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Bar News - April 13, 2012

Opinion: Domestic Violence: Progress, Plenty Still to Do


Good morning. I would like to thank the NHBA Gender Equality Committee and specifically Beth Deragon, for inviting me, and Holly Haines for the very kind introduction. It is an honor to be here – and to be able to join personally in congratulating Justice Hicks for receiving the 2011 Hollman Award.

It is such a pleasure to be back in NH. Serving as Director of OVW for the past two years has been an extraordinary privilege, but I have missed NH and my work on the bench dearly.

Beth and I had a few conversations about what I’d speak on today – women’s role in the profession, the path to the judiciary, and especially since having chaired the original (1987) Task Force, what changes I’ve seen over the past 20 years in light of the most recent (2009) survey, as well as the Gender Equality Committee Initiative. And then, the work of OVW – new and current issues on the horizon – and yes, in 15 minutes! (So, I can either talk really fast, or hydroplane over time!)

In looking at these two areas (women in the Bar and the violence against women movement), there are, not surprisingly, many intersections. The work of women in the profession is a microcosm of women’s progress – a subset, if you will, and the violence against women movement, likewise a microcosm – of progress (and setbacks) we are seeing in this country and abroad. Progress is not always linear on either front – and it takes patience, persistence and fortitude to make change.

For those of you not familiar with the Office on Violence Against Women (OVW), let me give you a quick overview. We are an independent part of the Department of Justice, created in 1995 to implement the Violence Against Women Act passed by Congress in 1994. (The Act has been reauthorized twice, and is currently up for reauthorization.) We provide national leadership on domestic violence, sexual assault, dating violence and stalking. We support multi-faceted approaches to addressing these crimes through the implementation of grant programs, training and technical assistance. We have three formula programs (meaning there is a pre-determined distribution of funds), and 18 discretionary programs, meaning competitive, and indeed they are. Probably most of you are familiar with the STOP formula program (Services*Training*Officers*Pro-secution) which is the core program that funds advocates, law enforcement, prosecutors and courts in every state and territory. It is the quintessential program that promotes and implements a coordinated community response (CCR) to crimes against women. Overall, VAWA seeks to improve community safety through the dual goals of victim safety (and victim-centered approaches) and offender accountability. Over the past 17 years, OVW has administered over $4 billion in grants. Engaging Men is our newest grant program. We recognize that men and boys have a vital role to play in ending violence against women. They are powerful allies and advocates.

VAWA was born of a grass-roots effort on the part of advocates who felt that the criminal justice system was not doing enough to protect women who were being physically abused or sexually assaulted with impunity. Although some progress was being made on individual state levels, there was too little in the way of a comprehensive response across the country; the collective perception was that we needed a much stronger federal response to support states and local communities.

The backdrop for this dates back to our common law – where women and children were the property of their husbands and fathers. At Common Law, the "Rule of Thumb" permitted a father/husband to (legally) beat his child/wife with an instrument (usually a stick of some sort) provided it was no wider than his thumb. Another version of the "rule of thumb" was the "wedding ring radius": a husband could make "moderate correction" of his wife without fear of sanction provided the rod he utilized could fit through his wedding band. This is our legal heritage. And this was institutional oppression. It reflected the view that women were not as valuable as men; they certainly did not enjoy the same rights or privileges as men. They were subservient – legally and socially. And no laws were in place to protect them.

To further understand the context of VAWA, it is helpful to refresh our understanding of the history of women in the profession.

Women had to fight long and hard to secure what men had long enjoyed. Let me give you a few "points in time" to help frame your memory:
  • In 1869 – it was 143 years ago that the first woman in the country was admitted to a state bar (Arabelle Mansfield, in Iowa).
  • That same year, the Illinois Supreme Court refused to admit Myra Bradwell.
  • Ms. Bradwell appealed to the United States Supreme Court hoping for a more favorable view, but, in 1873, the Court sustained the Illinois decision. The concurring opinion of Justice Bradley has oft been quoted: "[T]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." [Bradley v. IL, 83 US 130 (1873)]
  • In 1879, six years later (and 10 following the Iowa admission), the United States Supreme Court finally admitted a woman to the highest court in our country: Belva Lockwood, from Wyoming.
Now, as we observed a few minutes ago, progress is not linear, and an important case was decided in Alabama in 1871. At the same time we are being told women are too "timid" for public life, the Alabama Supreme Court repudiated violence at the hands of a woman’s husband. The case involved what we now refer to as the co-occurrence of domestic violence and child abuse. A husband/father had been "reprimanding" the parents’ son when the mother attempted to intercede. As the child ran up the stairs to escape the beating being inflicted upon him, the mother followed, trying desperately to protect the child when the husband began beating her as well. He was charged with misdemeanor assault. His defense was his right to "moderately correct" his wife who was interfering with his parental responsibilities. In no uncertain terms, the Court wrote: "The wife is not to be considered as the husband’s slave. And the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law." [Fulgham v. State, 46 Ala. 143, 1871]

It was around this same time that the women’s suffrage movement began. We often forget how fundamental that was to women’s progress. Here in New Hampshire, Marilla Ricker was the first woman who tried to vote in 1870. Her husband having passed away, she was now a widow who had inherited his land and was paying taxes. Hence, she assumed she should enjoy the privileges that come with the responsibility of taxation. She, of course, was denied, but continued, annually, for the next 49 years, despite condemnation by both men and women. In her view, without the vote, women would never have equal economic power. In 1909 she wrote: "So long as woman has no political status, she will be the underdog as a wage-earner." Sadly, we are still seeing vestiges of economic disparities today.

Along the way, in 1890, Marilla Ricker was admitted to the New Hampshire Bar, supported by Chief Justice Charles Doe whose daughter would later serve in the New Hampshire House of Representatives.

Finally, in 1920, the 19th Amendment passed, giving women voice: the right to speak, and the right to be heard. We too often forget how women were beaten, shackled, jailed and force-fed for their efforts in securing the right of women to have a vote. But this right set the stage for validating women’s experiences, and ultimately opening the door to advancements in our own profession, and in securing laws that protect the dignity and integrity of all individuals.

We all know that passing a law does not in and of itself guarantee change; indeed, passing a law is the first step, but only one of many needed to secure the behavioral and attitudinal change that is necessary to effect meaningful, operational change.

It took 54 years – from 1869 to 1923 – before for every state had admitted at least one woman (Delaware was the last – seemingly ironically, given that Vice President (then-Senator) Biden was the chief architect of VAWA). Even then, as of the 1970s, women still comprised only five percent of the nation’s lawyers.

In the violence against women movement, things were beginning to change, albeit slowly. Every state had a rape crisis center by 1979 and domestic violence shelters were providing a safety net for abused women across the country. Laws protecting women were emerging; in fact, New Hampshire’s in 1977 was one of the first in the nation.

Further progress came in the decade of the 80s, when nationally, women comprised 18 percent of the bar, and 22 percent of the bench (although only 5 percent in New Hampshire). However, New Hampshire was one of the first in the country to have a female judge: Idella Jenness of Pittsfield was the state’s first in 1935. Judge Jenness, however, was not law-trained. It was another 44 years before New Hampshire witnessed its first law-trained female judge, the Honorable Jean Burling, who was first appointed to the Claremont District Court in 1979 and later served on the superior court. One year later, the Honorable Linda S. Dalianis was appointed and became the first woman to serve on the state’s Superior Court, and the first on the state’s Supreme Court in 2000. This was followed by her appointment as Chief Justice, the first female Chief Justice, in 2010 following the retirement of Chief Justice John T. Broderick, Jr.

In the 1980s the ABA created its Commission on Women. We also began seeing studies of gender bias in the legal profession, and this, of course, takes us to our first Task Force on Women in the Profession. This Bar has been steadfastly dedicated to taking a critical look at where improvements are needed. Central to any such effort is examining where we are, and then educating and raising awareness. Without basic information, we are powerless to make change. Twice since then, the Bar has surveyed its members for current information: in 1997 and again in 2009. And we should do it again.

In 1988, we reported our findings and recommendations. Through a rigorous survey and public hearings in every county, we discovered that women were not fairing equitably within the profession. Women experienced discrimination in hiring, promotion, and salary, even when taking years of experience, size of firm, and geographic location into account. Further, they were carrying the load of family life, both deferring having children until their careers were established, and then, once having children, effectively doing double-duty as professional and parent, carrying the principal load of child-rearing responsibilities. And finally, women were the objects of sometimes blatant, overt acts of sexism and indignity.

Fortunately we are seeing many positive trends. Overt acts of disrespect rarely occur today. Whereas 79 percent of women reported condescending treatment in the original study, and 69 percent reported being subjected to sexist jokes, the latter number dropped to 58 percent in 1997, and to 28 percent in 2009 – still unacceptably high, but an improvement nonetheless.

Similarly, whereas nearly one-quarter (24 percent) of the Bar reported inappropriate verbal advances by male attorneys toward female attorneys in 1987, and 18 percent reported inappropriate touching, those numbers dropped to 10 percent in 1997 – great progress. Sadly, however, there has been NO change in the past decade, something which should give us all pause.

Other gaps are closing, however, and to the extent there are concerns about satisfaction with the profession and opportunities for flexible time, they are more closely shared by men and women.

In the violence against women movement, we are seeing positive changes as well. Between 1993 and 2010, the annual incidence of domestic violence dropped by 67 percent. Not only are fewer people being victimized, but when they are, they feel safer reporting to law enforcement, and are far more likely to experience a positive, helpful response, and see their cases through to prosecution. The percentage of victims of rape and sexual assault who reported their crimes doubled during this time. And significantly, the number of individuals killed by an intimate partner declined 30 percent for women and 66 percent for men.

Having said all that, we must be vigilant, because the work is far from done. In the most groundbreaking research released in December by the Centers for Disease Control, we have learned these troubling reminders of just how much work lies ahead:
  • 1 in 5 women and 1 in 71 men have been raped in their lifetimes;
  • 1.3 million women are raped every year;
  • 1 in 6 women and 1 in 19 men have been stalked (stalking, as we know, is a significant risk factor in domestic homicide); and
  • 1 in 4 women and 1 in 7 men have been the victim of severe violence by an intimate partner (although women are many more times more likely to need medical care for injuries as a result of the violence).
And in other recent research, we learned that in 2009, 1 in 10 high school students (boys and girls) reported being hurt on purpose by a boyfriend or girlfriend.

These numbers are all troubling, and much remains to be done if we are going to see an end to violence in our homes and communities. The need for reauthorization of the Violence Against Women Act cannot be overstated.

Read Part 2 of Judge Carbon’s keynote address at the Gender Equality Breakfast.

Susan B. Carbon

Susan B. Carbon, the second female NH Bar President (1993-94) and chair of the Women in the Profession Task Force, was a Concord District Court Judge and a Supervisory Judge in the Grafton County Family Division before her appointment to the Obama administration in 2009.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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