Marla R. Stevens

ACLU vs Domestic Violence Victims

Filed By Marla R. Stevens | January 05, 2006 7:31 PM | comments

Filed in: Action Alerts, The Movement, The Movement

The ACLU filed an amicus brief with the Supreme Court in the combined case of Davis v. Washington and Hammon v. Indiana, cases dealing with whether domestic violence laws and practices that provide for prosecution of abusers based on victims' statements to police and on 911 tapes proximal to the abuse (that the courts are not disputing to be reliable) when the victims cannot or will not testify in court can be upheld.

What it boils down to is that the ACLU -- no doubt in the form of the I[ndiana]CLU or at least with a surfeit of their board's typically shortsighted and overly conservative legal reasoning -- is filing a brief to undercut domestic violence law, claiming that these statements should be judged under the same standard as other ex parte statements (less reliable and more subject to coercion) despite that there's been zero evidence that they are anything but the most reliable, least coerced statements from domestic violence victims -- victims whose statements have been proven to become, in the aggregate when the victims are not available to testify, less reliable over time, not more reliable due to the actually coercive agents at play here: the abusers.

The ACLU's big solution to the dilemma of wanting to uphold the Confrontation Clause of the Sixth Amendment and their so-called "commitment" to domestic violence victims is to tell the criminal justice system -- overworked, underfunded police and prosecutors who historically before these statements were considered evidentiary absent victims' in-court corroboration didn't much give a damn about these cases anyway because they were so frustrating to deal with what with their uncooperative complaining witnesses -- that it should just do a better job of getting these victims to court by spending money and time the system doesn't have and isn't going to have to provide "access to advocates who explain the process, help victims ensure their safety, and work with victims to deal with the legal, economic, and medical issues stemming from the violence." They smugly state, "This is not surprising, but it is often overlooked."

This brief is 'blame the victims' one step removed to 'shift an impossible burden to the victims in a manner that will virtually guarantee that they will remain victims' -- especially in light that the dichotomy the ACLU has framed between the needs of these victims and society versus the Constitution is a false one.

I am most deeply unimpressed with the "help victims ensure their safety" line. Makes me wonder if these all-head-no-heart, all-theory-no-sense lawyers ever actually dealt with a domestic violence case with an offender like an O.J. Simpson who wouldn't take a protective order seriously and just kept coming and coming in an inevitable progression to death -- dealt with such a victim enough to understand that nothing short of putting these obsessed abusers in prison will "help victims ensure their safety" -- and that even that isn't always enough. I wonder what it would take for them to understand that sometimes the only protection these women can create to "help [themselves] ensure their safety" is to not testify, thus giving themselves plausible deniability with their abusers by letting the law shift to itself the burden of holding the abusers feet to the fire -- especially as these statements can be understood NOT to be a danger to the Confrontation Clause when properly understood to be the most reliable statements from these victims.

The ACLU often does great work and we, as a people, owe them a great deal but, in this case, they're hurting us and should hear about it -- as should the Court.

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Interestingly enough, the Indiana Civil Liberties Union is not the ICLU anymore. As of the first year, the ICLU became the ACLU-Indiana.

If anyone would like to make their own conclusions about the ACLU's position described above, the Brief in question--and a synopsis of why the ACLU is involved--is online at

The ACLU has a long-standing commitment both to the fairness of criminal trials and to the protection of equal rights for women, including the protection of women from domestic violence. This brief advocates that domestic violence crimes be vigorously prosecuted, albeit within consitutionally appropriate methods that preserve the right of the criminally accused to confront the witnesses against them.

As the Brief states, "a strategy to address domestic violence cannot be premised on an end run around the Constitution."


Fran Quigley
ACLU of Indiana
1031 East Washington Street
Indianapolis, IN 46202

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Marla Randolph Stevens | January 8, 2006 7:41 AM

If these practices were an end run around the Constitution, I'd be the first to say that, despite that they and the shelter system are the best practical solutions to the problem, they should be prohibited by the Court.

But the ACLU's reasoning is faulty here, as I pointed out. I, too, included a link to their brief as a way of encouraging our dear readers compare it and my comparatively succinct analysis of it and come to their own conclusions.