“Clear and Present Danger”…fuzzy usage by AFCC
The purpose of my post is to expose how a certain organization, called “AFCC,” which has openly stated it seeks transformative language (from “old” definitions of criminal to newer ones with a sociological flavor) is — as we speak — attempting to co-opt a phrase addressing the danger (to citizens of the state of California) a spousal batterer presents, for its own use.
The law — and we have an elected legislature, right? — is already clear on this. I’d have to affirm, the shoe fits this definition:
From 1997, Women’s Law Journal:
Copyright (c) 1997 Regents of the University of California
UCLA Women’s Law Journal
FORUM: MANDATORY PROSECUTION IN DOMESTIC VIOLENCE CASES: DOMESTIC VIOLENCE: THE CASE FOR AGGRESSIVE PROSECUTION
Spring / Summer, 1997 // 7 UCLA Women’s L.J. 173
Author: Donna Wills *
Prosecutors throughout the country, and especially in the State of California, have begun taking a more aggressive stance towards domestic violence prosecutions by instituting a “no drop” or “no dismissal” policy. 1 Based on my experience as a veteran prosecutor who specializes in these cases, I firmly believe that this policy is the enlightened approach to domestic violence prosecutions. Fundamentally, a “no drop” policy takes the decision of whether or not to prosecute the batterer off the victim’s shoulders and puts it where it belongs: in the discretion of the prosecutors whose job it is to enforce society’s criminal laws and hold offenders accountable for their crimes. The prosecutor’s client is the State, not the victim. 2 Accordingly, prosecutorial agencies that have opted for aggressive prosecution have concluded that their client’s interest in protecting the safety and well-being of all of its citizens overrides the individual victim’s desire to dictate whether and when criminal charges are filed.
Aggressive prosecution is the appropriate response to domestic violence cases for several reasons. First, domestic violence affects more than just the individual victim; it is a public safety issue that affects all of society. Second, prosecutors cannot rely upon domestic violence victims to appropriately vindicate the State’s interests in holding batterers responsible for the crimes they commit because victims often decline to press charges. Third, prosecutors must intervene to protect victims and their children and to prevent batterers from further intimidating their victims and manipulating the justice system.
Timeframe: 1994 — VAWA (and National Fatherhood Initiative) started, and 1998-1999, Congress getting ready to pass more fatherhood resolutions, nationally. This is, again 1997.
Here (already blogged by me) is a section from the Giles Amicus (I believe), describing SOME of the clear dangers domestic violence poses to its targets. Judge for yourself if some of these effects represent danger or not:
Furthermore, the California Legislature has defined domestic violence to include violent and various non-violent acts, supporting the proposition that victims may reasonably fear many forms of reprisal. Specifically, the California Evidence Code states that domestic violence is “physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.” See Cal. Evid. Code § 1109 (West 2005) TA \l “Cal. Evid. Code § 1109 (West 2005)” \s “Cal. Evid. Code § 1109 (West 2005)” \c 2 (following the meaning of domestic violence set forth in TA \l “Cal. Pen. Code § 13700 (West 2005)“ \s “Cal. Pen. Code § 13700 (West 2005)” \c 2 Cal. Pen. Code § 13700 (West 2005) TA \s “Cal. Pen. Code § 13700 (West 2005)” ). Additionally, the California Family Code defines abuse as causing bodily injury, sexually abusing a person, or placing a person in “reasonable apprehension of serious bodily harm to that person or to another” and, further, it provides that a victim may obtain a restraining order to protect against the batterer’s non-violent reprisals, such as “stalking, threatening,…harassing, telephoning,…[or] destroying personal property.” Cal. Fam. Code §§ 6203, 6320 (West 2005) TA \l “Cal. Fam. Code § 6203 (West 2005)” \s “Cal. Fam. Code §§ 6203, 6320 (West 2005)” \c 2 .
Most commonly, a victim reasonably anticipates a physical assault, including sexual assault or even death, if the victim attempts to end a battering relationship and assist in the batterer’s prosecution. In fact, victims are at the highest risk of severe abuse or death when they challenge the batterer’s control in their attempts to leave. Hernandez, 345 F.3d at 837 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” ; see also Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature of Private Violence 59, 79 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994) TA \l “Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature of Private Violence (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994)” \s “Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature Of Private Violence 59, 79 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994)” \c 3 (describing the phenomenon of “separation assault” in domestic violence relationships and finding that the majority of domestic violence homicides occur upon separation).
Victims may also reasonably fear serious, non-violent reprisals. For example, a victim may fear that the batterer will abduct or injure the couple’s children. See Town of Castle Rock v. Gonzales, 125 S. Ct. 2796, 2800-2802 (2005) TA \l “See Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005)” \s “See TownCity of Castle Rock v. Gonzalesz, 125 S. Ct. 2796, 2800-2802 (2005)” \c 1 (describing incident in which batterer violated his wife’s restraining order against him, abducted his three children, and murdered them.); see also Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv. & Fam. Ct. J. 13, 13-21 (1999) TA \l “Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv. & Fam. Ct. J. 13 (1999)” \s “Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv.enile &and Fam.ily Ct. J.ournal 13, 13-21 (1999)” \c 3 (citing research that establishes a definitive link between parental child abduction and domestic violence). In fact, twenty-five percent of batterers directly threaten to kidnap the couple’s children if the victim pursues legal action. Buzawa & Buzawa, supra, at 183.
Additionally, because many victims depend upon the batterer for financial support, they may reasonably fear financial ruin or homelessness if they assist the prosecution. A batterer’s control of the victim’s access to money and employment is common in domestic violence situations. Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107, 109 (1990) TA \l “Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107 (1990)” \s “Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107, 109 (1990)” \c 3 . A victim may reasonably fear that, without the batterer’s financial support, she and her children are at risk of becoming homeless. U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (2004) TA \l “U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (2004)“ \s “U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (, December 2004)” \c 3 (citing domestic violence as the primary cause of homelessness in forty-four percent of the cities surveyed).
What do you say? Well, here’s the law (as quoted on my blog earlier)– you can google it yourself:
CAL. PEN. CODE Â§ 273.8 : California Code – Section 273.8
The Legislature hereby finds that spousal abusers present a clear and present danger to the mental and physical well-being of the citizens of the State of California. The Legislature further finds that the concept of vertical prosecution, in which a specially trained deputy district attorney, deputy city attorney, or prosecution unit is assigned to a case after arraignment and continuing to its completion, is a proven way of demonstrably increasing the likelihood of convicting spousal abusers and ensuring appropriate sentences for those offenders. In enacting this chapter, the Legislature intends to support increased efforts by district attorneys’ and city attorneys’ offices to prosecute spousal abusers through organizational and operational techniques that have already proven their effectiveness in selected cities and counties in this and other states.
In order to understand family law venue, you MUST understand that part of its primary purpose is that these offenders NOT be convicted or prosecuted. One great way to shut up a parent or a child from reporting is to simply switch custody (or force repeated contact with) an abuser. In war, this is understood as a form of coercion and torture. Yet in our Golden State here, it’s business as usual. How can this be?
“It’s not abuse, or domestic violence, it’s a “high-conflict” relationship. let us “explicate” — at your expense…” (Give me a break…)
How can you explain away a law passed by a legislature?
Easy — a language shift. Co-opt the phrase and apply it to something different, and train — first, your cronies — to adopt the new usage. When said Cronies are practically RUNNING the courts, it’s kind of hard to override them. . . . . But here you are (and I’m almost out of time here. Figure out the rest yourself….).
AFCC’s explication of “Clear and Present Danger” is running out of money for them. I can certainly understand why these professionals are much more concerned about the COURTS running out of money than the parents litigating in the courts, or — as the US Governors have already stated, domestic violence being a significant cause of homelessness, evidently it includes economic abuse somewhere in there. . . . .
As you may infer, I’m upset about this. With good cause, too. I have uncollectable child support, and the guy STILL isn’t out of my life, although thanks to this system, my own kids are….Like many women, I lost a livelihood fighting this uphill battle, until someone spoke some common sense to me. Well, we are still not done exposing the money trail here. Anyhow, til later . . . .
According to AFCC, the “clear and present danger” is any cessation of the everflowing (cesspool?) of federal funds to the family courts to bastardize the legal process. That’s MY version of it, of course. It kind of does remind one of a toilet that won’t stop running, however….. The water being, public, tax-funded funds with inadequate oversight….
As I showed in a previous post, the brochure even says so:
Here is the advertisement for this Feb 2010 conference:
California Annual Conference
The Crisis of Under-Funding Family
Court Resources: A Clear and Present
Danger to Our Children
Sheraton Delfina Hotel
Santa Monica, California
February 12-14, 2010
For more information
Here is the graphic, once you click on “for more information.”
Note: co-sponsored by the L.A. County Superior Court. Huh??
Finally, below here, I simply googled the phrase, and pasted a reference and discussion on this phrase. No, I have not thoroughly explored it, but at least this is a discussion of the history of the phrase.
You’d think the assortment of legal professionals in AFCC (there are judges and attorneys) might be interested in more precise language — but they are also hanging out with sociologists, psychologists, and whatnot, and surely the waters are somewhat muddier than they are in the clear law, and the cold hard facts showing up in the newspapers, weekly, daily, and year after year. . . .
Below this, I pasted a “lethality assessment” (Barbara J. Hart, Esq. Google it, it’s well-known. Why can’t we bring this stuff up in a family law case? )
The words “clear and present danger,” first used as a casual phrase by Justice Oliver Wendell Holmes, became an important test for determining whether speech is protected by the First Amendment. Holmes introduced this phrase in Schenck v. United States, a 1919 opinion for a unanimous Court upholding against First Amendment challenges the convictions of socialists who had distributed antiwar circulars to men accepted for military service in World War I. In explaining why the defendants could constitutionally be punished for violating the prohibition in the 1917 Espionage Act against obstruction of recruitment, Holmes wrote, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (p. 52). Relying on the prevailing bad tendency test he himself had applied in previous cases involving speech, Holmes reasoned that in the circumstances of war these circulars had a tendency to obstruct recruitment. In Frohwerk v. United States and Debs v. United States, two companion unanimous decisions that also invoked the bad tendency of antiwar speech in affirming convictions under the Espionage Act, Holmes did not mention clear and present danger. Even though Holmes used the phrase “clear and present danger” only in Schenck and relied on the bad tendency test in all three opinions, Zechariah Chafee, Jr., then a young professor at Harvard Law School, soon wrote a law review article claiming that Holmes intended the clear and present danger test to make “the punishment of words for their bad tendency impossible.” As Justices Holmes and Louis Brandeis rapidly became more sensitive to the value of free speech during the “Red Scare” following the war, they found it useful to rely on Chafee’s misconstruction of clear and present danger in Schenck to express their developing views without repudiating their prior decisions. From the dissent by Holmes in Abrams v. United States (1919) through the concurrence by Brandeis in Whitney v. California (1927), Holmes and Brandeis elaborated the meaning of clear and present danger in ways that transformed it into a First Amendment test providing substantial protection for dissident speech. Most significantly, they infused an immediacy requirement into the clear and present danger test that precluded punishment of speech unless it imminently threatened an illegal act. Brandeis’s concurrence in Whitney, moreover, belatedly responded to the majority’s assertion in Gitlow v. New York (1925) that both the bad tendency test and the clear and present danger variant apply only “in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself” (p. 670). A statute that itself defines speech as criminal, Brandeis insisted in Whitney, is also subject to judicial review under the clear and present danger test. The Supreme Court majority continued throughout the 1920s to apply the traditional bad tendency test and did not refer to clear and present danger when it first overturned convictions on First Amendment grounds in the early 1930s. From the late 1930s to the early 1950s, many majority decisions did rely on the clear and present danger test previously developed by Holmes and Brandeis to protect speech in a wide variety of contexts, and the Court never referred to clear and present danger in decisions that denied First Amendment claims. Yet at the height of Cold War fear about a communist conspiracy, the Court in Dennis v. United States (1951) removed the immediacy requirement and accepted Judge Learned Hand’s reformulation of the clear and present danger test: “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger” (p. 510). Applying this new standard, the Court upheld the convictions of eleven Communist party leaders for conspiring to advocate the violent overthrow of government (see Communism and Cold War). Since the Dennis decision, the Supreme Court has largely ignored but has not entirely abandoned the clear and present danger test while developing different doctrines to analyze a proliferating range of First Amendment issues. The clear and present danger test may have resurfaced in the Court’s 1969 per curiam opinion in Brandenburg v. Ohio, which reversed the conviction of a Ku Klux Klan leader under a state statute prohibiting the advocacy of criminal syndicalism. In an abrupt holding accompanied by scant and unconvincing analysis of prior decisions, the Court declared that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (p. 447). Several scholars have interpreted this passage, although it does not contain the phrase “clear and present danger,” as combining the immediacy requirement derived from the Holmes‐Brandeis opinions with a further requirement that speech constitute an incitement to illegal action. The Court has not subsequently elaborated its analysis in Brandenberg and has applied it only infrequently, leaving its meaning uncertain, particularly in contexts other than subversive advocacy. See also Speech and the Press. Bibliography David M. Rabban , The Emergence of Modern First Amendment Doctrine. University of Chicago Law Review 50 (Fall 1983): 1205–1355. David M. Rabban
LETHALITY ASSESSMENT SHOWS THESE CLEAR AND PRESENT INDICATORS OF DANGER:
Predictors of Lethality Include:
- Threats of suicide or homicide including killing himself, the victim, children or relatives.
- Fantasies of homicide or suicide in the guise of fantasizing “who, how, when and/or where to kill.”
- Weapons owned by the perpetrator who has threatened to used them or has used them in the past (the use of guns is a strong predictor of homicide).
- Feelings of “ownership” of the victim.
- “Centrality” to the victim (idolizing and extreme dependence).
- Separation from the victim (this is an extremely dangerous time when perpetrators make the decision to kill).
- Dangerous behavior increases in degree with little regard for legal or social consequences.
- Repeated calls to the police.
Lethality assessments are more an art than a science and cannot be considered precise by any means. They are not a tool for certain prediction, but rather one for risk assessment and safety planning or intervention. Social service providers should error on the side of caution and inform their clients that any abuser can potentially be lethal