New Law Hurts Domestic Violence Victims

by Chiori Kaneko

Governor Gray Davis signed a law into existence this past September that will have a terrible impact on victims of domestic violence. The Synclair-Cannon Child Abduction Prevention Act is intended to prevent international child abductions by a parent or a guardian. Synclair-Cannon was supported by prominent advocacy groups such as California NOW and the Klaas Kids Foundation.

Unfortunately, the lawmakers and the supporters of this act failed to consider how it would affect the most vulnerable parents of all, immigrant victims of domestic violence. There are three problems with this law that will bind immigrant victims of domestic violence to their abusers and prevent them from seeking the safety of a battered women's shelter.

In one part of the measure, Synclair-Cannon requires judges to consider a domestic violence victim to be a kidnapping risk if she flees her abusive husband and takes the children with her. She would be a kidnapping risk even if she acted out of a reasonable belief that leaving the children with the abuser would result in physical or emotional harm to the child, reported the whereabouts of the child to the authorities, and brought a timely action in court. As a result, the Act provides abused women with two unthinkable choices: stay in an abusive relationship in order to be with their children or expose the children to harm by leaving them with the abuser.

Two other segments of the act also work together to create a trap for domestic violence victims who are immigrants. Under one section, a person who has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship may be considered a kidnapping risk, if another risk factor applies to her. Another part states that the lack of strong ties to this state is a risk factor. Taken together, immigrant women will categorically be considered kidnapping risks, even if they have taken no action whatsoever.

This is particularly problematic because abusive husbands married to immigrant wives often use immigration status as one of their tools of control. Because immigrant victims of domestic violence fear deportation, their abusers often order their abused wives not to call the police, or else they will be reported to the INS. Many abusive husbands also prevent their wives from attaining U.S. citizenship. This law would add to the arsenal of these abusive husbands. Not only can an abusive husband threaten deportation during the marriage, but under Synclair-Cannon, he can also rely on this statute to argue that his wife is a kidnapping risk.

Such an onerous burden created by this law is unnecessary. The legislature should have created an exception for domestic violence victims, just like the one in the California Penal Code 278.7. This code exempts domestic violence victims from the criminal charge of kidnapping, if the woman conceals a child because she has a reasonable belief that the child will suffer immediate harm if the child is left with the abuser. She must also report the whereabouts of the child to the county district attorney, and file a custody action in a timely manner.

By specifically rejecting this exemption, Synclair-Cannon will force abused women to choose between her own safety and the safety of the children. If the legislature adopts the same exemption that is already established in California's penal code, it will create a third choice for these victims: flee to the safety of a shelter with her children, notify the authorities of their location, and file for custody in a U.S. court.

Some may argue that immigrant victims of domestic violence are precisely the people who are most likely to kidnap children. A woman who is abused has every incentive to flee her home with her children, so the argument goes, especially if she is from a foreign country. Those of us who work with immigrant victims of domestic abuse, however, know how unlikely such a scenario is. When clients enter our offices, their first and foremost concern is their children.

Their second concern is not their property nor is it their right to spousal support. After their children, the most important thing to these women is their right to remain in the United States. These are precisely the least likely candidates to leave the country with their children because they are most afraid of not being able to return here.

The Synclair-Cannon Child Abduction Prevention Act in its current form puts victims of domestic violence-especially immigrant women- at a disadvantage in custody proceedings and will prevent such victims from leaving their abusers. This law not only takes away immigrant women's choice to enter a shelter, but also makes flight to foreign jurisdictions the only way for them to protect themselves and their children's physical safety.

We do not need a reverse incentive for abused women to flee this country. What we need is a law that will encourage women to enter shelters and that will assure the safety of the children. If the legislature adopts an exception for domestic violence victims under this law, they will preserve the "teeth" necessary to prevent international child abductions, yet avoid imposing a life-threatening burden on abused women.

Chiori Kaneko is a staff attorney with the Legal Aid Foundation of Los Angeles.

A different version of this commentary originally appeared in the October 7, 2002 edition of the Daily Journal.

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