Matters of Privacy

In most of its details, the domestic-violence case of Mark Fuller was not all that unusual. One night in August, a woman called 911 from a hotel room in Atlanta, pleading for help, because a man was beating her. When the police arrived, Fuller’s wife, Kelli, opened the door. She had “visible lacerations to her mouth and forehead,” the police report said. During an argument in which she had accused her husband of infidelity, the report continued, she said that he “threw her to the ground and kicked her. Mrs. Fuller also stated she was dragged around the room and Mr. Fuller hit her in the mouth several times with his hands.” Fuller said that he had been defending himself from his wife after she threw a glass at him while he was watching TV.

In one respect, however, the case stands out from the general depressing run of such incidents. Mark Fuller is a federal judge. He has occupied his position on the U.S. District Court for the Middle District of Alabama since 2002, when President George W. Bush appointed him. (Fuller has a national reputation as a result of having presided over the controversial bribery trial of the former Alabama governor Don Siegelman, a Democrat.) He was arrested that night in August and released on bond the next day—not an uncommon turn of events in misdemeanor domestic-violence arrests. More unusual was the fact that Fuller accepted a plea deal in which he agreed to enter counselling—once a week for twenty-four weeks—rather than stand trial. Under this arrangement, his arrest record could be expunged. It was, as another federal-court judge and Republican appointee, Richard George Kopf, noted in a blog post, “a sweet deal.” It may sound familiar, because Ray Rice, the N.F.L. running back caught on videotape knocking his then fiancée unconscious, got a similar bargain. But, nationally, fewer than ten per cent of domestic-abuse charges lead to pretrial diversion programs.

Fuller’s case also raised an unusual question: what to do with a judge whose judgment is so manifestly impaired? It took a little while, but many leading politicians in Alabama, most of them Republicans, have now called for his resignation. His “unacceptable personal conduct violates the trust that has been placed in him,” Senator Jeff Sessions said. Fuller has refused to resign, however, so, according to the Times, Representative Martha Roby has suggested that Congress could initiate impeachment proceedings against him. But only fifteen federal judges have ever been impeached, and, in most cases, it was on account of improper behavior in the courtroom, such as drunkenness or perjury. It also seems unlikely that impeachment would be taken up in the Republican-controlled House. Judge Kopf said that Fuller should be stripped “of his ability to hear cases for as long as the law allows.” He added, “It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal-trial courtroom.”

Like other public figures caught up in scandal, Mark Fuller has asked for privacy. “As difficult as this situation is, I hope that you can respect the need to let my family heal as we move forward with addressing our private and personal family issues,” he said. Such requests elicit some sympathy, at least for the other family members, but, in the case of domestic violence, privacy carries an unfortunate set of implications: for a long time, privacy and the sanctity of the home were ideas that stood in the way of treating an assault on an intimate partner as a crime.

The doctrine of chastisement, under which a husband could physically punish a defiant wife, as long as her injuries weren’t permanent, held sway in Anglo-American common law until the mid-nineteenth century. By then, the authoritarian notion of marriage was giving way to the idea that a husband’s dominion over his wife and children shouldn’t be physically enforced, and wife-beating was increasingly seen as brutal and low-class. In fact, one of the first states to rescind the right of chastisement was Alabama, in 1871, in a case called Fulgham v. State. “The wife is not to be considered as the husband’s slave,” the State Supreme Court held. “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.”

But, as the Yale law professor Reva Siegel has shown, courts and legislatures “vehemently condemned chastisement doctrine, yet routinely condoned violence in marriage.” What was often used to justify this paradox was obeisance to marital privacy. In a North Carolina case from 1868, State v. A. B. Rhodes, the State Supreme Court declined to enforce charges against a man who whipped his wife “with a switch about the size of one of his fingers (but not as large as a man’s thumb).” It did so not because it was upholding the husband’s right to chastise his wife “but because the evil of publicity would be greater than the evil involved in the trifles complained of; and because they ought to be left to family government.” The court cautioned against “raising the curtain upon domestic privacy.”

That was the thinking that shaped law enforcement and the broader understanding of domestic violence for most of the twentieth century. Violence in the home was regarded as something that was unfortunate but private, and arrests were discouraged in favor of mediation. It was not until the nineteen-seventies and eighties—when feminists and the battered-women’s movement brought renewed attention to the problem, introducing shelters and hot lines, and treating assault within the family as seriously as assault outside of it—that law enforcement and legislatures responded, passing mandatory arrest laws, creating domestic-violence units in prosecutors’ offices, and making it somewhat easier to obtain and enforce protection orders.

The incidence rate of domestic violence remains high, but it has dropped markedly in the years since that movement began. According to the Justice Department, it fell by sixty-seven per cent between 1994 and 2012. To some extent, that mirrors the general decrease in violent crime in the same period. This may be due, in part, to the increasing economic independence of women, which affords them more freedom to leave abusive relationships. But experts also point to the reforms brought about by the greater awareness of domestic abuse—by the raised curtain that the courts once feared, and that, apparently, some federal judges still do.

Original Article
Source: newyorker.com/
Author: BY MARGARET TALBOT