Law Against Domestic Abuse May Be Backfiring
Although it was intended to do good, a 2-year-old state law on domestic violence may be hurting the very people it was meant to help, according to a number of California health organizations.
The Mandatory Reporting Law requires health professionals to notify a local law enforcement agency whenever they know or suspect a patient has been battered. But critics say the law may be further endangering victims and even preventing some individuals from seeking treatment for injuries.
The bill, written by former Assemblywoman Jackie Speier (D-San Mateo) and signed by Gov. Pete Wilson on Sept. 19, 1994, was born out of the intense publicity surrounding O.J. Simpson’s arrest that year and during an era of heightened awareness about domestic violence.
But this law is an example, critics say, of good intentions gone awry. The lives of battered spouses are so complicated that police intervention may not be in an individual’s best interest at the time she seeks health care, they say.
If arrangements cannot be made for a woman to go to a shelter or seek a restraining order, she may return home to a batterer who is extremely angry that the police have been called.
One Los Angeles County doctor recently called the California Alliance Against Domestic Violence to express frustration with the law, said Ariella Hyman, a San Francisco attorney who specializes in domestic violence cases. The doctor had treated a woman in the emergency room for facial injuries inflicted by the woman’s husband, Hyman said.
A report was made to police, and the husband was arrested in a hospital waiting room. When the patient returned home, her fuming husband had already been released by police, and she was beaten so badly that she had to return to the hospital for additional treatment.
Hyman, who is compiling anecdotes illustrating the negative repercussions of the law, said some women who know about mandatory reporting are avoiding medical care. According to another report filed to Hyman by the director of a battered women’s shelter in Santa Cruz, a woman whose husband burned her face by holding it to a grill and another who suffered serious head injuries when her husband banged her head on a wall and floor came to the shelter for care to avoid police notification.
Physicians are reluctant to call in police when a patient begs them not to, added Janet Nudelman of the Family Violence Prevention Fund in San Francisco, a nonprofit organization that works to improve society’s response to domestic violence.
“The mandatory nature of the law is problematic because it takes away doctors’ ability to decide on a case-by-case basis what is best for that patient,” she said. “It asks them to be cops. It asks them to assume a position that isn’t appropriate for them.”
The law may also interfere with a trend in medicine that encourages doctors to screen all their patients for evidence of domestic violence by asking a few nonthreatening questions.
“If they identify it, then they have to report it. So they become reluctant to do routine screening,” Nudelman said.
These unforeseen repercussions of the law demonstrate just how complicated solutions to domestic violence are, she said.
“We know when the law passed that domestic violence was just beginning to be raised as a public health issue. Legislators were beginning to think about what they could do,” Nudelman said. “Jackie Speier had the best intentions when she drafted this law. . . . But, to be perfectly honest, people hadn’t thought through the whole spectrum of consequences of the law.”
Now, a growing number of groups--including the California Academy of Family Physicians, the Trauma Foundation and Physicians for a Violence-Free Society--have taken stands criticizing mandatory reporting. (Health professionals who must report domestic violence under the law include physicians, nurses, dentists, optometrists and other health providers, with the exception of therapists.)
Meanwhile, a coalition has been formed to press for an amendment to the law that would specify police notification only with the victim’s consent.
But not everyone harbors regrets. Some law enforcement agencies express satisfaction with mandatory reporting, claiming it has greatly assisted in identifying and prosecuting batterers.
“This law has, unquestionably, had a positive impact,” said Det. Tim Williams, a senior detective supervisor with the Los Angeles Police Department.
The difference in viewpoints, Hyman said, “comes from having different goals. The criminal justice system goal is to hold perpetrators accountable. [Battered women’s] advocates want to provide safety, and health care providers to provide medical care.”
All are sincere in their desire to help victims of domestic violence, 90% to 95% of whom are women, said Dr. Elaine J. Alpert, an expert on domestic violence at Boston University School of Medicine. In recent years, both the medical and law enforcement fields have come under attack for not doing more to address such a pervasive problem.
Law enforcement agencies have been sharply criticized for poor performances in pursuing spousal abuse cases, while doctors have been accused of failing to ask questions about battering even when they suspect abuse.
Domestic violence is thought to be the most common cause of serious injury to women, according to a report published in the Journal of the American Medical Assn. last year. Another study found that an estimated 25% of all emergency room visits by women were related to domestic violence, but the cause of the injuries was recognized by health professionals only about 5% of the time.
“These laws came about with the recognition that this is a major public health problem and that health care providers have to do something about it,” said Hyman, author of the 1995 JAMA article and co-chair of the effort to amend the law.
On paper, the law looks good, Alpert noted.
“The law sends a message that violence against intimates is not acceptable and will be reported and dealt with by agencies at every level,” she said.
According to law enforcement agencies, the law has been effective in helping them locate perpetrators and prosecute them.
“It helps us get the victim out of harm’s way,” Williams said. “We often find that violence has been going on for some time and [with notification from a health professional] we can put together a good case and get a conviction. If there was no Mandatory Reporting Law, we would never know about these things.”
But just how diligently the law is being upheld is also in question. According to a recent survey of 715 California physicians, two-thirds said they were aware of the law and had reservations about it.
“A majority of physicians were concerned that the law may produce a danger,” said Dr. Michael Rodriguez, an assistant professor at UC San Francisco, who conducted the poll. “In fact, the majority of physicians said that when patients didn’t want them to report, that there would be situations in which they would not comply with the law.”
Failure to report domestic abuse is a misdemeanor.
But, Alpert said, “They are not complying with the law. And that makes physicians uncomfortable because they are otherwise law-abiding people.”
Williams, however, argued that it may be just as dangerous to delay police intervention.
“The issue in domestic violence is life or death,” he said. “I’m aware there are differences of opinion in the medical community, but we want to keep the law in place. To me, the positive far outweighs the negative.”
While physicians are loath to go against a patient’s wishes, the trend in law enforcement in recent years has been to proceed with domestic violence prosecutions even if the victim will not cooperate.
“When a person becomes a victim, it’s a crime against the state. It’s no longer in their hands. We will proceed proactively and will file. Even on the district attorney side, if the victim is reluctant to cooperate, we proceed anyway,” Williams said.
But by making the reporting law contingent upon the victim’s consent, physicians can still maintain the patient’s trust, care for her and urge her to ultimately call in police, Nudelman said. This approach would also help foster the victim’s autonomy instead of letting everyone around her decide her fate.
“Everything we know about domestic violence rests upon respecting the autonomy of the victim,” she said. “We’ve been working for the last 25 years to empower victims to make their own decisions in their own best interests.”
The law, to the contrary, keeps victims in a position of helplessness, Alpert said.
“It perpetuates the abuse dynamic,” she said. “Reporting something against a woman’s wish takes the decision-making power away from her.”
Nudelman said her task force hopes to have a sponsor for a proposed amendment early next year. Time is important, she said, because many other states are discussing California’s law with plans to duplicate it. Nine states have some form of mandatory reporting laws for health professionals in cases of domestic violence.
“Laws such as this specific Mandatory Reporting Law in California should really be looked at carefully before people jump on the bandwagon,” Rodriguez said. “We discourage people from passing these laws without doing closer work and listening to the people who are saying there may be some serious problems.”