It’s not the elevator scene that comes to mind when one thinks of 50 shades, but, analogous to the case of Mr. Grey, the elevator incident involving Baltimore Ravens running back Ray Rice reveals only one of the many faces of domestic abuse. Although the recent high-profile domestic violence cases shed light on a troubling reality, the brutality of the incidents overshadows non-violent behavior that some may not even know qualifies as domestic abuse. These forms of domestic abuse may not involve physical injury, but their effects on the victim(s) are no less traumatic.
In confronting the many shades of domestic abuse, the challenge for the NFL, as well as other organizations and institutions, is recognizing and redressing the less audacious forms of abuse with the same vigilance with which they handle physical violence. As discussed herein, the NFL needs to take notes from California’s family law statutes and how they deal with domestic issues. A comprehensive description of what constitutes a violation of the rules, along with reasonable penalties and consistent enforcement, provide the framework to handle the various forms of domestic abuse.
For example, in child custody cases, California Family Code section 3044(a) states that if, within the previous five years, a person seeking custody of a child “perpetrated domestic violence” against the other person seeking custody, there is a rebuttable presumption that awarding custody of the child to the abuser would be “detrimental to the best interest of the child . . . .” Cal. Fam. Code § 3044(a). [FN 1] For the purposes of Section 3044, “perpetrated domestic violence” is defined as follows:
[Being] found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another. § 3044(c). [FN 2]
Section 3044’s definition includes the familiar forms of domestic violence, but it also captures acts of abuse that do not necessarily involve physical injury. Also, the penalty, a presumption that the abuser should not have custody of children, is reasonably harsh, but fair because the presumption can be overcome by a preponderance of the evidence. Further, the statute provides the mens rea necessary to be found liable, i.e., intentional or reckless conduct, which also gives clarity and broader coverage. These components combine to give Section 3044 the flexibility necessary to handle the spectrum of domestic violence cases.
In Christina L. v. Chauncey B., the California Court of Appeal confirmed that, under Section 3044, harassing and disturbing the peace by repeatedly showing up at one’s place of employment is domestic abuse too and, like physical abuse, can raise legal barriers to a person’s ability to obtain or maintain custody of children. [FN 3] A mother appealed an order granting the father of her son and daughter joint legal and physical custody of the children. She argued that, pursuant to Section 3044, a DVPA restraining order issued against the father in 2011 should have precluded him from being awarded joint custody. [FN 4] The restraining order was based on evidence that, in addition to having a history of physical abuse, the father “confronted the mother at her place of work, in front of a manger and customers,” and repeatedly told her “she needed to answer her phone.” The father was also seen on several occasions parked near her car at her workplace; however, there were no allegations of physical violence in the 2011 incidents.
Nevertheless, the Court ruled that “[h]arassing and disturbing the peace of another is sufficient to constitute domestic violence for the purposes of section 3044.” The Court determined that the presumption should have applied and, therefore, reversed the trial court’s order. On remand, the father will have the opportunity to rebut the presumption that was raised by Section 3044. Therefore, Section 3044’s comprehensive definition of what constitutes domestic violence allows the courts to severely discipline non-violent forms of domestic abuse, but also allows the accused the opportunity to rebut the presumption and the punishment by a mere preponderance of the evidence.
In contrast, domestic violence under the NFL’s conduct policy is poorly defined, and the disciplinary process has been inconsistent and narrowly focused on incidents involving physical force. Prior to the recent enhancements, the NFL’s Personal Conduct Policy allowed it to impose discipline for criminal offenses including, but not limited to, “domestic violence and other forms of partner abuse.” [FN 5] But the League’s disciplinary power was vague and uncertain – ranging from fines, suspension, or banishment – and the punishments that were handed out were relatively light. In fact, unless the case involved egregious circumstances, significant bodily harm, or substantial risk to the reputation of the NFL, a first offense generally did not result in immediate discipline under the Personal Conduct Policy. As a result, many NFL players accused of domestic abuse were allowed to play while their cases proceeded through the legal system.
In response to the outcry that followed the handling of the Rice incident and other domestic violence cases involving NFL players, the League announced a new policy that clearly defines and increases the penalties for “violations of the Personal Conduct Policy regarding assault, battery, domestic violence and sexual assault that involve physical force.” [FN 6] It imposes a six game ban without pay for the first offence, and a lifetime ban (with the ability to petition for reinstatement after one year) for the second offense. However, even in the enhanced penalties, the focus remains on physical abuse. In light of the violent nature of the recent high-profile domestic abuse cases – such as Chris Brown, Chad Johnson, Hope Solo, John “War Machine” Koppenhaver, and Adrian Peterson – it’s easy to understand why. However, there are also lesser known patterns of behavior that cause severe mental, emotional and psychological trauma, which can only be diagnosed with a better appreciation of the entire spectrum of domestic abuse.
NFL Commissioner Roger Goodell promised to restructure the Personal Conduct Policy to address the issue of domestic violence so it will be interesting to see how the NFL’s new policy deals with this complex issue. Will the NFL’s penalties be too rigid to properly deal with the many forms of domestic abuse? How will the NFL’s revamped Personal Conduct Policy handle cases where there is harassment, but no physical violence? Will inflexible penalties entice the League into making absurd decisions regarding what is or is not domestic violence in attempts to make the crime fit the punishment, particularly when superstar players are involved? The answers to these questions and others will play out over the months and years to come as the domestic violence landscape continues to shift and more cases are brought into the light.
In the meantime, we should all take time to venture beneath the surface and take a deeper look at the many shades of domestic violence. Domestic abuse ranges from physical force to more subtle forms of psychological and emotional assault, such as spiritual abuse, financial abuse, sexual exploitation and humiliation. Seriously confronting this issue starts with an awareness of the many facets. Then, the laws and policies can be drafted with comprehensive definitions of what domestic violence is, as well as fair and reasonable penalties for violations. Clearly, the NFL is trying to toughen its stance on domestic violence by increasing the penalty; however, it remains to be seen whether the enhanced penalties and the restructured Personal Conduct Policy will have the dexterity to adequately deal with the many forms of abuse.*
Dwayne A. Anderson, Esq.
Anderson Law Offices
[email protected]
www.daandersonlaw.org
[FN 1] The procedure and protocol for determining best interest under Family Code Section 3044 is governed by Section 3011. Pursuant to Section 3011, for anyone seeking custody of a child, the court shall consider, among other things, his/her history of domestic abuse against (1) any child to whom he/she is related or with whom he/she had a caretaking relationship; (2) the other parent; and (3) his/her parent, current spouse, cohabitant or a person he/she has a dating or engagement relationship.
[FN 2] Section 3044(c), and the conduct listed as domestic violence therein, applies to child custody matters. The Family Code’s general definition of domestic violence, derived from Sections 6203, 6211 and 6320, is more expansive and also includes, molesting, attacking, stalking, battering, credibly impersonating, falsely personating, telephoning, contacting, either directly or indirectly, by mail or otherwise, and coming within a specified distance.
[FN 3] http://scholar.google.com/scholar_case?case=16557627932632709672&q=christina+L.+v.+chauncey+b&hl=en&as_sdt=2006&as_vis=1
[FN 4] The Domestic Violence Prevention Act, Cal. Fam. Code §§ 6200, et seq. Section 6300 of the DVPA gives courts the power to issue restraining orders, with or without notice, to prevent the recurrence of domestic violence upon a showing of “reasonable proof of a past act or acts of abuse.”
[FN 5] http://images.nflplayers.com/mediaResources/files/2012%20Personal%20Conduct%20Policy.pdf
[FN 6] http://profootballtalk.nbcsports.com/2014/08/28/roger-goodells-letter-to-nfl-owners-on-domestic-violencet/
*If you or someone you know is dealing with domestic violence issues and would like advice or legal representation, please don’t hesitate to contact us at (323) 753-8528 or via e-mail at [email protected].
In confronting the many shades of domestic abuse, the challenge for the NFL, as well as other organizations and institutions, is recognizing and redressing the less audacious forms of abuse with the same vigilance with which they handle physical violence. As discussed herein, the NFL needs to take notes from California’s family law statutes and how they deal with domestic issues. A comprehensive description of what constitutes a violation of the rules, along with reasonable penalties and consistent enforcement, provide the framework to handle the various forms of domestic abuse.
For example, in child custody cases, California Family Code section 3044(a) states that if, within the previous five years, a person seeking custody of a child “perpetrated domestic violence” against the other person seeking custody, there is a rebuttable presumption that awarding custody of the child to the abuser would be “detrimental to the best interest of the child . . . .” Cal. Fam. Code § 3044(a). [FN 1] For the purposes of Section 3044, “perpetrated domestic violence” is defined as follows:
[Being] found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another. § 3044(c). [FN 2]
Section 3044’s definition includes the familiar forms of domestic violence, but it also captures acts of abuse that do not necessarily involve physical injury. Also, the penalty, a presumption that the abuser should not have custody of children, is reasonably harsh, but fair because the presumption can be overcome by a preponderance of the evidence. Further, the statute provides the mens rea necessary to be found liable, i.e., intentional or reckless conduct, which also gives clarity and broader coverage. These components combine to give Section 3044 the flexibility necessary to handle the spectrum of domestic violence cases.
In Christina L. v. Chauncey B., the California Court of Appeal confirmed that, under Section 3044, harassing and disturbing the peace by repeatedly showing up at one’s place of employment is domestic abuse too and, like physical abuse, can raise legal barriers to a person’s ability to obtain or maintain custody of children. [FN 3] A mother appealed an order granting the father of her son and daughter joint legal and physical custody of the children. She argued that, pursuant to Section 3044, a DVPA restraining order issued against the father in 2011 should have precluded him from being awarded joint custody. [FN 4] The restraining order was based on evidence that, in addition to having a history of physical abuse, the father “confronted the mother at her place of work, in front of a manger and customers,” and repeatedly told her “she needed to answer her phone.” The father was also seen on several occasions parked near her car at her workplace; however, there were no allegations of physical violence in the 2011 incidents.
Nevertheless, the Court ruled that “[h]arassing and disturbing the peace of another is sufficient to constitute domestic violence for the purposes of section 3044.” The Court determined that the presumption should have applied and, therefore, reversed the trial court’s order. On remand, the father will have the opportunity to rebut the presumption that was raised by Section 3044. Therefore, Section 3044’s comprehensive definition of what constitutes domestic violence allows the courts to severely discipline non-violent forms of domestic abuse, but also allows the accused the opportunity to rebut the presumption and the punishment by a mere preponderance of the evidence.
In contrast, domestic violence under the NFL’s conduct policy is poorly defined, and the disciplinary process has been inconsistent and narrowly focused on incidents involving physical force. Prior to the recent enhancements, the NFL’s Personal Conduct Policy allowed it to impose discipline for criminal offenses including, but not limited to, “domestic violence and other forms of partner abuse.” [FN 5] But the League’s disciplinary power was vague and uncertain – ranging from fines, suspension, or banishment – and the punishments that were handed out were relatively light. In fact, unless the case involved egregious circumstances, significant bodily harm, or substantial risk to the reputation of the NFL, a first offense generally did not result in immediate discipline under the Personal Conduct Policy. As a result, many NFL players accused of domestic abuse were allowed to play while their cases proceeded through the legal system.
In response to the outcry that followed the handling of the Rice incident and other domestic violence cases involving NFL players, the League announced a new policy that clearly defines and increases the penalties for “violations of the Personal Conduct Policy regarding assault, battery, domestic violence and sexual assault that involve physical force.” [FN 6] It imposes a six game ban without pay for the first offence, and a lifetime ban (with the ability to petition for reinstatement after one year) for the second offense. However, even in the enhanced penalties, the focus remains on physical abuse. In light of the violent nature of the recent high-profile domestic abuse cases – such as Chris Brown, Chad Johnson, Hope Solo, John “War Machine” Koppenhaver, and Adrian Peterson – it’s easy to understand why. However, there are also lesser known patterns of behavior that cause severe mental, emotional and psychological trauma, which can only be diagnosed with a better appreciation of the entire spectrum of domestic abuse.
NFL Commissioner Roger Goodell promised to restructure the Personal Conduct Policy to address the issue of domestic violence so it will be interesting to see how the NFL’s new policy deals with this complex issue. Will the NFL’s penalties be too rigid to properly deal with the many forms of domestic abuse? How will the NFL’s revamped Personal Conduct Policy handle cases where there is harassment, but no physical violence? Will inflexible penalties entice the League into making absurd decisions regarding what is or is not domestic violence in attempts to make the crime fit the punishment, particularly when superstar players are involved? The answers to these questions and others will play out over the months and years to come as the domestic violence landscape continues to shift and more cases are brought into the light.
In the meantime, we should all take time to venture beneath the surface and take a deeper look at the many shades of domestic violence. Domestic abuse ranges from physical force to more subtle forms of psychological and emotional assault, such as spiritual abuse, financial abuse, sexual exploitation and humiliation. Seriously confronting this issue starts with an awareness of the many facets. Then, the laws and policies can be drafted with comprehensive definitions of what domestic violence is, as well as fair and reasonable penalties for violations. Clearly, the NFL is trying to toughen its stance on domestic violence by increasing the penalty; however, it remains to be seen whether the enhanced penalties and the restructured Personal Conduct Policy will have the dexterity to adequately deal with the many forms of abuse.*
Dwayne A. Anderson, Esq.
Anderson Law Offices
[email protected]
www.daandersonlaw.org
[FN 1] The procedure and protocol for determining best interest under Family Code Section 3044 is governed by Section 3011. Pursuant to Section 3011, for anyone seeking custody of a child, the court shall consider, among other things, his/her history of domestic abuse against (1) any child to whom he/she is related or with whom he/she had a caretaking relationship; (2) the other parent; and (3) his/her parent, current spouse, cohabitant or a person he/she has a dating or engagement relationship.
[FN 2] Section 3044(c), and the conduct listed as domestic violence therein, applies to child custody matters. The Family Code’s general definition of domestic violence, derived from Sections 6203, 6211 and 6320, is more expansive and also includes, molesting, attacking, stalking, battering, credibly impersonating, falsely personating, telephoning, contacting, either directly or indirectly, by mail or otherwise, and coming within a specified distance.
[FN 3] http://scholar.google.com/scholar_case?case=16557627932632709672&q=christina+L.+v.+chauncey+b&hl=en&as_sdt=2006&as_vis=1
[FN 4] The Domestic Violence Prevention Act, Cal. Fam. Code §§ 6200, et seq. Section 6300 of the DVPA gives courts the power to issue restraining orders, with or without notice, to prevent the recurrence of domestic violence upon a showing of “reasonable proof of a past act or acts of abuse.”
[FN 5] http://images.nflplayers.com/mediaResources/files/2012%20Personal%20Conduct%20Policy.pdf
[FN 6] http://profootballtalk.nbcsports.com/2014/08/28/roger-goodells-letter-to-nfl-owners-on-domestic-violencet/
*If you or someone you know is dealing with domestic violence issues and would like advice or legal representation, please don’t hesitate to contact us at (323) 753-8528 or via e-mail at [email protected].
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