Legal and Ethical Issues Ethical and Legal Dilemmas of Battered Women
D
OMESTIC VIOLENCE against women continues, demonstrating the inadequacy of the legal system to end the abuse. Nurses see the results of domestic violence and can benefit from effective legal action based on sound ethical parameters. Although studies have shown that arrest of the perpetrator is the most effective way to stop the violence, police resist this action. * For instance, in 1989, the Minnesota Supreme Court released a study of gender fairness in the court system, which concluded that despite the progressive domestic abuse statutes, women victims in Minnesota rarely receive the legal relief mandated, eg, en~'orcement of protective orders and prosecution of batterers.2 Hand in hand with the inadequacy of the legal approaches has been the covert, erroneous ethical assumptions underlying the reluctance of the legal system to act. J u s t i c e for the battered woman has been premised on the mis: guided notion of equal power between the parties to the violence. For instance, in Connecticut and Minnesota, both victim and perpetrator have been arrested at the same time with or without evidence of mutual abuse. 1,2 Another ethical premise that is distorted in the domestic abuse situation is the value placed on privacy, closely akin to preserving autonomy. It is clear that police officers' reluctance to act protects the privacy and autonomy of the batterer, but not that of the woman. In Oregon, Henrietta Nearing stood up to the legal system that ignored her pleas for help on three occasions when police failed to arrest her abuser who continuously violated a restraining order. She brought a civil action for damages against the police and the Oregon Supreme Court ruled that police who knowingly fail to enforce judicial orders under the Abuse Prevention Act could be liable for the victim's injury. 3 This court decision has resulted in positive changes in police practices, attitudinal changes in men who now brag less about beating their wives, and the willingness of battered women to speak more openly about abuse they suffer. 4 Nurses living in states such as in Oregon and Minnesota that have progressive statutes can consider as part of their advocacy roles the option of suggesting court action to enforce statutory mandates. However,
DIANE K.
KJERVIK,BS,
MS, J D
Professor Unfi'ersity of Minnesota School of Nursing 6-10l Unit F 308 Harz'ard St Minneapolis, b i n 55455 9 1990 by W.B. Saunders Company. 8755 -7223/90/0605 -000453.00/0
nurses will recognize the irony and injustice in placing an expectation on the victim to take the time, energy, and expense of suing the police department for failure to enforce the state law. Another tool for battered women is the use of battered woman-syndrome testimony in various contexts, eg, to defend against charges of murder when the battered woman kills her abuser. 5 Usual notions of consensual relationships premised on parties with equal power can be challenged with explanations of how the woman's volition was damaged during years of abuse. In order for this technical testimony to be introduced, the subject matter must meet various criteria including evidence that the state of art or science permits a reasonable opinion by an expert. 6 Nursing scholars can assist with the development of the science r e l a t e d t o battered woman syndrome and then present amicus briefs to courts or become expert witnesses on behalf of battered women. Schnelder, however, warns that use of "this testimony could reinforce stereotypes of female fragility and vulnerability. ~ Therefore, the development of knowledge should focus on battered woman's syndrome as a justification for the woman's choice to defend herself rather than an excuse for her loss of control. : Advocacy on behalf of battered women challenges traditional norms assumed to be objective in our culture. Feminist jurisprudential scholars suggest that the objectivity in legal opinions is actually subjectively laden with white male values, s'9 Understanding the nature of decision making and subjectivity within the decisions will help battered women to receive the justice and autonomy they deserve. References 1. Brown GR: Battered women and the temporary restraining order. Women's Rights Law Rep 10:261-267, 1988 2. Minnesota Supreme Court: Task Force for Gender Fairness in the Courts. St Paul, MN, Minnesota Supreme Court, 1989 3. Nearing v Wea*~r, 295 Or 702, 670 P 2d 137 (1983) 4. Gundle R: Civil liability for police failure to arrest: Nearing v Weaver. Women's Rights Law Rep 9:259-265, 1986 5. State vKelly, 97 NJ 178, 478 A 2d 364 (1984) 6. Coffee CL: A trend emerges: A state survey on the admissibility of expert testimony concerning the battered woman syndrome. J Fan Law 25:373-396, 1986-87 7. Schneider EM: Describing and changing: Women's selfdefense work and the problem of expert testimony on battering. Women's Rights Law Rep 9:195-222, 1986 8. Scales A: The emergence of feminist jurisprudence: An es"Tay:-Yale Law J 95:1373-1403, 1986 9. Menkel-Meadow C: Portia in a different voice: Speculations on a woman's la~'ering process. Berkeley Women's Law J 1:3963, 1985
Journal of Professional Nursing, Vol 6, N o 5 ( S e p t e m b e r - O c t o b e r ) , 1990: p 253
253
D
OMESTIC VIOLENCE against women continues, demonstrating the inadequacy of the legal system to end the abuse. Nurses see the results of domestic violence and can benefit from effective legal action based on sound ethical parameters. Although studies have shown that arrest of the perpetrator is the most effective way to stop the violence, police resist this action. * For instance, in 1989, the Minnesota Supreme Court released a study of gender fairness in the court system, which concluded that despite the progressive domestic abuse statutes, women victims in Minnesota rarely receive the legal relief mandated, eg, en~'orcement of protective orders and prosecution of batterers.2 Hand in hand with the inadequacy of the legal approaches has been the covert, erroneous ethical assumptions underlying the reluctance of the legal system to act. J u s t i c e for the battered woman has been premised on the mis: guided notion of equal power between the parties to the violence. For instance, in Connecticut and Minnesota, both victim and perpetrator have been arrested at the same time with or without evidence of mutual abuse. 1,2 Another ethical premise that is distorted in the domestic abuse situation is the value placed on privacy, closely akin to preserving autonomy. It is clear that police officers' reluctance to act protects the privacy and autonomy of the batterer, but not that of the woman. In Oregon, Henrietta Nearing stood up to the legal system that ignored her pleas for help on three occasions when police failed to arrest her abuser who continuously violated a restraining order. She brought a civil action for damages against the police and the Oregon Supreme Court ruled that police who knowingly fail to enforce judicial orders under the Abuse Prevention Act could be liable for the victim's injury. 3 This court decision has resulted in positive changes in police practices, attitudinal changes in men who now brag less about beating their wives, and the willingness of battered women to speak more openly about abuse they suffer. 4 Nurses living in states such as in Oregon and Minnesota that have progressive statutes can consider as part of their advocacy roles the option of suggesting court action to enforce statutory mandates. However,
DIANE K.
KJERVIK,BS,
MS, J D
Professor Unfi'ersity of Minnesota School of Nursing 6-10l Unit F 308 Harz'ard St Minneapolis, b i n 55455 9 1990 by W.B. Saunders Company. 8755 -7223/90/0605 -000453.00/0
nurses will recognize the irony and injustice in placing an expectation on the victim to take the time, energy, and expense of suing the police department for failure to enforce the state law. Another tool for battered women is the use of battered woman-syndrome testimony in various contexts, eg, to defend against charges of murder when the battered woman kills her abuser. 5 Usual notions of consensual relationships premised on parties with equal power can be challenged with explanations of how the woman's volition was damaged during years of abuse. In order for this technical testimony to be introduced, the subject matter must meet various criteria including evidence that the state of art or science permits a reasonable opinion by an expert. 6 Nursing scholars can assist with the development of the science r e l a t e d t o battered woman syndrome and then present amicus briefs to courts or become expert witnesses on behalf of battered women. Schnelder, however, warns that use of "this testimony could reinforce stereotypes of female fragility and vulnerability. ~ Therefore, the development of knowledge should focus on battered woman's syndrome as a justification for the woman's choice to defend herself rather than an excuse for her loss of control. : Advocacy on behalf of battered women challenges traditional norms assumed to be objective in our culture. Feminist jurisprudential scholars suggest that the objectivity in legal opinions is actually subjectively laden with white male values, s'9 Understanding the nature of decision making and subjectivity within the decisions will help battered women to receive the justice and autonomy they deserve. References 1. Brown GR: Battered women and the temporary restraining order. Women's Rights Law Rep 10:261-267, 1988 2. Minnesota Supreme Court: Task Force for Gender Fairness in the Courts. St Paul, MN, Minnesota Supreme Court, 1989 3. Nearing v Wea*~r, 295 Or 702, 670 P 2d 137 (1983) 4. Gundle R: Civil liability for police failure to arrest: Nearing v Weaver. Women's Rights Law Rep 9:259-265, 1986 5. State vKelly, 97 NJ 178, 478 A 2d 364 (1984) 6. Coffee CL: A trend emerges: A state survey on the admissibility of expert testimony concerning the battered woman syndrome. J Fan Law 25:373-396, 1986-87 7. Schneider EM: Describing and changing: Women's selfdefense work and the problem of expert testimony on battering. Women's Rights Law Rep 9:195-222, 1986 8. Scales A: The emergence of feminist jurisprudence: An es"Tay:-Yale Law J 95:1373-1403, 1986 9. Menkel-Meadow C: Portia in a different voice: Speculations on a woman's la~'ering process. Berkeley Women's Law J 1:3963, 1985
Journal of Professional Nursing, Vol 6, N o 5 ( S e p t e m b e r - O c t o b e r ) , 1990: p 253
253
