Coerced debt: The role of consumer credit in domestic violence

California Law Review

Volumn 100, Issue 4, 2012, Pages 951-1026

  Littwin, Angela ^a  

^a UNIVERSITY OF TEXAS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84855232608     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (88)

1. PATRICIA TJP.DEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, NCJ 181867, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE, at iii, 13-14 (2000), available at http://www.ncjrs.gov/pdffilesl/nij/l81 867.pdf.
2. EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN PERSONAL LIFE 257-67 (2007).
3. Adrienne E. Adams & Megan R. Greeson, Economic Abuse in the Lives of Women with Abusive Partners (2006)
4. Susan Lloyd & Nina Taluc, The Effects of Male Violence on Female Employment, 5 VIOLENCE AGAINST WOMEN 370, 370 (1999) (reviewing the negative effects of male violence on women's labor force participation and economic independence);
5. Richard M. Tolman & Hui-Chen Wang, Domestic Violence and Women's Employment: Fired Effects Models of Three Waves of Women's Employment Study Data, 36 AM. J. COMMUNITY P5YCHOL. 147, 147(2005) (outlining the negative impact of domestic violence on victims' employment regardless of their mental and physical health).
6. ELIZABETH M. SCHNEIDER, BAIrERED WOMEN AND FEMINIST LAWMAKING (2000);
7. Patricia Tjaden, Defining and Measuring Violence Against Women: Background, Issues, and Recommendations, 22 STAT. J. U.N. ECON. COMMISSION FOR EUR. 217, 218 (2005) (stating that a "paradigmatic shift [in the approach to violence against women] resulted in more and more cooperation between U.S. criminal justice and public health agencies to conduct research on violence against women and to develop effective prevention and intervention strategies and policies").
8. See SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE: THE VISIONS AND STRUGGLES OF THE BATrERED WOMEN's MOVEMENT 29-32 (1982);
9. Emily J. Sack, Battered Women and the State: The Stngglefor the Future of Domestic Violence Policy, 2004 WIS. L. REV. 1657, 1668-75.
10. ELIZABETH M. SCHNEIDER E AL, DOMESTIC VIOLENCE AND THE LAW: THEORY AND PRACI1CE 13 (2d ei 2008)
11. (citing ELIZABETH PLECIC, DOMES11C TANNY: THE MAKING OF SOCIAL POLICY AGAINST FAMILY VIOLENCE FROM COLONIAL TIMES TO THE PRESENT (1987)).
12. See, e.g., Warren v. Georgia, 336 S.E.2d 221 (Ga. 1985).
13. For examples of cases decided under the previous regime, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (denying women "legal existence separate from [their] husband[s], who [were] regarded as [their] head[s] and representative[s] in the social state");
14. Bradley v. Mississippi, 1 Miss. (1 Walker) 156, 158 (1824) (upholding the right of a husband to "exercise the right of moderate chastisement").
15. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52,69(1976).
16. E.g., Violence Against Women Act of 1994, 108 Stat. 1902 (1994)
17. (requiring states to give full faith and credit to protection orders issued in other courts, and making the crossing of state lines while violating a protective order a federal crime); Pennsylvania Protection from Abuse Act, 23 PA. CONS. STAT. § 6101-6122 (2010).
18. For a comprehensive summary of the modern status of interspousal tort immunity in personal injury and wrongful death actions, see Wayne F. Foster, Annotation, Modern Status of Interspousal Tort Immunity in Personal Injury and Wrongful Death Actions, 92 A.L.R.3d 901(1979).
19. See also Self v. Self, 376 P.2d 65 (Cal. 1962) (in bank) (abandoning the rule of interspousal immunity for intentional torts);
20. Townsend v. Townsend, 708 S.W.2d 646 (Mo. 1986) (en banc) (finding that the common-law doctrine of interspousal immunity is not a bar to claims for personal injuries inflicted by one spouse against another).
21. Janet M. Bowermaster, Relocation Custody Disputes Involving Domestic Violence, 46 U. KAN. L. REV. 433,449-56(1998).
22. Jonathan D. Glater, Another Hurdle for the Jobless: Credit Inquiries, N.Y. TIMEs, Aug. 7 2009, at Al (exploring the use of credit reports in hiring);
23. Katie Porter, More Supreme Court Action on Credit Issues, CREDIT SLIPS (Sept. 28, 2006, 12:39 AM), http://www.creditslips.org/creditslips/2006/O9knore- supremeco.htinl (discussing Supreme Court cases that considered the use of credit reports for purposes other than granting credit);
24. Background Checking: Conducting Credit Background Checks SHRM Poll, Soc'Y FOR HUM. RESOURCE MOMT. (Jan. 22, 2010), http:llwww.shrm.oreseaith/ SurveyFhidings/AiIic1es/Pag&BackgroundChecking.aspx.
25. 1 WILLIAM BLACKSTONE, COMMENTAIUES 430; BLACK's LAW DICTIONARY 422(9th ed. 2009).
26. LESLIE J. HARRIS ET AL, FAMILY LAW 36-37 (3d ed. 2005).
27. See, e.g., Califano v. Westcott, 443 U.S. 76 (1979) (finding gender differentiation in the provision of benefits to children of unemployed parents not "substantially related" to any valid statutory goal);
28. Califano v. Goldfarb, 430 U.S. 199 (1977) (finding a violation of equal protection in the distinction between widows and widowers, and male and female wage earners under the Social Security Act).
29. See, e.g., McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953) (holding that, while a marriage was intact, a woman could not use the law to force her husband to allocate the family's economic resources differently).
30. See, e.g., TEX. FAM. CODE ANN. § 3.202(a)-(c) (West 2009).
31. Brian K. Bucks et aL, Changes in US. Family Finances from 2004 to 2007: Evidence from the Survey of Consumer Finances, 95 FED. RES. BULL, at Al, A49-A50 (2009).
32. Margret Bell, Ph.D., Boston College, Department of Counseling Psychology. Dr. Bell is currently affiliated with the Veterans Administration Boston Healthcare System.
33. MICHELE C. BLACK ET AL., NAT'L CTR. FOR INJURY PREVENTION & CONTROL, CTRS. FOR DISEASE CONTROL & PREvENTION, THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SuRVEY: 2010 SUMMARY REPORT 38 tbl.4. 1 (2011), available at http://www.cdc.gov/ViolencePreventionlpdflNlSVS-Report2OlO-a.pdf (5.9%)
34. and John Schafer et al, Rates of Intimate Partner Violence in the United States, 88 AM. J. PuB. HEALTh 1702, 1702 (1998) (9.8%)
35. Angela Littwin, Beyond Usury: A Study of Credit-Card Use and Preference Among LowIncome Consumers, 86 TEX. L. REV. 451, 453 (2008);
36. see also David A. Lander, "It 'Is' the Best of Times, It 'Is' the Worst of Times": A Short Essay on Consumer Bankruptcy After the Revolution, 78 AM. Bft.NKR. L.J. 201, 203-05 (2004) (tracing the increase in credit card availability for low-income consumers over time);
37. David A. Moss & Gibbs A. Johnson, The Rise of Consumer Bankruptcy: Evolution, Revolution, or Both?, 73 AM. BANKR. U. 311, 336 (1999) (observing that an increasing spread between credit card interest rates and other interest rates during the 1980s enabled credit card issuers to charge risk premiums to borrowers at decreasing income levels).
38. See Adrienne E. Adams et al., Development of the Scale of Economic Abuse, 14 VIOLENCE AGAINST WoMEN 563,563(2008) (discussing various forms of economic abuse and recommending a scale for measuring such abuse).
39. See, e.g., ST.Riç supra note 2, at 269-72 (surveying the ways in which batterers limit their victims' ability to work and their access to money); Lloyd & Taluc, supra note 3, at 385-87 (reviewing the negative effects of family violence on victims' labor force participation and economic independence); Maureen Outlaw, No One Type of Intimate Partner Abuse: Exploring Physical and Non-Physical Abuse Among Intimate Partners, 24 J. FAM. VIOLENCE 263, 265-68 (analyzing nonphysical forms of abuse against women).
40. A dramatic drop in financial status around the time of the event that would qualify someone for inclusion in an empirical study also occurs in research on consumer bankruptcy filers. See generally TERESA A. SULLIVAN ET AL, THE FRAGILE MIDDLE CLASS: AMERICANS IN DEBT (2000) [hereinafter SULLIVAN, FRAGILE MIDDLE CLAsS]. Bankruptcy researchers have addressed this issue by asking about more enduring indicators of socioeconomic status, such as education and occupational prestige. This approach may be useful in future studies on economic abuse.
41. Elizabeth Warren, Bankrupt Children, 86 MINN. L. REV. 1003, 1006 (2002) (finding that "households with children are much more likely to file for bankruptcy").
42. See WILLIAM FODDY, CONSTRUCflNG QUESTIONS FOR INTERVIEWS AND QUESTIONNAIRES: THEORY AND PRACrICE IN SOCIAL RESEARCH 2-4 (1993) (examining how participants may give invalid answers or suggest behaviors that differ from what they actually do);
43. W. Edwards Deming, On Errors in Surveys, 9 AM. SOC. REV. 359, 359-60 (1944) (listing the principal sources of errors in survey data, including "variability in response");
44. see also Rikuma Ito, An Analysis of Response Errors: A Case Study, 36 J. BUS. 440 (1963) (measuring discrepancies between respondents' replies to surveys on car loan payments and the actual payments made).
45. Carole Kennedy Chancy & Grace Hall Saltzstein, Democratic Control and Bureaucratic Responsiveness: The Police and Domestic Violence, 42 AM. J. POL. Sd. 745, 747 (1998) ("Slightly more than half of all domestic violence incidents revealed in victimization surveys today are reported to the police) .
46. See, e.g., Richard B. Felson & Paul-Phillipe Pare, The Reporting of Domestic Violence and Sesual Assault by Nonstrangers to the Police, 67 J. MARRIAGE & FAM. 597, 601 (2005) (finding that the "most common reason victims give for not reporting. . assault is that it was too minor");
47. Richard B. Felson et al., Reasons for Reporting and Not Reporting Domestic Violence to the Police, 40 CRIMINOLOGY 617, 617 (2002) (finding that though DV victims are less likely to report violence because of privacy concerns, DV victims are ultimately just as likely as other victims to call the police).
48. See Murray Straus et aL, The Revised Conflict Tactics Scales (CTS2): Development and Preliminary Psychometric Data, 17 J. FAM. IsSuas 283,285-86(1996).
49. Philip M. Podsakoff et al., Common Method Biases in Behavioral Research: A Critical Review of the Literature and Recommended Remedies, 88 J. APPLIED PSYCHOL. 879, 882-83 (2003).
50. Kristin L. Anderson, Who Gets Out? Gender as Structure and the Dissolution of Violent Heteroseiual Relationships, 21 GENDER & Soc'Y 173, 177-78 (2007) (divorce);
51. Ann L. Coker et al., Physical and Mental Health Effects of Intimate Partner Violence for Men and Women, 23 AM. 3. PREVENDVE MED. 260 (2002) (medical problems);
52. Jennifer E. Swanberg & T.K. Logan, Domestic Violence and Employment: A Qualitative Study, 10 J. OCCUPATIONAL & HEALTH PSYCHOL. 3 (2005) (job instability).
53. See Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98 GE0. L.J. 289, 302 (2010);
54. Michael P. Johnson, Conflict and Control: Gender Symmetiy and Asymmetiy in Domestic Violence, 12 VIOLENCE AGAINST WOMEN 1003, 1003, 1006 (2006)
55. [hereinafter Johnson, Gender Symmetry] (identif'ing four types of DV: intimate terrorism, violent resistance, situational couple violence, and mutual violent control);
56. Michael P. Johnson, Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women, 57 3. MARRIAGE & FAM. 283, 283 (1995)
57. [hereinafter Johnson, Patriarchal Terrorism]
58. The CDC expects to release additional analyses of this data in 2012. Letter from Linda C. Degutis, Dir., Nat'l Ctr. for Injury Prevention & Control, Ctrs. for Disease Control & Prevention, to Colleagues (Dec. 14, 2011), available at http://www.cdc.gov/ViolencePrevention/pdf7NISVS- DearColleague-a.doc.
59. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 6(1991).
60. Maxy P. Brewster, Power and Control Dynamics in Prestalking and Stalking Situations, 18 J. FAM. VIOLENCE 207, 209 (2003)
61. (quoting RONET BACHMAN & LINDA E. SALTZMAN, BUREAU OF JUSTICE STATISTICS, NCJ 154348, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 1 (1997), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/FEMVIED. PDF).
62. See generally Maxy E. Gilfus et al., Gender and Intimate Partner Violence: Evaluating the Evidence, 46 J. SOC. WORK EDUC. 245 (2010).
63. Murray A. Straus & Richard J. Gelles, Societal Change and Change in Family Violence from 1975 to 1985 as Revealed by Two National Surveys, 48 J. MARRIAGE & FAM. 465,470(1986).
64. E.g., Murray A. Straus, The Controversy over Domestic Violence by Women: A Methodological, Theoretical, and Sociology of Science Analysis, in VIOLENCE IN INTIMATE RELATIONSHIPS 17, 18 (Ximena B. Arriaga & Stuart Oskamp eds., 1999) ("In the mid l970s my colleagues and I made the disturbing discovery that women physically assaulted partners in marital, cohabiting, and dating relationships as often as men assaulted their partners.. This fmding caused me and my former colleague, Suzanne Steinxnetz, to be excommunicated as feminists.").
65. MICHAEL R. RAND, BUREAU OF JUSTICE STATISTICS, NCJ 156921, VIOLENCE-RELATED INJURIES TREATED IN HosPrrAL EMERGENCY DEPARTMENTS (1997), available at http://bjs.ojp.usdoj.gov/contentJpub/pdf/VRITHED.PDF.PDF)
66. Barbara J. Morse, Beyond the Conflict Tactics Scale: Assessing Gender Djferences in Partner Violence, 10 VIOLENCE & VICrIMS 251 (1995)
67. JOANNE BELKNAP & HEATHER MELT0N, NAT'L ELEC. NEVW0RK ON VIOLENCE AGAINST WOMEN, ARE HETEROSEXUAL MEN Also VIcnMs OF INTIMATE PARTNER ABUSE? (2005), available at http://www.biscmi.org/aquila/Male%20Victims%20N0-Belknap. pdf;
68. SHAMITA DAS DASGUPTA, NAT'L ELEC. NETWORK ON VIOLENCE AGAINST WOMEN, TOWARDS AN UNDERSTANDING OF WOMEN'S USE OF NON-LETHAL VIOLENCE IN INTIMATE HETEROSEXUAL RELATIONSHIPS (2001), available at http://snow.vawnet.org/Assoc- Files-VAWnetlAR-womviol.pdf.
69. DAVID S. EVANS & RICHARD SCHMALENSEE, PAYING WITH PLASTIC: THE DIGITAL REVOLUTION N BUYING AND BORROWING 78 (1999) ("Instead of the conventional personalized approach to credit management, credit card lending relied on a more systematic objective (i.e., computerized) approach.").
70. Robert G. Gibson, Advising Distressed Homeowners, DCBA BRIEF, Feb. 2011, at 24, 27 n.8, available at http://www.dcbabrief.org/flipbook/02l1/index.html ("Critics correctly suggest that lender's [sic] current practices result in confusion as to who actually owns the mortgage, which in turn frustrates the Making Home Affordable Program, as well as the possibility of contacting the lender to get a short sale approved.");
71. William Alden, Man Makes Ridiculously Complicated Chart to Find Out Who Owns His Mortgage, HUFFINGTON POST (May 25, 2011, 7:10 PM), http://www. huffingtonpost. com/20l0/11/16/mortgage-security-chart-n-784274.html.
72. See Adam J. Levitin, Private Disordering? Payment Card Fraud Liability Rules, 5 BROOK. J. CORP. FIN. & COM. L. 1, 18 (2010) ("Card network rules do generally require merchants to compare the signature on the charge slip with the specimen signature on the card, but signature matching is an art, not a science, at least when practiced by store clerks, and is of little use in preventing fraud. .. In a typical commercial context, the store clerk never examines the card in any way.").
73. A. Mechele Dickerson, The Myth of Home Ownership and Why Home Ownership Is Not Always a Good Thing, 84 IND. L.J. 189, 191-92 (2009)
74. (citing ERIC BELSKY & JOEL PRAKICEN, NAT'L ASS'N OF REALTORS, HOUSING WEALTH EFFECTS: HOUSING'S IMPACT ON WEALTH ACCUMULATION, WEALTH DI5TRIrnrnON AND CONSUMER SPENDING 8 (2004), available at http//www.realtor.org/libweb. nsf7pages/fg302 (follow hyperlink to pdf file under "Wealth Effect" heading);
75. Courtney Schlissemian & Joe Richter, US. Metropolitan Home Value.r Drop Most in Six Years (Update 4), BLOOMBERG (June 26,2007, 2:55 PM), http:llwww.bloomberg.com/appsfnews?pid =newsarchive&sid=aDPbZOuuxP6E;
76. Lawrence Wright, The Apostate: Paul Haggis vs. The Church of Scientology, NEW YORKER, Feb. 14, 2011, at 84, 103.
77. See, e.g., U.S. DEP'T. OF HEALTH & HUM. SERv5., FACT SHEET: HUMAN TRAFFICKING 2 (2008), http://www.acf.hhs.govltrafflcking'aboutlfact-human.pdf ("Victims of trafficking are often subjected to debt-bondage, usually in the context of paying off transportation fees into the destination countries.").
78. See, e.g., Alison Cassady & Edmund Mierzwinski, NAT'L ASS'N OF STATE PIRGS, MISTAKES DO HAPPEN: A LOOK AT ERRORS IN CONSUMER CREDIT REPORTS (2004), available at http://cdn.publicinterestnetwork.org/assets/BEevuv 19a3KzsATRbZMZIw/MistakesDoHappen2004.pdf (describing sloppy credit reporting practices that lead to significant errors in credit reports).
79. These are TransUnion, Experian, and Equifax. Sharing Your Personal Information: It's Your Choice, FED. TRADE COMM'N, http://www.ftc.gov/privacy/ protect.shtm#Credit (last visited Mar. 16, 2012).
80. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376(2010).
81. See, e.g., KATHLEEN C. ENGEL & PATRICIA A. McCoY, THE SUBPRIME VIRUS: RECKLESS CREDIT, REGULATORY FAILURE, AND NEXT STEPS (2011).
82. See Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 AM. BANKR. Li. 349, app. 1(2008).
83. See TERESA A. SULLIVAN E AL, As WE FORGIVE OUR DEBTORS: BANKRUPTCY AND CONSUMER CREDIT TN AMERICA (1989).
84. Murray A. Straus, Measuring Intrafamily Conflict and Violence. The Conflict Tactics (C7) Scales, 41 3. MARRIAGE & FAM. 75,78-80(1979)
85. Munay A. Straus, The Conflict Tactics Scale and Its Critics: An Evaluation and New Data on Validity and Reliability, in MURRAY A. STRAIJ5 & RICHARD J. GELLES, PHYSICAL VIOLENCE IN AMERICAN FAMILIES: RISK FACTORS AND ADAPTATIONS TO VIOLENCE IN 8,145 FAMILIES 49,49 (1990).
86. Murray A. Straus, Trends in Cultural Norms andRates of Partner Violence: An Update to 1992, in UNDERSTANDING PARTNER VIOLENCE: PREVALENCE, CAUSES, CONSEQUENCES, AND SOLUTIONS 30,30 (Sandra M. Stith & Murray A. Straus eds., 1995).
87. CRAIG A. PERKINS E AL., BUREAU JUSTICE STATISTICS, NCJ 151657, CRIMINAL VICTIMIZATION IN THE UNITED STATES, 1993: A NATIONAL CRIME VICTIMIZATION SURVEY REPORT (1996), available at http://bjs.ojp.usdoj.gov/content/pub/pdf7cvus93.pdf.
88. James Ptacek, The Tactics and Strategies of Men Who Batter: Testimony from Women Seeking Restraining Orders, in VIOLENCE BFP.VEEN INTIMATE PARTNERS: PATTERNS, CAUSES, AND EFFECTS 104,112-15 (Albert P. Cardarelli ed., 1997).