Calling the Police to Report Domestic Violence: Exercising the First Amendment Right to Petition

Tamara Kuennen, University of Denver

Abstract

Like any citizen, a victim of domestic violence (DV) has the right to call the police for help when she needs it. The right, recently described by the Supreme Court as “essential to freedom,” is guaranteed in the First Amendment’s Petition Clause - the right “to petition the Government for a redress of grievances.” When a victim calls the police, she not only seeks law enforcement assistance but invokes her right to petition the government for one of the most fundamental services the government can provide – protection from harm.

The vast majority of DV victims do not report the violence to the police. Feminist legal scholars and policy-makers widely acknowledge that this under-reporting is a major impediment to the justice system’s ability to effectively address DV. This article examines the negative collateral consequences, imposed by law and policy, which flow directly from calling the police. Specifically, the article focuses on the dilemma that battered mothers face. In many jurisdictions across the country, police report battered mothers to child protection services (“CPS”) as a matter of course, without any investigation of actual risk to the child. The practice serves a laudable goal: by referring all DV cases to CPS, the police bring to the attention of the state untold number of at-risk children who might otherwise fall below the radar. However, given the notorious treatment of DV victims and their children by CPS, a significant number of victims choose not to call the police at all, for fear of having their children taken away.

In addition to the chilling effect on victims’ calls for help, a sweeping practice of reporting all DV calls to CPS inundates the agency with reports it must, by law, investigate. In the last decade, about 60% of the reports made each year were unsubstantiated. While an across-the-board, “report-all” policy may be motivated by a praiseworthy goal, a reporting practice that produces less, but more accurate, referrals to CPS would provide greater protection to children. I argue that the Petition Clause requires as much, and that the “report-all” policy at issue is unconstitutional.

The article proceeds in four parts. After an introduction, in Part II I define the right to petition and review its history and purpose. I show how it has been overshadowed by and confused with the right to speech. Building on the growing body of scholarly literature suggesting that this should not be so, I demonstrate that while the rights of speech and petition overlap, they are not co-extensive. For this reason, in part III, I argue that judicial analysis of the right to petition need not be identical to that of speech, despite the Court’s recent ruling. The level of judicial scrutiny applied to the right should be strict: only by proving a compelling state interest and the use of the least restrictive means for achieving that interest should the government be allowed to infringe upon a victim’s right to call the police. I conclude that even under a less-than-strict level of scrutiny, the report-all practice is unconstitutional. In part IV, I identify other government practices that deter victims’ reports to which the Petition Clause may apply. Finally, I discuss the broader, political implications of viewing a call to the police as an invocation of a constitutional and political right, to make the case that the right to petition has as of yet untapped potential for feminist legal scholars and policymakers addressing DV.