberative autonomy of previous cases to the present issue. See id. at 191. The majority defined constitutional privacy solely in terms of keeping the state out of the traditional sphere of family privacy, protecting only privacy interests. See id. Justice Blackmun's dissenting opinion, however, demonstrated a very different understanding of the constitutional right to privacy, specifically rejecting Justice White's historically-oriented theory. See id. at 203-04 (Blackmun, J., dissenting). Instead, Justice Blackmun viewed the privacy right as the right of individuals to autonomy over the most intimate aspects of their lives. See id. at 199-200. "'Eisenstadt, 405 U.S. at 453. The Court described the marital couple as "an association of two individuals, each with a separate intellectual and emotional makeup." Id. 112 See id. at 453-54; Loving, 388 U.S. at 12; No Right to Choose, supra note 5, at 1869. "3 See No Right to Choose, supra note 5, at 1869. ing with respect to personal and intimate aspects of life." 4 The Court first articulated this second concept of privacy in 1977 in Whalen v. Roe. In Whalen, the United States Supreme Court upheld a New York statute requiring state notification of all prescriptions written for certain drugs." 5 The Court found that the release of patients' names to the state did not violate a constitutionally protected "zone of privacy" between doctor and patient.n 6 Justice Stevens, writing for a unanimous Court in Whalen, distinguished between the different forms of privacy recognized by the Supreme Court: "[t]he cases sometimes characterized as protecting 'privacy' have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." This distinction between spacial and decisional aspects of privacy is a recognition that the issues of privacy go beyond mere bodily integrity to include a moral and intellectual autonomy expressed through personal choice." 8 Thus, although the domestic violence victim, due to the criminal nature of the offense committed against her, may not be able to claim a privacy interest in avoiding public disclosure, her interest in private decisionmaking is still protected." 9 In 1973, the Supreme Court further expanded personal and deliberative autonomy rights in Roe v. Wade.' 2° The Court found that a right to privacy is inherent in the liberty interest of the Fourteenth Amendment. 121 This right "encompass [ed] a woman's decision whether or not to terminate her pregnancy" and restricted state intrusion upon that right.'" The Court, however, limited the right of deliberative privacy with regard to abortions, stating that "at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant."'" The Court ruled that a woman's right to privacy when considering an abortion must be measured against the state's interests, which grows in substantiality and becomes more compelling as the woman's pregnancy progresses to term. 12" Thus, the Court recognized a constitutional right of decisional privacy, yet not an absolute right; this right must be balanced against the opposing interests of the state. 125 In 1992, in Planned Parenthood v. Casey, the Supreme Court revisited these issues.'26 The Court examined amendments to Pennsylvania's abortion statute, reaffirming the essential holding of Roe yet substituting an undue burden test to evaluate the viability of the fetus for the trimester scheme introduced in Roe.'" Using the undue burden test, the Court affirmed the principle of Roe, stating that the "constitutional protection [of] personal decisions relating to marriage, procreation, contraception, [and] family relationships" had already been determined under the law.'" Looking to precedent, the Court found that "matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy . . . central to the liberty protected by the Fourteenth Amendment," limit the state's right to interfere with personal decisions about family life. 129 Justice Stevens, writing separately, focused on the rights of deliberative autonomy.'" Stating that "[d] ecisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best . . . it must respect the individual's freedom to make such judgments," Justice Stevens found that freedom to decide matters of a personal and private nature was a constitutional liberty interest's' In spite of the recognition of decisional autonomy rights, Casey enhanced the state's power to regulate abortions, establishing an undue burden test as the standard for balancing the state's interest and the privacy interest of the woman."' Thus, the test for determining whether autonomy rights are violated requires balancing the liberty interests at stake against the relevant state interests that are inconsistent with the individual interest. 133 Therefore, in a domestic violence case, the state should not interfere with the deliberative autonomy of the victim unless the state's interest outweighs that of the In 1976, in Mathews v. Eldridge, the United States Supreme Court enunciated the balancing test used to resolve competing individual and state interests.' 35 The Mathews case questioned whether due process required a hearing before the termination of federal disability benefits.'" The Fourteenth Amendment of the U.S. Constitution provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law."'" The Fifth Amendment states that "[n]o person shall . . . be deprived of life, liberty, or property without due process of law . . :1138 Thus, the Fourteenth and Fifth Amendments prohibit any state from arbitrarily depriving any person of liberty and impose upon the courts a duty to balance the conflicting interests.'" The Court, looking to the Constitution's due process clauses, set out a test now employed by most courts to determine whether a deprivation imposed by a state comports with due process guarantees.'4° The court first must determine whether the private interest that will be affected by the state's action is constitutionally protected. 141 If the private interest does not meet this threshold requirement, procedural concerns are not implicated."' If the court deems the private interest at issue to be constitutionally protected, the court then must balance the remaining factors: the risk of erroneous deprivation, the probable value of additional safeguards and the interest of the state government.'" Courts have employed this test in domestic violence cases when balancing a personal liberty interest—the property interests of defendants and the deprivation of those interests when a defendant is ordered to stay away from his property—with the interests of the state.'" One such case was Blazel v. Bradley. In 1988, in Blazel, the United States District Court for the Western District of Wisconsin employed the Mathews test to analyze the respective rights at issue in a domestic violence case where an ex parte civil protection order had been issued.'" The court recognized that depriving the defendant of his enjoyment of property, through the use of civil protection orders, directly implicates a constitutional question.'" Both the property interests of the defendant and the privacy interests of the victim are protected under the Constitution, and the criminal justice system is obligated to provide mechanisms to assess properly these interests against the state's interests.' 47 Where no-contact orders are statutorily mandated, deprivation of these rights occurs without case-by-case consideration by the very terms of the statute.'" In jurisdictions that do not mandate no-contact orders, consideration of the apparent property and liberty interests of the defendant in a domestic violence case may occur, yet the deliberative autonomy of the victim is often overlooked.'" An increasing public perception that the rights of crime victims generally have been overlooked has caused Congress and many state legislatures to examine the issue of victim's rights. 150 In 1982, a Victim's Rights Amendment (VRA) to the U.S. Constitution was first proposed. Although the VRA has changed dramatically since then, it is expected to be brought before the current Congress for a vote this year. " Th e VRA, under its current name, the Victims' Bill of Rights Amendment, seeks to balance the status of the victim with the constitutionally protected status of the accused by providing the following protections to the victim: ( 1 ) the right to be informed of the proceedings; (2) the right to be heard at crucial stages in the process; (3) the right to notification upon the release or escape of the defendant; (4) the right to a final disposition free from unreasonable delay; (5) the right to an order of restitution from the convicted offender; and (6) the right to have the victim's safety considered when determining a release from Many states have already amended their constitutions to provide similar protections. 153 Although such constitutional provisions would seem to accord the domestic violence victim with an opportunity to speak at bail and sentencing hearings, many of the states that have amended their constitutions also mandate no-contact orders in domestic violence cases. 154 Statutorily mandatory no-contact orders do not provide a mechanism or procedure for incorporating the concerns or wishes of the victim. 155 Thus, it is uncertain to what extent these constitutional provisions will assist domestic violence victims in the future. III. ANALYSIS It remains unclear whether the efforts of the last twenty years have effectively reduced either the pervasiveness or the intractability of domestic violence within the American family. 156 Data regarding domestic violence is sparse, and the statistics that do exist are difficult to compare since methodology and definitions vary by jurisdiction.' 57 Some of the available data indicate that progress has been made: intimate violence incidents against women dropped from 1.1 million in 1993 to 840,000 in 1996. 158 Although several possible causes for this decrease have been suggested—the reform of domestic violence intervention, the general decline in violent crime or possibly the generational effect of heightened public awareness on the attitudes of younger women—the cause cannot be determined via empirical data since the data collection methods used today do not support this type of analysis.' 59 Although it is clear that reformers have successfully heightened public awareness of the pervasiveness and severity of domestic violence within our society, one thing remains certain: intimate violence continues to pose a serious risk to women,' 6° Furthermore, scholars, practitioners and advocates Istill do not agree on the cause of violent behavior in batterers or how best to treat the problem of domestic violence. 161 Efforts to change institutional actors and their behavior through mandatory arrest and prosecution policies have not achieved the desired results.'" Other reformers advocate psychological and behavioral approaches and support court mandated treatment of batterers.' 63 The effectiveness of these approaches, as opposed to the traditional approaches of incarceration and proba1" See U.S. Dep't of Justice, Bureau of Justice Statistics, Characteristics of Crime (visited on Nov. 17, 1998) Ghttp://www,cdp.usdoj.govibjs/cvict_c.libul>. Crimes of rape, sexual assault, robbery, aggravated assault and simple assault are included in these statistics, See id. Intimate violence against men did not vary significantly from 1992 to 1996. See id. From 1976-1996, on average, the murder rate of women by intimates dropped by 1%. See id. 159 Paradox of Hope, supra note 8, at 1517 n.43, 1524-25 (current national collection methods and resulting studies do not reflect the disposition of the case or the effects of mandated treatment). to See id. at 1517 n.43; see also Response from the Criminal justice System, (visited Nov 17, 1998) littp:// > (based on a 1990 report of the National Institute of Justice, U.S. Dept of justice, stating that if all domestic violence were reported, one-third of the incidents would be classified as felony rapes, robberies or aggravated assaults). 161 See Paradox of Hope, supra note 8, at 1511-12, 1513-15; see also Mary E. ASTMS et al., Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies from Understanding the Dynamics of Abusive Relationships, 15 HAMLINE L. gay. 115, 136 (1991) (reporting that victim advocates in Duluth felt that compelling victims to testify had the effect of punishing the victim for the abuse); Mills, supra note 51, at 183-84 (advocating a more flexible prosecution strategy, incorporating the victim's needs and personal experiences); Zlotnick, supra note 91, at 1177-78 (proposing an approach geared at keeping victims of domestic violence engaged in the criminal justice and social support systems by empowering, rather than disempowering, the victim). 162 See Zlotnick, supra note 91, at 1173 (referencing studies which concluded that short-term arrests have little deterrent effect on batterers who have too much invested in their abusive relationship and could provoke additional assaults after release). Mandatory arrests, if not followed by swift and certain penalties, only serve to crowd dockets, causing further delay, with weak cases rather than achieving the desired deterrent effect. See id. at 1175. The available data also stilt sts that even in jurisdictions supporting mandatory prosecution, most cases still end with arrest. See Paradox of Hope, supra note 8, at 1520. 163 See Paradox of Hope, supra note 8, at 1526, citing William L. Hart et al., U.S. Dept of tion, also remains unclear. 164 While practitioners and advocates wait for the availability of more empirical data, allowing for the proper evaluation of the various policies developed over the last twenty years, the autonomy rights of the victim should not be ignored. Working within the existing framework for domestic violence prosecution, steps can be taken to protect the victim's substantive due process rights. One of the first steps is to recognize the domestic violence victim as an individual affected by unique circumstances and family relationships.'65 Domestic violence crosses socioeconomic boundaries; women of all classes and races are abused and men of all classes and races batter.'66 The impact of state intervention, however, can differ by race and culture particularly where past government action has resulted in justifiable wariness. 167 Preserving cultural identity often requires strong allegiance to the community as a whole, causing women to choose between fear of rejection or continued violence.' 68 For instance, AfriJustice, Attorney General's Task Force on Family Violence: Final Report 22-23 (1984) (stating that "the most successful treatment occurs when mandated by the criminal justice system," the report encouraged the establishment of treatment programs to address batterers in cases where the injury to the victim was not serious). The Violence Against Women Act of 1994 also endorsed treatment programs as a punishment. See 18 U.S.C. § 3563(a) (1998) ("The court shall provide, as an explicit condition of a sentence of probation . . . for a domestic violence crime . . . by a defendant convicted of such an offense for the first time that the defendant attend a public, private, or private nonprofit offender rehabilitation program . . . ."). 164 See Paradox of Hope, supra note 8, at 1532-33, 1536. Studies monitoring the effectiveness of treatment programs provide inconclusive and varied results. See id. at 1533. Results suggesting that recidivism rates are not significantly different between men receiving treatment and those that have not or have dropped out of treatment programs. See id; see also Stephen J. Schulhofer, The Feminist Challenge in Criminal Law, 143 U. PA. L. REv. 2151, 2167 (1995) (stating that there is no evidence that counseling reduces the propensity for repeated violence). In addition, victims are more likely to remain with a batterer receiving counseling thereby increasing the likelihood of further abuse. See id. 165 Throughout this Note I use feminine references for victims and masculine references for batterers. Although these references reflect the majority of domestic violence situations, men and women both have suffered as victims of batterers. See U.S. Dep't of Justice, Bureau of Justice Statistics, Characteristics of Crime (visited on Nov. 17, 1998) < cvict_c.htnd> (reporting that in 1996 females were victims in three out of four instances of intimate murders and 85% of all non-lethal intimate violence). It must also be noted that domestic violence is not uniquely an issue for heterosexual couples; reported violence in gay and lesbian relationships occurs with the same statistical frequency found in heterosexual relationships. See Nancy E. Murphy, Note, Queer Justice: Equal Protection for Victims of Same-sex Domestic Violence, 30 VAL. U. L. REv. 335, 340 (1995). According to studies, 25% of lesbians and 27% of heterosexual women are abused by their partners. See id. at 340 tr.34. Experts report that the level of violence within the gay community is the same as that in society at large. See id. 166 See Ruttenberg, supra note 10, at 185; see also Zlotnick, supra note 91, at 1174 n.110 (stating that although domestic abuse is not bound by social or economic definitions, the deterrence effect of arrest is different on unemployed batterers than on employed batterers). 167 See Ruttenberg, supra note 10, at 186; see also Mills, supra note 51, at 184 (finding that women may stay in abusive relationships because of cultural pressures). 164 See Mills, supra note 51, at 184. can-American women express greater reluctance to solicit intervention from the state. 169 In the African-American culture, where experience with the criminal justice system has created a mindset presupposing governmental coercion, family privacy is highly valued for the shelter it provides from the state. 17° In addition, African-American women and Latinas may be ostracized by their communities for contributing to racial stereotypes when exposing violence suffered at the hands of their partners.' 71 Likewise, Asian-Pacific women also face cultural pressures to maintain silence in the face of violence. 172 Similiarly, Orthodox Jewish women may choose to accept violence rather than offend Jewish law by seeking a divorce from an abusive spouse.'" In addition, there are the cultural norms of American society, those which cross racial and ethnic divisions, such as preservation of family, forgiveness and an innate trust that the future will produce positive change. Even though it is impossible to profile the domestic violence victim, in the rush to criminalize abusive behavior, the criminal justice system has portrayed domestic violence victims as perpetually battered women.174 Much media attention has been paid to the Battered Woman Syndrome defense that depicts domestic violence victims as "a collection of mental symptoms, motivational deficits, and behavior abnormalities." This "dysfunctional portrait of battered women" has created a stereotype accepted by the general public and the legal community, each failing to discern the subtlety rooted in the victim's 169 See Ruttenberg, supra note 10, at 185. 170 See id. For African-American women, attempts at resolving domestic violence solely through the criminal justice system typically ignores their concerns about racial oppression historically experienced through that system. See id. at 178. When race and gender are analyzed in the context of domestic violence, white women see gender as the principal source of oppression while African-American women point to race as the principal source of oppression. See id. at 183. 171 See Mills, supra note 51, at 184. Women from ethnic minorities are reluctant to report abuse by men of like cultures because they are aware of the continued oppression of their race, the racist perception that is reinforced by violent incidents and the readiness of the outside society to label or blame these acts of violence as racially predictable. See id. 172 See id 1" See Beverly Horsborough, Lifting the Veil of Secrecy: Domestic Violence in the Jewish Community, 18 HARV. WOMEN'S L.J. 171, 177-78 (1995). 174 See Mills, supra note 51, at 185 (stating that mandatory arrest and prosecution policies are designed to fit a stereotypical battered woman); No Right to Choose, supra note 5, at 1879 (acknowledging the stereotype of battered women as incapable of self-control, emotionally fragile and less rational than men); Wills, supra note 41, at 179 (describing battered women as naive subjects of "master manipulators" as justification for pursuing strong mandatory prosecution policies, without regard to the concerns of the victim). 115 SeeAnne M. Conglin, Excu sing Women, 82 CAL L. REV. 1, 7 (1994) (discussing the Battered Woman Syndrome defense and finding the defense itself fundamentally premised on women's psychological incapacity to extricate themselves from abusive mates through lawful means). ambivalence toward leaving or prosecuting her batterer—presuming her ambivalence to be a function of her individual weakness and pathology rather than the ambivalence inherent in her predicament.'" This commonly held notion of battered women as weak, passive or even pathological for staying with abusive men has fueled a societal disbelief and distrust of the victim and her perspicacity.'" As an illustration, it has been suggested that a battered woman's testimony "should be accorded great deference when [the victim] wants the law to take action against the batterer, but should be given less weight when [the victim] says she wants to protect him."'" Adoption of such a standard is the antithesis of sound judicial inquiry into the facts of each case, yet it illustrates the perception of battered women—as weak, helpless and unstable—in the criminal justice system.'" Arguably, some battered women, particularly those who routinely have been subjected to violence, may fit within the battered woman stereotype. The stereotype, however, fails to capture the woman at the other end of the spectrum, the woman who solicits help the first time she encounters violence. This woman is not suffering from "learned helplessness,"'w yet her concerns are not differentiated from those of women who have suffered long-term abuse. Mandatory criminal intervention policies are most concerned with providing safety through punishment of perpetrators, and therefore are less attentive to differentiating the needs of individual domestic violence victims."' The presumption that all situations involve recurring violence precludes an examination of the factual conditions of each case and thus is inconsistent with the constitutional requirements compelling the courts to make case-bycase determinations.' 82 Although the criminal justice system may be better prepared to provide state intervention for perpetually abused women than it was twenty years ago, it is less able to accommodate the woman who takes a proactive stance against violence at its onset. As domestic violence policies have endeavored to remove discretion from the various institutional actors, the victim's control over the process has been removed. There are several compelling reasons for shifting the control from the victim to the criminal justice system: separating the victim from the responsibilities inherent in opting to pursue the case; reminding the batterer and the public at large that domestic violence is a crime for which offenders will be held accountable; and creating an opportunity to educate the victim in her legal options and other avenues of support. 183 The effect of mandatory policies, however, may be to strip the victim of any sense of control and to foster a sense of disempowerment. Excessive use of state power, particularly forcing the victim to participate in the prosecution, can result in the revictimization of the victim for the actions of the abuser.' In taking control of the victim's life, the state substitutes itself for the abuser as a coercive entity in the victim's life.'" This in turn may force the victim to align herself with her batterer, because she prefers a known adversary to an unknown one.'" Some feminists have noted that state intervention into the lives of women does not necessarily promote women's equality, safety or wellbeing.'" One group of researchers studying the effects of mandatory prosecution hypothesized that victims who chose not to drop the charges in a drop-permitted jurisdiction were the most likely to experience increased safety due to the victim's "personal power." 188 The victim, in making choices regarding prosecution or asserting her right to be heard, takes an affirmative step toward stopping the violence in her life.'" State intervention, particularly policies that mandate victim participation or no-contact orders, is premised upon a presumption that the state knows what is right for all women.'" These policies effectively tell the victim that her input is unnecessary, or even unworthy of consideration, in determining what has occurred and what is best for her family. If state controls over family relations are increased without a counterbalancing policy to preserve autonomy interests, the patriarchy from which feminists struggle to free themselves only becomes stronger."' The paternalistic attitudes with which the courts have traditionally approached domestic violence victims is an impediment to the free choice and empowerment of women. In addition, as evidenced by the pursuit of a Victim's Rights Amendment to the Constitution and the adoption of similar amendments by more than half of the states, tolerance for the usurpation of the victim's voice in criminal proceedings is diminishing. 192 The supporters of these amendments see the rights at issue—those of the crime victim to be protected from further victimization by the criminal justice process—as basic human rights that any civilized system of justice should protect.'" The violation of these rights is not at the hands of the accused, but rather at the hands of the government authorities charged with the duty to prosecute. 194 This is particularly true when the system is predisposed to consider the victim, such as the domestic violence victim, because of the nature of the crime and stereotypes associated with the crime, to be irrational and incapable of making a reasoned decision regarding the accused's release. It is important to bear in mind that the victim of crime is not a party to the criminal prosecution—only the state and the accused stand as parties. As an alienated third party to the criminal proceedings, the victim and her rights are easily overlooked.'" The Constitution does not specifically guarantee crime victims particular rights. 196 At the time of the Constitution's creation, private prosecution was the means of 198 See No Right to Choose, supra note 5, at 1855-56; see also Ruttenberg, supra note 10, at 188 (suggesting that mandatory arrest policies benefit white women while imposing negative consequences on the African-American community). 191 See generally No Right to Choose, supra note 5, at 1868-82. 192 See generally Mosteller, supra note 153, at 1053; Caissie, supra note 150, at 647; Laurence Tribe, The Amendment Could Protect Basic Human Rights, HARP. LAW BMA., Summer 1997, at 19. 193 See Tribe, supra note 192, at 20 (stating that "[plursuing and punishing criminals makes little sense unless society does so in a manner that fully respects the rights of their victims to be accorded dignity and respect, to be treated fairly in all relevant proceedings, and to be assured a meaningful opportunity to observe, and take part in, all such proceedings."). 194 See id. 193 See Caissie, supra note 150, at 655. 198 See generally U.S. CONST. amends. 1-XXVI. enforcing the criminal law, with the victim typically serving as both prosecutor and punisher. 197 Thus, the Framers likely presumed that victim's rights would be protected by the role the victim played in the prosecutorial scheme.' 98 Public prosecutors replaced victims as the initiator of criminal investigation, providing a neutral participant, distant from the parties and facts of the particular case.'" Gradually displacing the belief that the wrong was done first to the victim and then to the state, public prosecution on behalf of the state became the norm and victim's rights, formerly secured by the victim's role in the prosecution, were left unprotected.'" Under the VRA, victims would be guaranteed a right to be heard at the bail and sentencing hearings.291 No-contact orders could not be considered without the victim expressing her needs. The domestic violence victim, however, does not need to wait for a constitutional amendment because, unlike other crime victims and their families where the motivation lies primarily in retribution, the domestic violence victim can assert rights already constitutionally recognized—the right to decisional autonomy regarding her family structure. Another step in protecting the victim's autonomy rights is re-examining the concept of "privacy" in relation to domestic violence. Making public what was traditionally considered a private crime was an essential step in addressing domestic violence."' Family privacy myths, previously used to support nonintervention into "family matters" and ignoring domestic violence, also disregarded the societal harms caused by such violence.203 The criminalization of domestic violence has been the predominant device for correcting the historical, legal and moral disparities in the legal protections afforded to women.'" The resultant policies, particularly those mandating arrest, no-contact orders and prosecution, however, do not provide an opportunity to evaluate the legitimate privacy interests of the victim. Having successfully criminalized the behavior of batterers, it is time to recognize that the "privacy" arguments which sheltered this behavior are distinct from the privacy issues of victims, particularly their deliberative lo See Caissie, supra note 150, at 651,661. 198 See id.; see also Tribe, supra note 192, at 20 (noting that the Framers undoubtedly assumed victim's rights would be protected). 199 See Caissie, supra note 150, at 652-53. 2D° See id. at 662. 291 See SJ. Res. 44, 105th Cong., 2d Sess. (1998); Caissie, supra note 150, at 657. 202 See No Right to Choose, supra note 5, at 1869, 203 See Wilts, supra note 41, at 174. 204 See No Right to Choose, supra note 5, at 1869-70. autonomy in determining the future of their family structure and their role in criminal proceedings."' While the "zone of privacy" articulated in Griswold stemmed from the concept that private matters within a marriage should be left undisclosed and unexamined—thereby serving to protect a domestic abuser—the modern view of privacy is derived from an affirmative concept of liberty, one which focuses on moral and intellectual autonomy." Privacy, if not confined to its historical concept—a domestic sphere where men are left alone to oppress women—can further women's equality and freedom." Some feminist work on domestic violence argues that protecting the privacy of the family structure is not a justification for nonintervention in domestic violence cases." The issue, however, is not whether there should be intervention but rather to what extent the conflicting interests of the victim should be balanced against the state's interest in implementing a particular choice of intervention. Constitutional privacy doctrine does not protect autonomy absolutely; it does not protect a person's right to make any choice." It does, however, protect individuals from government interference with things that "are so important to [our] identity as persons—as human beings—that they must remain inviolable, at least as against the state. " 21 ° Therefore, if the state's choice of intervention by its very definition precludes examination of the factual conditions— mandatory no-contact policies as opposed to more discretionary policies—thereby precluding the protected privacy interests of the victim, the chosen intervention is inconsistent with the constitutional balancing requirement. Perhaps the best place to begin the task of reintroducing the domestic violence victim's voice to the criminal justice process is in the realm of the criminal no-contact order. Undoubtedly, the victim is intensely concerned with and should be intricately involved with any decision determining the release of her domestic partner. For some loSee generally Planned Parenthood v. Casey, 505 U.S. 833, 849, 851 (1992); Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278-79 (1990); Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Roe v. Wade, 410 U.S. 113, 153 (1973). 2°6 See Whalen, 429 U.S. at 598-600 (citations omitted); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965). 2°7 See Laura W. Stein, Living with the Risk of Backfire: A Response to the Feminist Critiques of Privacy and Equality, 77 MINN. L. REV. 1153, 1173-74 (1993). 208 See No Right to Choose, supra note 5, at 1869. 909 See Casey, 505 U.S. at 874-75; Stein, supra note 207, at 1173-74; see also Cruzan, 497 U.S. at 279. 21° See Stein, supra note 207, at 1173 (quoting Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 753 (1989)). women, the imminent release of their abuser signals a return to violence, perhaps even retaliatory violence for calling the police in the first place."' For others, an always tenuous peace may ensue with the woman managing the violence through persuasion. 212 For the more fortunate, the abuse will end either because a single incident is enough for the victim to abandon the relationship or for the batterer to seek the help he needs to control his abusive behavior. Regardless, any of these women have a significant interest in being heard. Some women will demand that their abusers be held while many others will argue for release.2" In either case, the decision is not made lightly. Women typically consider the needs of their children, their financial prospects for surviving without their partners, whether they can safely separate from violent partners and their need to maintain a relationship with the men they love. 214 Whatever decision a woman makes is a constitutionally protected decision which must be weighed against the interests of the state. At the time when a no-contact order is issued, the state's interest appears to be less significant than at any other point in the criminal process. The state is prepared to release the accused batterer back into the community,'" presumably after some period of detention.'" The prosecutor and, in many states, social services or victims' advocates, may have had an opportunity to counsel the victim on the risks of repeated violence. The state's interest in arrest has been satisfied and its interest in prosecution is also protected. 217 Thus, if one applies the Mathews balancing test, the interests of the state when compared to the autonomy interests of the victim appear to be less substantial at the time of issuance of a no-contact order than at other points along the prosecution timeline.'" Moreover, the court considering the issuance 211 See wills, supra note 41, at 180. 212 See id, 213 See id. at 177 (noting that a domestic violence victim's refusal to press charges is the norm in domestic violence prosecutions). 214 See Schneider, supra note 176, at 558. Most battered women want the relationship to continue but the battering to stop. See id. 212 See Frank, supra note 75, at 924-25. The power of the criminal courts to set bail is well established, See id. at 925. The general right to bail, except in the most serious cases, is derived from the Eighth Amendment. See id. at 928. Moreover, most states have codified the right to bail within their constitutions. See id. 216 See Schulhofer, supra note 164, at 2166 (citing a study of mandatory arrest policies, Schulhofer points out that the average dine in custody varied from two to twenty-four hours). 211 See generally Frank, supra note 75. The no-contact order is issued as a condition upon pretrial release, which in turn is provided only upon assurance of the accused, in the form of bail, that he will be available upon demand of the court. See id. 218 See Mathews v. Eldridge, 424 U.S. 319, 594-35 (1976). of a criminal protection order should remain attentive to the protected liberties at stake—the property interests of the criminal defendant and autonomy interests of the victim. 219 Inquiry into the constitutionally protected rights at stake, particularly before the batterer is excluded from his residence, is best ensured by requiring a factual investigation and balancing of interests. 2" This, of course, is impossible in states where the statutes governing pretrial release of domestic violence defendants mandate or fail to require meaningful review. 22I Procedural protection, designed to facilitate the informed consideration of the rights at stake in a particular case, is often dispensed with when statutes mandate the issuance of criminal no-contact orders. 222 In these situations, courts may fail to make factual inquiries into the concerns of the domestic violence victim—financial, property, emotional—and thus, effectively silence her voice. 223 Therefore, in order for the autonomy rights of the victim and, for that matter, the liberty and property rights of the accused to be properly considered, legislation should be amended to require adherence to procedural due process. Such procedural requirements facilitate the judicial consideration of the rights at stake in each case. 224 Lawmakers can provide for procedures that allow all interests to be heard—the victim's, the defendant's and the State's—thus ensuring a reasoned decision on a caseby-case basis. 225 Finally, because all states and the District of Columbia provide means for a domestic violence victim to petition the court for protection, the civil protection order must be recognized as an alternative approach to criminal protection orders. 2" Many of the same protections imposed by criminal protection orders are available through the civil protection order process. 227 Since relief is already universally avail212 See U.S. CONST. amend. XN, § 1; Mathews, 424 U.S. at 334-35. 226 See Blaze! v. Bradley, 698 F. Supp. 756, 763 (W.D. Wis. 1988) (finding that restrictions on access to personal property and residence, due to the issuance of a civil protection order, implicate constitutional concerns). Applying Mathews, the court found that substantial procedural protections were mandated based on the accused's interest in his home. See id. "I See, e.g., ALASKA STAT. § 12.30.027 (1997); COLO. REV. STAT. ANN. § 18-1-1001 (West 1998); R.I. GEN. Laws § 12-29-4(a)( 1 ) (1997); S.D. CODIFIED LAWS § 25-10-23 (Michie 1998); UTAH CODE ANN. § 77-36-2.5( 1 ) (1998). 42 See Frank, supra note 75, at 939-40. 223 See id. 224 See id. 226 See id. at 941. 226 See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 FIOFSTRA L. REV. 801, 842-43 (1993). 221 See Frank, supra note 75, at 922. able, the state's interests in imposing criminal no-contact orders should not be given great weight. 228 CONCLUSION The victim of domestic violence deserves the protection of the criminal justice system without sacrificing her autonomy rights. Although privacy doctrine has in the past led institutional actors to ignore domestic violence as a societal concern, public awareness and reform in the managing of domestic violence cases successfully has dismantled this misapplication of privacy rights. With this done, it is time to set aside fears regarding the application of privacy rights in the domestic violence context in order to allow victims to enjoy their constitutionally protected rights to decisional autonomy. The issuance of a criminal no-contact order, in essence, separates a family, forcing one member out of the home. The emotional and financial hardships inherent in such an action should not be ignored. In addition to these concerns, the history of violence, or the lack thereof, within the relationship needs to be considered. In failing to allow for victim input in the process of defining the conditions of a pretrial release, courts ignore the victim's right to determine the structure of her family. Legislation that mandates no-contact orders by definition prohibits meaningful review of all of the factors and interests involved, including the history of the relationship and the wishes of the victim. CHRISTINE O'CONNOR 2" See id. at 923. 8 See generally Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 WM. & MARY L. REV , 1505 , 1516 ( 1998 ) [hereinafter Paradox of Hope); No Right to Choose, supra note 5 , at 1859- 60 . 9 See Bracher , supra note 5 , at 160. 10 See Miriam H. Ruttenberg , A Feminist Critique of Mandatory Arrest: An Analysis of Race and Gender in Domestic Violence Policy, 2 Am. U. J. GENDER & L. 171 , 184 ( 1994 ). " See Del Martin , The Historical Roots of Domestic Violence, in. DOMESTIC VIOLENCE ON TRIAL: PSYCHOLOGICAL AND LEGAL DIMENSIONS OF FAMILY VIOLENCE 3, 6 (Daniel .). Sonkin, ed., 1987 ) (attributing to William Blackstone "ibly marriage the husband and wife are one person in law; that the very being or legal existence of woman is suspended in marriage."). 12 See id . at 6. 15 See id . The Mississippi Supreme Court , in 1824 , ruled that a husband can beat his wife in "cases of emergency." See id, at 6. Laws allowing husbands to hit their wives with "a switch no bigger than his thumb" were enacted in most states during the seventeenth and eighteenth centuries. See id. Even as the North Carolina Court , in 1874 , held that a husband could never chastise his wife, it went on to say that unless permanent injury had been inflicted upon the wife, the matter was not of public concern . See id. See No Right to Choose, supra note 5 , at 1857 . 15 see id . 18 See id . at 1859; Bracher, supra note 5, at 161. " See Bracher, supra note 5 , at 161; see also Response from the Criminal Justice System (visited Nov. 7 , 1998 ) < >, citing U.S. DEP'T OF JUSTICE BUREAU OF JUSTICE STATISTICS , Violence Against Women: A National Crime Victimization Survey Report , 9 ( 1994 ) (finding that police were more likely to respond within five minutes if the offender was a stranger than if an offender was known to the female victim). 26 Id. at 975-76 (internal citations omitted). 27 See Joan Zorza , The Criminal Law of Misdemeanor Violence , 1970 - 1990 , 83 J. CRIM . L. & CRIMINOLOGY 46 , 58 - 59 ( 1992 ). " See id at 58. 10 See id. !I See 595 F. Supp . 1521 ( D. Conn . 1984 ); Zorza, supra note 27, at 60. The plaintiff, Tracey Thurman, alleging that her constitutional rights had been violated when police failed to act on reported threats and assaults by her husband, filed a civil action against the City of Torrington and its police officials . See Thurman , 595 F. Supp . at 1524. Ms. Thurman notified the police of repeated threats made by her husband . See id. When, on June 10 , 1983 , Ms. Thurman contacted police again, it took over 25 minutes for a single officer to arrive . See id. at 1525 . She had been stabbed in the neck, chest and throat. See id. Her husband continued to beat her in spite of the presence of the police officer; the officer did not intervene . See id. at 1526 . More officers arrived on the scene yet no attempt was made to prevent Mr. Thurman from his continued abuse . See Thurman , 595 F. Supp . at 1524. Police arrested Mr. Thurman only after he threateningly approached his wife while she was laying on a stretcher . See id. 32 See Bracher , supra note 5 , at 165; No Right to Choose, supra note 5 , at 1858 . 75 See Christopher R. Frank , Criminal Protection Orders in Domestic Violence Cases: Getting Rid of Rats with Snakes, 50 U . MIAMI L. REV. 919 , 922 ( 1996 ). 76 See id . at 922. 77 See, e.g., ALASKA STAT. § 18.66 .100( c ) ( 2 , 3) ( Michie 1997 ) ; COLD. REv. STAT . ANN. § 18 - 1- 1001 ( 3 ) (a , b) ( West 1998 ) ; N.C. GEN . STAT. § 15A- 534 . 1(a) (2) ( 1997 ). 78 See Frank, supra note 75, at 922. 76 See, e.g., ALASKA STAT. § 12.30.027 (Michie 1997 ) ; COLO . REV. STAT. ANN. § 18-1-1001 (West 1998 ) ; RL GEN . LAws § 12 - 29 -4 (a) (1) ( 1997 ); S. D. CODIFIED LAWS § 25 - 10 -23 ( Michie 1998 ) ; UTAH CODE ANN. § 77 - 36 - 2 . 5 ( 1 ) ( 1998 ). "R.I. GEN . LAWS § 12 - 29 -4 (a) (1) ( 1997 ). The statute further states that the court shall determine, at time of arraignment, whether the no-contact order shall be extended . See id. § 12-29-4 (a) ( 2 ). 81 See COLO . REV. STAT . ANN. § 18 -1- 1001 ( 1 ) ( West 1998 ). 82 See S. D. CODIFIED LAws § 25 - 10 -23 ( Michie 1998 ) ; UTAH CODE ANN. § 77 - 36 - 2 . 5 ( 1 ) ( 1998 ). In addition, some municipalities have also instituted, either through local legislation or practice, a mandatory no-contact order policy . See Frank, supra note 75 , at 933. One such example 100 See infra notes 174-86 and accompanying text. "See generally Planned Parenthood v . Casey , 505 U.S. 833 , 849 , 851 ( 1992 ); Cruzan v . Director, Mo. Dep't of Health , 497 U.S. 261 , 278 - 79 ( 1990 ); Whalen v . Roe , 429 U.S. 589 , 599 - 600 ( 1977 ); Roe v . Wade , 910 U.S. 113 , 153 ( 1973 ). 102 See Christopher J. Keller, Divining the Priest: A Case Comment on Baehr v . Lewin , 12 LAW & 1NEq. J. 483 , 486 - 87 ( 1994 ); see also Whalen, 429 U.S. at 600; Wade; 410 U.S. at 153. 1 °3 See Cruzan, 497 U.S. at 278-79; Wade, 410 U.S. at 153; Loving v. Virginia , 388 U.S. 1 , 12 ( 1967 ); Griswold v . Connecticut , 381 U.S. 479 , 485 - 86 ( 1965 ). 161 Keller, supra note 102, at 487; see generally James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1 , 10 - 14 ( 1995 ); see also Casey, 505 U.S. at 851 { looking to precedents which put limits on the state's right to interfere with personal decisions about family life, the Court found "matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy . . . [to be] central to the liberty protected by the Fourteenth Amendment."). 105 See Keller, supra note 102, at 486-87; see also Whalen, 429 U.S. at 600; Wade, 410 U.S. at 153; Griswold, 381 U.S. at 985-86. I°6 See , e.g., Cruzan , 497 U.S. at 278-79; Wade, 410 U.S. at 153; Loving, 388 U.S. at 12; Griswold, 381 U.S. at 485-86. 107 see Griswold , 381 U.S. at 485. 1 °8 See id at 485-86. 114 See id . at 1870 - 71 . 115 See Whalen , 429 U.S. at 591 , 606 . 116 See id . at 603-04. 117 See id . at 598-600 (internal citations omitted). 118 See Lisa C. McClain , Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 YALE J.L. & HUMAN . 195 , 204 , 232 ( 1995 ). lig See Whalen , 429 U.S. at 598-600. 1" See 410 U.S. at 153. The Court examined a Texas statute which prohibited procuring an abortion except when necessary to save the mother's life . See id. at 117-18 . Finding that the statute violated the Fourteenth Amendment and privacy rights, the Court also recognized a legitimate state interest in the mother's health and the protection of viable life . See id. at 164-65 . The Court established a trimester system for determining the extent of the state's interest in the developing life and the expectant mother's health. See id. The Court determined that prior to the end of the first trimester, the abortion decision must be left solely to the mother and her physician. See id. During the second trimester, the state's interest in promoting the mother's health could be manifested in regulations of abortion procedures. See id. After viability of the unborn child, somewhere near the end of the second trimester, the state's interest in potential life justifies proscribing abortion except where the life or health of the mother is at stake . See id. 121 See Roe , 410 U.S. at 164-65. 132 See id . at 874 ( -Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause."). 133 See id . at 877; Cruzan, 497 U.S. at 279. In deciding whether Missouri state law, requiring clear and convincing evidence of an incompetent's wishes to withdraw life-sustaining support, violated liberty rights guaranteed by the U.S. Constitution, the Court balanced the personal interest with the interests of the state . See Cruzan , 497 U.S. at 280. The Court found that "a State has more particular interests at stake. The choice between life and death is a deeply personal decision . . . [the State] may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements . " Id. at 281. ' 54 See Casey , 505 U.S. at 874; Cruzan, 497 U.S. at 280. 1 " See Mathews v . Eldridge , 424 U.S. 319 , 334 - 35 ( 1976 ). 136 See id . at 323. 137 U.S. CoNs-r. amend. XIV, § 1 . 138 U.S. CONST. amend. V. 1 " See Mathews , 424 U.S. at 332 , 334 - 35 . 14° See id . at 334-35. 141 see id . MR See id .; Frank, supra note 75, at 939. 143 See Frank, supra note 75, at 939. 144 See Blaze! v. Bradley, 698 F. Supp . 756 , 763 (W.D. Wis . 1988 ). 145 See id 146 See id . The federal district court expressed concern that although Mathews provided a mechanism for identifying and weighing rights, the case was silent on what specific procedural protections best addressed those rights . 147 See Mathews , 424 U.S. at 332 , 334 - 35 . 148 See supra notes 72-93 and accompanying text. 148 See id.; Frank, supra note 75, at 940-41. INSee Jennie L. Caissie , Note, Passing the Victims' Rights Amendment: A Nation's March Toward a More Perfect Union, 24 NEW ENG . J. ON GRIM. & CIV. CONFINEMENT 647 , 647 , 663 ( 1998 ). 151 See id . at 647 n.2 , citing PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME , FINAL REPORT 1" See Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse , 67 N.Y. C. L. REV . 520 , 556 ( 1992 ). 177 Naomi Cahn & Joan Meier , Domestic Violence and Feminist Jurisprudence: Towards a New Agenda , 4 B.U. PUB. INT . L. J. 339 , 344 ( 1995 ) (finding that commonly held stereotypes of battered women contributed to negative outcomes in battered women's cases) . 175 See Kathleen Waits , The Criminal Justice System's Response to Battering: Understanding the Problem , Forging the Solutions , 60 WASH. L. Rev. 267 , 307 ( 1985 ). 1 " See Frank , supra note 75, at 931. 18° See Waits , supra note 178 , at 307. 151 See Mills , supra note 51 , at 185. 182 See Frank, supra note 75, at 929-25; sew also Zorza, supra note 27 , at 67 ( reporting that 53% of women plan to reconcile with a batterer-in-treatment but only 19% plan to do so if no treatment is provided). In addition, the victim is more likely to turn to the criminal justice system in the future if the system has acted to support her in the past . See id. 1 " See Mills , supra note 51 , at 173 , 174, 181 . 1" See No Right to Choose, supra note 5 , at 1865; see also Annus et al., supra note 161 , at 136 ( noting that domestic violence advocates in Minnesota felt that compelling victims to testify had the effect of punishing the victim for the abuse ). 185 See No Right to Choose, supra note 5 , at 1865- 66 ; Mills, supra note 51, at 191. 1 " See Mills , supra note 51 , at 190-91. 187 See No Right to Choose, supra note 5 , at 1871; see also Nadine Strossen, A Feminist Critique of The' Feminist Critique of Pornography, 79 VA . L. REV. 1099 , 1140 - 41 ( 1993 ) (arguing that censoring pornography with the rationale that such censorship protects women is paternalistic, sexist and disempowering). 188 David A. Ford & Mary Jean Regoli, The Criminal Prosecution of Wife Assaulters: Process, Problems and Effects, in LEGAL RESPONSES TO WIFE ASSAULT: CURRENT TRENDS AND EVALUATIONS 127 , 157 (N. Zoe 1-liton ed., 1993 ). They suggest that the power is derived from three sources: using the prosecution as a bargaining chip with the batterer, providing women with a means of allying with others including the police, prosecutors, and judges, and providing women a voice in determining sanctions against batterers . See id. 1 " See Mills , supra note 51 , at 191.

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Christine O'Connor. Domestic Violence No-Contact Orders and the Autonomy Rights of Victims, Boston College Law Review, 1999,