Placing Topeka’s Possible Decriminalization of Misdemeanor Domestic Battery in Historical Context

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After my previous post on the possibility of Topeka decriminalizing misdemeanor domestic battery, I decided to do some research to see if there is any historical precedent for such an action. It turns out that there is (sort of). In 1962, New York passed the Family Court Act. According to Judith A. Smith, Battered Non-Wives and Unequal Protection Order Coverage: A Call for Reform, 23 Yale L. & Pol’y  Rev. 93, 128-29 (2005).

The original version of the statute gave exclusive original jurisdiction to the family court “over any proceeding concerning acts which would constitute disorderly conduct or assault between spouses or between parent and child or between members of the same family or household.”In 1969, in addition to disorderly conduct and assault, the legislature added harassment, menacing, reckless endangerment, and attempted assault to the crimes over which the family court had exclusive jurisdiction.

The Family Court Act changed the crimes it covered into “family offenses” when committed against family or household members, and the criminal court could hear “family offenses” only if the family court transferred the case. This procedure basically decriminalized family offenses. The family court’s discretionary transfer power was used in just two percent of the 18,511 petitions that were filed in 1971-72, and the 17,277 petitions filed in 1972-73. But this act also created the only civil means short divorce for victims of domestic violence to obtain civil protection orders.

Now, obviously, these two situations are different in a number of regards, not the least of which is that New York’s decriminalization was constructive while Topeka’s decriminalization would be an literal decriminalization. But even a constructive decriminalization can be difficult to overturn. You can check out Judith Smith’s article (linked above) to see how long and difficult it was to extricate “family offenses” from the family court ghetto. One can only imagine how difficult it would be to overturn an actual decriminalization of misdemeanor domestic battery.

-Colin Miller

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