[A crosspost from Family Scholars Blog.]
Douglas Allen, in an interview Karen linked to, said:
In the 1960s debate [over no-fault divorce], no one thought the divorce rate would change, but it changed enormously and led to a divorce culture.
A lot of social conservatives, like Allen, believe that the evidence strongly supports the view that no-fault divorce caused a permanent change in the culture — a “divorce culture,” in people get divorced at the drop of a hat.
In fact, the best evidence indicates that any changes to the divorce rate caused by no-fault divorce laws were temporary.
Douglas Allen — yes, the same Douglas Allen — and Maggie Gallagher wrote a useful review of the empirical research on no-fault divorce laws and divorce. Allen and Gallagher, both of whom are conservative on marriage issues, cite two papers in particular as the “high water mark” of divorce research, saying that “Friedberg’s study stood as the high-water mark of the no-fault divorce literature until the arrival of Wolfers (2006).”
Much of the debate over no-fault divorce and divorce rates seemed to be over with the publication of Friedberg’s (1998) seminal work in the American Economics Review. This paper created a panel data set of every divorce in the United States from 1968 to 1988. It used sophisticated econometric techniques to control for state endogeneity and changes in behavior over time. She tested for different legal classifications, and performed a series of robustness tests. In the end she found that no-fault divorce laws led to a 6% higher divorce rate and that they accounted for about 17% of the increase in divorces over the time period studied. She also found that the change was permanent, and exogenous. Differences between states and changes over time, however, accounted for most of the divorce trends. She concluded: “The results above make it clear that unobserved covariates and unobservable divorce propensities — which may include for instance, social attitudes, religious beliefs, and family size — are the main determinants of divorce.”
Friedberg’s study is excellent, but it had one unavoidable limitation: Because it was conducted so soon after many states instituted no-fault divorce laws, it was not able to distinguish between permanent changes and temporary changes. When Wolfers replicated Friedberg’s study in 2006, extending it with up to date data (pdf link), he found that the increase in the divorce rate Friedberg had observed disappeared after about ten years.
A clear finding from this analysis is that the divorce rate exhibits interesting dynamics in response to a change in legal regime. […] The data broadly indicate that divorce law reform led to an immediate spike in the divorce rate that dissipates over time. After a decade, no effect can be discerned. […] It should be clear that unilateral divorce laws explain very little of the rise in the aggregate divorce rate.
Allen and Gallagher classify Wolfers as evidence that no-fault divorce laws led to a change in divorce rates, and technically they are correct. However, for most people, the difference between a temporary change in divorce rates and a lasting change in divorce rates is essential.
If “after a decade, no effect can be discerned,” then it is not legitimate to claim that the divorce law reforms of the 60s and 70s created a permanent “divorce culture,” and were a disastrous change. Rather, it seems as if the change to the laws had virtually no long-term effect on the divorce rate; the law changed in response to the culture changing, but it did not itself create cultural change.
What created the rising divorce rate? It’s obvious: Feminism and Women’s Rights.
No, no – I’m not saying that Feminism and Women’s Rights caused women to hate their husbands. I’m saying that it finally gave them the right to DO something about it.
I’m fairly sure that the amount of unhappy couples that exist today is just as high as the amount of unhappy couples in days gone by. People, throughout all of time, have gotten married hastily or for the wrong reasons, and have unwittingly enter into eventually disastrous relationships. It’s just that in the “Good” old days, women were told to shut up and accept whatever crappy, horrible thing their husband did to them. Men had more privileges than women, but they too had to succumb to social pressure to stay in really unhappy marriages.
The previously low-divorce rate was a product of an unequal society, in which a woman had really no choice but to marry a man or face horrendous poverty (or to go off and become a Nun). It was the product of a time in which, not only was it extremely hard for a woman to get a divorce, but even if they did they almost always got the short end of the deal. In the unhappy period of… well, any time before the 1970’s, a woman had to weigh up the choice: stick it through with a man who cheats on me and/or hits me, or face social humiliation, ostracism and grinding poverty and fewer opportunities for their kids. Not surprisingly, many chose to stick it through because hey, there was always a chance that when he got old enough he’d stop hitting them, right!?
While I don’t like seeing “broken” families, the higher divorce rate is actually, in many ways, a good thing for both men and women (not so much for the children though). Rather than forcefully prop up unhappy marriages and bad practices and social institutions by basically threatening to deprive a woman of economic support or deprive a man of social standing, allowing people to get divorced easier, and ensuring a fairer splitting of resources, has allowed people to escape really unhappy lifestyles. Yes, it comes at a price, but I believe that price to be worth it.
The way to stop more divorces from happening is not to go back to a horrible time in which people were forced into unhappy lives, but to try to educate society into making smarter, wiser, bonding choices. Don’t use your energy trying to prop up bad marriages. Use your energy to educate people so they make fewer bad decision leading to bad marriages.
I can’t believe that the author did not consider the effect of second wave feminism or for the fact that for the first time, many White women were leaving their gilded cages and entering the workforce en masse. When one is financially dependent on a spouse for support, it makes leaving a very daunting task. Leaving a relationship in which on is unhappy will always be heard and cause a financial setback but if one has a job, there is always the possibility of being self sufficient.
it is not legitimate to claim that the divorce law reforms of the 60s and 70s created a permanent “divorce culture,” and were a disastrous change.
I agree that the divorce law reforms did not create a disastrous cultural change. They contributed, significantly, to a BENEFICIAL cultural change. A lot of legal and social changes interacted to make people more free to leave abusive marriages and toxic relationships. I don’t think “the change in the divorce rate” is a good measure of that overall cultural change. There’s much more to it than that.
These days, it is not even slightly newsworthy that a divorced woman could be holding a job, raising a child, or renting an apartment. She is likely to face a lot of difficulties, such as low pay or problems finding enough child care…but nobody is shocked or scandalized at the general arrangement. Nobody talks about “broken homes” these days. (And words like “bastard” and “illegitimate” have become figurative insults, rather than labels that could apply to a baby.) All these changes help women who never marry, and those who delay marriage, as well as those who divorce.
It’s a virtuous cycle (in the sense of “like a vicious cycle, but with opposite effects,” not implying virtuous behavior from anybody in particular.) The social pressure, of feminist women trying to live independently, caused the law to change. Then the new law caused there to be more divorced women, trying to live independently. Large numbers of women trying to live independently create social pressure for things that make it easier for a woman to live independently — things that could be ignored when fewer people were demanding them.
Really good comments, everyone. Thanks.
I am planning to do a followup post about the many benefits of no-fault divorce; in this post I just wanted to push back against the idea that no-fault divorce laws created high divorce rates. I’m not sure how much that idea comes up in lefty forums, but on right-wing forums it’s accepted as a matter of faith.
I feel like this is a good discussion marred by bad statistical interpretation.
What I think: various societal changes made it easier for women to leave abusive husbands, so they did. Also the stigma of getting a divorce was dramatically reduced, so both men and women got more of them. This is reflected in an overall higher divorce rate.
But as far as things like “Allen and Gallagher classify Wolfers as evidence that no-fault divorce laws led to a change in divorce rates, and technically they are correct. However, for most people, the difference between a temporary change in divorce rates and a lasting change in divorce rates is essential. “, go, your interpretation of the statistics (not the statistical analysis itself, but rather the interpretation) seems faulty.
US culture has both national and local components. It would not be at all unreasonable to look at those statistics and say something like “when you got enough no-fault divorce states it created enough of a change in the national culture to impact even the states that did not formally change their laws”. That kind of explanation actually describes the statistics better–an initial spike in divorces for the states that changed their rules, and *the other states catch up with those states*. That sounds like a change in culture. If it wasn’t, you would expect to see the no-fault states revert back toward the divorce rate of the fault states. Which we can see is not what happened.
So it would appear to me that the statistics actually do show a change in national culture vis-a-vis divorce (which is what the divorce culture advocates say). While perhaps having a few bad side effects, seems to me to be a very good thing on balance (letting people in a bad marriage have a chance at being happier, letting people in abusive relationships get out more easily, etc.). [which is of course not what the divorce culture advocates say].
Sebastian, did you read Wolfers attempt to address that very issue? See his section on “contamination,” which is what he calls the idea that states without no-fault reforms may receive a looser divorce culture from other states, on page 1816. He wasn’t able to find any statistically significant contamination effect.
To carry on the theme in the comments: When Japan liberalized its divorce laws, there was a huge surge in the divorce rate, almost entirely initiated by women who were finally able to leave terrible marriages without fear of grinding poverty, losing all their possessions and their kids, etc. When you throw open the prison door, don’t be shocked when the prison population declines, nu?
In fact, family research shows that staying in these unhappy, conflict-filled, sometimes abusive marriages is not good for children. They’re better off in more stable, divorced families than in households filled with emotional, financial, psychological, and sometimes physical abuse. The best situation is a divorce in which the former spouses have good boundaries, come up with effective ways to co-parent after the split, avoid bad-mouthing each other and triangling in the kids, etc. but even if that isn’t possible, the middling-poor divorces are better than the middling-poor “intact” homes. And awful divorces are kind of a wash with awful “intact” homes in terms of outcomes for kids.
What exactly is a “divorce culture”? One where divorce is not a huge social stigma? One would think that social conservatives have never ever seen divorce up close – they describe the easy availability of divorce (or abortion, or premarital sex, or anything else that upsets them) with the fact-free breathlessness one associates with teenagers swapping urban legends.
Amusing.
It’s assumed that people only initiate divorces for good reasons, or at least xx people only initiate divorces for good reason.
That’s not what the literature would seem to say though:
http://www.unc.edu/courses/2006fall/econ/586/001/Readings/Brinig.pdf
I should also leave my source:
http://dalrock.wordpress.com/2011/08/28/the-economics-of-divorce-theft-and-exploitation-and-why-we-should-repeal-unilateral-no-fault-divorce/
He’s definitely on the opposite pole from Alas on this one.
I happen to agree by the way. I’d repeal “no fault” when CHILDREN are involved and go back to a fault system. Either that or mandatory joint legal custody. Childless marriages? Knock yourself out. I’d just enforce properly (both sides have lawyers) drawn up pre-nups rather than making pre-nups a crapshoot like we do today.
No, the evidence supports the social conservatives. Culture’s clearly picked up and controlled for in the state and year fixed effects, which dominates the legal effect. It might help to imagine it had gone the other way and the divorce rate had just been a mechanical effect of the legal regime. Change the law, change the divorce rate – that’d kill the culture idea, but that’s not what happened.
Wolfers page 1803 claims timing was plausibly exogenous. you’re welcome to disagree with him on that, but I can’t see how you can disagree with him and cite a paper of his which relies upon an exogeneity assumption in support of your ideas.
It’s assumed that people only initiate divorces for good reasons.
What’s a “bad reason” for getting a divorce?
A state legislator in Colorado just introduced a bill calling for a “waiting period” before couples with kids can file for divorce. He says he would make an exception for abuse. Hmmm … that doesn’t introduce any messed up incentives. No, not at all. By all means, let’s go back to fault divorce.
That’s rather simple.
I’m unhappy and I don’t want to take time and effort to work things out.
Another bad reason: think of how much easier my life would be if I got a divorce.
Yet another bad reason: even though I’ve got a kid I brought into the world I want to go around the world and find myself and who gives a crap on how this affects my family?
Yet another bad reason: He/she yelled at me/slammed the door.
Another bad reason: Gee, who cares about my kid and spouse? My coworker is hot!
A really bad reason: I believe I am a better parent than my spouse but he/she won’t let me have all the power in child rearing.
And of course there’s the old classic : He/she is loaded! Let’s see how I can get out of that prenup.
I could go on. Here, maybe you can tell this woman she made the “right choice” to get a divorce http://www.sheknows.com/food-and-recipes/articles/2418/divorce-fantasy
We’ve got a waiting period in Maryland before couples can be legally divorced, Chingona. The world hasn’t ended, and Maryland isn’t know as the “Batterers State”.
Spoken like someone who really really wants to scream and slam doors at their spouse and not be divorced due to their feat of being left financially destitute despite continued martial emotional abuse.
—Myca
Clarence, are you saying that you can’t imagine that emotional abuse could ever be a good reason for divorce?
Or are you saying that yelling at a spouse could never be emotional abuse?
Hm. That was an hominem, wasn’t it?
Let me try again.
Okay: I believe that your proposal would unfairly penalize people (mostly women) who need to leave emotionally abusive marriages. I think that what underlies this is an oft-repeated anti-feminist/MRA trope that emotional abuse isn’t really abuse, and that yelling, screaming, slamming doors, etc, is part of normal interaction/non-abusive/an average fight.
That’s part of what scares the crap out of me about them (and you) because it’s a belief that gives them (and you) license to do abusive things and define themselves as non-abusive.
—Myca
@Clarence: I don’t understand why any of those are bad reasons for divorce. I wouldn’t want to be married to a person who was thinking any of them.
Myca:
Yep. It’s abusive but of such a small extent that everyone does it, thus literally EVERYONE is an “abuser”. It’s also nearly as impossible to defend against an accusation of such things as it was David Letterman when he was accused of sending “mind waves” or something through the TV. Thus I favor total non prosecution and I would never let heated words or slammed doors be cause for a divorce.
Real emotional abuse occurs over a period of time and is deliberately done by expressing constant disapproval, even in non emotional contexts. Yelling “bitch” to a “bastard” in a heated argument isn’t the same thing at all.
This is especially damaging because it’s very difficult to prove emotional abuse in the absence of witnesses, and doubly tough to do so when a financial payoff is in the works for the abuser if they’re able to successfully play innocent.
I mean, how do you prove that someone whispered threats of murder into your ear every night for a month? How do you prove that someone talked quietly of raping you, or that your spouse was quietly cruel or insulting to you?
Slamming doors and yelling, though? Those are loud. Other people might hear. that’s a form of emotional abuse that just might have witnesses.
So of course it’s out of bounds. How could it be otherwise?
—Myca
Me:
Clarence:
Yup, that’s what I thought.
—Myca
I think in terms of fault you’ve got to make a clear distinction between petitioning for divorce and distributing property. I totally support no-fault in the first instance, and think it’s crazy in the second.
We can both play that game. Here’s a good one.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01880.htm
You can have an affair, lie about the paternity of your child, and this isn’t a fault. In fact the longer you can keep your mark duped, the more you can cash from the longer marriage when you divorce. No messed up incentives there. I think in general divorce theft is too strong for what normally happens, but there are certainly cases where no fault has explicitly legalised really evil frauds.
Well, if if the problem is unfair division of custody, why not, you know, change the laws about custody? How is limiting divorce supposed to address that? Unless, of course, you agree with NY state NOW’s viewpoint that unilateral no-fault divorce limits the power of one spouse to use no-fault divorce as a bargaining chip – “if you want out you better give me what I want in the settlement”.
Regarding Maryland, the “waiting period” means that there has to be a one-year separation before filing for divorce, meaning you don’t live together and don’t have sex, unless one wants a fault-based divorce. (Interestingly, the wait period is apparently the same for no-fault divorce as for abandonment.)
“No-fault” is a bit misleading, because a divorce is always a lawsuit, even where both parties are perfectly agreeable to the divorce. The difference with “no-fault” is that the legal grounds for divorce are, roughly, ‘the marriage is FUBAR’, as opposed to “he’s sleeping with the pool boy” or “she hits me”. Which also means that if you want to divorce your spouse for sleeping around or screaming at you at 3 am every time you say ‘hello’ to the barrista at Starbucks, you do not have to go to a court of law and convince a judge that, in fact, your spouse did those things to you.
But of course this isn’t the issue, is it? It’s not about making sure that the guy whose wife reads all his emails and makes his life hell with her psychotic jealousy can get out of Dodge. It’s about punishing bitches for daring to leave their husbands.
Re the Brinig study, it doesn’t say that people file for divorce for ‘bad reasons’; but it does say that women file more often, and that the difference in filing will even out as women’s and men’s income and ability to share custody becomes more alike.
Myca:
Don’t even go there with alleged attitudes. You don’t know my reasons for opposing easy divorce when children are involved (note the modifier) nor do you know my reasons for basically, if I had the power , taking whole classes of “abuse” out of bounds for being resolved in the courts. As for threats “whispered in your ear”, well, if he’s going to kill you or she’s going to kill you threats don’t necessarily tell you that. Still, spousal murders are rather rare being a mere 2000 or less a year out of a population of over a 100 milion married people. Threats like that could be tape recorded you know. Oh, you’d never catch a “one or two “off threat, but who says the state can protect you from every threat you might ever hear in your life? But if it became a pattern, darn straight you’d be wise to acquire a cell phone or mini tape recorder and as soon as you have the words go poste haste to your local magistrate and get a temp restraining order. Of course then I recommend you get a dog , a bodyguard, a gun, or all three because restraining orders only work on the law abiding and the innocent, sadly.
So yeah, whispered death threats in your ear, abuse. Slammed doors or punched pillows? I have no sympathy and indeed if that is what the “domestic violence” people insist on penalizing, you’ll get nothing but fights from here on out. I say this as the son of a mother who suffered severe emotional abuse, later took some of it out on me, and who was bullied repeatedly as a child/ young teen. I’ve seen abuse and it’s an abuse of the term “abuse” to label all anger or any expression there of as abuse and it does far more harm than good.
Thanks for the explanation, Clarence, I think I understand you and where you’re coming from pretty well now.
I think you are minimizing abuse, and that your position protects those who engage in emotional abuse at the expense of their victims. I understand that you don’t or can’t see it, and I think that’s sad.
Nonetheless, I think that no-fault divorce makes a lot of sense. Rather than have the state root about in the he-said she-said of a romantic relationship, trying to pick a villain to blame, I much prefer this. If it’s not salvageable, it’s not salvageable … and it’s not up to the state to tell the people involved when it ought to be.
—Myca
Myca:
I might have more sympathy for that argument -because you know I don’t have an issue with “no fault” when children are absent – IF
A. The state was far less involved in the lives of people who divorce. As it is now, if you divorce the state can basically ruin your financial and emotional life, and can physically coerce you into keeping employment you hate, etc.
B. The state would honor prenups. Or go for different classes of marriage and enforce the terms of those marital classes upon dissolution.
C. The state gave a crap about actually making sure both parents had contact with the children , rather than putting it on paper and never enforcing it.
D. The state didn’t have domestic violence laws that were so easily abused that they are sometimes used improperly during a divorce and thus constitute a “fault” in what is allegedly a “no fault” system.
E. The no fault system did not reward fraud such as what james linked to above.
By the way:
I see the State as the biggest most unaccountable abuser of all, thus I am reluctant to get them involved except in the worst and most obvious of cases. Most of the ‘gray area’ stuff is an invitation for systematic fraud on the part of alleged victims and abuse by elements of the State that like power and control. Kind of ironic considering the over use of and belief in the “power and control” wheel.
Pennsylvania required (and might still require, for all I know) a 2-year period of legal separation before a divorce could be finalized. It’s not the end of the world, though it’s frustrating for people who want to move on with their lives.
The Colorado bill would require people to go to mandatory counseling and a class on how much they’re hurting their kids by getting divorced before they can file. The article didn’t say how long the waiting period is. It seems fairly intrusive to me for a “problem” – people getting divorced “too quickly” – that has not been proven to exist.
That’s rather simple.
I’m unhappy and I don’t want to take time and effort to work things out.
Another bad reason: think of how much easier my life would be if I got a divorce.
How does someone who is not inside the relationship decide how unhappy is too unhappy, how much work is enough work to put into a relationship? What is the state interest in people staying in unhappy relationships?
Yet another bad reason: even though I’ve got a kid I brought into the world I want to go around the world and find myself and who gives a crap on how this affects my family?
…
Another bad reason: Gee, who cares about my kid and spouse? My coworker is hot!
Well, these would be selfish reasons, but spousal abandonment and adultery have existed as long as marriage has, so I don’t really see how that’s an argument against divorce.
A really bad reason: I believe I am a better parent than my spouse but he/she won’t let me have all the power in child rearing.
I don’t really know what to say about this one. If you don’t like how your spouse parents when you’re there, you’re probably going to like it even less when you’re not there to intervene and overrule. But if you can’t make decisions with your spouse, then yeah, that’s a major issue of compatibility in a marriage.
And of course there’s the old classic : He/she is loaded! Let’s see how I can get out of that prenup.
I think this couple’s problems started long before they got around to divorcing.
I could go on. Here, maybe you can tell this woman she made the “right choice” to get a divorce.
I’m not sure exactly how you think that woman supports an argument that people get divorced for “bad reasons.” She says that getting divorced was much harder than she ever thought it would and she has sacrificed far more than she thought she would. But I don’t think she would have spent *years* fantasizing about divorce is she was happy in her marriage, and it wasn’t clear to me that she actually thinks she made the wrong decision. Just because a decision is hard doesn’t mean it’s the wrong decision.
I am no longer physically attracted to my wife. So I will divorce her and marry someone younger and more attractive. And because I am rich, that will be easy.
So if two people realize that they’re wrong for each other, and in fact, can’t stand each other’s company, the fact that they have children means that they should
a) stay together and be miserable, fight constantly, and make their children miserable
or
b) one make up some egregious lie about abuse or cheating so that they can actually get out of the relationship
And this is supposed to be better for the children than a no-fault divorce why exactly?
As far as I know, there’s no real evidence that divorce hurts kids. The studies that I’ve seen of children of divorced parents versus parents remaining married aren’t in the least controlled for level of stress in the marriage and may simply be demonstrating that parental conflict is bad for kids. This study suggests that children do better if their non-custodial parent doesn’t live too nearby after the divorce, possibly because if (usually) he is too nearby, there continues to be a lot of conflict. If that is correct, then two parents with high conflict continuing to live together might be even worse for children. So I’m not sure Clarence’s reservations about divorce in a marriage with children are valid.
I don’t think that a single door slam or harsh word is emotional abuse, but a pattern of it certainly can be. I think that if you hand-wave those as “normal conflict,” you’re probably allowing a fair bit of emotional abuse.
I also think the “record the threats” idea is pretty naive. Someone’s talking about how they’re going to kill me and I’m going to do something that will make them more likely to act on it if they catch me? Trying to prove or report abuse can easily result in more abuse.
I also don’t think that there should be a legal requirement to stay in a crappy relationship until it turns abusive. I think there are plenty of assholish things that people should be under no obligation to put up with that aren’t necessarily abuse.
Like, if every time you ask your spouse for a hand with something, they get pissy and slam the door, that’s probably not abuse if they’re not doing it in a way that’s threatening. It’s not necessarily abusive to be self-centered, or arrogant, or just kind of a jerk. But why should the state require you to continue living with a jerk who keeps their jerkiness within some legal minimum?
Now Clarence is just confusing me. The State is abusive and has too much interference in family law, but on the other hand, we want the State to force people to vomit up all the sordid details of their failed marriage before we’ll let them end it?
Also not getting the ‘only if kids are involved’. What, you can’t void a pre-nup or take all of somebody’s money without having children? And is forcing their parents to publicly air “he slept around” or “she screamed at me” supposed to be good for kids?
It’s an MRA article of faith that women are bitches who casually dump men and take all their money; therefore, getting rid of no-fault is good because it forces said bitches to stay put.
I’m going to speculate that Clarence’s darkly-hinted “reasons” for having separate rules for marriages with kids is that some bitch casually dumped him and took all his money in the form of child support, while possibly limiting his contact with them because he was just screaming and slamming doors which is what everybody does all the time so everybody’s an abuser.
Elusis: Bingo.
With all due respect to Myca (who is, after all, also a moderator here):
On my threads, at least, I’d appreciate it if folks would NOT speculate on other comment-writers alleged hidden dark motives for their opinions. It’s enough to attack the poster’s opinions and arguments, without attacking the poster.
Amp: I didn’t mean to suggest that Clarence’s opinion is based on his own life, only in his (openly stated) MRA philosophy. The MRA view on divorce, as shown in Clarence’s links, is that women file for divorce more often and do so primarily for selfish and frivolous reasons; therefore eliminating unilateral no-fault is a good way to keep them from running off and living off the alimony.
Note the completely citation-free argument that pre-nups are easy to attack and that courts simply throw them out willy-nilly. Pre-nups, by definition, are private contracts that try to override the existing law about how marital property gets divided and assigned.
They’re also problematic in that circumstances change during a marriage. For example, Amp and I get married when Amp is making six figures as a cartoonist and I’m an impoverished housewife. Amp and I sign a “what’s mine is mine” prenup so that I can’t run off with all his money. Ten years later, the scandal about his secret past as a GOP operative comes out and he’s penniless, Robert permanently disables him by stabbing him during a lover’s spat, and I’m a millionare from selling cat videos on the Internet. Now how useful is that prenup in protecting him?
So states that allow prenups have extremely strict regulations about what a valid prenup is and how you go about executing one. Yes, this means that the MRA who turned to his bride-to-be ten minutes before the vows and shoved a prenup in her face is not going to be able to have that upheld in a court in my state. So what?
Clarence —
Have you actually been through a divorce, especially one involving children? (Having parents, friends, or relatives who have doesn’t count.)
I have, and it’s like a several year long root canal without anaesthetic. Plus another 10-20 years of dealing with the ex on a daily basis (unless you just run off and abandon your kids.)
The idea that people would just casually divorce, as if were something you do on a free afternoon when you have nothing better to do, just makes no sense.
Even if you are married in name only, it costs quite a bit of time and money. If you’ve actually lived together, so you have common property, common friends, etc., it takes a long time to untangle things. And that’s completely ignoring the emotional side. I usually describe my divorce as being like gnawing off your leg to get out of a trap.
Requiring people to prove “fault” is just idiocy. By the time a person is ready to go to a court to separate from another, there’s been enough bad blood already. Requiring them to demonize the other enough to meet some legal standard is like saying the fire department can’t come to put out a fire in your house until the flames reach the ceiling.
And it definitely harms the children, since the exes are going to have to deal with one another at least until the children are grown. The sort of accusations that fault-based divorce requires make that a lot harder.
It’s amazing that no-fault has so shaped people’s ideas that they can’t even conceive of what fault based divorce would be like. People weren’t forced to live or stay in relationships with spouses before the introduction of fault. The alternative to divorce is separation which has different implications.
It’s useful for anyone who may be thinking of marrying one of the parents.
The alternative to no-fault divorce (which I saw my dad do plenty of as a lawyer in NY), is to make up a fault and go through with the divorce. If the divorce is amicable. If it isn’t, well… too bad.
I continue to thank my luck for no-fault divorce every day as I have for the last 13 + years.
Fault and no-fault divorce each involve a set of tradeoffs. The difficulty with social tradeoffs is often that one set of tradeoffs or one side of an equation is invisible to many, most, or even all persons involved. Advocates of going back to fault-based, or to some other more punitive (for lack of a better word) regimen are quite correct that no-fault divorce, whether you glorify it up to the level of being a “culture” or not, has consequences, some of which can be very negative, on society. The people speaking up for no-fault divorce are 100% right in all of the things that they say about how the divorce worked better for them or for their families, etc.
One thing to note is that just because you don’t have to cite fault to get the divorce anymore, doesn’t mean that faults still don’t get cited, particularly in custody cases. As people here know, my spouse has made a long series of allegations about faults on my side in a bid to get nearly-exclusive custody. One might draw the moral that attempts to stop bitter, ugly conflict through rules changes is a fruitless quest; bitter, ugly conflict comes from bitter people and those folks will find ways to lash out whether in Mr. Rogers’ Mediation Neighborhood, or in King Bob’s Royal Court of Shame And Mockery.
Personally I do think no-fault is the right way to go; the state is not responsible for upholding marriage permanence against the wishes of the people in those unions, however beneficial or joy-inducing marriage permanence may be. The state is in the business of executing its ministerial functions of keeping track of the legal responsibilities so that the right people get stuck with the bills when little Johnny demolishes an overpass with a stolen bulldozer. Marriage ought to be in a mail-in form and divorce should be accomplished (in three clicks) at a website, as far as the state’s legitimate role as registrar goes. (Things are obviously much more complex when there are justice issue to litigate; whether mom or dad should be administering Johnny’s college trust needs court intervention from now until the time that the lawyer fees consume the last of the college trust, rendering the issue moot.)
I would suggest to those wishing for a return to a harsher marriage ruleset, however, that such rulesets can be largely if not entirely formalized via contract, and/or by selecting people as marriage partners for whom such rules have affirmative appeal. I suspect that the response to this is “but women don’t want to get married under that harsher ruleset”, to which my response is the same as it was to women unhappy that domestic-chore-loving, baby-dandling, high-earning, Antonio-Banderas-looking men weren’t lining up to wed feminist women who wanted fewer domestic responsibilities: up your bid or lower your expectations, but don’t expect the market to adapt to your preference. It works the other way around.
Many years ago, 1977 to be precise, my beloved and I came to the edge of the cliff. There was no abuse or anything like that, but our lives had taken very different directions – I became a lawyer, he was an artist – and we found that we were no longer headed in even vaguely the same direction. He recognized this before I did, and withdrew from the relationship.
I reached that point where you say to yourself first, I wish I’d never met this guy, and second, if I could walk away and never see him again I would.
The fly in this particular jar of ointment was that we had two children, ages 7 and 9. And I saw before me not only the custody battle he promised, meaning every word of it, but the rest of my life…….divorced parents have to work out the custody thing. Then, if a child graduates from anything, they both have to be there, and behave like adults. If a child is injured, if a child marries, if a grandchild is born….it never ends. Never. I can never walk away clean.
So when he proposed a reconciliation of sorts (involving me in making all the money, doing or arranging all the childcare, housework the same, and him in…what exactly?) I went along with it. I cannot tell you how reluctantly. But it seemed better than the alternative. So what if my primary relationship was a train wreck? I still had my children, and my profession.
Then of course in due time I fell in love. With him again. (There really was a reason I married him in the first place, who knew?)
It was 45 years in 2011. September 11, we had it first you creep terrorists. We have two more children now, and four grandchildren so far. He’s the only man on earth for me.
No-fault divorce, available or not, had nothing to do with this. But think. Divorce is never easy, as AMM so rightly points out. It’s not like the major impediment to divorce is some statute! Divorce tears hearts and families apart. Sane people only do it as a last resort.
Thanks , james at #41 and Amp at # 38.
#42: Yes, in the past before “no fault” aka more accurately “unilateral” divorce if BOTH spouses wanted out (or one could be convinced to give the other his/her freedom without a fight) they would go ahead and set up a cheating incident or otherwise tell lies about the marriage to get it ended. Of course the thing with that is that both partners had some leverage. Now a days in all states for all marriages below the upper middle class level (where , as often both have good jobs both will take a life style hit if they divorce) a spouse that wishes to save a marriage usually has little to no leverage.
As to the rest:
A. I refuse to discuss my private life other than to say no, I’ve never been divorced or in any way, shape, or form had a kid taken away from me. I have been a victim of false accusations but luckily while they cost me a total of two jobs over 20 years (one temporary, and one halfway decent) I’ve never been involved in the criminal justice system for any kind of alleged sexual or physical abuse.
B. Linking to someone doesn’t mean I totally agree with them on everything. Dalrock, for example is a Christian, and his views on Divorce are partly shaped by moral concerns. I have no such concerns as I’m an agnostic.
C. Marriage is involved in two areas in which the state has a legitimate interest: the accumulation of wealth and the raising of children. Thus getting our marital laws straightened out is an imperative if one wants a healthy or growing society. Divorce impacts both wealth and children and despite what Dianna thinks I have no hesitation in saying it often affects them in a very negative manner. Simply because divorce can be good sometimes doesn’t mean we get to ignore all the problems with super easy divorce, hard to enforce prenups, child custody , etc.
D. I’m open to differing solutions other than totally ending “no fault” divorce. After all, one of the papers Dalrock linked to specifically singled out custody as one of the areas to reform to minimize divorces.
It’s useful for anyone who may be thinking of marrying one of the parents.
Non sequitur.
Robert, of course it’s true that no-fault makes it easier to get divorced, even for very selfish or damaging reasons (“the pool boy doesn’t have stretch marks like you do”), and of course it’s true that no-fault doesn’t eliminate ugly behavior in the divorce process. I hope nobody is suggesting no-fault is magical unicorn dust.
But the rhetoric on the other side is, I’m sorry, stupid. “Super easy” divorce? “Casual” divorce? Funny how bluenoses always throw ‘casual’ on the front of any behavior they disapprove of, and with about the same amount of ignorance, as if getting even an uncontested divorce were like bopping down and picking up a latte at Starbucks. That’s why, while Clarence’s private life is certainly his to keep private, it’s pretty darn obvious that he’s never been closer to it than reading about it on an MRA blog.
The alternatives to no-fault aren’t simply perjury and fraud. They are abandonment (which james pussyfoots as “separation”) and murder. Go read some vintage crime novels with their “he/she wouldn’t give me a divorce” as the driving force behind the plot to kill – which to us, is as quaintly anachronistic as a cell phone the size of a Mini Cooper.
Fair enough, I didn’t consider separation. But that’s not a full break. You can move away from the jerk, but they’re still legally your spouse. You can’t marry someone else, the jerk has legal rights that you’d rather they not have (like making medical decisions if you’re in a coma or inheriting your stuff). Again, how is it in the state’s interest to require this?
Bummer for the person involved, but blocking marriage may have positive effects. If you live in a place where step-parental rights accrue by virtue of marriage, it means you can block someone from getting legal authority over your kids through marrying their other parent. That might become more important in future as SSM advocate push for these to be extended. Some people (some Jews, I think) also have strong religious objections to divorce, so wouldn’t want a dissolution for that reason.
Most legal rights are controlled or voided through the seperation agreement, so no reason to worry about them switching off the life support. Some stuff matter though. There are tax implications (usually better off married), lots of benefits also accrue through marriage (pensions, SS, insurance) that can be preserved. In many cases these would be very difficult or expensive to buy equivalent provisions with cash post-divorce.
That’s quite interesting in the context of fair division of assets post divorce. If we’ve $1m assets a equal division would be 50/50, but if you’ve burnt $200k of irreplaceable pension/tax planning benefits for no reason other than you want to marry someone else is that still a fair split? Or should we be looking at 70/30? Under no fault this is not considered.
Jews treat marriage, religiously speaking, as a contract. While we agree as much as anyone that it’s about as fun as a root canal, it’s not forbidden. What you’re probably dimly thinking of is the fact that, religiously, a husband must give his wife the divorce decree (get), and if he doesn’t, then she isn’t divorced and if she has children with another man (even if properly married in the eyes of the civil authorities) her children are mamzerim. Perhaps you shouldn’t have brought up Jews, because this setup means that men have a disproportionate amount of power in a divorce.
(Pause here to wait for all the MRAs to stampede off to become Orthodox Jews…)
WRT division of assets, you are confusing no-fault divorce with community property, in which (most) assets acquired during the marriage or with marital funds are split 50/50. Misusing or wasting those funds can be taken into account, depending on your state. There is a difference between the grounds for divorce and the rules for dividing assets and assigning custody.
Any system will create odd incentives. Fault and no fault both. And any system will contain a number of people whose lack of ethics drive them to game the system. Fault divorces make it simpler to tale advantage of people to trap them in marriage. No fault divorces make it simpler to screw your spouse in a divorce, mostly w/r/t assets.
But since assets are less important than people, and since assets can be dealt with separately, no fault seems far better IMO.
That said, we could all benefit from revisiting some of the standard divorce/asset laws. Some of them have resulted in bizarre incentives.
People weren’t forced to live or stay in relationships with spouses before the introduction of fault.
As has been noted (most effectively @47) this is blatantly untrue. If you cannot afford to leave because you cannot prove fault and thereby get some kind of support order in a divorce, if your spouse is sufficiently wealthy/powerful/well-connected to bring social forces like police or your employer to bear on you, etc. etc., you are stuck.
In 1977 my mother turned up incontrovertible evidence (letters and photos) that my father had had multiple affairs. Foolishly, she returned the evidence to its hiding place before confronting him about it. Of course when she went back, the evidence was gone. Only by virtue of no-fault divorce was she able to get out of the marriage with a child support order, which was minimal because much of my father’s income was from off-the-books work he did outside his regular job and from assets he managed to hide from the court. Because the evidence was missing, she could allege adultery all she wanted but all my father had to do was deny everything and thus avoid being assigned fault by the judge, so there was no spousal support order and my mother, who had spent five years out of the workforce as a full-time mother, was obliged to try to re-enter her field in the middle of a recession, meaning she supported two small children on the wages of a half-time preschool teacher for the first two years.
But at least she could get out. My father is a much improved man now, but the man he was would never have “given” her a divorce had it been his to withhold. It was too convenient for him to have a wife.
Yup. Lawyers are still needed, judges need to approve settlements. My really, really, really simple divorce with almost no property to be divided and a verbal agreement reached almost immediately only took 9 months to complete. About the same amount of time it takes to get a latte at your neighborhood fancycoffee chain.
Clarence @25:
If by “law abiding” you mean “people who choose not to violate them”, then this is true. It’s also tautological.
Certainly restraining orders do not magically prevent another act of abuse. But they do work, in the following ways:
(a) They refine and clarify existing boundaries. They replace societal and personal definitions of terms like “contact” and “abuse” with legal definitions. These legal definitions are amenable to a much stricter level of analysis than merely linguistic terms, because they are associated with case law which will tell you what judges mean by them.
(b) They create boundaries. They may prohibit the defendant from going to the plaintiff’s place of work, for instance, something which previously the defendant could do without consequence. They may give custody of the children to one party pending a hearing. They may prohibit telephone calls. These new boundaries help calm a situation, for the short term, by simplifying it. You can’t yell at someone if you’re not in that person’s presence.
(c) They set a price for crossing these clarified boundaries. The defendant is put on notice: violate these clearly-defined boundaries, and the law mandates your arrest, and prosecution will very likely follow. And, because of the boundary management in (a) and (b), these are generally easy cases to prosecute successfully. A given act can be determined pretty easily to be a violation, or not, as the case may be.
In my experience, around 80% of people who are served with an order don’t violate it. They can see that train coming, and they don’t step onto the tracks. They exercise their right to a hearing and argue it out in court, or they wait to have contact until the order expires, or they call it done.
(d) They introduce a mechanism for swift consequence, something which is often foreign to abusers. They violate the order, they get arrested.
In my experience, around 90% of people who get arrested once for violating the order learn their lesson and don’t do it again. I recall one good example, where a woman we had arrested and just barely released on bail asked to use the phone. She was legally free to go, but the booking officer was dealing with another prisoner and had not yet opened the door for her. In that moment of distraction, she used the phone to call the person we had just arrested her for abusing. The victim called me to report it, I called the booking officer, and he arrested her on the spot and she got to go through another booking and bail process for that additional crime. She got the message.
There are those few who never get the message. That brings up
(e) They create a mechanism to take an abuser out of circulation. When someone violates a restraining order repeatedly, they end up sitting in jail until they see a judge. Typically, the judge is unsympathetic and unimpressed when the system draws a very bright line and someone steps over it.
I recall one situation where a defendant was not only restrained but on probation for abusing the plaintiff. He was barred from having any contact with her whatsoever, and barred from going anyplace where she was likely to be. He sent her an invitation with two tickets to a ballgame, in the hope of just trying to do something nice to heal their relationship. He came voluntarily to the police station and explained to me with clear-eyed sincerity why that was not a violation of his restraining order. He simply could not hear me when I explained why it was, and why I was calling his probation officer into the room, and why his probation officer was handcuffing him and driving him back to prison.
He was not unintelligent. In fact, he was above-average in intelligent, rather handsome, articulate, even charming. But something in him just wasn’t tracking with reality … and he went back to prison puzzled.
But he went back to prison, which is the point of (e).
So, it is easy to say that laws only work on the law-abiding, and for each individual instance it’s true. But laws can also clarify boundaries, create appropriate boundaries, raise the price for crossing the boundaries, change the consequence dynamic for crossing the boundaries, and physically remove the ability to cross the boundaries.
And in those ways, they work on the law-abiding and the law-flouting alike.
Note: Details of implementation will vary from jurisdiction to jurisdiction. I have tried to articulate general functional mechanisms which are always broadly true, rather than explain the minutiae of “the system”.
Grace
I’m assuming, then, that Clarence is not one of those MRAs who believes that women trump up accusations to get restraining orders and then use said orders to make their ex’s life miserable. I mean, either the things work or they don’t.
Grace: let’s be blunt and admit that they’re also homework. Law enforcement, in my experience, sees restraining orders as a sort of test of whether a complaint of stalking or harassment is serious.
Grace, wonderful post!
Mythago, when I posted saying to avoid personal attacks, I wasn’t responding to your comment, so no worries.
No, I’m not. Prior to no-fault divorce fault was considered in both the ground for divorce (I will grant a divorce because your husband cheated on you) and the division of property (I will award you most the assets as you are a blameless victim and your husband is an evil adulterer). The no fault movement changed both the grounds for divorce and the rules for the division of assets.
No, if you re-read @47 she admits she didn’t think about separation. You can get a support order through a judicial separation.
If an MRA says it, can it still be true?
This does actually happen, with depressing frequency. Especially in the context of an acrimonious divorce. It also happens with accusations of child abuse.
It’s not limited to women, and it’s not as frequent as MRAs suggest, by any means. But as a practical matter it is more common for women than for menrelatively speaking, for a variety of social and biological reasons which we can all predict.
…and whether it’s worth spending law enforcement time on.
Cops have limited time to enforce. Even if you can’t get a RO because it’s too minor, the fact that you’re trying will endear the cops to you. But if you are asking the cops to simultaneously protect and target someone (“I want you to keep John away from me and make sure he doesn’t do anything wrong and arrest him if he tries to hurt me, but I don’t want to get him in trouble and I don’t want you to do anything which will get John in trouble”) then they will spend their enforcement time on someone who isn’t trying to limit them.
gin-and-whiskey: well, you know, even a broken clock. ;)
But my point was ‘nobody ever abuses/lies on restraining orders’. It’s that I don’t think one can simultaneously argue that restraining orders are so easy to abuse that courts hand them out to any woman who asks, like party favors, but that they are totally useless and you’d be better off getting a dog. (Because, I guess, your abuser may track you by your phone GPS and ask you to account for every minute of the day, but won’t notice if you sneak a German shepherd and a shotgun into the house?)
And sure, LEOs deal with ambivalent people every day. It’s just that if you don’t want a restraining order because it’s useless or because you fear that getting one will simply enrage your abuser more, when you contact law enforcement you can expect to be treated as if you’re not really serious. Because you’d get a TRO if you were serious, right?
(Though law enforcement agencies are getting way better. When I was a slip of a girl volunteering at my law school’s legal aid clinic, frequent advice to DV victims was “Move to a different precinct” because some of them were firmly on the side of abusers.)
ROs are weird.
In one respect, we should be making them simpler to get, especially on a temporary basis. If you need one, you should get one, right?
In another respect, they can have hugely horrible consequences. And because a RO doesn’t have a “beyond a reasonable doubt” standard, the result is that someone’s life can get royally fucked up without ever having a trial, discovery, or much beyond a 10 minute court hearing. An RO on your record (even a TRO) will disqualify you from lots of employment, may mean you lose your job, will almost always mean you can’t own or carry weapons, will often count to violate your status (thus tossing you back in jail, if you’re on probation), will show up on your CORI for ages if not forever, will force you out of any joint apartments (that alone seems to be the motivator for some RO abuse,) etc.
So we end up having “if you need one you should get one” against “what the fuck do you mean someone can screw up my life that bad without even having a real trial about whether that shit is true?”
In a more perfect world, a RO wouldn’t do as much collateral damage (joint living arrangements will always be an issue, can’t avoid it.) An RO could just, well… restrain. Then we could make it easier to get, and then victims and judges wouldn’t shirk from asking for/giving them, and then the incentive for abuse (or blackmail based on threats of an RO, which happen all the time and are a similar type of abuse) would also be reduced.
But since those collateral damages are, well… collateral, the system doesn’t have that much control over them. No good solution exists.
Ampersand:
Thank you, thank you. The name is Grace Annam. I’ll be here all week.
Mythago:
Since law enforcement agencies vary drastically from jurisdiction to jurisdiction, or even from precinct to precinct within a jurisdiction, I’m not about to say that your experience is wrong. In my jurisdiction, domestic violence law is laced throughout with the word “shall”. As an officer, I am legally required when I have probable cause to believe that someone is a victim of domestic violence as statutorily defined, to do certain things, and among those, is make the restraining order process available to the victim. If the victim says, “I want a restraining order”, I am legally required to make sure they can get to the court if it’s during court hours, or to sit down and fill out the application for an emergency order, which they swear to over the phone to a judge.
So in my jurisdiction, and in my department, restraining orders are not serious homework, and the power of the state assists the victim in applying for them. For emergency orders, judges grant them about 98% of the time, even in the one or two cases in my career when I was moved to point, “Your honor, the physical evidence contradicts what [coin flip] she’s saying and she has been known to lie under oath, so she has zero credibility.” For non-emergency orders, the judge can get a bit more information and deny an order, but they’re still granted more often than not. And, once we get to the hearing where both sides can present evidence and witnesses, then it’s essentially a probable cause hearing, and they often get denied.
However, other jurisdictions will vary. And the reason for all the requirements in my own jurisdiction … is the miserable past performance of law enforcement when it came to domestic violence (and the lack of legal tools to fight it, like special-case unwitnessed warrantless arrest, which came along with the shalls).
Shall-arrest laws and similar make it easy: follow the rules and no one can win a lawsuit and take my house, and the judge gets to make the final determination, and [coin flip] he’s immune to lawsuit for his judgements.
gin-and-whiskey:
This matches my experience: though it’s a small percentage, some people do lie to obtain restraining orders, and I cannot recall an instance offhand in my experience where a man lied to get one. This is not because men are more honest; it arises from a large number of cultural constructions which I’m not going to elaborate on here, beyond saying that men are much less likely to apply for restraining orders, even when they should.
This is another reason I like mandates for police action: it takes the heat off of the victim. Once I am aware of a possible domestic, I must investigate, and if I find probable cause of domestic abuse I must arrest. Very frequently, the victim will say that [coin flip] he doesn’t want that to happen, and we explain that it’s not their choice. I’m also careful to explain that fact to the abuser, in a somewhat longer version of these words: the victim has no say in the prosecution, cannot drop the charges even though he wants to, and if you’re going to be mad at someone, be mad at us. Sometimes, I can even maneuver the victim and abuser so that the abuser hears the victim pleading with us not to arrest the abuser. It nicely kneecaps one of the claims abusers frequently make against victims ([coin flip] “she wanted to get me arrested”).
However, I’m sure you’re right, gin-and-whiskey, that in jurisdictions where they have discretion, officers will tend to spend their time on the cases which are simple and straightforward. I have had cases where the victim was willing to give a written statement that she lied, and subject herself to prosecution for it, in order to scupper the charges against her abuser, even when she and I both knew that she was telling the truth the first time, and lying when she recanted. It can be frustrating as hell for me, and I understand the dynamics and complexities of relationships involving domestic violence better than many officers (because I’ve studied them intentionally and think about them outside of my job, while many of my colleagues do the required training and leave it at that).
gin-and-whiskey:
This is true. If we’re going to err on the side of caution (which we should), and try to put the weight of the State on the side of the abused (which we should), liars will be able to game the system to some extent, and consequences will fall on more people due to less than beyond-a-reasonable-doubt levels of proof. That’s the consequence of making those systematic choices. No justice system is perfect, especially one which relies on human observation and memory. (Read up on human factors in the context of criminal prosecution, if you need more anxiety in your life.)
Grace
Clarence, on yelling in a domestic relationship:
My wife has never yelled at me. I double-checked this to be sure of what I said, because it’s been a long marriage (over twenty years and counting), but my wife confirms it: I have never yelled at her. As she just put it to me, “We don’t yell at our kids. Our kids don’t yell at us. We don’t yell at each other. I go to work and nobody yells at me. I have a pretty yell-free life.” (Mine is not quite as yell-free as that. Sometimes when I’m at work people yell at me. Once in a while it’s even a member of the general public and not a co-worker.)
We certainly have been angry with one another sometimes, but somehow, mysteriously, we have always been able to get through it without yelling (and also without screaming, invective, breaking things, threats, and/or assault).
So, to your assertion that everyone does it, I offer my own lived experience, and that of my wife and children, as a counterexample. Perhaps this yelling is not as common as you think it is.
Grace
Grace, I can count on one hand the number of times my husband and I have yelled at each other. Granted, we’ve only been married five years, so our track record isn’t as good as yours, but it’s more evidence that yelling isn’t necessarily everyday stuff in a lot of relationships.
@GraceAnnam,
There’s no reason that all those factors that gin-and-whiskey listed must be an all-or-nothing proposal. If a hastily drawn restraining order results in an innocent defendant being kicked out of a jointly owned apartment, there’s no way to get around that because that’s intrinsic to what a restraining order does. That the system can be abused here is unfortunate but you can’t get rid of this without getting rid of the concept of restraining orders altogether.
But consider something like the prospects on future employment. There are plenty of countries where anything short of an actual criminal conviction will not show up on a permanent record. If the US were to adopt a similar stance, it would mitigate a lot of the effects that gin-and-whiskey talked about while not making it any harder to get a temporary restraining order. What do you think of this?
pocketjacks, I think it would be reasonable for restraining orders not to be considered in most employment.
I’m a little torn on whether an exception for positions like teaching or daycare would be a good thing or a bad thing. On the one hand, if you’re responsible for children, their safety is paramount and I have no problem holding people in that position to a higher standard. On the other hand, teachers are as likely to be in a relationship with someone who would misuse a restraining order as anyone else.
Though if we’re just talking about it not showing up on a background check, that’s separate from whether employers are allowed to consider it.
@Grace, thank you for that very informative comment. I agree, there is no easy solution – though perhaps some kind of tiered system of ‘get him/her out of my apartment’ vs. ‘stay away forever, this person is dangerous’ would be an improvement.
I was just reading an article in my local legal newspaper written by an attorney who represents celebrities. Apparently, to get a TRO against stalkers, judges require the celebrity to actually appear in court to testify they were in fear (as opposed to simply presenting this in pleadings, as used to be the practice), which of course means the celebrity has to deal with security, papparazzi, etc. and the stalker gets to see his or her target in court.
(Also, Amp, every time you link to FSB, I go take a look and then remember why I don’t spend time at FSB.)
Is there much that can be done about what employers can and can’t consider? A guy I work with was very nearly not hired because he had too many speeding tickets. (We drive on the job, but we don’t drive company cars.) Some employers run credit checks on applicants.
I mean, I agree that there is an issue – that on the one hand you want it to be relatively easy to get at least a temporary restraining order, but if it’s so easy, you don’t want there to be really large consequences for the subject of the order. But the reason they’re available to employers and the like isn’t because we’re trying to make life especially hard for those people who have ROs taken out against them but because we generally leave our court records open in this country. I don’t really see an easy answer.
Oh God, I wish Grace were on the police force in my neighborhood.
I’m dealing with two jurisdictions: Piedmont, an upscale very small town with its own police force, and Oakland, a large and troubled city with an insufficient number of peace officers. (Both in California, and Piedmont is surrounded on all sides by Oakland like a raisin in a cookie.) Oakland, where I do not live but where we have our offices, has announced that the police will no longer respond to “domestic disturbances.” At all. Ever. I don’t know whether this would include situations where there is an RO, but it seems a dangerous and short-sighted policy (and even more dangerous to announce it in public, such an announcement being a Get-Out-Of-Jail-Free card to all the abusers in town). Domestic “disturbances” are often the occasion of lethal violence. I guess the police would show up after the fact? Who knows.
But even in exceedingly well-policed Piedmont, RO’s are problematic. At one point in our lives our mentally-ill son (he’s 30, he’s no kid) became violent. He lives in the streets: he has gotten himself thrown out of all the living arrangements I have made for him, and he refuses to live at home. (Nor do I want him there.) Unless you have faced this yourself you have no idea how difficult this situation is. He’s bat-shit crazy, but without his consent no one can do anything for him. His condition is not even remotely his fault. It isn’t anyone’s fault. (God maybe. Take it up with God.) Nevertheless, he is a very big guy, and he’s crazy, and I was afraid of him. No one will benefit if I am injured. So we got an RO against him, to keep him away from the home and from our offices. (We have other children, and grandchildren, so it’s not just all about the two of us.)
When he showed up at the door anyway, violent and intoxicated, I called the police. Who came. (Piedmont, remember, not Oakland. Presumably they wouldn’t have even shown up in Oakland.) But they refused to arrest him, even though I showed them the RO, on the grounds that he is my son.
Well, yes he is, but officer, here is the court order. No no, policing in Piedmont is apparently more cuddly than that. They escorted him away (thanks for that at least), after strongly implying that the whole problem was really my fault. I wrote a letter complaining of this to the chief of police, who sort of apologized, but I don’t have much confidence that the same thing wouldn’t happen again. The police officer on site actually told me that I might be better off without the RO, since then they could arrest him for trespass. (And they can’t if there’s an RO? Whyever not?)
Excuses are being made here for not doing our job. No one denies that intra-family RO’s are problematic for peace officers, but aren’t most RO’s intra-family or intra-relationship? I was not in the least ambivalent, I wanted him hauled off to jail, for as long as possible, if only because I sleep better when he’s in jail: I know he’s safe there. And they (mostly) get him off street drugs in jail.
The whole transaction left me with a bad taste in my m0uth and we didn’t renew the RO when it expired, since so far as I could tell it was perfectly useless. (Our offices are in Oakland, and we know how that municipality will “respond,” they’ve put it out for all to hear.) Our son’s meds have stabilized him to some degree; things are not so bad now as then. But I do sympathize with my own clients who complain of the uselessness of RO’s, since that has been my experience too.
As someone said above, Restraining Orders are helpful with the law-abiding, not so much with the others.
(I don’t want to criticize police officers in general here. It’s a hard job, requiring the skills of a parent, a lawyer, a psychiatrist, a priest and a soldier all at once, given that it’s inadequately compensated, and given that we ask these people to put their lives on the line for us. Wow. It’s just that my own personal experience with RO’s differs wildly from Grace’s description.)
Well, too, moms get blamed. (Not dads for some reason.) Has anyone else noticed this? Back when I was a child if a child was autistic the mom was blamed for this (“refrigerator mothers”). Even further back, schizophrenia, all the fault of the mom. (Now we know it’s 98% genetic.) It seems that if anything in your life bothers you at all it must be your mother’s fault, can you dig it?
So my mentally-ill child: my fault, right? (This is really where the police were coming off of.) So where do I come off getting an RO against him when really it’s my fault to begin with? Why should I call in the police to clean up after my own personal failing?
@KellyK,
“I’m a little torn on whether an exception for positions like teaching or daycare would be a good thing or a bad thing. On the one hand, if you’re responsible for children, their safety is paramount and I have no problem holding people in that position to a higher standard. On the other hand, teachers are as likely to be in a relationship with someone who would misuse a restraining order as anyone else.”
Fair. I’m uncomfortable with the idea of anyone being punished for being accused but not found guilty of any crime. I think it goes against presumption of innocence and the right to a fair trial, which I think are moral principles, not exclusively legal ones, so I don’t like private citizens in positions of power (such as employers) acting against them. But yeah, sure, I certainly can see the argument for certain jobs to have higher standards. These types of jobs probably have special legal status in other ways, too, so it wouldn’t be without precedent, either.
“Though if we’re just talking about it not showing up on a background check, that’s separate from whether employers are allowed to consider it.”
Yes, what I’m talking about is not having it show up on a routine background check. Ultimately, we can’t legislate what employers are subjectively allowed to consider. What we can do, however, is make it as inconvenient as possible for employers to consider factors we consider goes against common justice. Make it a bureaucratic hassle to obtain this sort of information. Those who want it that bad probably have their reasons, while most simply won’t bother. It’ll be an order of magnitude easier to do this than to attempt to blanket ban something and try and stamp it out entirely, if stamping it out entirely is even what we want.
I feel the same way about employers using Facebook pages to screen candidates. I think that, in the future, we’ll increasingly need laws that make social network profile pages unsearchable by search engines and that also make it illegal for anyone to require you to give access to any such pages as part of an application process. If some employer cares enough to find a backdoor method, let them. Most won’t, though.
@chingona,
That we “generally leave our court records open in this country” is precisely what I’m proposing we change. There are countries where anything short of a successful conviction is left off any publicly accessible record.
Yeah, the American way is more “open”. The same way the home addresses and family members of political dissidents are more “open” in dictatorships. It’s Orwellian, having that buzzword attached to what is a more authoritarian and police state manner of justice.
@Susan,
I’m sorry to hear your story. My sympathies go out to you, your family, and your troubled son.
I’m not aware of any law that says anyone hit with a RO cannot be charged for trespassing. That sounds like something they made up on the spot, for some baffling reason I can’t figure out.
@pocketjacks, thanks for clarifying. I like the idea of it not showing up on a standard background check, and I think that’s reasonable. Having court records open to the extent that it could be found with a bit of searching, but not simply an automatic part of a background check, is probably reasonable.
The Facebook thing is a whole nother can of worms. I do think that it should be illegal (and maybe already is, technically) for an employer to require your login information. You’re violating Facebook’s TOS by sharing your login info, and you’re violating the privacy of everyone who has you listed as a friend. They didn’t friend your employer, or send private messages to them. Asking for your logins should be viewed the same way as asking for a key to your post office box.
What you publicly post on Facebook is another story, as is what you post if you have work people, or people who know work people, friended.
Susan, I’m also sorry to hear about your son’s troubles and the fact that your local police are making it worse by refusing to enforce a restraining order. It does sound like a “blame the mother” thing, since I doubt someone would have as much trouble getting an RO enforced against, say, an abusive parent.
“Fair. I’m uncomfortable with the idea of anyone being punished for being accused but not found guilty of any crime.”
That’s great, but given the way the conversation is going it’s probably worth remining everyone that you don’t have to commit or be accused of committing a crime to have a restraining order taken out against you. They’re taken out to restrain you from committing either a crime or non-criminal ‘abuse’ in the future.
The issue is whether we’re uncomfortable with the idea of anyone being punished due to a decision that there’s a possibility that they may commit some future criminal or civil violation, decided at a hearing at which they may not have had the chance to present evidence or cross-examine evidence against them and at which there’s a very low burden of proof.
That we “generally leave our court records open in this country” is precisely what I’m proposing we change. There are countries where anything short of a successful conviction is left off any publicly accessible record.
Yeah, the American way is more “open”. The same way the home addresses and family members of political dissidents are more “open” in dictatorships. It’s Orwellian, having that buzzword attached to what is a more authoritarian and police state manner of justice.
I think it’s a lot more complicated than you’re making it sound. There are lots of countries where no one can find out that someone has been arrested or what they’ve been accused of. Those usually are not countries in which you want to be in custody.
Hey, our government kept the names of Guantanamo detainees secret and even claimed it was for their benefit.
Susan @44: I’m very glad things worked out well for you and don’t mean to criticize your relationship in any way, but if I were in a failing marriage and someone told me a story like yours to try to make me not sue for divorce, I’m afraid it would have the opposite effect. Because it sounds to me like the moral is, “Well, you’re trapped and can’t escape no matter how bad things are so you might as well resign yourself. If you’re lucky the Stockholm syndrome will kick in at some point and you’ll feel happy with him again.”
I’m glad if you’ve found happiness with your relationship, but your experience just reemphasizes to me all the reasons I’m not married: Especially for women, it’s a trap and is used by men to control and exploit women. Did your guy ever start contributing anything to the family? From your description, it sounds like he did so maybe the personal changes and sacrifices weren’t all one sided in your case, but could you have done anything about it if he didn’t? He would still have had you with the “but think of the children” excuse.
Ultimately, I don’t see how children seeing one parent exploiting the other could be good for the kids. If my partner expected me to do all the child care, make all the money, and let him spend his time doing only as he pleased without contributing to the family, I’d leave him. Because I don’t want my daughter to see that as a normal relationship. I don’t want her partner, if she decides to have one, to exploit her for sex, money, and child care and give her nothing in return. Therefore, I can’t let her see me allowing myself to be used that way.
Yeah, the American way is more “open”. The same way the home addresses and family members of political dissidents are more “open” in dictatorships.
Uh, no, actually, the opposite of dictatorships. You know, where trials are secret and people disappear and I’m sorry, comrade, but we have no record of that whatsoever?
Home addresses are pretty public in the US, you may have noticed. Does that make us a dictatorship?
Dianne @75, I didn’t tell the whole story of my life in one blog post, there wasn’t space. (I am 66 years old, there’s a lot of story in there.) But to conclude from what I did say that “marriage for women is a trap used by men to control and exploit women” does seem something of an over-generalization. Always? For all marriages, for all women? I’m sure that if you really believe this, you are much better off (not to mention how much better off any prospective husband is!) remaining unmarried. (!!) I hope you’re not transmitting this message to your daughter. (!!!)
Sort of the whole point of my story, if you will re-read it, was that people go through changes, they grow, and in the process of growth good things can happen. It might not be wise to judge anyone (maybe including yourself) in a down phase. But all this works only if you don’t cut off the process, for yourself or other people, the first time things don’t go exactly as you think they ought to. I’m not saying never give up. That’s foolish. But in this thing, don’t give up easy.
[I recently came again into contact with my high school boyfriend, who was the exchange student from India. (This was the Doomed Love Affair of the Ages. Think Casablanca.) He went back to India (in 1963) and entered an arranged marriage. He explained to me, when he found me again (thank you Facebook) “in our country, we think marriage is something you have to work at.” (I’m thinking, where is this not the case??) The marriage of my old boyfriend is a singular success: in fact, his society probably does better than we do on this, probably because of the expectation my old friend articulated. His wife handles him far more wisely than I would have, and is a sweetie herself into the bargain. And, as is usual in such societies, she is the dominant member of the pair, though she’s careful not to draw his attention to this.]
In my case, having stayed around in my marriage as previously blogged more or less reluctantly, I supported the family for a year or so, and one day my husband said, “You know, I think I’ll go to law school.” So he did, and I continued to support the family for that time. When he graduated he started working. Then, because I wanted this, we had two more children. One of them is mentally ill and seriously disabled. Eventually I cut back to half time to care for this child (now an adult) while my husband continued to work. He and I are nearing retirement now, but his cumulative lifetime earnings, in money, far exceed mine. (He’s very bright, and a super-specialist in an area that rewards that.)
We’re partners, get it? I believed in him, he believed in me. We both contributed a great deal to this enterprise, sometimes in money, sometimes in other things. No one is tallying up at this point.
In light of this outcome, the suggestion that I’m a victim of Stockholm syndrome does seem a bit misplaced.
Susan, I don’t know what area of law you are in, but there are tons of attorneys in the Bay Area who deal with police misconduct. Not that you probably want to go ahead and sue them, but there may be more forceful avenues to get the police force in your town to do something other than “nah, we’ll just wait until he kills you and then suck up the settlement when your family sues us.”
I mean FFS. I understand that Oakland’s city services are dysfunctional, but for all the lawsuits that go on around here you’d think that maybe the police brass would say “Hm….you know, guys, maybe this whole blowing off threats thing is a bad idea”?
The marriage of my old boyfriend is a singular success: in fact, his society probably does better than we do on this, probably because of the expectation my old friend articulated.
That’s a broad conclusion to base on two people’s experience. (One person’s, really, unless you also are friends and confidants with his wife.) I have two friends and colleagues whose arranged marriages didn’t work out so well. Yes, they worked on them. They both tried very hard. At least one is still married-because she doesn’t want to risk loosing custody of her children to a man she doesn’t trust to treat them well. India’s no utopia. Working on a marriage doesn’t guarantee success.
As I said earlier, I don’t know anything about your specific marriage except what you’ve chosen so share about it. I’m glad it’s worked out for you. But I’ve seen enough friends and relatives stick to a marriage after it was clearly dysfunctional and have really, really bad things happen because of it to not be positively motivated by the argument “but it’ll get better”. My great-grandmother died because she didn’t want to “give up easy”. My step-mother came close to doing so too. My parents? They both walked away, alive and healthy, when their marriage didn’t continue to work for them. Neither was at fault and neither wanted to call the other at fault, so the no-fault divorce law really helped them through a period which was very hard. Hard, but necessary, like having a root canal to save a tooth.
pocketjacks:
I agree in broad principle that, holding all else equal, allegations tested to higher levels of proof should be more widely available and remain on records longer.
Once we have to get down to cases, the devil is in the details. Remember that there is no “the US” when it comes to restraining orders. There are fifty states and a bunch of territories, and within those states and territories there are policy variations, etc, etc.
It would be nice to be able to say, “…and this finding shall be stricken from the permanent record after X period of time”. But nowadays for under $100 you can get extensive dossiers on pretty much anyone, which dossiers are the result of lots of automated data mining with fancy algorithms. The nature of modern computing is such that once something is in a publicly-accessible database, it’s pretty much permanently on the public record. Any practical system we design must bow to that reality.
As a society, we’re nowhere near solving that problem. The closest we’ve come is trying to define what people are and aren’t allowed to think about in making their decisions. That’s great when people are honest about being bigots (thanks, Sewell Brumby!) but mainly it just moves the HR Department’s official reasoning into one of the permissible areas.
mythago:
Around here, we already have this. The judges have a standard form with boxes they can check, and then there’s a box in front of an area where they can write in what they want. So they have a wide latitude. The permanent restraining orders tend to get fine-tuned more than the emergency ones.
I’m sure that there is a reason behind the policy, but it does make you wonder if they failed to consider whether the baby was still in the bathwater, doesn’t it?
Aw, shucks.
But seriously, what you really want is for my jurisdiction to be in your neighborhood. Individual officers certainly vary in quality, but we are severely limited or enabled by the chain of command we work within (and are selected by, but that’s a whole ‘nother can of worms). Oakland’s policy sounds ridiculous, and I suspect that it could only come about because they are stretched so thin that they are at the level of triage. That’s an ugly situation, all around. The citizens don’t get the basic services they need, and they blame (among others) the officers, and so people who pay high taxes don’t move in, and other people don’t want to provide more resources for the police officers to do a lousy job with, and so the police department has no more money than it did before, and round and round you go…
That police response in Piedmont makes little sense on its face. I’d have a bad taste in my mouth, too. I have no idea why the existence of an RO prevented them from a trespass arrest. It’s possible that it’s some arcane facet of law (California’s penal code is Byzantine, and I don’t pretend to know much more than that about it). It’s also possible that it’s a city policy or individual discretion. I’m sorry I don’t have better than that to offer you.
As with my response to mythago, I’m not about to say your experience is wrong. It is what it is. One thing I’m learning, in this thread (yet again), is what a good area I work and live in, and what an excellent agency and Chief I have. Although my 5-point essay, above, was heartfelt and based in my experience, clearly we also have to remember that restraining orders have those effects only if the system and the people in the system implement them such that they have those effects.
However, when saying, “restraining orders don’t work”, it’s important to look at the system they are founded on and depend upon. It may be an excellent restraining order system trying to work in a lousy broader legal structure, or implemented by an inferior department, just as you can have (for a time) a well-constructed house built on sand.
It’s late and I’m tired. I feel like I ran on at the mouth again. I hope this all makes sense.
Grace
Please pardon me if what I’m about to say has already been stated; it is 2:30 in the morning, just about, and I’m sleepy and don’t want to slog through 80+ comments. But it seems to me that the problem of American divorce is far simpler than anyone has considered, or perhaps in some cases wants to admit in the first place.
I see two major forces moving here.
1. Because it is now easy to get a divorce, it is possible that more people get married–perceiving that they will not be trapped forever. (Is anyone tracking what percentage of the unmarried population gets married each year? I specify “unmarried population” because the way research is done in this country, some yo-yo will inevitably count EVERYBODY, even though married people would skew the percentages.) So you wind up with more married people, so of course it would look like a lot of people are getting divorces.
Marriage used to be something of a luxury–let’s not forget that. In some areas of the world you still must be wealthy to hope for a spouse. That’s why common-law marriage was invented to begin with. But now? Now, at least in the United States, you just take a blood test, go down to the courthouse and fork over less than $100–actually, probably less than $50 in most if not all cases.
2. When people say fifty percent of all marriages end in divorce it is very clear to me that what’s uppermost in their minds is first-time marriages. They don’t stop to think about it. And this is important. Advice columnists used to remind their readers regularly, when advising about keeping a marriage together, that subsequent marriages are far more likely to end in divorce than first marriages. And there are all kinds of reasons that is true. Subsequent marriages are more stressful due to ex and child support issues; people who remarry after a divorce have already shown they are willing to obtain a divorce and it doesn’t take as much out of them to do it again; so on and so forth. Whatever–if you look at the stats and find that this claim holds up, I’d be curious to know what percentage of FIRST marriages end in divorce. Or… I could look it up. Later. After I’ve had sleep.
But if there’s anything to these two points I’ve raised, it suddenly makes all the other stuff people argue about vis-à-vis divorce so much less important. Does it really matter whether feminism or morals are playing a role when, as you so astutely pointed out, marriage has been changing for some time anyway? And, most saliently (to me anyway): Are we willing to throw away these changes in the cultural institution of marriage just to make one statistic smaller? Seems kind of dumb to me. Then again we are talking about the right wing, which is famous for its tendency to throw the wedding ring out with the ringbearer. *shrug*
@mythago,
It’s funny then, that other countries in the world that consistently score above the US in civil liberties rankings place more restrictions on the accessibility of criminal records. Criminal records naturally expunge themselves after a period in Commonwealth countries and aren’t even available to employers in Germany. The ACLU has also consistently supported restricting employer access to criminal records and to make it easier to expunge one’s record, such in this pending bill in Georgia.
It seems that what most people serious about civil liberties have concluded is that there’s a right to privacy and a chance of rehabilitation – rights that real life dictatorships respect even less than the (erm) freedom to other people’s private records. Civil liberties, after all, belong to the individual, not to the group.
@chingona,
Thanks for your measured response. You’re talking about countries where the accused themselves have no access to a complete, comprehensive record of why they’re being arrested, detained, and subject to state coercion. You’re right, that’s a bad thing. Countries with better civil liberties records than ours, though, place more restrictions on other people having more access to your complete, comprehensive record.
@Grace Annam,
“It would be nice to be able to say, “…and this finding shall be stricken from the permanent record after X period of time”. But nowadays for under $100 you can get extensive dossiers on pretty much anyone, which dossiers are the result of lots of automated data mining with fancy algorithms. The nature of modern computing is such that once something is in a publicly-accessible database, it’s pretty much permanently on the public record. Any practical system we design must bow to that reality.”
For the record, I don’t think arrests, detainments, or any legal action taken against an individual that did not result in a conviction via a fair trial should be on any public record at time, not merely that they be naturally expunged after a period of time. A public record is different from an internal police department one, which of course by necessity needs to include all of these. I’d also include accepted plea bargains as “convictions”; I’m not entirely comfortable with that, because a lot of plea bargains are accepted under coerced circumstances and are a backdoor method for zealous prosecutors who don’t truly believe in the ideals of a liberal justice system to push through convictions without going through that pesky thing the Constitution calls a “trial”. But I have to bow to reality in this case, as most charged with a crime never make it to trial.
As for the future in a society where there’s less information privacy every day… I think we have no idea how technology will further change the future and what the legal culture of tomorrow will be in response to these changes, so I don’t think doom-and-glooming is more realistic or wise than any other response. Web privacy is going to become the big civil liberties issue of the century; we don’t have to passively accept a surveillance society.
@Dana,
I’m not entirely sure that people are only worrying about first-time marriages when they’re talking about divorce rates. Divorce(e)s make up a pretty big portion of the people, after all, and they more than anyone else are probably the most attentive to this topic.
(Ignore the 2 am time stamp. I’m in Europe for a while, and it’s 11 am here, a very civilized time.)
I cruised around some, and the statistics Dana (and I) would like to have about marriage and divorce rates turn out to be hard (as in, impossible) to come by.
First of all, the 50% number is almost certainly wrong. It was arrived at by counting the number of divorces and the number of marriages in one year. (Good luck with finding out how many divorces there were, by the way: see discussion below.) Turns out that whenever this was done (people who use this number seldom tell us what year they’re working with) there were (allegedly) about twice as many marriages as divorces. This is obviously a flawed number regardless of what year you use, and even if you could get the information: the marrying people and the divorcing people are not the same people! (With the exception of some high-profile entertainment types I guess.)
The US National Center for Health Statistics used to collect divorce data, but their reports were always flawed because among other states, California, the most populous, did not report any numbers to the Center, and the Center stopped collecting divorce data in 1996 anyway. There is now no national governmental agency I could find which collects data on the number of divorces. As for the States, California, Indiana and Louisiana do not collect divorce statistics on a state-wide basis at all; other jurisdictions use a variety of methods, including surveys. So the actual number of divorces, even, is hard to determine.
Most of the sites I visited agreed that whatever the proportion of divorces may be, first marriages are much less likely to end in divorce than second and subsequent marriages; that the divorce rate has been declining for some years, though slightly; and that the marriage rate, too, is declining. Most people also agree that cohabiting before marriage increases the chance of divorce, counter-intuitive but true, apparently. Higher education and higher income are both predictive of lower divorce rates. I’m not sure, however, where the numbers to support these agreed “facts” come from, or if there are any. (I believe that marriage statistics, as in, how many people married in any given year, are easier to come by, but as for the rest….)
In spite of the paucity of hard data, there are numerous sites which will quote percentage “information” on all this and much more. When they bother to include citations, they cite each other, the census (a survey which relies on self-reporting, a notoriously unreliable way to gather facts), or articles by this and that “authority.”
I still want Grace for my police person. My jurisdiction is said to pay unusually well, and the weather there is very pleasant. Grace…?
Presumably it’s so the respondant has the opportunity to have the evidence against them cross-examined, rather than taken at face value.
Most people also agree that cohabiting before marriage increases the chance of divorce, counter-intuitive but true, apparently. Higher education and higher income are both predictive of lower divorce rates.
See, I’m kinda dubious about the cohabitation increasing the divorce rate. I agree that the statistics show that it does; I just disagree with the reasons offered for why this happens. Conservative folks say it’s because too much intimacy prior to marriage inevitably leads to divorce by…well, taking the “shine” off. I think the reason is more mundane; that the people most likely to live together prior to marriage—and postpone getting married—are those who are financially struggling.
Dana @81: I’ve often thought that the easiest way to reduce the divorce rate would be to make it harder to get married. I’ve never seen anyone divorce on a whim. Divorce is upsetting and hard, no matter how bad the marriage, no matter how much relief there is at ending it. Marriage, on the other hand, is easy and always a fun party, no matter how foolish and unlikely to succeed it is.
Re cohabiting before marriage, this article suggests that social expectations play a significant role in the extent to which prior cohabitation is a risk factor for divorce, supporting La lubu’s hypothesis that socioeconomic factors play a larger role than “taking the shine” off the relationship.
pocketjacks @82: Well, now I’m confused. Do dictatorships support more open information or don’t they? Which is to say, “dictatorships do [vague thing]” is detracting from your argument, not enhancing it. There are good arguments in favor of prohibiting certain use of public records, for expungement and for rehabilitation, but “dictatorships do X” (which dictatorships? why? is anything a dictatorship also does automatically evil?) is not one of them.
“Other people” may well have a reason for knowing about public records, such as criminal convictions, other than morbid curiosity. Do we want rapists to be able to seal their records so that future victims can’t find out about them?
““Other people” may well have a reason for knowing about public records, such as criminal convictions, other than morbid curiosity. Do we want rapists to be able to seal their records so that future victims can’t find out about them?”
This is rather far afield, but I’m leaning toward ‘yes’.
If you don’t think that we punish people enough for a crime, and that they should still be in jail, I’m ok with that argument.
I’m skeptical of arguments that we should allow ‘criminal records’ to become this nasty stain on a person’s ability to do anything for the rest of their lives. We don’t tattoo ‘sexted her boyfriend at 16’ on her forehead, but we already do put her on the sex offenders list so that she can’t ever live near a school or get a regular job.
Back to the topic at hand I’m even more skeptical of arguments that we should allow what are in many jurisdictions essentially rubber-stamp administrative proceedings to act as a nasty mark against someone forever. That doesn’t comport with justice at all.
If you don’t want to talk about the issue pocketjacks raised, that’s great. You shouldn’t get so distracted by the word ‘dictatorship’ that you are unable to talk about the susbstantive problem he raised.
Sebastian H: there is a difference between creating a special, separate list of people who have been convicted of a particular category of crime (the sex offender list) and permitting the fact of a conviction to be an open record.
I am not sure why it is “punishment” to allow the fact of a conviction to be public.
Because it makes it nearly impossible to get any legitimate job at any time thereafter?
This factor may be partly an artifact of the times: with (official, and therefore understated) unemployment being between 8 and 10% of the workforce, employers have become very very choosy, in some markets even insisting that new hires not be presently unemployed (!!!) let alone requiring that that the person has no criminal conviction in his or her past, however distant.
Lower unemployment, not to mention a labor shortage, would solve some of this. But these are the times we live in now. I find it hard to see how it is in our collective interest to make convicts unemployable, thus encouraging further crime, thus making further incarceration (which is quite expensive for us) likely.
Getting a TRO against you isn’t a conviction. It doesn’t have a similar level of proof. That is the reason we are talking about it in this context. Other contexts might have other conclusions.
It may or may not make sense, depending on the added deterrent effect. To some degree, bad outcomes for criminals serve to deter future actions.
That said, I have a gut feeling that many of the bad outcomes for convicts aren’t providing much deterrence, so I essentially agree with you. But my belief isn’t based on data.
I’d also include accepted plea bargains as “convictions”; I’m not entirely comfortable with that, because a lot of plea bargains are accepted under coerced circumstances and are a backdoor method for zealous prosecutors who don’t truly believe in the ideals of a liberal justice system to push through convictions without going through that pesky thing the Constitution calls a “trial”.
The flip side of this is that many people plea to charges that are far, far less than the crime they committed in order to avoid the risk of a trial. Your record can end up cleaner than you are. It works both ways.
You’re talking about countries where the accused themselves have no access to a complete, comprehensive record of why they’re being arrested, detained, and subject to state coercion. You’re right, that’s a bad thing.
Yes, but not only the accused. How does your mother or your wife find out about your arrest if it is not public information? Or should only the people who the accused wants to know about the arrest be allowed to know? What about the court proceedings? Should those be closed? Think about what it would mean to actually seal this information.
Countries with better civil liberties records than ours, though, place more restrictions on other people having more access to your complete, comprehensive record.
Could you explain a little more what you mean by “better civil liberties records”? My impression has always been that the accused has a lot fewer legal rights in most European countries but we have a more punitive system – longer sentences, more crimes resulting in jail time, etc.
I haven’t looked into the research on this myself, but I’ve heard (fwiw) criminologists (who presumably do know the research) say that what matters most for deterrence is that the punishment be certain not that it be severe. So a very strong chance of six months in jail might have much more deterrent effect than a 1-in-10 chance of ten years in prison.
Of course, in a reasonable, non-fascist system it’s very hard to make punishment certain.
Ya, the old “fairness” v “justice” issue:
If you want to make special exceptions for people with differing circumstances, you’re making an effort to be more fair and less just. But then differently-situated folks who do similar things get widely variable punishments: it’s about who you are, not what you do. You also end up with a lot of variation even within the identical class: the more discretion that judges have, the more that the system varies due to human variation between judges.
And of course those special exceptions can often bite you in the ass. Because no matter how you try to set them up at first, they are inevitably coopted by whatever social group is in power at the time, and generally are used to support that group to the greatest degree possible.
Justice requires that we treat everyone the same–or try to–without regard for their status. The benefit is that things are more predictable. The cost is that you end up with
I think that a lot of liberals are wrongly biased towards the “fairness” model. They usually push for more discretion, not less. Moreover, they don’t seem to often (ever?) discuss the costs of doing so.
In that respect, I think that a lot of “fairness” advocates suffer from hubris: even though we have plenty of history showing when can happen when you abuse discretion, and even though we have plenty of history showing how folks who CAN abuse it generally DO… there’s a shocking lack of self-realization. nobody seems willing to acknowledge that they (or the folks they support) could ever be corrupted. And so it goes.
Of course, strict “process only” folks are equally blind towards their own hubris, including the mistaken belief that process itself is incorruptible (it’s not) or that process cannot be influenced (it can) and so on.
(I disagree, however, that process and justice are inherently fascist, any more than the discretionary model is inherently dictatorial. We can get a hell of a lot father away from a discretionary model without dipping a toe in the fascism pool.)
So it’s a question of HOW you think about it, rather than the conclusion you come up with.
Loopholes for Roman Polanski; rape assailants who get off without a conviction; folks like Hugo Schwyzer who never get charged…. these are bad, right? It’s easy to decry them. And you can. But the important thing is to realize that for every step you make to close a loophole, you end up deporting another Leslie Hernandez, or convicting another dude who stole some meat to feed his kids. Etc.