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Because the whole “rule of thumb” thing is so three months ago

Caperton

October is Domestic Violence Awareness Month all over the country–even in Kansas. But someone needs to tell the city of Topeka that October isn’t actually supposed to be a celebration of domestic violence. If you wanted to observe it by, say, making domestic battery not illegal anymore, you’d probably be missing the point.

The background: Shawnee County District Attorney Chad Taylor announced that due to budget cuts, his office can’t afford to prosecute misdemeanors (including domestic battery) and will cease to do so.

The complaint: If the district attorney isn’t going prosecute domestic battery, the city (which already handles simple assault and battery on its own) is going to have to do it themselves, and they don’t have the resources.

The plan: Fuck that, right? If the city just repeals their domestic battery law, that makes it not illegal to beat your spouse, the city has nothing to prosecute, the district attorney is required to take over, and everybody wins! With the exception of the battered spouses, of course, but whatevs.

The result: Domestic battery remains illegal in Topeka, because it’s still illegal under state law–lacking a city ordinance only means that the cases have to be prosecuted by the district attorney, if the district attorney were prosecuting misdemeanors, which he isn’t, so they aren’t. Without a way to charge domestic batterers after they’ve been arrested, all the police can do is hold them for 72 hours until they’re nice and pissed off and then release them–as has happened to 18 people so far. According to NOW’s Karri Ann Rinker, police have confirmed that one man has already re-offended: Within 48 hours of his release, he assaulted his wife again, was arrested again, and was released again.

The aftermath: Ultimately, the county blinked first, and Taylor agreed to do his goddamned job already, saying he would review all misdemeanors sent his way and prosecute, y’know, some of them.

If there’s one thing that’s as trivial and ultimately insignificant as a knockoff poker chip from the Mississippi Belle, it’s battered women, amiright? God forbid you should decriminalize pot-smoking or jaywalking to try and save those extra funds–when people’s lives are at stake, that’s the time for the district attorney to stick his tongue out at the county commission, and for the city to play chicken with the district attorney. It’s just people you’re using as pawns, women and men and children, and arguably the most vulnerable ones under the law’s protection. Nobody important, certainly not when you have a political point to score.

“I think it draws a line in the sand,” says interim Topeka city manager Dan Stanley. “It says we will remove all ambiguity from the question, and we will negotiate from a position of strength.” The kind of strength, apparently, that you can steal from a domestic-violence survivor.

Happy October, y’all.

43 thoughts on Because the whole “rule of thumb” thing is <em>so</em> three months ago

  2. Why couldn’t the city still prosecute domestic abuse under the simple assault statute.. isn’t DV assault simple assault with the added element of it being against a roommate or partner?

  3. It is sad that violence has become so insignificant within society. Women have fought for equality for decades, and laws like this diminish the fight for equality. Because domestic violence is usually against the women in the relationship, the elimination of this law is an attack on women themselves, literally. The government needs to reprioritize, seeing that violence is something that is now overlooked. How is anyone supposed to feel safe or protected by the law, if the law no longer protects them against their own spouse in their own home?

  4. Can we give Kansas back to someone? Anyone? I’m beginning to think the US needs to hold an auction in order to cut down on the stupidity. I’m sick of Kansas. Why do women even live there if the whole state hates them?

  5. “God forbid you should decriminalize pot-smoking or jaywalking to try and save those extra funds–when people’s lives are at stake”

    Yeah, that’s a major thing about this that I just don’t get. If you have to decriminalize something, wouldn’t it make more sense to decriminalize things that might yield a high arrest rate but, y’know, don’t actually hurt anyone?

  6. nas:
    Why couldn’t the city still prosecute domestic abuse under the simple assault statute.. isn’t DV assault simple assault with the added element of it being against a roommate or partner?

    You’d think.

    The expectation seems to be that complaints be pursued as a civil matter – through restraining orders, etc. In Australia, the only state to have criminalised domestic violence is Tasmania.

  7. Lex HT: In Australia, the only state to have criminalised domestic violence is Tasmania.

    Assault and battery are crimes in every Australian state and all territories.

  8. @nas … they probably could, but if they’re wiling to decriminalize domestic assault, I doubt they’d do that just to use a different statue to prosecute.

    Also, while I’m not familiar with Kansas law, in many states one of the main benefits of having a specific domestic assault statue is that they “stack,” meaning that once a person has been convicted of a certain number of those misdemeanors, the crime becomes a felony. Simple assault usually doesn’t do the same thing, and a simple assault conviction wouldn’t count towards the stacking of domestic assault convictions.

  11. @Georg. Yes, but somehow the assault and battery ‘elements’ of domestic violence do not get treated as a criminal offence. In my experience police are very reluctant to get involved in ‘domestic disputes’ or do not know how to respond appropriately. Not to mention that the complexity of the situations of people experiencing violence can make it difficult for them to pursue legal action, especially criminal charges (as opposed to a civil piece of paper saying not to commit domestic violence again). I’m sure this is lots of information out there about this – it’s not really a new discussion. It makes me really angry that if I was attacked/assaulted/battered by a person on the street, or someone I wasn’t in a relationship criminal charges could be laid; however if this happened in my own home, it would be seen as a relationship problem, or a civil matter. In my experience with the Australian (Queensland particularly) legal system, domestic violence rarely falls under assault/battery charges unless there is extreme violence.

  12. Lex HT: In Australia, the only state to have criminalised domestic violence is Tasmania.

    Here in South Australia we have legislation specifically to deal with domestic violence.

    Domestic Violence Act 1994,
    Intervention Orders (Prevention of Abuse) Act 2009,
    Summary Procedure Act 1921 S99

  13. I’m sick of Kansas. Why do women even live there if the whole state hates them?

    Because we’re stupid? I mean, what other answer is there to this question?

    I live in Oklahoma, which is arguably worse. So I guess I shouldn’t live here, either. Or so I’ve been told time and again.

    Give me the money to move, if I shouldn’t live here. Because I sure as hell don’t have it. Cost of living here is cheap, which allows me to survive, my survival and support network is here, my family is here. I don’t have the resources to live anywhere else. I medication to refill and a mortgage to pay, and fifty lousy bucks in the bank. Move where? With what? How?

    Even said flippantly, that kind of comment really, really aggravates me. Kind of like poking me with a stick to remind me of my own helplessness. I ain’t staying here ’cause I’m dumb. Being able to leave a state that hates you is a privilege.

  14. Megan: Also, while I’m not familiar with Kansas law, in many states one of the main benefits of having a specific domestic assault statue is that they “stack,” meaning that once a person has been convicted of a certain number of those misdemeanors, the crime becomes a felony. Simple assault usually doesn’t do the same thing, and a simple assault conviction wouldn’t count towards the stacking of domestic assault convictions.

    I read Kansas’s state statutes about a week ago when I first heard of this story, and you’re right, that’s what they do. It’s a felony after two convictions.

    Of course, I should have stopped reading at that point, because about five minutes later I found out that Kansas still has sodomy laws on its books that include consenting adults over the age of consent (presuming they’re of the same sex) and which carry the same penalty severity as the above mentioned domestic battery laws. SCOTUS schmotus apparently.

  15. nas: isn’t DV assault simple assault with the added element of it being against a roommate or partner?

    DV involves dynamics that are very different from other kinds of battery and assault, and so having separate systems in place for DV can potentially handle the problem more effectively. For example, having a separate crime of domestic violence means being able to offer a special type of civil restraining order to a victim of domestic violence (in many states). Of course one of the big disadvantage is that with this approach people often minimize the severity of DV– like it’s “just” a family law violation.

    Fat Steve:
    Solution: make domestic violence a felony.

    There can be big problems associated with doing this. Since most DV occurs within households and overlaps with economic/legal power imbalances, victims may be reluctant to report abuse if their abusers–often their source of financial support, lawful immigration status, etc.–will be charged with a felony.

  18. God forbid you should decriminalize pot-smoking or jaywalking to try and save those extra funds

    I’ve seen this rhetoric thrown around a bit, but is it actually true? Is pot smoking a crime in the city of Topeka such that Topeka prosecutes it? I would have assumed it’s a federal crime only (WTF would Topeka criminalise marijuana?), and thus out of their hands (and probably be a misdemeanor too, which means they’ve claimed to stop prosecuting it, and there’s no fuss because who cares?)

    Okay, so looks like first offenses are misdemeanors, and thus presumably not being prosecuted Linky – subsequent are felonies, so presumably still being prosecuted.

  19. Lest we forget, thanks to yesterday’s delightful House vote in favor of HR 358, the “Let Women Die” Act, it’s not a good idea to be a woman ANYWHERE. Happy October indeed!

  20. Politicalguineapig:
    Can we give Kansas back to someone? Anyone? I’m beginning to think the US needs to hold an auction in order to cut down on the stupidity. I’m sick of Kansas. Why do women even live there if the whole state hates them?

    I agree. We should totally just blow it up and the stupid, stupid women who live there.

    *feminist high five*

  21. I can barely comment on this because it turns my stomach. I knew Kansas was a bit “backwards” at times but this takes the cake!

  22. Naamah, Saurus: I’m sorry, I lost my temper. I realize it’s more an accident of geography, but I’m just so sick of the red states, that any new trainwreck they dream up fills me with rage.
    The women are all right, but the preachers and politicians need to be exported somewhere- preferably Antartica.

  23. @Fat Steve

    Domestic violence is a felony in Kansas, but at the state level. The county can prosecute misdemeanor domestic violence offenses. My understanding of this situation is that the county claimed that the state was trying to deal with budget cuts by choosing not to prosecute very many as felonies in the hopes of offloading prosecutions on the county, and so the county got rid of the misdemeanor offenses in an attempt to force the state to deal with them as felonies (not, of course, because the county believes these crimes are necessarily felonies, but purely to try to avoid the cost of prosecuting misdemeanors).

    Two levels of government playing chicken for budget reasons about the prosecution of serious crimes is a sick state of affairs in any case, but uniquely and horribly so with domestic violence. This is the very worst place to play these games for a whole bunch of reasons: (1) domestic violence is a crime for which you want to intervene when it is a less serious misdemeanor-type incident, rather than letting it escalate to felony-level violence; (2) a victim is placed in incredible danger if they report their offender but the offender is not punished, removed, or monitored in any way; and (3) victims of domestic violence already face enormous pressures not to report and know that these crimes are often not taken seriously, so even now that the law is back on the books, you’ve just told all of the victims of DV in Topeka that if they report the county will be looking for a way to ignore them.

  26. Topeka did not make domestic violence legal. It is still a state crime, it is just going to be prosecuted by the DA’s office instead of in city courts.

  27. Meh: Topeka did not make domestic violence legal. It is still a state crime, it is just going to be prosecuted by the DA’s office instead of in city courts.

    The OP: worth reading before responding.

  28. Brian: Okay, so looks like first offenses are misdemeanors, and thus presumably not being prosecuted Linky – subsequent are felonies, so presumably still being prosecuted.

    Except that if the first offense isn’t prosecuted, then the next offense isn’t a subsequent offense, and so on.

    As for the drug laws, most states have their own drug laws. Very few drug offenders are prosecuted in the federal system. Some cities have municipal drug offenses and they’re usually misdemeanor possession type stuff. If that’s the case here, then I would presume those aren’t being prosecuted.

  29. Norma: Since most DV occurs within households and overlaps with economic/legal power imbalances, victims may be reluctant to report abuse if their abusers–often their source of financial support, lawful immigration status, etc.–will be charged with a felony.

    Specifically, felony assault charges often trigger mandatory sentencing requirements. I suspect a lot of women might want their abuser to leave them alone but might not want him to spend five years in prison (mandatory minimum for felony assault in my state), especially if she is financially dependent on him to support their children.

  30. From what I got from a cop friend, cops really really do not like to go after DV cases. In his opinion, there was little point, most women will simply back out before it ever gets to court. Even interfering in an active physical abuse situation could be dangerous because often the woman could turn on you. Tackling DV was very different from tackling other regular crimes because in his opinion very often it was a game in which the woman was also participating.

    And well, a fairly large number of cops are charged in DV complaints as well.

  31. Esti:

    Domestic violence is a felony in Kansas, but at the state level. The county can prosecute misdemeanor domestic violence offenses.

    There’s no felony domestic battery in the Kansas state criminal code that I could see apart from third offenses and on. First offense felony assault appears to be aggravated assault and up, and these don’t have a specific domestic category. Were you just referring to third offense and on here or did I miss a whole chunk of the criminal code?

  32. Sonia: From what I got from a cop friend, cops really really do not like to go after DV cases. In his opinion, there was little point, most women will simply back out before it ever gets to court. Even interfering in an active physical abuse situation could be dangerous because often the woman could turn on you. Tackling DV was very different from tackling other regular crimes because in his opinion very often it was a game in which the woman was also participating.

    And well, a fairly large number of cops are charged in DV complaints as well.

    I think my stomach just tried to make a face…

  33. Norma: The OP: worth reading before responding.

    I agree, which is why I read this in the OP:

    If you wanted to observe it by, say, making domestic battery not illegal anymore, you’d probably be missing the point.

    I realize that the OP later acknowledged that it was still a crime under state law, but I cannot read the writer’s mind, and I do not know whether she realized the contradiction in what she had written. The NYT and others keep insinuating that Topeka “decriminalized” domestic battery, which simply is not true.

  34. I think part of my concern is that, since the county basically said “we’re not doing misdemeanors, period” why did the city chose to specifically decriminalize DV misdemeanors? In my personal land of making assumptions, i feel like it’s probably either a) because DV misdemeanors are by far the most common arrest/prosecution in the city, and so saves the most money if they stop doing it, or b) the worst one to decriminalize, thus the one that would get the most attention and really force the county’s hand.

    In either case it’s a terrible, terrible, terrible idea.

  35. Meh: it was still a crime under state law

    Topeka did decriminalize domestic battery. So Topeka police can’t charge batterers even after arresting them for breaking the state’s still-existing law, because city police (normally) can’t charge for state crimes. You have to hope the DA will care to step in every time a charge is needed, which is doubtful when 1) they just threatened to stop prosecuting DV altogether, and 2) they’re assigning students to prosecute.

  36. Man, why do cops have to mistake their guns for tazers when it’s a harmless young black man, but no one “accidentally” kneecapped that reoffender before letting him go? :p

    (Disclaimer: that would be wrong and bad and evil and an abuse of power, and I’d feel very bad about myself for being absolutely fucking thrilled that a dangerous abusive asshole lost a knee.)

  37. Norma:
    The county will assign law students to prosecute criminal DV cases.
    (http://www.feministlawprofessors.com/2011/10/topeka-misdemeanor-domestic-battery-cases-be-prosecuted-law-student-interns/)

    What is confusing about this to me is that this has to be so much more work. As a law student, I can attest to how needy we are. Unless these students have previous experience doing similar work, they are gong to need a lot of guidance. So even if they can make the students do all the filing and stuff to save time, they’ll probably spend twice as much time as they save doing intern support.

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  39. Sonia: From what I got from a cop friend, cops really really do not like to go after DV cases.

    Some cops actually look forward to it, so they have an excuse to beat the shit out of someone.

  40. Of course, when it comes to priorities, we’ll go easy on domestic violence before we decide to stop prosecuting people for smoking a plant that makes them feel good.

  41. I’m just not seeing the difference between something not being legal, and not being charged for an offence. I mean if all the cops can do is wag their fingers (if they even bother to do anything) then they’re depending on the abuser to behave nicely. Which shows that someone slept through their human psychology class. Humans don’t behave well because they like being nice, they act like good people cause they don’t want to deal with the consequences (ranging from being a social outcast to being arrested.)
    In short, domestic abuse is legal in Kansas now, because no one will be prosecuted for it.

  42. Heather: What is confusing about this to me is that this has to be so much more work. As a law student, I can attest to how needy we are. Unless these students have previous experience doing similar work, they are gong to need a lot of guidance. So even if they can make the students do all the filing and stuff to save time, they’ll probably spend twice as much time as they save doing intern support.

    Yeah, it does seem a bizarre choice. I imagine that they’ll just take very few cases, you know?

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