Domestic Violence: “Abuse” Encompasses More than Just Physical Blows

Domestic violence scholars have questioned the appropriateness of the ever-present inquiry, “why did she stay?” Professor and author Martha Mahoney describe the importance of understanding the complexity of women’s experience and struggle and “recast[ing] the entire discussion of separation in terms of the batter’s violent attempts at control.”*

“Every legal case that discusses the question ‘why didn’t she leave?’ implies that the woman could have left.”*  The threat of violence and the aggressor’s continued control preventing women from leaving, financial dependence, and emotional ties are some of the reasons she cites.*

Mahoney writes that battered women often struggle with denial (a defense mechanism which allows us to unconsciously “disavow…[the] external reality….which [is] consciously intolerable.”).** Victims of domestic violence also “tend to minimize the history of assault against them and the pain they have suffered.”**

Often this denial is a result of the belief that the abuse suffered is not “bad enough” to qualify as domestic violence.  Many Californians believe that they have to be hit or display bruising in order to be considered a victim of domestic violence. This notion, however, is very far from the truth.  The definition of “abuse” included in California’s Domestic Violence Prevention Act (“DVPA”) is intentionally broad.  There are many ways in which we can suffer abuse, including psychological abuse, stalking, financial abuse, and in some instances, even cyber-bullying. Take a look at the California Family Code statute that outlines what our state considers impermissible “abuse”:

“For purposes of this act, ‘abuse’ means any of the following:

a)      Intentionally or recklessly to cause or attempt to cause bodily injury;

b)      Sexual assault;

c)       To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or

d)      To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”

Cal. Fam. Code § 6203.

The first two sections of Section 6203 (above) are easily recognized as traditional forms of domestic violence –  when a person suffers physical injury or sexual assault at the hands of their partner it is clear instance of DV. The last two prongs, (b) and (c), however, leave room for interpretation. Section (c) refers to what a reasonable, average person would find threatening to such an extent that they fear that they or someone else will be seriously harmed by the alleged perpetrator, and imminently.

Section (d), however, expands the concept of abuse to include more than violent abuse alone.  Section 6320(a) of the family code includes a long list of behaviors that can be halted by restraining order:

“The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls…., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” Cal. Fam. Code § 6320(a).

As can be seen, the DVPA’s definition of abuse is intentionally broad, and a restraining order may be appropriate protection from a myriad of different kinds of abuse. One notable catch-all provision in Section 6320(a) is “disturbing the peace,” meaning that a restraining order may be granted against someone who is disturbing your peace. What does it mean exactly?  “[T]he plain meaning of the phrase “disturbing the peace of the other party” in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.

In Nadkarni, the husband broke into the wife’s email account, learned and tracked her constant whereabouts, and distributed personal and business information about the wife and her business interests.  This conduct, the wife alleged, caused her “to suffer ‘shock’ and embarrassment,’ to fear the destruction of her ‘business relationships,’ and to fear for her safety.” Nadkarni, at 1499.  It is important to note that the court found that because of the past physical abuse against her by the husband, the wife’s fears regarding the husband’s potential for further abusive conduct in the future were reasonable.

If your partner is harassing you or treating you in a way that “destroys your mental or emotional calm,” you may be a victim of domestic violence and you can seek relief from the court.  The Court has discretion to issue a restraining order pursuant to the DVPA if the court is satisfied by “reasonable proof of a past act or acts of abuse.”  See Nakamura v. Parker, 156 Cal. App. 4th 327, 334 (2007); Cal. Fam. Code § 6300.

This is huge for California residents because, “[a]buse takes many forms. It’s more than just the obvious slap in the face, punch, or push. It’s about power and control, any way possible.”*** Californians are no longer forced to suffer in silence but instead get a helping hand from the courts on their journey to a better home life. The purpose of DVPA is to prevent the reoccurrence of acts of violence and to separate the parties so the causes of violence can be resolved.  Cal. Fam. Code § 6220.  In addition, under the DVPA, after notice and a hearing the Court may issue an order for the payment of attorney’s fees and costs to the prevailing party.  Cal. Fam. Code § 6344.

If you believe that you may be suffering from domestic violence, or are contemplating a divorce, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex Family Law matters and here to meet with you and offer you a free consultation. Life is too short to live with an abusive partner.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

 

*Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1 (1991).

**Julie Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 9 WOMEN’S RTS. L. REP. 227, 228-29 (1986).

***Quote by Julie Saffren, Santa Clara University Law Professor and Domestic Violence attorney, from San Jose Mercury News, “Domestic Violence: Bill Targets Cyberbullying,” printed July 1, 2013; quote obtained with permission from Mrs. Saffren.