Ross Mirkarimi Shocks Legal Scholars With Claim That Abuse Allegations Are "a Family Matter"

The original article can be found on SFweekly.com here.

Tuesday, Jan. 10th, 2012
by Joe Eskenazi


Ross Mirkarimi is innocent. 

Of course he is -- he is innocent until proven guilty. It remains to be seen if District Attorney George Gascón will even  charge the sheriff with domestic abuse following a police report filed by Mirkarimi's neighbor

Regardless, the language Mirkarimi has used to describe the situation has deeply troubled legal scholars with an expertise in the state's domestic violence laws. For a top city law enforcement official to describe abuse allegations in which a police report has been filed and an investigation is under way as "a private matter, a family matter" -- as Mirkarimi did -- is both legally incorrect and sends the disturbing message that accusations of domestic violence are to be kept behind closed doors. 

In fact, Nancy K.D. Lemon, a lecturer at U.C. Berkeley's Domestic Violence Law Seminar, notes that one of the questions on her recent final exam was "Give some examples of how we are moving away from seeing domestic violence as a private, family matter." 

The notion that allegations of domestic abuse belong out of the public eye is "a very antiquated view of domestic violence," Lemon says. "A century ago we thought it was a private, family matter. We found a lot of people were hurt -- or killed." Rather than treat domestic violence as a domestic problem, Lemon notes, it is now seen as a crime against the state. That's why prosecutors can move ahead with charges, even if the alleged victim refuses to cooperate, or even actively opposes the process. 

To classify domestic violence as a problem for families to sort out on their own exposes a mentality "predating the 1970s," says professor Marisa Cianciarulo, the director of Chapman University's Family Violence Clinic. The nation's first Domestic Violence Protection Act was enacted in Pennsylvania in 1976; California followed shortly thereafter. Prior to that time, an attack that, by a stranger, would constitute battery could go uncharged if it was received in a domestic attack. 

But the pendulum has shifted. Lemon notes that a lower standard is necessary for a felony charge in domestic battery than in a general case. "Police often tell me it's seven stitches or a broken bone," to garner felony charges in a battery case, she says. "In domestic violence, on the other hand, even something as minor as a bloody nose, a scratch or bruise, or a black eye could result in a felony arrest." 

What's more, the old "she started it" defense doesn't hold. Police now look for the "dominant aggressor." Who started the fight "is irrelevant," Lemon continues. "The real question is, who responded appropriately or who overreacted?" 

In short, the law has changed a great deal since allegations of domestic violence truly were a family matter. To claim the same today "sends the message that it's okay for the head of the household to be abusive with his or her spouse or partner," says professor Wendy Seiden, Cianciarulo's colleague at the Family Violence Clinic. "It says violence is okay if it's in the family." 

In fact, Seiden notes, none other than O.J. Simpson referred to alleged domestic abuse as "a family matter." 

No one would lump the deeds -- alleged or otherwise -- of Mirkarimi and Simpson together. They have, however, both chosen a most unfortunate set of words.